Unit-1 Definition & Nature of International Law In 1905, Oppenheim defined International Law as "Law of Nations or

International Law is the name for the body of customary and conventional rules which are considered legally binding by civilized
States in their intercourse with each other."
Criticism: The above definition may be criticized on following grounds— 1. Now, not only the States but other international
entities and institutions are also taken into the ambit of International Law because these international entities/institutions enjoy
rights and liabilities accorded by International Law. 2.Individuals in certain capacities are also the subject-matter of International
Law. 3.Under the purview of International Law not only the customary and conventional rules are covered but general principles
of law recognized by civilized States are also included. 4.The notion that International Law is a body of rules and conventions only
seems half-truth. In 9th edition of Oppenheim book published in 1992 the changed definition stands as "International Law is a
group of such laws which are legally binding in relation to reciprocal relations of States. This Law primarily regulates the
relations of States, but only States are not subject of International Law. International institutions and to some extent individuals
may also be subject of International Law in relation to rights and duties imposed on them by International Law. As such the
above narration includes the present changes introduced in the International Law. J.L. Brierly and Hans Kelsen define
International Law covering the theme as regulator of mutual behaviour of States, leaving aside the present developments in the
ambit of International Law. Likewise other traditional jurists of International Law such as Hughes, Wheaton, Lawrence etc. have
more or less covered the same theme that International Law regulates the behaviour of Statesinter se, in their respective
definitions of International Law.
An improved definition Was given by J.B. Starke covering the recent development in International Law "that body of law which is
composed for Its greater part of the principles and rule of conduct which States feel themselves bound to observe, and
therefore, do commonly observe In their relations with each other, and which includes also; (a) the rules of law relating to the
functioning of international institutions or organizations, their relations with each other and their relation* with States and
individuals; and (b) certain rules of law relating to individuals and non-State entities so far as the rights or duties of such
individuals and non-State entities are the concern of the international community."
The above definition is different from traditional definitions because in its scope along with States other international entities
together with individuals and other non-State entities are also covered.
After the establishment of UNO in 1945, many entities have been accorded with creation legal rights and duties and by
enumerating them Starke has expanded the scope and vision of the International Law, coping with the present international
needs and objects. It has been suggested that in future when some non-enumerated entity will be granted rights and duties
compatible to International Law, the definition of Strake shall be lacking in covering that new addition. It is submitted that
cognate expressions shall be deemed to be included even covering into being afterwards. Further Starke has never claimed that
his enumeration in the definitions is exhaustive. The definition of Schwarzenberger covers the new developments in
International Law. He defines "International Law as the body of legal rules which apply between sovereign States and such other
entities as have been granted international personality." It is clear from the above narrations that presently International Law
includes in its ambit not only the relations of Statesinter se, but is also confers rights and obligations to other entities such as
International organizations and institutions together with individuals. In the definition of Schwarzenberger, the States, no doubt,
have been given a prime place, but his attention has not escaped the presence of new trends whereby many a many entities are
regularly conferred with legal rights and obligations coming into the ambit of International Law. The International Law must be
defined covering the new trends, which have sprung up to cope with new probletais #\f international community. The basic
elements/attributes of present International Law must be coyered by a modern definition the elements of which are as follows:
1, The rules, regulations, principles, norms prevalent and observed by nations come into existence by consensus agreements,
treaties, customs, conventions etc. wherein States give their consent for imbibing them with binding nature through granting
concessions in their respective sovereignty. 2.After the establishment of UNO in 1945, the International Law has acquired
enforceability and sanction. 3.The International Law serves the purpose of acquiring international peace and progress among the
nations. 4.It aims at generating equality in treatment among the big and small nations, a 5.Its goal is co-existence without
exploitation, even in reterogeneous circumstances among the nations. "International Law through its different norms/principles
regulation etc. stimulates nation’s international entities and people to establish peace, co-existence without exploitation for
equal progress of all in peace as well as in war like circumstances." Is International Law a law in the true sense of the term? The
supporters of analytical, imperative, positive theories of jurisprudence the exponent of which include Jermy Bentham, Jethro
Brown, Hobbs, Pufendarf and Austin have asserted that since law is the command of a sovereign with a sanction signifying that
those who disobey the command shall be punished, as such according to these jurists the International, Law is not a law in the
true sense of the term because of the following reasons 1. In the State administration, the law is devised by the political power
regulating the behaviour of its people and those who disobey it, they are punished by that political power. In case of
International law, there is no such political power who can .regulate the behaviour of different States which are itself a
sovereign entity in most of the cases. 2. There is lack of a legislative forum in case of International Law as is available in the case
of Municipal law in the shape of higher and lower legislatures for the Central and State level legislation as the case may be. 3. As
per Analytical and other similar schools the International Law lacks sanction. It has no machinery for punishing those who dare
to disobey. . 4. Even if International Court of Justice, or mutual treaties provide some agreement or decision for the solution of
the dispute there is no authority or forum to compel the parties to obey the decision of the Court or conditions of the
agreement, if one of the party chooses to withdraw or disobey the award/decision/agreement. 5. There is lack of a powerful
Court competent to commence contempt proceedings in the International law jurisdiction, the ICJ commences and takes
cognizance of a case when both the parties agree to honour its
jurisdiction over them, hence if one of the party refuses to submit itself to the jurisdiction of the ICJ, it
becomes helpless.
6. Law between the States becomes enforceable only when the States giving a sort of concession to their
sovereignty, accept it through agreements, treaties, conventions etc.
Hence, the jurists of this school regard International Law as 'law like' not a law.
On the other hand the modern jurist claim that the International law is a 4 aw quite enforceable and duly accepted by the States.
So far as the question of 'Sanction' in the International Law is concerned, the jurists of Historical School assert that this element
of sanction is not a necessary ingredient of Law. People follow and obey law as a matter of habit. Moreover, if we accept that
sanction is a necessary element of a law in International Law, there is enough provision for sanction, having capacity to punish
States who disobey by collective action of States authorized by UNO presently and by League of Nations previously. The shape
of sanction may be Military in all its variances in Land. Sky and Ocean. It may by economic in the shape of blockade, boycott,
restrictions censors etc. It may be social through resolutions, non-invitation, snapping of ties etc.
These provisions and practices are no doubt available but its implementation requires bold decision because now the world has
become very small due to technological explosion of many devices world over and effect of one event is felt all over the world.
Moreover, a resolution to get through from the Security Council of the UNO is also not an easy task because of the clash of
interest of the permanent members of the Security Council.
Having all these points in view it has been suggested that International Law is a law but a weak law. Holland had remarked that
International Law is the vanishing point of jurisprudence, having in mind all these difficulties in enforceability of International
Law,
In conclusion we may say that International Law is the congregation of such rules and regulations which regulate the mutual
relations of different units of International community. In the members of International community, the States have a prime
place, but besides States, International Institutions, individuals in their different capacities and other non-States parties are also
in the ambit of international community and as such are the exact matter of International Law in other words, International Law
is applicable to them.
Nature & Scope of International Law In most of the cases, the prime abject of International Law is States. The States inter se
honour the international law. International Law as binding and usually obey the norms and principles of International Law of the
States become a party signatory conventions, agreements, treaties declarations, etc. Thus proved when we see that in case of
disputes, conflicts, aggression, and war etc., States cry for the violation of International Law and try to seek remedial measures
under the ambit of International Law. Moreover, concept of neutrality and Neutral States comes through International Law and
privileges sought for are available only when we accept the prevalence and authority of International Law. The existence,
prevalence and authority of International Law is proved without doubt, but its efficacy depends upon the status of that State
which tries to implement it and equally upon the status of that State against whom certain norms of International Law is to be
implemented. It is so, because in the Security Council the five permanent members have power to exercise their veto power and
that veto power is exercised according the different demands and interests and political suitability of the time which cannot be
predicted and cannot be treated as constant and so in similar situations dissimilar behaviour of permanent members of Security
Council is not a matter of dismay/wonder.
So it is correct to assert that International Law is a law and is capable of being enforced externally through UNO machinery. Law
is capable of external enforcement, while morality is the internal conscience regulated behaviour of States and if morality is
contravened, the concept of sin comes in and conscience punishes the guilty.
In International Law, the States do accept International Law, but to protect their self-interest or needs, sometime, on the basis of
their physical power and wealth violate International Law in true sense but plead for their action as under the ambit of
International Lawi.e. violation of International Law on other's view is not a violation but a permissible action under the authority
of International I my is duly asserted by these powerful States, As such the nature of International is that it is accepted law by
different units of international community and is treated as binding over them and regulates their mutual behaviour and with
other units of the International community under which States, international institutions, organisations, entitles and even non
State come. The nature of International Law is pervading and controls the behaviour of international community directly as well
as indirectly. The control is indirect when, Slates seek retire under the International law after violation of international norms
that whatever action they have committed is supported In International Law, It may seem irony but truth is truth. States when
commit some wrong the) propagate that their action is within the limits of International Law, Is International Law a more
positive morality? To answer the above question it in pertinent to know what is morality and how it is different fromlaw.
According to Oppenheim, the rules of morality are those rules which through the approval of the community regulate the
discretion and only the discretion of a person and is internally concerns with the conscience. While law may be enforced
externally on the basis of sanction if need be, The International Law is of a binding nature has been accepted in principle by
almost all the constituents of international community. The fact that International Law is binding distinguishes it from morality
because morality lacks binding nature in application. So we can say that International Law is a law. The word 'positive' signifies
before the morality that as if morality can be enforced. So if morality becomes enforceable it will be equivalent to International
1 aw in the present context. But if morality is made enforceable externally it will not remain morality because its connection
with the conscience shall stand snapped hence the proposition that International Law is mere positive morality is not acceptable
logically as explained above,
Is International Law a vanishing point of jurisprudence? In the opinion of Holland, the International Law is accepted and used
only on the basis of courtesy. It lacks sanction hence it cannot be place in the category of a law. On these points, Holland
laments that International Law is not a law but a reflection of vanishing point of law. Austin has also remarked that International
Law is a law without sanction hence its observance depends upon courtesy.
The contention that International Law is without sanction is not fully correct, because there is something which provokes
nations to behave according to norms of the International I aw, liven if we agree that there is lack of sanction in International
Law, it is submitted that it will not be correct to assert that International Law is not a law. It may be a weak or less effective
branch of law but still it is a law. If we compare International Law with Municipal law; we shall find that International Law stands
on a weak pedestal, but at the same time the comparison of International Law with Municipal law of a State seems unjustified
because both are practised in different areas. For a Municipal law State authorities become competent to legislate, formulate,
implement and enforce it in the g iven defined territorial jurisdiction which may be termed as centralized system of
administration while in case of international Law, though some agencies are working but the whole system happens to be
decentralized and depends upon the sweet concession of sovereignty in the shape of agreements, consensus, treaties,
conventional etc. without any strong machinery for implementation or enforcement. But still States obey the norms of
International Law and hence it may be asserted that International Law is not the vanishing point of jurisprudence.
When Holland remarked that International Law is the vanishing point of jurisprudence (that is
International Law is not a law), he intended this because in his opinion there was no effective Court
of Justice or Arbitration machinery to solve the international disputes between the nations and
international norms of International Law are observed by the States due to courtesy. This point of
view, because of technological explosion world over, and many a new development in different
norms and emergence of new norms and human rights, the scope of International Law has expanded
a lot and many a many new States have come into being with democratic and co -existence
viewpoints to give the shape of International Law a new look and new responsibilities to bear out.
The establishment of International Court of Justice, and activation of Security Council for its
expansion with the increase in numbers of members of States in the U.N.O.; the power in
International Law is increasing day by day. As such contention of Holland seems irrelevant in the
present state of International Law.
Holland also asserts that International Law is more like morality than law. But this statement is
also not correct, because rules of morality are concerned with conscience and affect discretion while
rules of law are binding. The International Law is a binding law has been felt in 1991, in the Gulf Warm
and sanctions against Lebia as effectively enforced by the Security Council of U.N.O.
It is pertinent to mention here that not only the U.N.O. but its cognate agencies and entities established
through international agreements, have in their respective Constitutions and policies working under them
including individuals. Many States legislate for enforcing international treaties as the law of the land. Under
these circumstances, the saying that international law is the vanishing point of jurisprudence is not correct.
Basis of obligation in International Law 1. Theory of Naturalistic- Those jurists who adhere to natural law thinking assert that
International Law is the one of the parts of natural law. In other words, the States accept International Law, because natural law
is a higher law much above the laws of the States. Grotius is regarded as the father of the present International Law. According
to Grotius, the natural law is the dictate of right reason. His disciples presented natural law as an ideal law which is founded on
the nature of man as a reasonable being. The International Law is binding and obligatory because in reality it uses natural law in
special circumstances conducive to International Law. Vattel is one of the famous jurists of natural law school who in 18th
century had described natural law as the base of International Law. The other natural law adherents like Pufendorf, Christian
Thamasious etc. have also asserted that natural law is the base on which the structure of International Law stands.
1. Criticism. The jurists of natural law school assert that natural law norms are the base of
International Law and binding nature of International Law comes from the natural law thinking.
But the different followers of the natural law, give different meanings of their understanding of
natural law. Some say it as ^reason', some say it as 'justice' while others say it as 'utility' and or
common interest of international community. As such this thinking lacks uniformity.
2. The other main defect of this school of thinking is that it is not based on the real
international relations and realities of States behaviour.
3. This school is more akin to morality than the law and it is well known that
International Law is a law not morality hence, hypothesis of this school become less
effective and the nature of obligation and binding character of International Law is
not the effect and result of natural law.
Leaving aside the criticism as discussed above, the effect of natural law on International Law has been quite remarkable and it
has given idealism to International Law in its development processes.
2. Theory of Positivism. The jurists of positivism in opposition to naturalists assert that the basis of International Law is the real
behaviour of States. In real sense, the law is that which is law in reality, and in this context International Law exists in treaties
and customs. This view in 18th century was in good circulationi. e . quite famous and Bynker Shoek the famous positivist tried to
establish this view by writing many books.
According to Positivists, the sources of International Law on the last analysis comes to the wishes of States. The norms and rules
of International Law derive their power through the assent, agreement, consensus, concession in sovereignty of States.
The German Jurist Hegel propounded the theory of wish of the States as the basis of International Law. Positivists asserted that
under the International Law, those rules and regulations come which come into existence because of the State's restrictions on
their power by themselvesi. e by process of voluntary restriction or auto limitation and in return giving assent to the rules of
International Law.
So we may deduce that International Law is that system of rules and norms whose binding nature depends upon the
assent/acceptance of States.
Criticism. — The view point of positivists mainly depend upon the real transactions of the States/Nations. But one can criticise
their school of thought as follows.
1. The concept of the will/wish of States as propounded by positivists is purely a similar which is quite away from the reality. It
does not express the real elements. In reality, the will of the State is the will of those persons who constitute a State. A State
may be democratic, or under a Crown or under a Dictator and accordingly the real power of state may differ according to their
form.
2. The view point of positivists that International Law depends upon the consent/assent of States, is away from reality. This
principle fails when a new State enters the international community. In this case, the international customs begin to operate
over this new entrants without its consent because it chooses to become a member of international community, The famous
jurist Sir Cecil Hurst has vehemently criticized the consent theory of States for binding nature of International Law and has
concluded that this theory is wrong,
3. Ordinarily In transactions it is not necessary to clarify especially for customary rules and other legal rules accepted by civilized
States that on these the States have granted their consent and hence they arc the binding rules of International Law. As such, in
International Law norms and rules arc followed because of the need also.
Otherbasis of International Law
1. Theory of Fundamental Rights,—-Briefly opines that theory of fundamental rights has similarity with
the principles of State of Nature. It is an accepted fact that man lived on this earth before the emergence
of the community or the State and at that time too, the man lived even when there was no such concept
where States may have super States over them. As such in every State fundamental there exists, some natural rights, birth right
or fundamental rightse.g. right of self-defence, self-respect, right of freedom, equality and mutual relations. 2. Consent Theory.
—According to this theory States implement International Law because they have given consent to implement norms of
International Law in their transactions. The advocates of this theory include Angilotti Vattel and Oppenheim etc. This concept
does not suit to adherents of customary International Law, as they assert that custom are followed habitually. But in reply, the
consent theory adherents assert custom exists because of implied consent. Theory argue that customary rules are binding as
the nations have given implied consent to obey them. 3. Auto Limitation Theory.—According to this principle the International
Law is binding on the States because States have themselves restricted their power and sovereignty to implement the principles
of International Law. This principle stresses upon the freedom and sovereignty of States. The main exponent of this theory is
Jenning. This principles is based upon the fact that every State has a freewill. This will is completely free and is not regulated by
any external power. But a State itself can restrict or reduce its free will, power and sovereignty. The States are not bound to
implement the norms of International Law because they are free and sovereign but if they wish they can restrict their freedom
and sovereignty and may implement the norms of International Law—and this limiting of power and sovereignty is called auto
limitation principles of States for implementation of International Law. 4. Pacta Sunt Servanda. The credit to introduce this
principle in International Law for implementation of its norms and principles goes to the Italian jurist Angilotti. According to him
binding nature of International Law is based on a higher and fundamental principle of law which comes from Pacta Sunt
Servanda. The meaning of Pacta Sunt Servanda is that States will honour the conditions of treaties and will implement them.
According to Angilotti this view is the main basis of International Law for its binding nature. It is also supported by positivists.
The Pacta Sunt Servanda principle promotes honouring of international treaties and if their conditions or implementation if
violated there will be choas and lawlessness. It is a fundamental principle of International Law, that if States enter into a treaty,
they must follow its conditions and must implement it and their provisions are treated as binding upon them. But to say that
binding nature of International Law comes from Pacta Sunt Servanda, will not be justified, because this principle does not clear
the position why customary principles are implemented? Likewise, why States follow the general principles of law accepted by
civilized States is also seems out of the purview of Pacta Sunt Servanda?
The Real basis of International Law.—Because of technological and information technology explosion, the world has become
very small in its scope .and every incident in any corner of the world affects whole of the world, hence it is very essential to
maintain peace to progress While living as a unit of the world community. Isolation and steel-curtain policy has become
obsolete in the present world. As such the remarks of Sir Cecil Hurst that International Law is in fact binding on States because
they are states, seems very apt. States follow International Law because in following it, their interest is protected. Every State
desires peace and progress and this can be achieved only through a law and hence States prefer following of International Law.
So it can be safely said that main basis of binding nature of International Law is interests of States itself, and they (States) follow
it because they (States) wish to remain as a State. Unit 2
Sources of International Law-
1. International Convention.—In the modern age when the International Law is in its developed form, the international
conventions (which include all types of treaties) have attained the prime position in the category of sources of International Law.
The ICJ looks first to treaties to locate a law for deciding a dispute. According to Chapter 11 of Vienna Convention on the Law of
Treaties, 1969 international treaties are such contracts by which two or more States make binding the International Law in their
respective transactions. This definition is limited in its scope because it has not included in its ambit other international entities
and organizations.
International treaties may be of two kinds—
(i) Law making Treaties—According to Starke "the provisions of law making treaties are the direct source of International Law."
The development of law making treaties during the middle of 19th century was achieved in great speed. The main reason for
this may be attributed to the unsuitability of customary laws in the ever changing circumstances of the International Law hence
it was considered necessary to regulate the transactions between the Slates through clear- cut provisions of the international
treaties to cope with the changing situations of the time. Law making treaties are also of two kinds—
i. Those which create universal norms, rules and regulations of International Law, the best example of
which may be cited as the charter of U.N.O.
ii Those international treaties which create general and ordinary rules of International Law. These treaties
are in greater number the contracts between the States creating ordinary and general rules. Geneva
Convention on the law of the Sea 1959, 1960 may be cited as one of the example of this kind of treaty.
(2). Treaty Contracts.—As against the law making treaties Treaty" Contracts are entered into by two or more States and its
stipulations and provisions are applicable to those states only which have entered into it, i.e. are parties to it. The stipulations
are binding to the parties of the treaties. These types of treaties are also a source of the national law and through them the
rules of customs are developed.
2. International Customs.—For centuries, the international customary rules were regarded as the main source of International
Law. Its importance has come down in the modern times only because of multifarious development of international treaties.
But even now, customs are regarded as an important source of International Law. In International Law, rules regarding customs
are those customary rules which have developed with a long historical background and practices.
Customary International Law has developed in special following circumstances which are as follows—
i.Diplomatic relations between the States;

ii.Transactions and Practices of International Organizations and Agencies;

iii.State law, decisions of State Courts and Military and Administrative actions of the States.

International customs are ordinarily binding on the States and it is immaterial whether a particular State had participated in the
developing procedure of a particular international customary rules or norms. 3. General principles of law recognized by
civilized States.—In the charter of ICJ, in its Article 38, the general principles of law recognized by civilized States, as a source of
International Law has been placed on the third number, the first being international conventions and treaties, while customs are
on the second place in hierarchy as well as in sequence of importance. The source of general principle of law recognized by
civilized States has been given recognition by the charter of ICJ as a source of International Law. By general principles of law
recognized by civilized States we mean, those rules and regulations which have been accepted and implemented ordinarily by
majority of the civilized States. The principles of res judicata and estoppel etc. are the examples of such general principles of
law. In this list procedural principles and principles of evidence are also included. This category of source has given a sort of
death knell to the profounder of positivists thought because according to them rules of customs and treaties are the only
sources of International Law. Any principle of law itself cannot become, a source of International Law even if prevalent in States,
unless it is recognized by a Court as a principle of law in its decisions.
4. Decisions of Judicial or Arbitral Tribunals.—This source is not a direct source. A Court, together on the related matter the rules
of International Law may look at the decisions of tribunals, opinions of jurists and commentators as a subsidiary source of
International Law.
Decisions of Courts and Tribunals may be placed in three categories—
1. International judicial decisions;
2. Judicial decisions of Courts of States;
3. Decisions/Awards of International Arbitral Tribunal.
5. Juristic works.—The books and commentaries written by eminent jurists and commentators cannot be regarded as an
independent source of International Law. But sometimes on the basis of their books and opinion the development in
International Law does occur. Article 38 of the Charter of ICJ, places the opinions and books of eminent jurists and
commentators as a subsidiary means of locating and prescribing the sources of International Law.
6. Decisions or determination of the organs of International Institutions. In the modern times, the decisions and findings of the
organs of different international institution entities also affect the development of International Law and hence can be treated
as a source of International Law. The decisions of the ICJ (International Court of Justice) may also be looked into for finding the
solution, though the decision of the ICJ are not used as a 'precedent'.
Other sources of International Law
1. International comity—The mutual behaviour between the States largely depends upon courtesy and goodness, that is if one
State behaves courteously, the counterpart must also behave in the same or more than that style and courtesy. According to
Oppenheim, international comity has helped a lot in the development of International Law.
2. State papers.—In modern times, almost every State lias diplomatic relations with each other and they usually correspond on
international problems1 and its solutions also through their diplomatic channels. Sometimes these letters are published also. In
studying these letters, sometimes good principles which States follow in their international transactions are deduced and may
be recommended for their utilization in future course of actions.
3. Directions and instructions given by the States to their officers.—It is often seen, that some legal luminaries are engaged as
consultants, advisors etc. to give their valuable advices to cope with different vexed problems usually faced by the States. These
opinions and other instructions issued by the States to their officers to cope controversial and vexed situations, sometimes
become handy in solving international problems as well hence it may be said that these materials are apt as a source of
International Law.
4. Reason —In all ages, reason has occupied a special position. In modern times, as well, reason has an important place. In the
international legal matters also reason plays an important role. Many a many international matters are disposed off by utilizing
reason to the satisfaction of all disputant parties. As such, reason is also given a subsidiary place as a source of International
Law.
5. Equity and Justice.—In the field of International Law equity and justice are the much sought after doctrines to solve
international problems and disputes. In modern time much attention is being paid to these principles because in a changing
world, where things become obsolete abruptly, these principles become very handy and full of utility.
International treaties
Definition.—International treaty is an agreement between two or more states under the International Law to create mutual
relationships. According to Oppenheim international treaties are those agreements between the States which are of contractual
nature and produce legal rights and obligations.
Prof, Schwarzerbenger in clarifying the international treaties has said that treaties are the agreements in subjects of
International Law which produce binding obligations in International Law. According to Starke, usually in all cases, the purpose
of treaties is to create binding nature of obligations on the parties to the treaties.
According to Vienna Convention on Treaties 1969, Article 2 "Treaties and contracts are documents under which two or more
States under, International Law establish or try to establish their relations."
Angilotti and other jurists assert that binding nature of treaties comes from the doctrine of Pacta Sunt Servanda. This doctrine
emphasizes that obligations created by treaties must be obeyed by the States. On the other hand Kunj asserts that the doctrine
of Pacta Sunt Servanda is very old and has become obsolete on the face of present day pressures of political nature.
Classification of treaties.—The famous jurist Me Nair has classified treaties in the following manner—
1. Treaties having the character of conveyance.
2. Treaty contracts.
3. Law making treaties—Sub-divided into:
a) Treaties creating constitutional law just as charter of ICJ.
b) Pure law making treaties e.g., Labour Conventions negotiated by ILO. 4. Treaties akin to charter of incorporation e.g., treaty
by which International Postal Union 1874 came into existence.
Vattel has classified treaties into four categories equal, unequal, real and personal. Prof. Oppenheim has classified treaties into
two categories:
i. Law making treaties.
ii. And treaties made for other purposes.
But such a distinction rests merely on the basis of conveyance.
Contribution of Grotius to the International Law-
Contribution of Grotius to the International- Law as the father of modern International Law.-Hugo Grotius was born in 1583 at
Holland. He was awarded the degree of Doctor of Law by London University at the age of only 15 years. His first book ‘ De Jure
Praedae' came in 1604. In 1909 'the Mare Liberum' was published. In this book, Grotius asserted that open sea can be
appropriated by any State. He lived at Paris for 10 years in connection with his studies and in consequence, the world famous
book Law of Peace and War— 4De Jure Belli ac Pads' came in 1625. Oppenheim is of the opinion that the credit of
establishment of modern International Law with its whole procedure as a science of law goes wholly to the Grotius through his
book 1 De Jure Belli ac Pacif.
To evalute the contribution of Grotius, firstly it isi very essential to look into the contemporary situations of that time when his
world famous book was published. There were many independent States in the Europe when this book was published. These
independent States had their objectives and interests of such a nature that some of them were common for the community of
States and because of that the States existed as a community. Under those circumstances a need was felt to have a system of
law acceptable to all, which was called as International Law. Grotius presented such a legal basis and frame which was
absolutely absent previously and for its presence a need existed. By assessing the liability of this book, in that contemporary
situations, the writer of this book was even called the father of the modern International Law. Briefly regards this admiration as
an excessive statement and regards it as equal to ignoring the contemporary and the predecessors, jurists of Grotius. which is
not fair because they must have had influenced the thinking of Grotius. According to Oppenheim and Holland, the books of
Gentilis—Delegations, and Commutation De Jure Belli, had been used as : ideals for first and third part of the Grotius's book. On
this very basis, Holland declared, that modern International Law was established not by Grotius but this credit goes to Gentilis.
Gentilis had been the basis, to a great extent, to the fame of Grotius. Yet Grotius was a great jurist.
Under the extant circumstances, a conclusion may be drawn, that Hugo Grotius was a great philosophical jurist, but he all alone
was not the father of International Law. Many other jurists also share this view.
Codification of International Law.
Meaning of codification.—By codification we mean a process by which the present Legal rules and regulations are presented in a
Code form, that is, to systematize coherently the present legal rules and regulations in a book form. In codification, the change
in law to meet the challenges of time and situation, i.e., amendment is also included. In reality, codification is one of the means
of regular development of law.
Merits of Codification 1. The main merit is its certainty and clarity.
2. The shortcomings of law are removed.
3. Uniformity in legal system comes.
4. Competency of law increases and its binding nature becomes more forceful.
5. In alteration of law, if facilitates.
Defects of Codification
1. It is dangerous for the natural development and expansion of International Law.
2. Its roots lie in unchangeable elements.
3. Sometimes it originates new controversies.
4. International Law is primarily based on International customs, hence codification of customs is not correct.
Codification under the auspices of UNO
In the codification of International Law, the contribution of U.N.O. is great. The General Assembly of U.N.O. had constituted a
committee for codification of International Law. In this connection, the committee has suggested its views on different subject
matters and suggestions have been acted upon also.
Difference between the International Law and Municipal Law.
Ans. Relation between International Law and Municipal Law,—
The following theories are referred to in deciding the relationship between International Law and Municipal Law.
1. Monoistic theory.—According to exponents of this theory, the subject matter of International Law and
Municipal Law is one and the same. The modern jurists who know this concept, usually stress on the
analysis of 1he internal making of a legal system. According to them the whole law is like a unit in which
rules exist for it's binding nature whether they are applicable to a State individual or any other entity.
2. Dualism- According to jurists who support this principle, the International Law and State Law are two
different entities. For a long time jurists believed on the principle of Monoism, because monoism was
specially influenced by the Natural law concepts. But the jurists of 19th century began to emphasize on the
sovereignty of the State will. The concept of State will was accepted and developed from the propositions
of Hegel. This view is primarily based on the whole development of modern legislatures having full
sovereignty of a modern State. The main exponents of this concept are Triepel and Angilotti.
3. Specific Adoption theory .According to positivists the International Law cannot be applied directly in the
realm of State Laws. To apply it in State laws it is necessary that it should be specially accepted by the
realm of State laws. In short, the State laws through special procedures may adopt International Law for its
acceptance in the jurisdiction of State laws. In this connection, the decision of the Supreme Court of India
in the case of Jolly George v. The Bank of Cochin, AIR 1980 SC 470, may be specially mentioned. In this
case, the Supreme Court decided that any International treaty can be effective in India only after the
Parliament enacts a law to accept that treaty or legislates on the subject matter of that treaty.
4. Transformation theory—According to this view, the International Law and specially the rules of
International treaties for enforcing them in State laws, it is necessary to get them transformed into State
laws that is to say that rules of International treaties may become enforceable in the realm of States only
after they are adopted by the State laws through transformation. Till the validity of such rules is granted by
the States, they cannot become enforceable in the realm of State laws .
5. Delegation theory.—The transformation theory has vehemently been criticized by many jurists. In contrast
to transformation of laws into State laws these jurists propounded a new concept known as Delegation
theory. As per these critics, through the constitutional rules of International Law every State was accorded
a right through it's constitutional provisions to determine how according to International Law, the
International treaties will be applicable in the realm of State laws, hence there is no place for transformation
neither any new rules are created. In reality, the rules of International Law are enforced through many
modalities in the realm of State laws and jurists differ on different means.
Question of Primacy
If International Law and Municipal Law come into clash for supremacy, the question arises as to which one should get primacy.
According to Monoist, the primacy can be conferred to either of the streams of International Law of State laws. If the highest
norm comes from the International Law the primacy shall be accorded to International Law and in case the highest norm has its
fundamental roots to State laws, the primacy shall be conferred on State laws.
The rule that in case of dispute, the International Law in face of State laws shall get preferences, does not seem just. Because, if
we agree to this hen it will create such a situation which will be nothing less than chaos and lawlessness under such
circumstances, it seems quite right to say that while deciding primacy in case of dispute or confrontation the facts of the case,
circumstances and references of the case should be weighed in deciding the primacy Between the International and State laws.
To say that primacy shall be accorded definitely to International Law or to State laws does not seem just and correct.
Position in India
In reference to International and State laws the system prevalent in England, has been adopted by India, Calcutta High Court in
Sri Krishna v. State of Bengal case has propounded the law that when the Courts will interpret the State laws in enforcing them,
then it will always be tried that the State laws should be so interpreted and enforced that it does not go against or violates the
International Law. This rule is applicable when there exists any ambiguity when the provision is clear, the interpretation is done
according to its meaning even if it is against the provisions of International Law. This view was taken in the case of Gramophone
Co. of India Ltd. v. Virendra Bahadur Pandey, AIR 1984 SC 667 by the Supreme Court of India.
Subject of International Law
Ordinarily, the International law concerns with the rights, obligations and interests of the States. By treaties also usually State is
made obliged to enforce it but it does not mean that other entities or individuals do not come under the purview of
International Law. In the modern era, the International Law has expanded a lot. Now this law is applied besides States to
individuals also. Theories of subject of International Law.Only States are the subject-matter of International Law — According
to certain jurists only States are the subject-matter of international Law. According to them, International Law regulates the
behaviour of States hence States are its subject-matter. Prof. Oppenheim is supporter of this view. He asserted that since
International Law is primarily the law between the States, its subjectmatter is only the States. In the 9th edition of Oppenheim's
book on International Law certain changes have been made and editors of this edition have accepted that besides States other
entities are also the subject-matter of International Law.
Criticism,—The jurists have bitterly criticized the above view. This theory has failed to clarify the position of slaves and Pirates in
the International Law. In International arena by some ordinary treaties, the community of States have granted certain rights. The
pirates are regarded as enemy of humanity and they can be punished by the States for piracy. But those jurists who say that
States are the only subject-matter of International Law, regard the above two cited examples as exceptions of their view.
According to them Slaves and Pirates are not the subjectmatter of International Law but are as an object of it. To say that
individuals are not the subject but object of International Law seems incorrect. Prof. G. Schwarzenberger has aptly remarked
that this view is controversial. He asserts that the individual who is the base of the society is only an object of the International
Law, is not justified.
2. Only individuals are the subject-matter of International Law.—Leaving aside the abovementioned view whereby only States
are the subject-matter of International Law, if we analyse, then at the last, the conclusion will be that only individuals are the
subject-matter of International Law. The main supporter of this view is Kelsen. Before Kelsen, this view ,was expressed by
Westlake, who opined, "The duties and rights of the States are only the duties and rights of men who compose them. "Kelsen
has analysed the concept of State and according to him it is a technical legal concept which as a mixture of legal rules applicable
to the all people living in a certain area hence the obligations of a State in International Law in the last resort are the duties of
individuals of which a State consists.
Criticism.—So far as logic is concerned, the view of Kelsen seem correct, but so far as practices of States are concerned, it is
seen the primary concern of International Law confines to the rights and duties of a State. It is true that at different times
treaties are entered into by which individuals are granted certain rights. A good example is the Convention on the Settlement of
Invest Disputes between States and Nationals of other States in 1965. By this treaty, provision is made to settle the disputes
which arise by investment of capital by nationals of one State in other States. By this example it is clear, that the view of Kelsen
that International Law is made applicable through the medium of a State seems unjustified.
States are the main subject-matter of International Law but in modern times not only State but other entities, International
Institutions and individual may also be subject- matter of international Law.—This view seems justified as against the above
two views. In support of this, the following reasons may be advanced—
i. In modem times many a treaties grant rights and duties to individuals;
ii. In Danzing Railway Official case PCIJ, 1928, Series ©. No. 15, the Permanent Court of International Justice had decided that in
case, the State parties of a treaty intended to grant rights to individuals then International Law would recognize such rights and
the International Court will enforce them. iii. Geneva Convention of Prisoners of War, 1949, has also accorded certain rights to
prisoners of war.
iv. Nuremberg and Tokyo Cpurts had propounded that in International Law individuals can have obligations directly, According to
Nuremberg Court, since crimes against International Law are committed by individuals not by abstract entities, hence by
punishing the individuals the provisions of International Law can be enforced,
v. Genocide Convention, 1948.—In this convention also individuals have been assigned directly certain duties. By Article 4 of this
Convention, those individuals who commit International crime of genocide, should be punished whether they are public
servants or ordinary person.
By above description it is clear that only States are not the subject matter of International Law, but in modern time’s individuals,
International Institutions, non-State entities minorities are also the subject-matter of international Law.
Individuals and International organizations as subject of International Law.
Position of Individuals.—Before we arrive at any conclusion in deciding the above question. It is very essential to study the views
of such jurists who regard only States as the subject-matter of International Law or only individuals as the subject matter of
International Law. Besides this, the third view which covers individuals, International Institutions and non-States entities also as
the subject-matter of International Law has also to be considered.
Prof Oppenheim is the supporter of first view where State is the subject of International Law but this view is not correct. As per
Schwarzenbcrger, the object of International Law is to protect the rights including human rights of the citizens of States. Hence
in International Human rights cases, an individual can file a case against a State. Because of this it is said that individuals are the
subject-matter of International Law.
According to the second view where individual is the subject of International Law because groups of people make a State and a
State without people cannot become subject of International Law hence the object is individual for whose interest the
International Law has been established.The supporters of this thought, among others, include Kelsen and Westlake.
According to them, impliedly International Law is meant for individuals while State law is expressly meant for individuals hence
in these situations, individuals are really the subject matter of International Law. International treaties are-also viewed as
containing provisions for the individuals. This general thinking.has certain exceptions and to say that International Law cannot
be enforced effectively without the help of State laws, is not justified as a result it can be said that only individuals are the
subject of International Law is not correct.
Individual’s non-State entities and International Organizations in International Law.—There are opinions that non-State
entities, individuals and International institutions are also the subject-matter of International Law. When States can be regarded
as the main subject of International Law then, individual’s non-State entities and International Organizations can also be subject
of International Law. This view seems quite balanced. A potent example in support of this can be mentioned as the international
treaties whereby individuals are granted different rights. Other examples may be cited as Denting Railway Official case, PCD,
1928, Series B, No. 15; Geneva Convention of Prisoners of War, 1949; Genocide Convention, 1948, European Convention on
Human Right, 1950; and decision of Neuremberg trial are apt in the context through which individuals and International
Institutions were granted in International Law, the status of its subject. In 1949, the International Court, in the matter of
Reparation for injuries, suffered in the service of U.N. by its advisory opinion had clarified that U.N.O., in context to International
Law, is an International person and is the subject matter of International Law, the perusal of these decisions point out the fact
that in context to International Law, individuals
States and International Organizations are also its subject matter and International Law is applicable over them.
Individuals Pirates, Foreigners, Prisoners of War, Spies and human rights conventions etc. are such examples which arc based
mainly on the rights and duties of individuals and as such these clearly specify that individuals are also the subject matter of
International Law. It is an established principle and it has no controversy or doubt. This is also correct in reference to
International Institutions and Organizations.
Concept of sovereignty in International Law.
According to jurists only sovereign States are entitled to become a member of the community of States. In the case of Island of
Palmas Arbitration; Max Huber has given the definition of sovereignty. According to him "Sovereignty in the relation between
State signifies independence. Independence in regard to a portion of the globel is the right to exercise therein to the exclusion
of any other State, the functions of a State."
According to Jean Bodin, the necessary element of sovereignty is the power to make laws by a sovereign State. Since the ruler
himself makes the law hence he himself is not bound by that law but the ruler also is bound by the law of the nature. Besides
this, a ruler becomes bound by a law when he assent for that. But, by the passage of time, the sovereignty began to mean
dictatorship.
According to Hobbs.—The meaning of sovereignty denotes an absolute independent power which is not subordinate to anyone.
According to Austin, sovereignty is essentially an indivisible and unlimited centre of power. According to him if we .assume a
higher placed person who is not in the habit of obeying the similar higher placed persons and gets obedience from the majority
of people of a certain society, then in that society, that assumed higher placed person is a sovereign, and that society is a
politically independent society. So, according to Austin sovereignty has two elements—Positive and Negative. The positive
element denotes that majority of people in the given society obey that assumed higher placed person and negative element is
that the higher assumed personality habitually does not obey any other higher placed personality.
Concept of Sovereignty in International Law-
In International Law, an example of sovereignty is the doctrine of auto limitation. By this reduced their power to that extent, this
principle is based on The sovereignty of States. The exponents of this doctrine are Angilotti and Tripel “As is evident, the
doctrine of auto limitation seems unjustified and jurists have vehemently criticized it”. In modem era. In regard to sovereignty
there have been revolutionary changes. Now-a-days it is not regarded as correct to say that sovereignty is indivisible and
unlimited.
Present Position
In modem times many a provisions have been accepted by the International treaties and International Organizations by which
the States have agreed to limit their sovereignty, for example, members of U.N.O. and LLO in many cases have accepted such
obligations because in International arena their unlimited power stands reduced. Starke has justly expressed the view that in
comparison to 18th and 19th century in modem age, the meaning of sovereignty has limited itself. In modem age keeping in
view the interests of community of States, the States have accepted restrictions on their powers in many faculties.
Indian Position
According to the definition of legal dictionary sovereignty denotes the highest power than independent society. It is necessary
indivisible and unlimited. But now this view is not treated as correct. Justice Sabyasachi Mukherjee CJ of Supreme Court of India
had expressed the view that now it is accepted that sovereignty is divisible and limited both. We should also accept this (Union
of India v. Sukumar Sen Gupta. AIR 1990 SC 1962). In his decision, the judge said, that in sovereignty there is attribute of power.
It is the bunch of rights. It depends upon the facts and circumstances of each case. In the modern era, every State has to accept
the restrictions through laws on its sovereignty to such an extent that relations with other States and its own independence may
exist. Under the general International Law, the doctrine of mutual interdependence of States has been accepted. Hence, the
ancient and past notions of 'sovereignty' and 'Independence' in context to 21st century has to be amended necessarily.
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Q. "The Jurisdiction of a State is not always coincident with its territory"—Discuss. Ans. What is territorial sovereignty?—One of
the main elements of a State consists in territorial sovereignty. The territorial sovereignty denotes sovereignty of a State over a
certain territory over which it can enforce its laws of binding nature, According to some jurists, the territorial sovereignty is
indivisible but this seems incorrect. The example of division of territorial sovereignty has may be cited as leasing of provinces of
China to Russia, Germany and Great Britain, Besides this, on one territory there may be control of several sovereigns. According
to Starke, International Law does not propound any such principle by which sovereignty may be imposed in a special fashion on
a given territory or it may be withdrawn. To give on lease three bigha to Bangladesh by India is also one of the examples in the
context.
The territorial sovereignty extends to all regions which constitute a territory and so not only land but also water including
beneath the land, rivers, maritime belts, atmospheric air, land and sky etc. are included in it.
Sovereignty of a State when goes outside its geographical limits.—The following details show the examples of sovereignty
crossing its geographical limits—
a. Ambassadorial representatives are immune from the powers and rights of the State where they go.
Because of this immunity, the ambassadors are regarded as outside the jurisdiction of civil and
criminal Courts of the receiving State.
ii. 2.Foreign Embassies are also regarded outside the jurisdiction of the receiving State sovereignty. Notionally,
the Embassies are regarded as a part of that State which they represent.
iii. The Foreign Sovereign ruler.—The Foreign ruler; is a sovereign is accorded many privileges and they are
also kept outside the jurisdiction of a particular State.
iv. General Civil Ships of Foreign States — The civil ships of foreign States are also usually regarded as outside
the jurisdiction of a State when not at coastal sea. In the case of Chung Chi Cheung v. King, 1839 AC 160,
the Privy Council agreed that civil ordinary ships are granted certain immunities form the State jurisdiction.
In this case the Privy Council rejected the theory of external sovereignty.
v. International Institutions and their branches are also immune from the territorial jurisdiction of a State,
example is U.N.O.
vi. Extradition Treaties,—According to extradition treaties a criminal who after committing a crime has fled
away to a foreign country, is to be extradited to the requesting country for the disposal of that criminal
legally. So, there exists a jurisdiction over such persons also who are beyond the territorial jurisdiction of
a State.
Q, Define State. Discuss the essentials of a State.
Ans. Definition of State—State is the main subject of International Law. To define the word State appropriately is very difficult,
but many jurists have tried to define State. According to Salmond State is a social group of persons which is established for
certain objectives such as to maintain internal and external security.
According to Lawrence State is such a social group of persons which is organized politically and member of which because of
being subordinate to some central authority are linked with each other and majority of them abide rules habitually,
According to Oppenheim, the existence of a State is possible only when the people of any society in a country, in subordination
to the highest ruler have decided to reside therein and habitually obey that highest ruler.
According to Starke, it is not possible to define State appropriately, but in modern era it has become certain as to what are the
essential elements of a State.
Essential elements of the State.—According to Montvadeo Convention of 1933, Article 1, the essential elements of a State are as
follows—
(i) A certain permanent population, (if) A defined territory, (iii) A government, (iv) A capacity to make relations whit other States;
Prof. Oppenheim has also described the four elements of a State, viz,
(i) Population, (ii) A defined territory or country, (iii) A Government, and (iv) Sovereignty. Holland has given besides the above
four elements, a fifth element which is civilized culture and because of this, the State may become a .member of the
International community of States.
Acts of the State.—As regards the acts of the State, in the modern times, there have been revolutionary changes. Previously the
concept of the State, was like a Police State i.e. the compulsory function of the State was to maintain law and order within its
boundary and be capable to protect it from the foreign invasions. No doubt, even today, these are the main functions of a State.
But in modern era there has been same changes in theconcept of a State. The hypothesis of a State, now has come to a welfare
State instead of a Police State, meaning thereby that for public interest State has to do many social, economic and cultural
activities. But these activities cannot be put in the category of compulsory functions of a State. Q. 'State responsibility
concerning International duties is, therefore a legal responsibility'. Explain this statement.
Ans. Meaning of State responsibility .^Usually it is said that a sovereign State has no legal obligations. This statement may be
appropriate in relation to ruled people. A State can
promulgate a new law by changing its State laws and through this it can change it's obligations as well. But obligations of a State
in relation to other States are different and obligations stand like that of an international person. In context to international
duties, States have legal obligations.
According to Starke, "The rules of International Law as to State responsibility concern the circumstances in which and the
principles whereby, the injured State becomes entitled to redress for the damages suffered". In context to State responsibility,
the law is developing and possibly in may achieve that stage wherein for the international crimes and violation of International
Law, a State may be held responsible. The International Court o£Crimes has been established in the beginning of 21st century.
The Institutions of Interpol and: Redcorner notice etcPcreate State obligations in searching and arresting the criminals.
State responsibility in different areas
1. International Delinquency—According to Oppenheim, for every violation of international legal obligations, it is an
international delinquent. The victim State can bind the delinquent State to obey international duties. Its exceptions are
obligations regarding damages, violent reprisals or war.
2. The National obligations for foreigners.—Under the international law it is accepted that rights granted to the citizens of a
State should be ordinarily extended to the foreigners also residing therein. It is the duty of a State to protect the rights of
foreigners in the same spirit as is done in protecting the rights of its citizens.
The obligations to the foreigners may be as follows—
(i) National obligation concerning the foreign individuals.—If any foreigner residing in a State gets hurt by the citizens of that
State, then that foreigner has a right to claim damages according to the law prevalent in that State. In such d situation, the State
Courts protect the rights of the foreigners.
(ii) State responsibility for Genocide.—Ordinarily the State is held responsible for Genocide when it has not exerted enough
labour or effort to restrain or eradicate it. But this measuring standard is ambiguous and uncertain, because the efforts and
labour to curtail the Genocide, depend upon circumstances.
(iii) State responsibility for act of Insurgents—in this context, the general rule is that it is the obligation of States to restrain the
violent acts of revolutionaries, vigorously, with full efforts, IE Page
3. State responsibility for acts done by administrative wings. For the acts of administrative wings, the general rule is that States
admit the obligations for act of its representatives and highest officers against the foreigners. But the limit of this State
responsibility is that the officer concerned must have acted within its limit of rights or jurisdiction. Likewise the State is
responsible for the activities of its judicial wing.
4. State responsibility in connection to contractual obligations of foreigners.—On this subject the general rule is that if the State
establishes contractual relations with a foreigner, then if it is violated, there is no State liability in International Law. A foreigner
can get remedy under the State law for violation of a contractual obligation. But if the problem is not solved by these remedies
the foreigner can try through his State by diplomatic channels for relief 5. For claiming ownership on foreign property, the
liability of a State—After the end of Second World War, the law on this topic is continuously growing. The Charter of Economic
Rights and Duties was passed with higher majority of votes on 13th December, 1974 by the General Assembly. The developing
nations welcomed this Charter as an Economic Magna Carta. In this charter it is provided that every State has a right to establish
its sovereignty over its natural resources, wealth and minerals etc. The States should award damages weighing the
circumstances aid its legal status as found is its prevalent laws. In case of any dispute, it has to be decided according to the State
laws.
Q. Discuss the main theories of Recognition of State. Which theory is more useful today?
Ans. Meaning of Recognition.—Recognition is a very important topic of International Law. Recognition is the process by which a
new State becomes the member of international community of States. In modern times the importance of recognition has
increased to a great extent. According to Prof. Oppenheim, "The State of international community as member of that
community by recognition accorded to a new State, declare that in their opinion the new State has obtained the ascertained
elements of a State as prescribed by International Law/*
According to the Institute of International Law to grant recognition by one or many States is the independent act by which they
accept that on a certain defined land a group of persons politically organized constitute an independent State and is capable of
fulfilling its International Law obligations. By this style, the recognition giving States show their will that they understand the
new State as a member of the international community of States.
According to Kelsen—Any community can get recognition under the International Law when the following necessary elements
are present—
(i) that it is politically organized,
(ii) it has control over a defined territory of land,
(iii) the control is effective and is advancing towards certainty,
(iv) that community is completely independent from other States.
According to Jessup—Recognition is that function of a State by which it accepts that in a certain political entity there exists all
the elements of a statehood.
In brief, we may say that recognition giving State acknowledge that all the elements of statehood are possessed by the State
which is being given recognition. International law does not clarify as to what will be the barometer of these essential elements.
Theories of Recognition
1. Constitutive theory.—According to this theory only a recognized State gets the statehood and rights are granted in the
international realms. This is such a process by which a political entity under the International Law by becoming a member of the
international community gets an international personality. The main exponents of this theory are Hegal, Angilotti and
Oppenheim. According to Oppenheim. 'A State is, and becomes an international person, though recognition only and
exclusively'.
Holland is also a supporter of constitutive theory. According to him recognition gives ripenness to States and when a State is not
granted recognition, as a member of States community, it fails to get any rights. 2. Declaratory or Evidentiary theory-According
to this theory, the statehood or authority of a new State or government exists even before the recognition and are not
dependent on recognition. According to this doctrine recognition is a formal acceptance by which an established fact is
accepted. By recognition only a declaration is made that a State is full of defined elements of a statehood as prescribed by
International Law. In the supporters of this theory are included Hall, Wagner, Brierly, Pitt Cobbet and Fisher. According to Hall
any State, becomes a member of the community of States as a matter of right only when it gets statehood. According to Pitt
Cobbet this fact is subject of reality. According to him if in a political State there are all the necessary elements of a statehood
then formal recognition will not be an essential condition for getting obligations and rights under the International Law,
Criticism.—Jurists have criticized the declaratory theory of recognition as well. To say that recognition is simply a declaratory
act, does not seem fully appropriate. States honour this doctrine very much. In reality when a State is granted recognition, it is
simply a declaratory function. But after granting recognition, its effects on the State are of such a nature that they are called as
constitutive. According to Kelsen recognition, consists of constitutive when it gives a State an International personality, it is
declaratory also because it simply declares the potentials and elements of a stale which it was already possessing by recognising
them as Statehood giving it capacity to enter the community of states.
Modes of Recognition
1. De facto Recognitions-According to Prof. Schwarzenberger. when a State shirks form granting a full recognition or de jure
recognition or is interested in delaying it, then as first step it grants de facto recognition. The main reason for granting de facto
recognition is that there is doubt about the stability of the State which is to be recognized; doubt is also about its capacity and
will of the State to fulfil its obligations under the International Law. Sometimes, it is also a reason for granting de facto
recognition that recognized State may refuse to settle its main problems. De facto recognition conveys that the recognized State
possesses the requisite attributes of a statehood and has a right to become the subject of International Law. The effects of de
jure recognition are greater than de facto recognition.
2. De jure Recognition!—De jure recognition is granted when according to the State which is giving recognition, the State or
Government which is to be recognized possesses all the elements and attributes of a statehood and is capable of becoming a
member of international community of States. According to Prof. Smith is Britain before granting de jure recognition there
should be following essential elements—
(i) Stability.
(ii) General support of the people to the existing government.
(iii) Capacity and will to fulfil the international obligations.
De jure recognition is final recognition and once granted it is not usually withdrawn. For de jure recognition it is necessary to
declare it expressly and to establish diplomatic relations, there is a positive wish.
Legal effect of Recognition
The effect of recognition mainly gives the following results—
1. The recognized State gets a right to file calms in the Court of the State which gives recognition. 2. In the Court of recognition
granting State, the recognized State may enforce its past and present legislative and executive actions.
3. The recognized State gets immunity in relation to its diplomatic and properly matters.
4. The Ambassador and other diplomatic representatives of the recognized State are granted privileges and immunities as a
matter of right.
So it is evident that after getting recognition a State becomes a full-fledged Member of the international community of States as
matter of right with many other attached privileges and immunities.
Consequences of Non-Recognition
1. A non-recognized State cannot file a suit in the Court of such a State which has not granted recognition;
2. A State having no recognition, cannot establish diplomatic channels with other States;
3. An Ambassador or representatives of a non-recognized State do not get immunity of legal proceedings against themselves in
a foreign State;
4. A non-recognized State has no right to get back its properties lying in a foreign State.
Q. Define the 'State Succession'. Discuss briefly the principles of State Succession in respect of Treaties.
Ans. Meaning and definition of State Succession.—When the territory of one State comes under the occupation and control of
another State the first State is extinct and a new one comes into being. A succession of government occurs when the
Government of a State is replaced with new one. State succession occurs when a State ceases to exist and new State is formed
within the territory of an existing State or territory is transformed from one State to another State. The State which goes to
extinction is called successor State and the State which gets it in succession is called successor State. According to Oppenheim,
the international persons get succession when one or more international persons transform into another international person
and in the latter there are certain changes.
One State can get succession of another by having occupation and control of the territory of that another. One State can be
divided into many small States or in more than two States or on the place of extinct State a new States may come into existence
or it is also possible that by severing certain territory of a State, a new State comes into being. For example after getting
freedom, the territory of India was severed and it transformed into Pakistan which came into existence as a new State.
Kinds of State Succession
1. Universal succession-Universal succession occurs in the following situations—
(i) When one State occupies or annexes the another State completely or amalgamates fully whether voluntarily or through
winning of war,
(ii) When a State is divided into two or more parts or limits and every such unit becomes a separate international entity or a
State.
2. Partial succession -Partial succession occurs in the following circumstances-— (i) when any portion of a State revolts and
separates itself and attains independence and becomes an international person or State. The example of Bangladesh which
revolted against Pakistan and thereafter became an independent separate State is a good illustration of partial succession;
(ii) when one State gets some portion of another State through cession;
(iii) when a sovereign State amalgamates itself with some union of States and loses some portion of its independence or comes
within the sovereignty or protection of any other State.
The rights and duties which spring up as a consequence of State Succession—
1. Political rights and duties.— When one State occupies the place of another State because of succession, then in such a
situation the successor State does not get any political rights and duties of the predecessor State, as such the successor State is
not bound to honour the political treaties entered into by the predecessor State. This is true in reference to Peace and
Neutrality Treaty also. But in case of commercial and extradition, treaties there is difference of opinion amongst the jurists the
majority of jurists prefer the view that successor State is not bound by these treaties also.
Local rights and duties.— For local rights and duties succession does occur. For Land, Rivers, Roads, Rails etc. which are local
properties, the rights and obligations do come into existence. The treaties concerning boundaries Roads, Rivers etc. covering
transportation, emigration etc. entered into by the predecessor State, give rights and duties to the new State.
State succession regarding financial property and debts.—According to Oppenheim in the case of financial property and debts
succession is accepted. That is to say that financial property of the predecessor State is obtained by the successor State. But no
person gets a right to claim the paying back of debts from the new .State. But in case of foreigners, there is some protection
available to them. Because, their own State i.e. foreign State may through pressure tactics, coerce the new State to repay the
old debts to some extent.
Public debts.—So for as succession of financial property of the predecessor State is concerned there is no controversy amongst
the jurist and it is confirmed view that all financial properties of extinct State are succeeded by the successor State. But there is
difference of opinion about the public debts of the Predecessor State. Some jurists opine that it is the discretion of the
Successor State to pay off or not to pay the public debts of the Predecessor State.
State Succession in contracts.—the majority of jurists have expressed the view that the Successor State is bound to honour the
contractual obligations created by the Predecessor State, hence the successor State should fulfill the contractual obligations
created by the predecessor State. But the Court of England in West Rand Central Mining Co. Ltd. v. King, (1905) 2 KB 391, had
decided against the prevalent doctrine. It was held in this case that the successor State has a right to bear out or reject the
financial obligations of the predecessor State.
Contracts of privileges and the State succession.—By contracts of privileges and facilities we mean those types of contracts by
which the predecessor State had granted facilities for mining or laying down of Railways etc. to some other State usually this
facility is of local nature. The successor State is bound to continue these facilities but for quantum of facility and it's duration
depends upon the facts and situations of each case.
State Succession in the case of treaties.—Regarding succession of treaties, the Vienna Convention on Succession of State in
respect of Treaties, 1978 may be referred. The Article 15 of this Convention provides regarding the succession of a portion of a
predecessor State which provides that when some territory of a State becomes the territory of another State then treaties of
predecessor State come to an end and the treaties of successor State come into force over that territory from the date of
succession. For the new independent States in Article 16 the general principle has been propounded that on territories which
have been succeeded and the treaties which are related to that territory, the successor State is not bound to honour these
treaties even though they were in existence and enforceable over those territories when the succession occurred. For Bilateral
Treaties in Article 24, it is provided that any Bilateral Treaty which was enforceable at the time of succession over that territory
which has been succeeded, will be treated as binding only when the new State and other related parties to the treaty expressly
accept that treaty. By their conduct also it may be deduced that they have accepted the treaty. In Article 11 it has clearly been
mentioned that State Succession will not affect any boundary established by a treaty or any obligation or rights created by that
treaty.
Q. Is the principle of State Succession binding for the membership of UNO and other international institutions?
Ans. The question of succession in regard to the Membership of U.N.O.^-The question of succession of membership of U.N.O.
arose for the first time when Pakistan and India came into existence due to division of Indian sub-continent. India/was the
founding member of the Charter of U.N.O. as it had signed at the conference of Sanfrancisco and had later on ratified it. After
the division of the India sub-continent Pakistan claimed that it is the part of Indian sub-continent and since India was a member
of the U.N.O. hence in succession Pakistan should get the membership of the U.N.O.. The General Assembly of the UNO rejected
the claim of Pakistan to become member of the U.N.O. through succession. According to the General Assembly when a new
State comes into existence in the international community of nations, irrespective of its quantum of population and territory,
this new State can become the member of U.N.O. only when according to the provisions of the Charter, its membership is
accepted by the U.N.O. In brief any State can become a member of the U.N.O. when the Security Council consents on the
application for one membership claim and all the five permanent members of the Security Council should have casted their
positive votes and General Assembly should have elected it by 2/3 majority votes. It is now clear that in case of membership of
the. U.N.O., the principles of State succession is not applicable rather a certain procedure is prescribed in the Charter of the
U.N.O, itself by following which one State could become the member of the U.N.O.
The succession of international institutions.—Ordinarily the succession of international institution depends upon their own
constituent instruments and their continuity or on their special contracts, But, since it is essential to have continuity in the life of
international institutions, it is submitted that principles of succession should be applied in their case in accordance with the
object of the institution and will of the members. Prof. Oppenheim supports this view. The International Court of Justice, also, in
it's advisory opinion has given this view and has clearly expressed in favour of continuity of international institutions.
Q. What is intervention? Discuss the grounds on which intervention can be justified. OR Can one State intervene with the other
State on the ground of self-defence? Ans. Definition of intervention.—According to Oppenheim "Intervention is dictatorial
interference by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things".
According to Starke—Ordinarily the International Law prohibits the interference in the internal affairs of a State by another
State. Here the
•meaning of intervention is somewhat more effective than the ordinary intervention, mediation or political suggestions. So far
as prohibition is concerned, it is dictatorial interference. The effect of this goes against the wish of the victim State and it
happens so in all cases. Hide has pointed out that "serving by design or implication to impair the political independence of that
State."
According to Prof. Hans Kelsen, the International Law does not prohibit intervention in all situations. According to him if any
State intervenes in another State with military force, then in reaction to the violation of International Law in this action,
intervention is permitted. "States should not resort to intervention, this principle has been propounded in the Article d (4) of the
Charter of U.N.O. According to this in their international relations all members will refrain from violating the regional integrity or
political independence of any State and will refrain from deployment of force or its threat which is also against the objectives of
U.N.O.
The principle of non-intervention is a part of search for ideal independence, sovereignty and equality among the States.
According to this one state should not intervene in the internal affairs of another State. The Governments of States approve this
principle but so far as actual practice is concerned its appropriate compliance is not done. The compliance by U.N.O. of the
principle not to intervene in the internal affairs a State has one exception. When to keep international peace and security or to
re-establish. These, under the Security Charter of the U.N.O., if it under the group action launches some action against a State,
then non-intervention principle is deemed to be not in operation.
Grounds of intervention
1. Self defence.—This ground of intervention is regarded valid from a long time. In brief any State for its self defence has a right
to intervene in the internal or external affairs of another State. According to Prof. Oppenheim in context to self-defence use of
force is justified only when it is necessary for it. The use of force will be valid by a State when the need for self-defence is
imminent urgent and without alternative and there is no time for deliberation and decision. In the Neuremberg Trial, 1946 the
Court upheld these principle. The International Court of Justice also in the Carefree Channel case approved the above principle
In modern times the doctrine of self-defence has been propounded in the Article of U.N.O. Charter. According to this a State has
a right of self-defence individually as well as in groups provided it has been attacked first. This right continues till the Security
Council does not take any step to keep the international peace and security. In Article 51 it is also provided that State action in
self-defence should not affect the right and liability of the Security Council in keeping international peace and security.
2. Intervention on Humanitarian grounds.—Intervention on the grounds of humanity has been regarded as valid for a long time.
On this ground, when in any State the human rights are openly violated or if inhuman atrocities are committed against the
people, then the other States get a right to intervene in the affairs of such a State to stop inhuman atrocities. For violation of
human rights if the intervention is permitted then it will be by the Security Council on the basis of keeping International peace
and security through collective action as provided in Article 7 of the Charter of U.N.O.
3. To enforce the rights created by treaties.—In International Law, to enforce the rights created by treaties through intervention
is treated as justified. In 1962, the intervention in Cuba by America was declared as appropriate by America. But, after the
enforcement of the Charter of U.N.O., any intervention of this kind cannot be justified. In the Charter of U.N.O. the principle of
non-intervention has been adopted and it has been suggested to States that they will not intervene in the internal or external
affairs of any State. So the intervention of America in Cuba was not justified.
4. Intervention to stop illegal intervention.—This ground has also been regarded as a valid ground of intervention in the
International Law and there are many examples of this nature.
On this very ground England in 1828 had given support to Portugal. But, in the modern times, under the Charter of U.N.O., this
type of intervention is not permitted.
5. Balance of power.—Previously, this ground was treated as valid in the International Law, but presently this ground has been
discarded as it is not treated as justified.
6. Protection of People and property.—Previously in international law, intervention on this ground was regarded as appropriate
and many intervention were held in the international community of States on this ground. Now intervention of this kind is not
regarded as valid, because proceedings on this, if any, should be initiated under the purview of U.N.O. and U.N.O. declares that
proceedings on this ground are not valid.
7. Collective intervention.—In the modern times, the collective intervention has been declared as valid and justified. The
Charter of U.N.O. has assigned the liability of keeping peace and security in the international realm to the Security Council.
Under Article 7 of U.N.O. Charter Security Council has a right to undertake collective action.
8. Intervention to maintain International Law.—The Security Council of U.N.O. has a right of intervention to keep peace and
security in international community which is under the purview of International Law, though indirectly. But in cases where
international law is violated, on this very ground, the Security Council cannot resort to intervention.
9. Intervention in Civil war of a State.—In the modern times by the development of international community the State have
developed their mutual relation and it is natural that happenings of one State affect the other States. So if in any State there is
revolution or civil war, the effect of this directly or indirectly goes to other Stales as well on this ground in the past some States
have intervened in the affairs of other States. For example in 1934, the Governments of Germany and Italy had intervened in the
civil war of Spain. In 1968 Russia had intervened in the civil war of Yugoslavakia and declared it to be valid and justified.
Q. 8 (b). Explain the various theories of intervention.
Ans. Theories regarding intervention;
(i) Theory of Starke.— According to Starke the following main circumstances in international law lead to a valid right of
intervention in the affairs of one State by the other—
1. According to the Charter of U.N.O., the collective intervention is permitted. In Article 7 of the Charter of Security Council is
authorized to resort to collective intervention.
2 For the protection of interests of far away residing countrymen, their rights, their personal security etc,
3. In self defence, if it has become necessary to retaliate the forceful attack of another State. 4. In the case of a State which
holds a protectorate there is a right to intervene in all external affairs of the protected State.
5. If any State has completely ignored the other State in regard to some transaction in International Law as for example it has
illegally itself intervened in the affairs of other State.
(2) Theory of Oppenheim.—Prof. Oppenheim has regarded the following reasons as valid for intervention by one State in the
affairs of another, they are as follows—
1. A State under which some protectorate State exists, b^ this right may be called united and is authorized to intervene in the
external affairs of the protectorate;
2. If the external affair of a State, becomes at the same time by any means the external affair of another State then the latter
has a right to intervene in case the former deals with at unilaterally;
3. If a State by an international treaty is bound for its external affairs or its territorial or personal sovereignty is being restricted
by these conditions, and it fails to comply with these restrictions, the other party may intervene;
4. If a State in peace or war violates such laws of international importance which are universally recognized such as custom or
rule making treaties then other States have a right to intervene and compel the delinquent State to abide by such laws;
5. When by a treaty a State has guaranteed a certain form of government or reign of a certain dynasty for another State, in case
of change in the form or dynasty, it has a right to intervene;
6. A State in the exercise of its sovereignty can intervene in the affairs of another State for the rights, personal interests and
safety of its citizens residing therein;
7. Collective intervention under the provisions of the U.N.O. Charter against a State which disturbs the International peace and
security. In case of non-members of the U.N.O., the extent of collective intervention confines upto the limit these States are
violating the International peace and security.
(3) The Monoroe Doctrine.—This doctrine was propounded by the American President Monoroe that is why it is called Monoroe
doctrine. It was in relation to that treaty which was
entered into by several European States after the Napolean war. The States which were colonies of Spain and other nations in
American continent, had obtained their independence. The European States wanted again to intervene and help the States in
American continent, hence the American President in 1823 made a declaration which is known as Monoroe doctrine which
contained the following main details—
1. In American continent, those States which have become independent and free, in future cannot be transformed into colonies.
2. America will not participate in the wars of European States amongst themselves.
3. If European countries intervene in the affairs of American States, this action will treated as unfriendly behaviour. In brief it
may be said that by Monoroe doctrine it was emphasized neither to intervene nor to allow intervention in the affairs of other
States. By this, President Monoroe had clearly declared that America will neither to intervene in the internal affairs of the
European States nor will allow intervention in its own affairs by the European States in the American continent. (4) Drago
Doctrine.—This doctrine was propounded by Drago, the foreign Minister of Argentina. Actually this doctrine is a complementary
to the Monoroe's doctrine. According to Drago doctrine any European country on the basis of public debts has no right to
intervene in the affairs of States of American continent. This doctrine was so propounded because at that time European
countries had begun to use military force for recovery 6jf public debts of their citizens advance to the citizens of other States.
The example is blockade of Venezuela by England, Germany and Italy his blockade was to compel Venegula to fulfill its financial
obligations. In this way it may be said that Drago doctrine is in supplementary to Monoroe doctrine and has lesser importance
than the latter. In short to campell a State to do certain things by military action blockade etc. would amount to intervention and
this doctrine pleaded to refrain from indulging in such actions.
Q. Discuss the different modes of acquisition and loss of State territory. OR
Describe in detail the modes of acquisition and loss of territory,
Ans. Modes of acquisition of territory.—In International Law a territory may be acquired by the following means—
11 Occupation,—According to Oppenheim occupation is such an action by which any State may obtain sovereignty on that
territory over which there is no sovereignty of any other State. 39 | P a g e
According to Starke "occupation consists in establishing sovereignty over a territory not under the authority of any other State,
whether newly discovered or an unlikely case, abandoned by the State formerly in control".
To decide whether on a territory, occupation of a particular State exists or not, it is seen whether that State has an effective
authority and control over that territory or not? The leading case on this topic is the case of Island of Palmas Arbitration, AJIL
(1928) Vol. 22 pp. 875-76.
The Court of Arbitration this case propounded the following principles—
(1) According to the International Law sovereignty over a territory can be obtained by occupation, conquest or cession. To
establish sovereignty it is necessary to occupy that territory over which sovereignty is desired.
(2) As per arbitrators, there was no such evidence which proved that Spanish people came over this Island and had contracted
the natives. Spain did not occupy the Palmas Islands, their occupation could not be established.
(3) Upto 1700, the Palmas Island was under the sovereignty of Netherland. The meaning of sovereignty is independence and
independence coveys that on that territory without the interference of any other State, the binding functions of that occupying
sovereign State goes on without any hindrance.
2. Accretion.—A territory by accretion may be obtained by a State. Sometimes by natural calamities also a territory comes
within the jurisdiction of a State though the same was previously a portion of another State. For this there is no need of any
formal action or declaration.
3. Prescription.—By prescription a territory comes within a State when by continuous occupation and control of that territory
for a long time creates a vested authority in the controlling State and by passage of time that State becomes the actual and real
sovereign over that territory.
4. Cession.—By cession also a territory comes within the authority of a State. The cession may occur as a result of a war through
pressure or it may be voluntary. The cession will be valid only when the sovereignty over the territory is transferred from one
State to another with the territory. It is not opposite of Accretion in the sense that in cession both parties act in .some way while
in accretion only one party may act 5. Conquest—When a State gets victory over the other State then the sovereignty over the
conquered State is not established only by victoiy. For sovereignty, it is necessary that victor State establishes an effective
authority over the territory of the conquered State through annexation. The importance of this means is more or less extinct
because of the Charter of the U.N.O. by which intervention of one State on the affairs of another is prohibited.
6. Lease.—A State can give some portion of its territory to another State on lease for sometime. In this way, over that territory,
for sometime certain rights of the sovereignty are treated as transferred. Through lease on the concerned territory the
sovereignty is not completely transferred. A good example of this type of lease is transfer of certain Islands on lease by Malta to
Great Britain for some years. Recently India had also leased three Bigha to Bangladesh.
7. Pledge.—Sometimes circumstances so arise that a State is compelled to pledge some of it's territory on pledge to anther
State for collecting money. In such transactions also, some portion of the sovereignty is transferred. For example, in 1768 the
then Republic of Geneva had pledged Corsica Island to France,.
8. Plebiscite.—According to some writers sometimes, a State can acquire a new State by the process of Plebiscite. Although, in
International Law, there is ijio suchrfule,jbut some modern writers have expressed the view that by plebiscite also a new
territory can be acquired by a State. A good examples is the case of West Man. Netherland and Indonesia both h,ad put their
claims on the territory of West Irian. U.N.O. decided for voting of the residents of West Irian. Uhder the supervision of U.N.O.
Plebiscite was conducted and Irians voted, in favour of Indonesia. Now Irian is a part of the Indonesia.
9. Through independence obtaining of territorial sovereignty.—
Those States which were colonies after attaining independence get sovereignty over the territory which consisted within the
colonial setup. The difficulty in this context is that Nationality and Sovereignty in the concerned colonial territory comes only
after it attains independence.
Modes of Loss of State territory
According to Prof Oppenheim the territory of a State is lost in he following manner—
(1) Cession.—By cession if one State gets some territory, the same territory is lost by the other State in the same transaction.
(2) Natural calamity.—By operation of nature also sometimes territory of a State is lost. By volcanic events, occeanic floods and
change of course of a River, sometimes certain portions of a State are lost, decreased or totally extinct.
(3) Defeat in a war\—If by conquering a State gets some territory, the same is lost by the defeated State.
(4) Prescription.—By occupation of a territory for a long time if a Slate gets that territory through prescription. The original
owner States loses that very territory by prescription.
(5) Revolution.—Through revolution a new State comes into being, so it may be said that the State against which revolt occurred
had lost its territory for example in 1579 Netherland revolted against Spain and formed its own State. Likewise in 1776 Britain
lost American territory because"-; of revolt. Again in 1971 Bangladesh was born by revolution against the East Pakistan and
Pakistan lost it and Bangladesh now is a free country.
(6) Dereliction. -When any State abandons a territory completely or relaxes its authority over it, then it loses that territory. In
history there are lesser exampleslof this kind.
Q. Define Nationality. Discuss the modes of acquisition of Nationality.
Ans. Definition of Nationality.^According to Starke, Nationality has been defined 'As the status of membership of the collectivity
of individual whose acts, decision and policy are vouch safed through the legal concept of the State representing these
individuals,"
According to Prof. Oppenheim—'Nationality of an individual is the quality of being a subject of a certain State and therefore its'
citizens.'
According to Fenwick—"Nationality is such a bond which binds an individual with a State and makes him a member of that
specific State and provides for right of protection from that State with an obligation to abide the laws promulgated by that
State."
According to Kelsen—"Citizenship or Nationality is the status of an individual who is legally an member of a State and
ornamentally he can be called a member of that community "
According to Hide—"Nationality displays that relationship of an individual with a State by which the State on many grounds
concludes that the individual has allegiance to it."
The doctrine of real and effective bondage in Nationality.—The above doctrine was propounded by the International Court of
Justice in 1955 in the famous Nottebohm case, ICJ
42 | P a g e
Rep. 1955. According to this doctrine if any person has got nationality of two States, then in case of controversy between the
two, the nationality of that State shall be more acceptable with which the individual has fundamentally a real and effective
relationship. Alternatively when nationality is obtained through naturalization then it should be observed that at time of
naturalization and thereafter with what country the concerned pefsop h^d real and effective relationship and the nationality so
granted was really effective. *.
Importance of Nationality
1. The right of protection of diplomatic representatives are available because of nationality
2. If any State does not restrain a persoii of it.s nationality from such disadvantageous actin which are affecting other States
then the first Stfite^hall be respbnsible to other Slates for such actions of its nationals.
3. Ordinarily States do not refuse to accept its nationals in extradition.
4. Nationality conveys loyality to thefState, hence one attribute of Rationality is that the
i
national is bound to serve in military of the State, v 1 , ,
" He-.
• j(K<* 5. One of the effect of the nationality is that the State has a right to Refuse extradition of its own national.
6. By the practice of many States, at the time of war the 'Enemy character' is determined on the basis of nationality^
7. According to foreign territorial jurisdiction principle, in the matter of criminal and other cases, the States have jurisdiction
over their nationals even tji foreign territories.
Modes of Acquisitiop of Nationality
According to International Law. nationality can be obtained by following means—
1. By Birth—In the country in which a person is born he obtains the nationality of that country by birth, or at the time of birth,
person gets the same nationality which his parents are having. «
2. By Naturalization.—By naturalization also nationality can be obtained. When an alien living in a country obtains the
nationality of that country it is called naturalization. In Nottebohm case' JCJ 1955 the ICJ had decided that a State has no
obligation in granting nationality to a Person through naturalization if that person has no relations with that State, The Court
Propounded the real and effective nationality doctrine. If any person obtains nationality of two
'WUrn'k^
States then in case of controversy between the two nationalities, the nationality of that State shall
be accepted with which the person fundamentally has real and effective relationship.
Loss of Nationality
In International Law for loss of nationality, the following rules are observed—
L By Release.—In some States there are such legal provisions by which they grant permission to release their nationals from its
nationality. For this type of release, an application is necessary. If the application for release is accepted, then the applicant is
released from the nationality of that State.
2. By Deprivation.—Often in many States such legal provisions are available by which if a national of that State enters into
service of another State without the permission of home State, he would lose nationality.
3. By long residence abroad.—The loss of nationality , may take place on the ground that the individual stayed abroad beyond a
certain time limit. Many States have legal provisions by which a national who lived abroad beyond a certain time limit his
nationality stands terminated.
4. By Renuniciation.—By renunciation also one can cease to be a national of a particular State. The need comes when a person
is having nationality of two or more States. Under this circumstances he has to choose the nationality of one State and has to
renounce the nationality of other State.
5. By Substitution.—In some States the nationality is terminated by substitution. By substitution a person gets nationality of one
State in place of another State.
Q. What do you understand by extradition ? What are the rules of extradition ? Who cannot be extradited ? OR
Explain the law relating to extradition. Refer to important cases. Ans. Meaning and definition of extradition.—In extradition one
State delivers to the other a person who is present in its territory and has been adjudged as a criminal in the territory and laws
of other State or has committed crimes outside the territory of one State but is its national or citizen and according to its laws is
under its jurisdiction and liable for the criminal acts.
According to Prof. Oppenheim, "extradition is the delivery of an accused or convicted individual to the State on whose territory
he is alleged to have committed or to have been
44 {Page
convicted of a crime" by the State on whose territory the convicted individual happens for the time being,
Prof, Starke defines extradition "As the process whereby one State surrenders to another State on its request a person accused
or convicted of a criminal offence committed against the laws of the requesting State. Such requesting State being competent to
try the alleged offence."
Conditions for Extradition
In the modern time in International Laws the extradition is mainly based on the treaties between the countries. In other words,
there should be following conditions for the extradition—
1. Almost every State is convinced that there should not be extradition of political offender. But, what is 'political offence', there
is great difference of opinion.
2. On military offence extradition is not preferred.
3. Likewise on religious offendes also extradition is not executed.
4. In extradition, the rule of speciality is followed which was enunciated in U.S. v. Ranseher,. 1885, 119 US 407. This rule lays
down that the critninal demanded should be tried only and exclusively for the offence for which extradition is made and for no
other. The tJ.S. 1 Supreme Court quashed the conviction of an accused who was tried on a different offence instead of the
offence for which he was extradited.
5. Double criminality.—This concept signifies that extraditon will be permitted only when the offence on which it is requested is
an offence in both the countries i.e., Requested and Requesting; both the countries should have in their laws, the reported act
as an offence.
6. There should be enough evidence for the crime for which extradition is being demanded. In other words, the crime should be
such that prima facie it seems crime.
7. For extradition there should be a formal request. Other formalities should also be followed.
8. Generally all the conditions as mentioned in the extradition treaties should be fulfilled before the offender is extradited.
9. When a person is alleged to have committed an offence in an alien territory and that foreign country is requesting extradition
of that person, then it is not essential that at the time of commission of offence that concerned person should have been
present in that foreign country.
10. Ordinarily States do not permit extradition of their own nationals. 11. Extradition is usually based on bilateral treaties.
The basis of the principle of extradition
Barring the exception of external territorial jurisdiction almost every State has jurisdiction over its citizens within the boundary
of its territorial sovereignty. Sometime, such a situation arises that one person after committing a crime in his own country flies
to some foreign country. As such the concerned country finds it difficult to punish and have a jurisdiction over that criminal. This
situation is dangerous for peace and order. Under these circumstances peace and order can be maintained only if amongst the
nations there is international co-operation for keeping international peace and order. To cope with the social need of punishing
the criminals the principle of extradition is utilized.
The doctrine of non-extradition of political offenders.—In context to extradition in International Law, there is a famous rule that
political offenders are not extradited. According to Edward Collins, majority of countries refuse to extradite such persons who
have committed offences for political purposes. The Courts have always felt difficulties in applying the rules of political offenders
in a real case. Not to extradite political offenders commenced first in 1789 by the advent of French Revolution. Later on, other
countries also consented for not granting of extradition to political offenders. At modern times more or less all the countries
have accepted the principle of non-extradition of political offenders, though in applying this principle many difficulties come to
surface and the most difficult problem is the definition of 'political offence 4 and 'political offenders'.
In this context the cases of Re Castioni, (1891) 1 QB 149 and Re Meunier, (1894) 2 QB 414 deserve special mention.
In Re Castioni case the Queens Bench of England decided that the crime of Castioni was political, hence the order of his
extradition cannot be issued.
In Re Meunier case, it was considered as to what is a political offence? The Court decided the case by answering the above
question, saying that a crime can be said to be a political offence when in the concerned State there are two or more political
parties and each of them are trying to make government of their party and having this object, the crime was committed.
Q. What are the different categories of diplomats? What are the duties of diplomats ? How can they be removed?
46 | P a g e
An*' Catfig0rie8 of .Remain the Vienna Congress of 1815, the diplomatic
agents were categorized as follows—
1 AmlwuMMloni timl I *gafri»—The Ambassadors of a country and thai legate of the Pope are regarded a* the diplomatic agent
of first clas%. These Ambassadors are appointed by a sovereign Suite. They arc sent to different States as an ambassador or they
are appointed in the
U.N.O. as (he permanent representative of the country. The agents appointed by the Pope are called legates.
2. Ministers Plenipotentiary and Knvoys extraordinary.—These types of diplomats come in second category and get somewhat
lesser honour in caparison to first category. 3. Minister Resident—The diplomats of this category came into existence from the
Congress of Aix-LaChappelle held in 1818. They arc regarded as below to second class category and get lesser privileges and
rights than the second level of diplomats.
4. Charged affairs.—This category of diplomats are regarded as the lowest level. The reason is that they are not appointed by
the Head of the State rather by the foreign office of the State. In relation to rights and privileges they are below even to Minister
Resident.
In modern time, the diplomats have only three categories, By the Vienna Convention 1961, the category of Minister Resident
has been obliterated. Now, the following 3 categories of diplomats are in prevalence—
1. Ambassadors and Legates of Pope;
2. Minister Plenipotentiary and Envoys extraordinary;
3. Charge'd affairs.
Duties of Diplomatic Agents
ft Representation.—They represent the home government at the State wherefrom they have ben appointed. In other words,
they represent their own government at the place whereever they are sent.
2, Negotiation and Mediation.—The main duty of a diplomat is to mediate in between the government where he is posted and
his own government to settle the problems. It is the duty of these diplomatic agents to inform its own government with all the
talks and developments which occur during the negotiation and mediation stage. It is in their best endeavour to maintain good
relations with the country where he is posted not only for himself but his country also.
47 | P a g e
Inspection,—At the country where they arc posted, it is required of them to look into an j important events happenings etc.
which may affect the interests of the home country or both the ' countries, the events must be duly reported back to the home
country for instructions, if any.
4. Protection.—At the country where they are posted, there may be many other own nationals residing for different purposes.
The diplomat must protect the interest of these own national at that foreign country. He is required to protect not only the life
but property also of these nationals.
5. Enhance friendly relations.—The diplomats are required to enhance the friendly ! relations between his own State and the
State where he is posted. He has to develop economic,
scientific and cultural ties between the two States making them stronger day by day.
Besides the above main duties, the diplomats may be assigned special duties to serve some specific political or economic
purposes.
Termination of Diplomats
1. Recall of Envoy.—When the appointing State summons back its envoy it is called Recall of the envoy and the term of such an
envoy comes to an end. This step is taken when the relations between the two States become abnormal and are beyond
adjustment. 2. Notification for the termination of diplomatic agent.—Under Article 43 of Vienna Treaty, the appointing State can
terminate the tenure of its diplomatic agent by notification.
3. On the request of the State where the agent is posted.—The State in which the diplomat has been posted may also request to
the appointing State for the return back of the diplomat and invariably this request is accepted, as such that diplomat's tenure
comes to an end.
4. By handing over of the Passport.—When the appointing State hands over the passport to a diplomat, it means his present
posting has come to an end and he must immediately return back to his native State. This is done when the relations between
the two States deteriorate, war or any other major problem is imminent. Sometimes the agent himself demands his passport
from the government where he is posted. This results in termination of the mission.
5. Persona-non-grata.—The receiving State has a right to declare any diplomatic agent as persona-non-grata means thereby that
this person is not acceptable any more. After this declaration that diplomatic agent stands terminated and returns to his home
country. This provision is available in the Articles 9 and 43 of Vienna Convention.
48 | P a g e
6. Completion of the task assigned,—Sometimes* for a specific purpose a diplomat is appointed. When that purpose is fulfilled
the assignment comes to an end.
7. By the effluxion of time for which the identity card was issued.—Where sometime limit is fixed for continuation of the
assignment and that time comes to an end, the assignment of the diplomats comes to an end.
Besides the above circumstances, the diplomatic agents stand terminated in the following situations also—
By death.
Removal from the post.
 Termination of the diplomatic relationship between the countries.
Change in the Constitutions. -r
Change in the government through revolution.
Extinction of the State either by annexation or merger.
7- War- '11 ' 1
8| Change in the rank of diplomatic agent.
Q. Discuss the privileges and immunities of diplomatic agents of the State. Does their breach give rise to State responsibility?
Ans. Immunities and privileges of diplomatic agent.— ll Inviolability of the person as envoys.—The diplomatic agents are
extended personal safety and security. In India, the rules contained in International Law for personal safety of envoys were in a
very developed stage from the ancient times on the basis of personal security, an envoy cannot be arrested for non-payment of
debts etc. If an envoy is attacked, it is deemed that attack was on the country to which the envoy is belonging. 2. Immunity from
criminal jurisdiction of the Court.—The Courts of the State where the envoy is posted, do not treat the envoys within its criminal
jurisdiction. It is ordinarily believed that envoys will not violate the laws of the host country. But there are certain circumstances
when the envoys lose their immunity for example when they indulge in conspiracy against the host State.
3. I mm unit> from civil Jurisdiction,--The envoys enjoy immunity of civil nature also I violation of contractual or debts related
transactions, no suit is filed in the civil court of the host State against the envoys*
According to Article 31 of Vienna Convention there are three exceptions to the civil jurisdiction when immunity is not available
—
(!) The immunity will not be available for any immovable property located within the jurisdiction of host State, if it is personally
owned by the envoy. For immunity the property should be owned on behalf of the government which he is representing.
(2) In a matter of inheritance where the envoy is a successor or executor in his personal capacity,
(3) The commecial activities of the envoy in his personal capacity.
4. Immunity regarding Residence.—In ordinary conditions the residence of an envoy, his premises are inviolable. No search is
allowed in his residence. If any person intrudes the premises of an envoy to avoid arrest, it becomes the duty of the envoy to
deliver such person to the host government unless he decides to give that person an asylum, which may prove risky and may
bring political upheavals.
5. Immunity from presence in a court as a witness.—An envoy cannot be compelled to give any evidence in any Court, but he
himself can waive this privilege and appear before a Court.
6. Immunity from taxes.—The International Law permits immunity to envoys for local taxes also. The Vienna Convention, 1961
provides this in Articles 34 and 46. But those utilities arc not detailed in these articles which the host State provides to envoys
e.g,. water, electricity, telephones etc. and for them the envoys make payment.
7. Immunity from Police rules.—The envoy remains immune from the police rules of host country. But because of courtesy and
to maintain the local law and order and enhance the good relations with the host State, the envoys abide by the police rules.
8. Right to worship.—Envoys are free to follow according to their choice the mode of worship within the permises of their
embassy and outside as well but they cannot solicit change of religion.
501 Page
9. Right to exercise jurisdiction over the staff and family in the embassy.—The envoy is allowed to exercise his jurisdiction over
the subordinate staff and family in the Embassy to keep the Embassy going.
10. Right to travel freely in the territory of receiving State.— The Vienna Convention, 1961, in Article 26 has provided for a new
right to; envoys, now they can travel freely within the territory of host State and can go anywhere.
11. Freedom of communication, for official purposes.- Under Article 27 of the Vienna Convention, 1961, the envoys have
freedom to communicate with his own Stale in context to their official work. 12. Immunity from Military and other local
obligations.—In Article 35 of Vienna Convention, the envoys have been granted immunity from military and other local
obligations of the host State.
13. Immunity of the servants of the Diplomatic Agents.—The servants of the envoys have also been granted certain immunities,
but these are not in such a large scale as is available to envoys themselves.
Basis of Immunities and privileges of Diplomatic Agents
1. Theory of extra territoriality.—According to Grotius diplomatic agents though physically present upon the soil of the country
to which they are accredited, but they are treated to remain for all purposes upon the soil of the country to which they
represent. This is called extra territorial theory which is based on fiction. According to certain jurist, the immunities and
privileges granted to diplomats on this basis is justified.
2. Functional theory.—The reason why the diplomats are granted privileges and immunities is because of their special type of
functions they are allotted to accomplish. In absence of these privileges and immunities it will not be possible for them to
function properly. This principle is that is why called functional and in modern times this theory is accepted as appropriate and
correct, and is the justified basis of immunities and privileges granted to diplomats.
Q. What do you understand by the freedom of High Seas? Discuss the theory related to
it.
Ans. Freedom of the High Seas —The concept of the High Seas is very ancient and in the modem times also it has its own
importance. In the modern era in relation to oceanic law
511 P a g e
revolutionary changes have ocurred that is why old definition and concept of High Seas stand as inappropriate.
In 1958 regarding High Seas a convention was held in Geneva— Geneva Convention on the High Seas, 1958. In Article 1 of this
Convention the definition of High Seas is given as the term High Seas' means part of the sea that ar$ not included in the
territorial sea or the internal waters of a State.
The concept of Independence of High Seas is a principle which is almost accepted by all the States. On Geneva Convention on
the High Seas 1958, almost all the nations of the world have signed and have accepted that on High Seas, there is no special
authority of any State. According to Article 2 of the Convention 1958, it is provided that High Sea is open to all and at no part of
it any State can have its sovereignty on High Sea.
U.N. Convention on the Law of the Sea 1982, part 7 consists of High Seas, In it, instead of giving definition of High Seas, it is
provided that provisions of the part shall apply to all the passages of the sea excluding Exclusive Economic Zone, continental
shelf, territorial waters of a State or Archipelagic State. This provision is described in the Article 86 of the Convention, 1982. It is
assured in Article 86, that there, shall be no reduction in the freedom of economic zones as is availed of by the States. Article 87
provides that High Seas is open to all the States including land locked and coastal States. As per conditions of the Convention.
1982 and provisions of International Law the free Land facilities of High Seas shall be utilized. Coastal and non-coastal States
shall avail of the following independent facilities in the H igh Seas—
1. Navigation of ships 2. Air passage over the sea.
3. Laying down of cables and pipelines in the belt of the sea.
4. Construction and creation of artificial islands as per rules of International Law.
5. Fishing facilities.
6. Scientific research and study.
It is also provided in the Convention that all the States shall avail of all the above independent facilities keeping in view the
interests of other States and the rights of others in relation to international oceanic belts and other specified zones.
Q. Write short notes on the following—
52 | P a g e
Maritime Belt, International Sea bed Area, Continental Shelf*
Ans. Maritime Belt or Territorial waters.—Maritime belt or Territorial waters is that portion of an ocean which is adjacent to the
territory of a State and over which the State exercises its jurisdiction. According to Geneva Convention on Territorial Waters and
Contiguous Zone, 1958 a State exercises its sovereignty over that portion of the sea which is called maritime belt of territorial
water. It also provides that sovereignty of the State extends up to the air space over the territorial waters and below to the sea-
bed and sub-soil underlying such waters.
The problem of breadth of territorial waters.—Sovereignty is exercised over the territorial waters or maritime belt, hence
certainty of its breadth is necessary on this topic, in International Law, there has been a lot of difference of opinion. According to
Bynker Shoek, the canon-shot rule should determine the breadth of a maritime belt upto 18th century, the length of canon shot
was nearly 3 miles, so in relation to Maritime Belt's breadth, the canon shot rule became in vogue. But because of
developments in technology the length of canon shot increased, hence it became necessary to change- this rule. According to
Grotius, th^sovereignty over maritime belt should be to that extent upto which it is effective and capable of giving protection.
Vattel has approved this opinion.
In the 19th century 3 miles principle was very much in acceptance. To determine the breadth of maritime belts the first step was
taken by League of Nations. To determine and to give certainty to the breadth of maritime belts the first Geneva Conference in
1958 was convened by the U.N.O. on the law of the sea. Again I960, the second Geneva Conference was held in which America
proposed a resolution for agreements. According to it territorial water's breadth should be of 6 miles and 6 miles more adjacent
to it wherein the coastal state may regulate the fishing, mining etc. Unfortunately this resolution could not be accepted and was
rejected unanimously. Actually, now 412 mile breadth' is acceptable by majority of States. India, Russia and other States are in
favour of this. The Convention on the law of the Sea 1982, has accepted the breadth of the Territorial Waters (Maritime Belt) as
of 12 miles from the base line.
2. International Sea-bed Area.—The sea bed beyond the jurisdiction of a State is called International Sea-bed area. Under Article
86, the Convention on the Law of the Sea, 1982, provides that all parts of the sea that are not included in the Exclusive
Economic Zones, in the territorial Sea, or in the International waters of a State or in the archipelagic waters of an archipelagic
State would constitute High Seas or International Sea-bed area. International Sea- 53 I P a g e
bed and its properties are the common heritage of mankind. By evaluating the developments and changes during the last two
decades, it may be said, that the portion of the sea-bed beyond the Exclusive Economic Zones is High Seas while on the other
hand, sea-bed beyond the continental sea-bed of coastal States may be called International Sea-bed area.
3. Continental Shelf.—Geologically oceans are such that its depth increases bit by bit as one proceeds from coast to sea ward
and a point comes where usually a marked increase of declivity to greater depth occurs. The sea-bed upto this point of depth
may be called continental shelf.
Wolf and Friedman has defined continental shelf as "the zone around the continent extending from the low water line to the
depth at which there is usually a marked increase of declivity to greater depth. The shelf ends at the point where this marked
increase occurs."
The Convention on the Law of Sea, 1958, under Article 1 defined Continental Shelf as "The Continental Shelf is the sea-bed and
sub-soil of the submarine area adjacent to the coast, but outside the area of territorial sea, to a depth of 200 meters or beyond
that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas." It
is evident that the Convention, 1958 has permitted two criteria's of continental sheIf-% one of 200 meters of depth and the
other exploitation of natural resources criteria. The 200 meters depth was so earmarked because of that time beyond 200
meters depth, exploitation of resources was not possible as technical knowhow was not so advanced as of today.
The Convention on the Law of Sea, 1982 has defined the term continental shelf in Article 76 as "the continental shelf of a coastal
state comprises the sea-bed and sub-soil of the submarine areas that extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the
base lines from which the breadth of the territorial sea is measured where the outer edge of the continental margin which does
not extend up to that distance." But where the continental coast is less than 200 miles, then the continental self will be up to
200 miles only and it will be measured from the base line as the maritime belt is measured. In Article 76 (5) it has been clearly
mentioned that the outer limit of the continental shelf in no case will be more than 350 miles from the base line where from the
maritime belt is measured.
At the Convention of the Law of the Sea, 1982, at Montago Bay (Jmaica) 119 countries signed.
54 I Page
Indian Position
India has given approval to the definition as given above and has enacted the territorial waters, continental self, Exclusive
economic Zone and other Maritime Zones Act, 1976. In short, Maritime Zones Act, 1976 in Section 6(1) has defined the
continental shelf in the same fashion as is available in the Sea-Law Convention of 1982.
Q. Define Hijacking. Discuss the universal jurisdiction in respect of the crime of Hijacking.
Ans. The Convention for the Suppression of Unlawful Seizure of Aircraft 1970, popularly known as the Hague Convention 1970
has given the definition of Hijacking in Article 1— "Any person who on board an aircraft in flight: (a) unlawfully, by force or
threat thereof or by any other form of intimidation, seizes or exercises control of, that aircraft or attempts to perform any such
act, or (b) is an accomplice of a person who performs or attempts to perform any such act commits an offence."
In Tokyo Convention of 1963 also Air Hijacking was defined in more or less similar words but it has no mention of Accomplices
Essential Elements of Air Hijacking:—
1. It is committed with the use of force or threat of force or by any other form of intimidation or threat thereof.
2. The above action should have been committed for the purpose of Hijacking or control over the Aircraft.
3. It is committed on board an aircraft in flight.
4. The purpose of Hijacking is to achieve certain aims or to reach a desired destination.
According to Article 1 of Montreal Convention of 1971, any person illegally and knowingly
if commits any of the following, shall be guilty of Hijacking.
Hijacking:—
1. During the flight of an aircraft committing of any violence against any person which leads or is likely to lead to danger of the
safety of the said aircraft.
2. During the flight perish the aircraft or cause such damage that it becomes worthless of flight or it is likely to cause danger to
it's safety.
3. During the flight keeping or arranging keeping of some dangerous material in the aircraft which is likely to cause its
destruction or destroy its airworthiness or danger to its safety.
55 | P a g e
4, To destroy or harm the facilities and gadgets of aircraft operation so that it becomes dangerous to the safety of the aircraft
during flight,
5. To give such an information which is false and which he knows to be false causing safety danger during the flight of the
aircraft.
Principle of Universal Jurisdiction in respect of Hijacking.—The principle of universal jurisdiction is applied to piracy or war
crimes. Air hijacking may be treated as air-dacoity and this principle should be applied to this crime also. It means that any State
may take action against the criminals of this crime and no question of jurisdiction shall be raised. Tokyo Convention 1963, Hague
Convention 1970, and Mantreal Convention 1971 have granted to the States Universal Jurisdiction on the commission of such
crimes.
Q. Mention briefly the neutral rights and duties in Land warfare.
Ans. Duties of a neutral State in land warfare.—According to the rules of neutrality in a war, the duties of a neutral State are as
follows—
(i) Duties of abstention.—It is the duty of the neutral State not to help in anyway directly or indirectly the belligerent States. The
help may be financial or military and both have been declared as prohibited. (ii) Duties of Prevention—As a preventive measure,
it is the duty of the neutral State to disallow the use of its territory in the war by the belligerents and not to permit it's national
to be recruited by the armies of the belligerents.
(iii) Duties of acquiescence.—If the flagship of a neutral State is captured for the crime of navigating contrabands or any other
ship is caught in the coastal waters of the neutral State and such a ship is guilty of carrying contrabands then the neutral State
instead of opposing such an arrest should acquiesce such a guilt.
As a result of above duties, an additional duty is cast upon the neutral State to arrange for restitution and compensation. What
duties and rights shall be utilized by the neutral States has been already described in the Hague Convention of 1907.
Rights of Neutral States
According to Lawrence the rights of a neutral State are as follows—
1. Right to have its territory immune from hostile activities.
56 1 Page
2. Right to have its communication system including submarine cables intact—protection form damages due to hostilities,
3. Right to safeguard its territory from the direct war preparations by the belligerents.
4. Right to have some regulations for protection of neutrality abided by the belligerents.
5. Right to get reparation for violation of neutrality from the belligerents. The reparation must be reasonable and appropriate,
should be taken care of by the belligerents.
Q. Define blockade. Describe the valid grounds of blockade. Enumerate the conditions when blockade is lifted. OR
Define 'war time blockade9. How does it differ from peaceful blockade? What are the legal requirements for a valid war time
blockade?
Ans. Meaning and definition of blockade.—According to Starke "A blockade occurs when a belligerent bars access of the enemy
to its coast or port for preventing ingress or egress of vessels or aircraft's of all nations." Oppenheim defines blockade as "the
blocking by men of war of the approach to the enemy coast or a port of it for the purpose of preventing ingress or egress of
vessels or aircraft's of all nations."
Essential Elements of Blockade
1. The blockade must be initiated and controlled by the military personnel.
2. The whole coastal area or its part can be blockaded.
3. The blockade must confine ingress and egress of vessels.
4. Blockade is related with the military operations.
5. The blockade should maintain impartiality whereby the vessels and aircraft's of all nations are stopped.
Besides the above elements, the additional necessary elements are also as follows— 1. Declaration and Notification.—This is
the rule of International Law that there should have been an appropriate declaration and notification of blockade. In the
notification should be clarified that when the blockade will commence and what shall be the geographical limitation of the
blockade.
2. Geographical limits of the blockade area.—It should be clarified in the blockade as to what shall be the geographical limits of
the blockade. It is essential to clarify the area where the blockade will operate and vessels and aircrafts shall be prohibited from
entering.
57 | P a g e
3. Exemption to neutral ports.—The neutral ports should be exempted from the blockade.
4. Impartiality.—There should not be any discrimination with the vessels of any nation and all the vessels of any nation should
be stopped impartially by the country which has imposed blockade.
5. Proper establishment.—The blocked area should be established appropriately.
6. Continuous maintenance.—The blockade should be continuous. When the ships which are imposing blockade return back, it
is presumed that blockade has ended. So, far blockade, it is necessary that military vessels should remain in the blockaded area.
7. Effectiveness.—For making a blockade binding,fit is necessary that it should be effective. According to the declaration of Pafis,
1856, the blockade becomes binding only when it is effective. For effectiveness, it is essential to utilize the force and such
measures which are capable enough in stopping the ingress and egress of the vessels.
In the case of 'The Franciska, 1855' the Court gave its decision that to make a blockade effective, in the concerned area the
blockade should be established with such an appropriate force that it may make it dangerous for a vessel to have ingress or
egress.
Termination of blockade.—The blockade comes to an end in the following circumstances— L By the termination of a war, the
blockade also comes to an end.
2. The country which has impose blockade can itself terminate it voluntarily.
3. When the blockade is continuously violated and it does not remain effective, then it is understood that blockade has
terminated.
4. The blockading State captures and occupies the blockaded coast or port.
5. When blockading forces are vanquished by the enemy forces.
6. When the military vessels blockading the area, leave the blockaded coast, it is understood that blockade has ended.
Difference between Pacific and Strategic Blockade.—The pacific blockade is a means to solve international disputes peacefully. It
is used during the peace time contrary to this, during a war. tire imposition of a blockade is an ordinary thing. During a war, the
belligerent, at the coastal area of the enemy or any part of it by imposing a blockade, stop the ingress and egress of the vessels
of other countries and as such blockade is a war activity and is therefore regulated by the rules of war. The pacific blockade is
imposed during the peace time and access to and exfi from the blockaded area of the vessels, ships and aircraft* h prohibited
without recourse to other hostile measure. The purpose of pacific blockade is to compel the blockaded country to solve the
dispute peacefully.
Q. Explain the behaviour of belligerent State towards war prisoners.
Ans. Behaviour of belligerent State towards war prisoners.—
How the prisoners of war should be treated by the belligerent States, was firstly provided in the Hague Convention of 1907.
After that in 1929 by the Geneva Treaty regarding the behaviour towards the prisoners of war, it was elaborately provided. At
present, in 1949, provisions of both the Conventions have been consolidated, amended and restructured.
The behaviour towards the prisoners of war, which have been constituted in the Convention, in brief may be narrated as follows
—
Prisoners of war should be treated humanely.
To kill a prisoner of war or to give them such a treatment which affects their health badly, is prohibited.
A prisoner of war cannot be used as a commodity of research on medicine, science or for practice on other practicals unless it is
for the self benefit and interest of the prisoner of the war.
The prisoners of war should be protected from the violent, threatening, defaming and disgraceful actions of the local citizens.
Forceful attack on prisoners of war is prohibited.
In all events, the prisoners of war have a right to get honour and respect according to their rank. The prisoners of war should be
treated respectfully.
It is the obligation of the conquerer country to give them facility of free ration and medicine etc.
The prisoners of war should be given equal treatment. They should not be discriminated against on the basis of nationality,
religion, colour, creed etc.
The prisoners of war should not be physically tortured. To get information from them, no undue pressure should be applied.
The things which are related with their native country or religion should not be snatched from the prisoners of war.
59 | P a g e
The prisoners of war should be lodged away from the war area or dangerous zones as soon as possible.
The prisoners of war should always keep their identity card. Those who have no identity card, shall be provided identity card by
the capturing State,
Prisoners of war can be released on parole according the law of the capturing State. It is the duty of the prisoners of war that
whenever any enquiry is conducted they should disclose their name, rank, date of birth, regiment etc. correctly if they do not do
this, they cannot be provided facilities according to their rank.
Q. Discuss the fact and formulated principles of the following cases—
1. Nuremberg Trial, 1946.
2. The Paquete Habana and Loal case.
3. S.S. Lotus case 1927.
Ans.l. Nuremberg Trial, 1946
The Nuremberg Tribunal was established after the Second World War to try and punish the German war criminals. For the
jurisdiction of this Tribunal, the conqueror States in 1945 entered into a Convention and ̂ through a Charter granted jurisdiction
to this Tribunal.
This Tribunal was granted authority to put on trial and punish those who had committed war crimes during the Second World
War. Besides this, under the Charter, the Tribunal war granted jurisdiction for crimes against peace and crimes against humanity
also. The trial of main war criminals commenced on 20th November, 1945. On 30th December 1946, the Tribunal delivered its
decision according to which 3 accused were acquitted and 12 accused were sentenced to death and 3 were sentenced for life
imprisonment another four were sentenced for long spell of jail.
Judgment
The Tribunal awarded capital punishment to 12 accused and others were punished according to their guilt and some were
absolved of their crime. The Tribunal propounded many an important principles some of which arc as follows—
Principles propounded
1. Those who commit offences against International Law, only after punishing them, the provisions of International Law can be
implemented.
60 1 P age
2. The Court has propounded the rule that if any person happens to commit a war crime even if in the capacity of the head of
the State or a responsible government official does not relieve him under the International Law from his responsibility.
3. The Court rejected the plea of accused criminal that 'whatever they have done was in compliance of superior orders, hence
they should not be punished'.
4. The accuse raised the plea that till the ex pout facto law does not exist, no action can be declared and treated as an offence
and on that basis punished. The Court rejected this plea.
5. In the opinion of the Tribunal invasion is the crime of war operations and invasion of Germany against other countries was
violation of the terms of Paris Convention, 1928, hence those who operated this war were adjudged as guilty of war (times. 6.
The Tribunal also punished the accused criminals for misbehaving with the prisoners of war.
Significance of the case
The Nuremberg principles have commendably contributed in the development of laws of war specifically criminal side of it. The
Nuremberg Tribunal clarified that laws of war are meant not only for States but also for men, because international crimes are
committed by persons and by punishing them, the International Law can be implemented. Besides this, in war crimes, the rank
and circumstances of the war criminals have no importance. The Tribunal observed that if any persons who has committed an
international crime even if he happens to be head of a State or high ranking military official, shall be punishable under the
International Law.
2. Paquete Hanna and Lola case [1 (1990) 175 U.S. 677]
Introduction.—This case refers to the situation where blockade is continuing and the legality of capturing and arresting of
Fishing Vessels with goods loaded therein with unarmed fishermen is in question whether it is justified or not. This case is also
referred when the sources of International Law are being described and the relevance and importance of writings of eminent
jurists are under discussion.
Facts and dispute of the case.—The Pequcte Habana and Lola were two Fishing Vessels over which the flag of Spain was
fluttering. In 1898 when America and Spain were at war, the American military forces had imposed a blockade on the northern
coastal way of Cuba which was a Colony of Spain. The Paquete and Lola ships were unaware of this blockade. The American
military ships captured these fishing vessels and to punish them initiated prosecution. 611 p a g e
The trial Court declared these vessels and goods loaded therein as prize of the war. Against this decision an appeal was filed in
the Supreme Court of America. The Supreme Court had to decide the question whether during a blockade, fishing vessels
together with goods loaded therein and the unarmed fishermen could be arrested or not ? The Supreme Court had to identify
the applicability of International Law on this issue. Moreover, the Courts had to clarify whether in American civil law, the
International Law was abided or not.
Judgment
The American Supreme Court rejected the findings and decision of the Trial Court/ Lower Court and declared that income from
sale of fishing vessels and goods loaded thereon, expenses of prosecution and the compensation should be given and paid to
the claimant.
Principles laid down
(1) Justice Grey decided that International Law is a portion of American municipal law and at American Court of appropriate
jurisdiction under the system will have to decide and answer the question of a right, irrespective of time and frequency of the
posing of such a question.
(2) If on any subject there was no treaty or any law of legislature or judicial decision, in such a situation, the Court together with
the International Law would search the customs and usages of civilized nations on that topic and as an evidence thereof would
search on the creations of eminent jurists and commentators who after long years of their labour research and experience have
acquainted themselves on the subject. (3) According to maxims and established rules of International Law, the fishing vessels
and on their unarmed fishermen who execute their work honestly and peacefully, could not be captured and arrested. Even
during blockade, such fishing vessels and fishermen are exempted from arrest.
(4) In the International Law, it was a customary rule that fishing vessels being used for commercial purpose could not be
captured and adjudged as a prize of a war.
(5) Prize Courts should implement the rules of the above International
Law
(6) The fishing vessels could be destroyed in such a situation when they were assisting the enemy war operations.
(7) Since the International Law was a part of the American municipal law, the American Courts should implement the rules of
International Law.
3. S.S. Lotus case, PCIJ
Introduction.—This case is related with the nature and criminal jurisdiction of the International Law. It this case the question for
decision was whether the criminal law of a country were applicable to aliens at par with natives or for aliens there need by
some special provisions.
Facts and controversies.—In 1926 a mail carrying ship of France named Lotus collided with a ship namely Bazrort of Turkey in
the open sea. As a result of this collision, the ship of Turkey Bazrort sank and Turkeymen died. After that when the Lotus arrived
at the port of Constantinople of Turkey a French citizen Demons and the officer of the Lotus were arrested and against them a
criminal case was filed. The French citizen Demons pleaded before the Turkey Court that it has no jurisdiction to hear the case
against him, a French national. The Court rejected the plea of Demons and adjudged him guilty and punished him. The French
Government opposed this action of Turkey and demanded the release of Demons. According to France, the Court of Turkey had
no jurisdiction to hear and punish a French national, Demons. The Government of France referred to Article 15 of the
Convention of Lausanne, 1923 and claimed that Turkey had violated the convention. To solve the dispute, the Government of
France and Turkey signed a special agreement according to which it was decided that this matter should be placed before the
Permanent Court of International Justice to decide whether Government of Turkey had violated the Article 15 of the above
treaty or not? According to that Article 15, the jurisdiction of the Courts of Turkey and other parties were to be decided
according to the norms and rules of International Law. Judgment
The Permanent Court of International Justice decided the case in favour of turkey, The Court held thai the Court of Turkey by
prosecuting and punishing Demons had not violated the rules of International Law , The principle laid down
(I) The International Law regulates the relations of independent Statev The rute^ ami regulations of International Law arc as a
result of their freewill which tf>e> fecept through treaties and customs etc.
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(2) According to International Law no country can execute its jurisdiction in the territory of another country, meaning thereby
that jurisdiction always necessarily covered the territorial or provincial scope. (3) The above rule did not convey the meaning
that International Law prohibits countries to exercise their jurisdiction. If any crime has been committed beyond the territory of
a country and no rules of International Law seems to cover it then in certain circumstances the rules of extra territoriality is
applied.
(4) The Statement of the Government of France that to decide the scope of jurisdiction of the Courts of Turkey, it should refer to
some accepted rules of International Law, was not valid. According to the PCIJ this assumption is against the norms of
International Law.
(5) In the sea, every ship is regarded as a territory of that country whose is authoritatively on the mast of the ship if any event
happens on that ship, it is decided according to the laws of that country to which the ship belongs.
(6) Those countries which apply the principles of criminal jurisdiction according to the area or territorial basis, they accept that
if any element of crime is related with their territory it will be deemed as the crime was committed in their territory.
(7) If the effect of crime covers any country, its jurisdiction is granted to that country. In the present case, the crime committed
by the French vessel affected the vessels of Turkey, hence Turkey got jurisdiction over that crime. In International Law there was
no rule which could restrain Turkey from prosecuting and punishing Demons.
(8) In International Law, there was no rule according to which in cases of collision, the criminal proceedings could be initiated by
that country only the flag of which was carried by the ship. In brief, the criminal rules of a country might be applied beyond the
territory of that country in certain circumstances.