10 INTERNATIONAL LAW

of the provisions of the law of the Sea Convention command general consensus,
even in the absence of formal ratiflcation by the signatory Siates.
for
The movement the protection and of human rights has alao
promotion
contributed significantly in giving new dimensions to international law. The
obligationofthe States under United Nations Charter to protect and promote human
2
rights has been substantiated by the Universal Declaration ofHuman Rights of 10
December 1948 which has led to the concephualizationofhuman rights. Thereafer Law
many international measures were taken to enforce the intemational standards of Nature of International
human rights. The most important intermational measures for the implementatilon
ofhumanrights are Intemational Covenant on Clvil and Political Rights,its Optlona
Protocol and International Covenant on Economic, Social and Cultural Rights.
The Intemational Humanitarian Law contained in the four Geneva Red Cros in the street.
smile from the man
Conventions of 1949 was updated and revised in 1977 by Protocol I on intermational The words 'international
law' are apt to draw vary international events, a
as civil and reporters of
armed conflicts and Protocol II on non-international armed conlicts (suelh To the layman, to the reader ofncwspapers éstablished legislature makes law, an
wars). The two Protocols emerged as a result of Geneva Diplomatic Conference on matured legal system is
one in which an
charged with
of
the Reaffirmation and Development of Intemational
Humanitarian Law Applicable presides over trials persons violator in
executive carries them out, judiciary
a
to place a convicted
after its four sessions from 1974 to 1977. The earlier international and a sherifT stands ready
in Amed Conflicts violations of those laws, its counterpart
Convention in 1868 pertaining there.'The layman knows
that no sueh system or
measures in this regard were drafting
ofa Geneva
taken at the jail and keep him reminded almost daily
of the essentially lawless
failed of ratification. The next step was area. He is
to naval warfare. It, however, exists in the international and accordingly, he
comes

at which were adopted three

international
behaviour ofcertain States in
the intermational community
First Hague Peace Conferences in 1899, and academic concepts and arguments
one conceming the pacific
settlement of international disputes, law as a lot of words
Conventions, namely, to think of international politics. The layman,
war on land, and the
third applying to
unrelated to the realities
of the world forces and power
another respecting the laws and customs of international law provides any significant
Geneva Convention of 1868. The second peace therefore, dismisses the suggestion
that
of the
maritime warfare principles ofthe made further The main objective of this chapter
of
conference atthe Hague in 1907, at which 44 nations were represented, assistance towards or guarantee peace.
views be somewhat out of
subjects may
fourteen conventions on diferent to suggest that such
a layman's
progress in this
direction by adopting present study is humanitarian and strategic
sociological, economic,
pertaining to
international law.
the areas of State immunity
focusThe political, the appreciation of the real strengths and utility of
acquired new dimensions in considerations demand
International law has
International Law Comminsion
has
international law as well as
its real weakness and shortcomings.)
from jurisdiction and
State responsibility.
articles in both these fields. An insight into Hnglish
of draft
prepared codes consisting 1976 ofUnited States,
and American Decisions, Foreign
Sovereign Immenities Act, 2.1 CONCEPTUALIZATION

Foreign States Immunitles Act,

1978 of United Kingdom, solely of rules
State Immunity Act, 1982 of Canada would
he of great that internationul law is composed
and State Immunity Act, The traditional view holds therefore,
1981 of South Africa on Sucession
of States in Stutes only. The traditional approach,
interest.The Vienna Convention
of 23 August 1978
of Stntes governing the relations between the regulation of the conduct of States
Succession international law to
of 7 April 1983 on restricts the domuin of
and Vienna Convention internationnl law.
respect ofTreaties developments in 'International Law' in
are also significant Sce readings in
in respect of State Property the crcation of international
1. Junves F. Hogg, What is International Luw? Review, Vol. 61,
factors working toward Norton Moore (ods), Naval
Har College
To sum up, there are many political, sociological
and atrategle Richard B. LIllich and John
cconomic,
law-technological developments, interdependence of the
world and above 1980, p. 35. who defines
international law as
humanitarian impulses,
in international traditional view are: L. Oppenheim
considerations,
there are still serious gaps 2. Those who hold are considered legally binding
by civilized
However, and treaty rules which
endeavours to fill theno
all, the interest ofacademicians. is making all possible
body of customary
with cach other (uee L. Oppenheim, Inlernatlonal Law, Vol.
international community Statcs in their intercourse or principles of
law but the as the body of rules
terms internatlonal law
1, 1970, p. 6); J.L. Briefy States in their relations
with one another [Sir
gaps. action which are binding upon
civilized
Hackworth defines
The Law of Natlons, 1963, p. 1].
Iumphrey Waldock (ed.), between States (tHackworth,
international law us a body of rules
governing the relations international law consists
to Hal,
DMgest of Internatlonal Law, 1940, p. 1); Aecording
 NATURE OF INTE:RNATIONAI. LAW
12INTERNATIONAL LAW
Convention of 1962, Ilague Conventi.
inter se. The dynamics of international law during the past five dccades have Conventions on hijacking, nancly, Tokyo lhyucking as international
of 1971 recognize
Montreal Convention
expanded the horizons of international law to such an enormous extent tdhat of 1970 and
14
law
intermational has acquired completely
new
dimensions. The developncnts which erin. ha
yinginternational
have lent dyanmics to international law may be summarized as follow: ofa large number olintemational gtuiong 2.2
. The energence mternational law by making such
changed the dimensions of
1. The movement of the international protection und promotion of legal personalityhave and organizations ofintermational
concern. Such institutions The i
human rights nternational institutionns These inter
was commenced with the Charer ofthe LUnited Nations which obligutesthe States its organs and specialized agcncies.
include Uolgd Nations Organization, Slales. (lhe llunan resp
to make efforts in this regard. "The Churter obligation found content and cach other and with
into relations with
uIe cupuble of entering Covenunt on C'ivil and Political su
conceptualization in the Universal Decluration of l luman Rights of 10 December undexInternational
ppuitjeejestublished inasmuch us States and even
1948. The movement was geared up to the exlent that the lHuropeun Convention of Rights ulsofnternutional legal personality
Rightbyhas the violation of
Human Rights 1951 gives power to thhe individual to file petition in the European ile petitions in the Comunittee alleging
individuals (victims) can of the Seapf 1982
Commission of Human Righls in case of violation of his rights. 'The signilicant Nations Convenlion on the Law
hunan riglhts. "The (United its organs, namely
developmentsin 1966 when Internationul Covenant on
this regard took place in establishment ofInlermatianalScabedAuuorily,
Civil and Political Rights, its Optional Prolocol and lnternational Covenant on provides for the International Tribunal for the
un Assenbly, u Council, a Secretariat, an Enterprise, institutions
Economic, Social and Cutural Rights were adopted. These instrunients contain Arbitral Tribunal. All these
Law of the Sea, Arbitral Tribunal and Special of entering into
machinery for the inplenientation of human rights at the international level. So as these shall be capable
shall huve international legal personality
much so that the Optional Protocol empowers the victim of the violation of his individuals.
relations with each other, with States and with
rights to make petition in the lluinan Righls Committee wlhich is established under
the International Covenant on Civil and Political Rights. Thus, an individual (viotin) desined
law can, therefore, no longer be adequately or reasonably
has acquired limited procedural capacity to enforce his rights guaranteed to himby nternationl States. International
or described the law governing the mutual relations of the
as
international law in an intemational forun. Individuals have access to the Central constituted on thec basis of States
law is the law of an organised world community,
American Court of Justice and the Court of European Communities. The Unitcd a complex of
but discharging its community functions increasingly through
Nations Convention on the Law of the Sea of 1982 is a big step in this direction. international und regional institutions, guaranteeing rights to, and placing obligations
The Convention gives locus standi to individuals in addition to States and confronted with a wide range of economic, social
International Scabed Authority to participale in procecdings before Seabed Disputes upun, the individual citizen, and
and technological problems calling for uniform regulations on an international basis
Chamber of the International Tribunal for the Law of the Sea in cases of maritinve which represent a growing proportion of the subject matters of the lawn.short,
disputes of commercial nature concerning activities in the International Seabed international law is the standard of conduct, at a given time, for Statés and other
Area. The international humanitarian law consisting ofHague Conventions of 1899 entities subject thereto.
and 1907, Geneva Conventions of 1949 and Protoçols of 1977 have made indiviluals
of much more concem to international law. 3. Hermun P'hleger, Legal Adviser, Depariment of State, 'Some Recent Developments in
International Law of Intercst to the United States', address before the Pennsylvania
2. There have been many developments which innpose duties upon individuals.
In

Tribunal at Nuremberg, Bar Association, Harisburg, 1954, XXX, Department of State, No. 763, 8 February
the historic judgement in 1946 of Intemational Military 954, p. 196.
war crimes, crinics
certain acts were declared to be international crines, namely, 4Marjorie M. Whiteman, Digest of International Law, Vol. 1, p. 1; According
commit these crines. Furthermore, under the
against humanity and conspiracy to J.G. Sturke, intemational law may be defined as that body of law which is composed
Geneva Convention adopted by the United Nations General Assembly on for itu greater part of the principles and rulcs of conduct which States feel themselves
9 December 1948 and which entered into force on 12 January
1951, new rules bound to obscrve, and,therefore, do commonly observe in their relations with each
were crealed for the punishment of persons comunitting
the international crinc of other, and which includes aluo: () the nules of law relating to the functioning of
crime against humanity and threc Intemalional instituions, organizations, their relalions with each other, and their relations
genocide. The offence of hijacking is declared as with States and individuals and (6) certain rules of law relating to individuals and
u binding on them in
non-Stuteentitiesare of concern to intemational community (J.G. Starke, Iniroduction
of certain rules of conduct which modern civilized States regard to Internattonal Law, 1984, p 3x Marek St. Korowicz defines international law as
in nalure and degrce lo that
their relations with one another with a force comparuble ulso body of legal rules which govem mutual relations of Sovereign States, and also the
laws of his country and which they
binding the conscientious person to obey the in case of infringenent (llall,
situation of other legal persons and of individuals which are not subject to the intemal
regard au being enforcecable by appropriate means
law of any particular Stale (Marek St. Korowicz, Iniroductlon to International Law,
international law means the body
International Law, p. 1); Torsten Gill mentions that 1959, p. 390); Charles G. Fenwick defineainternational law in bro¡d terms as the
of rules of law which apply within the international community or sociely of States body of general principles which are binding upon the members of, international
International Law, 1957, p. 53).
(Torsien Gil, The Legal Character and Sources of
 INTERNATIONAL LAW 15
NATURE oP

14 INTERNATIONAL LAW law,

Austin's deflnition of
such. Thus, there are three cAsentlal elenents in the
and senction (in case
2.2 INTERNATIONAL LAW AS 'LAW
namely, command (of the sovereign), duty (of inferiors)about international law
Austin's views
inferiors commit bpeach of the command).
The initial reaction of law students and laymen alike, when they
are first told about
international law, is usually highly sceptical. They believe that States have little arc coloured by his theory of
law in general. Referring to
international law, Austin
as
authority having legislative powers
respect for international law, and have no incentive to obey it in the absence of a points out that there is no sovereign political were almost exclusively customary.
international law
in his time the rules of
supranational system of sanctions capable of being enforced against the law-brcaker. which international law imposes
are enforced

Accordingly, he holds that the duties

In short, the popular belief is that international law not is really law. International
law has had to justify its legitimacy and reality. Its title to law has becn challenged by moral sanctions; by fear on the part of nations, or by
fear on the part of sovereigns,
in case they shall
and incurring its probable evils,
on the ground that by hypothesis and definition, there can be no law goverming of provoking general hostility, that
violate maxims generally received
and respected. Austin, therefore.concludes
sovereign States. Critics have argued that there can be no international law since 'positive.internationaLmorolity. onlyanalogous
there is no intemational legislature to make it, no international executive
to enforce internationallawisnoliruelaw but another English writer also
Bentham (1 789),
it, and no effective international judiciary to develop it or to resolve disputcs nbout thhe nules
olooks binding a clubor society.
internntional morality or
ethics,.international courtesy
it. International law has been said not to be 'real law' since it is commonly at international law as from nule of
as distinguished
(or convention in the
social sensc of the word, comity
disregarded, States obeyingit only when they wish to, wheñ it is in their interest to the true legal character of
law. Ilobbes and Pufendorf have also questioned
doso.
international law.
The jurisprudence of international law, however, has rejected the narrow inherent in the Austinian conception
is that he has analized law in
definitions and assumptions implied in these challenges. The sociology of The dificulty Austin's
his on most matured jurisprudence.
1le has based concept
international law has denied the allegations as to how nations bchave in regurd to perfect form. contracted and unbending.
Modorn historical
definition of law is narrow,
law by disclosing
law. the force of his general theory of
the jurisprudence has discounted
John Austin (1790-1859) must be regarded as
foremost among critics of
ofr that Austin has disregarded law in
various phases of its growth. Law is
not a cut and
international law. In the words of Austin, 'law properly so called are species
and the result of organic growth. It has been shown
dried system; it is an organism
commands. But, being a command, every properly so
law caled flows from a
deteminate source.... Whenever a command is expresscd or intimated, one party that in many communitics without a formal legislative
authority, a system of law
and that such law did not difTer in its binding
was in force and being observed,
signifies a wish that another shall do or forbear; and the latter is obnoxious to an truo legislative authority.'
Furthermore in
evil which the fommer intends to inflict in case the wish be disregarded... . lvcry operation from the law of any State with nules also. Austin's
sanction properly so called is an eventual evil annexed to a command." Bricfly uddition to legislation, law exists in the form of customary
inasmuch as it ignores custom altogcther.(During
sovereign, cnforceable and enforced concept of law is incomplete
speaking,Austin views law as command of the Austin's time, intemational law existod in the
from of customary rules and
international treaties were unknown and thecreforo, he treated
intqrnutional law as a
intemational legislation
rules only. In the present century, a great mass of
community in their utual relutions (Charles G. Fenwick, Inlernational laaw, 1971,
sct of moral treatics and conventions and the
Ihas come into cxistence as a result of law making
p. 31); Kclscn's vicw lics betwecn traditional
and contemporary views when he nentions
usunt proportion customary nules of international law has correspondinglyinternationat
of dininished.
thut 'internationul luw ix the name of a body of rules which uccording to the be called
definition regulute thec conduct of States in their intercoursc with one another' bul goes States which participate in the treaty making process may

on to udd that in the ultimte unulysis, ull laws including international luw ure mennt legislature' and the luw-making treaty may be termed as international
resulting
the
for individuuls--therefore, it would be wrong, in his opinion to Ruy that
inclivicduuls legislation. Even if there is no determinate sovereign legislative authority (in of
the nules
are not subjects of inlernational law, However, uccording to Kelsen, Stute luw upplies strict sense) in the international ficld, the procedure for formulating
on individuals dircctly whcrcus international law may apply on individunla through 'international legislation' by means of intemational conferences or through existing
the medium of Statc (l lana Kclwcn, Princlples of Iniernatlonal l.aw, p. 3); JcaRuo
has international organs is practically as aettled, ifnot as efficient, as any State legislative
to
also taken middle p0sitlon by mentloning that international luw is luw appliculble procedure."
internationul luw
Statcs in their mutual relatlons but he, in the next breath, adds that As regards second clement in the Austinian concept oflaw, i.e. duty, international
may ulso bc applicuble to
certnin interrelationships of Individuals themsclves, where the State. Austin is
law entails obligations for the States as it is binding
legal on
such interrelationships invoke matters of intcrnational concern (Philip C. Jessup, A controverted by Kelsen who observes:
Modern Law of Natlons, 1948, p. 17); Glahn terms international law as a body of
principles, customs, and rules that ore recognised as efTectively binding obligations by 6. John Austin, The Provlnce of Jurisprudence Determined, 1954, pp. 133, 201.
mutual relations (erhard
sovereign Stutes und other international persons in thcir 7. J.G. Sturke, Inirouductlon to Iniernational law, 1984, p. 18.
Von Glahn, Law Among Natlons, p. 3). 8. Ibid.
5. Louis Henkin, Richard C. Pugh, Oscar Schachter and Hans Smit, Internattonal Lan
9. Tbid.
Cases and Materlals, 1980, p. 10.
 LAW
NATURE OP INTERNATIONAL 17

16 INTERNATIONAL LAW o decidein cordane

the Court's function as, being
Court of Justice which states diaputes as are submitted to It."" Th Charter of the
thoso norms (intornational luw) uro crculod by custom, constituted by the uctual law.such
wlth luternational Members of tlve United
Nations to fulfil in good
behuvlour ofthe "Stutos', that is, ofthoso indivlduuls who oct us governments uccording the
Unltcd Nutione ulso obligates accordance with the Charter." In the
to natlonal lecyal ordera. 11hose norms uro Intorpreted us legal norms þinding the Stutes, assumed by them in
fuith the obligations the Holy
becuuse a baslc norm lu presupposed which eatublishes custom umong StatcH us u luw United States America,Canada,
of
lelsinki Declaration of 1 August 1975, their
Inter alla, to fulfil in good faith
creating fuct.... The preaupposcd busicnorimof intcrnationul law, which institulcs Soe and over 30 European
States pledyed,
custom constitucd by the States as u luw-crouting fouct, cxpreuscsu principlo thut is international law including those obligations arising from the
the busic presupposition of all customary law: the indivldual ought to behavo in such obligutions under law. The partícipating
and rules of internatíonal
gonerully rocognized principles with their logal oblígations under international
a manner un others usually behave (believing that they ought behavethat
to
wuy) Statos aluo undertook to
conform
their laws
applied to the mutual behaviour of State, that is, the behavlour of the individuals including the right to determine
qualiled by the natlonal legal orders as government organs... law in oxorcise of their sovereign rights,
and rogulations. United
law in United States of America,
The binding force of modern international law is not doubted in any quarte The binding force of intornational
is discussed in a separate chapter.
International law is binding in whatever from it may exist-conventional orcustomary) Kingdom and India
Austin's concept of law issanction and he
The real foundation of the authority of international law resides'ln' the fact that the The third cssential element of the
States making up the international society recognize it as binding upon them, and, law as
treats international 'positive international morality'. If international law is
sunction lies in 'conscience' or
moreover, as a system that tpso facto binds them as members of that society, positive international morality', its major
However, modorn international law has sanctions, A Member
irespective of their individual will" It is not consent, as such, that creates the compelling morality'.
or enforcement action has been
of the United Nations against which preventive
obligation, though it may be the ocohsion of it. Consent could not, in itself
create
be suspendod from the exercise of the rights and
tuken by the Security Council may
obligations unless there were already in existence a rule of law according to which recommendation of
consent had just that effect. In other words, it is because intermational law already privileges of membership by the Goneral Assembly upon the
Nations which has persistently
the Sccurity Council. A member of the United
"
makes consent a source of obligation that obligations can arise from consent. Thus, from the
there is a customary rule of international law and thhe consent of the States to a rule violated the principles contained in the Charter may be expelled
recommendation of the Security
makes that rule binding upon them. The important question here is with regurd to Organization by the General Assembly upon
the juridical foundation for this customary rule itsclf, and wlhat is it that makes thut Couneil"
nle binding. Kelsen explains that tho reason why a customary rule is binding is thut The United Nations cun perform 'pcucckeeping' and 'poucemaking' operations.
the
thero is an ontecedent and still more fundamental legal principle to the cffect that The sunetion of modern internatlonal law lies in the pcacemaking activities of
States have a duty to go on behaving as thoy have custonsarily behaved. According United Nutions. If the Security Council determines the existence of any threat to
to Lauterpacht, the antecedent principle that confers binding force on customary the peace, breach of tlhe peace, or act of aggression," it inay employ measurcs not
rules is one rccording to which the goneral will of the community must prevail and involving the use armed force to enforce Internallonal peace." Should the Security
there is a duty to conform to the will as expressed in customary rules of law The Council consider that nieasures not involving armed force would be inadequate or
issues of international law are always dealt with as legal by the foreign offices of have proved inadequate, it may use armed force by tuking such action by air, sca, or
the States. Si Frederick Pollock rightly.obaerves: land forccs as may be necessary to maintain or restore international peace and
Aecurity. The permanent members (The Republic of Chins, Prance, the Union of
finternationgl law were only a kind of moralitly, the framers of State papers concerning Soviet Sucialist Republics, the United Kingdom of Great Britain and Northern
foreign policy would throw all strength on moral argument. But us a matter of fact, Ireland, and the United States of America) have special priviloge in the voting
thia is not whut they do. They appeul not to the general feeling of moral righ1ness, but procedure of the Security Council inasmuch as the decisons of Security Council
to precedents, to treaties, and to opinlons ofspcialists. They ussume the existence
among statesmen and publicists of a serics of legal as distinguished from moral
on non-procedural matters
(substantive or important matters) shall be made by an
alirmative vote of nine members inclyding the concurring votes of the permanent
obligatlons in the affairs of nations.

The binding force of intemational law is explicit in the ^talutç of the Intenational
14. 7he Statule ofInternatlonal Court of Jutice, Article 18.
10. Kelsen, Pure Theory of Law, 1967, Pp. 215-17. 5. The Charter ofthe United Nations, Article 2, pura 2.
I. Pitzmaurice, The Foundations ofthe Authority of International Law und the Problem 16. 7he ( harler ofthe United Natlons, Article 5.
17. bid., Article 6.
of Enforcement', Modern Law Revlew, 19, 1956, pp. 8-9.
12. lbid.
18. bid., Arnicle 39.
13. Frederick Pollock, Oxford Lectures quoted in J.G. Sturke, Introduetlon to Internationmal 19. Ibid., Article 41.
Law, 1890, p. 18. 20. 1bid., Article 42.
 o INIHRNATIONAL LAw
16 NATURE Or iNTEPNATIONAL LA w 19

members.' "Therefore, Security Council gets paralyned ifa

permanent member casts The United Nationa Conventim
a
negative vote whenever a non-procedural matter is uppeur in the contentiuus proceedings of the Courn.
of the put to votc. Ilowever, dcciwinmm on the Law of the Sea of 1982 providcs for the creatiorm of International
Triunsl
Security Council on procedural matters shall be macde by aflirnutive
of nine
an vote for the Law Sea for adjudication of the law of the sea disputes There thail he
of the
memhers. Tho issue of enforcement of international law
hcing a established Scabed Dixputes Chamber International Tribural for the law of
of the
non-procedural issue, is decided by a non-procedural vote (a Mrmative vote of nine tes concerning activities in the International
members including the the Sea for adjudication of the di
concurring votes of permanent membern) in the Security
Council. The Security Council, Seubed Arca. The ratione personae jurisdiction of the Sesbed Disputes
Chamber
therefore, becomes cripplo and is unable to cnforce covers States, International Seabed Authority anel even multinatioral corporation
international peace by employing economic or armed
sanctions if a permanent cngugcd in the mining actívities,
nember casts a negative votc. In the
past, the Security Council failed to enforce There is, however, a political mechaniam for enforcing
of the
the judgement
international peace due to indiscriminate exercise of Veto (negntive vote) that if
by thec Internutional Court of Juxticc. The Chartcr of the United Nations provider
permanent members of the Security Council. The
paralysis of the the ohligations incumbent upon it uncler a
opened the gates for "Uniting for Peace' resolution which was Security Couneil nny party perform
to u case fails lo
recourse to the Security
adoptecl by the judgement rendered by the Court, the other party nay have
Int General Assembly on 3 November 1950. The
follows:
resolution provides, /nter nlia, as Council, which may, if it deems neccssary, make
recommendations or decide upon

nienures to be taken to give cffect to the judgement.

Thus, the Security Council,
St
the Court. The enforcement
If the Ia not under an obligation to enforce the judgement of
Security Council, because of lack of unanimity of the permanent memlbers, Council. To
fails to exerciec its of the Court's judgement depends upon the whims of the Security
r primary responsibility for the maintenance of the issue of
ot and security in any Caso where thero international
penco further add to the miscries, the decision of the Security Council on
appeare to be a threat to tho peace, brOach is subject
peace, or act or of the, enforcement of the judgement of Court is non-procedural and, therefore,
ot aggresslon,
with a view to making
the General Assembly shall consider tho matter
immediutely Veto.24 The Unitcd Nations Convention on the law of the Sea makes no provision
CC appropriate recommendations to membera for collective of the
measures, including in the casc of breach for enforcement of thc decisions of the International Tribunal for the Law
of the peace or nct of aggression, the use of with the
h
armed force, when necessary, to maintain
or restore internationul pcacc and sccurity."* Sea. There is, however, a solitary provision in the Convention dealing
* nforcement of the decisions of Scabcd Dispulcs Chamber of the International
The 'Uniting for Peace' resolution also provides for a Peace Observation and Tribunal for the Law of the Sea which rcads as follows:
th
Collective Measures Committee to work out in advance the organization for a prompt
resistance to aggression. The decisions of the Chamber shall be enforceublc in the tcrritories of the Statcs
th
(International law, therefore, has sanctions although these are very wepk in Purtics in the same manner as judgcments or ordcrs of the highest Court of the Stute
St
comparison to much more effective and stronger sanctions of national Party where the enforcement is sought,."

police force in a State suggests the bringing to bear of the overwhelminglaws.The

ta
force of is
th
the community against
comparatively feable individual law breaker. No such action
is possible in the international
The applicability of the above mentioned enforcement provision confined
to
the Scabed Disputes Chamber and docs not extend cven to its parent body, ie.
sphere, where there is no organized international
police force and the potential law-breakers are States, and the
preponderance of International Tribunal for the Law of the Sca.
force may even be on the law breaking side. Anternational judiciary is, therefore, very weak in comparison with State judic iary
The moderm international law has 'also Te national judiciaries are much more effective and have organized police fores
form ofan International Court of
created an international judiciary in tne toenforce compliance with the decisions of the national courtsUnlike International
Justice which is situated in the Peace Palace nt the
Hague. Only States may be parties in contentious cases before the Court. The ourt of Justice, the jurisdiction of the national courts is not dependent upon the
jurisdiction of the Court in contentious cases is based on the consent of the disputing wills of the disputing particd.
States/Unless the disputing States consent to the jurísdiction of the Court, it has no
jurisdiction to adjudicate
upon the dispute.)The Court may also give an advisory 2.3 CONCIUSION
opinion on legal question upon the request of the General Assembly or the
any
International law has deficiences, and limitations. Its violations arc more frequent
Security Council. Other organs of the United Nations and Specialized agencies, than the violations of many domecstic laws. Nevertheless, the deficiencies of
which may at any time be so authorised by the General
Assembly, may also request international law are not eritical, lnstead of saying that the cup of international law
advisory opinion of the Court on legal questions arising within the scope of their
activities. Thus, non State entities including individuals do not have locus standi to
21. The Charter 21. The Charter ofthe tUnited Natlonx, Article 94, para 2.
1
of the United Nations, Article 27, para 3.
22. Ibid., Article 27, para 2. 24. Kelsen, Law 1950, pp. 541, 543-44.
ofthetnited Natlons,
25. The United Nations Convention on the Law of the Sea, Annexure VI, Article 40.
 INTERNATIONAL LAW
SOURCES OF

international conduct of the

parties which
rules for the future universal internationallaw a
stipulating certain general or
of the character ofparticular, customaryintematianal
may partake
consentwhichgives to rise
without any fomal
the case may be; secondly,tacit conduct
rules ofinternational
certain
lawby Statles adhering to
declaration tothe effect. 38) recognizes the
3 International
The Statute of the
Court of Justice (Article

sources of intermational
law (treaty and custom)
in its four fold
submitted to. it by States Parties.
above mentioned docide disputes
cnumeration to guide
the Court to
follows:
of the Statute is as
Law The four fold enumcration
Sources of International conventions, whether general
international
or particular, establishing
rules

1.
the contesting States;
expressly recognised by practice accepted law;
as
as evidence of general
a
2. international custom, civilized naions;
law recognised by
3. the general principles of decision_ and the teachings
of

fuctors 4. subject the provisiong of

to Article 59, judicial as subsidiary
means

are oflenconfused withthatof'cAusey'or the most highly qualified publicists

of the various nations,
The sourceaof.internationallaw Oppenheimrenarks
the differences
of rules oflaw
intemationallaw, for the determination
which influencothe growthof upon the analogy
by drawing
of a spring or a well
whercsrom the
between the two conceptions the spot on the ground
is to be traced to the
The source of the spring knowledge that the source of 3.1 INTERNATIONAL CUSTOM
riscs nalurally. It is
conumon

stream of water wherestom the stream of Custom must not be confused with
as the spot on
the ground international law.
spring by which
we understand
with the cause for the
existence of the strcam
of
Gustom is older source of somethingmore than nerehabit or usage it
water gushes
cannot be equated on the ground as water
USagCustominTtslegal sense means one.There must be present
do not arise froma spot obligatory
water. The rules ofinternational law of community. Source.oflaw
is,
isausage that whofollow ittobe an
felt bythose is departed from, some sort
will
of evif connsequences
historical development if the usage
does, but from facts in the rules.of conduct.come.into a leoling the transgressor, in
technical language
therefore, thg name for an historical
fact outof whieh'custom' should be replaced probably, or at any rate ought to, fall on
not be very distinctly
the expression the exact nature of this need
writers suggest that use of there mu[t be 'sanction', though of.
existence Some of 'evidence' The
and less confusing concept 'evidence' lacks cnvisaged.International
custom emerges when clear and continuaushabit
a

by more comprchensible
however, notjustified
becuuse the word
under the acgis of the conviction that these actions
'evidence' for 'custom' is,
and would import
incomprehension and doing certain actions grows up other words, custom
in legal grandeur of
the term 'sources'
are, according tointernational law,
obligatory or right. In yet
received full legal attestation.Usage
confusion rather than certainty. inember States of ISan international habit.ofaction.that.has In
is the çommon consçnt the
of
custom begins where usag ends.'
The basis of the law nations sources.ofinternational represents twilight-stage.of.custom° Thus,
of
law arethefacts inthe forçe of law'
the family of nations. Therefore, the
community whichcommon
by consent ofIhe nutshell, custom issuch a usage'as has the beenaslow process, ut it is possible
ofthe world member-States of
he growtlh of intemational customhas
historical development The common
conscnt of tho
and to win acceptence as law when the
nçed
manifest. international law may be cven today for new custom to devslop
family ofnationsis made which gíves rise to the
sources of
times, international community has
witnesscd
the family of nations or tacit orimplied as can is sufficlently clear and urgent.(At the Geneva Conventions
either express if given directlyby an
expressdeclaration,
internátional law are, therefore,
To illustrate, in the law of the sea,
The sourcos of repeal of treaty by custom.
be inferred from the
conduct ofStates. concluding treaties
consent which arises by States
two-fold, namely; first, express 3. lbid, p. 25.
Court of Justice, Article 38, para 1,
Article 38, para 2,
4. The Statulte ofInternatlonal
shall not prejudice the power
of the Court to decide a case ex

Law, Vol. I, pp. 24-25. evidence of reads us "thls provlsion

1. L. Oppenheim, International in he obsorves: the the partics agree thereto."
forward this support of his thesis, uequo et bono, if Intemational Confcrence
2. P.C. Corbett puts of States to its rules. As consent United States Representattve,
documents proving the S. Report of the Robert H. Jackaon,
consent
intemational law are the evidence consent of State Publication, 3080 (1949), pp.
those documents that on Military Trials, London,
1945, Department
is the essential basis
of international luw it is intemationul law. The
Consent of No. 311, 10 June 1955,
1076.
pp,1071,
in an inquiry about
sources of
42,41-52; XII Bulletin, Department of State,
that one must look to Intornatlonal Law, 6, International Law, p. 40.
of the law of Nations,
ritish Yeurbook of 6. J.O. Sturke, Intoductlon to
Stutes and the Sources Law: Are Judicial
Decisions
'Other Sources internutional
of Internutional Luw?", Indlan.Journal of 7. Ibid.
1925, p. 20; M.K. Nawaz, of
Court of Justice u Source 8. Ibid., p., 41.
of the International
526-27.
Internatlional Law, 19, 1979, pp.
 25
sOURCES OFINTERNATIONAL LAW
24INTERNATIONALLAW General Awembly may discuss any
und 24 ofthe Charter. Under Article l11, the
maintenance of intenational peace
and security and mayY
the
custom which grew duringl9703 nd was
qucstions relating to
Article 24 confers on
1958were repealed by intemational
Nations Convention on the Law of
the Sea in 1982 make recommendations with regard to any such questions.
international
for the maintenance of
finally codified into United the Security Council's primary responsibility the Charter
the expression "primary responsibility'
peace and security but by using rests with the
General
or residual, responsibility
3.1.1 The Existence of Internatlonal
Custom-Tests
clearly inmplies that a secondary, constitution ofan international institution may
that the Court should Assembly." This illustrates how the of new
Article 38 of the Statute of InternationalCourt of Justicestates be altered in practice, though not formally amended,
to meet the exigencies
practice aCC¢pted as aW
apply 'intenational custom, evidence of a general existence of international
as
situations. constitute State practice
The Statute,theretore,CONains two requirements for the procecdings of
international organizations may

custom, namely: first, thereshould beAAuficiently

uniformpractice;and secondly, The
the statements made by, and the actions ofgovermmental
representatives
this regard, Kopelman's following inasmuch as of State conduct. In the
the belief that such a practice is obligatory. In within an organizatlon
contribute towards the corpus
'as manifested
observation is worthy ol note: Ammouri, referring to State practice
Barcelona Traction case, Judge that it would not be
organizations and conferences', observes
that intermationul within international
the subject is limited to the
statement
which emerge thereftom, or better,
almost all the doctrine on to the resolutions
acts by States repeated
with the conscious possible to deny, with regard the name of States, that these
amount
Custom results from similar and repeated
are acting in conformity with
Iaw, Thus there would with regard to the votes expressed
therein in
State
conviction of the partiesthat they fomation of custom." A general trend of
to the
be two factors in the formation of custom: to precedents contributing well be discemible from the
view of the law may
ofsimilaracts by States,and(2)a opinion in favour of u particular
(1)amaterial fact consisting oftherepetltionjurls slvenecessltallsthsfccling.on debates in the General Assembly
or one of its
Committees"

psychological element usually called the opino

of the States that in acting as they
do they are fulilling a legal obligation"
thepart
of 3.1.2 Judiclal Pronouncements
State practice for the purpose of creatinga customary rule
What amounts to the 2 August 1926, a collision
intemationallaw, and theextentto whichonitwould
also be necessary establishSiate
to
vTurkev)"on
(i) Inthe case ofthie S.S.Lotus'(FranceFrench steamer Lolux proceeding
to
clement, will depend the Circumstances ofthe case. occurred on the high seas
betwccn the mail
psychological" and The Boz Kourt was cut into
of the organs
covers every activityincludes constantinople, and the Turkish
Collier Boz Kourt.
practice, here, means practiceofStates and State also the actions board perished. When the
contcxt. practice Turkish nationals who were on
QtticialaotaSlatein an international Iwo, sank, and cight were instinuted in the
Turkish
of the permanent membera
andreactions ofinternational institutions, The attitude Lotus urrived in Turkish waters, criminal proceedings
Nations to the application of Article 27 (3) of officer (Lieutenant Demons) of the watch on duty on the
of the United courts against the French
ofthe Security Council Security.Council.onnan-procedural collision. TheFrench government intervened diplomatically
the UN Charter(requiringthat decisions ofihe Lotus at the time of the
submitted to the Permanent
a qualified majority including the concurring votex Un behalf ofthe oflicçr,
and the dispute was eventually
matter can onlybe adopted byhas led to the acceptance.of practice
a whoreby thho signed at Geneva on 12
October
members) Court of International Justice by a apecial agreement The French
otthepecmancnt of members does not prevent
the Securlty Councl the French and Turkish Republics.
the permanent 1926 between the Qovenment of
abstention of one 27,"
otlherwise satisfles the provisions of Article intemationallaw granting
from adopting a resolution
which
International Court of government contended thattherewasacustomaryrule of fnying. The
of this development, the State the flag of which avesselis
In accepting the legal effectiyengss
the
by Council itself, has been generally exclusive criminaliurisdiction to theJustice rejected the contention of the French
Justice observed thar+t has beenfollowed the organization, Permnenr¬ourt uf ntermotional
it evidencedagëneralpractice of pointing out that the Statc laws were notconsisient,
decisions of
accepted by all members, and adequately its tasks in the govegnment by
could be deducted from treaties,
and
Council has not been abletofülil
Because the Security
in the manner intended by
the framers of State Courts conflicted, no uniform trend
The Court explained that even if the facts
and security
field of international peace members,the General publicists weredivided in thcir vicW. showthat States-had atenjn
disagreements among the pemanent alleged by France were truc, they would mcrely
the Charter on account of of United Nations
role in the creation, or control
instituting criminal_proceedings, and nat thatthey
Assembly has assumed a vital
claimed by reference to Articles
11 practice, abstained from In the opinion of the Court, it
This powerithas obliged to do so.
peace-keeping operations." recognised themselves as being
Iritlsh Yearhowk

9. Kopelman, 'Custom
us a Means of the Creation of International Law', 14. Ibid., p. 21.
1937, p. 129. 303.
of Internatlonal Law, 18, 15. Harcelona Tractlon case, /CJ Rep., 1970, p.
Internullonal Law, p. 18.
10. D.W. Orelg, 16. Supra note I0, p. 23.
Ser. A. No. 10.
I1. Ibid., p. 21 /CJ Rep., 1971, p. 23. 17. S.S. Lotus (France Turkey), PCIJ,
v.
12. Namibia (S.E. Africa),
Advlsory Opnion, 1971,
21.
13. Supra note 10, p.
 SOURCES oF INTERNATIONAL. I.AW 27
26INTERNATIONAI.LAW
circunstancos, the boundary is the median lino, overy point ofwhich 1sequidistant
would be possible to speak of an internationil custon1 only if such ubstention of the
fronthe ngHrest pointa of the basclinca ftom whidh lhe breudth of the territorial sea
State were basod on thoir boing conscious of having a duty to abutain.
The Court ol cuch Sato is measured..
CRerefore, arriyed to the conclusion that there was no rule of internatioual law in
regard tocollisionçasealo theefTecLtmtCciminnlproceedingawerecxclusively Dennmark und Netherlands contended that
delimitotion on cquidistaice-special
within the iursdiclionand,iherefore,each Stutecouldexercisejurislictisninrespect circumstances basis was notin the nature of a merely conventional obhgation but
ofthe incidem. involveda nule ofcustomary internationallaw bindingon the FederalRepublicof
The Lotus case demonstrates that the psychological element--the feeling on the rermayncir contentionwas,rather,thatralthough prior to the First United Nations
part of the States thay in acting us theyhad acted they had beon fulilling alegal Confercnce on the Law of the Sea, Continental Shelflaw was only inthe formalive
ODgation though essentialto the crealion.afanewule ofinternationnllay,will
only become crucial in establishing the existence of u particular rule when praclice
sluge,and State practice lacked uniformity, yet the process of the definition and
Consolidalion ol the emerging customary law took place through the work ol ne
relied upon does not itself point unequivocally to the existence of such a rule." In Jniernatlonal Law Commission, the reaction of governments to that work and the
theLotuscase,cvenifStates hadrefrainedfrom exercising jurisdictionovercrimes proceedings of the Geneva Conference; and this cmerging customary law became
commutted on thie high seas in deference to the flag Stute, the French government ervstallized intheadoption of the ContinentalShelfConventionbytheFirstUnitcd
Was unable to provethat States had acted in thismanner from a sense of legal Nations Confcrence. The International Court of Justice rejected this contention by
obligation. poinling out thaArticle 6bf the Convention was proposed by the International
The judgement of the Lotus case has been criticized by several leading Law Commission with considerable hesitation, somewhat on an experimental basis.
international lawyers insofar as it implies that intemational law permits all it docs
not forbid.
Furthermore, Article 6, the Court pointed out was of those in respect of which,
underthe reservationsarticle ofthe Convention(Article.12), reservations could be
(i).North Sea Cantinental Shllcasçs" involve delimitation ofthe resneçtive nade by any Stateonsigning,ratifyingoracceding to the Convention andtherefore
continental Thelves oftheFederal Republicof Germunyvs-d-vis Denmark; and itwas nol ACUStomarc meounternatíonal law at the time ofits tormulation.
Denmark and Netherlands further argued that even if there was at the time of the
also
Federal Republic of Germany vis-d-vis Netherlands,Denmarkand Netherlands
contended that the boundaries between thoirrespective areas of the continental
Geneva Convention no rule of customary international law in favour of the
cquidistance-special circumstances principle, and no such nule was crystallized in
shelf in the North Sea, on the one hand, and the arcas clained by the Federal
Article 6 of the Convention, nevertheless such a rule came into being since the
Republic of Germany on the other, should bo delimited by the application of tho
Mo
principle ofQuidistancspecial circumstances gel forth in Article bonie Genevau Convention, partly because of its own impact, partly on thebasis of subsequent
Conyention of 1958 on Continental Shelf, which by 1 January 1969, had becn State practiçe. In the course ofthe proceedingrbefore the Court, fifteen cases were
ratified or acceded to by 39 Statos, but to wlich Gernuny was not u purty. Article Gited, occuring mostly since the signature of the 1958 Geneva Convention, in
6, Inter alia, reuls us follows: which continental shelf boundaries were delimited according to the equidistance
principle in the majority of the cascs by agreement and in a few others unilaterally.
1. Where the same continental shelf is
udjacent to the territorics of two or more States TheIntemational.CaurtafIustice.rejectedtheargamentof Denmark and Netherlands
whose cousts ure opposite to cuch other, the
bounlary of the continentul shelf
appertaining to such States shull be determined by ugrcement bctwecn them. In the
byobservingthat the numberofratifications and accessions af the Conyention
absence of ugreciment, and unless another sccured,anerit was passed in 1958, wero hardly guficient to transform its rules
boundury line isjustlied by special into customary internationallaw, The Court further observed that the cases cited
18. Supra note 10, p. 25. before it constituted more than a very small proportion or those potentially caling
19. Ibid., pp. 25, 26. for delimitation in the world as a whole and therefore it would not be necessary to
20. Sir Horsch Lautorpacht (later Judge Laulerpacht) suid: ovaluate them separately.
'sovereignty cannot be either
the basis or the source of the law of nations. In
international law this reliance upon The International Court of Justice heldthat the practice of States in respect of
freedomund pendence substantive source of law is the more dungerous as,
asu
eguidistance-pecialcircumatancesprineiplehadnotbeensufficiently uniform,but
because of roasons poculiar to international law, the number of
freedom of action is limited and their ascertainment is dilicult. Aexplicit
rules restricting evenifit had been, therewasandbsenceorthepaychologicalelement requiredfor
combination therefore the creation ofa new rule. The Court obperved:
ofa rigid thecory of the formal
completeness of international law with an emphasis
upon the sovereignty of States as a law-creating
inimical to the purposes of law', H. principle may easily produce results The essential point in this connection and it soems necessary to stress it is that
even
Lauterpacht, The Function of Law in the ifthese instances of action by non-parties to the convention were much more numerous
Internatlonal Community, 1933, p. 96.
21. North Scu than they in fact are, they would not, even in the aggregate, sufice in themselves to
Continental Shelf cascs (Federal Republic
Republic of Germany v the
of Gyfmany w Denmark, Federal constitute the oplno juris; for in order to achieve this result, two conditions must be
Netherlands), ICJ Rep., 1969,p_4 ulflled. Not only must the acts concerned amount to a settled practice, but they
 40
INIERNATIONAL LAW quilaTancu guruu sOURCHS OF INTERNATIONAL. LAW 29
Aaru
must also be such, or be carriecd out In such a way, as to be evldence of n bellef thut the port of those who possess such weapona. On the otherhand,some States a1gr
thispractice is rendered obligatory by the exlstence ofa rule of low requlring l. The
need for such a belief, i.e. the exintencc ofa the legality ofthethrant oryise of nuclear.wcapons.in carlain sirgum tances. They
notion of
aubjective elenment, ie impliclt in the very invokeTlhiedoctrino and practice of deterrence in support of their argument. They
the optno jurls slve necesitatls. The States concerned must therelore feel
that recall that they huve always, in concert with certain other States, reserved the right
they conforning to what amounta to a legal obligation. The frequcncy, or
are
even habltual charactor of the acts is not in to use those weaponn In the cxercise of the right to solf-defence against an armed
acts, c.g. in the Neld of ceremonial and
itvelfenough. There ere many internallonal uttnck threatening their vital securty interests, In their view, if nuclear weapons
protocol, which aro performod nlmost havenot beenusedsince 1945, it is not on account of an existing or nascent custom
invariably, but which are motivuted only by consilderatione of courteay, convenlence
or tradition, and not any scnae of legal duly. buit merely becausç cirgumslancea lKAt MIghtJuNheTE. UT.AIVESOrunatetenot
tisen.
Tnternational Court of Justico held that the Membera of the international
Roferring to the Lotus case, the Court held that in the case before tho Court, the
position was simply that in certain cases-not a great number-the States concerncd conmunity were profoundly divided on the matter of whether non-recourse to
agreed to draw or did draw the boundaries concermed according to principle of nuclear weapons over the past finy ycars constituted cxpression of an opino
the
cquidistance. There was no evidencs.in the.opinion of the Court, that they so.agted juris. Under these circumstances,theCourtdidnotconsideritsell.able.io.find tha
because they felt legally compelled tg draw
them in that way by reason of a ruloof there was Buch an opino Juris. Aceordingly, thhe Court held that no rule of customary
customnry TOW OBININg them to do s0 especially consldering that they mignt have international lawexinted which prohibited theyeeof.nucdear weapons
been motivated by other obvious fSnctors. Th Worth Sea Continental Shelf caes, tho dissenting Judge Manfted Lachs
presumed opino furls rom uniformitiçs, of practice in regard to matters normally
trcatedasinvolving legolrigItA andobligalona. Theview of Judge Lachs is more
i) n Libyan Arab Jamahiriva and Malta, Internaiional Court of Justice was and the
faced with disptë concerning delimtationdf continental shelf between Libya und renlisticinsofar ns it recognized that the
actions ot States responses (or
silence) of other States which constituted general practice might begin without
Malta. Malta was a party to the 1958
convention on the continental shelr while consciousness of legal duty or right.
Libya was not party to the 1958 convention
a on
continental shelf. Libya contended Some international lawyers hold that oplna sucislsnotacondition preccdent for
the application of equidistance method containèd in Article 6 of the Gieneva
the existence of custom. Speaking on the way, in which customary intemational
Convention of 1958 on continental shelf was not obligatory and favoured the
lawchanges,AKëhürstpoints out that the practice of States need not be accompanied
application ofequitable principles for delimitation. Malta argued for the dlelimitation
fo be effected by equidistance line in order to achieve are equitable solution. by a genuine belief that it is alreacdy law" In his opinion, it is sufmeient of the
existence of internatlonal custom ifStates assert that something is already a ruleof
International Court of Justice held that intemational customary law must be international law and the other States acquieace." Akehurst further remarks (rightly
looked for primarily in the actual practice of the states and opino Jurts ofStates
The court rejected the Maltese contention on the applicability of the equidistance so) that time is less important now than it used to be because improvementi
principle and observed that the States practice clearly revealed that the equidistance communications enable the action and reaction of States to be known all over the
ule was not a customary nule of intemational law. world more quickly than in the past." Kunz goes to the extent of pointing out the
fallacy inherent in the notion of opino juris inasmuch as opino juris requires thata
(iv) Ina case concerming Advisory Opinion oftheIntemational.CourtofJusticeon State should feel itself bound by the customary nule at the time of its formation,
the Legality of the Threat or Use of Nuclear Weapons Intermational Court of when it is relly not bound, as it is mercly usage, till the conviction converts it into
ustice wascontronte withtheankotaxmunatonotOustomiryTnterndtonaTtaw custom Thus, a rule becomes customary nule of internationäl law ifa State or
to determine whether aprohibition.of the threat oruse ofnuclear weapons as such group of States assert it and such assertion secures acquiescence of other States.
In sum, the general practice of Statea should be recognized as prima sacie
fi6WSiom intermationel.customarz. law Intemational Cout"orJüstice aMimed evidencethat itis
and approved
its in the carlier cases and held
judgements thatinternationalcustomary acceptca.g9.0w.Suh evidencemay,of sowrsc.be.cogtroverted
evenon the test of practice itaelf, ifit ohows much uncertainty and contradiction."
law must belooked for primarilýin theactual States practice and theopinojuris of
*** ** ** ****
States Itmayalso beontroverted on the test of øpino juris with rogard to the States in
****

States which hold the view that. thause.of nuclear.weapons is illegal have question or the parties to the case.
endeavouredtodemonstrate the existence.of customary rule prohibiting such usc. 22. Michael Akehurat, 'Custom as a Source of Intermational Law', British Yearhook of
They relertoa consistent practice ofnon-utilization of nuclearweapons by Slates nternatlonal Law, 56,1974-75;, Indlan JournalofInternational Law, 19, 1979, p. S15.
since 1945 and they would see inthatpracticethe expresston ofanopinoJurikr on 23. Ibid.
24. Ibid., p. 16.
21(). Libya Arab Jamahiriy/Malta, 1985, ICJReports 29. 25. Kunz, The Nature ofCustomary International Law',Amerlcan Journal ofInternational
210). Materials
Advisory opinion of Legality of Nuclear Weapons, 1996, Internattonal Legal
809.
L.aw, 47, 1953, p. 667.
26. The Asylum case, ICJ Rep., 1950. p. 277.
 soURCES OF INTERNATIONAL LAW31
30 INTERNATIONAL LAW
on Aniericun
international law. While
addition
of the district Statos and in
(v) The Paquete Habana" case comprises of two uppeals from decrecs Court of Justice observed:
latin-American
anwng International
contention,
cour ol te Umted States for the Southern District of Florida condemning two to Colombia's
reacting
fishing vessels and their cargoes as prize of war. Each vessel was a fishing smack, has inully invoked
'American intcmutional
law in
of which have already been
unning in and out of Havana and regularly engagcul in fishing on the coust The CColombiun Government
rules arising from agreunients
was owned by u Spanish subject to Cuban to the custom peculiar to
Cuba; sailed under the Spanish flag; general'. In uddition regionul or locul
relied on on alleged kind musl prove that
birh, living in the City of Havana; was commanded by u subject of Spain, also conmilered, it hus
which relies on cuslom
ofthis
on the other
the Iutin-Americun States. The party
residing in Havana. Her cargo consisted of fresh fish, caught by hor crew from cstublished in such a n u n n e r thut it
hus become binding
invoked by it is in
were caught, and kept and sold alive. Until stopped by the thiw custom is thut the rule
sea, put on board as they Colomblun Government
must prove and
blockading squadrpn, she had no knowledge of the cxistence of the war
or of uny P'urty. 1he
and uniforim usage pructived
by the Stutes in qucstion,
nccordance with constant the Stule granting usylum
blockade. She had no arms or ammunition on bourd, and made no attempt to run
to
of a right appertoining Article 38 of the
thut this usuge is the cxpression 1his follows from
the blockadc after she knew of its existence, nor did it olfer any resistance at the undd u duty incumbent on
the territorial State. os cvidence of general
internutionul custom
time of the capture. Slutute of the Court,
which refers to
smacks
The issue before the United States Suprenme Court was whether the fishing pructicc accepted as law,
were subject to capture by the armed vessels of
the United States cluring the recent cases in which
number of particular
war with Spain. Justice Gray who delivered the judgement
observed: to the larye
The Colombia also referred But Colombia failed to show
in fact granted and respectod. or-if in
diplomutic asylum was was invokcd
International law is part of our law, and must be ascertained und administcred by
the ofunilatoral and definitive qualification
that the alleged rule from conventional stipulations,
us questions of right depending
courts of justice of uppropriate jurisdiction as often fact invoked-uhat it was, apurt
some cases it was in to them and respected
determinution. For this purpose, where there is nur as a right appertaining
upon it ere duly presented for their exercised by the States granting asylum for reasons off
treaty and no controlling cxecutive legislutive
or acl or judiciul decision, resort must incumbent on them and not merely
by the territorial States as a duty as the facts brought
be had to the customs and usages of civilized nutions, and, us cvidence of these,
to contention
Court rejected Colombian
labour, rescurch, and cxpericnce political cxpediency. The with regard to the
the works ofjurisls und comnientutors who by years ofwith the subjects of which they before it disclosed uncertainty,
contradiction and fluctuation
the
have made themselves peculiurly well acquaintcd The Colombian Govcrnment failed to prove
of Cxercise of diplomatic asylum.
"treat. Such works urc resorted to by judiciul tribunuls, not for the speculations to the Court, even ifit could be supposcd
concerning what the law ought to be, but for trustworthy cvidence
of existence of the alleged custom. According
their authors States only, it could not
between certain Latin American
.what the law reully is. that such a custom existed its attitude adhered to it, had, on
be invoked against Peru which,
far from having by Conventions
from ratifying the Montevideo
yiThe Court examined Slate laws and practices, treatics, writings of publicists the contrary, repudiated it by refraining rule concerning the qualification
ofthe above. the first to includo a
evidencing usage, and decisions of courts. Afler detuiled investigation of 1933 and 1939, which were
thentioned the Court held that thesc
materials, uniformly proved the
materials of the offence in matters of diplomatic
asylum.
oxistence ofa valid customary nule gilving immunity to small fishing vessels, honestly
Indian Tertitories (Merits).
pursuing their calling, from belligerent capture in time of war.
(vii)In the case conceming Right of Passage over India to Intemational Court
Portugal filed
an referring its dispute with
application that
the Statute. In its application, Portugal alleged
(vi) Asyluml caso copccons the instinution of dinlomatic usylum in Latin America. ofJustice under Article 36(2)
of
claimed by Portugal through
In 1949,T Peruvian poltical leader, Victor Haya de la TorTe was given asylum in India was unlawfully obstructing the right of passage furtherance of Indian
it was alleged, was in
the Colombian Embassy in Lima, Peru. The Colombian Ambassador requcsted the the Indian peninsula. The Indian action, and bad made it impossible
for
on the ground terrltories in India,
govermment of Peru to allow Haya de la Torte to leave the country esforts to annex the Portuguese
in the affected areas. Six preliminary
that the Colomblan govemment qualified him as a political rcfugec. Peru refused Portugal to exercise her rights
of sovereignty
were overruled.
to accept the right of Colombla to deline unilaterally the nature of Haya de
la the jurisdiction of the Court
objections raised by India challenging between Portugal and
Tore's ofence. After diplomatic correspondence, the case was referred to the Puneconcludedin 1779
The Courtexaminedthetreaty ofdecrees rigisAThat
International Court of Justice. In its submission, Colombia claimed the right to Maratha Ruler and subsequent ofthe later that Portuguese
the the enclaves with respect to which right
a

qualify (i.. characterize) the nature of the ofNence by unilatoral decision that it time did not amountto sovereignty over
Court then attracted its
would be binding on Peru. It based this claim on cerlain international agreements to 'revenue grant'. The
of passage was claimed but only a in India.
the Portuguese presence
allention to tho subsequent history 9f
US
27. The Paquete Habana, Supreme Court of the United Stules 1900; 175 677, 20 S.C.
Phase (Portugal v
290, 44 L. Ed. 320. over Indian Territories-Merits
29. Cuse concerning Right of Passage
28. Asylum case, Supra nole 26.
India), ICJ Rep., 1960, p. 6.

.Jes OI 1aW w w INOuCca V *-

 INTERNATIONAL LAW 33
SOURCESOF
32 INTERNATIONAL LAW States in the second group
have always dissented
States the second group, and ifthe is bound
changed with the
in
States in
the irst group, then neither group
that the situation from the custom practised by
the
Court of Justice nóteed one is prepared to
admit
The International in place of Manthas. of the other group. The only solution, unless
of that part of the country full by the custom which international courts
and tribunals
advent of the British as sovereign and exercising in the law (something
Portuguese in occupation of the villages that there are gaps to a time when a nule accepted
The British found the
British is to go back in history
over them. In
other words, the have never been willing to do),
administrative authority and continue to apply
that rule This approach may
and exclusive situation remained did exist,
of Portugal over the
enclaves. The by both groups Statesof an outdated rule
which neither group of
conclusion that involve applying
recognized the sovereignty came to the seem artificial since it may
and its results are likely
to be
British period. The Court uniform intra group relations,
the same during the post constant and States applies in its moderm
there existed a intermational law is veiled in obscurity,
areas of
the British and post British periods, Thus, according to
uncertain, since the history
of many
than any other solution
during between Daman and its
enclaves.
of artinciality and uncertainty
of allowing passage Indian teritory in respect but it is probably less productive most difficult problems
in intemational
practice over
the
of
had, in 1954, a right ofpassage to what is one
for which might be suggested
the Court, Portuguese in general, to the
extent necessary
civil officials and goods enclaves and subject
to the law
of private persons,
the Portuguese
sovereignty over however, is that if there is
the exercise of its realistic. The correct view,
control of India. the position Akchurst's approach is not It would be wrong to
regulation and and arms and ammunition, there is no general custom.
forces, armed police nule common to both groups,
As regards armed favour of Portugal involving
no
passage in outdated nule as Akehurst
did.
The Court held that no right of armed forces, apply an
was different. established in respect of
acorelative obligation
of India has been
ammunition.
and
amed police and a m s
had in 1954 a right
of passage over intervening 3.2 TREATIES
It
Having found that Portugal and the enclaves in respect of private persons, of the modes to express the agreement of States
between Daman An intemational treaty is one
Indian territory. International Court of
Justice nevertheles
creates new noms of
intematiÓAAT Mw)The
concretizes, develops, modifies
or
in general, the control on the nañure
civil officials and goods its of regulation and fornation of intemational law depends
cffect of a reatý in leading to
in exercise of power
concluded that India had
lewfully, because of tension into following categories:
all in July 1954
passage Treaties may be classified
night, suspended of the trcaty concerned.
of the Pornuguese the enclaves.
of Portuguese rule in down rules of universal or general
that internationallaw recognizes the
created by the
overthrow
1. 'Law-making_tteaties'
which lay
casesshow
Anvdun and Rightof Pasagelocal cystom The judicial
have
pronouncements application; and
between two or only a few States,
or derogates for example, treaty a
or regional custom which
existenceofaspeciacustom

custom 2. Treaty-contracts' States exclusively"

clear that lgcal it. It matter conceming these
made it abundantly
lawbesomes binding only on States that Support dealing with a special
general customary
customary ruetorcapitliS
from to bëve countries. In other words,
mentionthatitis possiðlesocialist
would beneresngto nules for a 3.2.1 1.aw-Making Treaties
contrary customary unable to accept
countriesand
when they are
have special nule established among a is used in regard to treaties which have a large
different major groups may which has been The tenn 'law-making' treaties
nule. Jessup suggested
that a custom
that group.3
Akehurst
general noms Brierly defines 'law-making'treaties
common

of States is binding on
all States in number of parties and create

well defined group

asthose CoCtudedbyitarge number oT States for the purpose ofeitherdeclaring
observed: of what the lwis on a particular subject, or laying down a
another rule theirunderstanding He treats
intemational institution"
community and
gencrplnule for futyre conducl cfeating
some
international
half of the be settled 'Law making'
applies among
one can lsgislation
reaties as substinute Joiniaraaiaanlwatemaf
nule between States in the
first group
Ifone the other half, disputes second group can
be such
universal nules, e.g. United Nations
applies among between States in the trcatics may be of kinds; (a) enunciating
two
first rule and disputes than trying to
applying the more atisfactory nules.
by this is obviously
the second nule; when Charter, and (b) laying down general creates neither
by applying The difficulty arises to it and, therefore,
In principle, a treaty binds the States parties
settled
c o m m o n to
States in both groups. If
second group.
and a State in the
custom
find a general
State in the first group the
by
dispute between
a
there is a from the custom practised
first group have always dissented
the States in the
Rep, 1970, pp. 273-74, 32 Akchurst, Supra note 22
the Baroelona
Traction case, IC G Starke, Intmduction to International ILaw, pp.
40-41.
In his dissenting opinion
in
considered
whether there w a s a 33 Source of International Law', Indian
Journal of
30. that the Court should have locus standi under 34. Surya P. Sharma, Trcaties as a
277, Judge Gros suggested shareholders
States of the
States giving International Law, 19,1979, pp. 500, 503.
special c u s t o m in capitalist
of the particular
case.
Transnational l.aw,
35 Bricrly, Law of Nations, p. S8.
Colombia Journal of
circumstances
the Law',
3. Jessup,
"Non-Universal
International
36. Ibid
12, 1973. pp 415-29.
 sOURCES OF INTERNATIONAL LAw.
34 INTeRNATIONAL LAW 35

cwstomary rules" According toanother view,customiscapable of annulling treaty

obligations nor for third States without their consent," As a malter of fact,
rights
non-parties are bound by a treaty if by thelr conduct, they distinctly indicate un rules JusttolheBarmecxlent asa lreaty cancels outacustomi. "T fact, theta
Viowrepresents tho tnuth bocause in principle, it pO5Sibleto ¢hangethe customary
intention to accept the treaty. In Norlh Sea Continental Shelf cases, Internationul
norm by means olatreaty and atreaty nom bymeans ofacugjom. Contemporarily,
Court of Justice held that Article 6 of the Geneva Convention on Continental Shelr
of 1958 laying down cquidistange rulfordelimitatioof coñtinental shelves hadd lunces ortreatieo moduinr ciamary nomaof jyernational,law are on the
increase,cspecially in the currentcontoxt of the broad scope of thowork relating to
not becn subsequently acépted by the Pederal Republic of Oernany ( a non-party)
thecodification ofinternationallaw)However, there are_arcas where custom has
in the neces8ary manisest manner and therefore did not bind it.
Article 2, paragraph 6 of the UN Charter is an exception to the above-nentioned repealedreaty. Fprexample, law of the sca has witnessed repeal of four Geneva
Conventions of 1958 by the custom that emerged in the late 1960s and 1970sand
principle and states that the United Nations Organizatlon 'shall ensure that the which was finally codinled into the Unlted Nations Convention on the Law of the
States wlhich are not Members of the United Nations act in accordance with the
Seu in 1982.
principles of the Charter so far as may be necessary for the maintenance of Tlhe dorrect vicwis thatreaty, ad cusloun arc dilereuu forma of one essentiul
internalional peace and security.' ln its advisory opinion, International Court of
element, i.e. gGSnCnLol Aubiecls.of international luw" Therefore, these háve
Justice has confirmed this obligatlon,"
However, according 1o the
Vienna
Convention on the Law of Treatios, Third Stotes are bound by the Treaty only if Its Tdentieol legalforce and aro mutuallyreinforcing, These do not oppose cach other
bul interact und supplement cach ouhor,
provisions, become, in the course of tUme, rules of custormary law" The Charter of
ulso if it
the United Nations, being a univeral treaty, binds non parties
necessary in the interests of international peace and security.
become
3.4 GENERAL PRINCIPLES OF LAW

3,2.2 Treaty Contracts 3.4.1 Meaning

Treaty contracla aro not directly a source of international law. These may, howeve, The'yeneral principlcs of law recoynized by civillzecd nations' comprlae the third
onstitute particular law for the parties and, therefore, bind them. "Treaty contraclw eutoxoryorules which tho Tntornalionul Court of Justico must apply in accordance
foll within the scope of the term 'particular' conventions in Article 38, purugraph I with Articl3Bbf iu Statute. The phraso "gonesul princlples of law recognized by
(a) of the Statute of Intenational Court of Justice. Nevertlhele, trculy contraciw civilizod nationa" meanaLprinclplos so Koneral ás to apply within all
that
systenu of law
may lead to the formation of rules of international law through the operation of the have achleved acomparable iata of dovelopment"ThIT what tho reference
to 'clvilized natlona implies. The
principle governing the development of customary rules, prlnclples wlhlch come in question are to be
A scrics or a recurrence oftreatien laylng down a similar rule muy produceu louked for in municipal law
principle of customary international law" This function Ireatics shure with, for The use of analogies drawn from municipal legul systems to develop or
Cxample, diplomatic acts, State laws, Stuto judiciul declsions, and the practice of
international prgans." II may even happen thot treaty origlnally concluded between 43. 1hose who attrlbute
a limited number of Stules gets generalised by subscquent independent
prlmacy to treuty Include Sovlet writers. I.l. Lukuuhuk, 'Source of
acceptance Prewent Duy Internatlonal Law', publlshed In N.V, Zkhurova,
Contemporary
A trealy is, thereforo, of considerablo evidentiary vulue as to the existence ofa rule lternational Law, pp. 123-24; Intarnatlonul Thvuty ax a Source of
which has crystalllzed Into law by an independent proces of development." Internatlonal Law,
Surpa nole 34, pp. 496-99; R.3, Pathuk, Thu ieneral Theory of the Sources uf
Contamporary Internatlonal Law, Supra note 34, p, 483 ut p, 488 (1979); Oenerally
3.3 HIERARCHICAL PREFERENCE peuking, scholurs supporting the superiority of a treuty over custom bse their urguments
on the maxim lex speclalls derogal ganerall because the subject matter of a treaty, in a
Internationel custom and international trealy, being the major norm creating given context, is morè speciio than a rule of custom 54 Recuel Des Cours, 54, 1935, p.
mechanisms of intornatlonal law, tho isuue of their Inter se relationahip has always 209
bcen a debatable one. One view iu that lhetvaaty.rulea 44, Akehurst arguos that lt ja equally possible that a
ave.lndispulably ruperioro customary rulo may be more specific
than a treaty and Ir thja happons, the maxim lax speclalls darogal gentrall causcs the
37. Vienna Convention on the Law of Treatles, 1969. Artlcle 34; tland of Palmas cuse.
Reports of International Arbltrel Awards, Vol Il. p. 831 (1928); Pree Zones of Upper cUslomarynorule to prevail over the troaty, Therefore, he concludes that where the maxim
Suvoy and the District of Ocx., PCW, Serles A, No. 12, 1929, pp. 17-18. provides clear guldance, or where it is shown not to reflect the intentions ofThe the
38. ICJRep, 1971, p. 16. Sutes concerned, treaties and custom are
seemingly of equal authority Akehure,
lhlerurchy of the Sources of Internatlonal Law, Supra note 22, 275.
39. Vicnnn C'onvention on the Law of Treeties, 1969, Article 38 45. Supra note 34, 509-10.
40. Supro note 33, p. 4). 46. Virally, The Souroes of Intemational Law, in Sorensen, ManualofPublie hnternatlonal
41. 1bid.
42. Ihid. n 44
huw,pp. 143-48.
 LAW 37
SOURCES OF INTERNATIONAL

of
of the Netherlands on the basis
Tharbitrator)Huber, deçided in favour
36 INTERNATIONAL LAW
unchallenged acts ofpeaccful display of sovereignty bytheNetherlands spread
Intermational law
intemational law itself. over the period(700 to 1906
aw is as old as
intemational The intematlonal has applied principle of prescriptionin
supplement Romanprivate law. The International Court of Justice islets and
in concepts and rules drawm from analogies in deciding case'", The Minqulers and Ecrehos groups of
had its origins employed such Minqulers and Ecrehos claimed
tribunals have frequently of law common
to
the of France. Both UK and France
arbitral and judicial some general principles rocks lay between Jersey and
const
which they contended
between States. To
illustrate; original title
disputes below: exclusive sovereignty overthem by ancient or rich in
are described and never lost for the islets and rocks were
municipal legal systems had always been maintained on the
decided in favour of Britain
International Court of Justice
Permanent
the
casg" Oyster fishes, The
sua-In Chorzow Factory cadnot take administration including judicial
administration, and
3.4.1.1:Nenlo Judex in causadescribed tho principle that party ground of exercise of title by display
out for herself a prescriptive
Court of International Justico UK carved
îrtaJurispruneinee
generally accepted legislation. In other words,
wongsaprinciple courts.' The Court
further heled:
advantageof own
its
well as by municipal involves an
of sovereignty.
ofintemationa arbitration as an engagement
of law that every violation of restitution
acted upon or decided;
thing judicially
Res Judlcata (A matter adjudged;
a
it is a genral conception the Court went on speak of
to 3.4.1.4
reparation.' Thereafter, judgement)-According
to the principle of julicata,
res
obligation tó mako thing or matter aettledby is
merits
ofcompetent jurlsdiction onthe bar lo a
a

ntina iudgenentrendered acourt

and damages. by
another)--In
parlies and constitutes an Ahsalute,
into shoes of
(Substitution or stepping received in conclusiyc as to the rights oitihe of action. The sum
claima, demand or cause
stbsequent action involving theyame
3.4.1.2 Subrogation
Movrommatis, a
Greck subject
Palestine Concesions," work to matiter.onceiudiciallyu.decidadis finally decided
to certain public and substance ol the nule is tha(a
authorities in regard
Mavrommtis

from the Ottoman Manclatory 7lonnta Case," certain members of the

Inthe United Nations Admidtamt/alie
concessions as a
1914 British government
in and thereby the
Palestine
to their full
extent. The the Secrelary
discharued oftheirservicesbyAdministrative
be constructed
refused to recognize his rights in Secretariat of United Nations'wore in the UN
Power for Palestine had
effect that the
British governnment, Nations They filed complaints
judgement to the
concessions, or to
Cieneral ofthe United some cases, the complaints
Greek government sought
was bound to
maintain tho Tribunal altleging that their diacharge waillegal)n
its capacity as
Mandatory Power but that having in
fact made the
were found to be justified and the
Tribunal made awards in favour of olicials
reasonable compensation,
The Permanent
Court
arose before the General Assembly
whetherit was bound
redeem them by paying compensation. concermed.The question
it was obliged to pay (or substitution) 1953, the General Assembly sought
maintenance impossible,
the principle of
subrogation to comply with the awards, In December, whether the
of International
Justice by applying
Jerusalem were valid,
but since
Mavrommatis

udvisory opinion of the International Court

ofJustice on the issue
concessions concerning toan award of compensation
General Assembly has the righttorefuseto give cffectof the United Nations whose
dismissed.
held that the should be
no loss, the
claim for an indemnity International Court of Justice in
had suffered was endorsed by case" made by the Tribunálin favour ol astall memberhis After cxamining the
The principle
of subrogation
International Status ofSouth Hest Africu contract of service has been teminated without assent.
Court held
opinion concerning
the UN Administrative Tribunal, the
its Advisory relevant provisions of the Statute of
enjoymentEAcquisitiop
that the Tribunal was established, not as an advisory organ
a or meresubordinate
Prescription (a claimto a
right foundedupon cxercise of committee of the General Assembly,
but as an independent and truly iudicialbady
3.4.1.3 and undisputed influence
through continuous limited field ofitsfunctions.
of sovereignty over a territory isnecessary tocreateunderthe pronouncing final iudgement without appealwithin the notrefuse to comply with
sOvereigntyoverit
during such a periodas the present
conditionofthings
The Court finally decided that General Assembly could
conviction that
historical
development the general
the judgementofthe tibunal. she judgement ofthe 17bunal,
according to Aticle
of with
international order,
the United Statesof be final and without appeal
is in conformity arose between 10 of the Statutc of'Tribunal, would
case,"a controversy over theIsland
olPalmas
In the lsland of Palmus sovereignty
concerning the included in the in intemational law, means that a State
Netherlands Island was
America andthe United States maintained that the 3.4.1.5 Estoppel (preclusion)-Estoppel,
United Statesof America
atthe they
itsprevious nctsorattitude whenPreah
party tointemationallitigation isbound by
The
orMiangas. ceded by Spain to the Treaty of 1898. The
Netherlands
litigation. In the case of Temple of
Phillipine Archipclago
Spani_h-American warby
the over the
island. areincontradiction withits claimsinthe out:
concIlusion ot the a prolonged and
undisputedauthority Vihear, Judge Alfaro (in his separate opinion) polnts
claimed to have exercised

Series A9 at p:31. 1953. p. 47.

Factory case (1927), PCIJ (1925),
Series A, No. 5. S1. Minqulers and Eerehos casc, I(J Rep.,
47. Chorzow
Concessions cuse,
Thibunal case, lnternatlonal Law Reports,
1954, p. 310.
Palesttne
48.
Muvrommatls

/CJ Rep., 1950, p. 128. Law, 22, 1928,

875 52. UN Admintstrative
49. South-West Africa case, Amertcan Journal ofInternational
Palmas Arbitration,
50. Island of
(1928).
 sOURCES OP INTERNATIONAL LAW
38 INTERNATIONAL LAW
cuse. The Court, therefore, applied cquitable princinla(Roportionalitycriterinn
Whatever ter1m or lerms be employed to for the delimitation of the continental shelves. In an arbitral award conceming th
designate this principle such us it has been delimitation of the continental shelf'between United Kingdom and France in 197,
applied in tho internutional sphere, its subslance is ulwuys the
between claims or allegations put forward a inconsistoncy
samo:
the arbiral tribunal applied principlesofequity as part of the applicable intermationai
by Stutc, and its previous conduct in
connection therewith, is nol law Iu placed cmphasis on the 'special circumstances' of the situation and relied
admissible (allagans contrara non aullendus est). Its
purpose is ulways the sume: a State must not be on a broud conception of 'proportionality' as a factor in achieving an equitable
pornitted to benefit by its own
inconsistcncy to the prejudice of another Stute (nemo potest mutare conslliun1 suum result. In particular, it corrected what it considered to be the 'disproportionateeffect
in alterlus
lnjurlam). A fortiori, the State must not be allowed to bencfit its
inconsistency when it is through its own wrong or illegul uet that the other by hus of giving full effect to the continental shelf ofthe small channel islands owned by
been deprived of its right or party the United Kingdom but situated close to the French coast. The arbitral tribunal
de
prevented from exercising it (Nullus commodum capere
suainpura proprla). Finally, the legul efect of the sought to bulance the cquitics of the two States." In the case of Libya v Tunisia,
principle is
by its recognition, its represcntation, its decluration,ulways
the party which the same:
its conduct or its
International Court of Justice distinguished equitable means of delimitation from
silence has inaintained an uttitude cquituble result and observed that emphasis should be laid at cquitable result and
an international tribunal is
manifcstly contrary to the right it is claiming before
precluded from cluiming thut right (venirr contra factum not cquitable nmeans, The abqve mentioned cases treat equitable principle as part of
proprium non vale).)
the law and therefore their decisions are not er aequo et bono. The Intemational
Court of justice hos also applied equity as an interpretative instrument by taking
Estoppel is not merely a rule of evidence. It is substantive rule of law. The
principle is cssontially grounded in considerations of good nto account the particular cireumstances of the situation and thereby avoided
inthe rolations of States and individuals alikg. In the case faithand houest.couduct Inequities resulting from general rules.
of
Spain,"a boundary dispute between Honduras and NicaraguaAward of the King of
was referred to the 3,4.1.7 Other
arbitrator, King of Spain. No question was at any time raise in the arbitral Principles-Other general principles may include
principles of
before the King with regard either to the procecdings good faith and abuse of rights," territoriality of criminal lawa and
obligation to
his jurisdiction as such. Before him, thevalidity
of his designation as arbitrator or repair awrong Elementary considerations orhumanitý are applied by Intermational
Parties followed the procedure that had Court of Justice in Corfu Channel.cgse which involved the.expnlasian.of.minssin
been agreed upon for
submitting their respective cases.
Nicaragua contended before Albanian waters.whiertitTeLN warghins.and.caused loss.ofBritish.naval
Intemational Court of Justice that the appointnment of arbitrator persoupel gn thovo-vesselsrThe--United-Kingdom claimed that Albania was
Court rejected the contention
was
by observing that Nicaragua
irregular. The
conduct prior and during the course of
to
was precluded by its internutionally responsiblo and under a duty to pay damages, The Court helu *
iTegularity in the appointment of the King as arbitration from relying upon
a ground to invalidate
the
any
The obligations incumbent
award. upon the Albanian authorities consisted in
the benelt of shipping in goneral, the notifying, for
3.4.1.6 Equity (reasonableness, existence ofa minefield in Albanian territorial
of law because it has an fairness)-Equity is one of the general principles waters and in warning the
approaching British warships of the imminent danger to
established place in developed legal systems. The Permancnt which the minelields cxposed them. Such
Court of Convention of 1907, No. VIll which is obligations
are based, not on the
International Justice has recognized.equity as a part of international Hague
generul and well recognized principles,applicable
law" in time of war, but on certain
The Court has plaoed beyond doubts the thut cquity as asoDrccofinternattona
lawjs in no way.restricted by the specialfact
power conferred
namely:
humanity, even more cxacting in peace than in war; the clementary considerations of
exaequo et bono, if the partics.agree thereto.* In upon it to decidea case maritime cormmunication and principle of the freedom of
every State's obligation not to allow
cases, Inenational Court of Iustice refusedto Narthaa CantiuentalShels territory to be used for acts contrary to the rights of other States. knowingly its
appying cquidistance principle as it resulted indelimit Continentalthe shelves by
circumstances (geographical inequity under special
configuralions
of the cousts) which existed in that $8. Colson, "The United
Kingdom France
of Internatilonal Law, 72, 1978, p. 95.Continental Shelf Arbitration', Anmerican Journal
59. Dlecher, 'Equitable Delimitation of the Continental Shelf,
53. Temple of Preah Vihear, ICJ Rep., 1962 ut pp. Amerlcan Journal of
International Law, 73, 1979.
opinion of Judge Alfaro for a general account of the23,31
and 32; and see the individual
60. Libya w Tunisla, ICJ
law (pp. 39.51). principle of estoppel in intemational 61.
Rep., 1982, p. 17.
54. Arbitral Award of
the King of Spain, Honduras w Nicuragua, IC
Anglo-Norweglan Flsheries case, ICJ Rep., 1951, pp. 128, 133.
62. Conditions of Admission to
213. Rep., 1960, pp. 209,
p142. Membership in the United Nations, C Rep., 1951
5. The Diversion
of Water from the Mcuse (Netherlands w. Belglum), PCIJ 63. lotus cnse, Supra note 17.
70-76-78.4 Hudson World Ct. Rep, pp. Scr A/13, No.
56. Ibid. 172, 231-33. 64. Chorow
Factory case, PCIJ Series A/9, p. 31
65. United Kingdom v
$7. North Sea Continental Shelf cases, ICJ Rep., 19, Albanla, ICJ Rep., 1949, pp. 4, 22.
p. 4.

40. Supro note 33, p. 4.

41. Ibid.
42. Ihid. n. 44
 41
SOURCIS OF INTERNATIONAL LAW
40 INTBRNATIONAL LAW
3.5.1 Judicial Declslons
Humanitarian considerations were again invoked by Intermational Court ofJustice
The relegation of judicial decisions to the status ofa subsidiary source is a necessary
in Namlbia case.6
corollary to Article 59 of the Statute which statcs that the decision of the Court has
3.4.2 The Status of General Principles of Law no Binding1orCE exCEptbelwccn1ie poriCaand inrespectofthat particularcase.
Inotherwords,the principle ofstare dectsis is not recognized in civil law systems
The question arises whether general principles of law are a distinct but the departure from precedent, while not prohibited, is undouhtedly less
sourco of exceptionai in the judicial hierarchy of the civil law systems than in the common
international law. If a given principle is affirmed constantly in intermational judiclal
decisions and accepted in the practice of States, it acquires the status of custom.It law systcms. The julicial process in the common law jurisdictions providcs many
matters little if the principle has been
originally borrowed from municipal law. Ways of overcominK an objectionable preccdent without overmuling il, by wayof
distinction of facts, differentiation between the ratlo decicdendi and obiter dicta,
Such a principle becomes part of intermational law by the normal operation of the
sources of that system. The questionof the status ofgeneral principles of law which and other means.
assumes importance is in relation to those principles which are not part of customary The jurisprudence of International Court of Justice exposes the reluctance.
or conventional international law. the Court in departing ftom its previous decisions. Although International Court of
Some writers, particularly in the Soviet Union maintain that Article 38 (1) (c) of Justice has not adopted thhe conmon law doctrine ofprecedent, it has largely adopted
the Statute of the Intermational Court its substance. The Court follows its owm decisions for the same rcásons for which
ofmeans
Justiceofdoes not
envisage a separate source
of international law, nor any separate creation of intemational norms." all courts do so, namely, because such decisions
are a
repository of legal experience
to which it is convenient to ndhere." for
Furthennore, respett decisions given in
According to them, 'general principles of law' means
general principles of the past makes fdr cortainty and stability which are the essence of the orderly
international law and not the principles common to the municipal legal aystems.
The Soviets point out that Westerm jurists treat fundamental legal principles of administration t is precedent
ofjustice.7 that makes law science
a inasmuch as
bourgeois, or capitalist systems as principles common to the municipal legal systenis. a
these help to make the task of lawyer easierin predieting decision.
a

The Soviets point out that Western jurists treat fundamental legal principles of
The decisionsof IntermationalCoutof Justicehaveenormously inluenced States
bourgeois, or capitalist systems as principles common to civilized nations and andcodiflying agencies.This fact is evidenced bythe nlings.ofInternationalCaur
thereby proclaim such principles of "bourgeois' legal system as all.
binding for
Western otiented approach is termed by them as prejudicial to socialist States and
The ofJustice in lhe Anglo-Norwegian Fisheries case' and North Sen Continental
Shelfcases, Straight baselincsystem cvolvcd in Anglo-Norwegian Fisheries Case
had sueh an impact on States and codifying agencies that it was accepted by
new States and Africa." This
of Asia approach is not true as inapite of the ideologlcnl
differences between capitalist and socialist (Marxist inspired) systems,
is
ittheis possible International L.aw Comnmission, Firat and Thicd United Nations Conferences onthe
Law of Sea and finally tound incorporaticon in the United Nations Convention on
to find similar principles, such as rex judicata. The
correct view that 'gcneral
are valid the Law of the Sca of 1982. Likewisc, the rule ofequitable principles enunciated in
principles of law' are a primary source of intermational law because thesc
through al1 kinds of human societies. These principles are cstablished by a procen North Sea Continental Shelf cases was carried through and further elaborated by
of reasoning based on the common identity of all legal systems, the Conrt in Lthya v Tunisia." The rule of cquitable principles for delimitation of
continental shelves was also nccepted by the arbitral tribunal in the United Kingdom
3.5 SUBSIDIARY MEANS FOR DETERMINATION OF RULEs orLAW France Continental Shelf Arbitration case. Equity also finds place in the United
Nations Convention on the lLaw of the Sea insofar as it provides that the result
Article 38(1)xd) of of
the StatuteIntemational Court of Justice states that the produced by the delimitation mechanism ehosen by the parties should be equitable.
Court shull apply 'subjcct to the provisions of Article 59, jucdicial decisions and
teachings of the most highly qualified publicists of various nations, as subaidiary
In practice, the decisions of the International Court of Justice have assumed
such an importance that these constitute a source of international law and are not
means for the determination of nules of law.' The Statute, thus, relegates judicial merely subsidiary means for determining the nules of law as stated in Article 38(1)d)
decisions and juristic opinion to the status of subsidiary sources of international of the Statute of International Court. The main function of sources is to facilitate
law.
71. H. Lauterpucht, 7he Development ofInternatlonal Law by the Internatlonal Court,
1958.
72. Ibid.
66. Namihla case, IC Rep., 1971, p. 57.
73. Supru note 61.
67. Tunkin, Drolt International 1P'ublle, p. 244.
74. Supra note
68. 1bid. $7,
75. Libya v. Tunisia, 1CI Rep., 1982, p. 17.
69. Judge Tanaka, Dissenting Opinion, South West Aflca case, C Rep.. 1966, p. 296.
76. Supra note 56.
70. O' Connel, Internattonal law, 1970, pp. 12-13.
 sOURCES OF INTERNATIONAL LAW
42 INTERNATIONAL LAW 43
the taskofidentifying the norms of the international legal order. In a decentralized In lact, international community fnd.
resolutions ure legally binding for the Statcs.
legal order, such as intemational, no other organization is probably more compctent itself in a dilem1na when it faces the issue of determination of the status of ral
to express the "juridical conscience' of the international community as the resolutions us a source of international law.
Intemational Court of Justice, which is tho principal judicial organ of tie United Assembly
Nations.7

3.6.1 The Status of General Assembly Resolutlons

3.5.2 Teachlngs of Publiclsts
Undoubtedlly, Giencral Asscnibly resolutions have moral und political effects. I i,
The precise content of intermational law was for long so uncertain and so difficult lowover, doubtful whether these have legal eflects ulso. Leguleflects are produced
to establish, the rules
comprising il so sparse and incffectual, and the number of bya Iegalgbligatian. A Iegal obligation is sonething which one is bound to
persons familiar with them so limited that the works of those writers who
devoted themselves to this little known branch of law constituted the have disclhurge. Sanetionmay.nolalwaysbeattached to legalobligation becaweetew is
NOtbindingbecauseitliscnforced;it is enforced because it is ulready binding,."The
indeed almost the only, sources of information concerning it."principal, and
The basic LOmteu Nations Charter contains no general provision regarding the legal effects of
systematization of internotional law ia largely the work of
and Gentilis onwards. Tihe present day international law publicists, from Grotius he General Assembly resolutlons. Article 10 of the Charter stales that Gienera
is much more certain and
most part ofit exists in conventional and
custoniary form. The Assombly may make ecommendations to Member States on any questions within
ofpublicist ' has, theresore, gono dowm below in the hierarchyplace of the 'teachings
of international law.
a l he scope of the Charter. The General Assembiy1 given the power, under Article
These are merely subsidiary means for
deterinining the rules of law. T O the Charter, to consider and make recommendations concerning the
principles of cooperation in the maintenance of international peace and general
al

points out that International Court of Justice is reluctant to refer to Lauterpacht

the dívergence of views anong writers on writers because Article 13(1) of the Charter further security.
Assembly which are as follows: "The specifies
disferent functions of the General
biás may render citations rom them unhelpful."subjects
many as well as
apparent national
General Asscmbly shall initiate studies and
reluctant to identify writers in its judgements andAluhough
the Court itselfhas been
advisory opinions, it is evident make recommendations for the purpose.of (a) promoting
from the pleadings and from the
references in the separate and dissenting opinions intlhe political field and cncouraging the international cooperation
of the judges that the opinions of authorities on intenational law and its codification; (6) promoting progressive deveopment of international
sOCIn, cmira, cducational and healthinternational
law have been
to the attention of the Court and have often been
taken into account somebrought cooperation in the economic,
Judges. by of the human rights and fundamental fields, and assisting in the realization of
freedoms for all without distinctions as
lannguage or religion." to race, scx,
3.6 MODERN SOURCES OF In view of the fact
that UN
Charter
rexolutiops, it becomes necessaryis silent
INTERNATIONAL, LAW ABNCmbly on_the legal efects of General
The task of codification and progressive to
entrusted to Intemational development of international law
of the Churter.
In 1945, at San Francisco, áscertain the intention of the framers
Law
of the United Nations has playedCommission, Neyertheless, the GeneralLAsombly following proposal to endow the General the Philippine delegation made the
significant part in the process of codification and Assembly with legislative power:
progressive development of international The Generul
Assembly, namely, those involving principlelaw.
of
Some resolutions of
the General Assembly
of Internutional law should be vested with the
legislative authority to enact rules
tion of non-self goveming territories, declarationdecolonization and self-detemina of the
orgunisotion
which should become
afler effective und binding
Seabed Area as common of the such rules have been upon the
recognition and acceptance.herítage ol mankind, etc., resonrceof
huve International Security Council. Should the
Security approved by a majority votemembersof the
It is,
however, doubtful whether received universal
Goneral Assembly
u
perlod of 30 Council
days aler submission thereof to thefail to act on any of such
rules within
77. M.K. Nawaz,
'Othor Sources of becone cffective and binding as if approved theSecurity Council, the same should
International Court of Justice a International Law: Are Judicial Decisions of by Security
Internatlonal Law, 19, 1979, p. $26.Source of Internutionul the The P'hilippine Council.
78. Michacl Vitally, "The
Sourccs
Law?', Indian Journul of
Thereforo, framers ofproposal was
rejected at a drating session of
the Charter did
79.
Internatlonal Law, p. 153. of Inlernational Law', in Max Sorensen, Manual Asuombly rosolutions," not intend to
attribute legal forceCommission
to the
II.
Lauterpacht, Supra note
of General
80. Pora broud historical 71, p. 24.
of international survey of the role and influence of
law, in Lectures by 'teuchings' in the development 81. D.IIN. Johnson, The Elfect
Internatlonal Law, Recuell Judge Manfred Luchs, of Resolutions
des Cours 3,
1976, Teachings and Teaching of Nutiuns, British Ycarbook of the
of International Law, General Asscmbly of the United
pp. 163-252. 82. Rahunwtullah Khan, The Legal
Indian Journal
32,1955-56, pp. 121-22.
Status of the Resolutions
83. of Internatlonal Law, 19, 1979, of the UN General
T010.
S6. 1bid.
Ruhmnutullah Khan, lbid., p. 553. p. $53. Assembly',
7. Noth Sea Contlnental Shelf cases, ICJ
Rep., 19, p. 4.
 1

The econd Wurld Wa prqved any de cowneletoneiip ielupan

ouuajud
vi
towords stg own oHlzana snd y s i n *ysina
behuviour by » govenment

5 hulioa, beiween
experience of the
foapect for bumngn sights
wA 14Bulcd in the
snd the
wideupresd
meintenence u ena 1i
sunvietion thet effecuve

cusentisl condition of
internetiumel
nternational protectlon of human rigta was san
in a nunber of steemanda,
that conviction found expression
peuce and progresn anl
Position of Individual in declarations and propo40ls made while
the war wos still beiny tougt

International Law
5.1.1 Unlted Natlone Charter
internotionsl pesce and
UN Charter expresnly recognizes
that the maintenance of
are today interdependent
and proleima
8GCurity and the protection of human rights
of tho mafor aima of thhe United Notione
the promotlon of buman rights ns one
s legal
States and the United Nations (rganizotion
A subjoct of intornational law ia conaldered to be an ontlty capable of ponaaNaing imposes upon both Member This ia outlined in vurious provisins
international rights and dutlos and endowad with the capaclty to tako certaln typon obligatlon to promote und protect
human rights.
Nations express
the peoples of the United
of action on the intemational plane,' The torma international legal peraon' or "legal of the Charter, In the preamble,
fiundamental human rights, in the cqual rights of
personality' are conmonly uncd in roferring to Buch entitic. determination 'to re-affin faith in
wordw 'promoting ond
The traditional approach holds that Statos aro tho only subjecta of intornational men and women and of
nations large and amall', The
human
and 'assiating in the realizatlon of
law The appronch maintains that Individuals are only incumbonts of righta and encournging reupect for hunan righta' in Article 1, on
duties at international law. Thereforo, they are objecta of intornatlonal law nnd not and fundanontal freedoma' uppear, with certain variations,
rhghts in Article 13, on the (ieneral
its subjects, The approach projects that individuals do not have tho prucoural the purpones and prlnclples ofthe United Natlons;
and in Article 76 on
capacity (i.e. power) to enforce their claimu in international aphero, in Article 62, on the llcononde and Social Council,
AMRembly;
Artlcle 56, read with Article 55 'all Members
Thero ia another dinnmetrically opposlte theory whlch maintaina that in the uluimate the Internationnl "Tnusteesbip 8ysten;, In
action in cooperation with the
analysis, individuals alono aro the subjacte of International law, Woatlake ubaorvet: pledgo themaelven to take joint and aeparate lJnited
the dutles and rights of Staten are only tho duties and righta of the men wh conpone for thhe nchiavement' of a number of purposes whlch "the
Organization and observance of,
them.' Scelle also mado similar comment. Kelsen (1881-1973), a noted Jurint, Nations slhall promoto', among them 'unlversal respect for,
distinction as to raco, sex,
also supported this theory. According to Kolsen, there is no real distinction botween human rlghts and Mundamental froedoms, for all without
State law and intemational law. Both aystema bind individuals, although intornational UN Charter does not, however, ubstantiate the concept of
lunguage rellgion',
or
which are mattera
law as a matter of tcchniquo doos so only mediately and through the concojpt of the human rlghta lnanmuch a's it doeN not montion the human rights
State. Thus, individunl alone is nubjoct of international law. of international concem.
In view of the above-mentioned opposite approaches, tho issue of detemmination
of the status of individual in international Iaw as8umes considerable ncademie 5.1.2 Unlversal Declaratlon of lHuman Right
importance. The issue can be treated appropriately by the conaideration of the points
came with
mentioned here. The major elucidation of the Charter provisions relating to human rights
the
the Universal Declaration of lHuman Rights, drafted after two years of study by
the
Commission on tHuman Rights established under Article 68 of the Churter by
General
Rconomic and Social Council, and approved, without dissenting vote, by the
1. Louis Henkin et a., Internatlonal Law-Cases and Materlals, p. 168 of
Assembly on 10 December 1948.The Declaration gives content to the concept
ofthetraditionaldennitlon of
2. The thrust of the traditional approuch is loglcal corollary
international law which holds that International law consists of body of rulen which human rights by stipulating various categories of human rights which are matters
of

govern the conduct of staten Inter se. Those who hold traditional view include: international concern.
Oppenheim, International law, Vol. I, pp. 19-22; W. Paul Gormley, The P'meedural
lluman
Status ofthe Individual before International and Supranatlonal Tibunals; Norgaurd, 5. Gurdip Singh, 'Internutional und Natlonal'Measurea of Implementation of
The Positlon of the bndividunl tn International Law. Rights', Indlan Journal of Internatlonal l.aw, 18, 1978, p. 187.
Sension.
3. Collected Papers (1914), Vol. 1, p. 78. 6. For the text of the Declarutlon, Sco Res. 217 (111) in Oeneral Assembly, 3rd
4. Scelle's Study, in Lipsky (ed.), Law and Politles in the World Communty, p. 56. Oficlal Records, Pt. 1, Resolutlons, p. 71, Amerlcan Journal of Inlernatlonal Law,
Supp. 43, 1949, p. 127.
 74 INTERNATIONAL LAW
POSITION OP INDIVIDUAL IN INTERNATIONAL LA w .
S.1.3 Other inatrurnents
INTERNATIONAL LAW
Other Internalional inatruments dealing with bhuman righu include: S.2 DUTIZs OP INDIVIDUAL IN
Convention on Human Righs, 1950;" European Social The Luropean
Charter, 1961 The following devel pments show that international law inpes duties n
againat Discrimination in tducation, 1960; and Protocol of 1962 Convention individusls.
Conciliation and Good Offices Commission to be instituting a
responsible for veeking the
vettlement of any disputes which ray arise between States
Parties to the
against Dicrimination in Educatiom:" Convention on the Eliminatíon ofCovention 5.2.1 Major War Crimes Trials
of Pacial Dicrimination All Forma
in Human
adopted in 1965" and International Labour Conventions On &August 1945, an Agreement was sigred in London by the Govermerts of te
Kights field, which have been adopted by the
International Labour United Sutes, Prance, Únied Kingdom and Soviet Union, which made defini
Conserence such as the Preedom of Asuociation anvd Protecion
Organize Convention of 1948, Equal Rermuneration Convention of of the Right to provision tor the Proecuion and Punishrend of the Major War Criminals of the
of Forced Labour Coventíon of 1951, Abolitíon Europesn Axis Powers whose ofteoces had no particularyeoogaphical linutation"
1957, ard Divcriminatíon According to the Charter of the International Military Tribunal anaered to the
(Employment
Occupation) Convention of 1953.The most important inatrurnenta on Hurman and Ayreement, the jurisdicton of the Tribunal extended tw individual reaponaibilities
however, are International Covenant on Civil and Political Rights, in caves of the following crimes.
Protocol; and International Covenant on Economic, SocialRights
and iu Optional
and Cultural Rights.
The Covenants, in one form or another, werc studied and 0) Crimes ugainst Peuce: Planning, preparation, initiatin or waging ofa war of
deliberated by the in violation of international uesties, arements or assurances,
Hurran Righs Comrission for some eight years uradil the final drals
were
completed
swenion or a war in a common plan or conapiracy lor the accomplishment of any o
in 1954. In the sarne
year, theve were submited for approval to the Third Comnittee
of the General Assermbly. At the 21st session in
ftheparticipation
foregoing
1966, Third Comnitee started
aricle by srticle consideration of the messures of
irnplermentallon and completed i) ar Crimes: War crimes are violations
Include but are not lirmited o,
of the laws and customa of war which
their drafting at the sarme vesslon. The General
Assembly approved all the three murder,
lL-treatrnent or depradation
to torced labou
or for any other purpoe of civílian
drafs submutted by Third Commitee at iu 1946th
meeting on 16 December 1966. popultion,
Intemational Covenant on Economic, Social and Cultural Rights was () Crlmes agatnst Humanty: Crimes agalinst humaníity include murder,
105 voes to none; International Covenant on Civil and Political adopted by extermination, enslavement, deportatíon and other inhurnane actu commútted against
votes to none, Optional Protocol o the later
Rights by 106 any civilian population, belore or during the war or pervecutions on political, racial,
by 66 votes to 2 with 38 abstentions," or religious grounds in executíon of or in connection with
International Covenant on Economic, Social and Cultural Rights came into force any crime within the
jurisdiction of the Tribunal, whether or not in violatíion of the domestic law of the
on 3 January 1976 and International Covenant on Civil and
Political Rights on country where perpetrated.
23 March 1976, after 35 ratifications were oblained in each case.
Optional Protocol In the Charver of the International Miliary Tribunal, the official
lo came into force on 23 March 1976. position of the
The importance of the human rights instruments of 1966 lies in the fact that in accused persons whether as Heads of8ute or responsible officers of
governments
or the srmed services, was not considered for
sddition to elucidation of the concept of human rights, the instrurnents contain freeing thern from responsibility or
measures for international implementation of the human mitigating punishment. The Charter also provided the fact that the accused had
rights. Thus international acted pursuant to superior orders of his government or a enior officer did not
law confers rights on the individuals.
relieve him from responsibility t ough it might mitigate punishment.
1.
European Convention for the Praection of Humun Righis and Pundanental Freedoms
Rome, 4 November 1950, UN Treaty Serics (1955), No. 2889, p. 221;AmericanJnurnal
The Nuremberg Tribunal delivered its judyemcnt on 30 September 1946, in
wlich the concept of individual responsibility was justified in the following terms:
ofIntgrnational Law, Supp. 45, 1951, p. 24.
The Puropean Social Charter Reprinted in tIN Yrarbuok on Muman Righita, 1961, hut iniernstional law inposes duties und liubiltics upon individuls us well upon
p. 442. Stutes has long been recognized.... Crimes ugainat iniernaional law uecommitted
9. Convention against Discrimination in Lducation adopted by the General Conference by men, not by absiruct entities, and only by punishing individuuls who comvnit such
of UNESCO on 14 December 1960, Meprinted in UN Yearbouk on Humun Righis, crimes can the provisions of international law be enforced. The principle of
1960, p. 437. internelionsl law, which under certain circumslances, protecis the representatives of
10 Adopred by he General Conserence of UNESCO on 10 December 1962, Reprinted in Stole, cannot be applied to scs which awe condenneds crininal by international
UN Yeurbook on Human Rights, 1962, p. 398. law. The authors of these ncls cannot sheller themselves behind their official position
1. General Assembly Res. 2106A(xx) of 21 December 1965, General Assembly, 20th in order to be freed from punishnent in sppropriute prucecdings.... He who violates
Sewion, Oflcial Records, Supp. No. 14 (AV6014), p. 47. the luws ofwar cannot obtain immunity while scling in pursuance of the suthority of
2. Report f Third Commliee, UN Doc.V6546, 13 December 1966, and UN DOC.
WPV. 1496 3. 82 UN T. S., p. 279.
 321
76 INTERNATIONAL. I.AW

OsITION OF INDIVIDUAL IN INTERNATIONAL LAW 17

tne Stute if the
Stute in
internalionul law.... 1hutuuthorizing
a aolider
action moven outside Its
cormpetence unucr convention on the subject, and as a result, the Convention on the Prevention and
international luw of
though. . the order
wr has never
wus ordered to kill
been recognized as a
or torture
in violaton o Punishment of the Crime of Genocide, known as the Genocide Convention, was
may be defence to such octs
of
urged
in
mitlgation of the puniahment. brutalny acdopted by the General Assembly in 1948.0 Oenocide is defined in the convention
a acts committed with intent to destroya national, ethnical, racial or religious
The trial of
Japanesc
principles. The jurisdictionmajor war criminals was
conducted upon the group, by kiling members of the group, causing on
serious bodily or mental harm to
Tribunal was similar to that otMonie members of the group, deliberately the group conditions of life
of the Tokyo
Nuremberg Tribunal, and its judgenient based inflicting
Nuremberg was delivered on 12 November upon the principles expressedtheat calculatedbirths its
to bring about physical destruction, imposing mensures intended to
within the group, or forcibly transfering the children of the group to
The General 1948. prevent
another group.
Assembly, by unanimoua vote, affirmed the
international Law principles of The Contracting States declure that Genoclde, whether committed in time of
International Law recognised the Nuremberg Charter and
in
Commission, pursuant to a
request from the General Assembly,
Judgement. peace or in time of war, is a crime under international law, which they undertake to
prepared a Drafn Code of Offences prevent and punish. It le laid down that those who are guilty of Genocide must be
would be crimes against Peace and Security of Mankind, which punished whether they are constinutionally reaponsible rulers, public ofMcials or
under international law for which indivlduals
responsible," Various acts including acts of would be private individuals. Persons cherged with Genocide may under the terms of the
as offenccs against the peace and
aggression and genocide were defined conventíon be tried, as a rule, by a competent tribunal of the State in the territory of
security of mankind, which were crimes under
international law. The responsible individuals which the act was committed, or by any international penal tribunal whose
were to be
(Articles 1, 2). The draft code upheld the punished for these offcnces jurisdiction has been recognized by the Statea concemed.
concept expressed by the Nuremberg nnd
Tokyo Trials that the fact that a person acted On 8 April 1993, Intemational Court of Justice indicated provisional measures
as Head of State or as a in a Case Concerning Application of the Convention on the Prevention and
government official was not to be considered as responsible
(Article and the relieving him of responsibilityy Punishment of the Crime of Genocide.2 Bosnia-Herzegovina, basing the
3) fact that a person acted
pursuant to a order of his
of a
superior would not relieve him of reaponsiblity In internationalgovernment or Jurisdiction of the court on Article 1X of the Qenocide Convention, recounted a
law, if, in th0 aeries ofevents in Bosnla-lHerzegovina from April 1992 which amounted to genoclde
circumstances at the time, it was possible for him not to comply with that order within the definitlon given in the Genocide Convention, specilcally:
(Article 4). Because the draft code ralsed problems related to the effort to deflne
aggression, the General Assembly postponed consideration of the drafN code until () killing members of a group, namely Muslim inhabitants of nosnia
it could consider both problems
together. The General Assembly has since adopted Herzegovina,
a definition of (li) causing serlous bodily or mental harm to members of that group;
aggression which provides: a war of aggression is a crlme against (il) deliberately inficting on that group conditions of life calculated to bring
international peace. Aggression gives riae to international responsibility."
On 17 July 1998, a statute for the Eatablishment of about its physical destruction in whole or in part; and
International Criminal Court (iv) Imposing measures intended to prevent births within that group.
WAs Rdopted at Rome to set up International Criminal Court at the Hague havling
over crimes such as genoclde, crimos againat humanity and war crimes,
juriadiction Dosnla-llorzegovinn claimed that the acta complained of have been conmmited
Aggression has been excluded from the Jurlsdictlon of the Court till definition of by former members of tho Yugonlav People's Army (YPA) and by Serbs military
aggression is ndopted. and paramilitary forces under the directlon of, at the behest of, and with asistance
from Yugoslavia and that Yugoslavla was fuly responalble under intemational law
for their activitles. The court unanimounly held that the govemment of the Pederal
5.2.2 Genoclde Conventlon Republic of Yugoslavia (Serbia and Moneteneyro) ahould Immediately, In purauance
On 11 December 1946, General Asnembly declared that Genocide wan a crine ofiu undertaking In the conventlon on thve Prevention and Punishment of the Crime
under Internatlonal law, for whlch the perpetrators whether they were ntatenmen, of Genoclde of 9 Decemt 48, take all neanuros within lta power to provent

public officlals or private individuala were punishable," It took steps to concludea comminslon of the crlme of genocide.
On 17 April 1993, the United Nationa Security Councll condemned all violations

14 Amerlcan Journal of International Law, 41, 1947, pp. 172, 220.

20. 78 UN T. 8., p. 277
15 US Naval War College, Internatlonal Law Documanta 1948.49, pp.71-107 (1950)
16 General Assembly Res. 95, 1 G. A. 0. R., UN Doc. A/64/Add 1, at p. 188 (1946) 200(a). Cune Concerning Application of the Conventlon on the Preventlon and Puniehment
and
of the Crime of lenocide M»xnla and lterregovlna v Yugoslavla (Serbla
17. Yearbook of Internatlonal Law Commlsslon, 1950-52, p. 253, 1951-52, p. 43. lnternatlonal law,
Montenegro), 8 Aprll 1993, Reprinted in Amerlcan Jnurnul of
8 Oeneral Assembly Res. 3314, 29 O. A. O. R. Supp. p. 31 at p. 142, UN Doc. A/'OB
$7, 1993, p. S05.
(1974), p 915.
19 Generul Assembly Res. 96 (0), 11 December 1946.
 ITERNATONAL LAW
POSITION OF INDIVIDUAL IN INTURNATIONAL. LAWv
anvermathanal humanitarian la, 79
ineluding in rartieular thu practice of "othnie
cleannng' and the massive, rnganired and systematic detention and rape of 3.2.4 acking
and dendend that an international tridunal be women,
estublished for the prosecution ot The "Toky» Convention on offences and Cprtain Other Acts Committed on Board
e I s reonsible fior serious vivlations of International llumanitariun Law
wmtal m the terntory of fomer Aircralt, 1963 docs not spec ically alm at aircralt hijacking. It covers, gencrally
lugoslavia since 1991, In of the
Serunty Oouncil resolution, an lnternational Criminal Ttibunalpurauance
for the tomer
peaking, crines in air. The Conventiondoes not provide for the mannerin which
lgoslavia was fomed by the United Nations whieh has itu
a hijacker should be doalt with. It only provides that in case of unlawful seizure of
Hagua, Netherlands. In 1994, second tribunal was created by theheadquarters at "The un alreran, tho State of landing ahall permit the passengers, the crew and the aircraf
Tanzania to investigate and proseeute crines under Unlted Nutlons at to continuo their
international law tluring a civil to
Journoy as soon as posuible,2 tavoids laying any positive obligation
war in Rwanda, central Attica.
puniah or øxtradite offondors. India has ratinlod Tokyo Convention.
As the Yugulavia and Rwanda
tribunals struggle on, the nnovement to cronte a On 16 Decombor 1970, the Hague Convention for the Suprossion of Unlawful
pemanent intermational criminal court intensillel. The following lssues Selzuro of Aircraft was adopted. Tho Convention had
conftonted only a limited application
intemational community: What types ofcrimes would be
subject to the jurisdiction Aince it only covored hijacking in the alr." Othor acts of interfcrence, like sabotage
of the Penmanent Criminal Court? When could a through placing of bonmbs on board alrcrafs and attacks on aircrafls on the
jurisdiction?
pemanent court exercise that
or ground Installations, which are oqually, or even more dangerous, still needed to
ground
In 1998, Ronme statute for the estublishnvent of be coverod,"
lnternational Criminal However, the Hague Conventlon imposes obligation on the
adopted which proviles for the establishnent of Internatlonal CriminalCourt was approhonding Stato to punish or'extradite the hijackers
the Hague. The statute enunciates internatiunal Court at
hacking took placo. lindia regardless of where the
the jurisdiction of the court.
erimes whlch would be subject to the Convontion ratiflod Hague Convention on 12 November 1982 and
came into force on 13 December 1982.
The Montrenl Convention för the
Safoty of Civil Aviatlon was adoptedSuppression'
of Unlawul Acts
on 23
against the
5.23 Piracy September 1971. Tho Convention
comprehenslvely
In Tact, Montreal
covers the
acts which constitute an offonce within its meaning.
Piracy consists of the following acts:" Convention extends the terms of Hague
porsons who commit acts of
sabotage or otherwise
Convention to cover
(a)any illegal act of violence or detention, or uny act endanger or
porpotrate bomb hoaxos. Montreal Conventiondestroy aircraft,
of deprodation, committcd hurm passengers or
for private ends by the crow or the was ràtifled by
airerat and directed: passcngers of a private ship or a private
23. Tokyo Convantion, 1963, Article 11.
(i) on the
high seas, against another ship or aircraft, or 24. Hague Convention, 1970, Artiole 1,'
property on board such ship or aircrafl; against persons or natlonal Law, p. 15: 8.Y Agrawala, Aircrast Hyacking and Inter
(ii) against a ship, aircraft, 25. Ibid.
persons or property in a place outside the 26.
jurisdiction of any State; Montreal Conventlon 1971-Articlel provides:
. Any person commite
(b) any act of voluntary
participation in the operation of a
an
offencè If, ho unluwfully ind intentionally
with ship or an aircran
knowledge of facts making it a private ship or aircral; (o) performs an act of violence ayalnst u person on
en
board an
thut act is likely to
the safety of that aircraft: or aircra in Night
if
(b) destory an aircralt ínendunger
(c) any act of inciting or
intentionally facilitating an act described in service or causes dumage to such an aircraft
subparagraph (a) or (b). it Incapable of which renders
flight or which lu likely to ehdanger its
United Nations Convention on the Law (c) pluces or causos to bo
placed safety in Might: or
i.e.crime against of Sea treals piracy asa universal crime, a device or
on an
alroru in s lco,
subatanco whlch ls likely to destroy that by any means whatsoever,
mankind inasmuch as it imposes an
obligation on all States to co to it which renders
it incapable of alreraft, or to cause damage
operate to the fullest possible extent in the
likely to endanger its safety in Might:Nlght,
or to causo
in any other place outside the repression of plracy on the high seas or or
damago to lt which is
internationally responsible forjurisdiction
of any State. The individuals (d) destroys or damages air navigution facilities or
are, thus, interferes with their
forbids individuals from committing piracy. In other words, international law if any such act is
likely to endanger the safcty of aircra in flight: oroperation,
committing piracy. (c) communicates information which he knows to be false,
the safcty of an aircra in light. thereby endangering
2. Any porson also commite an offence if he:
20(b). UN Socurity Council
Resolution 820
21. United Nations (1993). (u) attompls to commit any of offences
Convention
22. Ibid., Aticle 100.
on the Law of the Seu, Article
101. or
the mentioned in paragraph I ofthis Article
(b) is an uccomplico of a person who comnits or
oflcnce. ullempts to commit any such
 321

80 INTERNATIONAL LAW PosITION OF INDIVIDUAI. IN INTERNATIONAL LAw 81

India on 12 November 1982
and the Convention came into force on 13 either in contentious cases or advisory proceedings in the International Court of
1982. Decemher Justice. Individuals, therefore, lack procedural capacity to enforee their claims
The above-mentioned Conventions forbid the International Court of Justice. However, this does not mean that individuals
individuals from committing ofence have absolutely no power to enforce their claims in intermational sphere. Intemational
of hijacking which is treated as a crime
against mankind. lawhas witnessed some developments which have enabled individuals, althoughin
a limited manner, to enforce their claims in the international bodies. The
5.2.5 Kidnapping of Diplomatic Personnel and other Persons and developments which have conferred limited procedural capacity on the individuals
Attack on Diplomatie Misslons are described as below.
The first Convention on this
problem was drafted by the Organization of American
States (OAS) at a Special Session in 1971. The OAS Convention provides the 5.3.1 European Conventlon for the Protection of Human Rights
kidnapping, murder and other assaults against the lifc or personal integrity of thosc and Fundamental Freedoms
persons to whom the State has the duty under intemational law to give special (Signed in Rome, on 4 November 1950 and entered into force on 3 September
protection, as well as extorsion in connection with those crimes, shall be considerecd
1953).
common crimes of international significance, regardless of motive. If the fugitive is it
is
not surrendered for extradition because of some legal impediment, the State in
One of the greatest achievements of the European Convetion that demonstates
that international law has reached to a point where an individual not only has rights
which the offender is is obligated prosecute if the act has been commited
found to as
in its teritory. In order to make this procedure effective, it has become necessary to and duties under intermational law but can bring a case before an intermational
Convention is
first establish a firm obligation to prosecute where extradition is withheld, and organ, even against his own govenment. The object of the European
to protect rights of the individual citizen. The intemational machinery set up by
the
secondly, a clear basis for jurisdiction based on the character of the ofTenco,
European Convention consists of European Commission of Human Rights and
regardless of the place in which the crime is committed." The issue was laken up
by the Intemational Law Commission and subsequently General Assembly, which European Court of Human Rights." The Commission may receive petitions from
individuals claiming to be
on 14 December 1973 unanimously adopted a Convention on the Prevention and any person, non-govemmental organizations or group of
the victims of a violation by one of the High Contracting Parties of the rights set
Punishment of Crimes against Int_rnationally Protecled Persons, including forth in this Convention."The principal function ofthe Commission is to investigate
Diplomatic Agents, patlemed aler the OAS Convention.
alleged breaches of the Convention and to secure, if possible, a friendly setulement
of the matter. Ifa friendly settlement is achieved, a brief report is propared and sent
5.3 PROCEDURAL CAPACITY (PowER OF INDIVIDUAL TO to the States concermed and to the Secretary General of the Council of Europe
for
ENFORCE THEIR CLAIMS IN INTERNATIONAL SPIIERE) publication." The report is confined to brief statement of facts and of the solution
reached. If the attempt at friendly settlement fails, the Commission draws up
a

The status of individuals as subjects of international law appears to be ohscure in cther the facts found disclose a breach by the
report stating its opinion as to
view of the fact that they have no locus standi in proceedings before International State concemed of its obligations under the Convention. The report is
transmitted
the
Court of Justice. Only States may be parties in contentious
cases hefre to the Committee of Ministers and the States concerned who shall
not be at liderty
International Court of Justice." Therefore, non-State entitics and individunls have to publish it" 1If the question is not referred to the European
Court of Human
no locus standi in the contentious cases before the Court. The position
is different transmission of the
Rights within a period of three months from the date of the
with regard to advisory opinion of the Court. States and individuals have o lorus report to the Committee of Ministers, the Committee of Ministers
decides by a
standi in the advisory proccedings before Intermational Court of Justice. The (icneral majority of two-thirds of the Members entitled to sit on the
Committee whether
Court of Justice to decides in
Assembly or the Security Council may request the Intermational there has been a violation of the Convention." If the Committee
give an advisory opinion on any legal question."Other organs of the Unitcd Nations affimative, prescribes
it the measures to be taken. The decisions of the Committee
which at time be so authorized by the Cieneral
and Specialized agencies, may any of Ministers are binding.
Court on legal questions
Assembly, may also request of their advisory opinios of the
within the of their activities. Thus, individuals have no locus standli 31. The European Convention of l Human Rights, Article 19.
arising scope
32. Ibid., Article 25, para 1.

Indian Journal of
33. Ibid., Article 30.
27. Gurdip Singh. 'l.egal Control of International Terrorism', 34. 1bid., Anicle 31.
International Law, 17, 1977. pp. 77-78.
35. 1bid., Aricle 32.
Article 34, para 1.
28. Statute of the Internutional Court of Justice, 36. Ibid.
1.
29. United Nations Charter, Article 96, para
30. 1bid., Article 96, para 2.
 INTER
IN INTERNAIIUNAL LAW
82 INTERNATIONAL LAW POSITION OF INDIVIDUAL

As regards European Court of Human Rights, only the High ContractingPartie Human Rights Constilutes a big step forward :

The luropcan Convention on

individual in international law. The Convention grants
and the European Conm1mission of Human Rights have the right to
bring a case establishing the status of the
before the court." The judgement of the Court is final" and is transmitted to individuals to enforce their claims in international
tle limited procedural capacity to
Comnuitlee of Ministers which supervises its executions." individuals to file petitions in the European Commission
The European Commission, during the early sphere by enabling the Comission and conscqucnt transmission
stages of its work declared nake observations on the report of the
admissible two cascs, namely, Lawless against Ireland and De Becker observations to the European Court of Human Rights.
against
Belgium. The former related to the detention wilhout trial of an alleged member of by the Commission of such
the Irish Republican Army and the laltcr to a
prohibilion pronounced on a war-time Conventlons Sponsored
collaborator against excrcising his profession of journalist. Thesc cascs
werc
5.3.2 Inplementation of Human RIghts in
examined by a sub-commission, which was unable to by the Unlted Natlon
reach a friendly
with the result that the reports were drawn up by the Commission and settlement, and Cultural Rights;
the Committee of Ministers early in 1960. Within the
submitted to In 1966, International Covenant on Economic, Social
following three months, the International Covenant on Civil and Political Rights; and Optional Protocol to the
Commission decided to transmit these two casces to the Court. The
considered that they raised important questions of principle in the
Com1mission International Covenant on Civil and Political Rights were adopted by the United
the Convention which were more suitable for application of Nations General Assembly in 1966. These instruments came into force in 1976.
judicial decision by the Court than The atriking characteristic of these instruments is that these contain machinery for
for decision by the Commitlee of Ministers, which is
In this way, European Court of Human
essentially a political organ. the implementation óf human rights. The individuals have no role to play in the
Rights was seized of its first business. implementation machinery of the two Covenants. However, the Optional Protocol
In Lawless case," the Commission came to the conclusion that
the facts found to the Covenant on Civil and Political Rights provides for the rights of individuals
did not disclose a breach of the Convention
by the Irish Government. The to petition the Human Rights Committee established under the Civil and
Commission transmited its report to the concemed State
Party and the applicant. Political
The applicant was informed that the document must be Rights Covenant. The communication under the Protocol is inadmissible if it is
kept secret. The individual anonymous or is an abuse of the right of. submission of such communication or
gave his observations on the reporl and sent these to the Commission.
The incompatible with the provisions of the Covenant." Ifno condition of inadmissibility
Commission then asked the Court to give lecave for it to
submit, as one of the
documens in the case, the applicant's observations on the
report. The lrish of the communication is found to exist, the Committec brings it to the attention of
Govemment objected both to the communication of the
to the proposal that his comments
report to the applicant and the State allegedto be violating a provision of the Covenant and the receiving
ahall submit to the Commitlee written explanation or statements
State
should be subnitted to the Court. The Court clarifying the matter
rejected the objections of the Irish govermment and upheld the and the remedy, if any, that may have been taken by that State." Before
procedure followed going into
by the Comimission. On the merits, the Court held that the the merits of communication, the Committee must ascertain that the same matter is
detention without trial was justified by a complainant's arrest and not being examined under another
procedure to international investigation or
the respondent country, Ireland, within the
public emergency threatening the life of settlement and that the individual has exhausted all available domestic remedies."
meaning of Article 15 of the European The role of the Human Rights Committee is to evaluate the situation and forward
Convention, and that this emergency had been duly
the Secretary General of the Council of notified under this Article to its views on the facts and question of law,
Europe. ifany, to the individual and the'govermment
The De
Becker.case resulted in a change of legislation, namely amendments to concemed. It does not play conciliatory role in its consideration of communications
the Belgian Penal Code. So also as a from individuals.
consequence of the Bolgian vagrancy cases
(1966-72) Belgian lawwas amended, revising the former rules under which vagrants
At itu thirty-second session held from 21 March to 8
April 1988, the Human
might imprisoned without right of appeal.
be Rights Committee examined a number of Communications submitted to it under
The European Court of Human the Optional Protocol. In one of the cases, namely, Blom v
Rights has tumed to be very busy court, It has
decided many cases concerming violation of human No. 191/1985, Commonwealth Law
Sweden, Communication
pending in its docket. rights ind has number of cases Bulletin, .14, pp. 821822 (1988), the Human
Right Committee, on 4 April 1988, gave iu conclusions. The main issue before
the Committee was whether the author of the Communication was a victim of a
37. Ibid., Article 44. violation of Article 26 of the Covenant on Civil and Political
Rights which provides:
38. 1bid., Article 52.
39. 1bid., Article $4.
40. Lawless case, American Journal
of International Law, 56, 1962, pp. 187-210. 42. Optional Protocol to the Intemational Covenant on Civil and
41. Becker case, Yearbook Political Rights, Article
PP. 320-37.
of the European Com vention on Human Rights, 1962,
43. Ibid, Article 4.
44. 1bid., Article 5.
 LAW 85
OF INDIVIDUAL IN INTERNATIONAL
POSITION
84INTERNATIONALLAW for the Law
International Tribunal
the mechanisms for setling law of the sea disputes. to settle the
All persons arecqual before law and are entitled without any discrimination to Chamber having jurisdiction
and of the Sea shall have seabed Disputes
cqual protection of law. In this respect, the law shall prohibit any diacrimination of the resources of
International Seabed Area
guarantee to all persons equal and effective protectlon against discrimination on any
disputes relating to exploitation cases ofcontractual disputes
national national jurisdictions). In
gTOund such as race, colour, sex, language, religion, poltical or other opinion, (Seabed and Subsoil beyond International Seabed Area,
the jurisdiction of
of the resources of
or social origin, propety, birth or other statu. involving mining Intemational Seabed Authority
extends to States Parties,
Seabed Disputes Chamber Authority entrusted
with
school who of International Seabed
The author of the communication in this case was a pupil of private or Enterprise (an organ
lInternational Seabed Area),
State enterprises
as he was not given educational allowance for
the school the of
responsibility to mine
resources
alleged discrimination contractors can enforce
in Seabed
schools entitled to education allowances
and naural or juridical persons."
Thus, individual
year 1981-82 whereas pupils of public of
were
that the State party's contractual claims mining of the resources
concerming
for that period. The Human Rights Committee observed Disputes Chamber their Convention on the Law of
the
educational system provided for both private and public education.
Therefore the International Seabed Area. Clearly, therefore, UN to enforce their claims
to act in a capacity on the individuals
Committee concluded that the State party could not be deemed Sea confers limited procedural International Tribunal for the
Law of the
of subsidy for the two Chamber of the
discrimination fashion if it does not provide same level
the in the Seabed Disputes

types of establishments. The Human Right» Committee has examined various Sea.
petitions filed by individuals concerming violation of their human rights.
the status of the
The Optional Protocol, thus, contributes towards strengthening 5.3.6 Internatlonal Criminal
Court
himto file petitions in the Human Rights
individual in intermational law by enabling established under Rome
Satute of 1998 jurisdiction
has
Human Rights are violated. International Criminal Court
Committee if his rights under the Covenants of commission of international crimes specified
accused of the
to prosecute individuals
individuals have no locus
standi to rigger the jurisdiction
in thestatute. However,
All
5.3.3 International Conventlon of the Ellminatdon of of the Cour.
Forms of Racial Diserimination, 1966
Elimination of Racial
The Convention provides that Committee
on the 5.4 CONCLUSION
or group of
Discrimination shall receive communications from individuals individuals have rights and
international law show that
of his rights set forth in the Convention." The above developments in in
individuals in case of violation situations, they can enforce their rights
In certain
duties in international law. at
individuals do not have procedural capacity
international sphere. Admittedly, is concemed.
International Centre for the Settlement of Investment Disputes their intermational claims
534 States insofar as enforcement of
par with the of intemational law.
established of their status as subjects
The Intermational Centre for the
Settlement of Investment Disputes was Yet, individuals are not deprived intemational community inasmuch as they have
Settlement of of
on 14 October 1966.
It was created by the Convention on the Individuals, today, are members enforce their rights in certain
States. The Centre grants intemational law and can even
Investment Disputes between States and nationals ofother rights and duties in international community, they have status off
insofar the
individuals as of the Centre extends
jurisdiction circumstances. As members of
the
international law. In
procedural capacity to objects of
out of an investnment between a contracting State are not
subjects of international law. Theytaditional link
mere
intermational
to legal disputes arising directly to the fractured ofthe State between intemational
of a contracting State designated fact, international law has
(or any constituent sub-division or agency
parties
which the the individuals as members of
national of another contracting State, law and the individuals by selecting national States. What
Centre by the State) and a
The parties shall settle even against their respective
the dispute consent in writing to submit to the Centre" community for rights and duties, of individuals is the fact that their
to of the status
conciliation or arbitration" does not matter for detemination than the capacities
their disputes either by from and less in number and
substance
capacities may be different is the fact that individuals cannot
for the purpose
of States. What does not matter and cannot
International Tribunal for the Law of the Sea and cannot have belligerent rights
53.5 make treaties, cannot acquire territory What matters is the fact
1982 provides for the Intemational Court of Justice.
on the Law of the Sea, enforce their claims in the because
United Nations Convention the members of the irternational community
International Tribunal for the Law of the Sea as one of that individuals have become in intermational law, at
establishment of to enforce their rights
they have rights, duties and capacity the status of
individuals cannot be denied
least in cetain situations. Therefore,
on the Elimination of
All Forms of Racial Discrimination,
45. Intemational Convention subjectsof intermational law
Article 14.
Investment Disputes, Article 25.
on the Settlement of the Law ofthe Sea, 1982,
Article 187(¢)
46. Intermational Convention 48. UN Convention on
47. Tbid, Article 34.
 RECOGNITION 87
cluins ended und where French, British and Spunixh cluimg begun. To the North th
exucl lelimitution of the frontior with the terrilories of Oreul IBritain was not setled
until many yeurs luter. And yet, I maintain that, In tho light of history und in the liohs
of the pructice and ucceptance by other Slutcs, tho exiutcnce of thc United Slutecaof

6 Ameicu was not in qucstion before its Mnul boundurics were delcrmined.

The requirement of permanent population has also presented problems. How

many people are required? 1The proliferation ofvery snall independen! 'sovereign
Recognition Stules,the 'miniStates'indicate thatnamininmalnumbercanbe suggestcd.Nauru
winh6,300 people has been considered a State as has Liechtenstein wilth 20,000
people.' With regard to territory no rule preacribes 1 minimum. Monaco, for
CXanple, is only 1.5 sgquare kilometer in sizç. Tho speculative questions, however,
Intermational community of sovereign States faces the problom of recognition of a ure: can an arliicin installation on the seabed beyond national jurisdiction have a
State when old States disappçar or unito with other States to forma new State, or lerritoriul basis for a claim ol atatehood? What about a pormanent colony in outer
apucc?
disintegrale and split into several new States, or former colonlalorYASSal teritorics With regard to the requirement of
may by a process of emancipation themselves attain statelhood. The problem of insisted upon. No one
government, its eflectiveness is not generally
recognltion ofa govemment arises even In the case ofexisting States us revolutions questioned
that the former Belgian Congo
occur or milllary conquests ofloctod, and the status of the now government
are Slute when it became independent though, like Pinland in 1971,(Now Zaire) was
it was in a state
of civil war and virlual
becomes a matter of concern other Stales, which fornierly had relations with the
to anarchy. The sume could be said of Burundi
displaced Oovemments.' In additlon to recogniltion of States and botlh uunied indepondence when they were without an cllective and Rwanda,
States, International comnunity of soyerelun States government of
Article 4f the Charter of the United Nations governunent.?
ncea the prablenmofrecnunition Unitca sinions is open to peaco-oVIg Stales wTclhspocificdthethat membership in the
of entities cntitled
to the rights belligerency,
of the recognitlon of entities cntitled
to be consldered as
insurgent governnients, inthe present Charter and, in the judgement of the nccept obligations contained
recognilion of national liberation lo organization, are able and willing
movements, rocognition of terrltorial changos, new Ireaties, elc. carry out Dhese obligations. The harter stipuation
membership of the organization. Yet it may isin directed
of Slutes to to the admission
a certificate of most instances amount to
6.1 RECOGNITION OF STATE statehood.

(Montevideo
should
Convention stipulates that the Statos as a
person of international law 6.2
RECOGNITION OF GOVERNMENT
posscss the following qualiflcatlona: (a) a
pormanent population; (b) a deflned
territory; (c) government; and (d) capaclty tó enter into relatlons with other State Rocognition of State is not the same as
a
The requirement of definitonoss of
terltory is not they olon go togother in tho case of new recognitlon of its government although
example, in the case of recognitlon of lorael in 1949, itsgenorally insisted upon, for
Comgand ko and normally the changosStates. Within existing States, governments
delermined. Profovsor Jesup, then Unitod Staten boundurlos were not finully changes in government occur, forelgn ralse no question of recognitiop. When
representative to the Securlty
Council, advocating the admislon of leraol to the United
Nations, said:
the question
of whether the new rogimegovernments are
is in fact in controlçoncerned primarily with
guidanco may be drawn from of the government. The
one do00 not ind In the goneral closulc troutment
of this subjoct uny inslstenco applicant for membership must bo Articld4f the ON Charter which requires that an
that the torritory of State
u muet be exeotly Maed
by doflnite ronliere. Wo all know Charter and is able and willing peaco loving, accepts the obligations
thet,hlotorloully, many Stalos have boyun their oxlatenco with thelr
momberuhip can bo carriod out only to caTy out îhose obligations. The of the UN
which in factobligations of
Let me take au
one examplo, my own counlry, the United frontiern uniettled,
State of loraol In lio
orlgin, It had
Indelerminale clalma to an oxtended
Slatog of Anverlca. Like the
certeln territory ulony the sos coaut. It had varlous
powor to do uo. Whero a
revolutlonary by_govornmonts
governnont prosents itaelf as possess the
Stalco, that loand had not evon been torr|tory westwurd. Dut, In the cuse of
Unlted .
Jonup,The Conditlons of ropresonting a

oxplored, and no one know just where the Anvoricun Statehood'

Ruconds, Vol. 3, 383rd Meeting, , United Natlons Security
No. 128, 2 December Councll Olcial
4. J.
. .0.
Rapoport, Sinall Stater and Terrltorles, A UNITAR
1948, pp. 9-12.
Starko, Introduction to nternattonal huppenod to tho Unlted Natlona Minlstate Study, 1971;
2. Convention on Rlghta and Luw,
Dutlos of Stutes,
p. 125.
aw, 71, 1977, p. 110. Problem?', AmerlcanJournal ofOunter, 'What
signed ut Montevldeo, 193), Articlo . S.
.Higgins, Development of Internatilonal Luw Internatlonal
lted Nutlons, pp. 21-23. through the Polittcal Organs of
the
 RECOGNITION 89
88INTBRNATIONALLAW
6.4 ESTRADA DOCTRINE (NO NECESSITY OF RECOGNITION)
State, in rivalry to an existing govemment, the question at issue should be which of
direct In 1930, the then Minister of Foreign AMirs of Mexico, Estrada, stated that his
these two govemments in fact is in a positiontoemploy theresourcesand the govemment would no longer issue declarations in the sense of grants of recognition
people of the State infulfilment ofthe obligations of membership. In esence, this
means an inquiry as to whether the new govemment exercises efTective authority inasmuch as such acourseis an insulting practice. This doctrine is popularly known
habitually as Estrada Doctrine. it has been adopted by a number of other govemments. The
within the teitory of the State and is obeyed by the bulk of the population.
When the General Assembly considered the question of the criteria for choosing Estrada Doctrine is generallyunderstóodto mean thatrecognition ofgovemment
berween fival govermments, majority
the of govemments rejected the 'obiecive isunnecessary onge the State has beenrecognized.
Professor Richard Baxter suggested that recognition is an 'institution of law
testproposed bythe United Kingdom based oneffective control overallInstead ornearlyit
allofthe teritory and the 'obedience ofthe bulk of population.' thatcausesmoreproblemuthanilsalves.and theefare.mustbe.sajected." Anumber
recommended: 'whenever more than one authority claims to be the govermment ofStates indicated that they had abandoned traditional recognition policies and
entitled to represent Member State in the United Nations, and this question becomes
a substituted the Estrada Doctrine or some equivalent by which they accepted whatever
the
asubject of controversy in the United Nations, question should be considered govemment was in effective control without raising the isaueal recagnition." A
study Whichfavours theEstrada Doctrine recognizes that most States that express
in the light of the Purposes and Pringinlca of the Charter and the cireumstances of
Leach case" This resolution was intluenced obviously by the attirude toward allegiance to the doctrine actually consider political factors in granting or withholding
communist China, then engaged in armed hostilities against the United Nations recognition"
Force in Korea. However, the reluctance
to adopt a testpurely factual
a
conception of 'recognition' as involving value judgements. Such value judgements
relects
and 6.5 THEORIES OF RECOGNITION
may be based on national interest in the specific sense of national policies
alliances. They may also be based on more general principles such as observance There are two main theories of recognition, namely, constitutiveand declaratory
lefn
of human rights. The very broad formmula adopted by the General Assembly According to constitutive theory, act of recognition alone confers intemational
room for these conceptions personality on an entity purporting to be a State or clothes new govemment with an
authority to enter into intemational relations. In efTect,politicalactsafrecagnition
6.3 ACT OF RECOGNITION-LEGAL OR POLITICAL on the part of other States constiqute or createthenew State or govemment. Thus,
constitutive theory looks at the acts of recognition to decide whether an entity is a
The practice of States shows that States have frequently delayed, relused, or
State. This amounts to saying that the very existence of a State may depend on the
for reasons
eventuallyaccorded recognition to newly fomed States or govemments political decisions.afather.Stales. Obviously, constitutivist theory is unacceptable.
thatlacked legal justification." In acnual practice, recognition is much more a question An entity which meets the conditions of statehood cannot, because of the lack of
State is conditioned principally
of policy than law. The policy of the recognizing which lie in
rccognition, be denied its right or escape its obligations. Its territory cannot be
by the necessity of protecting its own interests, maintaining proper considered to be no-man's land. Ships flying its flag cannot be considered stateless.
State govemment that is likely to be stable and
relations with any new or new
Norcan such a non-recognized entity evade the duties of States in international
permanent.' In fact, act of recognition is influenced by political, economic and law. In fact, non-recognized Statçsare oftenchargedwithviolations ofintemational
strategic considerations. Consequently, there is an iresisnble tendency recognizing
in
awand areobjectsofinternationalclaimaby thevery Statesrefusing recognition"
convenient camouflagefor political
States to use legal principles as arealism decisions. Furthermore, recognitionis politisalast and policiesofnon-recognition num outto
of is a
recognition and not a legal
political
Thus, in the sense profound be examples OI political non-recognition ofthekind Arbitrator Tn had to deal
question. with in the 7noco Concessions case." The constitutivist approach, however, cannot
be absolutely discredited. The theory finds support in the fact that only upon
6. G.A. Res. 396 (v), 5 G.A.O.R. Supp. 20 (A 1775) at p. 24 (1950)
7. Louis Henkin et al., International Law-Cases and Materials, p. 187.
States, and
8. For example, in the First World War, Great Britain, France, the United
11. Baxter, 'Foreword
other Powers recognized Poland and Czechoslovakin before these countries actually to Galloway, Recognizing Foreign Govemments"', p. xi (1978).
12. Galloway, Ibid., p. 10 and Appendix 'A".
existed as independent States or goernments. In the Second World War, the grant of
ranks in the 13. Galloway, Ibid., pp. 137-18.
recognition was conditioned by the supreme necessity of strengthening the 14. Louis Henkin et al., International law-Cases and
struggle against the Axis Powers. Political and diplomatic oonsiderations alsa explain Materials, p 171
15. lan Drownlie, 'Recognition in
the puzzling divergencies among States since 1948. Theory and Practice', The Stnucture and Pmeess of
9 JG. Starke, lntrodhuction to International Law, pi 125. International Law, in R.St.J. Macdonald and Douglas M. Johnston (eds), 1983,
p. 635.
10 Ibid, p 126
 RECOGNITION
90INTBRNATIONAL LAW from alleging
later that the
govermment was
in law)by such prior non-recognition
constituted one. The principle of estoppel was no
a duly and properly
ogntiandoes iberecognized Sateor sovenmentacquire any status as such,in in fact
estoppel to prove the truth must rest on
the municinalcourts.ofihe recasnizing Stat. applicuble in such a casc. An equitable
to be estopped which had led the person claimine
The declaratory theory holds the opposite position. According it, new State
to a
previous conduct of "the person will injure him. In the present case,
orgovemment existsoriortorecognitionandrecognitionismerslyadeclaralion to the estoppcl into a position in which Uhe truth
goverunent to come into power
of the
that elect. Recognition has evidentiary value nasmuch as it is an evidence non-recognition may have aided the succeeding
on the de facto existence of the previous
fastwhich already exists (i.e. prior to recognition). Accordingly,a State nmay exis but suhsequent presentation of claims based
to the succceding govemment
without being recognized. The prinmary function oI ecognilion accanliny 1o governnenl and its dealings did not work an injury
the concession was hel
eciaratoy TNEory, Tsto acknowledge the fact of the new Statc'i paliticalexistence in the nature of a fraud or breach of faith. However, finally
as an intemational constitution but the Bank should be awarded
and to declare therecognizingSatr Kmiltnenessto the entity
treat to be invalid under Tinoco's own
erson, with the rights and obligations of States. The bulk of international practice deccased brother to whom some of the
certuin interests in the estate of Tinoco's
supports the evidentiary theory. In 1936, Institute de Droit International stated: puynents had been made.
constitutive theory. It contains
The above-mentioned award goes against the
The existence ofa ncw State with all the legal consoquences attaching to this existenc which means notwithstanding internal alterations in the
principle of continuity
is not affected by the refusal of recognition by one or more States." of or in the constitutional structure of a particular State,
organizution gqvernment,
under international
the State itself continues to the bound by its rights and obligations
Evidentiary or Declaratory theory finds support in the fact that recognition has lHence, each successive govenunent is,
law, including treaty rights obligations.
and
frequently been withheld for political reasons. Another factor which supports the
sa nulc, liable for the acts of its predecessors.
theory is the rule that recognition of a new State has retroactive cflcct, dating back with other States?
Is there a govermment with the capacity to cnter into relations
to its actual inception as an independent Stale. when they
ls it, in that sense, independent? In ascertaining these facts, cspecially
The 7inoco Concessions casel" supports evidentiary theory. In this case, Tinoco are in dispute, States and international bodies will generally give weight
to
overthrew the govermment of Costa Rica in January 1917, assumed power and aler of or refusals to recognize
recognition by other States. Consequently, acts recognition
holding elections promulgated a new constitution. In August 1919, he left the country in determining controversial
and his government fel. The new administration restored the old constitution. In nay have a significant and at times decisive role
situations. For this reason, the theoretical gup betwecn declaratory and constitutive
August 1922, the govermment of Costa Rica enacted the Law of Nullities No. 41,
views is rather less in practice than in theory.
invalidating all contracts made by theexecutive power with private persons with or
without the approval of the
legislative power during the period ofthe 'Tinoco regime. 6.6 1S TIERE A DUTY OF REcoGNITION?
The Tinoco govemment which had not
been recognised by Oreat Britain hadyranted
a concesion to a Britiah Compainy and was heavily indebted to the Royal Bank of
llerach Lauterpacht" and Paul Guggenhein" hold that recognition is constitutive,
Canada, a British Corporation. By Law No. 41, buth theso obligations werc
has
abrogated.
but that there is a legal duty to recognize. This standpoint becn vigorously
criticized as bearing no relation to State practice and for its inconsisteney, since in
Great Britain's arguments were twofuld: firstly, Tinoco governnicnt was thhe only
an oblique way it comes close to the declaratory vicw. In principle, the legal duty
two years and nine months and
government of Costa Rica de facto and de jure for can only be valid if it is in respect of an entity already bearing the marks ofstatehood
its and that
during that time, there was no other yovenunent disputing sovereignty, of its and (although Lauterpacht does not express it thus) it is owned to the entity
it was in peaceful adninistration of the whole country with the acquiescence concerned. The argument postulatea personality on an objective basis.
decree avoid
people; secondly, the succecding government couldCostaby legislative
not
ln uctual practice, recognition is an optional and political act and there is no
Rica, inter alia, contended
responsibility for the acts of preceding govermment. is to
legal duty in this regard. However, in a deeper sense, ifan entity bears the marks of
that Oreat Britain by her failure to recognize the Tinoco government estopped statehood, other States put themselves at risk legally if they ignore the basic
dependent the acts and contracts of the Tinoco
urge clains of her subjects upon obligations of State relations. Few would take the view that the Arab neighbours of
govemment. Isracl can aford to treat her as a non-entity: the responsible United Nations
organs
Goveriument of Costa Rica which and individual States have taken the view that Isracl is protected, and not bound, by
The arbitrator held that the Revolutionary
properly constituted government, although not of the United Nations Charter governing the of force.0 In this
came into power in 1917
a the use
was
principles
not estopped (i.e. precluded
recognized by Great Britain and that Great Britain was
18. llersch Lauterpacht, Recognition in International Law, 1947.
Intarnatlonal, 1936-72, p. 300. 19. Traite de drolt internatlonal, 1053.1,
pp. 190-91.
16. Annuaire del' Insttut de Droit
case), 1923, Unlted Natlons 20. Lvuis Henkin et al., Internattonal Law-Cases and Materials, p. 179.
17. Grcat Britain Costu Rica Arbitrution (7noco Concesslons 369.
Arbitral Awards, 1923, Vol. 1, p.
Reports of lnternational

92 INTERNATIONAL LAW
State
context of conduct, there
is a duty to accept and apply certain fundamental
rules of intemational law. there is a legal duty
to recognize
for certain purpones at
least, but no duty to make an express, public, and political determination of the
question or to declare readiness to enter into diplomatic relations by means of
recognition. This latter type ofrecognition remains political and discretionary. Even
recognition is not determinant of diplomatic relations, and absensc of diplomatic
relations is not in itself non-recognition of the State."
6.7 COLLECTIVE RECOGNITION
Does the admission of a new State to an international organization such as the
United Nations imply collective recognition? The prevailing opinion denied that
acquisition of membership in the United Nations is equivalent to recognition by al
Members of the Organization." Admission to the Organization certainly mcans
that all Members must treat the new fellow Member as an equal partner in law in all
matters relating to the application ofthe Charter, particularly as far as the 'principles
embodied in Article 2 of the UN Charter are concerned. To this extent, common
membership means that the newcomer is partially recognized. But apart from that,
all States are free to decide whether, to proceed to full recognition or limit their
relations to the minimum.
When an entity claiming to be independent is admitted to the United
the question as to whether it possesses the sociological requirements of a State,
loses much of its interest. The Member is protected by the principles of the UN
Charter and procedures ofenforcement. It can invoke Article 2, paragraph 4. which
the threat or use of force and its domestie jurisdiction is frec from
prohibits
intervention under Article 2, paragraph 7, Since the United Nations Organization,
according to Article 2, paragraph 1, is founded on the principle of the sovercign
equality of all its Members, the new member can claim legal equality with any
Member State of United Nations. This means that recognition ofa State, although
very important in former times, has now been substituted to a large extent, but not
from all aspects, by admission to the United Nations,
6.8 DUTY OF NON-RECoGNITION OF ILLEGAL STATES
Is there a duty not to recognize illegal States? The issue has been accorded treatnment
in the resolutions of GeneralAssembly and Security Council. In 1976, South Africu
declared the territory of Transkei to be a sovereign and independent State and by
legislation declared that South Africa shall cease to exercise any authority over the
said territory" The facts in this case clearly demonstrate that Transkci was politically
and economically dependent on South Africa. The UN General Assembly adopted
a resolution by unanimous decision referring to the "independence' as 'Shum' and
21 Ibid
22. Mosler, The International Society us a Legal Community, 140, Reeuell dex C'nurs 140,
1974, p. 1.
23. Status of Transkei Act, 15, International Legal Materlals, 15, 1976, p. I.
RECOGNITION 93
to consolidate
declaring it invalid. It condemned such 'bannustans' as designed
domination and to dispossess the African
aparnheid, perpetuate
to white minority
rights. All governments were called upon deny any
to
people of their inalienable
so-called independent Transkei." In 1965, the Security
form of recognition the
to
to recognize illegal 'minority
Council passed a resolution calling upon all States not
of self-determination."
regime' in Southerm Rhodesia which violated the principle
Rhodesia would have met the
At the time the above resolution was adopted,
the effective
traditional criteria of independence. Itu government was clearly
to enter into foreign relations. Nonetheless,
the Security
authority and had capacity
not recognized as a
Council resolution was accepted as definitive; Rhodesia was
international organization. Does
State by any government or treated as State by any
has
the decision in regard to Rhodesia confim that a new requirement of statehood
been introduced-that a new State will not be recognized ifit is a 'minority regime
to the extent of
which violates the principle of sclf-determination? Fawcett went
must meet the requirement that 'it shall not be
based upon
stating thata new State
of certain civil and political rights including in
a systematic denial in its territory
of his country,
particular the right of every citizen to participate in the government
and necret sufTrage."*
directly or through representatives elected by regular, equal
6.9 RECoGNITION DE JURE AND DE FACTO
Nations Recognition de Jure means that according to the recognizing Stale, the State or
governmentrecognized formally fullils the requiremientä láidcownby intemationa)
law for cffective participation in the international community" Recognition de
means that in the opinion of the recognizing State, provisionally and
facto
temporarily and with àll düc reservations for the fülure, the State or govermment
recognlzed fulfils the above feqüitemñlá in fackDë facto récognition ofa State
or government takes place when, in viewoftherecognizingState,the newauthority
although actually independent and Wíelding ellective power in the territory under
its control, has not acquired suflicient _tability or doea potAS yeLolloproepects of
complying withömerrequirémentáöf recognition such as willingnoss or ability to
fulfl international obltgarlons." Incãse oflegallyconatituted govermment giving
way to a revolutionacy regime, de facrg recognitionganeeally-pueoede-de-jue
recognition. In such a case, recognizing State acknowledges that there is a legal de
jure govenment which ought to possess the powers of sovercignty, though at the
time it may be deprived of them, but that there is a de facto government which is
really in possesion of them, although the posnesion may be wrongful or precarious.
24. G.A. Res. 3116A, 31 G.A.0.R., Supp. 39 (A/31/39) at p. 10 (1976).
25. Security Council ofthe United Natlons, 10 November 1965. 1265th Meeting. Sccurity
Council Res. 217, 20 SCOR, Resolutioits and Decisions at p. 8.
26. Fawcet,'Security Council Resolutions on Rhodesia', British Yearbook ofIntermationa
Law, 1965-66, p. 112.
27. J.G. Sturke, Supra note 9, p. 137.
28. Ibid.
29. L.Oppenhcim, Internationallaw-A Thratiler, Vol. I,p. 135.
 94 INTERNATIONAL LAW

De facto recognition secures RECOGNITION95

State, enabling it to considerable economic
or protect the interests of its advantages to the recognizing
citizens in the territory of that State that teritory is to.recognize it as sovereign, and for the purposes of international
govermment. At a later
because the future of the stage, when the hwed for reservations no law us a foreign sovereign State. It does not appear to be material whether the
new State or new longer exists
recognition is formally granted. reglme is completely assured, de jure toritory over which it exercisos sovereign powers is from time to time increased or
The terms
dejure and de facto are fraught with diminished. In the present case, we secm to be dealing with a claim based upon a
pseudo legal terminology they ambiguities which stem from the lagislative decrec afTecting merchant shipping registered at Bilbao which was under
and on a desinitive embody, de
basis. It follows that the jure tends to mean without reservation the control of Nationalist govemment. The decree, therefore, was passed by the
recognition may be rather small, and dilerence between
approval and acceptance involved. principally a diference of thededegree
jure and de fucto NOvereign. There is ample authority for the proposition that there is no difference

high degree of political De facto recognition would oflen of political for the present purpose betweenrecognition ofa State defucto and de jure.... The
acceptance and thus the term de facto would signify a fairly non-belligcrent State that recognizes two governments one dejure and the other de
significant level of acceptance with legal indicate a
fucto, will not allow them to transfer their quarrels to the area of the jurisdiction of
implied in the phrase. implications, inspite of the provisionality its municipal courts.
The English courts
gave a high legal value to de The louse of Lords finally decided that Nationalist government, recognized de
Mendl case," a ship called faucto recognition. In
ater the capture of Billbao Arantzazu Mendi was registered at BilbaoAruntzOzu Jucto by Great Britain, was sovereign State and thercfore entitled to immunity. The
port and
Franco's regime) during port by the insurgont forces (Nationalist government argunient put forward on behalf of the de jure government that the insurgent
Spanish Civil War adnilnistration was not to occupy the whole Spain, was rejected. The decision
govemment while sailing on the(1936-38),
the Republican she was lays
High seus. At the timerequisitioned by down the proposition that insofar as conflict of
authority between a displaced de
insurgents had won over the greater part of Spanish of requisition, Jure government and a newly recognized de
General Franco issueda decree territory. 28 March 1938,
On
the territory ruled by the de
sacto govemment concerns matters in
in the British requisitioning this ship. Proceedings were initiated facto government, the rights and status of the de facto
Admiralty Court by the de jure government governnent prevail. The decision, however, has been criticizcd on the
government to recover possession of the ship. against the de,
facto in such circumstances the concession of ground that
immunity from suit accorded to a fully sovereign The de sacto
government
State. The Foroign Office
claimed governnent without
jurisdictional
full sovereignty goes too far." In United
immunity to a de facto
the court of flrst instance to infommed Kingdom, Section 21
the following eftoct: of the State Imimunity
Act, 1978 settlos the controversy. Under this
cortilcuto by or on behalf of the Section,
(a) His Majesty's government of Part I of the Act Secretary State as to whcther, for tho purposes
of
(b) His Majosty's governmont recoynizes the
Spain as a foreign sovereign State: (Privilegos juriadictional immunities) a country is a State,
uny lorritory is a constituent
and
as the
recognizes Spanish Republican govermment territory foderal Stale, and what person or persons
should be regarded as a hoad of the of a
de jure government of Spain:
given conclusive force; the certificategovernniont
of a Stato, hus
(c) His Majesty's government
rocognizes the Nationalist
statutorily been
is to be treated us conclusive
government as a
government which at present exercises de sucto administrative However, a statement by the executive that a evidence.
the larger portion of Spain. The issue before House of Lords control over docs not preclude a British Court from particular government is not recognized
the claim of de sacto was whether holding that such government is a sovereign
governnent prevails over the claim of de Jure governnient," or is in control of the territory concerned," especially in relation too
govemment in case of conflict of
authority between the two. Lord Atkin questions involving jurisdictional inumunity.
not
In India, section 86 of the
held: Procedure Code stipulates that no Civil
foreign State be sued in any court otherwise
compotent lo lry the suil except with the consent mayof the central
The letter from the in writing by a secretary to that government, government certified
Foreign OfMce appears to me to dispose of the
By exercising desacto administrative control or controversy. In an ourlier case, Bank
of Ethiopia w National Bank of Egypt and
control, I understand exercising all the functionsexercising
eflective administrative Jtaly conquered Abyssinia in 1936. 1talian Ligouri,"
necessarily implies the ownersbip and control ofofproperty
a sovereign government... .It
whether for military or
the United government was recognized de fucto by
Kingdonm. enacted certain laws which were in conflict with
It
civil purposes, including vessels whether isued by the exiled omperor of those
warships or merchant Abyssinia the dejure ruler who had been forced to
circumatances, it scems to me that the recognition of a goverumentships.
In these lec from his conquered
country. Justice Clauson held that as the
all those qttributeu in a as
possessing
territory while not subordinato to any other yovernunent in authority
of the de
33. C'ouncel in Civll Air
30. J.0. Starke, Supra note 9, p. 137. Transport Inc. wCentral Air Trunsport Corporatlon, 1953, A.C.,
p. 70 ut p. 75, described the decision us tho
31. lan Brownlie, Supra note 15, p. 636. high water murk of recognitlon
juridictionul immunity in the case of de facto vovercignty. of
32. The Arantzazu Mendi, House of Lords (1939) A.C.. 256. 4, Llgi Aonta of Cienoa v Cechofracht Co. Lid
p. (1939) I All E.R., p. 719. 35. (1956) 2 Q.B., p. 552.
lesperides llolels Ld w Aegean Turkish lHolidays lad. (1978), I, All
M6. (1937)3, All E.R., p. 8. E.R., p. 277.
 RUCOGNITION 97
96 INTERNATIONAL LAW
were a company incorporated in the Empire of Russia. The plaintiffs were
jure ruler was merely theoreticnl and incapable of being enforced, wherean actualy
nanufacturing plywood. Ia 1919, Russian authorities acting under a decree of
the Italian govemment was in control of Abyssinian
torritory and defacto recognized, confincation took over the plaintis factory. On14 August 1920, a representative
effect must be given to the laws of govermment over thoso
de facto ofdeJureruler of Russian commercial delegation in London made a contract with defendant
The above cases and holding in Akstonalrnoye Obschestro A.M. Luther v Jamen company, aDritishfirm, for selling to this firm a quantity of plywood confiscated
Sagor and Co." reveal high legal valuo given by English courts to de facto from the plaintiT. The defcndant company imported the wood into England. The
recognition. The later case gave expression to the proposition that the de facto plaintif company claimedthethe defendants
goods seized in 1918 as their property and asked for
recognition by Great Britain of a foreign govemment is as conclusively binding. an injunction reatraining from selling the wood in question. The
while it lasts, upon an English Court as de jure recognition. Thus, there is no in
noticenble difference in legal value of and dejure recognition. These two
de facto
defendants, turn, claimeud that the
seizure of the wood and its subsequent sale to
themwere ncts of the Sovict govemment and conferred a clear title to the purchasers
forms of recognition have similar legal implications. The injunction anked for was gran o the p tis. The defendants appealed.
is
The remarkable fact is that the terminology de facto and de jure recognition The issue before the the
Court of Appeal was whether the Russion govemment had
disappeared. In moderm practice of tho lU»itecld
out of fashion although it has not
been recognizcd by British government that its decrees and oficial acts
so

States," the recognition given is "full recognition," "full diplomatic recognition' would be recognized by Dritish Courts. During the pendoncy of the appeal, the
exlent of
and there is no lesser version or half way house. Brownlie goes to the foreign Oice informed the Court of Appeal that His Majesty's government
de and de facto
saying that the standard works, in giving prominence to the Jure recognized Soviet governnment as defacto govermment ofRussia on 20 April 1921.
usage are not atrocities of analysis but are three decades out of
only committing The Forcign Ofice certificate provided no guidance either on the question of
date as a matter of the ordinary description of State practice.
retroactivity in principle or on the question of fuct coneerning the date from which
the
Soviet had
be
exercisced power. The Court of Appeal assumed that recognition
6.10 RETROACTIVITY OF REcOGNITION would in princlple retrouctive and made its own estimate of the beginning date.
The court did not regard the distinction between defacto and lefure recognition as
The important is whether a particular act of recognition ia
practical question crucial, saying that since the British govemment recognized the Soviet govemment
retroactive or not. Every of recognition is not retroactive. This is a prclininnry
act as the govcment really in possession of powers of sovereignty, the acts of that
the intention behind
question of fact. The answer to this, question depends upon
government nust be treated with all the respect due to the ncts of the duly recognized
the relevant
the individual act of recognition which is ascertalned by interpreting foreign sovereign State.
evidence. In other words, In Civil Air Thansport Inc. v Central Atr
statements of the recognizing State and other underlying Transport Corporatlon," "forty aircraf
in legal terms is a matter had been own to llong Kong by October 1949 by
whether a particular act of recognition can be retroactive personnel employed by the
of the context: The recognition of a new State Nationalist government of China which was then recognized by Her
of context and general appreciation Majesty's
the supposition); on the other. hand,
cannot be retroactive ex hypothes! (upon government de jure
as
govemment of These alrcraft were
China. the
purchased by
State can, and normally should be, Nationalist government on 12 December 1949 by two United States citizens, In"
recognition of a new government of an existing
retroactive,0 purtnership, from whom they were bought by Civll Air Transport Inc. Central Alr
Boguslawski," the
In Gdynla Ameryku Lnle (Zeglugowe Spolka Akcyjna) v. Transport Corporation was an organ of the Chincse govemment and its chaiman,
retroactive operation of recognition, the together with the majority of its employees in Hong Kong, had defected from the
Court held that for determination of the
certificate of the executive is to be treated as
of overriding importance. If such Nationalist government and the corporation became an organ
was not intended to relate back, any
of the Chinese People's
certificate plainly shows that recognition govermment. At midnight of 5-6 January 1950, Her Majesty's govemment recognized
whether and to what extent the act of the communist government of China as de
retroactive efllect is excluded. In other words, jure government of that country and
intention of the recognizing
recognition is retroactive must be govemed by the qucstion in issue was whether this recognition could affect the,rights of Civil Air
Transport Inc. under the contract of 12 December 1949.
State.
Luther v. James Sagor and Co.," the plaintis Both the court of first instance atd the Court of
In Aksionairnoye (schestw A.M. Appeal in Hong Kong found
that the December Contract of Sale was inimical to the interests of the Chinese
and Co. (1921), 3, K.D., p. 532 ul p. 551.
Pcople's government and to these of the Chinese people and held that the ownership
37. Ohschestn A M. Luther v. James Sagor and right to possension of the aircraft were in thc
38. Whitemun, Digent 11, pp.
133-467. People's Republic government.
636.
39. lan Brownlic, Supru noto 15, p.
40. Ibid., p. 637.
Linie (Zeglugowe Spolka Akey/na) w Bogulawski, (1953) A.C, 43. Civll Air Transport lne. v. C'entral Alr Transport Corporation (1953), A.C., p. 70;
41. Gdynia Ameryka (1952)2 All E.R., p.733.
p. I1.
42. Obschestvo A.M. Luther v James Sagor and Co. (1921) 3 K.B., p. 532.
98 INTERNATIONAL LAW RECOGNITION 99

The appellants, Civil Air

Transport Inc. appealed to the Judiciul Committee of
the Privy Council which allowed the 6.11 LEGAL. EFFECTS OF RECOGNITION
appeal. Lord Sinmon both
judgement for the Judicial Committee of the Privy Council who delivered the
aflimed that ller KeCognilion confers on the recognized State of
govermment a sta tus unoerDu
Majesty's Govemment in the United Kingdom was the sovercign the muniCIpaio
of niernational law and municipal law.t gets rights of suing in
Hong Kong which recognized the former Nationalist Govemnent govemnient
as the sole de entitled to claim possession of the propy
Ohg recognizing State and becomesrecognizing
jure sovereign govermment of China uplo midnight of 5-6 January 1950 and the Ualed within the jurisdiction of the Stalewhich formerlyhelangcap
to claim
present Communist Govemment was not the de jure government until that time. State also becomes entitled
PrCecaing governmen The recognized recagnizing
As from the
midnight of 5-6 January 1950, I1.M. Government ceased to vereign inmmunityfYom beingimpleaded inthemunicipalcouis ofthe
recognize former Nationalist Government as de jure govemment of China and enter into diplonmatic relations WIlh oger
the capacity to
ate. n als0 acquires
recognized Chinese People's Government as de jure government of China. L.ord States and to concludetreaties with then have generally relused
Simon held: Regarding disabilities of non recognitíon, English courts and to legal acts
Ogive cllect lo legislative acts of unrecognized governments
Rhodesian
The validity of the transaction (for the sale of the oireran) must be judged as at the pursuant to such laws. Theyhave, for example, declined to recognize
divorce decrees emanating from courts under the non recognised regime ol lan
date when it was entered into, and not in the light of subscquent events which
might and
have tumed out differently. On 12 December 1949, the Nationalist Govermment was Smith." 11he Carl Zeiss Stiflung case" involved the validity of legislative
the de jure, govermment.of China of which Central Air Transport Corporation was an adininistrative acts of the East German govemment (German Democratic Republic)
organ and therefore the property in these aeroplanes was in the Nationlist Govemment. which changed the structure of the plaintiff the Carl Zeiss StifNung. The Foreign
The machines had been moved to Hong Kong two months before the contract for Olice certificate said that at the time in question the British government recognized
their sale of 12 December 1949 and it was open to their owners to sell them and de jure entitled to exercise governmental authority in respect
thereby to pass the property in them to the purchasers.
the USSR a of
that zone.. nd have not recognized either de jure defacto
or
other authority
any
in or in respect of that zone. On the basis of that certification, the Court
The Court further held that duly vested proprietorial or other rights, resting
.

held th no cllect could be given to the East German acts. The House of
of
upon a duly efTected disposition or other legal act.by the locmerly tecognized de Lords reversed, holding that, since the acts of the East German govermment were
juregoyemnent çannot be invalidated by the subsequent recognitionde jure of the acts of a subordinate body exercising authority under the control of the USSR,
as
DEw govermnent;
prima facie, recognition operates retroactively not to invalidate the occupying power, those acts were entitled to be regarded as the valid ler domicili
the acts of a former govermment,butto validate the acts of a defacto govemment of the corporation (Stiftung) in question.
which has become the new de jungavermnent.
The crucial question in the present appeal was whether anything that happened
in Hong Kong to these aeroplanes at the instigation ofor on behalfofthe Communist 6.12 WITHDRAWAL OF RECOGNITiON
Govermnent before the change ofrecognition on 5-6 January 1950 is retrospectively Aluhough the oct ofgranting recognition is political, recognition de jure once granted
validated so that the title conferred by the contract of 12 December 1949 is is, generally speaking, irevocable. However, recognition de jure ceases to have
extinguished. The question to be answered concemed chattels in the British colony effect in case ofa definite disappearance of one of the essential elements of statehood
of Hong Kong which at the time of sale belonged to the Nationalist Govemment. or ine Tectiveness of the government. It may happen that a State may lose its
The court held that the Peoples govemment could not show any superior tile or independence or a government may cease to be effective. In such cases, withdrawal
right to possession, nor could it rely upon any rights arising out of acrual possession of recognition de jure is pemissible but most stringent proof is required of the final
acquired in the way it was; and therefore it had no possession which could brjng disappeorance of the essential elements of statehood or of govermmental capacity
into effect the doctrine of retroactivity. Thus, the court allowed the appeal by holding On the other hand, recognition de facto can be withdrawn more easily but in no
that the ordinary principle of continuity was not displaced by any consideration of casg lightly in spite of the fact that revocability is inherent in its concept.
retroactivity and it followed that the Nationalist Govemment was entitled to /On 6 January 1950, when the United Kingdom recognized the govermment of
possession of and had jurisdiction over the aeroplanes. he Poople's Republic of China,concurrently with the recognition of that govemment
The interesting questions which emerge from the above holding are as follows: of the Naionalist goveranent and informed the
Would it make any difference in the decision if it had been the Government of
ahe wildrew her recognition
in
the People's Republic of China that had purported to sell the aircrafn in Hong Kong
Chinete Ambausador
States of America
London accordingly." As of 1 January 1979, the United
the
recognized People's Republic of China as the sole legal
on 12 December? Would it make any difcrence in the decision if it were the
National Government, as in the actual case, that had purported to sell the aircralt in 44. Adums w Adams (1970) 3, All E.R., p. 572.

12 December but the aircrat had been in the Mainland China on 12 45. Carl Zeiss Stifung case (1967) 1 A.C., p. 853.
Hong Kong on 46. Johnsun, Aritish Yearbook ofInternational Law, 29. 1952, pp. 464-68.
December?
 RECOGNITION 01
100 INTERNATIONAL LAW

of governments-in-exile
government of China. On the same date the People's Republic of China accorled of such de jure recognition of
The legal consequences
the exile govemment
sinilat recognition to the United States of America. The United States thereby in municipal law of the control by
included recognition acknowledged
cstablished diplomatic relations with the People's governments also
State. The recognizing
Republic of China, On the anne nssets in the recognizing
over its
nationals abroad. It
was also

date, 1 January 1979, Udited States notified Taiwan that it teriminatecd dliplomutke govemment-in-exile
the authority of the govemment-in-exile applicable to events
relations and the Munual Defence Treaty between United States and the Repble that certain decrees of the courts of the
acknowledged in the municipal
of China. 1The United States also atated that it would be withdrawing lta would be glven effect New
mllitury in the occupied territory Netherlands v Federal Reserve Bank of
personnel from Taiwan within four months, Thereafter, it was mado clcar that the In State of the
recognizing Staten."
Govemment.in-exile
Netherlands
American people and the people of Taiwan would malntain commercial, cultumal, which concerneda
decree
war-time ofthe Nazis in Netherlands,
and other rclations without oficial York securities conflscated by the
government represcntation and withoul to protcctive possession
over
of the decree in its application
diplomatic relations. the US Circuit Court Appenls
of upheld the validity should be cntitled to
It was held that the
legitimate sovereign with
territory. not interfere
to occupied such enactments did
6.13 RECOGNITION OF INSURGENCY AND IWELLIGERENCY Iegislate over occupied
territory insofar as
of the occupying power. of legal efTect by
As a general principle, States maintain a policy of non-interfcrence in the domestie the legitimate rulc were not deprived
govem1nents-in-exile
The decrecs of the In Gdynia Ameryka Linie
aflairs of another State. A stage may come when rebels are in efMective occupation recognition of another govermment.
subscquent dé jure to recover

of a large part of the teritory and exercise authority in that territory. In thene the plaintiff seamen sought
Boguslawski,"
Zeghugowe Spolku Akey/na
v of the Polish
a Minister
1945 by
circumstances, third States, without making a formal pronouncement und without to them on 3 July that
Cverance pay promlsed certified to the Court
secretary
conccding to the rebellion forces belligerent rights, reftain from trenting them ax in exile in London. The Forelgn in exile in London
government P'olish government
law-brenkers, and consider them as the de facto authority in the leritory under had recognized the and thereafler had
the British government 5-6 July 1945,
their occupation. Such attinude is adopted by the third States to maintain with rebels of Poland until midnight government),
us the government
relations deemed necessary for the protection of their nationals, their conwnercial Provisionnl government
of National Unity (Lublin
Poland. The
recognized the new the govenment of
established on 28 June 1945,
as
interests and their sca-bome trade in regard to the territory occupiel. Whenthat
which had been England did not operate
happens, the rebels possess as against third States tho status of insurgenta. A atago of tho Lublin government by
Court held that the rocognition done in England by the exile government
may come when civil war between insurgent forces and parent govemnent anaune of legal effect acts on the fact that
retronctively to deprive The Court relled in part
such dimensions that thlrd States are compolled to trent the civll war as a real war recognized by Lngland. cffective
while it was still defendant's was under the
vessels,
betwecn rival powers. If such a situation occurs, third States rocognilze inaurgont including
the Polish merchant Nect, was made.
forces as a belligerent power. This happens if insurgent forces act under the conmmandd at the timo the promise
control of the exile government intemational conferences
and necessary guarantees of an organized authority in ponsosslon of considerabla in cxile took part in many
The wartime govemment
territory and offer ofcomplying with the accepted nules of war. 1fstate of insurgency thelr
behalf of States
and signed international agreements movements seeking
gets transformed into state of belligerency, the belligerents must act in accordance have also bcen formed by
The Government-in-exile themselves as "provisional
with the laws of war. have often designated
independence. They as such by aympathetic
havo been accorded recognition
governments' and
Princo Sihanouk, who had
6.14 GOVERNMENTS-IN-EXILE international bodion." In 1970,
governments and by govenment-in-exile in Peking8
in Cambodia, formed a
been ousted as head ofState
In contrast to de facto govemments, governments-in-exile lack efToctlve control China and by North Vietnam immediately.
which was recognized by
over the territory of a State and have been accorded dejure recognition. In the pust,
most governments-in-exile based their claim to authority'on contimuly with a
government which had formerly been in effective controlofthe State. States which
continue to recognize such govermments generally did so on the premine that the
territory had been illegally occupied and that tho legitimate government would be Internatlonal law-Caxes and Malerlals, p. 199.
49. L.ouls Henkin et al., New York, 201I F. 2d, 1953,
restored to power in the foresceable future." Several countries occupied by Clerman Netherlands v. F'ederal Reserve Bank of
50. State of the
forces in World War II had exile govermmenta rocognized by tho United Staten and p. 455.
w Boguslawski, 1953, p. 11.
A.C.
the United Kingdom" Lnie Zeglugowe Spolka Akcyna
1. Gdynla Ameryka Public Internatlonal Law, pp. 93-94,
$2. K. Marek, ldentity
and Conttnulty of States In
47. Louis Henkin et al., International Law-Cares and Materlals, p. 199. 439-40.
Internatlonal Law-(ates and
Materlals, p. 200.
48. Drown, 'Soverelgnty in Exile', Amerlcan Journal of Internattonal law, 35, 1941, 53. Louis Henkin et al.,
p 666. 54. lbid. OF LAW
CCLLEGE

CHRIST OAR 680,029.

 *"

RECOGNITION 103
102 INTERNATIONAL LAW

States should relrain from any acts and any

6.15 STIMSON DOCTRINE OF urthor made it clear that Member
NON-RECOGNITION with the South African government inplying recognition of the legality
Stimson doctrine of dealings and administration." The
non-recognition
policy. The doctrine imposed was a statement
of the of, or lending support or assistance to, such presence entered into
brought about in breach
a
duty of non-recognition of all United States nationul Court also felt that the validity of effects of any
relations by any State
of international
law. territoriul acquisitions Namibia ought not to be recognized by the United
declaration of the United States 'The events in the Far lEast led to the
with South Alrica concerning
Stimson in Junuary 1932. In Policy by United Stutes
the Nations or its Member States," It may be mentioned here that the Security Council
under the 1931, Japan invaded Manchuria Secretary of State, Mr has ostablished a body known as the United Nations Transition Assislance Group
The Unitedsovereignty
of China. which wus legally
States refused to Japanese forees conquered Southern (UNTAG) in order to facilitate the early independence Namibia of free through
policy of the United States in therecognize the new situation. Stimson Manchuriu. olections under the supervision of the United Nations. For that purpose, there have
following words: declared the been continuing discussions since July 1982, between oficials of the Government
The United Stutes of South Africa and oicials of the United Nations. Pending the altainment of
cannot admit the
intend to recognlze any legality of uny situation de
sacto nor does it Namibia's independence, the United Nations Council for Namibia has been
thereof, which muy impairtreaty
or
agreement bclwcen thosc
the treaty
rights of governments, or ugents designated by the United Nations as the legal Administering Autlhority.
not intend to
recognize any the United States.. and that it docs
about by situation, treaty or .

meuns
contrary tothe covenants und agrccment which may be brought
27 August 1928 (Goneral obligations of the Treuly of Puris of
Treaty for the Renunclution
6.16 INDIAN POLICY OF RECOGNITION
ofWur).
India's policy of recognition is influenced
On 11 March 1932,
Lcague by political consicderations. It has
upon the of Nations Assembly resolved that it was
Members of the League immediately accorded or
delayed recognition of Statesgovernments
or as her
of Nations not to incumbent national interents dictated. K.P. Misra
or
agreement which might be brought about by mounsrecognize any siluation, trculy argued that in
uccorded recognition us soon as the conditions of recognizing
States, India had
the League of Nations or to the Pact contrary the Covenant of
to statehood had becn fulilled."
of lle made it clear that a substantial
sovereign States, with the adoption of thoParis, The international
United Nations Charter,community of measure of effectiveness had beein the
guiding
tendency towards nccepting the Stimson doctrine principlo of the government of India in recognizing
has shown
changes and treatics thut have resulted from the by recognizing the territorial
not
a
him, in casCs wliere the situation was doubtful in governmenls." According to
the initial stages, India
territorial integrity or threat or use of force to walt und takc the
decision in favour of the prelerred
against the reasonably stable. By citing the case of lsrael, he felt thatwhen
country
inconsistent with the political independence of any Stutc, or in any other conditions become
purposes of manner in doing so, India even
the Law of Treatiestheof
United Nations. Article 52 of risked misunderstanding some
Convention on the Viennu
Misra uclnitted that at
by of her best friends." However, in the next breath,
conclusion has been 1969 provides that a times, India's
the threat or use of force treaty void if its
is recognition policy hacd heen influenced by
procured by extra-legal considerations, i.c.
principles of international law embodicd in the in violation of the
The security, economic and political
recognition policy is not consistent.considerations.
United Nations fact remains that 1India's
General Asse1nbly adopted the Declaration Charter. In 1970, It is not always
concerning Friendly Relations and Cooperatlonon Principles of International Law governed by legal considerations. In fact, India's
States which embodies the
with the recognition
policics of other States and is
policy of recognition falls in line
principles that no teritorial acquisition resultingamong and political considerations. inlluenced by
shall be recognized us from the threat or use of
legal. In similar terms General force attached prinacy to de However, as a matter of generaleconomic,India strategic
itsdefinition on aggression enunciated in Assembly again resolved in factoism and has generally recognized the policy, has
1974 that no territorial facto regimes. Furthermore, India has supremacy of de
special advantage resulting from
The above aggression is or shall be recognizodacquisition
as lawful?
or
movements and helped a always supported national liberation
region in obtaining its political
developments make it clear that the
practice of States has broadened democratic values in the
country in
freedom and establishing
the scope of Stimson doctrine. question. Another striking feature of India's
international community of Contemporary international law imposes upon the
sovereign States a duty of non-recognition of all
teritorial acquisitions and unlawful treaties. This illcgal
affimation. In its advisory principle also received judicinl
has $7. Ibid.
Court of Justice opincd thatopinion
of21 June 1971, in Numibia
case,"
Member States of the United Nations International
$8. lbld.
were under un 59. J.O. Surko, lntroduction
obligation not to recognize the legality of Suuth Africa's 60. K.P. Misru, 'India's
to lnternational
Law, p. IS1
the validity of South Africa's act prescnce in Namibia, or Policy of Recognition', American
on behalf of or $5, 1961, pp. 422-23 Journal of
concerning Namibia.a "The Court 6. 1bld.
lnternational Law,
55. Namibla (South West 62. lbid., p. 423.
Africa) cuse, ICJ Rep, I971, p. 16.
S6. Tbid., pp. 54, S6. 63. Tbid., p. 424.
108 INTERNATIONAL LAW

6.16.7 Palentinlan L.iberatlon Organlzatlon

On 26 March 1980, External
Aairs Minister, P.V.
Parliament that India had decided to accord full
Narasimha Rao, alated In the
diplomatic recognition to the, oflce
.
of the Palestinian Liberutjon
Organization (PL0) in Dolhi." Welcoming Yamser
Arafat, Chairman of the Palestinian Liberation Organization, during his visit to 7
New Delhi, then Prime Minister Mrs Indira Gandhi obsorved:

Our sympathy for the Pulestiniun Arabs has been a

part of independent India's foreign State Responsigility
pollcy from its very inception. Even in the thlrties when we ourselves were atruggling
for fteedom, M.K. Qundhi und Jawaharlal Nehru
spoke agalnat the injusticen to which
Arabs, the Palestiniuna in purticular, were subjected. Thus our support for tho
Palestinian cause hna been lime tested and consistent.... The
has been one of the trugedics of
plight of Paloatiniuna
history. Few people have becen more syslemutically
oppressed and humiliated in thelr own land. I hope lIndeed l am øure-this will change 7.1 BASIS or INTERNATIONAL, RESPONSIN1L.ITY
soon and thut achievement will be the
key to hamony in West Asia. The PIO hns an Intenatlonal obligátion, it
striven to provide its people a distinct and forceful identity. The Palestinian peoplo in Ifa State by its dét or omíssion commits a brehch of of lnternational Justice
turn have entrusted to you, Chalrmun Arafht, the
responsibllity of leading them to incurinternational rosponsibility. The lermanent Court
their destiny. I assure you of the full aupport of the peoplo of India in your atrugglo." observed:

Involvee an obligation
It is principle of intornational law that the broach of an agrcemont
The recognition ofPLO alims India's strong commitment to the principle of
its long standing aupport to national liberation movements. to muke reparution In an acdequuto form. Reparatlon, thereforo,
ls the Indispensable
self-determination
It
and
volumes for India's complement of a fuilure to apply a convention and there.lano necesslty.for thls to.be.
spcaks opposition
to oppressive regimes. slutcd in the convention itsclf.

International Justice,
Afirming the observatien of the Pernmanent Court of
International Court of Justice in Corfu Channel case held Albania liable for certain
laid in her
omissions, in particular the nbsence ofa warning of the danger ofmines
territorial waters. The International Court of Justice stated:

These grave omlssions involve the international responsibllity of Albania. Albania

is responsible under Internatlonal law for the oxploslons which occurred... and for
the damage and loss of human lifo which resulted from them and that there isa duty
upon Albania to puy compensatlon to the United Kingdom.

A State may incur international responsibility either by a direct injury to the

rights of another State or by a wrengflul act or omission which causes injury to an
alien.' In the latter case, the respensibility is attributed to the State of which alien
is a national. Thus, State respensibility arises not only in connection with tho

. Chorzow Factory case (Jurisdictlon), PCIJ Serles A, No. 9, p. 21.

2. Corfu Channel case, ICI Rep., 1949, p. 23.
3. The subject of State responsibility has been under consideration of the Internetional
Law Commisslon since 1955. Since 1973, Internatlonal Law Commisslon has been
engaged in preparing a composite set of articles on responsibility for Internationally
wrongful acls. See The Work of International Law Commlssion 1980', pp. 85-88,
1980.
Part 1ofthe project conslsting of 35 Dran Artlcles, was provisionally ndopted In
76. P.V. Narasimha Rao, Lok Sabha Debates, 26 March 1980. For tcxt, sce tho Report of the Commlasion on the Work of its 32nd acsion, 1980,
77. P.V. Narasimha Rao, Forelgn Aairs Recond, Vol. 26, 1980, pp. 75-76. p. 30.
 10INTERNATIONAL LAW STATERESPONSIBILITY 1
reatment of aliens but also
damage lo another Sate. The acts ofresult
as a
of unlawful acts of State which cause sccondary n1les concenming State responsibility:
hence the clement of damage would
acis which a State
which cntail State be implicit in the first constitutive element.'
endanger
nuclear vessels eRvironment responsibility include
(e.g. by pollution, ultra-hazardous The view of the International Law Commission
is not based on sound logical
or space vehicles), intermational activities by of the primary rule. It is
national considerations. The requirement of damage is not a part
independence, and violation of other norns of(e.g. aggression), denial of
The intemational
peace
comected with secondary rules of State responsibility since
it can be implemcnted
the States. The
international law.
responsibility is distinct from the international A certain conduct is forbidden
or redresod on the diplomatic or judicial plane.
obligations of the States under international ubligalions of because it is likely to cause damage to othersubjects; however StateA only becomes
primary' nles, the breach of which is tie source of
law are described as
The general rules of responsible towards State B if, as a result of forbidden act of State A, State B
international responsibility.
detemine he legal responsibility are referred to as 's¢condaty' inasmuch as they
sulTers danuge. Thus the failure to fulfil an international obligation is a necessary,
consequences of failure to fullil
primary rules' In the words of Intenational Law obligations established by the hut not a sulicient element in the case of international delicts. In order to create
define a rule and the Conunission, it is one thing to the automatic link of responsibility between the acting and the claiming State, the
has been a breach of obligation
it imposes, and
another to deterniine whether fulfilment of an additional condition, namely, damage sulTered by the claiming
that obligation and what there
the second aspect, observes should be the
of International Law Commission, comes consequences. Only Stute, is required."
responsibility proper.' However, all breaches arc not within the spherc
The gravity of a
wrongful act and its consequences affecttreated in the samc way. 7.2.2 Fault' Theory
responsibility.
7.1.1 International Law One vicw is that a State is not
Commisslon on State responsible to another State for unlawful acts
International Law Commission decided to
Responsibility committed by its agents unless such acts are committed
wilfully and maliciously or
with culpable
responsibility in three parts: Part I concerning prepare a Draft Convention on State negligence. "The
view holds that the
nogligence is a condition precedent.
of
presence malice or culpable
responsibility; Part l conceming the content, forms "the origin of international The above vicw is, however, not correct. It introduces subjectivity in the field
responsibility; Part IlI concenming settlement of and degrecs of inlernational
of State
responsibility. What is relevant for the existence of Stae responsibility is
international responsibility. The Part I of its disputes and implementation of
Dran the objective conduct of the State and not the
articles which are described into
five chaplers." The
Convention cunsists of 35 dran psychological attitude uf the individuals
Comunission at its thirty-scond acting as organs of the Stato. A State is liable for the errors of
session, in 80, commenced the consideration of part two of the draft agonts, even if they made such errors in judgement of its
the topic. articles on
element of malice or culpablo
good faith and without motivation by any
Court of Justice detemined the
negligence. Corfu Channel case, International
In
7.2 CONSTITUENT ELEMENTS OF INTERNATIONAl. ,intemational responsibility of Albania without
resorting to the concept of fault, which was invoked instead by the dissenting judges
RESPONSIBILITY in their individual
opinions. The Court reached its conclusion by holding
had been a violation pro-existing obligation:
ofa that there
7.2.1 'Damage' Theory a State wbich knows or should.
know that a minefield has been
The Intcmational Law Commission has nol lreated States of its existence." It didlaid in its territorial waters is obliged to notify other
not reach that conclusion
"damage' separate constituent
as a mental stale óf any individual organ or by an enquiry into the
element of State
responsibility. The Special Rapporteur Ago argues that the agent of the Albanian Government.
Undoubledly, in general, rules of international law do not contain
requirement of damage is really conlained 'a
in the prinary rules and not in
the requirement of malice or culpable negligonce as a condition of general floating8
4. The Declaration on
Principles of International Law Conceming Friendly Rclations Particularly. in cases involving nuclear activities, there has to beresponsibility.'
some fom of
and Cooperation among States in
accordance with the United Nalions Churter,
by the General Assembly in 1970, inter alia, udopted
proclains that a war of aggression
constitutes a crime against the peace, for which there is
1. Yearbook of Internalional Law Commission,
1970-11, pp. 183, 308.
law. responsibility under intemational 12. Eduardo Jimenez De
Arechaga has rightly remarked: "The
5. Yearbook really expression of the fundamental legal principle thatrequirement
an
of damage is
of the International Law (Commission, 1973-11. pp.
6. Ibid., p. 170. 169-70. ction unless he has an interest of a
no one can maintain an
legal
suffered by one State that entities that
nature. It is alway the element of
damage
7. lbid. parlieular State to claim against the State which
8. Yearbook of caused the demage, and demand redres.' Sce Arochaga, "Intemational
9. Report of ILC
International
its
Law Commission, 1980-11, pp. 26-63, Doc.
A/3S/10. Recuell Des Cours, 159 78-1, p. 296. responsibility',
on 36th session, 7 May-27 July 1984, O.A.O.R., 13.
Supplement No. 10 (A/39/10).
39th session, Judge Krylov, Disenting Opinion, Corfu Channel (Mertts) case, ICJ
He emphasizes that State Rep., 1949, p. 4.
10. Supra note 5. 14. Ibid.
responsibility presupposes culpa.
 STATE RESPONSIBILITY 113

difficult to grasp." The

112 INTERNATIONAL LAWw make both of them more
of the two subjectu could only for risk1 resulting from
lawful
rulos concerning the liability conventional law, has
strict or absolute liability. The safety of international community cannot
be enaurod difficulty in codifying from
to be activities is that this type of responsibility
only results
under a system whereby a State would be responsible only if it were proved since it deals with exceptions
no basis in customary
law or general principles and, the specific
negligent in the management of nuclear fuels and nuclear
installations,"
be extended to fields not
covored by
rather than general rules,
cannot
circumstances demand that
There are, however, certain specific cases where
instruments0
wilfulness or malice, negligence may
or be necessary to render a State responsibility;
acts of insurgents or
for exatmple, if a State knowingly connives in the wrongful ATTRIBUTION)
rioters, it would become liable, or ifit wero negligent failing provide
in to adequate
7.3 THE ACT OF STATE (RULES OF
premises against the injurious acts of demonstrators ifan agency of State A has
police protection for diplomatic
The term 'atribution' means
imputation. For example, be
There are also certain intemational conventions of International law, State A will
or rioters, and damage occurred. State B in breach
Caused injury to a citizen of oflicial
rules in respect of sea or space accidents which allocate responsibility done. The wrongful act of the organ or
establishing reaponsible to State B for the injury
on the basis of the fault of tho individual operator result of the intellectual
State." This imputation is the
ofa State is imputed to the of the organ or
the gap between the delinquency
operation necessary to brldge the State. It is only if
to
the
of breach liability
and
7.2.3 'Absolute Llablity' and 'Risk' Theory oficial, and the attribution responsible for the
State becomes internationally
establishes the liability of States arising breach is imputable that a be attributed to the
State
The theory of 'absolute liability' or 'risk' breaches of duty by State agencies may
activities which are lawful but create serious clolinquency. The under municipal law such acts
out of the performancc of certain international law, even though
However, the principle of risk is applied, according to nules of for example, the agency
risks, such as spatial and nuclear
activities. attributed to that State, because,
circumstances and conditions would not have been international law
of responsibility, but in its authority" Here,
not as a general principle concerned had acted outside the scope of
conventions. or official exceeded the
which areclearly defined in international entirely autonomously. Although,
the State organ
to the
in the Convention on Intemational acts
international law will attribute liability
The principle ofstrict liability finds application
Space Objects, annexed to Gencral ARsembly authority confered by municipal law, of State forces in a town in Mexico was
Liability for Damage Caused by In Yoymans case," a lieutenant
Article II ofthe Convention provides State. riots against and
of the town to proceed with troops quell
Resolution 277 (XXV1) of29 November 1971. to
compensation for damage caused ordered by Mayor
the
The on arriving at
that a launching State is absolutely liable pay troops,
to Amorican citizens.
made on certain
the surface of the earth or to aircraft in flight. The practical stop attacks being the mob, opened fire on the house in
by its space objects on kind the scene of the riot, instead of dispersing
difficulty which the victim faces in proving any
other two
and killed one of them. The
for this is the which the Americans were taking refuge
reason
extreme
into space. did
or organizations launching objects
so were
of negligence on the part of States then forced to leave the house,
and as they
for injurious American citizens were
established a reglme of strict liability
series of treaties have
of peaccful uses of nuclear energy" 19. Supra note 5, p. 169.
consequences arising
out
Commission decided not to codify the. topic
of State 273.
The International Law
20. Arechaga, Supra note 12, p. the word
the liability for risks The lnternatlonal Law Commission preferred
and the rules concerning 21. Sturkc, Supra notc 15, p. 294,
responsibility for unlawful acts
the ground thut this would obviate the umbiguities
for the reason that a joint cxaminution attribution' to 'imputation' upon
which are used in an entirely
resulting from lawful activities simultaneously, inherent in the notions of 'imputation' and 'imputability',
see Report of the
Commission
of intemal criminal law,
diferent sense in certain systems
session (1970), pora 77; also sce Articles 7-10 udoptcd
on the work ofits Twenty-second
to International Law, p. 302. seaslons (1973-75).
15. J.G. Starke, Inioduction itn 25th scsslon, 1973, by the Commission at its 25-27th Responsibility,
law Commlsslon on the Work of Commission'a Dran Convention on State
22. Article 10, International Law
Internatlonal
16. Report ofthe refers to thia cHAC of Article 10 deals
Dran Article 3 on State Responsibility, Intewnational law Comnmlssion, pp. 171-74.
parn 58, in notcs
on
sce 1976 Report of the outside their competence or
negligence. to with 'attribution to the State of conduct of organ acting
Uniflcation of Certain Rules of Law with rexpect und reads as follows: "The çonduct
17. International Convention for the contrury to instructions conccrning thelr activity'
International Convention for the Uniflcation or of an entity cmpowered
to
Collisions between Vesscls, Brussels, 1910; of an organ of a State, or a territorial government cntity
the Limitation of Owners of Seagoing
Vesscls, Brussels, acted in that capacity,
of Certain Rules rclaBing to cxcrcisc clements of the governmental authority, such organ having
Certain Rules relating to the under international law cven if, in
that
Convention for the Unlfication of
1924: International Convention on shall be considered ns an act of the State'
1961; Article Ill ofthe 1971 according to internal laws or
Carriage of Passcngers by Seu, Brusscls, particular case, the organ exceeded its competence
International Liability for Daniage Caused by Space Objects. contravened instruction8 concerning its actlvity.
1960;
in the Field of Nuclear Energy, Paria, Also Annual Digest of Public lnternatlonal
18. Convention on Third-Purty Liability 23. Quoted in Starke, Supra note 15, p. 295;
see

of Nuclearships, Brussels, 1962; Vienna

Convention on the Liability of Operators Law Cases, 1925-26, p. 223.
Brussels Convention on
Convention on Civil Linbility
for Nuclear Damage 1963;
by Sea of Nuclear Materials, 1971.
Liability arising from the Transport
 114 INTERNATiONAL, LAW STATERESPONSIBILITY
Draft Convention
killed by the troops and the
mob. The Law Comnission, in
its Article 7, para 2, of the State
had disobeyed of an organ of an cntity which is
their action in
opening fire. It was held thattroops
the Mexican
superior orders by Responsibility has made it clcar that the conduct
for the govemment or of terrilorial governmental entity, but
wrongful
of their authority.
acts of the soliders
even though
was
responsible not part of formal
structure of the State
they had acted beyond the scope the intermal law of that State to
exercise elements of the
In a case where the which is empowered by
State shall be considered as an act of the Stale under international
law, so that the acts were organ official had no such authority under municipal governmental authority,
or
in question. The
completely in that capacily in the cose
Where an ultru vires, no attribution of
liubility ariscs." law, provided that organ was acting
incompetent State
have acted on behalf of the agency commits ultra vires acts, it cunnot be said to purpose of Article 7, para 2,
to cover cntitics such as public or public utility

State. However, even in these authority. The idea is that State

comorations cmpowercd to cxercise governmental
may become responsible if
through the omission or defaultcircumstances,
a Slate
its intermational responsibility in certain circumstances
of other officials or should not he able to cvade
organs, it has facilitated the commission of exercise of some clements of the governmental
independent duty of international law, such as
the ultra vires act, or has
broken un solely because it has entrusted the For cxample, a
commission of the wrongful act, or to take duty to take steps to restruin the uuhority entities separate from the State machinery proper.
to
measuros to prevent the to which police powers have been granted may cngage
the offence. recurrencc of railway mining
or company
In cases involving the responsibility of the State for injury to an alien.
illegal acts committed
or official of the State, no attribution of by private persons and not by an organ
acting on bchalf of the State.* But State liubility
ariscs if such person were not
SPECIFIC CASES
in fact acting on responsibility arises if such persons were
behalf of the State." Thus Stlate responsibility arises ifa State fails 1. P'ollutlon: In Trall Smelter case,' the arbitration grew out of air pollution from
in its duty of
repression and punishment of the
inspired tho illegal uct or acts committed, or ifguilly persons, or if it has actually
it has ratified the unlawful act «or
Bulphur dioxide fumes cmitted by a smeller plant at Trail, British Columbia, owned
acts. In fact, before a State becomes by a Canadian Corporation. The Arbitral Tribunal held Canada responsible and
implied con1plicity in the wrongul actinternationally
liablc, there must be some directed injunctive relief and payment of indemnity by stating:
elther by negligent failure to prevent the
injury, or to investigato tho case, or to punish the guilty offender. The responsibility Under the principles of international law, us well as of the law of the United States,
of aState also arises ifa person or a group of porsons was in fuct exercising clenments
no Stule hus the right to usc or permit the use of its territory in such a nmanner us to
of the governmental CuuNc injury by fumos in or to the territory of another or the propertics or persons
authority in the absonce of the oflicial authorities und in therein, when tho case is of serious consecquenccs und the injury is cstablished by
circumstances which justifled the cxercise of thosc clements of
the sphere of State responsibility includes the cases of authority" Here, clcur and convincing cvidenco.
persons who assume public
functions in order to perform services wlhich are essential because of The Arbitral Tribunal afirmed the principle that a State owes at all times a duty
circumstances; for oxample, discharge of such public functions duringexceptional a military
to protect other States against injurious acts by individuals from within its teritory
invasion in the absence of oflicial bodies, or
during natural disusters, such as
carthquakes or floods in the absence of oflicials. The qualification is that the 2.
Attack on 1Diplomatle Mission and Datentlon of Iumates as Hostages: In the
case of United States Diplomatie and Consular StuTin Tehran" on 20 November
cirçum_tances mustjustify the exercise by privat persons of the necossary clements
of authority." Thus, tho activities of private persons are attributed to the State only 1979, the United States of America instituted proceedings against Iran. The dispute
arose out of the situation of United States
in exceptional circumstances where there is some genuine connection ofsuch private Embassy in Tehran and Consulates at
Tabriz and Shirez, and the Seizure and detention as hostages of its
activities with State activities. diplomatic and
consular staT in Tehran, International Court of Justice held Iran responsible for the
The next question which arises is whether a State would be responsible for acts
acts of its nationals
of an
that is not part of the govermmental structure, but has been empowered
entity
to exercise functions akin to those normally exercised by the State. International Attributability to the Iranian State of the acts complained of and violation by
Iran of certain obligutions
24. Starke, Ibid. Also vee Report of Sub-Committee of Committece of Experts for the It is relevant to consider the following events in order to determine, how far, the
Progressive Codification of International Law, League of Nutions Doc. C. 196, M.70, acts complained of may be attributed to the Iranian State (as distinct from the
1927, V, p. 97.
25. Starke, Ibid., p. 296. 30. Supra note 26, Anticle 7, para 2.
26. International Law Commission's Draft Convention on State Responsibility, Supra note 31. US Canada, UN Rep., Int. Arb. Awards, 3,1941.
22, Article 11, para 32. United Stales of Amerlea w Iran, IC. 1980, p. 3. The Court also declared
27. Ibid., Article 8, para I. provisional moasures which are reporteod in ite provisional judgement dated 15
28. Ibid., Article 8, para 2. December, 1979 (UCI Rep., 1979, p. 21). The Mnal judgement was delivered on 24
29. Starke, Supra note 15, p. 298. May 1980.
 STATE RESPONSIBILITY 117
116 INTERNATIONAL. LAw
militants became
into acts of the Iranian State: the
States, those acts were translomned for their
occupiers of the Enmbassy) and whether they are compatible or inconpatihle with of that State, which itself became internationally responsible
agents underwent no material
Iran's obligations under treatics in force or other applicable rules ofinternationn acts. During the six months
which ensued, the situation
measures
law. December 1979 declaring provisiqnal
change: the Court's order of 15 declared that the detention of
the
was publicly rejected by Iran,
which Ayatollah
taken decision as
Iranian Parliament had
a
(a) The Events of 4 November 1979 the
hostages would continue until
new

The first phase of the cvents underlying the Applicant's claims covers the arnied to their fate. to
to continue the subjection of the Embassy
attack on the United States Embassy carried out on 4 November 1979 by Muslim The Iranian authorities decision and multiple
the detention as hostages, gave rise to repecated
student followers of the Imam's policy (hereinafter refcrred to as 'militants'), occupation, and its sta(f to
the appropriation breaches of Iran's treaty obligations
overrunning of its pre1nises, the scizure of its inmates as hostages,
authoritics in the face of
of its property and archives, and the conduct of the Iranian
these occurences. (c) Possible Exlstencc of Circumstances

The Court points out that the conduct of the militants on the occassion could be considered that it should exumine
the question
that they were in The Intemational Court of Justicc tlhe cxistence
attributed to the Iranian State only if it were established Iranlan Govemment might bo justified by
directly whether the conduct of the
ATairs had alleged in
fact acting on its behalf. The informntion before the
Court did not susice to cstablish for the Iranian M inister for Foreign
this with due certainty. However, the Iranian
State which, as the State to which the ofspecial circumstances, the United States had carried out
criminul activities
his two letters to the Çourt that could be considered
take appropriate steps to protect that even ifthcse alleged nctivities
mission was accredited, was under obligation to in Iran. The Court considers
the attack, stop it before it reached tho United State's claims, since
the United States Embassy did nothing to prevent as proven, they would
not constitute a defence to
withdraw from the premises and release the off diplomatic relations, or of
its completion or oblige the militants to diplomatic law provides the possibility of breaking
who
inaction was in contrast with the conduct of
the Iranian authoritics mcnmbers of diplomatic or consular missions
hostages. This
at the same period, when they had
taken uppropriate declaring persona non grata Tho Court concludes that the govemment of
on several similar occasions illicit actlvitien.
Court finds, a clear and serious violation of Iran's
obligation may be carrying on the United States Embassy and
its stafTinstead
steps. It constituted, the Iran had recourse to coercion against
Vienna
to the United States under Articles 22(2),
24, 25, 26, 27 and 29 of the 1961 use of the normal mcans
at its disposal.
Articles S and 36 of the 1963 Vienna
of making
Convention on Diplomatic Relations, of
Article I1 (4) of the 1955 Treaty.
Convention on Consular Relations, and of (d) Internatlonal Responsibllity
failure to
1963 Convention had been involved in
Moreover, further breaches of the successive and continuing breaches of
the consulates at Tabriz and Shirez. This Court finds that Iran, by committing the 19S5
protect Vienna Conventions of 1961 and 1963,
conclusion that on 4 November 1979, the the obligations laid upon it by the
The Court is, therefore, led to the incurred
their obligations under the Conventions
in of general international law, has
Iranian authorities were fully aware of Treaty, and the applicable rulen
need for action on their part, that they
had the mcans at As a consequence, there is an obligation
force, and also of the urgent responsibility towards the United States. caused to the
but that they completely failed to do so. on the part of the Iranian
State to make reparation for the injury
their disposal to perform their obligations, out that breaches are still continuing,
the
United States. Since, the Court points
determined.
since 4 November 1979 form and amount of such reparation cannot yet be fact that it is
(b) Events the particular
the gravity of the case, arising out of the
the United States claims comprises
Afterstressing the inviolability of an
The second phase of the events underlying of the Embassy by not any private individuals or groups that have set at naught
which occurred following the occupation which the mission is accredited.
whole series of facts of the State to
militants. Though it was the duty
of the Iranian government to take cvery Embassy, but the very government intemational community to the ireparable
the The Court draws the attention of the entire
inviolability of the Embassy premises
appropriate step to end the infringment ofthe it did nothing of the kind. Instead, harm that may be caused by events of the
kind before the Court.
for the damage,
and staff, and to offer reparation
were immediately heard
from numerous Iranian authorities.
expression ofapproval Iranian State's endorsement of both (o) United States Operatlon In Iran on 24-25 Aprll 1980
Ayatollah Khomeini himself proclaimed the
He described the units on
the seizure of the premises and
the detention of the hostages. With regard the operation undertaken in Iran by United States military
to
to oxpress its concem. It
feels
declared that the hostage would (with
some

Embassy as a 'centre of espionage', 24-25 April 1980, the Court says that it cannot fail
States had retumed the former bound to observe t an operation undertuken in those circumstances,
from whatever
remain 'under arrest' until the United
exceptions) United States on for the Judicial process in
and forbado all negotiation with the motive, is of a kind calculated to undermine respect
Shah and his property to Iran,
State had thus given approval to the
acts
of the Iranian international relations. Nevertheless, the quostion
of the legality of that operation
the subject. Once organs
decided to perpetuate them as a
means
of pressure on the United
complained and of
 STATERESPONSIBILITY 119
118 NTERNATIONAL LAW
the State becomes
established governmenit,
can have bearing on tho evaluation of Iran's conduct on 4 November, 1979. The
no overthrowingg the c o m m e n c e d . The
inaurgents succeed In forces sinco the
rovolution
findinge reachod by the International Court of Justice aro therefore not affected by responaiblo for the acts of tho robel become the political
authority
the operation. succeed and
the insurgents who finally by the plea the
that
rGBBOn ls that disclaiming heir
responsibility
the State are stopped from
3.Miltary and Paramllitary Actlvltles: In the case concerning Military and or individuals.
injury was caused by private
Paramlltary Activlties in and against Nicaragua," it is claimed by Nicaragua that USS Vincennes, during
United States has been engaging itself, since March 1981, in the we of On 3 July 1988, the
force against 5. Aorlal Incldent of 3 July 1988: Persian Gulf, shot
down Iranian
Nicaragua through tho instrumontality of a morcenury urmy of more than 10,000 Surface cngagement with Iranian gunboats
in the
1989, Iran filed a
men recrulted, paid, oqulpped, supplied, trainod and directed by the United States. membera. On 17 May
As a result,
Aircraf killing 290 passongers andcrew
President oflered compensation
Nicaragua suffered grievous consequences consisting of huge lo_s of CAe againat US notwithstanding the fact
that US
life and damayo to property. Nicaragua victims.
argues that United Statos has violated and on ex gratu basis to the familios of
is violating its exprcss Charter and
treaty obligations by recruiting, training, aming,
cquipping, financing, supplying and otherwise encouraging, supporting, adding and
7.4 INTERNATIONAL CRIMES AND DELICTS
directing military and paramilitary actions in and against Nicaragua. Nicaragua
requested International Court of Justice to declare provisional measuros holding international crimes from
The International Law Commission has distinguished
United States responsible for use of force against State Responsibility. Article 19 of
the Court to direct United
Nicaragua. It further requested intornational delicts in its drat Convention on
States to cease and desist from such use of force the dral Convention reads as follows
immediately and declare that United States has an obligation to pay Nicaragua is
1. The act ofa State which constitutes a breuch of an internationul obligation
reparations for damagos to person, proporty and Nicaraguan economy caused by the
the foregoing violations of intermational law in a sum to be detormined by the Court. an internationally wrongful act, regardless of the subjcct matter of
The Intemational Court of Justice,
pending its final decision in the proceedinga obligation breached;
instituted on 9 April 1984, by the Republic of Nicaragua against United States, 2. An internationally wrongful act which results from the breach of an
indicated the provisional measures. It, inter alla, directed United Stales to international obligation essential for the protection of fundamental interests
immediately cease and refrain kom use of force against Nicaragua. On 27 June of the international community that its breach is recognized as a crime by
1986, the International Court of Justice pased judgement on merits holding United that community as a whole, constitutes an international crime;
States liable for acting in breach of its obligation under customary international 3. Subject to paragraph 2, and on the basis of the rules of intemational law in
law by training, arming, cquipping, fInancing and force, an intoernational crime may result, inter allu, ftom:
supplying the contra forces or
otherwiso cncouraging, supporting and alding military and paramilitary activitics (o)serious breach of an intenational obligation of essential importance
in and against Nicaragua, The Court called upon the United States to
in1mediately for maintenance of international peace und security, such as that
cease and reftain from such activities and make reparation to the Republic of
prohibiting aggression;
Nicaraguafor all injury cauaod Nicaragua)
to It was decided that the forn and (b) a serious broach of an international obligation of essential importance
amount of such reparation, failing agreement between the Parties, would be settled for safeguarding the right of solf-detormination of peoples, such as that
by the Court, Je) prohibiting the establishment or maintenance by force of colonial
domination;
4. InJuries Sustalned by Allens on Account of Insurrections and Clvil war:
The general principles governing rosponsibility for the acts of individuals apply
(c) a serious breach on a widespread scale of an international
obligation of
essontial importance of safeguarding the human
here also and consequently, a State is responaiblo only if it is alleged and proved being. such as those
prohibiting slavery, genocide, apartheid;
that the goveramental authorities falled to exercise duo diligence to prevent damage. (d) a serious breach of an international
Thus, in general, the acts of insurgents cannot be altributed to the State. If the obligation of essential importance
33.
Micaragua
p. 14.
w United Sates
of Amerea, ICJ Rep., 1984, p. 169, 1CJ Rep., 1986, time of civil war became associated in Latin America with the name of the
Argcntine
publicist Calvo (Calvo doctrine). Calvo argucd that u State could not
33(a). IC Rep., 1986, p. 14, Reproduced in indian Journal of International Law, 26, accept
responsibility for losses suffcred by foreigners us a result of civil war or insurrection,
1986, 181-304. on the ground that to admit
33(b). lbid.
responsibility in such a case would be the
menace to the
independence of weaker States by subjecting them to the intervention of
33(¢). lbid. and would establish an unjustifiable inequality between nationals and strong States,
34. The general principle that the Stete is not responsible for loses incured by aliens in Charles Q. Penwick, Internatlonal Law, p. 341). foreigners (see
 STATE RESPONSIDILITY 121

than codification of
precedents from
120 INTERNATIONAL LAW needs of the international
comnunity, rather
that it relects
modern
shows
such Case law" The reception
given to the proposal requirements of the
for the safeguarding and preservation of the human environment, in State responsibility
and meets the present
developments
prohibiting pollution of the atmosphere or of the
sens.
as those
world community.""
its Dra
international crime in Law Commission in
4. Any internationally wrongful act which is not an Crimes: International of
delict. Consequences ofInternational consequences
accordance with paragraph 2, constitutes an intermational
elucidated
Part II has
Convention on State Responsibility,
Dral reads as follows:
that the origin of the distinction crimes. Article 14 of
its
The Special Rapporteur, Prof. Ago, recognized international
internationally
between intermational crimesand international delicts may be found
in the oblter
international crime entails all the legal consequences ofan
are detemined
Barcelona Traction case, wlhere the 1. An and obligations as
dicta of the International Court of Justice in the in aldition, such rights as a whole.
wrongful act and, the international community
Court referred to the nules aecepted by
by the applicable entails an obligation
for every
State
crime committed by a
of a State towards the internutionul 2. An international
Essential distinction between the obligations
those arising vls-d-vls another State in
the ficld of other State:
community as a wholc, and of all States. by such crime; and such
situation created
protection. By their very nature the former are the concern recognize as legal the
diplomatic (a) not to which has committed
all States can be held to huve a legal or assistance to
the State
In view of the importance of the rights involved, (b) not to render aid such crime; and
interest in their protection; they are obligations erga omnes" the situation created by out the
crime in maintaining assistance in carrying
mutual
of tojoin other States in affording
however, has not based its designation (c)
The International Law Commission, obligations under paragraphs
(a) and(b).
considered
character of the obligation. It nule of general
intemational
international crimes on the erga omnes an applicable
a breach of an obligation erga
constituted otherwise provided for by article
that while an international crime always 3. Unless 1 of the present
omnes always arising under paragraph
it could be said that the breach of an obligation erga
not law, the cxercise of the rights arising under paragraphs I and
2 of
omnes,
of the law of the sca the obligations
constituted an international crime. For example,
the rules and the performance of to the proccdure embodied
is not necessarily mutatis mutandis,
but the breach ofthose obligations the present urticle are subject, maintenance of intemational
impose obligations erga omnes, international crime adopted by Charter with respect to the
an international
crime.3 In fact, the definition of in the United Nations
of treaties
that
parallels cogens in the law
of jus peace and security. between the
International Law Commission event of conlict
of the Commission that the category
of obligadons of the UN Charter in the
4. Subject to Article 103 present article
and
inspite of the observation the category of obligations whose under paragraphs 1, 2 and 3
of the
is much broader than obligations of a State of international law, the
admitting of no derogation under any other rule
breach is necessarily an
international crime7 its rights nnd pbligations
licts entails the following article shall prevail.
The distinction between international crimes ando obligations under present
Robert Ago: in its IDran Article 15
consequences as
described by the Special Rapporteur International Law Comission
has further emphasised
entails all the legal conscquences
an act ofuggression
crimes the breach of the obligations
would entitle subjcct (Part 11, Drall Convention) that
In respect of international entailed by the brcach,
invoke the responsibility of an international crime.
other than thc State directly injured
to
in its own
delicts only the State directly injured
while in the casc of international of the Stute
submit a claim invoking the responsibility THE BREACH OF AN
interests has the right to 7.5 FORMS OF REPARATION FOR
an international wrongful
act." INTERNATIONAL OBLIGATION
committing
intemational
remarked that the distinction between incumbent upon it for breach ofan
Jimenez de Areclhaga has rightly A State discharges the responsibility basic
Judge constihutes basic response to the present the injuries caused. With regard to
intermational crimes and
intermational delicts obligation by making reparation for Justice made
Pennancnt Court of Intemational
principles governing reparation,
the following ohservatio:
added: 'Such obligations
ICJ Rep., 1979, p. 32. The Court
35. Barcelona Traction case, of acts of
international law, from the outlawing
derive, for example, in contemporary rules concerning the busie
from the principles and Cours, 159, 1978,
aggression, and of genocide,
as also
Arechaga., 'International Responsibility', Recuil Des
from slavery and acial discrimination." 39. Jimenez de
rights ofthe human person, including protection
.275.
Law Commission, 1976-1, p. 71.
36. Yearbook Internatlonal
of 40. 1bid.
120.
37. Ibid., Vol. 11, Part 2, p.
Doc. A/C.N.4/291, Add.2, p. 14.
38. Prof. Ago's Fourth Report,
 122 INTERNATIONAL LAW
STATE RESPONSIBILTY
reparaion must, as far as possible, wipe out all the ofthe Dralt Convention on State
and reestablish the situation which wouk, in all consequences of the illegal act reparalion recognized in Article 6 (2) sponsibility
committed. Restitution in kind, or ifprobability, have existed if thal act (Part ) of the Intemational Law Commission which mentions that the injured
had not boen
sSum
corTesponding to the value which a restitution this
need be, of
is not possible,
payment of a Stute may require the State which has commited the internationally wTongul act
kind or damages for loss sustained which wouldinnotkindbe would bear, the award, if to pay to it a sun of moneycorresponding to the valuc which a re-cstablishment of
payment in place of it such are the covered by restitulion in the situation as it existed before the breach would bear."
the amount of principles which should serve to determine
compensation due for an act
contrary international law"
to

Arechaga points out that the forms of 7.5.3 Satisfaction

indemnity or satisfactions. reparation may consist in restitution,
This thid fom of reparation is appropriate for non-material damage or moral injury
7.5.1 Restitutlon to the of the State. The illustrations of satisfaction are
dignity personality
or
presentation of official regrets and apologies, the punishment of the guilty oflicials
Restitution in kind is
wrongful act or designed hadre-esablish
to and particularly the formal acknowledgement or
if the the situation which
would have judicial declaration of the unlawful
which the State failed omission
to
not taken
place, by performance of the existed
character of the act"
wrongfully removed or discharge: revocation of the unlawful obligation
Court of International abstention from flurther wrongful act, return ofa property
is the normal Justice implied in the conduct. The Permanent 7.5.4 Cuarantees Against Repetitlon
form of
in kind is not reparation and indemnitypassage
could
quoted above that restitution
only take iu International Law Commission has
afirmed that possible." The Intermational Law Commission inplace provided in its Draft Convention
ifrestitution Responsibility that of the forms of
on State
re-establishment of the situation as it existed its 36th session one
require the State committing an reparation is that the
injured State may
an
important form of reparation.4 before the act constitutes internationally wrong ful act to provide appropriate
guarantees against repetition of the act." The naturc and
has effect of such
7.5.2 Indemnity not been
specified. guarantees
The Dran Convention of the
This is the most that thhe injured State International Law Commission further provides
usual
valuable things. Since form of reparation since money is the may require the State which has
committed an
all the monetary compensation must, as far common measure of WTung ul act to: discontinue the
held through such act, to release and return
the persons and
internationally
in kindconsequences
of the illegal act
corespond to the value possible,
act, and to present
continuing offects of such act," andobjects
as
would bear, loss of and wipe out such remedies as are
property must be determined atprofits are included which a
and the value of a restitution The issuc whether provided for in its intemal
law apply
the
payment and not at that of confiscated restitution-in-kind or indemnity
The
indemnity should compensate time of the international law of
reparations has witnessed some
should take
precedence in
of the unlawful
act, including a
for all
damage which follows as aconfiscation." came up in Texaco
Overseas Petroleum Co. and controversy. The issue
course of events but profit which would have been consequence Government of the Libyan Arab California Asiatic Oil Co. The
not possible the ordinary
in v.
speculative' orperspective gains which are Repubic.37
remote In this case,
or
The basic test "possible but contingent andhighly problematical, 'too
were luken by
Libya against claimants nationalization
concessions. 'The sole arbitrator, Prof.measures
is the held that under
certainty of the damage. It is not undeterminate damage'.
should have already taken international law, restitution in kind was Dupuy,
the future place for compensation to be essential that the damage non-perfomance
of Libya was
of contractual
obligations
the normal
The award against the sanction for
damaging consequences which will
recoverable. For instance rendered in defendant's government
warTrant
compensation even before the nctual certainlyhasresult from nuclear fall-out stage of the
proceedings. absence; Libya did not
damage occurred." This form of the claim. Several
In fact,
Libya had already stated that it participate
in any
months afler the Arbitrator would compensate
41. Chorzow Factory partics seltled their dispute for 152 announced his decision that the
42. (lindemnity) case, PCJ Serics A, No.
Arechaga, Supra note 17 at pp. 47-48.
million dollars in cn1de oil.
A conclusion
43. 37, p. 285. 47. Part I1, Draf
Supra note 41. Convention on State
44. Report of the International Law
48. Supru note
42, pp. 286-87. Responsibility of ILC, 1984, Supra note
July 1984), GAOR, 39th sessionCommission on the work of its session 49. Article 6
(1) (d), Part 11, Drat 44
Convention on State Supplement No. 10 (A/39/10), Part(7I1May to 27 bud, Article 44 Convention on State
50. Ibid., Article 6 (¢) Ibid. Article 6 (1) (6). Responsibility, Supra note 44,
45. Supra nole 42, p. 286.Responsibility, Arn. 6 (1) (¢). of Drafn
S1. lbid., Article 6 (1) (a).
46. Tbid. (1) (b).
$2. Texaco
Overseas Petroleum Co. and
llbyan Arab Republic, California Asialic
lnternational Legal (Oil Co. v. The Govt.
53. lbid., at p. 36. Materials, of the
17,1978, p. 1.
29. StarKE,
Supia vv
 STATERESsPONSIBILITY 125

124 INTERNATIONAL LAW

with due regard to
that developing countries,
and Cultural Rights of 1966 provides determine to what extent they
will
contrary to that of Prof. Dupuy was reached by Judge Lagergren in an carlier human rights and their national economy,
may In its
award rendered in BP v Libya where it was decided that restitution would not be a non-nationals the economic rights
recognized in the Covenant.
guarantee to on 17
resourees, adopted
proper remedy in case of confiscation ofa concession in breach of the concession over natural
resolution on permanent sovereignty affirmed that each
General Assembly
agreement.4 Prof. Dupuy's conclusion as to the primacy of restitution-in-kind t December 1973, the United Nations
its natural resources, is
a remedy in international law is also disputed by Factouros who argues that
arbitral virtue of its sovereignty to safeguard
nationalizing State, by compensation and the mode of
awards on the issue of nationalization of foreign concessions generally involved entitled to determine the
amount of possible
in accordance with the domestic
situations where compensation would clearly be insuficient and that in practice should be settled
payment, and that any disputes in somewhat similar
State. An affirmation
most awards have been in the form ofcompensation."
The correct position,
discretion
however,
on the arbitrator to sclect
legislation of that nationalizing
of Economic Rights and
Duties of States, adopted by
is that an arbitration agreement confers
often
terms appears in the
Charter
to the payment of
the most adequate form of reparation in a given case. In such cases, the arbitral this contains a reference
the General Assembly in 1974; the setlement ofany controversy by
for
tribunal will take into consideration the practical dificulties or inconveniences appropriate compensation',
and provides
unless it is freely and mutually
which may be involved in restitution in kind and select pecuniary compensation the nationalizing State,
the domestic tribunals of means be sought
on the basis of
instead. For these reasons, although restitution in kind remains the basic form of concerned that other peaceful
takes
agreed by all States accordance with the princtple of free choice
States and in
reparation, in practice, and in great majority of cases, monetary compensation the sovereign equality of
its place.* of means it is said that
International Law Commission has confirmed the above position by pointing of amount of compensation payable,
With regard to the issue which is indefinitely postponed,
if it is materially impossible to re-establish the situation as it existed before
the
compensation which is
ofa nominal valuc only, or
the
out
non-commital promise, or which is below
State which has committed the internationally ofa vague and
act, the injured State may require the or which is the subject Smte, is contrary to
the value which a re awarded to nationals of the expropriating
wrongful act to pay to it a sum of money corresponding to would bear" With rate ofcompensation
establishment of the situation as it existed before the breach international law
act is a breach of
regard to aliens it is asserted that if the internationally wrongfulaccorded by a State,
international obligation conceming the treatment to be
an and the State 7.6.1 Calvo Clause
within itsjurisdiction to aliens, whether natural or juridical persons, inserted in
which has committed the intemationally wrongful act does not re-establish the
The Clause, named after Argentinian
jurist was at one time frequently companies
that Stute to and South American govermment
and foreign
situation as it existed before the breach, the injured State may require contracts between Central Calvo Clause is
contracts. Thie object of
it a sum of money corresponding to the
value which a re-establishment of the to whom concessionis
were granted under
pay to
the contract shall be referred to
the municipal
situation, as it existed before the breach, would bear out of
to ensure that the disputes arising and to oust the jurisdiction
the concession or other rights,
courts of the State granting concessionaire renounces
this Clause, a foroign
of international tribunals. Under matters arising out of
the
7.6 EXPROPRIATION OF THE PROPERTY OF ALIENS of his government in any
the protection or assistance
a State of the property of an alien
In the nineteenth century, any expropriation by contract the
the extent it attempts to waive general
in
international responsibility of the State. Today,
this is not absolutely Calvo Clause is illegal and void to
gave rise to
or where it purports
to bind the
over almost its citizens,
over the national economy and
tue. The widening control by States sOvereign right of a State to protect violation of International
measures of nationalization of different intervene in respect of a clear
and the claimant's government not to
every aspect of privatc enterprise,
it difficult to treat, as contrary to
industries adopted by so many States, make Law
intemational law, an cxpropriation of foreign property
for a public purpose with a
discrimination to the citizens of the
declared domestic policy, applied without
Covenant on Economic, Social 1966, Article 2,
expropriating State and to aliens alike." Intemational International Covenant on Economlc, Social and Cultural Rights,
60.

54. Arbitral Award of August 1974, quoted

in Louis Henkin et al., Internatlonal Law para . General Assembly in
61. Charter of Economic Rights and Duties of States adopted by the
Cases and Materials, p. 570. 1974, Article 2, para 2 (¢).
and the International Contract', Amerlcan
Journal of
55. Factouros, 'International Law J.G. Starke, Supra note 15, p. 290. International Law
Internatlonal Law, 14, 1980, p. 134. 62. case, Annual Digest of Public
186. 63. North Amerlcan Dredging Company note 15, p. 291.
56. Arechaga, Supra note 39, p. in J.G.Starke, Supra
57. Supra note 44, Article 6 (2). Cases, 1925-26, No. 218, quoted
292.
64. J.G. Stoarke, Supra note 15, p.
58. lbid., Article 7.
15, p. 289.
59. J.0. Starke, Supra note
 126 INTERNATIONAL LAW

7.6.2 STATE BILITY

Positlon of
Natlonalty Shareholders
of CorporatlonIn a Corporatlon and The situation would be differcntifthe act complainced of is aimed at the
In case concerming
the ire
rights to any declared dividend, the right to attend and vote at general meetinos the
the claim is Barcelona Traction,
nationals andpresented of natural andLight und Power Compuny
on behalf right to share in the residual assots of the company on liquidation." In sucho
shareholders Limited,"
of the Barcelona juristic persons, alleyed to be
Cascs,
the Slute of nationality of any individual sharcholder may intervene in his favou
Limited. The object of the Belgian Traction, Light and Power Belgian regardless of the nationality of the company.
Dur,
caused to Belgian nationals application is reparalion for dainage Company Some writers contend that diplomatic protection is permissible when it i
(shareholders)
iFternational law, of various organs by the conduct, allegcuiy exerciacd with respect to corporations constituted in or having the nationality of
Company. Barcelona Traction of the Spanish State towardssaidBarcelona to be
contrary to
the respondent State.® In support of this thesis, it is argued that otherwise those
oflice in Canada. Thus, the Company was incorpurated and had its 'Traction shareholders would bo totally deprived of diplomatic protection. This
States, which the
Belgium, the national State whose registercd argument,
present case
açts complained of, and organs are alleged to haveprincipally concerns ure however, is untenable in view of the fact that to admit such an exception would be
Canada, the State committed the unlawful to muke havoc with the
system of international rules regarding the treatment of
was incorporated and in whose territory it had
under whose luws
Barcelona Traction foreigners,
The following issucs arise in this
its registered office. Coming to the second issue, the International Court of Justice points out that in
exercise case: Arst, whether
diplomatic protection of Belgian shareholders inBelgium has rightto allocating corporate entities to States, Intormational Law is based, but only to a
a
juristic entity incorporated in a
company which isu lindted extent on an analogy with the rules goveming the
taken by Spanish government Canada, the measures
in relätion not to complained of having been The traditional rule attributes the right of
nationality of individuals.
çompany itself, secondly, what considerations any Belgian national but to the to the Statc under the laws of which
diplomatic protection of a corporate ontity
it is incorporated and in whose
of a corporate entity?7 govem determination of the territory it has
On the first issue, the nationality its registered oflice. 'These two criteria have
been confirmed by long practice and
company whose capital
International Court of Justice fecls by nunierous international instruments. This, notwithstanding, further or
different
independent
is represented by shares enjoys in that limited liability linko aro at times said to be
required in order that a right of diplomatic protection
corporate
who, so long as the personality and is separate municipal
a legal systems should oxist. Indeed, it has been the
practice of some States to
company is in existence, has no entity from the sharcholder
incorporated under their law diplomatic protoction solely when itgive a company
Court were to decide the case in right corporate assets.* Ifthe
to has its seat or
law, it would lose touch with disregard of the relevant institutions of nanagemnt or centre of conrol in thoir torritory, or when a
majority or a substantial
reality.
legal systems and not to municipal law of a
It is to rules
generally accepted by municipal
municipal
portion of the shares has been owned
then, it has been
by national of tho State concerned. Only
held, does there cxist between the
particular
refers. The Court, in its following observation, docs Statc, that intecrnational law question genuine connection of the kind familiar
a Corporation and tho State in
done to the company frequently causes not deny the fact that a wrong from other branches of
International Law. However, in the
But the mere
prejudice to its shareholders. particular
corporutc cntities, no absolute test of the
ficld of diplomatic protection of
fuct that damage is sustained by both accoptance. Such tests as have been applied'genuine
connection' has found general
not imply that both are
entitled to claim company and shurcholder does are ofa relative
nature, and sometimes
right to claim
compensation compensation....Croditors
from person
a
who, by do not have any linka with one State have had to be
weighted against those of another. In the present
el them loss. in
such,casee, no doubt, the interestu of the wronging their debtor, couses caso, Barcelona Traction's links with
Canada are manifold. It
aggrieved Canada and had it's registered office there. Its Board meetings were incorporated
are alfected, but not was in
their rights. Thus whenever sharcholders"' interests are hurmed held in Canada
for nany ycars. In fact, Canadian
company, it is to the latter that ho must look to institute appropriatebyaction;
an uct donc to the
for nationality of the Company
has received general
two separate entities
may have su ffered from the sume
although recognition.
whose rights have been wrong, it is only one cntity Accordingly, the
inftinged." applicotion of Belgian, government was
rejected by the
International Court of Justice.
The Court considers that the
adoption of the theory of diplomatic protection of
shareholders as such, by opening
the door to competing
diplomatic claims, could 7.6.3 Natlonalty by Naturallzatlon
create an atmosphere of confusion and
insecurity in intemational economic relations.
The danger would be all the greater in as much shares InNottebohm case," Nottebohm iwas a German
of companies whose activity 1905 he had laken residence in national since birth in 1881. In
is international are Guatemala and engaged in substantial business
widely scattered and frequently change hands
dealings there. In 1939, Nottebohm applied for naturalization in
Liechtenstein.
65: Belgium v Spaln, Second Phase, ICJ 6. Ibid., p. 36.
Rep., 1970, p. 3.
66. lbid., p. 34. 70. Fitzmuurice,
Separate Opinlon in Barcelona Traction cuse, Ibid.,
p. 72; Beckett.
67. Tbid., p. 37. Diplomatic Claims in respect of lnjuries of Compunies, Trunsuctions Grotius
68. Ibid., p. 35. 1932, p. 789. Society,
71. Liechternstein v Guatemala, ICJ Rep., 1955, p. 4.
128 INTERNATIONAL LAW STATERESPONSINILITY 129

He obtained a Liechtenstein
passport, had it visaed by the Guatemalan Consul in of writers, nationality u a legal bond having as ns basis asocial fact of attachment
the
Zurich, and returned to Guatemala to resume his business activities. At his request, agenuine connection of existence, interests and sentiments, together with
Cxistence of reciprocal rights and duties. It may be said to constitute the jundical
Guatemalah authorities made appropriate changes regarding Nottebohm's nationality
in the Register of Aliens and in his
identity document. expression of the fact that the individual upon whom it is conferred, either directly
connected
On 17 July 1941, United States blacklisted Nottebohm and froze his axsels in by the law or as the rexult of an act of the authorities is in fact more closely
of any other
the United States. War broke out between United States and Germany, and hetween with the population of the State conferring nationality than with that
State. Conferred by a State, it only entitles that State to exercise protection vis-d
Guatemala and Germany, on 11 December 1941. Nottebohm was arrested by terms of the individual's
vis another State, if it constitutes a translation into juridical
Guatemalan authorities in 1943 and deported to the United States, where he was
connection with the State which has made him its national.
intermed until 1946 as an enemy alien. On his release, he applied for his reamission settled in Guatemala for 34
At the time of his naturalization, Nottebohm was
to Guatemala but his application was refused. Nottebohm then took up residence there until his removal as a
on his activities there. He stayed
in Liechtenstein, but Guatemala had in the meantime taken measures against his ycars and carried
to return there, and he
result of war measures in 1943. He subsequently attempted
properties in that country, culminatingin confiscatory legislation of 1949. to admit him. In contrast, his connections
now complains of Guatemala's refusal
Liechtenstein instituted proceedings against Guatemala in the Intemational Court settled abode, no prolonged
with Liechtenstein were extremely tenuous. No
of Justice, asking the Court to declare that Guatemala had violated international for naturalization; the
residence in that country at the time, of his application
law in arresting, detaining, expelling and refusing to readmit Nottebohm and in indicates that he was paying a visit and confirms the
transient character
application should be initiated and
seizing and retaining his property and consequently was bound to pay compensation. of his visit by its request that the naturalization proceedings
Guatemala's principal argument in reply was that the Liechtenstein cluim was conclüded without delay. No intention of settling
there was shown at the time or
inadmissible on grounds of the claimant's nationality. the contrary, he retumed to
realized in the ensuing weeks, months or yearson
The International Court of Justice observes that the naturalization of Nottebohm Guatemala very shortly after his naturalization
and showed every intention of
was an act performed by Liechtenstein in the exercise
of its domestic jurisdiction.
remaining there.
another State on the one hand, the absence
of
When one State has confcrred its nationality upon an individual and The above-mentioned facts clearly establish,
occur that ench of on the other
has conferred its owm nationality on the same person, it may bond of attachment between Nottebohm and Liechtenstein and,
any
these States, considering itself to have acted in the exercise
of its domestic and close connection between him and
hand, the existence of a long-standing
thereon insofar as its own naturalization in no way weakened.
Naturalization
jurisdiction, adheres to its own view and bases itself Guatemala, a link which his
actions are concened. In so doing, each Stato remains
within the limits of lits much for the of obtaining a legal recognition of
was asked for not so purpose
domestic jurisdiction. Nottebohm's membership in fact in the population
of Liechtenstein, as it was to
with regard to the cxerclse of a beligerent State that of a
In cases of dual nationality, where the question arose cnable him to substitute for his status as a national
intemational arbitrators have given preference to the
real and cffective within the protection of
ofprotection, national of a neutral State, with the sole aim of thus coming
factual ties its interests, is way of
that which accorded with facts, that based on stronger
nationality, Liechtenstein but not of becoming wedded to its traditions,
States whose nationality is involved. obligation and exercising the
between the person concermed and one of the life or of assuming the obligations-other than fiscal
Different factors are taken into consideration,
and their importance will vary from
rights pertaining to the status thus acquired.
residence of the individual concemed is an important to the conclusion that Ouatemala
one case to'the next, the habitual Accordingly, Intemational Court of Justice came
such as the centre' of his interests, his family ties, is under no obligation to recognize a nationality granted
in such circumatances.
factor, but there are other factors
life, attachment shown by him for a given country and to Nottebohm
consequently is not entitled to extend its protection inadmissible.
his participation in public Liechtentenstein
etc. Guatemala and its claim must, for this reason, be held to be
inculcated in his children, vis-d-vis
To seek and to obtain it is not
Naturalization is not a matter to be taken lightly.
in the life of a human bcing. It involves his
something that happens frequently Rule of Exhaustlon of Local Remedles
bond of allegiance and his establatirient ofa new bond ofalleglance. 7.6.4
breaking ofa involve profound changes in the destiny established in international law. It
consequences and The rnule of exhaustion of local remedies is well
Itmay have far-reaching him personally, and to consider it only State responsibility for injuries to aliens in the second
of the individual who obtains it. It concens was evolved in context of
with regard to his property would
be to has its in the general proposition that
half of the nineteenth century. The rule
root
from the point of view of its repercussions
misunderstand its profound significance. In order to appraise its international effects, an alien entering a country submits
himself untarily to the legal regime prevailing
was conferred, the serious his physical presence within
it is impossible to disregard
the circumstances in which it in that State. It demands in efTect that he who brings
and not merely verbal preference should be regarded as assimilated himself
real and effectivo, confines of foreign State
character which attaches to it, the the territorial a
him. to present his complaints against
the country which grants it to into the State to the extent that an alien is obliged
of the individual secking it for
of States, arbitral and judicial decisions and opinions
According to the practice
 130 NTERNATIONAL LAW
STATE RESPONSIBILTY 131
that State to its
courts, as are its own nationals rather than take them back force from sending police into the premises
own
government for international to his of another State by armed or
State to achieve a certain real
The principle of
exhaustion of local adjustument. Embassy and secondly obligations which require
a

remedies is while leaving it free to choose the means of doing so, for example, if there is an
marmiage of its two a creative process
involving the
State and the components-the
activity of the claimantprovision
of legal facilities
by the receiving
assault on a foreign oficial dignitary, the State has a duty to arrest and punish the
in using
international tribunals will examine both them." applying the principle
In perpctrator. If the localpolice fails to arrest him but the international police later
is
satisfactory and in components to see whether the performance inlervenes and succeeds in doing so, there is no breach of the obligation for the
in the draf compliance with the nule." requircd result is achieved. Similarly, if the guilty party is acquitted by a lower
articles on State
Commission, Article 20 deals with responsibility adopted by the International Law courl but subsequently on appeal by the government authority charged with
adoption of a particular course ofinternational obligation of a State
conduct" whereas Article 21 requiring prosecution, is convicted by a higher court, the obligation is discharged. In such
international obligation of a State dcals with cases, a State acts through a number of organs and it is not until the last body
In case of requiring achievement of specified
the
obligation conduct
of result." competent in the matter gives its decision that the obligation is either discharged or
dictated by international law but contained
in cases of
in Article 20, the conduct
of the State is breached. Ago rightly treats such an action of the State as complex act within the
21, the initiative as obligation ofresult
regards conduct rests with the State as contained in Article meaning of paragraph 5 of the article 18 of the draft articles submitted by the
acheive particular result and has the State is
which to do so. Article 22 freedom to determine the course of required to Commission" for it comprises ofa series of separate actions by various of the
contains local remedies rule conduct by Stalc's organs in the same specific case. It is, therefore, the
which reads as
follows: the State which constitutes the
totality of the acts of
When the conduct of a State has performance or breach of the obligation. Thus, if
crealed s situation not there is breach of an obligation because the State has failed to
obligalion concerning theconformity
required of it by an iniernationsl in
with the result achieve the required
result by uny of the means at its
Lo aliens, whether nalural or
juridical
trouiment to be
but the ubligation allows acorded cxiends over a period
disposal, the wrongful act in question is one which
an
equivalent result may nevertheless beporsons, that
uchieved by subscquent conduct of this or of timo and embraces both the first and the last of the State's
there is a breach of the actions in the matter. It is,
obligation only if the uliens concerned
the Slate, therefore, obvious that for a complex wrongful act, the
effective local remedies available to them have cxhuusted the tempus commlssi delictl is tho entire duration of the
without obluining the act. breach, from the first to the last
by the obligation or, whero that is not treatment called for
possible, un cyuivalcnt treutment. The obligation referred to in Article 22
constitutes a special case of the
In fact, Aticles 20, 21 and 22
form a whole und the rule in
of result. It
requires the State to ensure certain obligation
represents the application to a Article 22 simply cxumple, require that forcigners be pernutted totreatment for aliens. It might, for
Articl 21, paragraph 2. There arespecial
case of the exercise
fundamental principle stated in a certain
uctivity within the territory of the State,
that tlhey be granted recourseprofession
or
two categories of international
obligations which require a State to adopt a particular course of obligations. First, courts under the same conditlon to domestic
as nationals, that
action or omission, for conduct, either an heir property, and that there be no interference with
example, an obligation to refrain from cntering they be given adequate compeisation if
the territory of exproprialion in the
public intorest. subjected to measures
72. DavidR. The principle
Mummery, 'The Content of the Duty to Exhaust Local Judicial Remedics. requiring the exhaustion of local remedies takes
account the fact that
Amerlcan Journal of
International
Law, 58, 1964, p. 394. obligations of that precisely into
73. Ibid. certain persons and that it is normal for nature are established for the benefit of
74. The Dran Article on State result required by the such persons to
Responsibility adopted by the International Law Commission, international obligation. Thus, ifa cooperate in achieving the
Article 20 which provides: "Thero is a breach
by u Stute of an' international obligation
a
profession or work a mining concession foreigner wishes to exercise
in a given State, he will
requiring it to adopt a particular course of seeking pemission from the competent have to begin by
in conformity with the conductwhen the conduct
of that State is not authority. If such
75. Ibid., Article 21
required of it by that obligation."
provides:
will have to go to a
higher authority to obtain a roversal ofpermission is refused, he
the decision of the first
(1) There is a breach by a State uuthority. Thus, the beneficiaries of the
of an internatlonal action to ensure its obligation must collaborate in the State's
by means of its own choice, a specified result ir, obligatlon requiring it to achieve, discharge. The principle of exhaustion
does not achieve the result by the conduct adopted, the State thereforo, designed to ensure the intervention of local remedies
is,
required of it by the obligation.
(2) When the conduct of the State has created a situation actually have the responsibility of socuring theofresult
all the organs of the
State which
local remedies is, required by
result required of it by an international
not in conformity with the The principle of exhaustion of the obligation.
this or an equivalent result obligation, but the obligation allows that therefore, linked with the
may nevertheless be achieved by
of the State, there is a breach of the subsequent conduct
obligation only if the State
subsequent conduct to achiove the result requircd of it thal also fails by its
by
76. Ibid., Article 22. obligation. 77. Yeurhook of Internatlonal Law
Commission, 1977, Vol. Ii (Part Two), Doc. A/CN.
4/300 and Add., p. 263.
 132 INTBRNATiONAL. LAw
STATE R PSPONSIDILITY 133

performance of international obligation of result concerning tho trentment ofallenm 7.7.1 Consent of the Injured State"
and subsequently with the
roquirement that the breach bo complete.
It is, therefore, cvident that local
romedies must be effective and genulnely Docs the principle wlenti non flit inuria applies in internationallaw?
As a
principle, the answer must be in the afTimative. If a State consents to conduct by
general
available. According to tho of
commentary Intomational Law Commisalon, "local another State which would otherwise constitute a breach
remediea' mean the remedies which are
open to nathural or jurldlcal peraons undor of an international
obligation towards the first State, the ent reault ofthat consent is clearly the formation
the internanl law ofa Stato," The
duty of tho injuring Stato to make effective local the
remedies gonuinely availablo croatea
corrosponding duty of tho claimant to oxhaust
of an ugrecment between the two subjects whereby internationsl obligation
such remedies. Thereforo, from tho aido of tho olaimant:
(a) all avallablo romedios
ceuses to have cffoct as between
the
two States,
or, at is
least, suapended relation
in
to the particular caso involved. Since the obligation is nolonger ineumbent on the
capable of redressing the sítuntion muat bo usod, whethor thoy aro Judlcinl, and the wrony ulness
Stato ils conduct ia not contrary to nny International obligation
adminiatrative, ordinary or
cxtraordinary; and (b) gonerally apeaking, all legal
grounds calculated to sccuro favourablo decislon must be advanced. In fact, tho of its act is accordingly precluded
The conscnt, or tho requcst made by the government of the State whose
claimant must show that ho wanta to win thho caso, not merely to
lodge an appeal In NOVerelgnty would otherwise have been violated has, in actual practice,
been cited
order to meet the requirement of formal oxhaustion of local remedies. Prom the
s justlfjcation for the nending of troops into the territory of
another State to heip it
negative standpoint: (a) a remedy should not bo used unloss It holda out real-oven if Thls Justiflcation was
to Bupprens Internal disturbances, revolt or lnsurrection.
uncertain prospects of aucceas, (b) a remedy ahould not be uaed unlesa tho muecoss of
it ia invoked, for cxamplo, by the United Kingdom ln çonnection with the dispetch
may bring not merely formal but
auccea8, can actually produco oither the ronult
originally required by international obligation or if that is no longer poaaiblo, an
Britlah troops to Muacat and Oman in 1937 and to Jordon in 1938, by
and
the USA
thhe Soviet
with regard to the dlapatch of its roops to Lcbanon In 1958, by
alternative result which is roally oqulvalent. and to
Union on tho occnnlon of the nonding of troopa to lHungary in 1956
Tho local remedien avallablo must bo effecetve, Howover, there Is no internatlonn! Czechoslovakin in 1968. Durlng tho debato in the Security Council and Oeneral
ynrdatick for determinlng the effectivoness of local remodios. Neverthelens, the
criterlon ofeffectivenes8 of the
Ansembly on these questions, no State contcsted the validity of the principle
that
domestic remedies makes it clear that unreanonably the connent of the territorial Stnte precluded-as a general nule-the wrongfulness
prolonged domestic remedies exclude the application oftho principle ofoxhaustlon of the nemding of forclgn troops into its territory."
of domestioremedics. This in ao becauno unreaaonably prolonged domeatic remedies The situathon is different, however, if the injured State gives its consent to conduct
amount to extinction or diutlon of the intomatlonal ronponaibllity of tho Stato,"
by another Stato whlch ls contrary to an obligation imposed by a rule offus cugens
(peremptory rulen from whlch no derogatlon is allowed). Jus cogens are peremptory
to some
norms or fundamantal norma (of such an Importance that their applicabllity
7.7 CIRCUMSTANCES PRECLuDING WRONGFULNEss
Stntes cannot bo avolded by meana of special agreementa. These, therefore,
In 1979 and 1980, International Law Commlnslon adopted drat artlcles precluding constitute cxception to the general principle enunclated above.
wrong fulncnh) Siuch circumstancos aro consont of the injured Stato, logltlmato
application of a sanction, force mayeure and fortuitous cvent, sclf-dofence, and 7.7.2 Countermeasures In Respect of an Internatlonally Wrongful Act
stntc of necessity
The wrong fulness of an act of a Stato not in conformity with an obligatlon of that

78. 1bid, p. 50, Doc. ACN.A/SER.A/1977/Add. 1, Part 2; Adode has analysed tho two State towards another State ia prechuded if the nct conatitutes a meaaure legitimate
approaches to the acopo of tho rule of exhaustion of local remedien in the treaty law, under intornational law agalnet that other 8tate, in consequence of an internatlonally
wrongAul act of that other Stato,"
Logltimate applleatlon of aanctlon precludes
a
one glving the rule a narrow acope by lImlting"looml remedies" to Judioal remedle, certain forma of
and the other expanding the scope of "local romedien' to inolude both adminiatrative wronglulness, Modern intornatlonal law permlts applicatlon of
sanctions (roprinala of an economic nature, for examplo).
and leglslative actiona. Anor pointing out that broad approsch has achleveddomlnance
in the treaty law of human rlghts and has gained some aceeptance In treatles dealing
7.7.3 Porce Mujeure and Vortultous Kvent
with subjecta related to the traditlonallaw ofdlplomatlo protectlon, Adede has preferred
broad approach pn the ground: (1) 1 (brond approach) recognlzea thut whet is cosential
The wrongfulnesn ofan act of a Stato not in conformity with an obligation of that
a not the particular forum in which the remedies aro avallablo, but that the availublo
remedies be cnpnblo of nffording offective redross. Sco A.O. Adede, 'A Survey of precluded If the act wus duo to an irresistible force or to an unforseen
Stote is
Treaty Provision on the Rule Hxhuatlon
of Remedics', larvard Internatinal
of Local KI, Articlo 29, Draft Convontim en Btute tenpansibility, Yaarhnok nf the 1., 1980,
Law Journal, IW, 1977, pp. 1-17, Vol. 11, Purt I, p. 33,
79. Ourdip Singh, "The locul Remedies Rule and ite LImlte in Relatlon to Stute Roaponal.
2. Bupra note B, p. 32.
blity for Injurlen to Aliena', Delhi Law Revlew 10 & 11, 1981-82, pp. 118-41
83, Articlo 30, Drufn Conventlon on Btuto Responaibilty, Supru note BI, p. 33.
BO. earbook of the IC, 1979, Vol. Ii (Part One), p. 27,
 ACQUIBITION AND LOSs OP TURRITOKIAL, OoVEKEONTy .

Oclol andd political organlzation cannot be subjeci-matter of occupation becai

Is not of to naturo of lurra nulllu.

In Baxturn (lreenland caso,' Pormanent Court of International Justice has
unoqulvneally stated that for the occupation ofa terrilory, the occupying 8tate must
8 Nalaly the following two conditlons:
(a) an ntontlon or will to aut as soverolgn;
Modes of Acquisition and (b) uodequato exercise or display ofsoverelgnty
Loss of Territorial Tho intontion of tho ocoupying 8tate to act as soverelgn is ascertained from the
Sovereignty undorlylng eireuwtances. The intention must be to avuune permanent control of
the occupylng territory, Such intontion may bo inferrod fron some formal act of the
occupylng 8tuto proclaiming that it intonds to kecp the torritory under its sovereignty.
It may even bo inforred from holsting ofa
lag by tho occupying Power. But such
The concept of 'lorrltorlal sovoreiynty' slgnilos the furmal act by itself constitutos fictitious occupation and
authorlty and control exorclsod best, inclhoato title on the occupylng Stato. 'To make the
consequently confers, at
by a Stnte withln lle torritory ovor porsons and occupation real and
Stato. In slanmd of Palmas Arbttratton,' property to the oxelusion of othor consoquontly to transform inchoatqtitle of the occupying State into its perfect title,
Mux 1luber, the Arbltrator,
territorinl 8overelgnty us follows: dexcribecl tho socond conditlon,
namely, exerclso or display of sovercignty must also be
wutisiocd, Such de fucto asuumption
Soverelgnty in the rolution botween Stules slgnines ofsovereignty may be inferred from occupying
Stalo's leglvlative or oxecutlve measures
rogard to a portion of the globe ls the right to oxercilsoindependonve. Indopendence in
with othor Statos affecting the occupied territory, treaties
therein, to tho oxcluslon of concerning
involving such territory, otc. soveraignty
other Stute, the functlons of n Slate. uny in such territory,
fixing of boundaries
International Court of
Justico, in its Advisory Opinion, in Western Suhara Tho abovo-mentioned second
condition for the
made similar obuorvations by case?
pointing out that one of the characteristics of the brought to light and further expanded by tho existence of 'occupation' was
existence of territorial soveroignty ia State activity on an
adoquate scale showing
Minqulers and Ecrehos case and Western SaharaInternational Court of Justice in
conclysively the oxeroise of authority. caso, International Court of Justice pointod case. In
Minqulers and Ecrehos
out the
to confirm tho tltle nocessity
continuous diaplay of of
proving'the
soveroignty
According to International Court of Juatice, of the
continuous display ofoccupylng
8.1
ACQUISITION OF TERRITORIAL SOVEREIGNTY be inforrod from the
State.
There are five modes of local administration, occupying State's actual exercise of 'State soverelgnty may
ucquiring territorial sovereignty which are traditionally local jurisdiction, and acts of functions',
and gencrally
recognized. These are: occupation, in this case involved
France and Great Britain. legislative authority. The namely,
and cession. These modes are unnexution, uccretion, prescription,
analoyous to the civil law ncthods of Intemational Court of Justice Applying the above-mentioneddispute
tests,
privale ownership. acquiring upheld
Therealer, in Western Saharu case,' British claim to
Minquiers and Ecrehos islands.
International
principle of exercise of State activity on an Court of Justice
applied the same
inconclusive acts not
necessarily evidencingadequate scale, as distinct from routine
8.1.1 Occupatlon or

sOVoroignty. a im intention to
establishterritorial
Occupution is the act of appropriation by a State by which it
sovereignly over such territory as is at the tine not under the intentionallyofacquires lsland.ePalmas.case
clafri or E United
was a
dispute between United States
and Spain. The
State' It should be kept in mind that the sovereignty another
nullius. Therefore, the territory which is subject-natter of un occupation is terru
origiially discoveredStatos over tisIilna WAä
the lsland and thereafter baaod.on.the.plea.that Spain had
States. Consoquently, United 'Statei ceded the island in favour of
belong to any State." Acordingly, teritorysubject
nulter of occupation should not United
inhabited by tribes or e olier hand, the Omcd the sland as succesSOF 1O
. laland of Palmas Arbitratlon, Amorlcan
peoples having a of Netherlands
ioverëlgnty over the island forclaimed title over the island on the basis SEATK On
P. 875
Journal of Internatlonal Law, 22,
1928,
a long
period. Arbttrator Hüber gaveof exercise
2. Western Sahara kaso ICJ the ruling
3.
Rep., 1975, 12. p.
L.Oppenheim, Internattonal Law-A Theates, Vol. 1, p. 555.
S. Fastern Greenland case, PCJ
4. Western Sahara'case, CJ Rep., 1975, p. 6. Serles /B, No. $3
12.
7.
Minqulers and Ecrshos caso, ICJ (1933).
Rep., 1951 Rop., p. 47.
Western Sahara case, ICJ
8. sland of Palmas case, Rep., 1975, p. 12.
Supra note 1.
 soVEREIGNTY
141
TIERRITORIAL
OF
ACQUISITION AND Loss
140 INTERNATIONAL LAW of Portugal requested
him
Permanent Representative
of the Security Council, the the condemnable act
one.State -is not suflicient. to confer a title. by to put a stop to
that a mere act of discovery.by. to convcne Security Council immediately
the cease fire and
the
an immediate
give.way.to a continuouE Indian Union, ordering
occupation, and that siuch incomplete appropriation must the Arbitrator uphcld
of aggression of the
forces of the Indian Union.
In the Securiry
andpeaceful display authority by another State. Accordingly,
of
continuous exercise of clective
withdrawal forthwith of all invading
India made the following
observations:

the lairsOTNETherlands on the. basis of its Jong Council debate, Mr Jha of

authorityover the island..- is illegally
whether State can claim sovereignty in the sense that part ofour country
It sounds interesting to examine the issue
a
. t h e qucstion is a colonial question that they have occupicd
it
answer is 'no'. the Portuguesc. The fact
over part of the moon's surface by hoisting a flag there. The obvious occupied by right of conquest by during nearly 425 or 430 years of that
terra nullius. It is universally because,
This is so because moon's surface is not of the nature of for 450 ycars is of no conscquence because we w e r e under
colonial
fore, no chance to do anything
accepted that the resources of the moon
are common heritage of mankind. There
the basis
period we really had
the from the
last 14 years,
when we became
very day
of moon's surface on domination ourselves. But during under illegal
State claim territorial sovereignty on any part
can the return of the peoples
no
in 1981. The not ceascd to demand
States have concluded Moon Treaty indcpendent, we have their march forward
of occupation. In this regard, of all domination to their own countrynien,
to sharc their indcpendence,
Council that
that the exploration and use of moon shall be the province very clearly
before the
Treaty proclaims ofall the States, that destiny. I would like
to put this matter

shall be carried out for the benefit and in the interests to

territoryThere is
no legal frontier-there
mankind and
The Treaty Portugal has nofsovereign right over this Goa. And since the whole occupation is
economic or scientific development. r o n t i c r - b c t w e c n India and
irrespective of their degree of peaceful pupose can be no legal
it continues to be illegal today
and
declares that m o o n shall be used by
all States Parties exclusively for issue-it started in an illegal manner, December
the moon. illegal as an
Assembly Resolution 1514 of 14
and prohibitsthe use of force or hostile acts on is even more illegal in the light ofGeneral to, Colonial
Countries
thc Granting of Independence
1960 entitled 'Declaration
on
own fronticr, or

and Peoples'-there can be no question of aggression against your

liberate.
8.1.2 Annexation own people, whom you want to
against your
It turns conqucst into
Annexation is a mode of acquisition of State territory. United Kingdom and
through military Council, France, Turkey,
is the taking possession of enemy teritory Ater the debate in the Security of Member
subjugation. Conquest constitute acquisition resolution which called the obligation
itself, is not sufficient to United States introduced a drafN called for an
force in term of war.' Conquest, by by.peacefulmeans,
firmly established the conquest,
the conquering State must under Article 2 of the Charter to settle disputes
of title.After having of the called India to withdraw its forces, urged
Annexation constitutes acquisition
formally annex the conquered territory.
im1mediate cessation of hostilities,solution upon
of the problem by peaceful means,
and
of war is subjugation,°
war to an end. Such ending the parties to work a permanent
conquered territory and brings State territory through
assistance." Although a
Gcneral to provide appropriate
the legality of annexation of requested the Secretary
The question arises: What is it vetoed by the
of the United Nations Charter.
was
in favour of this resolution,
conquest? The question has to be answered in view majority of the Council voted
United Nations Charter provides: Soviet Union."
Article 2, paragraph 5 of the action in Goa justifiable in view of the
was
It is, however, submitted that lndian
in their international relations
from the threat or use of
aimed at putting an end to corðiAISm SNd gave expregsSIon o the principle
All Members shall refrain of any State, or in any
or political independence
fact that it pcople,The action.in Goa, Daman.and Dhu
Indign
SVas,
force against the territorial integrity Nations. of sel-determingtion.of.
other m a n n e r inconsistent
with the purposes of the United therefore, legal under the Charter of the United
Nations.

if such. use of force

therefore, not prohibited.from using.force
The States are, and. promotion ofthe purposes.of
United Nations Organizatiqn. 8.1.3 Accretion
aims at protection of equal rights and self formations."Sometimes,
Article 1, paragraph explains that the principle Accretion is the name for the increase ofland through new
of the United Nations Organization. the territory of the State to which they
accrue.
determination of peoples is one ofthe purposes
to the principle of
self. new formations occur which cnlarge
of a State. In such cases,
gave expression island nay rise within territorial sea
United Nations General Assembly For example, an
formal act or assertion
anti-colonialism." over new formations. No
determination of peoples and
theterritoricsof Goa,
States ipso facto ncquire sovereignty
On 18 December 1961, India used armed force to Jiberate
In a letter to the President
of title is necessary.
thePortugusss.Stateot ndia,
Daman and Diu, comprising

Supra note 3. p. 56. 12. UN Doc. S/5033.

9. L. Oppenheim, 617.
10. 1bid., p. 567. December 13. Wright, The Gon Incident', American
Journal of International Law, S6, p.
15 GAOR, Supp. 16 (A/4684) at p. 66 (14
1. General Assembly Res. 1S14, 14. L. Oppenhiem, Supra note 3, p. 563.
1960).
 142 NTERNATIONAL LAW
ACQUISITION AND LOSS OF TERRITORIAL SoVEREIONTY
8.1.4 Cesulon 43
On the issue of plebiscite, Kashmir problem needs special mention
Cession of State territory is the transfer K
became integral part of India on 27 October 1947 when India accepted the inmi
owner State to another of
The cession ofa State sovereignty over State territory by the of accession sent by the Maharaja of Kashmir. India, then, volunteered strument
that the
as a result
ofa war territory be
may voluntary, or it
may be made under
accosion should be subject to a plebiscite of the people to be held aner the
conducted
be ceded.
Cession is effected successflully by the State to which the compulsion restorationofnormal conditions in the Sute. But the conditions in Kashmir changed
by
acquiring State. Such treaty may be the of treuty between the ceding
means a territory is to thereaner. The people of Kashmir opted to be within the Union of India. In viewof
The case law in outcome of
and the the changed circumstancos and conditions in Kashmir, India changed its stand to
atribute
India suggests that the peaceful negotiations or of war.
hold plebiscite in Kashmir. However, Pakistan continued to claim that there should
from one ofsovereignty"
power cede the
to
As a territory is in
State to another. In matter of fact, cession involves transfer of cssential be plebiscite and people ofKashmir should be given the freedom to decide whether
Berubarl
Court of India observed: Union and
Exchange of Enclaves,"sovereignty
Supreme
they would like to merge with India or Pakiston. It is submitted that the applicability
of the prinoiple
... it is an essential attribute of of self-determination seems to be doubtful in this case because
territory and can, in case of soveroignty that a sovereign State can acquire encouragement of the process of decolonization is the genesis of the principle of
State, und this can be necossity, cede u part of its foreign self-detemination. Kashmir problem does not have any relation with decolonization.
territory in law amountsdono in exercise of Its treaty teritory in favour of a sovereign
making powor. Cession of
sovereignty over the said territorynational
to the transfer of
owner State in favour
of another State.... This by the 8.1.5 Prescrlptlon
subject the limitations which
to power, moy be ndded, ls
it
of course
necessary implication impose In that constitution of the State
may olther expressly or
by Proscriptive title is confered on a State as a result of
peaceful exercise of de facto
Similar view behalf.. BOvereignty for a long period over teritory subject to the sovereignty of another
Sudhansu Mozumdar"adopted
was
by the Supreme Court of India This distingulshos
The India in Union of prescrlption from occupation which involves the acquisition of
indisputably involves transserSupreme Court in this case has v

of afMmed that Cession Overeignty ovor terra nullus. Internmational law does not prescribe any timo limit
In
Sugandha Roy v. Unlon soverelgnty from one
soverelign State to another. for constituting
prescriptive title, It ila worth noticing that there is no requlrement of
whether giving of Toen of India," Calcutta High Court had to examine the animus' for acquiring prescriptive title. Peaceful
oxercise of de facto sovereignty
Bigha aroa to Bangladesh on lease in issue fora considerablo
Agreements botweon India and perpetuity under long period ovor the territory of another State
of territory. Calcutta Bangladosh of 1974 and 1982
amounted to cession conatitule proscrlptive title. is suficlent to
However, in Frontler Lands case" involving Belgium
High Court held: and Netherlands, Intermational
...the Court of Justice has held that
implementation of theso two Agreements would not involve
terrliory to Bangladosh in reapect
administrative acta performed by local Netherlands mere routine and
officials in a certain area could
cession
of
sovereignty, wholly or partially,ofin Toen Bighu... There is no question of of any not displace the
logal title of Belglum to that area under a duly concluded convention.
reupect of the auid arca. What transfer In the case
concerning the
and Thalland, International Templa.afPreah Vlhear (Merits) involving Cambodia
done is to enable the hus merely been
rights in respect of thogovornment
of
Bald area whichBangladesh and its nationals to
exerclse certain local administrative
Court of Justice declined to treat the
tocnjoy. . otherwise they would not have been entitled authorities in a certain disputed area, as acts of merely
attitude of the central authorltles of
Thalland,
negativing a consistent
Plebiscite lino, which placed the area undor the accepting as valid a certain frontier
soverolgnty of Cambodia.
Generally, treaties of cession contain a clause 8.2 LOSS OF TERRITORIAL
only be valid provided the inhabitants stipulating that the cession should 8OVEREIGNTrY
consented to it througha
Law of Nations will ever make it oplebiscite.
it is doubtful whether the However, The modes of
condition of every acquisition
of losing the territorial
of lerritorial
soverelynty are, in
cession that it must be rectified
by a plebiscite.2
correuponds sovereignty. It should, however, beprinciple, also the modes
noted that dereliction
to
occupation the acqulsitive side. Dereliction
on
abandonment of the torrlitory by the owner
15. L. Oppenheim, Ibid., 547.
p. consists in
State wlth the intention of
16. V.S. Mani, 'The Berubari
Cases from the sovereignty over it. Thus, In additlon to the relinquishing
Journal of
Internatlonal
Perspective of
Law, 11, 1971, p. 655.
International Law', Indlan by the owner State, dereliction sactum of relinquishment of sovereignty
17. Berubarl Unlon and State to divert itsolf of requires animus (intention) on the
part of the owner
18. Unlon of
Exchange of Enclaves,
A.I.R., 1960, S.C., p. 845 at pp. 856-57.
efrective control.
India v.
Sudhansu
19. Sugandha Roy w Unlon
Mozumdar, A.I.R., 1971, S.C., p.
1594 al p. 1599.
20. L. Oppenheim, of India, A.I.R., 1983, Culcutta, p. 468.
Supra note 3, pp. 351-52. 21. .O. Starke,
Introductlon to Intarnational Law, pp. 161-62.
22. Pruntlor Lands
cuse, ICJ Rep., 1959, p. 209.
144 INTERNATIONAL LAW

Revolt is a mode of losing State territory which does not correspond to any of
the modes of acquiring State territory. The emergence of new State as a result of
revolt amounts to loss of State's territory. In this connection, it maybe recalled that 9
revolution in East Pakistan gave birth to Bangladesh. In other words, Pakiatan lost
territory,
its i.e. East Pakistan as a result of revolution in East Pakistan followed by
its secession.

Individual and the State-Nationality,

Extradition and Asylum

international law which relate

to
This chapter deals witha few in1portant topics of in this chapter
State. The areas chosen for study
the relation ofan individual with the
ure nationality, extracdition and asylum

9.1 NATIONALITY
is nn important link betweenan individuaLand a
In international law, nationality, defines
in different ways. Starke
State. International jurists have defined nationality individuals whose acts,
of membership of the collectivity of
it as the legal-statua of the State
vouchsafed through the legal concept
decisions and policy are

those individuals.' According to Oppenheim, nationality of an

representing
ofa certain State, and therefore itscitizen.
individual is his quality of being a subject which
bond which unites a person to a given State,
Fenwick terms nationality as the a claim to the
which gives him
constitutes his membership in the particular State, created by the
which subjects him to the obligations
protection of that State and British-Mexican Claims
laws of that State.) Explaining the meaning of nationality,
Commission in/Re Lynchobserved:
und not a physical fact which
A man's nationality forms a continuing state of things
occurs a particular moment. Aman's nationality. is a
at
continyuingJegal relationship
The
the sovereign State on the one hand and the citizen_on the.other.
between political
fundamental basisolaman's nationality is his membership ofan independent
community. This legal relationshiplessinvolves rights and corresponding duties upon
the citizen than on the part of the State.
both on the part of no

International Court of Justice pointed out:

In Nottehahm case,

Internallonal law.
. .G. Starke, Introduction to
Law-A Treatine, Vol. I, pp. 642-43.
2. L. Oppenheim, Inlernational
301-02.
3. Charles G. Fenwick, Internatlonal Law, pp. 221.
Internatlonal Law Cases, 1929-30, p.
4. Annual Digest Public
of
5. Nottehohm case,ICJ Rep., 1955, p. 4.
 DIVIDUAL, AND TndIATE
INDI
l47
146INTERNATIONALLAW to cope with the above-mentin
conlerence atiempled
According to the pruclicc of Stalcs, to arbitral and judiciul decisions and to the opinions Ilague codification resulted in the adoption of
a Convention on the Cons
of writers, nationality is a legal bond having us its basis a sociul fact of uttachment, u problens. The conference Prolocols-one on Military Obligations and th
Laws, two ancillary
of Nationality Statelcssness. In addition
genuine connection ofexistence, interest and scntiments, togelher with the cxistence and a Special Prolocol on
of reciprocal righls und duties. It may be suid to constitute the juridicul cxprcs5ion ol other on Double Nationality, Persons was adopted in 1954, In
the fact that the individual upon whom it is conferred, either directly by tho luw or us the Status of Stateless
Convention relating to
Women was adopted. Finally in
1957, Convention on the Nationality of Married
a result of an act of the outhorities is in fuct more
closcly connectcd with the populalion
of the State conferring nationality than with that of uny other Statc. Conferred by a was adopted.
1961, Convention on the Reduction of Statclessness
State, it only entitles that State to exercise protection is-d-vis another State, if it
constitutes a translation into juridical terms of the individuul's connections with the
State which has made him its national.
9.1.4 lmportance of Nationality
To sum
intornatianal law treats nationality as un evidence of the existence of is an
In internotional law, nationality is of immense importunce. Nationality
up,
genuine connection (link) of an individual with the Stute. law. Therefore, nationali
indispensuble link between an individual and international
is the basis of right of diplomatic protection abroad. It may be mentioned here that
9.1.1 Natlonality versus Domicile
cach State has aright to protectits nationals abroad. Furthemore,enemy status
in

It may be of interest to differentiate nationality

a from
domicilo, Nationality is the time ol Wur may be detemined by thcattennky.o.tha parson coNGADmEdUGenerally
evidence ofihe link or relations of an individual with the Stalg whereas.domicile speaking, Satesexercisecriminalorother iuisdictionon the.basis.otvauonality
Nationality of a person is detemined in accordance with the law of his State.
denopes de fuct9residence of an individualin aStats wikan intention to penmanently
sertle ther I is,howëver. possible for a personto achuirerattoñalntý through
domicile. In other words domicile is one of the foclors for
acquiring nationality: 9.1.5 Acquisitlon and Loss of Natlonality
9.1.2 Nationalty versus Citlzenshlp 9.1.5.1 Acquisiton of Natlonaliy-Nationality may be acquired in the following
Sometimes, nationality and citizenship arertreated as intorchanyoable terms. Ways:
Technically speaking. citizenghip denotesrolations op an individual with the Stato By Birth: Tbe mode of acquiring nationality by birth is universally recognized.
law. Rights of the citizenahip aro the sole concem of the State Jaw. In other words,
citizenship pertains to State law and giveu political statusto an individual insofar
This modo baa.tbros.aspests, namely, nationality mAY.cither beRCquÍred according
to jus soll (torrjtory Qf.birth),.or /us sanguinis (nationality of the parents
as State law is concemed. On the other
at birth),
hand, nationality is a much broader term or accordlng fo both10******* wm e rtnrnana
and brings him within tho franowork of international law, Jt may happen that all
ByNatyralizution: Aperson who lives in a foreign State acquires nationality of
citizens
l
may possessthenationality ofapariculer. Slate.butJUNOr heceASAry that
the nelionals.mgy be the citizeng of that particylar Stute. It is so becouse citizens that State by naturalization when heTEODI8s 'cltitënship of that State. Nationality
by naturalization may also bo acquired
possess ull polítical rights in a Stale wheroas porons possossing the nationality through MATÍARO becauso it 1s generally
recognized that wilto assumos hor hugband **** -a

may not havewll political rights in the State of thoir nationality Foi example, In the 3 nationaliX
United States, the tem 'citizen' is employed to designate perons with full political On the issue of
and personal.rights within the United States. However, tho term 'nationalityis nationality through
naturalization, Nottebohm case" is of great
employed in the United States to denote the persons belonging to territories and
relevanco.
possessions which are not among the States forming the Union. Therefore, such
Notlebohm had been a German national from his birth in
his naturalization in Liechtenstein Germany in 1881 until
in 1939, shortly after the outbreak of
persons do not possess full rights of citizçnship in the United States It is their war in
nationality in the wider venso, not their citizenship, which is intemationally relovant. Rurope. In 1905 he had taken up residence in Guatemala and engaged in substantial
business dcalings in that country.
Theroafter he sometimes went to
businosa, to other countrios on holidaya,
and to Germany onn
9.1.3 Devolopment of the Nationalty Law Liechtenstoin in oder to visit a

The nationality law is found in municipal legialations. However, there in lack of 7. J.O.Starke, Supra note I,
p. 331.
unisomity in the State nationality laws. This gave rise to probloms of multiple 8. lbid.
nationality, statelessness, and disputed nationality of married women. In 1930, the 9. Articlosl and 2
of tho Hague Convention on the Conlict of
10. J.a. Starko, Supra note
I, pp.331-2.
Nationality Laws, 1930.
. Leichtenstein w
6. LOppenheim, Supra note 2, p. 645. Guatemala, ICJ Rep, 1955, p. 4, Extracts from Louis
International Law-Case and Materials, 433-J8. Henkin et al.,
pp.
 148 INTERNATIONAL LAW
INDIVIDUAL AND THE STATE 149
brother who lived there after 1931. In early 1939, Nottebohm went to
Europo and But
the issue which the Court must decide is not one which pertains to the legal
eventually ápplied for naturalization in Liechtenstein on 9 October 1939. Noltebohm 8ystem of Liechtenstein. It does not depend on the law or on the decision of
sought and received dispensation from residence requirements, paid his fecs and Liechtenstein whether the State is entitled to exercise its protection, in the case
gave security for thepaymentoftaxes, and completed the naturalizatíon proces by under consideration. To exercise protection, to apply to the Cour, is to place oneself
taking an oath of allegiance on 20 October 1939. He obtained a Liechtenstein on the plane of international law. It is international law which detemines whether
passport, had it visaed by the Guatemalan consul in Zurich, and returned to a State is entitled to exercisc protection and to seise the Court.
Guatemala to resume his busincss activities. At his request, Guatemalan authorities The naturalization of Nottebohm was an act performed by Liechtenstein in the
made appropriate changes regarding Nottebohm's nationality in the Register of exercise of its domestic jurisdiction. The question to be decided is whether that act
Aliens and in his identity document. has the international effect here under consideration.
On 17 July 1941, the United States blacklisted Nottebohm and froze his assets When one State has conferred its nationality upon an individual and another
in the United States. War broke out between the United States and Gcrmany, and State has conferred its own nationality on the same person, it may occur that ench
between Guatemala and Germany, on 1'December 1941. of these States, considering itself to have acted in the exercise of its domestic
was
Nottebohm arrested jurisdiction, adheres to its owm view and hases itself thereon inso far as its own
by Guatemalan authorities in 1943 and deported to the United States, where he was
interned until 1946 as an enemy alien. He applied upon his release for readmission actions are concemed. In so doing, cach State remains within the limits of its domestic
to Guatemala, but his application was reAused. Nottebohm then took up residence jurisdiction.
his This situation may arise on the international plane and fall to be considered by
in, Liechtenstein, but Guatemala
had ini the meantime taken measures against international arbitrators or by the courts of a third State. If the arbitrators or the
properties in that country, culminating in confiscatory legislation of 1949. courts of such a State should confine themselves to the view that nationality is
Liechtenstein instituted proceedings against Guatemala in the International Court
that Guatemala exchusively within the domestic jurisdictlon of the State, it would be necessary for
ofJustice, alleging the foregoing facts and asking the Court to declareand them to find that they were confronted by two controdictory assertions macle by
had violated international law in arresting, detaining, expelling refusing to
readmit Nottebohm and in seizing and retaining his propertý and consequently
was two sovereign States, assertions which they would consequently have to regard as
bound to pay compensation. Guatemala's principal argument in reply
was that the ofequal weight, which would oblige them to allow the contradiction to subsist and
claimant's nationality thus fail to resolve the conflict submitted to them.
Liechtenstein claim was inadmissible on grounds of the
was precluled from International arbitrators have dlecided numerous cases ofdual nationality, where
The Court rejected Liechtenstein's argument that Guatemala
it had on several occasions the question arose with regard to exercise of protection. They have given their
contesting Nottebohm's nationality because It then contiued: preference to the renl and effective nationality, that which accorded with the facts,
acknowledged Nottebohm's claim of Liechtenstein nationality. that based on stronger factual ties between the person concerned and onc of t
Guatemala has recognized the title to the
Since no proof has been adduced that State whose nationality is involved. Different factors are taken into considcration,
Liechtenstein as being derived from the
excercise of protection relied upon by and their importance will vary from onc case to the next: the habitual residence of
naturalization which it granted to Nottebohm, the
Court must consider whether such
the individual concerned is an important factor, but there are other fuctors such as
nationality by Liechtenstein directly cntails un obligution on the
an act granting
of Liechtenstcin's right to exercine its
the centre ofhis interests, his family ties, his participation in public life, attachment
its namely,
part of Guatemala to recognize effect,determined shown by him for a given country and inculcated in his children, etc.
be whether that unilaterul nct by
protection. In other words it must States which refrain from exercising protection in
Liechtenstein is one which can be relied upon against
Guatcmala in regard to the The practice ofcertain favour
with this question without considering ofa naturalizcd person wlhen the latter has in fact, by his prolonged absence, served
excrcise of protection. The Court will deal
naturalization according to the law of
Liechtenstcin. his links with what is no longer for him anything but his nominal country, manifests
that ofthe validity of Nottebohm's
the view ofthese States that, in order to be capable of being invoked against another
State, to settle by its own
It is for Liechtenstein, as it is for every sovereign Statc, nationality must correspond with the factual situation.
the acquisition of its nationality, and to confer that
legislation the rules relating to
the
The character thus recognized on the international level as pertaining to
its own organs in accordance with
nationality by naturalization granted by whether international law imposes any nationality is in no way inconsistent with the fact that international law leaves it to
to determine
legislation. It is not necessary
in this domain. Furthermore, nationality
has cach State to lay down the rules governing the grant of its own nationality) The
limitations on its freedom of decision reason for this is that the diversity of demographic condition has thus far made it
and, for most people, its only effects
its most immediate, its most far-reaching servcs ubove all to
impossible for any general agreement to bo reached on the rules relating to
State conferring it. Nationality
within the legal system of the
whom it is confemed enjoys the rights
and is bound nationality, although the latter by its very nature affects international relations. It
has been considered that the best way of making siuch nules accord with the varying
determine that the person upon
to or imposecd on its
the law of the State in question grants leave the fixing of suuch nules to
by the obligations which
within the domestie demographic conditions in dilTerent countries is to
wider concept that nationality is
nationals. This is implicd in the the competcnce ofeach State. On the other hand, a State cannot claim that the rules
jurisdiction of the State.
 150 INTERNATIONAL LAW
INDIVIDUAL AND THE STATE
future to Liechtenstein than to
t has thus la1d down
are entitled to family tics, his intentions for the near anv.
other
in
conformity with this general aim recognition by another State unless it has acted
of naking the legal bond of State?
with the individual's nationality accord does Nottebohm, appear to have been mor
genuine connection with the State which assumes the defence At the time of his naturalization,
of its citizens eslablishnient, his interests, his activities, his
by means of
closely attached by his tradition, his
According to the practiceprotection against other State.
as
future to Liechtenstein than to any other
of
opinions of writers, nationality States, to arbitral and
judicial decisions and to the family ties, his intentions for the near
is a
legal bond
attachment, a genuine having as its basis a social fact of Stale?
with the existence of connection of existence, interests and sentiments, together
At the date when he applied for naturalization Nottebohm has been a Geman
jurndical reciprocal rights and duties. It may be said to constitute the national from the time of his birth. He had always retained his connections with
expression of the fact that the
directly by the law or as the result of anindividual
act of the
upon whom it is conserred, cilher members of his family who had remained in Germany and he had always had business
connecied with the authorities is in fact niore closcly connections with that country. His country had becn at war for more than a month,
population of the State conserring nationality
any other State. Confered a than with that of and there is nothing to indicate that the application for naturalization then made by
by
vis-d-vs another State, if it State, only entitles that State to exercise proteclion
it
Nottebohm was motivaled by any desire to dissociate himself from the government
constitutes a translation into
individual's connection with the State which juridical terms of the of his country.
Diplomatic protection and protection byhadnieans made hinm its national.
lle had been settled in Guatemala for 34 years. He had carried on his activities
proceedings constitute measures for the defence of the of international judicial there. It was the main seal of his interests. lHe returned there shortly after his
Permanent Court of International Justice rights of the Stale. As the and it
the case of one pf its has said and has
subjects and by resorting to diplomaticrepeated,or 'by taking up
naturalization, the centre ofhis intercsts and ofhis business activities.
remained
lle stayed there until his removal as a result of war measures in 1943. He
judicial proceedings on his behalf, a State is in action internalional subsequently attempted to relum there, and he now con1plains of Guatemala's refusal
right ensure, in the person of its
to reality asserting its
rights-ils
own
to admit him. There, too, were several members ofhis
law'.t subjects, respect for the rules of international his interests
family wlho sought to sufeguard
Since this is the character which In contrast, his actual connections with
furnish the State which has nationality must present when it is invoked to No seltled abode, no
Liechtcnstein were extremely tenuous.
the institution of granted il with a title to the exerciso of prolonged residence in that country at the time of his application
international judicial proceedings, the Court must prolection and to for naturalization: the
application indicates that he was paying a visit there and
the nationality ascertlain whether
granted to Nottebohm by means of naturalization conirns the transient character of this visit
or, in other words,
whether the is of this character by its reujuest that td:e naturalization
Liechtenstein in the period
factual connection betwoen
Nottcbohm, and proceedings should be initiated and concluded without
deluy. No intention of
preceding,
connection which may have cxisted contenporoneous with and following his
there was shown ot the time or
realized in the cnwuing wceks, nionths or settling
between him and the contrary, he returned to year-on
possible any other
Stute, that it is Guatemala very shortly afNer his naturulization
to regard the
nationality conserred him as real and showed every intention of and
exactjuridicol expression of a social fact of aupon effective, as thec remaining
1946, this was because of the refusal of
there. If Noltcboh1n went to
Liechtenstein in
connection which existed Guatemala to admit him. No indication is
or came into
existence thereafter. previously given of the grounds warranting the waiver of the
Naturalization is not a malter to be tuken by 1934 Nationality Law, which waiver was condition of residence, required
the
something that happeins frequently in the lifelightly. "To scek and to obtain it is
of a human
not no
allegation of any cconomic interests or of implicitly granted to him. There is
breaking bond of allegionce und his estoblishment of o being. lt involves his
ofu exercivcd in Liechtenstein, and no any activities cxerciscd or to be
It may have
far-reaching consequences ond involvo profound bond ofin allegiance.
now
trunsfer all or some oflhis interests and manifcstation of any intention whutsoever to
of the individual who obtains changes the destiny his business
from the point of view of its
it. It concerns him
personally, und to consider it only unneccwsary in this connection to atlribute much activities to Licclhtenstein. It is
of his naturalizution. inporlance
the tuxos levied at the time to the
repercussions with regard to his
properly would be to
promise to pay
'The only links to be
misunderstund its profound significunce. In order to between the Principality and Nottebohm discovered
it is
imposiblo to disregurd the circunutances in which appraise its international cffect, and the prescnco in Vaduz of are the short
sojourns already referred to
it was conserred, tho serious one of his brothers: but
churacter which attaches to it, the real and the referred to in his his brother's
presence is
cllective,
preforence tho individuul secking it for thhe country which
of
and not merely the verbal application for
conduct. Furthermore other membersnaluralization only us a reference to his good
it to him. of his family have assertcd
At the timo of his
natlurallzation, does Noltebol1n appeurgrants to have beon more
lo spend his old
aye in Guatemala. Nottebohm's desire
closely attachod by his tradition, his ostablislment, These facts
his intorost, his activitios, his clearly establish, on
allachnent betwaon Nottebohm and
the hand, the absence of any bond of
one

existonce of a long-standing and close Liechtenstein and, on the other hand, the
I().PCW Serles A, No. 2. p.12 and Seriex A/U, Nos. 20-21, p. link which hie naturalizatlon in no connection belween him and Guuternala, u
17. way weakened. 1hat
on any real
prlor connection with Liechtensteln, nor naturalization
did it in
was not based
any way alter the
 153
152 INTERNATIONAL LAW INDIVIDUAL AND THe STATE
manner of life of the person
upon whom it was conferred in cxecptional 9.1.6 Double Nationallty--P'ositlon of Marriled Women
circumstances of speed and accommodation. In both
respects, it was lacking in the It may be internationnl law concerning acquisition and loss,
emphasized again that
genuineness requisite to an act of such importance, if it is to be entitled to be rCspected
of nationality is codified. At best, it cxists in customary form. 1hese customary
not
by a State in the position of Cuutemala. It was granted without regard to the concent
nornis are ascertainel from municipal laws,.
of nationulity adopted in international relations. and loss nationality conflict
of
Sometimes, municipal laws concenming acquisition
Naturalization was asked for not so much for the purpose of obtaining a legnl with each other. This may lead to acquisition of more than
one nationalty by
recognition of Nottebohm's membership in fact in the population of Liechtenstein, inter alia,
individuals. For example, individuals may acquire double nationality, in,
as it was to enable him to substitute for his status as a national ofa beligerent State
the following ways:
that of a national of a neutral State, which the sole aim of thus coming within the
naturalization in a
(a) An individual may acquiro double nationality through
protection'of Liechtenstcin but not ofbecoming wedded to its traditions, its interests,
its way of life or of assuming the obligations other than fiscal obligations and State without losing the nationality of his home State (according to
foreign
exercising the rights pertaining to thec status thus acquired, the law of his home State).
birth. It may so happen
Guateala is ader no obligation to recognize a nationality granted in sueh (b) A person may acquire double nationality even by
which the parents of such
circumstances. Liechtenstein consequently is not entitled to extend its protection to that a person is born in the territory of a State of
Nottebohm vis-d-vis Guatemala and its claim must, for this reason, be held to be nationals. In such a casc, that person may acquire
person are not the
to the law of that State
inadmissible. nationality of the Stnte where he is born according
For these reasons, the Court, by eleven votes to three, held that the claim submitted the nationality of his parents at
Uus soli). Such person mny also acquire are nationals (jus
by the government of the Principality of Liechtenstein is inadmissible. birth according to the law of the State of whjch his parents
double nationality of a person. The
Cession: When Stale territory is ceded, the people of ceded territory acquire sangulnis). Consequently, this leads to
Conflict of Nationality Laws deals with
nationality of the State in whose favour such territory is ceded. llague Convention of 1930 on the the Convention provides that
this problem only to somo extent. Article 5 of
Subjugation: When a State is defeated, all the citizens of the defeated State ncquire within a third State a person of more than one nationality
shall be treated as
the nationality of the conquering State. exclusively
arc naturul born
ifhe only hacd one nationality and such third State shall recognize
Resumption or Redintegration: Sometimcs, individuals who cither: (i) the nationality of the country;in which he
is habitually and
naturalisation abrond or for
subjects of State may lose their nationality through principally resident, or the nationality of the country with
(ii)
which in the
some other cause. Such individuals may recover their original nationality on Auliling
due circumstancos he appears to bo in fact most closely connected.
certain conditions. In other words, subjects ofa State who lose their nationality to the law of
certain reasons may be redintegrated or resumed into their orignial nationality
(c) A woman, after marriage, may retain her nationality according
she may also acquire
to
the State of which she is a national, At the same time,
the fulfilment of certain conditions. This process is known as redintegration
or
State ofwhich her
on
the nationality of her husband according to the law of the
resumption. double nationality.
husband is a national. In this manner, she may acquire
follow: Articles 8-11 Haguc Convention on the Conflict Nationality Laws,
of the of
9.1.5.2 Loss of Nationality-Modes of losing nationality arcas
1930, attempt to diffuse this problem by enabling married to retain
women

some concrete
Release: In some States, citizens have the right to ask for the release from their thcir premarital nationality under certain conditions. However,
measures taken in this regard are as follows:
nationality.
denationalization laws which provide that if
Deprivatlon: Some States have passed Women was adopted. Under
citizens enter into foreign or military service of a foreign State,
without permission
(i) In 1957, Convention on the Nationality of Married
the celebration nor the
of their sovereign, they would be deprived of their nationality. this Convention, ench contracting State agrecs that ncither
nor a change of
Residence Abroad: Citizens may lose their nationality by way
of their long8 dissolution of marriage between one of its nationals and an alien,
Long automatic effect on the
residence abroad. nationality by the husband during marriage, shall have any
two States, he may renounce the wife's nationality. The Convention also provides for facilitating,
through
Renunciation: If a person acquires nationality of
husband's nationality.
nätionality of one of the States. naturalization, the voluntary ucquisition by an alien wife of her
Substitution: This mode of losing nationality corresponds subjugation cession
to or
a Declaration on the
(ii)In 1967, United Nations General Assembly adopted
inhabitants of the defeated State. or ceded of the Declaration
Through subjugation or cession, the Elimination of Discrimination against Women. Article 5
State or the State in whose favour the as men to acquire,
territory become subjects of the conquered substitution of the
enunciates the principle that women shall have the same rights
is ceded and their former nationality is extinguished by Marriage to an alien shall not automatically affect
territory change or retain their nationality.
new.
 INDIVIDUAL AND THE STATE
154 INTERNATIONAL LAW 1%
Slates should be persuaded not to resor
thenationality of the wife either by rendering her stateless or on the stalcless persons. In general,
thenationality of the husband. by forcing upon her practice o f denationalization.

(ii) The above-mentioned

Convention on the Eliminationprinciple
has been olaborated in Article 9 of
of All Porms of Discrimination the 9.2 EXTRADITION
1979. Article 9
providos follows:
as Against Women of the process whereby under treaty or upon a basis of
The term 'extradition' denotes
(1) State Parties shall grant women reciprocity, State
one
at
surrenders to another $tate theits request a person accused or
equal righta with men to acquire, convicted ofa criminal offence committed against laws of the requesting State,
retain their nationality.
They shall ensure in particular that neitherchange
or
to an alien nor change of maryiage such requesting State being competent to, try the alleged offender. Generally
nationality the husband during marriage shall speaking, the offence is committed in the tesritory of requesting State,
automatically change the nationality ofbythe wife,
the or a ship

render her statclass or forçe State, aircraft of the requesting State and the
upon her the nationality of the husband. nying the lag of the requesting or an

(2) State Partios shall grant women offender has taken refuge in tho requested or surrendering State.
nationality of the children. equal rights with men with respect to the

9.2.1 Duty to Extradlte

9.1.7 Statelessness
Individluals who lose their original
There is no universal rule ofcustomary intemational law in existence which imposes
duty of extradition, In fact, extradition assumed prominence, only in the nineteenth
nationality without acquiring another nationality
become destitute of nationality. Stateless century due to advancemont of transport and communication. Therefore, States
indivlduuls do not own a
persons lack protection of intornational law because the nationality. Such started entering into bilateral extradition treaties. In tho abscnce of extradition treaty
by which they could derive benefits from international law principal link (nationality)
treats statoloss persons ls missing,
Oppenheim betweon the States, the grant of oxtradition depended purely on reciprocity or
comparable to vessels on the open soa not sailing under the
courtcsy.
Nag of a State, which likewise do not enjoy
therofore, a major problem in international law, This protection."
any Statcleusness is,
in the Universal Declaration of problem has been recognized
Human Rights adopted on 10 December
9.2.2 Object of Extradltlon
Article 15 of the 1948.
Declaration provides that overyune has the right to a nationality,
and that no one shall be
The concept of extradition is based
on the maxim uul punire aut dedere which
arbitrarily deprived ofhis nationality. slgniflos that thé offender must be punishod by the State of refuge or surrendered to
To deal with the the State which can and will punish him, Generally, the Slate of
problem of stateleRsness, certalin remedial measures have been
prosecute or punish the offender mainly due lo two reasons: refuge
is unable to
adopted. Although not adequate, Articlos 13 to 15
Conflict of Nationality Laws contain cortain rules oftothe Hague Convention on the First, the State of
rofuge yenerally lacks jurisdiction to try the ofendor because in most the
be followed by
avoid Statelossness. On 30
August 1961, Convention un Reduction of
the States to siystems, principle of territoriality is the busis of the of legal
Statelessness Jurlsdiction; secondly, non-availability of the ovidonco in assumption
was adopted at New York. It, inter alia, contains of criminal
would otherwjsa be stateless to provisions enabling persons who ovidence is more frecly availablo In the State wlhere
the Stute of rcluge as the
one of the
acquire the nationality of the country of birth, or of offence is committed and
purents at fhe date of birth, and also provides that a loss of thereforo has best possiblo facilitios to ascerlain
nationality, the truth.
which would otherwise take place under certain
circumstancos, is to be conditional
upon the acquisition of another nationality," This Convention came into 9.2.3 Extraditlon Crlmes
13 December 1975. In addition, Convention on force on
the Status of Refugees of 1951, its
Protocol of 1967, and Convention
relating to the Status of Statel Pcrsons of Exiradition treaties and municipal legislations are the
1954 confor important benefts on slateless extraditable crinmes. Generally extradition is guiding factors for delermining
persons, e.g. allowing the uso identity granted only for scrious crimcs. As a
or travel
documents, and privileges of admission by forcign Statcs withofrights of
generul rule, political crimes, military offences (c.g. desertion), and
residence, of practising an occupatlon, ctc. are not subject to extradition. The exception of political offences religious offences
It would be a stop forward ifliberal States lako the lead the nincteenth century. Such developed during
and confer their nationality development was the result of the assertion
States, c.g. lHolland, Switzerland and United by liberal
for political refugces. Kingdom of their right to
grant asylum
12. L. Oppenheim, Supra note 2, p. 668.
13. The Hork of the Iniernatlonal Law
Commisslon, Jrd edn., United Nations, 1980,
Pp. 165-86. 14. J0.Starke, Supra note 1, p. 339.
 AND THE STATE
1S7
INDIVIDUAL

surrender (exceptions
for the grant
156 INTERNATIiONAL LAw Section 31 ofthe Act contains
restrictions on
surrendered or returned to a foreign
criminal shall not be
zone around it. What ofextradition). A fugitive
The exception of 'political offences' has created a problem offence? Who will State or a Commonwealth
country:
ofa political
is a political offence? How to
determine the nature of the surender is sought is
which his
are some of the problematic questions. offence in respect of
determine the nature of the offence? These
to
(a) if the surrender is sought
is
The of States reveals that the State ofrefuge is the proper
practice forum pronounce character of which his
the the offence in respect
above-mentioned questions. Furthermore, States practice accepts (b) if prosecution for time;
on the law of that State,
barred by
according to the
Commonwealth
the foreign State
or
following two principles:
made by the law of
unless provision is
extrad1tion
State o r
This rule states that it isa condition extradition
of (c) treaty with
the foreign
Principle of Double Criminality:
extradition
and of or in the the fugitive
criminal
country country, that
thatthe crime is punishable according
to the law both of the State of asylum arrangement with
the Commonwealth
opportunity of returning
been restored o r has had an
has
shall not, until he
the requesting State. c o mmitted
for an o fence
to this principle,the requesting State is under a detalned o r tried in
that State or country
oftence proved by
Principle of Speciality: According other offence than that for which
he toIndia, be
retum, other
thhan the
cxtradition
the offender for any surrender or
duty not to try or punish prior to his
his surrendder or
return is based;
offence for
was extradited. the facts on which ofTence in India,
not being the
accused of s o m e s e n t e n c e under any
(d) ifhe has been or is undergoing
or return is sought,
9.2.4 Rendition which his surrender whether by acquittal
he has becn discharged,
of a fugitive to the State in
the retum
which he conviction in India until afler
Rendition is a wider term. It means
sentenece or otherwisc;
committed a crime, by the order
of the State to which he has or on expiration of his from the date ofhis being
con1mitted

is accused of having between the States of fiNeen days

without any extradition treaty (c) until afler the cxpiration
Rendition can be effected
gone. offence is an extrncditable prison by the magistrate.
concerned and irespective
of whether or not the alleged to
of extradition are
or refusal of asylum the issue of the grant
to mention here that a deportation
Indian cases on
crime. It may be interesting Some of the prominent
effect of rendition. given below:
may have the between France and
involved extradition proceedings
(i) Survarkur case (1911) 8 July 1910, he
On
was
9.2.5 Indian Position was an Indian revolutionary.
in Indin. At the United Kingdom. Sarvarkar of his treason and
law relating to extradition for the of his trial on a charge
The Extradition Act,
1962 governs the basis for being transported
to India purpose
jumping into
that extradition treaty is not the only his voyage, he dramaticoally escaped by
Act makes it clear abetment of murder. During fire, he dived and
swimmed
outset, the Extradition, under Indian noticed him and opened
extradition. In this regard, Section 2(i)
(i) is instructive. the sca. Although thhe guards He was, however, apprehended
4 of the Act provides
absence of extradition treaty. Section of bullets until he reached the port. of the
law is possible even in the
shower
State or a under a handed him o v e r to Captain
the surrender of fugitive criminal of a foreign
a Policc. French Polico wrongly British Government to
retrurn
that a requisition for
made to the central government.
Wherc such by the French French government requested
may be British ship. Therca Ner, that the nules concerning extradition were not observed
as
direct the magistrate to inquire
Commonwealth country
the central govenment may Sarvarkar on the ground without extradition proceeding5.
requisition is made, govermment, the magistrate Britain
of an orderfrom the central French Police handed
o v e r Snrvarkar to
cxtradition in a
into the case. On the receipt is of
"

of the fugitive criminal.'* If the magistrate

denmanded that Great
Britain should ask for his
for the amest
In fuct, Francc
the requisition of Britain re fused. The
matter
shall issue a w a r r a n t out in support of international law. Great
case is not made with
the opinion that a primafacie shall discharge the fugitive
criminal." formal way in conformity
Arbitration at the Hague.
In its Award, the
commonwealth country, he Pernanent Court of
auch was rcferred to over Sarvarkar
the foreign State or made out in support of by handing
that a primaacie case is had becn committed
If magistrate is of the opinion government," On receipt Court adnmitted that an irregularity Great Brituin by holding
that
and forward it to central decided in favour of
he shall make a report to Britnin. Ilowever,
the Court the
requisition, issue a warrant for the custody and obligation upon the Statc wlhercby on
central government may be international law docs not impose any Permanent Court of
of such report, the at a place and to a person to
retumed. The award of the
criminal and for his delivery above ground the
criminal may be
removal of the fugitive has unfettered discrction
on
the central government criticized by many jurists.
named in the warrant." Thus,
Arbitration was
All Ahmad v State of
the issue of the grant
of cxtradition. Court of 1ndia in Moharak
(ii) holding of |he Supreme
The observed: The fastening of
criminal
Section 5. also worthy of note. Supreme Court
15. The Extradition Act, 1962, Bombayis
Ibid., Section 6. 868.
16. 1957, S.C., p. 857 at p.

17. 1bid., Scction 7, para

3. 20. Mobarak All Ahmad
v. State of hombay, A.I.R.,
J.
18. 1bid., Section 7, pura
19. Ibid., Section 8.
 158 NTERNATIONAL LAW INDIVIDUAL AND THE STATE

liability on a foreigner in 9.3.1 Rlght of Asylum

judicially attributed to himreapect culpable
of acts or omissions in India which arc

ndia at thal lime, is not lo notwithstandingthat he is

corporeally
prescnt outsidc The offender has no right of asylum. However, on this 155ue, certain intemati
give any extra-temitorial itumentsare worth examining.Article14 ofthe Universal DeclarationofRuman
India, that the liability is fastened
on the
operation wliose locality is in
law, if his person and punishment Riglits of 1948Tecognl~es righförgveryone to seek and enjoyjnother.counries
in is awarded by the
presence India for the trial be
can secured.' Adeclaration and not atreaty, does not bind the
The Supreme Court further made the following observation:
asylum Irom persccution. I, beingUnited Nations General Assembly adopted
Stales."On14' December 1967,
Once it (i.e. Declaration on Territorial Asylum. It, inter alia, declared that a person scekine
offence) is treated as
committed at the frontier. If he has alreadyv
is a
foreigner corporeally present outside at thewithin the Slate the facts that the
tine ofsuch commission is no
offender asylum from persecution should not be rejected
to the exercise of should not be expelled or
municipal jurisdiction under the niunicipal law. This objcclion entered the territory in which he seeks asylum, he
the principle thal exercisc contains a caveat to the effect that
offence and not on the
of criminal
jurisdiclion dopendas the emphasizcs compulsorily returned." The Deçlaration also
nationality of the alleged offender" upon locuting of the sylum ought not to be granted to any person, with respect whom there are well
to
foundcd reasons for considering th¡t he hag çommitted a crime again t peace, war
Finally, Supreme Court held: crinve, or crime against humanity. This, being a declaration, has no legal basis. To
adopt a convention on the subject, United Nations Conference on Teitorial Asylum
Indiun Penul Code does
within India apply to u foreigner who hus commnited un offence
was held from 10 January to 4 February 1977. However, no consensus could be
notwithstanding that he was
the assumption that the coporeully prescnt outside. Thus even on achieved at the conference.
uppellunt has ccused to be un Indiun citizen und wus u Pakistuni
national ut the time of the commission On the issue of grant of refuge, law relating to the refugees is more certain,
of the offencc, he must be
punished under the Indian Penal Code notwithstanding held guilty und Articles 31, 32 and 33 of the Refugee Convention, 1951, give expression to the
his not bcing
PTesent in India ut the time." corporcully of non-refoulement which signifies non-rejection at the
principle Convention Thefrontier.
Refugce prohibits the States Parties from expelling or returning
(i) Other Indian Cases on extradition which are (refouler) a refugee in any manner whatsoever to the frontiers of territories where
Saxena v. State," State of generally cited are; Ram Babu his lifc or freedom would be threatened on account of his race, religión, nationality,
Madras v G.C. Menon Hans Muller of Nurenberg w
Supdt, Presidency of Jail, Calcutta and others.3" membership ofa particular social group or political opinion.
In
Daya Singh Lahoria v U.O.I.o) which involves 2001, Supreme Court de
the
extradition 9.3.2 KInds of Asylum
9.3 ASYLUM Asylum is of two kinds, namely torritorial and extra-territorial (diplomatic)
Asylum means the protectionor.relgegranted bya State on its asylum.
under its controlto.a.person_who.comes.lo.seek.sueh protection orterritory oL Premises
refuge. Obviously, 9.3.2.1
asylum is linked with extradition inasmuch a asylum stops where Territorial
rendition begins. The purpose of extradition or Territorlal asylum isAsylum-Teritorial asylum is granted by a State on its territory.
an attribute of the territorial sovereignty of the granting State.
asylum is to accord protection.to a person and to Article I of the Convention on Teritorial
bring him under the jurisdiction of the granting State
Surtendeilhg orteturhing'thé" öffeider to thië Sthte whereas extradition aims
at 1954 recognizes that every State has the Asylum adopted at Caracas on 28 March
where he is alleged to have right, in the exercise of its sovereignty, to
admit any person into its territory. In 1967, United
committed the offence. Theréfore, asylum stopswlien the granting State Nations Declaration on
XtragiteKe öffende, Therefore, the concepts of asylum and extradition aredecides to Asylum came into boing. The relevant provisions of the Declaration Territorial
to cach other, opposite territorial asylum have bcen mentioned above. In
concerming
non-refouloment concerning non-Tejection of refugoes at addition, principle of
the frontier contained in
Rcfugees Convention of 1951 has also been set out above.
It nay be recalled
21. Ibid., p. 869. that due to genocide and other ntrocities committed by
22. Ibid., pp. 870-71.
in Hast Pakistan forced millions of
oppressed Pakistan
sought refuge in India. India liberally granted people
to leave their
23. Ram Babu Saxena v State, A.I.R., 1950, s.C., p. 155.
country. They
24. State of Madras v G.C. Menon, A.I.R., 1954, S.C., p. 517, doing so, Indin gave cxprcssion to Article 14 of polilical refuge to these people. By
the Universal Declaration of
Human
25.lans Muller of Nurenberg v Supdt., Presidency of Juil, Calcutta und others, A.l.R.,
1955, S.C., p. 367. 26. United Nations Declaration
25(0). Daya Stngh Lahoria w U.0.l, A.lL.R., 2001, S.C., p. 1716. on Territorial Asylum, 1967, Arlicle 3.
27. Ibid.
 185
JURISDICTriONAI. IMMUNITIES Or STATES
Commission's Drat Code on
'Jurisdictional
In similar vien, International Law
means the competence
Immunitics States and their Property'states the jurisdiction
of immunities
or power ofa territorial State (State
from whosc territorial jurisdiction,
State in of itself or its propety) tò entertain legal
are claimed by a foreign respect
to
adjudicate litigatlons, as well as the power
11 proccedings, to settle disputes, or to

administerjustice in all its aspects' Accordingly,

the tem 'jurisdictionel immunities
refers to the right of sovereign States to exemption
from the exercise of the power
other administrative and cxecutive
to adjudicate as well as to the non-cxercise of all State.' The
or procedures by another sovereign
Jurisdictional Immunities of States powers by whatever measures
concept covers the entire judicial process, including investigation, examination,
the rendered. According
rendering of judgement and also execution of judgement
immunities' meah immunities from
to International Law Commission, 'jurisdictional
authorities of a territorial State.
the jurisdiction of judicial or administrative
The term 'jurisdictional imnunities' include both types of immunities, namely,
maxim par in purem non from execution' but the former is
The notion of 'sovereign inmunity' originates from the immunity from jurisdiction' and immunity
which in turn is from the latter. Therefore, waiver of
habet imperium (cquals have no jurisdiction over one another), essentially different in kind as well as in stage
equality and dignity of not imply submission to measures
of cxecution.
grounded in the principles of the independence, sovereign immunity from jurisdiction does
source and origin) of the modern
luw of in a suit against a foreign State
States. The maxim is fons origo
et (the Thus, the court may decide to exercise jurisdiction
the personal commercial nature of the activities involved,
the
state immunity and is decply rooted
in earlier theories concerning on various grounds, such as the
will have reconsider or
Heads of States. In fact, the concept of sovereign submission, but to
consent of the foreign State, or voluntary
immunity of Sovereigns or
Writers on international comes to executing the
immunities was little discussed by the classical European re-cxamine the question of its own jurisdiction when it
treats the matter as an incidental uspect
of
law. Grotius is silent on the matter. Vattel judgement.
the doctrine from
the immunity cnjoyed by Ambussadors. Bynkershock has little to say on Thecxpression 'jurisdictional immunities' does not imply any exemption
in his seminal work De Foro Logatorum published immune from each other's territorial
ofState immunity as such, though, less the application ofsubstantive law. States are not manifested upon
in 1774, he deuls extensively with the problems of diplomatie immunities und, laws. This absence of legal or substantive immunity is clearly
State to the
extensively with the immunitics of personal sovereigns. waiver of jurisdictional immunities or voluntary submissison by one
'State immunity' are interchangeable. Yet, of another State. Thereafter, the substantive and also the procedural
The terms'sovereign immunity' and jurisdiction
the two concepts difer from cach other. Sovereign immunity, rules of the local law, including the lex forl, which may be temporarily suspended
theoretically speaking, the immunity which a personal soverelgn
or
on account of State immunities, will resurme their normal application.
in the strict sense of the term, refers to this nense,
In
There has been divergence of juristic opinion on the meaning of the word 'State
of another State.
Head of State enjoys when present in
the teritory
to the immunitics cnjoyedl by for the purposes of "State immunities'. The important issue, therefore, is whether
the immunities of foreign sovereign are analogous
States or
Stute immunitices refer to the immunities enjoyed by the expression "State' should cover only the State as such, or also its sovereign
diplomatic envoys.
become interchangeable because the
State organs. In practice, these terms have head, its government, and all departments forming part of the central govemment,
which underlie plea of in1munity, thereby excluding all other separate entities and national enterprises. The
notions sovereignty, independence thedignity,
and
of State as to the person of the sovereign International Law Commission has put to rest the controversy over the meaning of
attach as much to the abstract person of
as representative of the
State. the word 'State' as used in the cxpression 'State immunities'. According to draft
code of International Law Commission, 'foreign State' includes:
11.1 CONCEPTUALIZATION i) the sovereign or head of State;
to the jurisdiction or competence the of tribunal (i) the central government and its various organs or departments;
The word jurisdictional" is referable not
or the judiciary. However,
it is also used to cover other types of jurisdiction
executive power sometimes their Property, Doe. A/C.N.4/323, Yearbook of the International Law Conmmission,
in nature, such as administrative and
necessarily judicial 1979-11, Part One, p. 238.
times by the administrative or police authorities.
exercised by the court and at other
Law Commission Juriadictional
3. Arnicle 2, para 1 (g). Drant Code of International on
and their Property, Internatlonal Law Commislon, 1980-11, Part
167 Recuell Immunities ofStates
1. Sir lan Sinclair, The Law Sovereign Immunity: Recent Developments,
of Two, p. 140.
des Cours, 167, 1980-B, pp. 197-98. 4. Article 2, para 1 (b), Ibid.
Jurisdictional Immunities of States and
2. Sompong Sucharitkul, Special Rapporteur,
 SURISDICTIOMALIMMLTiES VTATB
186 iNTUMNATIONAI. LAW

in this ares refecu a dinplacemena et eni

(1)
pulitical Thus, Soviet treaty practice
subdivisions ofa foreign State the ezercie of its MVerEig"
#uthority, und
in
practical camaiderations"

()ayecies ur
inatrurnentalities acting as ryans uf a foreign lute in the
of ts
sovereign suthority, whether or pot enduwed with a separate czerce
leg 11.2.2 Restrietive Theory
peronality arnd whether or not
furming part of the operational
of the central rachinery Sates in corrercial actuvities, he pres
government With he increasing involvemert of the
immunities have gom apace At presena, e
11.2 towards limiting jurisdictional
TIIKORIES OV STATK absolutíst approach to jurisdictional
tands utdated A
inmunities resurictve
There
IMMUNITIVS wten a foreign State claiena t
are two theories in this doctrine has emerged, which denies immunity
rogard, namely, ubsolute theory ard restrictive that is rather han pubic, that beionzs
commercial
11.2.1 Absolute Theury theory regard to an activity or property
to the sphere ofJus gestlonls rather than to that of Jus tmpert.
is to
The purpose of the restrictive theory of overeign irunity try t
Absolute theory regards
entitlesa Stato to invoko jurisdictional imrnunities as being abuolute. The theory accommodate the interest of individuals doing business i t h foreign governmer
jurisdictional immunities in having their legal rights determined by the courts, vith the interest of foreign
overeign
law and activíties, The
absolutist doctrine found irrespective of the nature of
it
Russlan Jurlsprudence. support in traditional ínternational governments in being free to perform certain political acts without ndergoi
In Schooner Exchange v
M'Puddon, Marshal C.J., observed: embarrasament or hindrance of defending the property of such acts before foreiga
courts.
full and absolute territorial 7he dilemma, however, surrounds the following issues: what criteria determine
would not seem to jurisdictlon
being elíke the uttríbute of every sovereign
objects. Orne sovereigncontemplate forelgn soverelgns nor their whether the foreign State's activity or property is commercial rather than public?
being in no respect amenable to unother,overeign rights ns its Are they criteria of international law?
Broadly speaking political or public acts are
obliutiwns of the highest churucter not and being bound
by
himself or its sovecreign to deyrade the
dignity ofhis nation, by placing generally limited to the following categories:
enter
rights within the jurisdicliun of unother, can
sforcign territory only under un express license, or in the be
supPpoed tw (i) internal administrative acts, such as expulsion of an alien;
immunities confidence thut the
stipulated urebelonging to his independent sovereign
reserved by implication, nalion, though not expressly
und will be extended
(ii) legislative acts, uch as nationalization;
(ili) acts concerning the armed
(iv) acts concerning diplomaticforces;
to hin.
Soviet doctrine views the activity
State und extends toprinciple
of immunity us absolute. It (V) public loans.
sovereign all its activities. In Soviet is duc to
every
by one State of certain acts in the Union, the
(the acquisitíon of territory of another Sute with he later'sperformance The commercial activities of a
fall
Sute constitute
private activities and, therefore.
movable ue permission oulside he scope of concept of State
does not
mean,its subjectionproperty, çonduct of commercial operations,
to, the, courts of tie latter in etc.) sued the Empire of Iran in order to obtainimmunities. A private fim in
Cologne
thesc activities. Soviet matters rendered to the latter for payment of a bill for 292
on through trade
In system, foreign trade is a State monopoly, arising out of DM (S 73)
repairs made on the heating system in the Iranian
delegations foreign countries. Although Soviet view is
in normally carried at the request of the Ambassador. The Embassy
inasmuch as he carrying on that Republic of Germany, while Supreme Constitutional Court of the Federal
Union, trade delegations and of foreign trade isa sovereign activity of the Soviet
their property obvious that the reacting to the plea of
conclusion of uch a contract doessovereign immunity, held: *it is
derived directly from tho enjoy imnunities in foreign couniries State's not fall within the
concluded a large number sovereignty
of the Soviet State
itself, Soviet Union has political authority."* In 1960, the United
core of thec
Sates claimed
of bilateral treaties which immunity through
its trade contain provisions subjecting 8. De
delegations to the local jurisdiction in respect Visscher, Theory Really in Publlc
of their commercial activities. certain writers remarkand International
that the consent of the
Soviet State
Law, 1968, p. 249. However,
immunity must
not be interpreted as to certain
exception from its
S. Article 3, pura 1 (a), Ibid. they point
out that immunity is arenunciation of the
immunities of trade
right
of the States, and it persists even delegation;
6. a
The Schooner wulved in
Exchange
1961, pp. particular
M'Faddon, Supreme Court of Unlted
vw
cases: see
Academy of Sciences though
it is
(7 Crunch), p. 116. States, 1812, US 305-07. of the USSR,
Internatlonal Law,
7. Triska and Slusser, The 9.
Theory, Law and Pollcy of Soviet Treatles, 1962, Victoria Transport Inc.
Sucharitkul, Comlsarla
.
General
Pp. 152-61.
State Immunities and Trading Activities in pp. 324-33.
Internatlonal Law, 1959, United
p. 354.
Staics Court of De Abastecimlentos Y
Appeals, Second Circuit, 1964; 336 Transporters,
10. Federal Reporter (2d)
Decision of 30 April
in Louis Henkin et 1963,16 BVerfO p. 27,16 N.J.w.. p.
al., International 1732,19 L.Z.. p. 171;Quoted
Law-Cases and Maierials. pp. 504-61.
 JURISDICTIONAI. IMMUNITIES OF STATES
189
188 INTERNATIONAL.IAW

in a suit hrought in Italy by an Italian Company that had huilt contract with the Pakistan govemment for the supply
of Sherman tanks. One clause
diplomatic channels
sewers for the US lwgistic Command in Italy on the ground that the case urose of the embodied an agreement by the govermment
to submit to the jurisdietion of
for breach of the
from activity of the US Ciovernment in its capacity as a sovercign. The Italioun the English Courts. When the plaintiff instituted proceedings
For the plaintiff, it was argued: (a) that
Court of Cessation upheld the decision below denying immunity on transaction contract, the defendants pleaded immunity.
contracts and (b) that the contractual
was ofa private law nature cven though done for a military purpose." In 1962, with sovereign immunity did not extend to trading
clause amounted to a voluntary submission to the jurisdiction
English courts.
of the
respect to a claim of im1nunity on behalf of the Industrial Bank of the Argentine
these two arguments; and, as
Republic, United States took the following position: The Court of Appeal rejected sunmmarily the first of
regards the second argument, held that
[T) he activities for the defendant Bank in cxtending credits to private persons for the such as that contained
purpose of inducing them to invest in the economy of Argentina by bringing und On the authoritics... a mere ugrecment by a foreign sovereign,
to submit to the jurisdiction of the
operating their industrial plants there, importing raw materials for usc therein, und in the clause of the contract herc succd upon,
thosc courts jurisdiction.
constructing a plant to furnish hydro-electric power for such plants, cventhough the English Courts docs not suflicc to give
was to be owned by the Government of Argentinu, arc ull ucts uf u
power plant cndeavour to break the shackles of the
(jure Restlonls) for which the Bank is not cntitled to claim sovercign
nature Lord Denning, however made an earnest
private concemed a
It
immunity regardlcss of its relationship to the govermment of Argentina. nuy
be absolute theory. The case of Ralhin1toola v. Nizam. of Hyderabad"
an English Bank which had
assumed that all acts of a govemment whether of a public Jure inperll) or privute claim to money standing in the account of the Nizamat
at that time lligh
nature ure gestlonls)are done for some public purpose. It is obvious, howevcr, that been transferred without authority into the name of the appellant,
the Nizam, the
Commissioner for Pakistan in London. In an action brought by
would
this cannot be the criterion clse the restrictive theory of sovereign immunity
be meaningless. It is the nature of the activity engaged in by
the government whlch is The House of Lords unanimously upheld
appellant pleaded sovereign immunity.
broke out of the confines of the
controlling and not whether it serves some public policy." the plea. Lord Denning, in his separate opinion,
law on sovereign immunity and stated:
English case

11.3 JUDICIAL DICTA AND LEGISLATIVE ENACTMENTS not depend on

. it secms to me that at the prescnt time sovereign immunity should
in but rather on the
The doctrine of absolute immunity reigned supreme till late nineteenth century whether a foreign government is impleaded, directly or indirectly,
be decided, but on
a rit developed nature of thc dispute. Not on whcther conflicting rights
have
Anglo-American jurisdiction and other jurisdictions. By 1945, dispute
between those jurisdictions which began to apply the
doctrine ofrestrictive immunity the nature of the conflict. Is it propcrly cognizable by our courts or not? if the
or international transactions of a
and continued to apply, the doctrine of brings into question, for instance, the legislation
and thosejurisdictions which developed, the Court should grant immunity
of restrictive immunity uppears forcign government, or the policy of its cxecutive,
absolute immunity. In some instances, the doctrine it does ofTend the dignity of a foreign sovereign to have the
to have been developed as a result
ofa conscious extension of the concept ofimplied ifasked to do so, becausecanvasscd in the domestic courts of another country; but if
submitted metits of such a dispute
was deemed to have voluntarily
waiver. In other words, the foreign State the dispute concems, for instance, the commercial transaction ofa foreign govemment
ofa clausce in a
ofa commercial transaction by reason or by setting up separate
to the jurisdiction in respect
into a contract (whether carried on by its own departments or agencies
even by the mere fact of entering of our courts,
contract agreeing to do so, or
the doctrine of legal entities), and it arises properly within the territorial jurisdiction
the But for those States which were applying
jurisdiction. there is no ground for grant of immunity."
within waiver was interpreted strietly, a voluntary
absolute immunity, the concept implied of
submission directed towards the court itself
in respect of the actual proceedings It is worth noticing that the remainderof Lordships dissociated themselves
Their
being required. from Lord Denning's bold approach. In Mellinger v New Brunswick Development
on the
Corporation,'" the Court of Appeal upheld the plea of sovereign immunity
of the government
11.3.1 Great Britain
ground that the defendant corporation was an a m or alter ego industrial
ofa sovereign State, the function of the corporation being to promote the
seemed to have developed a fancy
for the doctrine of absolute
English courts development of the province of New Brunawick.
Paklstan," the plaintiff had entered into a In Thal-Europe Taploca Service Governmentof Pakistan," the plaintifs
who
immunity. In Kahan v Federation of v.
Revista
Soc. IRSA, 1963 foro Ital, p. 1405, 47
11. Governodegli Stati Uniti di America C.
13,1963); Quoted in Louis Henkin, Ibid., p.
509. 14. Rahimioola v Nizam oflhylerahad, 1958 A.C., p. 379.
de Diritto International, p. 484 (May Mirabellav Banco Industrial
15. Ibid., p. 422.
Mellinger v New runswlck Development (Corporatlon, 1971, 1, W. L.R., p. 1485.
I19 April 1962, Concerning 604.
12. Letter to Argentine Embassy, 16.
in Louis Henkin, Ibid, pPp. 509-10. W.L.R., p.
de la Republica Argentna; Quoted
1003.
17. That-Europe Taploca Servlce w Ciovernment of Pakistan, 1975, 1,
13. Kahan v Federation Pakistan (1951), 2 KB, p.
of
190 INTBRNATIONAL LAW JURISDICTIONAL IMMUNITIE:S OF STATES
9
carricd business in the Federal
on lundmurk in the development of English case-luw on sovereign inmunity t
Polish Republic of
Company to carry fertilizers from PolandGermany,
had chartered a ship to a Council broke the tradition und embraced the restrictive doctrine of immr
Pakistan Agricultural to Karachi on
account of the West
Development regurds uctions in vem brought against State-owiicd vexsels cngaged in co mercial
law as the Corporation,
party incoporated The bill of lading and
in Kuruchi English prøper luw. The ship was Charter uctivities.
by an lndian air raid. The oxtensivcly daniagod The 7henmdtex 7rading Corporation Lud v. Central Bank of Nigeria" urose
Writ was
served, the Pakistan pluintis sued for demurrage, but before thhe rcsult of the over-ordering of cement by the then Nigerian government. This ha
as a
Corporution, which was succeededgovernment had dissolved the
and
Agriculture. The by a branch of the Pakistani Development led to a situation in which Nigerian ports were congested, and demurrage claim
ground of sovercign Pakistan governiment then sought to sel asideMinistry of Food
the writ on the were being incurred. As a result, the new administralion which had come to power
The Courl of immunity. in Nigeria instructed the defendant bank not to honour a letter of credit which had
but the reasons Appeal
was unanimous
in
given by the three menbers upholding the plea of sovercign immunity, ben issued in favour of plaintills, Trendtex now sued on the letter of credit, and
For Lawton, the of the Court were far the defendant bank pleaded sovereign immunity. The Court of Appeal held that the
matter was concluded from coinciding.
v. United
States Shlpping Board" by the case of Companla Mercantil defendant bank should not be regarded as adepartnient ofthe Nigerian government
Personam, a sovereign where it had been held that in an Argentina While reacting to the views of Scarman and Lawton in the 7hai-Europe case, Lord
with a independent
foreigner, lose its State does not, by uction in
entering lnto a trading contract Denning considered the fundamental problem of whether the doctrine of stare decisis
matters arising out of the immunity from process in the English Courts cuvered English judgements applying rules of general international law. Lord
contract. Scarman atated: as
regards
I think it is
Denning referred to the rival incorporation and transformation theories and opted
important to realize that a rule of internutional in favour of incorporation theory:
our law by docisions of a law, once incorporatcd into
competent
becomes purt of our court, notlawun infercnece of fact, but'a rule of
law. It thereforo is
.Inow believe that the doctrine incorporation
of
municipul
applies ns much to thal us to a rule of law and the doctrine of stare
decisis thut our courts could cver
is correct. Otherwise do not see
I
think therefore that it is not with u strictly
municipul provenance. I recognize
certuin that international law does
a change in the rules of international law.
It is
open to this court to
in the intcrnutional
ficld ifit bo inconsislent upply u new rule or view change. I would use of international law the words
law by u decision of the with u rule developing which Gulileco used of the carth: But it does move."
Court of Appeul or the lHouse ulreudy incorporuled into our
of Lorda."
In Lord
Lord Denning felt no such Denning's view, intemational law knows no rule of stare decisis and
inhibitions and asserted that there were that if this court today is satisfied
to the rule of absolute four exception that the rule of international law on a
immunity which were changed from what it was 50 or 60 years ago, it can subject has
recognized coming to be recognized:
or
ply the change in our English law, without give effect to that change and
(i) foreign sovereign has no immunity in respect of land
a it. waiting the House of Lords to do
for
(i) situate in
foreign sovereign has no immunity in respect of trust funds in England
a
Accordingly, Lord Denning concluded that the doctrine of
money lodgod for the England or no longer applied to ordinary trading sovereign immunity
(ii) a foreign sovereign haspayment
of creditors;
should be regarded as transactions, and that the restrictive theory
for services rendered to itsimmunity respect of debts incurred in England being applicable to actions in personam as well as to
no in
rem, actions
(iv) a foreign sovereign has noproperty England;
in
Shaw agreed with the
imumunity when it enters into commercial general thrust of
Lord Denning's
transaction with a trader in England and a
disputo arises which is properly Stephenson, however, felt himself bound by the majority view approach. Lord
Lawton in the
within the territorial
jurisdiction of the English courtu.0 Thal-Europe case. Although he was attracted byoftheScarman and
Lord Denning, however, held that none immunity theory but he felt that he must stand restrictive
of the exceptions
applied in the doctrine and old decisions. loyally but reluctantly on the old
case and, therefore,
upheld the plea of sovereign immunity considering thatpresent Donaldson J. in Uganda Co.
the two irreconcilable Court of (Holdings) Government of Uganda considred
crucial the exercise of
to it was v.
Jurisdiction in a case involving a forelgn sovereign that
the dispute should arise
properly within the jurisdiction of the English cours. and Trendtex case) and followedAppeal decisions (decisions in Thai-Europe case
The ruling of the Privy Council in the one which asserted the
(That-Europe case) rather than the one which broke doctrine of Precedent
Phillpplne Admiral case" represents a historic new grounds
the doctrine of restrictive by deciding that
immunity applied to actions in personam,
18. (ompanla Mercantl Argentina and that there
v. United States Shipping Boand (1924), 22. Ibid., p. 889.
p. 601.
40, T.L.R.,
23. 1bld., p. 890.
19. Supru note 17, p. 1495.
A. 1bid.
20. Ibid., pp. 1490-91. 25. lbid., p. 905.
21. The Philippine Admiral case 26. Uganda Co.
[19761 2, W.L.R., p. 214. (lHoldings) » Government of Uganda, 1979, 1, Lloyds
Rep. p. 481.
 INERNATTONAL LAW
was an
exception to the nule
of stere decisis JURISDICTIONAL IMMUNITIBS OF STATRS 193
Portido the Court of (Thenedrer case). In Congrexo
Appeal was split. Lord Denning, de State of a corporate or unincorporated
theory and Lond Waller
favoured absohute as usual,
favoured
reatrictive body or partnership which has member
The judicial decisions in
immunity theory.
the United
other than States and which is ineorporated or constituted under United
Kingdom
cung to the rule of sovereign Kingdom disclose that Bnglish courts hacd Iaw or is controlled fthom or has its
principal place of business in the United
abandoned in nost Western immunity from the jurisdiction long after it hacd been Ringdom," and cases where a toreign State has agrecd in writing to submit a dispute
16 March 1978, Lord European countries and also in the United
Statcs. On
to nrbitration.
Chancellor stated: The State Immunities Act, 1978
preserves the distinction between a waiver of
imunity rom suit and a waiver of iumunity from execution. For the execution of
There also strong pressure for
is
the judgement or arbitral award against foreign State, the Act
early legislation because the United provides that separate
with the United States, which Kingdom
now..at a distinct is
disadvantage compared
passed the Foreign Sovereign Immunities Act, 1976. has recently
waiver is required.
financial and commodity markets. It has This is particularly apparent in
been unged on the
and traders who deal with States want
to have the assurance
govermment that banker 11.3.2 United States
that
capable of litigation in the courts. They now have assurance in theany dispute will be Theletter of acting legal adviser, Jack D. Tate, to Department of Justice of 19 May
will not have it in the United United States, but
Kingdom until the Bill is passed. Meanwhile I am
advised that important business could
pas1 fhom London to New York."
1952 acted as a guiding stone for American courts. The Thte letter" was a statement
to the effect that, for the fluture, the policy of the State Department would be to
follow the restrictive immunity theory in considering requests from foreign
Lord Chancellor also felt that
legislation
required to enable the United
was Government for a grant of sovereign inununity. In Victory Tansport Inc. w
Kingdom to ratify to
European Convention State
Immunity of 1972 and the
on Comisarta General de Abastecicmentos Thansporte," Victory Transport brought
Brussels Convention on Immunity of
by the Additional Protocol
State-owned
of 1934. Accordingly,
ships of 1926, as supplemented suit to compel arbitration in a dispute arising out of a charter-party. A ship had
State Immunity Act was passed been chartered to the defendants, a branch of the Spanish Ministry of Commerce,
in United Kingdom in 1978. The State
Immunity Act, 1978 begins by restating the to carry surplus wheat to Spain under an Agriculniral Commodities Agreement
fundamental rule ofjurisdictional immunity, subject to various exceptions made betwecn the Spanish and United States governments. The ship was damaged
in later provisions. In this respect, the Act is somewhat at variance with the
spelt out
while discharging cargo at a Spanish port. No 'suggestion' of immunity was filed
European
Convention which begins by listing the various categories of cases in which a foreign by the State Department. The Circuit Court of Appeals affirmecd that it was open to
State should not be entitled to assert jurisdictional immunity and then establishes a a foreign sovereign either to request a suggestion' of inmmunity from the State
residual nule of immunity. The Act founds exceptions to the rule of juriadictiona! Department or to present the claim of sovereign immunity directly to the court. In
immunity on the nature of the transaction in which the foreign State is involved. the latter casc, the court must decide for itself whether the foreign sovereign is
The most significant exception relates to commereial transactions and contractual entitlcd to immunity in accordanee with the principles accepted by the department
obligations falling to be performed wholly or partly in the United Kingdom.Other of the government charged with the conduet of foreign relations. The Circuit Court
exceptions include contract of employment between a foreign State and an of Appeals boldly sought to spell out categories of political or publie acts in relation
individual,0 death or personal injury or damage to or loss of tangible property to which immunity might be claimable cven on the restrictive immunity theory:
caused by an act or omission in the United Kingdom;' any interest of a forelgn
State in, or its possession or use of, immovableproperty in the United Kingdom, or The purpose ofthe restrictive theory of soverelgn immunity ie to try to accommodate
the interest of indivldunls doing busines with foreign govemments in having their
any obligation of the State arising out of its interest in, or its possession oruseof,
any such property:" patents, trademarks and similarly protected rights belonging legal rights determined by the courts, with the interest of foreign govermments in
being free to perform certuin political acta without undergoing the embarrasamentor
to a foreign State, or to an alleged infringement by a foreign State of any patent, hindrance of delonding the propriety of such acts before foreigncourt. Sovereign
trademark, copyright or other similarly protected right:" membership of a foreign imnunity is aderogation from the normal exerciseof jurisdiction by the courtsand
should be accordecd only in clear cases. Since the State Department's fallure or refusal
to suggent immunity is signiflicant, we are dinposed to deny aclaim of
sovereign
27. Appeal form Congreso del Partido, 1978 Q.B., p. 500; Sinclair, The Law ofSovereign
immunity that hus not bcen recognlzed and ullowed by the Stutc Department unless it
Immunity-Recent Developments, Recuell des Cours, 1980-11, pp. 160-61.
28. Hansard (House of Lords), Vol. 389 (1977-78), Col. 1502.
34. Ibid., Section 8.
29. State Immunities Act, 1978, Section 3.
35. Ibid., Section 9.
30. id., Section 36. Ibid., Section 13.
31. 1bid., Section 5.
37. Victory Trunsport Inc. . Camisaria General de Abasteciementos Trunsporte,
32. Ibid, Section 6. Internationul law Reports, 35, 1964, pp. 110-21.
33. Ibid., Section 7.
 IMMUNITIES OF STATES
JURISDICTIONAL 195
194 INTERNATIONAL LAW
including military power and
concerning cxercises of
govornmcntal powors,
isplain that the activity in question falls within one ofthe cutegorlcs of stricly political States's bordcrs aflocting tho persons or pronent
or public acts
about which sovereigns huve Cxpropriations, within a sovereign rulos of intornational
law have emerued wi
truditionully becn quitesensitive. Such more discornible
acts uro
generally limited to the
following categorica: ofaliens. 1lowever,
comnercial dealings of private
porsons in the inlernational murket
1. internal udministrutive regard to the tlhat these estublished rules
acts, such us expulsion of un ulicn; rostrictive approach to voveroign immunity suggostw
2. legislative ucts, such as The
nationalization; transactions of loreign State.
3. acts concerning thc armed
forces; should be upplied to the commercial embraced the restrictive
4. acts concerning the United Statcs goverument had eflectivcly
diplomatic activity, Although with the issuance of the "Tate letter
in 1952
5. public loans.
theory of jurisdictional inmunity intervention was lelt. First, the abscnce of any
ncod for some kind of legislative
of process on forelgn Stutes hud led potential
Accordingly, the Circuit Court of Appeals denied statulory procedure for the service
holding that their chartering of the ship to transport a immunity
to the defendants,
purchaso of wheat was not a litigants to scek the attachuncnt of foreign State assets in the United States in order
strictly public or political act, but partakes far more of the was procluded, cven in cases where assets
to found jurisdiction. Secondly, execution
commercial act. character of a private been altached in order to found jurisdiction.
ofa conmercial nature had already
In lsbrandtsen Tankers Inc. v. Prestdent the courts and
filed a suggestion of immunity. The
of Inalia," the State Department had Thirdly, lissatisfaction had been cxpressed by potontial litigunts, by
procoedings had arisen out of a charter party indeed by the State Department itself, at the role which the Stute Department had to
for the transportation of grain to India. The Circuit Court of
Appeals referred to the
various categories of strictly political and public acts' which it had
play in deciding upon requests from aa foreign State that the Department make a
the Victory Transport cCase and candidly admitted that 'were we suggested in suggcstion of immunity in the context of proccedings pending ugainst the State"
this distinction, as defined, to the facts of the
required to apply Pinally, Foreign Sovereign Immunities Act (FSIA) wus passed in 1976. It codifies
present case, we might well find that the international law principle that a foreign Stute is entitled to inmunity only with
the actions of the Indian government were purely
private commercial decisions." respect to its public acts, not with respect to its commercial or private acts. An
In Alfred Dunhill of London Inc. v.
Republic of Cuba," four Supreme Court important feature of the Act is that it vests sovereign immunity decisions exclusively
Justices endorscd restrictive theory of immunity and stuted:
in the courts and eliminates outdated practice of having a political institution, namely,
the Slute Department for deciding many of these questions of law. In other words,
Repudiation of cummercial debt cunnot, consistent with the reslrictive upprouch to
sovercign immunity, be treated as un ucl of Stule; for ifit were, foreign govenments, tho Act
secures depoliticization ofsovereigninmunity decisions by renoving from
the cxecutive branch to the judiciary the delicale task of
by inerely rcpudiating the debt becforc or aler its udjudicalion, would cnjoy un determining wlhcther, on a
immunity which our governnient would not extend them under prevailing sovereign particular set of facts, and applying the criteria inherent in thhe restrictive theory,
immunity principles in this country. imnunity should be accorded to a foreign Stute. The gencsis of the United States
legislution can accordingly be traced primarily to the problems whiclh the State
More specifically, these four judges embraced the broad deparlment had encountered in seeking to respond, during the period subsequent to
policy considerations issuance of the "Tate lelter', to requests from
underlying the restrictive theory of imnunity: foreign States for 'suggestions' of
Immunity. Furthermore, the Act provides US citizens with the remedy of execution
Participation by foreign sovereigns in the internationul comnierciul markct has to satisly a final
increased substantially in recent ycars... The polential injury to private businessman judgement against a foreign State.
and ultimatcly to international rade ituelf-from a syatem in which some of the
Foreign Sovereign Immunities Act, 1976 cmbodics rules of State immunities
and enumeratcs exceptions to the rule. These
exceptions include waiver of
by the forcign Slate: commercial activity of the foreign State;" rights in immunity
participants in the international market are not subject to the rule of law has therefore
increased correspondingly... Subjecting foreign governments to the rule oflaw in property
situated in United States;4 money damages
their commercial dealings presents a much smaller risk of afronting their sovereignty against a foreign State for personal
than would an attempt to pass on the legality of their govemmental acts. In their injury or death, or damage to or loss of property occurring in the United States and
commercial capacities, foreign govemments do nol exercise powers peculiar to
Overeigns.
There may be litle codification or consensus as to the nules of international law 40. Ibid., pp. 746-47.
41. Statemen Mr Brower (Acting Legal Adviser, Department of Statc) to the
Sub-Commitee on Claims and Governmental Relations of the House
38. Isbrandisen Tankers inc v President of Indta, International Legal Material, 10, 1971, Committee on H.R-3493,7 June 1973 (Serial No. 10). Judiciary
Pp.1046-50. 42. Porcign Sovereign Immunities Act, 1976, Section 1605
39. Alfred Dunhill ofLondon Inc. v Republic of Cuha, International legal Material, 15. (a) (1).
43. Ibid., Section 1605 () (2).
1976. pp. 73S-65. 44. Ibid., Section 1605 ()
(4)
 196 INTERNATIONAL LAW
JURISDICTiONALIMMUNITIES OF STATES 197

caused by the tortious act or omission of that may specify, in the case of any suit or class of suits, the Court in which the
taken in international law.*
foreign State;" and rights in property
forcign State may be sued, but it shall not be given, unless it appears to the
Ipitrade International S. A. w Federal Republic of central governinent that the foreign State:
breach of contract for the purehase and sale of cement.Nigeria"
arose out of the
Under the contract, the (a) has instituted a suit in the Court against the person desiring to sue it, or
defendants had expressly agreed that the construction,
the contract would be governed by Swiss law and that
validity and performance of (b) by itself or another, trades within the local limits of juriadiction of the
to 1CC arbitration. Plaintiffs referred to
disputes would be submitted Court, or
arbitration various disputes arising out of (c) is in possession of immovable property situate within those limits and
the contract and the arbitrator issued an award,
binding under Swiss law, granting is to be sued with reference to such prorperty or for money charged
some of plaintiff's claims and
rejecting others. The court, in conflrming the thereon, or
arbitration award, noted, with reference to section 1605 (a) (1), that the
legislative (d) has expressly or impliedly waived the privilege accorded to it by this
history of this section expressly states that an agreement to arbitrate or to submit to section.
the laws of another country constitutes an implicit waiver.
Section 1609 of the Act establishes the basic rule that the
property of a foreign 3 Except with the consent of the central government in by a
certifled writing
Secretary to that govemnent, no decree shall be cxecuted against the property
State shall be immune from attachment and execution. Section 1610 contains an
of foreign State.
exception to the nule and states that atachment in aid of execution, and execution
itself, is allowed if the foreign State has waived its immunity either expressly or by
4. The preceeding provisions of this section shall apply in relation to:

implication; if the property sought to be attached or executed upon is or was used (a) any Ruler of foreign State;
for the commercial activity upon which the clairm is based; if the execution relates (b) any Ambassador or Envoy of a foreign State;
to a judgement, establishing rights in property taken in violation of international (c) any High Commissioner ofa Commonwealth country; and
law; if the execution relates to a judgement establishing rights in property ncquired (d) any such membcr of the staff of the foreign State or the staff or retinue
by succession or gift, or in immovable property situate in the United States (with ofthe Ambassador or Envoy of a foreign State or the High
of
the exception of the premises ofa diplomatic or consular mission or the residence Comminsioner of Commonwealth country as the centralthey apply in
government
of the head of such a mission); or if the property consists of the proceels of an may, by general or special orcler, specify in this behalf, as

automobile or other liability or casualty insurance policy covering the cla im mergecl relation toa foreign State.
into the judgement. 5. The following persons shall not be arrested under this Code, namely:
(a) any Ruler of a foreign State;
11.3.3 India (b) any Anmbassador or Envoy of a foreign State;
In is no separate legislation on jurisdictional immunities of States.
India, there (c) any High Commissioner of a Commonwealth country; and
However, Section 86 of Civil Procedure Code govems suits aga inst foreign Rulers, (d) any such member of the staffofthe
foreign State or the stafor retinue
Ambassadors and Envoys. of the Ruler, Ambassador or Envoy of a foreign State,or of the High
Commiasioner ofa Commonwealth country, as the central government
may, by general or special order, specify in this behalf.
86 Suits against Forelgn Rulers, Ambassadors and Envoys
6. Where a request is made to the central govermment for the grant of any
1. No foreign State may be sued in any Court otherwise competent to try the consent refcrred to in subsection (1), the central government shall, before
suit except with the consent of the central government certilied in writing
refusing to accede to the request in whole or in part, give to the person
by a Secretary to that govemment. making the request a reasonable opportunity of being heard
Provided that a person may, as a tenant ofimmovable property, sue without
clains to
such consent as aforesaid a foreign State from whom he holds or Section 86 of Civil Procecdure Code gives expression to the restrictive inumunity
hold the property. theory. The Section does not prevent absolutely the suits against forcign goveriment,
2. Such consent may be given with respect to a specified suit or to several or a trading corporation operated by a foreign government. It makes such suits
specificd suits or with respect to all suits any specificd class or classes, and conditional upon consent. (Colonel llis 1lighness Rauja Sir Hartnder
Commisioner ofIncome Tux" arose out of the tax liability of the Erstwhile Rulers
v
Singh The
45. bid, Section 1605 (u) (5).
46. Ibid., Section 1605 (u) (3). 48. Colomel Ilis ihness Raja Sir llarinder Singh w The Commissioner of Income Tax,
47. pitrade InternatiomalS A. x Federal Republic ofNigeria, International Legal hatertal, A.I.R., 1972, S.C., p. 202.
17, 1978, pp. 1395.
 JURISDICTIONAL IMMUNITIES OF STATES
198 INTERNATIONAL LAW 199
of sleepers for the Ga.
four contracts for the supply
of Indian States in respect of their
personal income which accrued in India during merchant, entered into owned by the Maharaja of
which was admittedly da
assesament years prior to commencement of the Constitution. The Supreme Court Baroda State Railway, which were made in Baroda were
pointed out that under section 86, Civil Procedure Code, there is no absolutc his servants. The contracts,
and managed by Baroda Stato Railway. Subsequent
prohibition against a Ruler of foreign State being sued in India. It was finally held and Engineer-in-Chicf,
that such nulers were not signed by the Manager of the Railway, alleging that the slecpets
exempt from the provisions of Income Tax Act. the then Manager and Engineer-in-Chiof contract specifications, cancelled all the
In Institute the
Indo-Portuguase v. Brogex," Bombay High Court rejected a plea of delivered were not in accordance with
immunity in the context of proceedings for the instituted procoedings against the Gackwar Baroda
reoryanization of a trust established contracts. Tho plaintiffthereupon
and administered in Engincer-in-Chief of the Railway claiming
Bombay, the trust having becn created by foreign sovereign,
the Government-General of Stato Railway through the Manager and
and damage for the
Portugese lndia. While adopting rcstrictive im1munity which hud becn supplied
theory, Datur stated: the balance of the price of the sloepera the suit was in reality, though
remainder. Thus, in fact
failure to take delivery of the Prince within the
If thero hus becn a trust, and if this trust is not in form, one against the
Gackwar of Baroda, a sovereign
created by u forcign sovercign, it does not relevant time,
mcun thut tho of sections 86 and 87 of the Civil Proceduro Code. At the
forcign sovercign has creuled this trust in the exercisc of his foreign meaning
In of Civil Proccdure Code read as follows:
powers. my view, when a trust is created by u section 86(1)
no belter than a scttlor amenuble to
sovercign, the sovercign would bec
the law of the country in which the
creuted und is to be conducted. charity is 86() Any such Prince or Chief, and any Ambossador or Envoy forcign
of a State,
Governor-Oenerul in Council, certified by the signature
nuy with the consent of the
In Mirza Ali Akbar Kashanl be sucd in
w United Arab
Republic" Supreme Court considered ofa Secrelury to the Government of Indiu, but not without such consent,
the relutionship
between section 86() of the Civil Procedure Code and any compclent Court.
international law. Tlhe Supreme Court stuted: gencral
The Judicial Commitee held that suit was not maintainable as it was not filed
The cfect of the provislon of sectlon 86()
uppeurs to be that it makcs a statutory
provislon covering a field which would otherwise be coverod by the doctrine of aguinst the proper party. According to Judicial Committee, the Ruilway was not a
immunity under international law. It is not disputcd thut every sovereign Stute is eparule corporation or a juristic entity, which could be sucd through the head of
to make its own laws in relutlon to the
the Railway Depurtment. In fact, the entire Railway was owned by the Maharaja of
compctcnt righis and liubilitles of forcign
Stalcs to be used within its own municipul courts. Buroda who was a sovereign Prince within the meaning of scction 86(1) set out
above.
That being so, it would be legitimate to hold that the effect In the case of lHer Highness Maharani Mandalsa Devt v. M. Ramnarain Pvt
of section 86(1) is to
modify to a certain cxtent the doctrine of immunity recognized by international Ld" the question arose: could section 86 of Clvil Procedure Code have any
law.
This case is an appeal from the decision of the Calcutta Higlh Court which held
application in a cuse where suit was instituted ugainst a purtnerslhip firm which has
Malharaja (who was cntiled to immunity under section 86, CPC) us one ofpartners.
that under the old section, that section 86 would huve upplicution. According to the
forcign Stale was not necessarily a suit
suit against
a
against the Ruler of such State and, therefore, a foreign State did not enjoy any
"The Supremc Court held
Court, suit against a partnerahip irm by name is in law and reality a suit
Suprene
immunity under the provisions of sections 86 and 87 but that such a suit was barred
under the general, principles of international law excopt in a case where the State
ugainst the partners. Supreme Court observed that when the respondent sued
The
the lirn, it sued the Maharaja and all other
partners
was found to trade within the local limits of the jurisdiction of the Court, The In Royal Nepal Airline Corporation v. Monoruma Mehar Singh
Legha,* a suit
wus instituted by the
Supreme Court disapproved this view by holding that the section applicd to suits plaintiff recovery of a sum of Rs 8,42,500 for damages,
for
against all foreign States whatever be their form of government, whether monarchial intercsl and other reliefs against Royal Nepal Airline Corporation and another. The
or republican" This interpretation of the Supreme Court received legislative quewtion was that being a suit against Royal Nepal Airlinc Corporation whcther the
consent or sanction under section 86 of the Code of Civil Procedure was still
approval in the amended Civil Procedure Code of 1976.
In Gaekwak Baroda State Rutlway . Hafiz ltubbi-nul-Haq" the plaintif, a timber necessary. Chief Justice Bose, in his judgernent, observed that even if the Nepal
Airline Corporation was a department of the governiment of Nepal and as such was
entitled to claim immunity. The suit was, therefore, held to be not maintainable in
49. Instute ndo-Poriugea v Broges, Internatlonal Law Reports, 27, 1960, p. 111.
the absence of consent of the central governnient to the institution of the suit.
50. Ibid., p. 114.
51. Mirza All Akbar Kashant v. United Arub Republic, A.I.R., 1966, SC, p. 230.
$2. United Arab Republlc w Mirza All Akbar Kashant, A.I.R., 1962, Culcutta, p. 387. 55. ler llghness Muharanl Mandalsa Devl ». M. Ramnaraln Pt Lid, A.l.R., 19t5, S.C.,
53. Supra note 51, p. 237. p. 1718.
54. Guekwar Buroda Stute Rallway w llaflz Habib-ul-llaq, A.l.R., 1938, Privy Council, $6. Corporation w Monorama Mehar Singh Legha, A.l.R., 1966,
Royul Nepal Alrline
p. 165. Culcutto, p. 319.
 OF STATEs 201
IMMUNITIES
JURISDICTIONAL.

200 INTERNATIONAL LAW India rained the

imunity
plea of sovereignNovember
of the arguments.
up to clate ofhcaringlaw when argumenta were being heard on
26
In New Central Jute Mils Co. Lid. v. VEB Deutfracht Seereederet Rostoek und uncler internationnl only
by that time as a
result of the
Constitution (Thirty-Sixth
Amendnent)

Others," the plaintiff appellant purchased divers apareparts and accessories for ts 1975 and
becnnme incoporated
in the Union
as a component
IndiaSikkim. of
was the caxe of already Sikkim
plant from one Neuman and Esser, Federal Republic of Germany, it Act, 1975, Sikkim vis-d-vis
State
India censed to be a foreign
the plaintiff-appellant that it duly paid the purchase price and the ownership in
tho Stnte and the Union of could not be considered
international law, a Protectorate
to India through CCourt held that under held prior to its
goods passed to the plaintiff-appellant. The goods were shipped Tligh State. Sikkim, it was

the desendent DSR Lines and were damaged in transit. The suit was filed ugainst be n part or portion of the Protecting the Constitution (Thirty-
contended that
to component State of
the Union of India by Protectorate
the DSR Lines, the carrier under the Bill of Lading. The defendant
as a
incorporation was a foreign
State inspite of itn being
it was the department and/or agent and/or instrumentality of the govenmment
of Sixth Amendment) Act, 1975,
has Nurthermore, stated the principle:
German Democratic Republic. It asserted that German Democratic Republic of India. The Court,
sovereign foreign State and that all
from
been recognized the government of India as a
not bound to und muy not raise
such plen ofimmunity
State property. It was, therefore, contended that the
suit ..u forcign State is State and if no such plen
is raised, the foreign
water and air transport are
as no consent of the central government
had been being Rucd in court of the sovercign
wuived such immunity and
to have voluntarily
submitted
was not maintainable inasmuch have
of Civil Procedure State shall be decmel to State concerned.
obtained prior to institution suit as required by provisions
of the the off the other forcign
to the juriscliction of
court

Code. Calcutta High Court stated:

could not plead doctrine
the secetion The Sikkim Court concluded that
lligh
Union ofIndia
he tokcn to have
of sub-section(1) of section 86 would indicate that sued the stage of arguments and must
A plain reading of immunity from being
at
and states that such a suit against a forcign
comprehends all suits against foreign State It waived its claim to inimunity. suits against foreign
State cannot be instituted cxcept with the consent of the central govenment. s section 86 deals with
whercas consent is required Another worth noticing point is that of sovercign immunity
is
quite apparent on a plain reading ofthe expressions used such restriction and Envoys. That being no, plea
Ambassadors
States as such it does not appeor that Rulers, Sahlh Shiv Bhugwa
to institute suits against foreign in suits. In the Muharana
State or against a body or an organ which
is cven available to a forclgn State only Court held that
applies also to organs of foreign DSR Linca is u . State of Rajaxthan," Supreme
Singh Bahadur of Udaipur
that the v
State. It is apparent from the of industrial disputes
averments
part of the forcign the constitutcd lnclustrial 1Disputes Act for adjudication
It appcurs that it has power of appointing proccedings under
were not barred
underT
separatc cntity in law. Inclian State and his employccs
It has not becn disputed thut it is between Ruler of for1ner
Attorncy. It has also the power to appoint an agent. Code. According to Supreme
from this it is Civil Prucedure
or a juristic pcrson. Quite apart cction 86 rend with nection 87B,
not an indcpcndent legal entity be treated as 'suit' within
Stutc as such und the Industrial Disputes Act cannot
self-cvident from the suit thut the suit is not against forcign
a
is also significunt to
Curt, proceedings under Industrial Tribunal is not a
name of the Gcrmun
Democratic Rcpublic does not appear. It of section 86 of Civil Procedure Code.
DSR Lincs, he meanings Procedure Code. I.ikewise, the
bear in mind that it is not the case of
the respondents that a suit against of section 86 of the Civil
court within the menaning
cloes not lie at all. is being claimed is that
What siuch Sagar Mao held that a proceeding
being the respondant, defcndant central government as enjoined Suprene Court in Nawab
Uxmanali Khan v. 1940 fdr the passing
a suit could not be
institutcd without the consent the
of section 17 ofthe Arbitration Act,
Civil Procedure. The Calcutta High
Court inally came under section 14 read with whom the
by section 86 of the Code of decrec an award is not a suit and the parties to
to the conclusion that
the suit not being er facle against a foreign State,
section
B of a judgement and on
under section 14(2) of Arbitration
Act
of Calcutta High Court, section 86 is confined to notice of the filing of the award is given
has no application. In the opinion Court court otherwise competent to try
the suit', within
such. The judgement of the Calcutta High cannot be regarded as 'sued in any
the suit ngainst a State by n a m e as Code ofCivil Procedure.
disregards the principles of
international law inasmuch as the interpretation given
to
the meaning section 86(1) read with section
of
87B of the claim
the High Court is not in the light of international in the opinion of Supreme Court,
section 86, Civil Proccdure Code by The ruler of former Indian State cannot,
to govemmental departments
and instrumentalitics also. other than suit.
law which grants immunitics the plen of immunity from procecdings Agency
It is pertinent to note here
that in its oblter, the Cout has recognized In M/s Uttam Stngh Duggal and Co
Pvi Ltd v United States America of
commercial activitics ns an exception
to the immunity doctrine.
Internatlonal Development," M/S Uttam Singh
Duggal and Co Pvt Ltd
Sor
Union
In Sagarmull Agarala v Unlon plaintifT filed a suit ngainst
of India,"
when Sikkim was not incorporated
in the Hahadur of Udaipur v State Rajasthan, of
of India, in the Court of Sikkim in 1972, 59. The Mahurana Sahib Shlv Bhagwat Stngh
India was the
Sikkim was only a Protectorate and A.L.R., 1964, S.C., p. 444.
Union of India. At that tine,
of that Court at all stages A.I.R., 1965, S.C., p. 1798.
State. Union of India submitted tojurisdiction Nawah Usmanall Khan Sagar Mal,
v
Protecting 60).
lad v United Stales of Amerlca Agency Jor
61. M/s itam Stngh Duggal and Cu Pvt
Cour on 24 May 1982 (Justice
VEB Deutfracht Seereederei Rostock and nthers, Jnternatlnal Development, decided by Delhi High
$7. New Ceniral Jute Muls C'o
lud v
Suit No. 448-A of 1974.
R.N. Aggurwal),
A.1.R., 1983. Calcutto, p. 225.
1980, Sikkim, p. 22.
$8. Sagarmull Aganala v lUnlon ofIndla, A.I.R.,
 202 INTERNATIONAL LAW JURISDICTIONALIMMUNITIES OF STATES
facts of this case and this in a way su&gests that the central
(hereina fter called "the coniractor) had entered into contract with the Uniled
a
the plea of immunity on
the theory of immunity only to sovereign act and not to
restrict
States of America Agency for Intermational government wants to
USAID) for the Development
construction of USAID salT house and (hereinafter
called "the privale act or commercial activity.
Mehrauli, New Delhi. The contract apariments projects
contained an arbitration clause which readsnear While reacting to the argument of the petitioner that arbitration clause containe
under: as
in the contract amounts to waiver ofimmunity by the respondents, the Court observed
Notice of the demand for that only on the basis of the arbitration clause in the contract, it could not hold that
arbitration of
of the contract. The demand dispute
other party shall be filed in writing with the the respondent had waived the privilege of immunity. In the opinion of the Court,
reasonable time after the for arbilration shall be made
withina he arbiration clause cannot be interpreted to mean that the respondent had submitted
made later than the time dispute
has arisen; in no case,
of final however, shall the demand be
in the contact. In all payment, except as otherwise expresscly stipulatcd to the jurisdiction of the municipal courts in India or Delhi. Finally, the Court
cases, the contracting officer, rejected the plea of immunity taken by the respondents.
the sole arbitrator USAID, mission in India, shall be
In Harbhajan Singh w Union ofIndla the petitioner had done the jobs of
Disputes arose between the building maintenance, reconditioning and renovation work in l1976 at the Embassy
reser the disputes to arbitration parties. The contractors called upon the USAID to
in accordance with arbitration of Algeria und at the residence of the then Ambassador of Algeria in New Delhi.
The contractors,
therefore, filed a petition under section 20clause. USAID refused. He made several representations for recovery of his dues,
failing which he
for the
filing of the arbitration agreement in court and forofthethe Arbitration Act approached the Ministry of Extenal Afmairs for granting permission to sue the
dispute to arbitration in accordance with law, Mr C.L. reference of the Algerian Embassy. The Ministry replied in November 1983, stating, inter alia:
for Union of India, stated that
the central Chaudhary, Standing Counsel 'after due consideration, the government of India
regrets that pemission to sue the
1981 accorded its consent under government vide its letter dated 16 March State of Algeria cannot be given on
section 86 of the Code of Civil political grounds.' In response to the
petition
suing USAID regarding the performance of the contract Procedure for filed, the govermment, however, shifted the stand
dated by observing that the Ministry
is pertinent to
point out that a petition under section 20 of the 15 January 1969. It was of the
opinion that no prima facie case was made out and the facts of the case
asuit within the meaning of the Arbitration Act is not were not squarely covered under
section 86
found apparent contradiction in what was of the
provisions of section 86 of the Code of Civil Code Civil Procedure. The Court
Procedure. Justice Aggarwal, who stated in the refusal to give
delivered the judgement,
pointed out that affidavit of the government. The Courtpermission
to
international law on the doctrine of sue and what was stated in the
and restrictive theory of im1nunity has in England undergone a change power given to the central held that the
immunity has been accepted as part of the whimsical grounds but upon govermment
must not be exercised
arbitrarily or on
sovereign immunity. The Judge also observed that American law English law on proper reasons and grounds. The Court
view, While reacting to the also took similar that in granting the emphasized
contention that restrictive immunity consent, the central government was not to
to
building contract as it was not a transaction of trading theory did not apply comeciness of the claim. It is
true, the Court observed the adjudicate upon the
the Court held: or commercial
character, and 87 of Civil Procedure Code
are intended to save
provisions sections 86
of
foreign States from
the transaction cannot be
which would be caused
by the institution of a suit but except in casesharassment
.. .

placed anything above u clain1 uppeors to be frivolous where the

or
public actvis involved in the transaction. It may purely privalc act. No sovereign accord conaent or give sanction patently,
the central
government should normally
sometimes become difficult to
differentiate between sovereign, privale and
public ucts. In order to dilferentiute and other reasons. The Court against forelgn States unless there are cogent political
between a sovereign act and a made it clear that
private act, one will have to look Into the nature or to the central
government to normally, it is not the function of
function of Courts of attempt adjudicate upon the nmerits of the case. lt is the
the purpose of the transaction. The to
iransaction as already slated was
construction contract and it would... purcly a competent jurisdiction and the central
best be termed n privale commercial act. section 86 of Civil Procedure Code
cannot government under
that function, the Court
The respondents contended that section 86 is applicable Accordingly, the Supreme Court directed theusurp central
added.
petition under section 20 of the Arbitration Act is not a suit,only order in accordance with thegovernment reconsider the
to a suit and since case and pass reasoned to
a
section 86 will not be and keeping in vicw the trend and the principles of natural
applicable and, therefore, the consent accorded by the central of international law. justice
avail to the petitioner. The court held: government is of no 7wenty One (P) Lid v Union of India developmentrelates Century
occupied by Ambassador of Afghanistan. The to recovery of rent for a house
section 86 only applies to suit and thal a residentiul premises by a Afghan Ambassador was given
The petitioner sought the privale party under a lease executed on 15 August 1961
Act is not a suit within
petition under section 20 of the Arbitration
the meaning of the expression 'suit" s used in section 86 of assistance of the ministry of Hxtenal AfTairs
the Code of Civil Procedure.... The fact that seclion 86 is only upplicable to a suit for
61(). larbhaJan Singh w Unlon
recovering
and the petition in hand not being a suit is not
governed by sectlon 86 will not make of India, A.l.R., 1987, Sc, 9, Reproxluced in Indlan Journal
ofInternalional Law, 27, 1987,
any difference. The fact remains that the cenirul govcrnment has not chosen to pp. 96-103.
uphold 61(h). (enury Twenty-(ne (P) LId w Unlon
of Indla, A.l.R., 1987, Delhi, p. 124.
 OF STATES 2005
204 INTERNATIONAL LAWw JURISDICTIONAI. IMMUNITIEs

that a
Court." It flows from this principle
thearrears of rent and for permission to sue the Ambassador or his succe»sor. The to the excercise of jurisdiction by that court of
in a proceeding before a
government refused to accord permission. Aggrieved by the refusal, the petitioner State cannot invoke immunity from jurisdiction
or intervened in that proceeding
the another State ifit has itself instituted that proceeding,
moved High Court under
Article 226 of the constitution of India for the or taken any other atep relating
to the merits thereof."
The practice in United
enforcement by his fundamental right to hold and dispose ofproperty. The lligh of this principle in these
Court of Delhi took judicial cognizance ofthe distinction regarding liabilities arining Kingdom, United States and India shows the acceptance
out of countrics
sovereign
acts
offoreignStates and liabilities arising out of acts of privato or
commercial nature. ANer treating the present act as of a private nature, the Delhi
High Court directed the central government to accord permission to the petitioner 11.4.2 Counterclains
to
sue the Afghan Ambassador for the recovery of arears of rent. To fnustrate the The exception of counterclaims is well recognized
in the States practice discussed
genuine grievances of the Indian Citizens in the name of diplomatic immunitics
hardly contributes to the dignity of foreign missions. Therefore, the High Court above. International L.aw Commission has
codified this exception in its IDraft Article

of Delhi rightly passed a directive to the central government and not mcrely n 10 which provides:
instituted
pursuasive order of the kind passed by the Supreme Court in the previous cuse. 1. A State cannot invoke immunity from jurisdiction in a proceeding
countérclaim against
Section 86 of the Code of Civil Procedure poses problems. Firstly, it is cxecutive,
by itselfbefore a court
ofanother State in respect ofany
or facts as the principal
i.c. govemment which examines the merits ofthe sovereign immunity. This anounts the State arising out of the sanme legal relationship
to executive intervention in the judicial donain. The pronouncement on the plen of claim.
immunity is judicial matter and should not be entrusted to the executive. In this 2. A stute intervening to present a claim
ina proceeding before a court of another
court in respect
sense, India is following the old Anierican practice before Sovereign Immunitics State cunnot invokc immunity from the jurisdiction of that
Act was passed in 1976. The American Act entrusts the judiciary with the task of State arising out of the same legal relationship
uny counterclaim against the
pronouncing on the plen of immunity. Time is ripe for entrusting this task to juucliciury or facts as the elaim presented by the
State.
in India also. Secondly, section 86 applies only to suits. This clouds the isNuC of instituted against it before a
3. A Statc making a counterclaim in a proceeding
applicability of the doctrine of immunity in cases other than suits. The following court of another Statc cannot invoke immunity
from the jurisdiction of that
issues arise: What happens in cases other than suits? Can the courts examine the court in respect of the principal clain.
plea ofsovereign immunity in cascs other than suits? Ifyes, it will lead to anonalous
results inasmuch as in suits, exccutive shall determine on the plea of immunity 11.4.3 Commercial Activities
whereas in cases other than suits, courts shall make such determination. Parngraph
in
2 of section 86 emumerates the situation for the guidance of Central government in The exception of commercial activities of a foreign State is also well recognized
making its detemination on thhe issue where as there is nothing to guide the juliciary national legislation, miunicipal decisions and opinions of jurists. International Law
in this regard. The discussion which follows makes it clear that international law Commission has unequivocally stated that ifa State enters intoa commercial contract
and national law recognize many exceptions to the doctrine of immunity. All with a foreign natural or juridical person and by virtue of the applicable nules of
these
reasons point towards tlhe need for an Indian legislative enactment on State
immunity. private international law, difTerences relating to the commercial contract fall within
Section 86 of the Code of Civil Procedure is insuflicient and cannot cope with the the jurisdiction in a proceeding arising out of theat commerciál contract, and
multifarious problems which surround the application of the immunity doctrine. accordingly cannot invoke immunity from jurisdiction in that proceeding.

11.4 EXCEPTIONSs 11.4.4 Contracts of Employment

11.4.1 Consent
The exception of "contracts of employment' has recently emerged as an exception
to State immunity. This exception follows logically from the exception of
It is well setled that a State cannot invoke immunity from jurisdiction in a proceeding 'commercial activities' discussed above. Aritcle 13 of the Draft Code prepared by
before a court of another State with regard to any matter ifit has exprensly consented International Law Commission contains this exception. Paragraph 1 of Article 13

61(c). Earlier, at the time of filing of this writ petition, the right to hold and dispose of 62. Article 8, Dran Code of International Law Commission, Report of the International
property was fundamental right. Subsequently this provision was removed rom thc Work of its (7 May-27 July
chapter on fundamental rights.
l.aw Commission on Thirty-Sixth Session 1984)
61(d). K. Narayana Rao, 'Foreign Embassies in India: Claims for Recovery of Rents and
O.A.O.R., 39th Session, Supplement No. 1O(/39/10).
63. 1bid., Article 9
Repair Charges', Indian Journal of International Law, 27, 1987, 483 at 486. 64. 1bid., Article 12.
 DIPLOMATIC AND CONSULAR RI!LATIONS .

As a natter of fact, overy rocognlzed independent State is ontitled to send diplontia

Statos, and reeiprocally to receive uch
agonts to reprosont its intorosta In othor
Agonte; and tho right of legatlon has beon generally rogarded
as an
altribute at
ovorelgnty.
It ia pertinont to romark here that the establishment of diplomatie relations and
12 tho oatabliuhwont of permanent misslons are logally distinet. It ia posible for the
two Statos to have diplomatie rolations without eatablishing permanent diplomatlo
Diplomatic and Consular Relations masiona. On 10 November 1973, United States closed thoir Embassy in Kampala
and withdrow all diplomatic and consular representatives from Uganda. But in
their noto to the govenmont of Uganda they said:

The yovernmont of the United Statos doos not intend to request the govemment of
Uganda to take reciproeal action with regard to its diplomatie and consular
roprosontatives in the United Statea and accordingly doos not intend by its action to
12.1 MEANING OF DIPLOMACY Initiate a woverunce of diplomatic olations botween the two
governments.
Diplomacy is the
application of
intelligence and tact to the conduet of oflicial There appears to bo no procedent for tho refusal
relations between the by ono State to another with
governments of independent States, which it regards itself as being in
also to their relations with
vassal States; or more oxtending sometimes diplomatic relations of permission to establish aa
between States by penceful means.' bricfly still, the conduct of business permanent mission. Dut it is likely that if such a refusal were to
occur, it w be
Diplomacy is means devised
preventing international rolations from being by civilization for takon as a ground for breaking off
diplomatic relations." However, Vienna
is somctimes confused with governed by force alone. Diplomacy Convention on Consular Rolations of 1963
contemplates a situation where a Sate
foreign policy which is
not by
diplomats. In order to cary out its policy, a formulated by Government, may be in consular relations with another but
Gatabliuhment of a soparate consular may withhold its consent to
and adjust its international govemment will need
relations by applying difforent forms to manage post of the other State in its territory.
However, in normal circumstances, it will of pressurc.
conduct its international intercourse
negotiation. This is diplomacy. Persuasive by 12.3 FUNCTIONS OF A DIPLOMATIC MISSION
sensitively at the right time, argument, if applied skilfully and
backed by the threat of force.certainly
leads to better results than
pressure technique Traditionally speaking, diplomatic mission has three functions,
war.
The latter may provoke resistance and finally lend to its intereata and those of its
nationals (protection); to namely: to protect
to which it is accredited negotiate with the govemment
all mattors of (negotiation); and to report to the sending govemment on
12.2 ESTABLISHMENT OF DIPLOMATIC RELATIONS Rolations
importance to it (observation)." Vienna Convention
goes boyond these three on
Diplomatic
Vienna Articlo 3 of the Convention functions
Convention on Diplomatic Relations provides that the establishment of providea:
diplomatic relations between States, and of permanent 1. The functions
of adiplomatic mission consist, inter alia, in:
diplomatic missions, takes
place by mutual consent. The principle that establishment
and of
of diplomatic relations (a) representing the sending State in
the
permanent diplomatic missions depends on the consent
of the Statcs (b) protecting in the receiving State the receiving State;
concemed, had been established in international law from the time of Grotius,' and its nationals, within the interests of the sending State and of
aroused no controversy at any state of limits permitted by international
preparation of the Vienna Convention on (c) ncgotiating with the
govermment of the recoiving States;
law;
Diplomatic Relations of 1961. The opinion was expressed in the International Law (d) asceraining by all lawful
Comnission that the rule was so obvlous as notl to need mcans conditions and
this was that the duty of codification included re-lating, but the reply to receiving State, and reporting thereon to the
developments in the
it was desirable
the re-stating of the obvious and that State; govermment of the sending8
to begin the articlcs with a basic general proposition of this kind.'
S. Ulleen Denoza,
. Lord Gore Booth
(ed.), Satow Gulde
to ldlplomaltle Practlce, 1979, p. 3. .aw, 68, 1974, p. 313.
Diplomatle law, 1976. p. 18. Also Amerlcan Journal
2. Vienna Convention on
Diplomatic Relations, 1961, Article 2. 6. lbid.
of Internatlonal
3. Grotius, De
4. Yearbook of
Jure Belll ac Pacls, 11, XVII, I1.2. 7. Viennu Convention on Consular Relations,
International
Law Commisslon, 1957-1, p. I1. 8. L.
Oppenheim. International Law, Vol. I, p.1963, Articles 2 and 4.
785.
 213
212 INTERNATIONAL LAW DIPLOMATIC AND CONSULAR RBLATIONS
2ofthe
Article Vienna Reglement which
(c)promoting friendly relations between the sending State und the receiving protocol. In contrant, it is pertinent to note character.
nuncios also have representative
State, and developing their economic, cultural and scientilic relations. provides that Ambassadors, legates and as representing the
first class alone were considered
This meant that agents of the
2. Nothing in the prcsent Convention shall be construed as preventing understand the ordinary meaning
person of their sovereign. It is necessary clearly
to
the
performance of consular functions by a diplomatic mission. of the terms used above which is explained as below:

India has always taken serious view of unlawful activitics in the host Stute, (i) Ambassador: A public officer clothed with high diplomatic powers,
international business of his
government to transact the
spying being one of
them. A major espionage case was noticed in 1985 which
involved, French and Polish diplomatic missions. It was reported thnt thesc
commissioned by a
A distinction was formerly made
government with a foreign govermment.
who were sent to conduct special
diplomatic missions misused their positions and passed on the information regnrding between Ambassadors Extraordinary,
and Ambassadors
Punjab, Sri Lanka and Pakistan to other governments, including super powers business or to remain for an indeterminate period,
missions but this distinction is no
who have their own interests in Indian afairs. It is also reported that there has been Ordinary who were sent on permanent
significant increase in the tendency ofdiplomats to involve in smuggling contraband longer observed.
goods to India. In Lok Sabha debates, it has been pointed out that France, Iran, (i) Nunclo: A messenger. Nuncios are called 'ordinary' or 'extraordinary
or on a special mission.
Korea, Nigeria, Zambia, Thailand, Somalia, Bhutan and Morocco's diplonmats werc according as they are scnt for general purpose
Ambassadors sent by the
involved in Smuggling activities,) (ii) Legates: Legates are
nuncios or Extraordinary
his jurisdiction in foreign
Head State to be his representative and exercise
of minister and his suite.
States. Legation is an cmbassy or a diplomatic
12.4 CLASSIFICATION OF DIPLOMATIC AGENTS ambassador sent by a country
(iv) Envoy: A diplomat of the rank of minister or
to execute a special mission or to
Traditionally, Anibassadors sent on a tenporary mission werecalled"Extruordinary to the govcrnment of a foreign country
serve as a permanent diplomatic representative.
contrasted with resident envoys. Later the title "Extraordinary' was given
as to all (v) Minister: In intemational law,
minister is a general name given to diplomatic
Ambassadors whether resident or temporary, and the title of Plcnipotetiary' was
meant that representatives sent by one
ambassadors and
State to another including
added to their designation. In its literal sense the term 'Plenipotentiary'
the envoy was fully empowered to transact business on behalf of the Hend of State envoys.
is minister of a second order.
(vi) Internunclo: Internuncio a
who had sent him on the mission. Furthermore, the designation 'Envoy Extraordinary representative of
and Minister Plenipotentiary' came to be applied to almost all diplomatic (vii) Charge d'afairs: Charge d'affairs is title of a diplomatic afTairs.
with the inferior rank. Thesc are accredited to the minister of foreign
representatives of the first rank, such as Ambassadors and Ministers,
shall be agreed
exception of ministers resident. The class to which the heads of their missions are to be assigned
classifications their respective class
An attempt was mado by the Vienna Conference to codify the between States.° Heads of mission are to take precedence in
and order offp cedence diplomatic envoys. It is known as 'Regulation
of Vienna' functions:! for this purpose, they
of in the order of the date and time of taking up their
or 'Vienna Reglement' and after certain modifications, incorporated
in the provisions
are considered as taking up their functions
either when they have presented their
of articles 14 to 18 of the Vienna Convention on Diplomatic
Relations of 1961.
credentials, or when they have notified their arrival and a true copy of their credentials
Vienna Convention Diplomatic Relations provides as follows: to the Minister for Poreign Affairs of the receiving State, or
Article 14 of the on has been presented
other ministry according to the practice of this State."
1. Heads of mission are divided into three classes, namely: Alterations in the credentials of a head of mission not involving any change
of
nuncios accredited to Heads of States, and other as to precedence are to be
(a) that ofAmbassadors or
class, are not to affect his precedence." These provisions
the precedence of
heads of mission of equivalent rank; without prejudice to any practice of the receiving State regarding
internuncios accredited to Fleads of State; in each State for
(b) that of envoys, ministers and the representative of the Holy See."The procedure to be observed
Ministers for Foreign AfMaira. in of each class."
(c) that of charges d'affairs accredited to the reception of heads of mission is to be uniform respect

2. Except as concems precedence and etiquette, there shall be no differentiation

between Heads of Mission by reason of their class. 9. Vienna Convention on Diplomatic Relations, Article 15.
10. Ibid., Article 16, para 1.
The wordEtiquette' includes ceremonial matters, and matters of conduct of 1. Ibid., Article 13, para
12. 1bid., Article 16, para 2.
Arun Chaturvedi, 'Diplomatle Laws and Vienna Conventlon on Diplomatic Relations, Article 16, para 3.
8(a). Tmes of India, 21 January 1985, Also see 13.
Indian Practice', Indian Journal Law, 25, 1985, p. 50 at 54-55.
of Internatlonal 14. Ibid., Aticle 18.
20 March 1985.
8(6). TImes of India,
214INTERNATIONALLAW DIPLOMATIC AND CONSULAR RELATIONS
12.5
AProINTMENT OF DIPLOMATIC ENVOYS ONS21
IMMUNITIES OF
The sending State may freely uppoint the nembers of the 12.7 RIGHTS, PRIVILEGES AND
than the lHead of the Slaffof the mission other DIPLOMATIC ENVOYS
mission." llowever, in the cane
the receiving State
may require thelr nanves
of military, naval or uir ottache,
The Vienna Convention of Diplomatic Relations, signed on 18 April 1961, came
pproval" While appointing head of the to be submitted before hand, for its
into force on 24 April 1964, aler 22 States had deposited instruments ofratification
Bure that the misaion, the sending State must make
agroomont of tho receiving State has been The Convention clearly justifies privileges and immunities by reference to functional
proposes lo accredited us head of given for the person it
the inisuion to that Stute." The
Can refuso such receiving State need, The prcamble, inter alla, setu out that the purpose of such privileges and
for a refual of appolntment and is not obliged to
give reusons to tho scnding State Immunities is not to beneft individuale but to enaurc theeficicnt performance of
agroement."
Tho appointmont the functions ofdiplomatic mission as representing States) The result of this approach
of an indivldual as
ambassador or
he is accrodited in certain minister usually announced
to the State lo which is is thata greater degree of protection than under customary law is given to the
envoy is furnislhed, known as letters of ollicial pupers, with which the misulon ituelf-to its premises and to itu communications in particular-whereas
credence or Letturs de
Slate. Apart from the letters of Creuncu; thowc uro
for remisuion to the to diplomatic agents and to the subordinate staff of the mission privileges and
recolving credence the envoy
may take with him documentu of Pull Powers imunitics ore sometimes restricted below what was accorded under customary
other speciflc written inwtructions. rolating to particulur negotiations or luw, This restrictive approach to individual privileges and immunities relates
the arrival and Furthermore, it would be of lnterost to note that purticularly to matters outside the diplomatic function, such as commercial activities
departure of
deal of ceremony und ritual.diplomatic envoys is generully acconmpanicd by a good or the private
ownership of real property within the receiving State.
Another point of relevance in this regard is that the
theory of exterritoriality
12.6 PBRSONA NOW GRATA whercby the legation premises represents an extension of the scnding State's territory,
has now been discardod. The
theory insists that
The basle principlo that tho
recoiving Stato need nol continue to sulfer as a rewult of and privilegcs because they are deemed to bo diplomatic agents enjoy immunities
the activities of a outside the jurisdiction of the State in
diplomat who hud become unacecptable to it existed froin which thoy are appointed. In an Australian
case R.V, Turnbull, ex
carlier period of diplomatic the two persons had been parte Petroff,"
pructico. However, the method by which this charged with throwing cxplosive substances at the chancery
should be exercined was soltlod only with the power of the Soviet Union's
Convention on Diplomatic Relations whleh
formulution of Article 9 of the Vienna Embasay in Canberra. It was argued that the magistrate
concerned had no Jurisdiction to deal with
provldes as follows: on foreign alleged offences as these were committed
1. The recoiving State
may at any timo and without huving to
territory. Pox J. of the
Supreme Court rejected the contention
notify tho sonding Stato that tho hond of the mission oxplain its decislon, the theory of
exterteritoriality and that an embassy was not a part of the based
of the sending Stato, and that theheld
on
territory
or member of the
diploatic stalfof the misslon iu porsona non grutu or thutany offoncos against tho local law.
accused could be prosecuted for such
alleged
of the staf af the mlsslon is not accoptable. In any such any othor member
case, the sonding
State ohall, approprlate, either recall the person concorned or terminate
as
his 12.7.1
functions with the misulon. A porson may be declared Promlses of the Misslon
not acceptable
porson, non grata or
boforo arrlving in the territory of the rocelving Slate. 12.7.1.1 Invlolablity of the Misulon
2. If the scnding State rofuses or fulls within a
reusonablo period to carry out its Convention on Diplomatic Rolations Premlses-Article 22 of the Vienna
obligationa under paragraph I of this Articlo, tlho receiving Stato may refuse provides as follows:
lo recognize tho person concerned as a menmber . "The premises of the
of the mission. mission shall be inviolable. The
State may not enter them, agents of the
with the consent of the head of receiving
The foregolng discloses that it is always safo for the
sending State to procure 2. The receiving State is except the mission.
assent or agreement of tho under a special duty to take all
receiving State before appointing a person as an envoy. protect the premises of misslon against any appropriate steps to
However, difficulties may stlll arlse if the activities of such person become any disturbanco of the peace intrusion or damage and to prevent
of the mission or
objectionable to the receiving State afler his appointment ag on envoy. 3. The premiscs of the mission, their furnishing andiímpairment
other
of its dignity.
the moans of property thereon and
tranaport of the misusion shall be immune from
altachment or execution. search, requisition,
15. lbid., Article 7.
16. Ibid. The special status of the diplomatic premiscs in moderm
17. 1bid., Article 4, para, 1. international law has
18. Ibid., Article 4, paru. 2.
19. R.V.Turnbull, ex parte Petrof, 17 P.LR, p. 438 (1971): in J.G.
to Internatlonal Law, 1984, p, 402. Starke, An Introduction
 RELATIONS 217
DIPLOMATIC AND CO~SULAR
216 INTERNATiONAL LAw of the clear breach by Inq
of the duty in peragraph
be justified ex portfacio because m a n n e r incompatible
of the mission in any
two aspects: firstly, that no oficial of the receiving State may perform in the premisea, 41 not to use the premises be justified only in an
3 of Article But such an entry could
or in relation to them any act of sovereignty, and secondly,
that a particularly high with the functions of the mission. not n o m a lly
State. Paragraplha extreme case of abuso. A mere suspicion
ofa breach Article would
of 41

duty of protection is owed in respect of them by the receiving

than a suspicion
breach of the inviolability of diplomatic premises any more
the second aspcct.
and 3 of this Article formulate the first and paragraph 2 of justify a
its being opened.
The two trends which characterize the late nineteenth and twentieth cenlury low of abuse of the diplomatic bag justifies

are the decline of exterritorlality and the incroasing

importance of Taratlon-Article 23 of thbe
on this subject Exemptlon of Mission Premlses from
Where modern writers use tlhe
term 12.7.1.2 the sending State and the
the duty to protect embassy premises. DiplomaticRelations exempts
the fact that the receiving State Vienna Convention on of the mission, with the
exterritoriality as a convenient way of expressing the head of thee mission from all
taxes in respect of the premises
emphasize that services rendered. It is for
has no powers of law enforcement within the premises, they payment for specific
and does not imply that crimes
or
legal cxception oftaxes which represent in térms of its own
term is a fiction of limited application
occurrecd in the party to give a precise
interpretation of this exceptionin addition to being
transactions occurring within the embassy
must be deemed to have each State but the general effect is that the embassy,
local taxation system,
the duty to protect all foreign property became supplied, where charges
are

territory of the sending State.20 As commodities or utilities actually

in international law, the duty to protect embassy
premises obliged to pay for element of tax, which
relates to a
more fimly established to pay any tax, or
levied for these, is expected
higher level. benefits. For example, the embassy
increased correspondingly to a from which the embassy
Diplomatlc and Consular StaJ in
Tehran," strong supply or a service related to road maintenance
or street
In the case of United States United rates or taxes which
of the Embassy of the would be expected to pay which related to national
Iranians overran the compound be obliged to pay rates or taxes
group of militant entered the Chancery and gained
control of lighting. It would not
to apply, the tax
must
administratíon. For the exemption
States at Tehran, seized building there, staff and other persons defence, or education, or landlord lets his
detained diplomatic and consular ambassador. Ifa private
the main Vault, and also fall the sending State or on the
and ransacked or in law on
from rates or taxes
documents and archives were destroyed he cannot claim exemption
as hostages. Embassy
the principle ofthe inviolability property to diplomatic mission,
International Court of Justice upheld on him.
tàken àway. of the receiving which under the local law fall
mission and the correlative duty
of the premises of a diplomatic archives of the mission,
as

State to protect the Premises, and the documents and

mission. The 12.7.1.3 Învtolabllty of Mission
Archlves--Article 24 of the Vienna Convention
to protect the personnel ofthe documents of the mission
State's obligation that the archives and
well as the receiving had failed to take on Diplomatic Relations provides not only that
satisfaction that the Iranian government wherever they may be. This means
Court expressed its shall be inviolable at any time and
25 imposing a duty on a receiving detained forexamination the authorities of the
by
steps within the meaning of Articles Article 26 the archives may not be seized or
appropriate its functions, them as evidence
facilities for a mission to perform one may be compelled to produce
State to accord full mission personnel, and
Articlo receiving State but also that no defined in the
of movement and travel of
the in that State. The term 'archives' is not
providing for freedom and protect free
communication on the part of in any legal proceedings
Relations but it is normally
understood to cover
27 imposing a duty to permit of the Vienna Vienna Convention on Diplomatic and to include
The corresponding provisions of information or records in words or pictures
mission for all official purposes. also relied upon insofar as these any form of storage
Relations of 1963 were
sound recordings and films, or computer
Convention on Consular at "Tabriz modern forms of storage such as tapes,
staffheld as hostages, and
the American Consulates Consular Relations provides that 'consular
archives'
concerned the consular data. The Vienna Convention on
includes all the papers, documents, correspondence,
books, films, tapes and registers
and Shiraz.
ambassador was called to
Pakistan Ministry Foreign Aairs
of and codes, the card-indexes and any
. In 1973, the Iraqi
into Pakistan under diplomatic immunity of the consular post, together with the ciphers
brought or safe-keeping.
and told that army
were being
stored at the embassy of Iraq.
The article of furniture intended for their protection
evidence that they were being
and that there was of the ambasnador,
for a search. In the presence freedom of all members ofa diplomatic
ambassador refused permission of 12.7.1.4 Freedom of Movement-The
armed policemen then
took place and huge consignments of the receiving State was
raid on the embassy by then sent a strong mission to travel without restriction within the territory
be stored in crates. The Pakistan govermment the eighteenth and nineteenth centuries. Articles
arms were found to
ambassador and an attache persona accepted without question during
declared the Iraqi to ensure freedom of movement
protest to the Iraq
government,
ambassador." In this case, the
forcible entry could 25 of the Convention obliges the receiving State
ofa diplomatiç mission. This obligation is
non and recalled their own
grata and travel in its territory for all members
into
laws and recgulations of the receiving State concerning zones entry
1926-11, p. 145, Hackworth,
subject to
national security. But it is clear that
Diplomatiques, Recuell des Cours,
Subcommittee on Diplomatic
which is prohibited or regulated for reasons of
20. Hurst, Les Immunities 564-66. Report of this provision was that while the
IV Digest of International
Law pp. 79. the intention of the majority of those who drew up
Doc. C. 196. M, 70, 1927 V, p. significance, it
Privileges and Immunities,
League of Nations
ICJ Rep., 1980, p. 3. proviso would authorise the closing of limited areas of military
States Diplomatic and Consular StaT in Tehran,
21. United
1973.
22. The 0bserver, 11 February
 DIPLOMATIC AND CONSUULAR RELAIINS
218 NTERNATIONAL LAW
transmitters and of the diplomatie
abuse of wireless
would authorise laws and
not ew points und fcar of
controversial at the Vienna Conference4
bag
the right of free regulations so sweeping in their elfect as to undermine Article 27 was one of the most
movement. Regulations of the kind recognized the right to secure diplomatis
the effectiveness with which a
described above severely limit International practice had long
diplomat can out his
carry functions of fell soiewhat short of ideal. On the rare
countrymen and observing and reporting on conditions and protection practice
his fellow of communications, although the
in the devclopments detected and complained of, the State challenoed
receiving
State. However, occasions where interception was
continued to impose very serious inspite of this the communist countries have would clainm that it had not been
authorised. If the interception revealed evidence
have not restrictions on and movement, western
countries State, that State could claim to be acting
challenged their legality but have retaliated ona basis of somo conspiracy against the receiving
The position as between the United Kingdom of exact reciprocity of its vital interests."
follows in the British Parliament on and the Soviet Union was set out as Cxceptionally in defence
and the development of facilities for
of State, in an answer a
24 February 1976 Mr David
by Ennals, Minister Improvements in the methods of cipher,
secure communicalion possible. But
to
Parliamentary Question by Sir Frederick Bennett about transmitting wireless message made really
travel restrictions for British the richer States could
diplomats the Soviet Union and Soviet diplomats in
in Statos difTered in their approach to diplomatic wireless. Only
the United Kirigdom. Mr Ennals of the premises
said: afford to install it, and they took the view that the inviolability
where it was installed, together with their right to free diplomatic communication,
British diplomats in the Sovlet
give Soviet authoritles al least
Union, together with their families, are
required to implicd that they were under no obligation to seek the consent of the receiving
beyond a 40
two working
duys notice of thelr intention to travel State before setting up. If the frequency selected caused difficulty they would
Kilomeler rudius of the Centre ofMoscow. A
in the Moscow oblast few towns und
(provinco) orc, however, open to notilcution free highwuys cooperate in changing it. Some developing States could not afTord to install wireless
British travel by in their mlssions, and they were afraid that the transmitters over which they had no
diplomats.
One working doy's notice is required for
certain prescribed motor tourist routes. The British ambassador,journcys by roud ulong
his family and personul
control could be used for propaganda against them. Eventually they succeeded in
driver interprcter may travel without prior notilcation to the open including in the Vienna Convention the provision that the mission may install and
of the Soviet Union. lowns and arcas
Large areas within the 40 Kilometers zone centred on Moscow; use a wircless transmilter only with the consent of the receiving State. If a transmitter
within the Moscow province; and in the Soviet is installed, it is the responsibility of the sending State to observe international
Union us a whole ure formally out of
bounds to forcigners. tclecommunications regulations.
The diplomatic bag is accorded under the Vienna Convcntion a more absolute
Soviet diplomats in the United
to the
Kingdom, together with their families, are subject prolection than
was given under the previous customary law. Previously it was on
requirements of the travel notincation scheme. Soviet diplomats must give
the whole accepted that the receiving State had a right to challenge a bag which it
the Poreign and Commonwealth office at lcast two believed to contain unauthorized articles. If this occurred, the sending State could
working days notice of their
intention to travel beyond a 35 miles radius of the centre of London. Notification is elect either to return the bag unopened or to open it in the
not required for presence of the authorities
journeys to Hastings, Bexhill, St Leonards, Rye, Winchelsea and of the receiving State. This practice of
challenge to a suspect bag is still permitted
Hawkhurst. The Soviet ambassador, together with his family, in the case of a consular bag under the Vienna Convention on Consular
and personal driver, is allowed to travel
personal interpreter of 1963." But it is no longer
Relations
within the United Kingdom permitted in the case of a diplomatic bag. The bag
notification to the Foreign and Commonwealth oftice. There are no without
prior
closed areas, may contain only diplomatic documents or articles intended for official use, but the
as such, in the
United Kingdom which foreigners may not travel.
to authorities of the receiving State may not demand that it be returmed or
even if they suspect that it is
opened
being used to smuggle arms or other illegal exports or
12.7.1.5 Freedom of Communicatilon-The right of the diplomatic mission to imports. States were fully conscious of the danger of abuse, but they were even
free and secure communication for official purposes is guaranteed by Article 27 of more aware that any right of search could be abused
by oficials claiming to have
the Vienna Convention on Diplonatlc Relations. Specially protecied communication grounds to suspect any bag which thoy wished to investigate. The receiving State
or the airline authorities
is perhaps in practical terms the most importunt of all diplomatic privileges and may subjecta bag to detector devices designed to show the
immunities, without the right to send message in code and without being uble to presence of explosives, metal or drugs, since this does not involve opening or
rely on the inviolability of the diplomatic bag, an embassy cannot usefully perform detaining it, and if this test disclosed grounds for suspicion, the airlines could decline
to cary it. In one incident, the customs authorities in Rome realized
its function of observing and reporting, and it will be seriously hampered in the that a large
conduct ofnegotiations on any matter of importance ifit cannot receive confidential
diplomatic bag destined for Cairo was emitting moans. They seized and opened it
instructions. But because of the uncertainty of the previous international law on a
24. Lord Gore Booth (ed.), lbid., p. 116.
25. Ibid.
26. 1bid., p. 117.
27. Vienna Convention on Conaular Relations, 1963, Anlale 35.
23. Lord Oore Booth(ed),Saiow Gulide io Diplomatlc Practice, 1979, pp. 118-19.
 RELATIONS 221
DIPLOMATIC AND CONSULAR
220 INTERNATIONAL LAW Article 29 has two aspects.
There
mission premises,
Like the inviolability of the enforcement oficers of
the receiving
ftom any action by law a
and found that it contained a drugged Israeli who had been kidnapped. Some is first the immunity be invited to acconmpany
who is suspected of an ofMence may he cannot
members of the Egyptian Embassy were declared persona non grata as a result of State. A diplomat be verifled, but
station so that hle identity may
this discovery." police ofticer to a police The
in any way to do so. aecond
or otherwise compelled
Just as the diplomatic bag must be clearly identifled as such, usually by an offlcial be taken there under arrest What are the 'appropriate
steps' which the
the special duty of protection. must be
seal, so the diplomatic courier must cary identilying documents, usually courier
a aspect is diplomats and other
inviolable persons
between the
his bag. This is must take to protect
passport and a documnent identifying the packages which constitute receiving Statethe relevant circumstances by agreement

because the courier's bag is not exempt from search in the ordinary determined in light of many
important own
States. State is
way. The only privieges or immunities given to'
the courier are those which are sending and the receiving which the receiving
that the 'appropriate steps' to
essential to ensure the unimpeded transit of the bag. namely personal inviolability
It is now established inviolability do not include surrendering
personal When
and immunity from arest and detention. Otherwise he enjoys none of the personal boupd to take to protect when a diplomatic
kidnapping has taken place.
demands made by kidnappers was kidnapped
in 1970,
In the
immunity from suit or the tax and customs privileges ofa diplomatic agent. to Guatemala,
Count Von Spreti,
made by his
limited inviolability derives the German ambassador the illegal demanda
case of an ad hoc courier, it is even clearer that this of Guatemala reflused to accept aceused the
ceases as soon as he the govemment The German governiment Guatemalan
from his function as carrier of the bag, since his inviolability Count was murdered.0
on Diplomatic Relations kidnappers, and the the ambassador, but
the
delivered the diplomatic bag. The Vienna Convention their duty to protect
bag by hand of the Guatemalans of failing in fallen short of their legal
also authorizes the modern practice of sending diplomatic had in any way
a
not accept that they inviolability
govemment did not regarded a diplomat's
who carries a diplomatic bag in this way that govermments have
pilot ofa commercial aircraft. The captain member of the mission is entitled to
access obligations. The fact demands made by kidnappers
has led to the
is not regarded as courier ad hoc, but a them to surrender to illegal the Prevention and
of the bag directly from him." as obliging the Convention on
to tbe aircrat and the captain in order to take cherge and the conclusion of to discouragse
tightening of m e a s u r e s Protected Persons, 1973,
Intermationally
Punishment of Crimes against as particularly
attractive targets.
12.72 Diplomatic Eavoys terrorists from regarding diplomats
personally, as distinct from those of the Vienna
The iamunities accorded to a diplomatic agent Propero-Article 30
from Resldence and
inchude personal inviolability and immunity 12.7.2.2 Invlolablit of inviolability of residence and
whichbelong to the mission, distinction between an immunity Convention on Diplomatic
Relations deals with
that the
civil and administrative jurisdiction. The first limb of the Article provides
criminal the terms are often used Article has two limbs. The and
to define precisely, and property. The to the same inviolability
and a privilege is not easy some substantive exemption agent is entitlod
but in general a privilege denotes private residence of diplomatic the Article gives inviolability to the papers,
interchangeably, or social security,
wherecas limb of the
such as those relating to taxation protection. The second In the case of his property,
from laws and regulations confers a of a diplomatic agent.
from substantive law but corespondence and property to his immunity
from civil
does not imply a y exemption there is exception,
in the receiving State. The
an immunity where an
from the enforcement process inviolability does not apply without infringing the inviolability
procedural protectioa and regulations ofthe receiving8 that execution can he levied Article as
bound to respect the laws jurisdiction, provided authoritics interpret this
diplomatic agent is legally and immunities). He is not residence. The United Kingdom under
do not infringe his privileges ofhis person or belonging to a diplomat
State (provided that these criminal law, or the duty to pay
his an obstructing
vehicle
to obey the local permitting them to tow away
exempt from the obligation rebuilding his residence, or from oflicial embassy car.3 from
permission before the same conditions as an mean that he is exempt
debts, or to seek local planning maintenance and insurance of his vehicle when he The inviolability of a diplomat's
property does not control. He
the exchange
local regulations regarding sued or made to testily of the receiving State regarding
of these law, be cannot be tried, the laws and regulations these like other
drives. But ifbe breaks any accordance with Article 41
of the Convention, respect
authorities of the State. must, in that it was failing in its duty
before the judicial not do so, it could be argued
of diplomats is one of
laws If any State did Convention to accord full
facilities for the performance
of
inviolability under Article 25 of the
12.7.2.1 Personal Inriolability-Personal under Article 29 mission."
recognized immunities. It is guaanteed the functions of the
the oldest and universally It provides:
Convention on Diplomatic Relations.
of the Vienna
shall not be liable to any
shall be inviolable. He 1970.
The person of a diplomatic agent States shall treat him with
due respect and 30. The Tmes, 1 April
receiving note 23, p. 123.
31. Lord Gore Dooth (cd.), Supra
detention. The
form of a r e s or or dignity.
to prevent any attack on his person, freedom
shall take all appropriate steps 32. Ibid.
33. lbid.
27 November 1964.
The Tumes, 18-20, 23-25,
22
29. Supra note 23, p. 118.
 222 INTERNATIONAL LAaw

12.7.2.3
DiplomaticImmunity from Jurisdiction-Article 31
Relations provides of the Vienna Convention on
DIPLOMATIC AND CONSULAR
RELATIONs
1.A
as follows:
diplomatic agent shall enjoy imunily is to make possible the trial of action affecting title to real
the
receiving State. He immunity from the criminal which could not possibly be tried in the diplomat's home State.
Thus, anproper
jurisdiction, except in shall also enjoy
the case of immunity from civil andjurisdiction of
administrative may be brought in the Court of the receiving State to determine the
legal
action
questi
(a) areal action of the ownership ofa house in which a diplomat is living. Any
relating to judgement obuained
of the private immovable would of course be unenforceable so long as the diplomat continued to
for the
receiving
State, unless he holds it
property situated in the territory house.
live in the
purposes of the mission; behalf of the
on
(b) an action sending State On the second exception, it may be added that it is common for
relating succession in which the
to diplomats.
as
executor, particularly wlhen excrcising consular functions, to be involved in succession matters
behalf of the administrator, heir or legatee as
diplomatic agent is involved in an official capacity, since ifa national of his own State dics in the
(c) sending State; a
private person and not on leaving money to other nationals in his home Statc, the diplomatreceiving State
an action
relating to any may become
by the diplomatic professional or
comnercial
agent in the receiving State activity exercised
involved in the distribution of the estate, or the
claiming on behalfofhis govemment
outside his official for taxes owed, or for the estate itself as bonu
2. A vucantia if therc are no heirs either
3.
diplomatic agent is not obliged to give functions. by will or intestacy. In such cases, the diplomat enjoys
No measures of
execution may be taken in evidence as a witness. immunity in the ordinary
way. His involvement in a private capacity in a succession on the
exceptin the cases
coming under respect of to diplomatic
agent receiving State in asscrting jurisdiction over all the purties involved in aother of the
1 of this
Article, and provided
sub-paragraphs
(a), (6) and (c) of
that the nieasurcs paragraph question isregarded as paramount. succession
without infringing
the concerned can be taken The third
4. The inviolability
immunity ofa agent from the
of his person or of his
residence. of diplomats.
exception to immunity conccrns professional or commercial activities
jurisdiction Although Article 42 of the Convention
Cxcrcising in the receiving State for personal prolit any prohibits a diplomat
exempt him from the of the
jurisdiction the sending State.
of receiving State does not from
Ifa diplomatic activity, un exception to immunity is still professional or comnercial
agent commits crime in the country to
a necessury. It is so becausc a
diplonut may
he cannot be tried or
punished bythe local courts. No
which he is accredited, disregard the prohibition on
the receiving States profcssional or comnierciul activities or the
without his consent case can be cited may agrec that the bar should be waived. scnding or
The immunity of a
that of his
or
govermment, such a course has bcen
where, however, more important in regard to members The exception is,
followed.
State is set out, diplomatic agent from the criminal jurisdiction of the the same of the diplomat's samily who enjoy
without any exceptions whatever, in Article 31 of thereceiving immunity from civil jurisdictlon but are not
Convention. The receiving State professional or commercial activities. obliged to abstain from
The fact that immunity from
Vicnna does not exlend to
evidence ofa criminal offence may, however, take certain actions if it learns of professional or commercial
activities
civiljurisdiction
makes it easier for the
by a
diplomat. A minor offence wife or daughter of a
attention of the head of mission in the may be drawn to the diplomat to practice her own
profession or to take a job in the
action will be taken by the head of cxpectation that a
reprimand or disciplinary receiving State. The receiving Sate cannot
mission, In the case of serious offence, would be unfairly object to this on the ground that she
receiving State is likely to ask for immunity the protected if, for example, she could not be sucd as a
stand trial, and if this
to be waived so that the
diplomat may professional negligence. However, some States do
doctor for
request is refused, it is likely that the
offending diplomat will diplomatic families from taking discourage members of
be withdrawn. If he is not
withdrawn, the receiving State may declare employment of their own nationalsemployment-sometimes
and
in order to reserve scarce
non grata and the
sending State will then be obliged to withdraw him.himpersona
But States
Paragraph 2 provides that a diplomatiçsometimes for social reasons.
agent is not obliged to give evidence as
do not have set rules as to when a witness in
any legal proceedings in the
they will ask for a waiver of immunity or declare an
offender persona non grata, or when they will withdraw a nerely immune from compulsion in regardreceiving State. Thus, a diplomat is not
serious sccusations have been made. All he circumstancesdiplomat against whom
to the giving of
from any legal
obligation in the matter. A evidence, he is exempt
both governments in each case.
will be considered by receiving State would not be justified
using his refusal as an excuse to declare him in
persona non grata.
Paragraph 3 of Article 31 insists that a diplomatic
Immunity from civil jurisdiction was established somcwhat later than immunity measures of agent is immune from any
from criminal jurisdiction, and come under some execution. Even if his
challenye during the seventeenth government waives his immunity from
Jurisdiction, the resulting judgement cannot
century in several European States. The immunity from civil and administratíve waiver. Dul in case of three
be enforced unless there is
exceptions separate
a
jurisdiction ofa diplomatic agent restated in Article 31 ofthe Vienna Convention
is to jurisdictions
(contained in
and is subject to three exceptions mentioned therein.
there is also an exception to
immunity from execution. So ifan action paragraph 1),
were brought
againsta diplomat in respect ofa private business activity
In the first exception, the term"real action' means an action wlere
ownership or gainst him, the judgement could be enforced so and judgement obtained
possession of immovable property is claimed. The ralionale of this exception to long as the enforcement did not
34. Lord Gore Booth (ed.),
Supra note 23, p. 126.
 RELATIONS 225
DIPLOMATIC AND CONSULAR

224 INTERNATIONAL LAW the

evasion of his legal liabilities,
as regards his conduct or his apparent refutes, he may in an
withdraw him and if it
infringe his personal inviolability or that of his residence. His business stocks might sending State may be asked to
non grata.
be seized, but his house could not be entered. appropriate caso be declared persona
Paragraph 4 merely restates a rule which has never at any time been challenged. Convention on
32 of the Vienna
The immunity of a diplomatic agent from the jurisdictlon of the receiving State 12.7.2.4 Walver of Immunlty-Article clear that immunity
Relations concems waiver of immunity. It makes it
does not exempt him from jurisdiction of the sending State. Aperson who has
has, if is
a Diplomatic
in substance belongs to the sending
State and must therefore be
waived by that
civil dispute with a diplomat or other entitled to diplomatic
will be raised as bar to proceedings before
immunity
the courls of the
it State. The fact that the immunity belongs
to the sending State does not, however,
clear that immunity a
to waive it. Article 32
does not prevent
receiving State, three possible channels through which he may endeavour to obtain preclude that State from delegating authority waive the immunity of members of
its ambassador authority to
satisfaction:3 a State from giving to the interests of the sending
his mission in case where there is no significant danger
home
1. He may try to institute proceedings before the courts of the diplomat's State and where justice might
otherwise not be done.

State. However, there are certain obstacles in this respect. 1f the plaintifT
commences legal proceedings in a court of the sending State,
it may not bo
to on the diplomat while he is abroad,
and the diplomat () Undertaking to Walve Immunlty
possible serve process effectiveness of an agreement
to another. Even if the procoedinga to what will be the
may leave his post only to proceed directly An interesting question may arise as matter?
in regard to a particular
may be validly instituted, it will
be difMcult to pursuade witmesses to travel to by a diplomatic agent to submit to the jurisdiction tenant a
such as disputes that landlord who is unwilling to accept as
another State to give evidence, and there will be many matters, For example, it may happen a
the diplomat
where the sending State has no would be prepared to do so if
over real property in the receiving State, person entitled to diplomatic imnunity arising from the
the terms of lease that in the event of any dispute
would agree in an agreement would
jurisdiction. sending State hoping to would be waived, and if such
2. He may lay the matter before the ambassador of the proposed tenancy his immunity to
settlement. Where there are no complex the If the diplomat is authorized by his own govemment
have his assistance in obtaining a be enforced by courts.
lease or contract,
set out in the terms ofa
factual matters in disputo, this procedure will often secure quick enter into such an undertaking,
and ifit is
the
legal or
waiver by the govermment of
has been dialatory in setling a debt
or
redress. A member of the mission who it may be argued that there has been an express
will be reluctant to have the matter reported to his sending State.
a claim for damages
behaviour by his
adverse comments on his
government with possible
ambassador. Walver and Counterclalms
his own government, usually
before the ministry (I)
3. He may lay the matter before head of mission must always be express. However,
of Foreign Affairs, and ask them to intervene with the Articles 32 of the Convention provides that waiver
what action may be taken in
such a himself chooses to bring an
concerned. There are no legal rules as to Article 32 makes it clear that if the diplomatic agent
similar
dictate that the complainant must the local courts, he obliges himself, likea sovereign in
case. However, the principles
of logic
casc: he must have
action before Court. Furthermore he cannot plead
evidence on a prima facie legal circumstances, comply
to with the nules of the
produce satisfactory drawm the which may be pleaded, provided
obtaining settlement, i.e. he must have immunity in regard to any set-off or counterclaim
exhausted other methods of of mission concerned and of the which he has brought. If he
matter clearly to the
attention of the member that it is directly connected with the principal claim
there must be indication that the person
concerned
and the defendant appeals, he cannot plead immunity in regard to the
head of that mission; and succeeds,
the mere representation as a single entity until
Sometimes,
is sheltering behind diplomatic immunity. suficient to obtain payment of a appeal. The proceedings which he has begun are regarded
Affairs will be the matter is finally resolved as to liability.
of the ministry of Foreign dierences
of other claims. In case of acute
debt or a satisfactory settlement use its good ofices
of Foreign Affairs may
between the parties, the ministry Walver and Executlion
but it will normally be (Ui)
to assist towards a settlement,
to a limited extent it
itself in the position of arbitrator, which could damage in
Article 32 further makes it clear that waiver of immunity fromjurisdiction respect
reluctant to put for a walver to of
relations with the other government
concermed. It may press ofcivil or administrative proceedings shall not be held to imply waiver immunity
that the question be roferred to waiver shall be
It
enable the issue to be tried. may suggest in respect of the execution of the judgement, for which a separate
the arrangements to set up
such an arbitration. that Article 32 does not mention the position in
arbitration, and even assist in mission necessary. It is worth noticing of a
in regard to a particular member of proceedings.
to criminal It is, however, well settled that for execution
If there are persistent complaints regard
judgement in criminal proccedings, a separate waiver is required.
35. Tbid., pp. 131-32.
 DIPLOMATIC AND
CONSULAR RELATIONS
226 INTERNATIONAL LAw
227
behalfof the sending State for the poses
12.7.2.5 unless he holds it on
Exemptlon from Social in the recciving State or a block of flats which he th.
Convention on Diplomatic Relations Security Provlsions-Article 33 of the Vienna acquires a holiday cottage,
tax imposed on these premises, Eutic
of the mission. If he
provides that diplomatic agents are, with
respect to their work for the sending State, rates and property
exempt from any social security provisions lots to tenants, must pay be required to do by the
in the in his own name, as he may
receiving State. The Convention, however, permits he holds the embassy premises is not obliged to pay rates and taxes on
the social security scheme of the receiving State if this voluntary participation in
is permissible under legul requiremen's of the receiving
State, he
whether residence ofa diplomat
local law. the them. An interesting questiton
would arise here as to
would be in affirmative as the
answer to this question
is cxempt from tax? The
12.7.2.6 Exemptionfrom State is essential to perform diplomatic
Taxation-The ofa residence in the receiving
taxation in the receiving State has been principle of diplomat's exemption from occupation
and premiscs which are
leased are extraneous
subjected to exceptions in customary function. However, holiday homes
intemational law. Article 34 of the Vienna Convention and therefore properly taxable.
states the general principle to diplomatic activities to the question of tax
thata diplomatic agent shall be same functional approach
exempl from all dues and taxes, personal or real, Puragraph (c) also contains the liable, in respect of
national, regional or municipal, and sets out a his estate be
Cxomption. The diplomat should not pay tax,
list of exceptions to the or
Article 34 provides as follows: general rule. in the receiving State. But ifhe acquires
matters which are necessary part ofhis living
a substantial fortune or holds property in
the receiving State which has no relation
A diplomatic agent shall be
exempt from all dues und taxes, personal, real, national, to his functions, estate or succession duty ia payable on it.
regional or municipal, cxcept: its source
Paragraph (d) deals with the dues and taxes on private madehaving
income
in commercial
(a) indirect taxes ofa kind which are normally incorporuted in the price of
goods or in the receiving State and capital taxes on investments
or makes
services; undertukings in the receiving State. If the diplomat lets property privately
(b) dues and taxes onprivate immovuble property situated in the territory of the proflts from investing on the stock oxchange in the receiving State, he
is liable to
recoiving State, unless he holds it on behalfof the sending State for the purposes pay tàx on these profits.
of the mission; Paragraplh (e) makes a diplomat liable to pay the tax which is in reality a charge
(c) cstuto, succession or inheritance dutics levied by the receiving State, subject to lor a service. A diplomat is required to pay road or bridge tolls where the proceeds
the provisions of paragraph 4 of Article 39;
are used for the upkeep of the particular road or bridge:
(d) ducs and taxes on private income having its source in the recciving Stute und
The dues described in paragraph () are, in general, not i osed in order to
cupital axes on investments made in commercial undertakings in the receiving
raise revenue but to cover the administrative cost of providing the service of
Statc;
(c) churgcs levied for speciic servicecu rendered; rogistration of immovable property. Embassy premises, are, however, exempt from
(0 reyistration, court or rocord fccs, morlgago dues und stampduty, with respectto thesc dues.
immovable property, subject to provisions of Article 23.4
12.7.2.7 Exemptlon from Customs Dutles and BagKage Search-Article 36 of
Paragraph (a) deals with category of taxes where it would be administratively the Vienna Convention on Diplomatic Relations obliges the receiving State to grant
impractical to make arrangements for exemption or refund. Taxes in this category cxemption from customs duties and taxes on articles for the official use of the
include purchase tax, value added tax, sales tax, airport tax (where this forms part
mission and articles for the
on personal use of a diplomat or a member of his
of the ticket price).
Some countries do in fact make arrangements under which
a family, including articles intended establishment
for his (such as furniture or a motor
diplomat may çscape paying sales tax or its local equivalent. IHe may be issued car). But it is made clear that the exemption is to be granted in accordance with
with a special card to show in shops in order to claim exemption from the tax such laws and regulations as tho reciving State may adopt. Missions must, therefore,
element in the price of what he buys, or refunds may be made by the authorities on consult the laws of the receiving Slate or the infomation supplied by the ministry
presentation of receipts for purchases. ofForeign Afairs in order ascertain
to what procedure should be followed to clear
Paragraph (b) states that a diplomat must puy tax on private immovable property baggoge or official consignments of goods through customs, whether any limits are
imposed on the quantities of goods such as alcohol and tobacco which may be
a member of
36. Article 39, paragraph 4 reads as under: 'In the event of the death of imported duty free while the diplomat is en poste, and what rules will apply if a
o member olf
mission nol a national of or permunently resident in the receiving State or diplonut wishes to dispos¢ off goods he has brought in duty free. Regulations on
the withdruwul
his family forming purt ofhis household, the receiving State shall permit such matters-either to prescribe procedures or to prevent abuse-are imposed by
of the movable property of the deceused, with the exception any property acquired
of
most countrics and are clearly permitted under Article 36. But regulations imposed
at the time of death. Estute,
in the country the export of which was prohibited in bad faith or so restrictive as essentially to obstruct the exercise of the right to
duties shall not be levied on movuble property the presence
succession and inheritance duty free inports, may be challenged by sending State. In one country, for example,
to the presence there of the deceased s
of which in the receiving State was due solely were severely limited in their imports of duty-free official cars in the
member of the mission or a member of the family
of a menmber of the mission.' diplomats
 RELATIONS 229
228 INTERNATIONAL LAW DIPLOMATIC AND CONSULAR

function
2. The sending State may notify the receiving State that the envoy's
hope that this would lead to more purchases of locally produced cars. But tho
has come to an end."
restriction was challenged by the
Corps diplomatique who argued that its purpone the envoy be recalled.
3. The receiving State may request that his staT and suite
was essentially protectionist and that because it partly undemined the right to import deliver passports to the envoy,
articles duty free, it could not be justifed under the provisions of Article 36. 4. The receiving State may and receiving
between the accrediting
for examplc, when war breaks out
If, however, the ambassador of the sending State certifies that a particular
State. the envoy has been
consignment is of 'articles for oficial use', the receiving State will ordinarily accept the sending State that
5. The receiving State may notily recall him and
the duty-free import. Article 36 imposes an obligation to pemit entry, as well as to declared persona non grata and
if sending State does not
him as a
exempt from duty, and so the sending State, provided that the articles are genuinely State may refuse to recognize
terminates his functions, the receiving
required for official use, would be justified in importing items such as medical member of the mission."
drugs or alcohol, even where in the absence of privilege such items couli not be is fulfilled.
6. If the object of the mission
imported under the law of the receiving State. But diplomats are not justifledin for a limited period only have expired.
7. If the letters of credence given
importing for personal use articles whose import is forbidden under local law, unloss
they have specific authority from the receiving State. 12.9 INDIAN POSITION
Article 36 of the Vienna Convention also provides that the personal baggage of Relations on 15 October
are serious grounds Convention on Diplomatic
a diplomatic agent shall be exempt from inspection, unless there
for presuming that it contains articles not covered by the exemptions mentioned in
India acceded to the Vienna
Convention on Diplomatic
Rclations, India passed
Vienna Section 4
1965. To give effect to 29 August 1972.
of which is prohiblted Relations (Vienna Convention) Act on
paragraph l of this Article, or articlos the import or export the Diplomatic
the principle of reciprocity by
enabling the government

the law controlled by the quarantine regulations of the receiving State. Such of Act gives expression to the diplomatic
by or immunities conferred on
of the diplomatic agent or of his of India to withdraw any
privileges and
inspection shall be conducted only in the presence thereof whenever it appears to the
govemment

authorized representative. The right to inspect the personal baggage ofa diplomat mission of a foreign State or
members
accorded to the Indian
mission or members
an important exception
to the general and immunities
in these exceptional circumstances is of India that privileges to the Vienna
Convention, are
that State, being a party
ofa diplomat's property in the receiving State. However, ifndiplomat thereof in the territory of the govemment of
inviolability an air carrier, this Act. This section empowers
declines to allow his baggnge to be inspected
or tested by agents of less than those conferred by of reciprocity.
aircran m e a s u r e s on the
basis of the principle
hijac and terrorism on
India to take retaliatory he
practices which sinco the
advent of Articles I and 32 to 40 c
under the
him," Indian Act makes it clear that
no obligation to carry The Schedule to force of law in
become general, the carrier is under of incoming Diplomatic Relations, 1961, shall have the
is made in Article 36 in rogard to scarch Vienna Convention on
contained in Article 36
of the
No specific provision for the personal uso of Act provides that nothing
of the
the ofTicial use mission or India. Section 6 of the mission or member
consignments ofarticles for State can regulate bo constnued to entitle a diplomatic
a matter which the receiving Vienna Convention shall without any restrictions
a diplomat. This is, therefore, send particularly senstive items,
thereofto import into India goods
free of any duty or customs
Stato to any contains restrictions on entry
However, it is open to the sending of diplomatic hag. Items sale therein. Section 8 of the Act
central
character on their subsequent
a
in the servant or agent of the
which it does not wish to he cxamined, on their charnctor." to it, no public
oflicial but there is no other limitation into diplomatic premises. According shall enter the premises
of
in the bag must be for or any public authority
use,
government, a State government except with the consent

a diplomatic mission for

the purpose ofserving legal process, of
obtained through the ministry
DIPLOMATIC MISSION Such consent may be
12.8
TERMINATION OF of the head of the mission. Section 9 of the Act is of
considerable
of India.
following ways:4 external affairs of the government evidence. t states that if
in any
be terminated in and contains a rulo of
A diplomatic mission may
State. Such a step is taken
where procedural importance is entitled to any privilege
recalled by his accrediting arisos whether or not any person
. An envoy muy be resolved. The letter proceedings any question or under the authority
of the
States cannot otherwise be this Act, a certificate issued by
the tension betwcen the or immunity under
two
or to the minister
of Porelygn extemal affairs stating any
handed to the llead of Stato of India in tho ministry of
of recall is usually receives in return a letter de secretary to the government conclusive evidence of that fact.
and the envoy shall be
Affairs in solemn audience, fact relating to that question make ules for
Recreance acknowledging his recall that the central govemment may
Section 10 of the Act provides

Supra note 23, p. 138. on Diplomatic Relatlons, Article 43.

37. Lord Oore Dooth (ed.), 41. Vienna Convention
43.
38. Ibid., p. 140. 42. lbid., Articles 9 and
39. Ibid. 1984, p. 406.
Introduction n Internatlonal Law,
40. J.0. Starke,
 230 INTBRNATIONAL LAW
DIPLOMATIC AND CONSULAR RELATIONS21
to the procelurul provisions and the other conditions of the law of the requeated
carying out tho purpoies of thls Act. 7hereaner, soction 1 l of tho Act requires the Stuto,"
notilcations issued and rulos made under
the Act to be lald before Parliament.
Every notincation issued and evory rule nuado under this Act shall bo lald as
as may be aflor it is soon
issued or made boforo cach llouso of 12.11 CONSULS
session, for a tolal poriod of thirty Parliament, whilo it is in
days which may bo
succossivo sosslons, and i, before comprised
in two or more in ono scusion or Tho Unitod Nationa Conference on Consular Relations adopted, on 22 April 1963,
tho oxpiry of the scssion tho Vienna Convention on Consular Relations and optional protocols. The
immodiately following the sossion or the successlve sosslons aforesaid, both lHouscs
agroe in making any modislcation in the Convention entered into force on 19 March 1967. India acceded to the Convention
ule, or both Houses agreo that the notincation or, as tho case may bo, in the on 28 Novomber 1977, Consuls are
notiflcatlon or rule should not bo issued or
agonts of a State in a forcign country and thelir
made, the notiflcation or rule shall thereafner prinmary duty is to protect the commercial interosts of the appointing State. However,
have effoct
offect, as the case may bo, so however, that only such modifNed
fom or be of no in
they conmonly perform wido varlety of other dutios also. Article 5 of the Vienna
or annulment shall
be without any 8uch modification Convention on Consular Rolations contains a list of
under that notification or rule. prejudice
to the validity of
anything proviously done a wido
consular functions. These cover
spectrum and includo, among othors, protecting in the receiving State the
interests of the sending State and of its nationals;
furthering the developmentof
12.10 commerclal, oconomic, cultural and scientiflc relations:
PREVENTIOON AND PUNISHMENT OF CRIMES and dovelopnionts in the commeroial, ascertaining conditions
DIPLOMATIC ENvoYS AGAINST oconomic, cultural and scientific life of the
recelviny Stute; issuing passports, visas and travel documonts; helping and
It issignificant remark here that the crinies
to nationals of tho sending State; serving as a assisting
notary or civil rogistrar; assisting nationals
diplomatic mission are increasing. Therefore, onagainst diplomatic envoys and
14 December 1973, General
in comection with docondents'
ostatos, guardianships for persons lacking
Assembly adopted a Convention on the Prevention and Punishment capacity and representation and presorvation of rights before local legal
Internationally Protected Persons, including Diplomatic Agents. of Crimes against
India acceded to transmitting docunments or tribunals;
executing letters rogatory or commissions to take evidence
the Convention on 11 for courts of the sending Stato;
April 1978. The Convention closely follows the provisions exercising rights of supervision and
sending Stato; and extending assistance to inspectlon
of the Hague and Montreal vessols und aircrafn of tho of
Conventions on lHijacking of 16 December 1970 and such vesscls
23 September 1971 and aircraf and their crews,
respectively. including conducting invostigations and eettling
Article 2 is the key provision of the Convention. It Article 17 of the Convention
providos that a consular oflicer may be authorizeddisputes.
make punishable the intentional commission of obligates cach State Party to to perform
murder, kidnapping or other attack diplomatic acts without effect upon his consular
status. Articles 3 and
the 70 deal with dhe
upon liberty of an internationally protected person; violent attack performance of
however, diffor from diplomaticconsular
person or functions by diplomatic
upon the oficial premises, private accomniodation or means of porsonnel. Consuls,
envoys. Consuls, are not oquipped with letters of
transport of an credence, but are appointed under a commission
intornationally protected person likely to ondanger his person or liberty; and threats issued by thoir
or attempts to commit, or
participation as accomplices in the commission of such appointment is then notified to the Stato where the consul is government; the
to be stationed,
the governmcnt of which is
act. Article 7 of the Convention makes it clcar that the State
party in whose territory requeuted to issuo an
oxequatur (authorization from the
the alleged offender is presont shall, if it doos not extradite raceiving Stato) to carry out the consular duties. If thore is no
him, submit, without the appointment of the objection to
oxcoption whatsoever and without undue delay, the case to its competent authorities person concemed as consul, the
subsequontly, tho conduct of the consul gives serious grounds oxequatur is issued. If,
for tho purpose of prosocution, through procoedings in accordance with the laws of for
that State. Article 8 makes the crimos under the Convention as extraditablo. If the receiving State may notify the sending Stato that he is complaint, the
crimes under the Convention are not listed as cxtraditable offences in any extradition Thoreaner, sonding Stato recalls him or terminates his no longer acceptable.
Stato does not do so, the lunctions. If the sending
treaty between State Parties they shall be deemed to be included as such therein, recoiving Stato may withdraw the
consider him a member of the consulate." Article 23 of the oxequatur, or cease to
and State Parties undertake to include those crimes as cextradituble offlences in every Vienna Convention on
Consular Rolations catogorically states that a
futuro extradition treaty to be concluded between them. Thus, crimes under the receiving State may, ut any tinme,
notily scnding State that a consular oflicor is not persona non
the
Convention aro recognized as extraditablo by State Parties which do not make other nember of the consular staff is not grata or that any
extradition conditional upon the oxistence of an extradition treaty, Ifa State Party lt would be of acceptable.
which makes oxtradition conditional upon tho existence of an extradition treaty intercst to mention here that in 1981 United States announced the
receives a request for extradition ftom another State Party with which it has no 43. J.a. Sturke, Introductton to lnternational law, 1984, p. 40s.
cxtradition treaty, it may, if it decides.lo extradite, consider the Convention as the 44. Ibid., p. 407.
legal basis for extradition in respect of those crimes, but extradition is to be subject
232 INTERNATIONAL LAW DIPLOMATIC AND CONSULAR RELATIONS 233

on Consular
appointment of George B. Grifin as political counsellor to American embassy in Engelke v Musmann." Similarly Aricle 17 of the Vienna Convention
consular officer
India. There some charges of espionage
were
against Grifmin. Therefore, India Relations provides that diplomatic functions may be carried out by a
refused to accept appointment of Griflin. India's action was justifiable inasmuch as in a State where the sending State has no diplomatic mission with the consent of the
Circular of 16
it is within the discretion of the sovereign State to accept or not to accept, the recciving State. Furthemore, in a United States Department of State
would continue to
appointment of a diplomatic agent. In etaliation, United States refused to accept January 1958, it was stated that the United States governmentin
missions Washington who
the appointnent of Prabhakar Menon as political Counsellor of Indian embasy in recognize in a dual capacity members of diplomatic
also perfomed consular functions.
America. India's external afairs ministe, Narasimha Rao described America's action filed a writ petition
In Farth Builders v State of Maharashtra," the petitioners
as unjust as there was no allegation against Prabhakar. State Govemment and the municipal
secking a writ of mandamus to direct the
authorities to exercise their powers under the Bombay Municipal
Corporation Act,
12.11.1 Immunlties, Rights and Privlleges of Consuls rclevant rules, and circular of the Bombay Municipal
Corporation to provide
the adjoining property of the respondent,
local pctitioners' property an access through
Consuls do not, like diplomatic envoys, enjoy complete immunity from to the consulate General of Islamic to State of Afghanistan
over the portion of land
are commonly granted The
jurisdiction. However, special privileges and exemptions that portion to be a public street.
certain privileges for fulnlling belonging to the consulate by declaring the Municipal
them under bilateral treaties. In practice, consuls enjoy was landlocked and, therefore,
from service on juries, petitioners stated that their property
their duties and functions. These include consul's exemption Commissioner should be directed to exercise
his powers and provide access to
communication with nationals of the the land of the consulate as public
street. The
his right of safe conduct, the right of free and his right if petitioners by declaring portion of State of
his oficial papers and archives, Consulate General of the Islamic
sending State, the inviolability of under surveillance until his exequatur
respondent, Consul General for the Court by maintaining that
accused ofa crime to be released on bail or kept raised objection to the jurisdiction of the
Convention, Afghanistan Convention
is withdrawn or another consul appointed
in his place." Article 31 of the under Vienna Convention on Diplomatic
Relations, 1961 and the Vienna
that authorities of the receiving from the
of consular premises, provides on Consular Relations, 1963,
the Consulate enjoyed diplomatic immunity
on the inviolability used exclusively for
consular premises which is the receiving state, i.e. Union of
State shall not enter that part ofthe be civil, criminal, and administrative jurisdiction of
of the consular post except by permission which may
the purpose of the work India.
requiring prompt protective action. In Relations was adopted at Vienna on 18
assumed in the case of fire or other disaster
General in order
The Vienna Convention on Diplomatic
entered the Soviet Consulate
authorities and entered into force on 24 April 1964 in accordance with Article 51
1948, New York police the fall from a third-storey
April 1961 have ratified and acceded to the
assistance for, and to investigate of the Convention. Both India and Afghanistan
toprovide medical refused to retum to the
Soviet Union. Asa
recognises absolute inviolability
window
who had
of a Soviet national relations betrween the
lUnited Convention of 1961. Article 22 of the Convention convention on con_ular relations in
of this and otherincidents, consular of the diplomatic mission. There is a separate
consequence Article 31 further provides that the Relations which was adopted at Vienna
Union were broken of." immune from the form of Vienna Convention on Consular
States and the Soviet other property, shall be into force on 19 March 1967 in
accordance with
furnishings, as well as on 24 April 1963 and entered
consular premises and public utility. It is made 28 November 1977 but Afghanistan
Article 77 of the Convention. India ratified it on
of national defence or
form of requisition for purposes all possible steps shall be
of the Vienna Convention on Consular
any
is necessary for such purposes, efTective is not a party to this convention. Article 5
clear that ifexpropriation
functions and that prompt, adequate and Relations deals with consular functions.
Some of the consular functions are
consular
broko ofTconsular
takennot impede State. The United States
overlapping with diplomatic functions under Article 3 of the 1961 Convention on
compensation shall
be paid to the sending certain property distinction. Under Article 3
when the latter requisitioned there is one important
relations with
communist China in 1950 Diplomatic Relations. However, has right to represent the
the diplomatic mission
States consular premises. a limited of the,1961 Convention, only
serving as United States grant consuls with the Government of the
It may be of
interest to mention
here that certain sending state in the receiving state and negotiate can be performed only by
the
dues. state. These are sovereign functions which
taxation and customs of the States to receiving office mainly discharges
exemption from international law has
witnessed the tendency mission and not by the consulate. A consulate
of the Vienna diplomatic
The contemporary
consular services. Article 3
other ancillary consular functions like issuing
of passports, visas, trade activities
diplomatic and consular functions
amalgamate their 1961 makes it clear that and other activities like safeguarding nationals, individuals, bodies and corporates
Relations, in
Convention on Diplomatic
mission. This fact
finds judicial expression
of the sending state ascertaining conditions and developments in the commercial,
by a diplomatic receiving state. Merely because
some
may be performed economic, cultural and scientific life of the

423.
47. Engelke v. Musmann, Appeal Cases, 1928, p.
45. Ibid., p. 408.
Immunities: The
Kasenkina Case',
American Journal ofInternational 48. Earth Bullders v State of Maharashtra,
A.l.R., 1997, Bombay, p. 148.
'Consular
46. Preuss,
37.
Law, 43, 1949. p.
234 INTERNATIONAL LAW DIPLOMATIC ANDCONSULAR RELATIONS235
intemational Organizations. On 14 March
of the functions of a
diplomatic mission are also carried by consulate it cannot get such representatives sent by the States to
the status ofa diplomatic mission.
1975, United Nations General Assembly adopted at Vienna a Convention on the
Article 31 of their Relations with International Organizations of
the Vienna Convention on Consular Relations, 1963 deals with the Representation of States in
inviolabiliry of the consular premises. The consular premises, their urmishings, the Universal Character. The Convention govems the status, functions, and immunities
property of the consular post and its means of transport shall be immune from of the representatives sent by the States to intemational organizations accredited to
form of requisition for any
purpose ofnational defence or public utility. If States. It is perhaps due to the reason that representatives of the intermational
is Decessary for such expropriation
purposes, all possible steps shall be taken to avoid impeding
the performance of consular organizations would be officials of the organization concemed and, therefore, their
functions and prompt, adequate and effective status would be covered by the appropriate rules and regulations of the organization.
compensation shall be paid to the sending state.
It is, thus, clear
However, the Convention has proved to beofacademic interest only as most of the
that under Article 31 ofthe 1963 Convention relating to Consular States have questioned the necessity of the Convention on the ground that most of
Relations, the consular premises are inviolable. But there are marked
The inviolability conferred differences. itu provisions are covered by Headquarten Agreements, Convention on privileges
by Article 31 is not absolute immunity. The consular and immunities of the relevant international organizations and Vienna Convention
premises, their furnishings, the property of the consular post and its means of
transport are made immune from any form of requisition for the
purpose of national
on Diplomatic
Relations of 1961. Thus, there is a remote possibility
acceptance of the Convention by the States.
ofthe
general
defence or public utility. However, if
all possible steps shall be taken to avoid
expropriation is necessary for such purposes,
functions and prompt, adequate and effective
impeding the performance of consular
sending state.
compensation shall be paid to the
The Bombay High Court held that the
acquisition of the property of the consulate
for the purpose of providing an access to the landlocked
such acces u a public street would property and declaring
qualify to be a public utility and therefore the
consulate would not enjoy immunity from the
jurisdiction of the court. The court
dismissed the objection of the consulate concerning
jurisdiction of the court. The
court, however, did not interfere with the exercise of discretion
by the Municipal
Commissioner and len it to the Commissioner to decide whether the case was fit
for the exercise of power under the Bombay
Municipal Corporation Act, relevant
rules and the circular issued by the corporation.

12.12 SPECIAL MISSIONS

With the consent of the receiving.State, the sending State may send temporary
missions to dealwith a specific question or to perform a specific task. Such missions
may be accredited, irrespective of the fact whether diplomatic or consular relations
are being maintained with the
receiving State. For this purpose on 8 December
1969, United Nations General Assembly adopteda Convention on Special Missions
Abroad. The Convention is based on Vienna Convention on Diplomatic Relations,
1961 although it also has some reflections of the Vienna Convention on Consular
Relations of 1963. The Convention confers privileges and immunities upon the
members of special missions to an extent similar to that accorded to permanent
diplomatic missions on the ground that such privileges and immunities are essential
Sor the regular and eficient performance of the functions of the special missions.

12.13 REPRESENTATIVES IN INTERNATIONAL ORGANIZATIONS

Generally, States send their permanent representatives to intergovernmental
organizations. Therefore, a need was felt to regulate the conduct and treatment of
 LAW OF TIHE SEA 237

the European
vast areas of the Indian Ocean.' The Portuguese sought to apply
their armed force against the
custom of wide claim over the sea and enforce by
it
trade. Portugal gained a
unarmed Indian Ocean shipping engaged in their peaceful
The Portuguese monopoly of the Easterm Spice
fair share of Asian spice market.
13 Trade and its profis aroused the jealousy of other European powers.
huge
It was to contest the Portuguese monopoly
that Grotius propounded his doctrine

on the basis of Asian maritime practices

of ftee navigation and trade. His greatness
customs of Asian countries
and presenting
the maritime
lies in keenly observing
Law of the Sea them in the form ofa doctrine supported by logical
arguments, Christian theology.
the right
Glotis's theory aimed at upholding
and the authority of Roman law. The
and commerce with the
lIndians in spite of the Portuguese
of the Dutch to navigation in the
admirable exposition of the reasons why,
claims to monopoly. It contains
to be free.
then existing conditions, the sea ought which
is grounded upon occupation,
13.1 HISTORICAL. BACKGROUND He gave two propositions. First, all property shall be enclosed;
and immovable things
requires that movable shall be seized,enclosed is
whatever therefore cannot be seized or
incapable of being made a subject
13.1.1 Mare Liberum w Mare Clausum free. Secondly,
of the ocean are thus necessarily
of property. The vagrant waters exhausted by
13.1.1.1 Mare Liberum-The principle of mare liberum, i.e. freedom of the seas rests the fact that most things become
the right occupation
of upon
the condition of their
is
was first placed on a legal basis in 1604 by a Dutch jurist Hugo Grotius. Ilowever, continuous long use and that appropriation
consequently
cannot be exhausted
Grotius's work mare liberum was published only in 1609. James
Brown this is not the case with the sea; it
Hugo utility to human beings. But neither of the two ways in which
Scott suggests that mare liberum was first fomulated by Spanish theologians is to say, in
to
either by navigation or by fishing, that
Grotius plucked the
which Grotius made only trifling additions. In other words, it can be used.
who preceded him and wrote nearly a century The development of the theory
of mare liberum was aimed at defeating
ripe fnuits of the Spanish Theologians de the Indian ocean. In fact, neither
Grotius
before his writing. In 1509, Spanish jurist de Victoria and in 1564, Vasquez. Portuguese monopoly of spice trade in
the
of freedom of seas? favoured freedom of the seas as a principle. As soon as
Menchaca advocated the theory nor Holland sincerely
and seized the profitable trade of the Spice islands,
Dutch defeated the Portuguese
they sought to create their own monopoly, signed several treaties with local nulers
Asian Traditions trade and tried to enforce these monopoly rights against the
to acquire exclusive
and commercial shipping were acceptable Grotius conveniently forgot his freedom
The unobstucted freedom of navigation Portuguese, British and other Buropeans. in
Asian seas for centuries before history in 1613 with a Duteh delegation to argue
by all countries in the Indian Ocean and other
the freedom ofseas principle and went to England islands. In fact, he was surprised
was ever recorded although
it is not possible to trace the expression of favour of Dutch monopoly of trade with the spice
later times. Although there British against him.
of the seas in the form of a doctrine
as such until much when his own book was quoted by the
in Asia which could appropriate the ocean, freedom of
were several strong powers
controlled or monopolized by anybody. Arabs, Mare Clausum-In Great Britain, the claims
of Bnglish Kings to the
the seas was never interfered, 13.1.1.2
other peoples used the seas for navigation
and trade ably defended in 1613 by William Welwood.
Persians, Indians, Chinese, and sovereignty. of the British seas were
the sovereignty of the
and The Indian Ocean had never been a theatre of very In 1633, Sir John Boroughes justified
the English claim to
in perfect harmony peace. next to the principal
serious naval conflicts. The period
of Hindu supremacy was an era of complete sea,which he calls mostprecious jewel of his majesty's crown,
followed them,
Even the Arabs and Muslims, who means of wealth and safety.
freedom of trade and navigation. Selden's mare clausum, an
at time to exercise naval control. Asians were not peaceful The most valuable on the subject is, however,
never attempted any
for the ocean which was but of limited
use for
exhaustive reply in two books, to Orotius work
which appeared in 1618, though it
peoples but felt no need to fight were mainly land powers. 1635. Selden disputed the arguments of Grotius and
navigation and catching small quantities
of fish. They was not published until
to control
in the Asian Seas helped tiny Portugal
The absence of armed shipping Rulers of
Indlan Ocean, 1945, pp. 35-36; G.A. Dallard,
Gnrotius's De Jute Belli ac Pacis Libri Tren',
Classics 3. K.M. Panikkar, Indla and the
1. James Brown Scot, Introductionto the Indian Ocean, 1927, pp. 15-16.
ofOrotius Society,
1925. Mislon to England, Transactions
ofInternational Law, Oxford, du droit internatlonal, 1930, 17 Conference, 4. G.N. Clarke, Grotus East Indian
2. 'A de lapradelle, les Principes generaux 20, 1934, p. 79.
p. 17.
 LAW OF THE SEA
238 INTERNATIONAL LAW 2
maintained the right of The progress in science snd technologY revealed a new world with nine times as
Great Britian. At the appropriation by English Kings of the waters surrounding much vegetation available in the seas as was cultivated on the land. Furthemore.
same time, Selden
not forbid the adnmitted the principle that a State tremendous mineral and hydrocarbon resources were found to be existing on the
duties of navigation of its seas by otlher people without could
being wanting in its cabed and subsoil of the oceans. The scientific and technological breakthroughs
humanity.
to the sea with
He was thus
endeavouring to reconcile the
British nade these resources accessible. The development of technology also revolutionized
general claims of the freedon1 of special claim
is one of Selden's
most celebrated navigation. The same idea is found the fishing mechanics. It could be possible to detect, concentrate and harvest fish
observations concerning the dominionfollowers, Sir Phillip Medows, who in his even in the high seas. The massive
overfishing by technologically advanced countries
and sovereignty
fully supports the view that "that sea is the
of scas, published in 1689, threatened fishery resources near the coasts as resources of the seas were not
but at the same time public property of Crown of lngland,"
declares that 'as it is u inexhaustible. Thus, despite the strong opposition by Great Britain and other distant
traders ofall nations. Selden's way, it is conunon to the
law in ' work remained most peaceably
authoritative work on maritime
wator flshing States, the littoral States insisted and cxtended their
fishery jurisdiction
Europe for ncarly 200 years. Selden won this
beyond the torritorial sea. The freedom of the seas was also modified to
brilliance of his protracted battle not by the accommodate security, fiscal, custom, health, and sanitation interests of coastal
arguments, but by the louder language of the Powerful
navy. It was under the British Statos in the fom of
contiguous zone which continued to be maintained over the
patronage of Great Britain, which had
power of the world. The needs and
demands of the
emerged as the greatest increasingly less severe opposition by Great Britain.
-led to huge colonial industrial revolution in Europe
in
empires in Asia and Africa' As
commercial prosperity and free trade, and Europeans got more interested 13.1.2 Truman Declaration of 28
these widespread
to
ever more
Europeans started travelling September 1945
colonies, Seldon's mare clausum became an anchronism which The doctrine of the freedom of the seas
was no longer
necossary. It was more uscful to have got a serious setback when President Harry
open and free in order to S.Truman on 28 September 1945
exploit vast unexplored of the world
areas
seas
proclaimed the natural resources of the seabed
Pretensions to sovereignty over the sca andwhich no one natlon could reach alone. and subsoll of the continental shelf beneath the high seas but
contiguous to the
natural death and England became not monopoly of trade slowly died their cóasts of the United States as
only the strongest champion of the freedonm appertaining to the United States. The Presidential
proclamation asserted the jurisdiction and control over the continental
of the seas, but its
policeman." Grotius, the dejected and rejected man in his life,
and false prophet for 200
did not afTect the character as shelf but
high seas of the waters above the continental shelf
years, was proclaimed a hero. and right to their
In the nineteenth
century, Grotius found support even in the
unimpeded navigation. On the same day, by issuing another
proclamation, President Truman provided for the establishment of the
pronouncements. Lord Stowell, in the case of Le Louis,' sunumed up the rulejudicial
in one conservation zones for protection of fisheries in high seas
sentence: 'all nations have and
equal right to the unappropriated parts of the occun
for their navigation.' This decision contiguous to the United States. The proclamationcertain areas of the high seas
may be comparcd with that given by Story, development ofnew methods and techniques contributed pointed out: "the progressive
great American Judge, in the Marlanna Flora' the wide sea areas and in certain cases to intensified
fishing over
"upon tho ocan, in time of seriously threatens
all possess an entire
equality. It is the common highway of all, approprialedpeace,
to the
The proclamation was fisheries with depletion'.
warmly welcomed by the States as if they were
use of all, and no one can vindicate to
himselfa superior or oxclusive prerogative prepared for this change. Many States, already
there. The presidential proclamation therefore, issued similar proclamations.
maritime jurisdictions. Some Latinopened the floodgates for claims of extended
13.1.1.3 Fall of mare liberum--The Chief purpose of the freedom of the seas
or
sovereignty to 200 nautical miles American countries extended their
for the sole jurisdiction
purpose of protecting their fisheries
was joint exploitation of Asia and Africa to satisfy the needs of the industries of from depradations by otherStates. They, however,
Europe. lowever, with the weokening of Europe, colonialism collapsed and navigation through thcse waters. Theso permitted the freedom of
extonded
numerous Asian and African countrios
emerged who aligned themselves with the acceptable to maritime powers and resulted in lot ofjurisdiction claims were not
confusion. In 1958, 27 of the
Latin American States to take concerted action and play an 73 independent coastal Statos claimed
important role in 3 mile limit. Their claims
territorial sea much wider than thetraditional
international legal and political structure in pursuance of their interests. They, ranged between 5, 6, 12 and 200 nautical miles.
therefore, pleaded for wider national jurisdictions over soa waters.
13.1.3 UN Conference on the Law of the Sea
5.
R.P. Anand, 'Freedom ofLal
the Sea: Past, Present and Future', See Rafacl Gutefez, The first United Nations
Conference on the Law ofthe Sea resulted in the conclusion
Helmut Ridder, Manohar
Law, 1982, p. 221.
Sarin, Theo Schiller, New Directions In Internatlonal of four Geneva Conventions of 1958.
The Second United Nations Conference on
the Law of the Sea was convened in 1960 to
6. Sir Geoffrey Bulter and Simon Malloby, The DevelopmentofInternational Law, 1928, decide the limit of territorial sea but it
failed to produce any result. During
o. 53. 1960s, technology advanced and it came to be
known that beyond the continental
7. Le Louis (1817), 2 Dods, pp. 210, 243. margin extending to a depth of 2500 melers,
8. Mariana Plora (1826), 1, Wheaton, pp. 1, 43.
 240 INTERNATIONAL LAw
LAW OF THE SEA 241
there are extensive mineral reources in the
form of manganese nodulen consisting Pardo initiative opened the way for the Third United Nations
of approximately 20 per cent of Conference on the
manganese 1.25 per cent nickel, I per cent copper Law of the Sea. It gave birth to the seabed
committee, which soon began to take on
and 1.22 per cent cobalt. All the
component metals of manganese nodules are a life
of its own. In 1970, two significant General Assembly resolutions were passed-
essential to industrial economies.
oneconceming declaration principlesapplicable the
of
to seabed beyond national
and
Jurisdiction the otheragreeing holda to Third United Nations Conference on
13.1.4 Pardo Proposal of 1967 the law of the sea. In the second resolution to conevne the Conference, the General
In 1967, Arvid Pardo of Assembly gave the mandate to the Conference to prepare a single comprehensive
Malta informed the General Assembly about the tremendous
wealth of the oceans in the fom of mineral and hydrocarbon resources. He suggested convention. At the same time, it gave to seabed committee special task in
some
preparing for the Conference, in particular the complication of a comprehensive
the need for creation of an effective intermational regime for the seabed and the list of subjects and issues for the future convention to cover.
ocean floor beyond national jurisdictions and acceptance of that areas as common
heritage of mankind and to be used and exploited for the benefit of mankind. The
General Assembly accepted Pardo proposal and established a Seabed Committe 13.1.7 A Package Deal Convention
to prepare for a Third United Nations Conference on the Law of the Sea. Clearly, ocean uses had grown in number and complexity. The number of contentious
issues had increased, and more States wjth diverse interests were playing an aactive
13.1.5 Common Herltage of Mankind-General Assembly Resolutlon of 1970 role in the political negotiating and law-making process. By the experience of Sea
bed Committee, States became a ware of the opposing views and that no individual
In 1970, General Assembly unanimously adopted a resolution concerning
Declaration of Principles Governing the Seabed and Ocean Floor (G.A.
Res No. State or group of States could expect others to accept their positions on all items.
They knew that they had to balance the many interrelated issues in an over-all
The Assemb ly, inter alla, declared that the seabed beyond national
2749). compromise in order to attract the widest possible international adherance-the
or sovereignty but was the
jurisdiction was not subject to national appropriation goal of any major intermational convention.
common heritage of mankind and must be exploited
for the benefit of mankind as The Law of the Sea Convention is called a "package deal'. In practice, package
consideration the interests and needs of the
a whole, and taking into particular deal ineans that without agreement on all issues, agreement on any single item is
developing countries.
empty, or temporary at best. In a package deal, States do not accept partial solution
because when they make a concession on an important item, they do so in thee
the Law of Sea (UNCLOs I1) expectation ofprogress towards an acceptable solution on another equally important
13.1.6 Third United Nations Conference on
on chaos before the
138ue.
The Law of the Sea was in the state of disorder burdening
the breath territorial
III. There were conflicting claims on
beginning of UNCLOS over fisheries, regime
for marine 13.1.8 Seabed Committee's Work
sea, nature and
extent of coastal jurisdiction continental
and obligations concerning the
scientific research, costal State rights In the yeara 1970 to 1973, the Senbed Commitee reconatituted from the preparatory
the rule for boundary delimitation, and even whether
shelf, disagreements concerning seabed body for the Conference produced a legacy of 161 documents that in no way
or not there existed
an international beyond nationaljurisdiction. Describing
Dr Mark Mac-Guigan,' who was
until September resembleda drat treaty text. Thus when the Conference began its substantive work
the significance of UNCLOS II, in 1974 at Caracas, Venezuela, it did so in wasa completely different manner fom
for Bxternal Affairs stated:
of 1982, Canada's Secretary of State other international legal conferences. There no drat text to serve as basis for
been made to the International
nule of law by UNCLOS
A major contribution has just
to codify technical rules of law. It is a
the negotiations. Instead, the work of the seabed committee set forth alternatives
IIl. The conference is not merely
an attempt
it is a food conference; it is
an enviornmmental conference;
it is a foran international regime and machinery for the seabed; comparative tables of the
and group proposals on jurisdictional questions; consolidated texts
resource conference,
it is an energy conference; it is a conservation
conference; different nations
of proposals on marine pollution and scientific researeh; and various declarations
marine science conference; delimitation conference; it is
it is a maritime boundary and working papers.
it is an economic conference; conference; it is a transportation,
limitation and jurisdictional
a territorial is a conference, which
communications and freedom
of navigation conference. It
conference
Mostimportanti it is a 13.1.9 nterest Groups
uses of the oceans by humanity.
,

regulates all the the oceans. It is, in

settlement of disputes concerning
which provides for the pesceful nations. At Caracas, various interest groups emerged. Their formation was based on their
dedicated to the rule of law among
other words, a conference occan interest. Theso were; coastal States; "Margineers' (countries having broad
for External Amhirs of Canacla,
The Secretary ofState continental margins); 'territorialists' (States advocating 200 miles territorial sea);
9. Address by Dr Mark MacGuigan, September 1981).
36th Regular Session ofUN General Assembly (21
 LAW OF TIHE SEA 243
242 INTERNATIONAL LAW
Consensus
13.1.11 Passlve and Actlve
landlocked and geographically disadvantaged States; 'Straits States'. (States were evolved to push the process
of consensus
bordering Straits used for intemational navigation); Pacific States (emphasizing In UNCLOS II1, techniques as distinguished from passive
consensus procedure
the special situation of small
islands); tuna fishing countries; land-based producers formation. This is active
substitution of consensus for voting as a
which is the mere
of minerals found in the seabed ete. virtually all groups have their members,
as
developed and developing States, and many have menmbers from cvery main United
consensus procedure,
decisions. Passive consensus is often
used to avoid voting when
way of making will result fron vole. The six years work
Nations rogional group (Africa, Asia, Latin
America, Easterm Europe, Western there is fear that a destructive polarization
Europe and others). The most interesting is 'Group of Five' which may be termed Committee (1968 to 1973)
used passive consensus procedure.
as 'gang
ofthe Seabed
of Five' because it included United States and Soviet Union as the backbone
of alliance, plus United
Kingdom, France and Japan,*) It is not understanduble as Transformatlon of Pasive Consensus to Actlve
Consensus
to why FRG was not included in that 13.1.12
group. It was a very effective group. Another
group was Pioneer Seabed Miners Group. Although they did not mcet as a group conference alternative texts on almost
The Seabed Committee had bequeathed to the
but they macdc it clear that they had a com1non interoCst.
every important item. The first session of conserence was held in l1973 andinwas
the
procedural in nature. The conference followed passive consensus procedure the
13.1.10 Negotlatlng by Consensus
first substantive session in Caracas, Venezuela in
1974 which continued till the
could be
UNCLOS middle of the 1975 Geneva Session. No progress towards compromise
Ill represents a major international cxperiment in decision making by mado up to mid-April, 1975. Conference President H.S. Amerasinghe proposed
consensus. Taken loosely, consensus means decision making by consent that does that the Chairman of the three main Committees be mandatcd to produce Informal
not involve resort to voting.
In Daniel Vigness terms, consensus does not imply Committees. In
unanimity but a very considerable convergence of opinions and the abscnce of any Single Negotiating Texts covering the agendas of their respective
to transfer to the Chairman their
delegations in strong disagreement, however few in number.° Charney observes; perauance to this proposal, the delegations agreed
The consensus system assures that decision naking at a multilateral negotiation of collective and
rights responsibility to drat and ISNT. The Single Negotiating Text"
a convention will not be dominated by the numerical superiority of any group of was incrementally transformed from a negotiating text to a negotiated one. The
nations. Rather, procedural significance will be given to the variations in the power principle agencies in the transformation were Chairman who produced new texts
of nations. ince, it is dificult to obtain acceptance of voting systems that overtly (revisions) on the basis of negotiations at the sessions. Although the name negotiating
recognize the difference in nations' importance, the consensus approach permits toxt continucd to be used in each session, the texts steadily became more and more
the maintenance of an egalitarian procedure which in practice may assure that negotiated.
multilateral negotlations reflect the real geopolitical power of the participating
nations. The Gentlemen's Agreement contains the only explicit mention of 13.1.13 Negotiating Texts
consensus requires that the conference should make every effort to reach
and
At the session following Geneva (New York,1976), a set of Revised Single
and there should be no
agreement on substantive matters by way of consensus Negotiating Texts (RSNT) were produced. A further Session in New York ailed
such matters until all e fforts at consensus have been exhausted." Ruleu
voting on
to produco a revision to the revision. At the 1977 session, all texts were integrated
37 through 40 define voting rights, required majorities, and variety of procedures
a

order to ensure that all efforts at reaching intoasingle document called Informal Composite Negotiating Text (ICNT). At
by which vôting may be deserred in 1978 session, seven negotiating groups were set up to deal with the remaining
consensus have stronger in UNCLOS
II which witnessed confrontation between a
powerful minority with major marine
interest and capabilitlies, and a weak majority hard-cora lasues confronting the conferonce. These groups replaced the three
Committocs and their Chaimen performed the same consensus building function.
with no major maritime capabilities. In April 1979, 1CNT waa revised (ICNT/Rev 1, April 1979) which was further
roviscd (INCT/Rev 2, 1980). It was again revised to produce Draft Conventions on
of UNCLOS III, 46 Law und Contemporury the Law of the Sea (UN Doc A/CONF. 62/WP 10/R 3 and Add1 d Corr 1
9(a). Alan Becsley, The Negotiating Strategy
Problems, 46, 1983, p. 183 at 187-88. Amerlcun
(190); reprint in 19 ILM 1131 (1980). Finally United Nations Convention on the
10. Daniel Vignes, 'Will UNCLOS
II Work According to Consensus Rules?, Law of the Sea was adopted on 10 Docember 1982 in a vote requested by USA,
Journal of International Law, 69, 1975, p.
119; Barry Buzan, "Negotiating by the Conference adopted the text by 130 votes in favour, 4 votes against, with 17
Journal of
ut UNCLOS III, American
Consensus: Development in Technique' abutentiona, Voting against, apart from USA, were Israel, Turkey and Venezuela.
324 at 332.
International Law, 75, 1981, p. The Case for
Interests in a Convention on the
Law ofthe Seu; 13. Negotiating text io not a negotiated text. It has no status and implies no commitment
I1.Chamey, United Statcs 39.
Continued Bfforte, VanderblltJournal of
Transnational Law, 11, 1978, p. but lt serves ua coherent basis on which to negotiate. Inserted by the Constitution
Doc. AVConf. 62/30/Rev. 2, at pp. 8-9, 17
UN (1Sth Amendment), Act 1963, Section 9.
12. UNCLOS I11, Rules of Procedure,
(1976).
244 INTERNATIONAL LAW
LAW OF THE SEA 245
Those abstaining
Belgium,
were
Democratic Republic, Hungary, Bulgaria, Byelorussia, Czechoslovakia, the Goman 1947 decided: "the federal govornment rather than the State of California hasi the
Federal Republic of Germany,
Italy, Luxmbourg, Mongolia, The Netherlands, The
Poland, Spain, Thailand, the USSR, and the paramount rights in lands underlying the Pacific Ocean extending seaward three
The UN
Convention on the Law of the Sea was adopted on 10 DecemberUK. nautical miles from the low water mark on the coast of California and outside
alongwith four resolutions. Article 308, paragraph 1 of the UN Convention on1982 island waters of the State. The nuling of California case was the
affirmed by United
Law of the Sea provides that the Convention shall enter into the States Supreme Court in United States Supreme Court in United States v. Loulsiana;"
after the date of deposit of the sixtieth force twelvo months United States . Texas" and United States v. Maine."
16 November 1993, instrument of ratification or accession. On The Madras and Madhya Pradesh High Court have considered the question
Guyana deposited the sixtieth instrument with the Secretary
General. Accordingly, the UN
Convention on the Law of the Sea entered into force
whéther the teritorial waters of India form part of the respective federalcoastal
units. Both the High Courts answered the question in the affimative. In A.M.S.S. VM
on 16 November 1994. On 28
July 1994, an Agreement Relating to the & Co. v State of Madras," Rajah of Ramnathpuram in 1946 granted leaseto the
a
Implementation of Part XI of the UN Convention on the Law of the Sea was adoptod petitioners of the right to fish chanks in the Gulf of Mannar and the Palk Bay
by a' resolution of the UN General Assembly to open the door to universal opposite the coast of his zamindari for a period of 10 years on a apecified aniunl
participation in the Convention. The negotiation of this Agreement, as well as its rent. After India's independence, Madras State legislature passed tho Madras Eatates
content and legal effect on the
Convention, modified in many ways the pattem set (Abolition and Conversion into Ryotwari) Act, 1948 abolishing estates within the
for establishing rules of international law. The Agreement revises Part XI of the state of Madras. By issuance ofa notification under the Act, entire Ramnathpuram
Convention, Annexure IIl and Annexure IV dealing with the regime of the seabed zamindari was vested in
that prevented industrialised countries ftom ratifying or acceding to the Convention.
the
stato of Madras. Accordingly, the state of Madras
terminated the lease granted by the Rajah to petitioners. One of
India ratified the Agreement at the same time as it ratified the UN Convention on
the contentions
put
the Law of the Sea in 1995.
forward before the Court was that though the fishing
areas involved
were
the territorial waters, the Madras Act was ultra vires because it was only the
within
Union and not the state that had the competence to legislate
on
territorial water.
Rejecting this contention the court gave the nuling that only States hadthe powerto
13.2 INDIAN CONSTITUTIONAL POSITION
legislate on territorial waters' since the territorial waters belong to States and do
Article 297 of the Constituton of India needs special mention and reads as follows: not vest in Union. In support, the court
the rolied
on law
international and
constitutional low. Oppenheim was quoted by Madras High Court to support the
All lands, minerals and other things of value underlying the ocean within the territorial view that the territory of the coastal State did not stop at the waters of the sea but
waters, the continental
(or shelf) of India shall vest in the Union and be held for the extended up to territorial waters. In another case, Madhya Pradesh High Court
purposes of the Union. concluded that the territorial waters from part of the coastal states and Union

B.R. Ambedkar, while introducing Draft Article 271-A (on which Article 297
is Territories.
In its 41st Report, Law Commission of India observed: 'since the territory of
based ) in the Constituent Assembly of India said: India comprises the territories of the States and the Union Territories vide Article
1(3) of the Constitution the territory of cach of the States and Union Territories
which are
w e are going to have integrated into the tertitory of India several States surrounded by the sea must include the territorial waters adjacent to its coast."
the
for the time being maritime States to raise the issue that anything underlying The views of the Madras and Madhya Pradesh High Courts and Indian Law
ocean within the territorial waters of such States will vest
in them. In order negative
to
raised hereafer it is to incorporate this Commission are not justified. The Madras and Madhya Pradesh High Courts failed
any such, contention being necessary
to appreciate that when intermational lawyers cited by them maintained about
Krishnaswami
article.. In the United States, as my honorable ffjend, Shri Aladi
. .

Ayyar said, there has been question as to the territorial waters belong to the
whether territorial waters of a state, they were referring to a "State', which was a subject of
United States government or whether they belong to several States,
because you
international law, and not to the constinuent States of a federation, which gave no
know under the American Constitution, the central govemment gets only
such powers standing under international law, a Tected the very foundation of the view taken by
them. w e thought that this is an important
as have been expressly given to such the two Courts.0 Furthermore, in actual practice, none of the organs of the Union
or to future litigatlon or to
matter that we ought not to leave it either to speculation
this
future claims, that we ought right now to settle this question, and therefore,
article is introduced.. 15. Uniled States Louisiana, Lawyers' Edition (United States), 94, 1950, p. 1216.
16.
w
United States . Texas, Lawyers ' Editlon, 94, 1950, p. 1221.

In United States v California'" Supreme Courn of United States on 23 June 17. Unlted States v Maine, Lawyers' Edition, 43, 1975,p. 363.
18. A.
M.
M. S S.J., VM. Co. wStateof Madras, A.I.R., 1948, Mad., p. 291.
19. P.L. 1974, p. 639 at 650.
p.
14. United States w. Callfornia, Lawyers' Editlon (United States), 91, 1889. 20. P.Chandrasekhara Rao, The New Law ofMartme Zones, 1983, p. 37.
tiE Nlir.aE.
 248INTERNATIONALLAW LAW OF THE SEA 249

distress or for the purpose of rendering assistance to giving prior notice to the central
persons, ships or aircran in enter or pass through the territorial waters afer
danger of distress.
government.
The word 'innocent' finds elucidation in Article 19 of the UN Convention on
the Law of the Sea which states that passage is innocent so in the territorial sea has always
long as it is not prejudicial Warships: The right of innocent passage of warships previous authorization
to the peace, good order or
security of the coastal state. Such passage shall take remained a controversial question. Do the warships require the
the passage of warships occur in
place in conforrnity with this Convention and other rules of intermational law. of the coastal state for their transit? Can formalities?
the above-mentioned
Furthermore, Article 19 contains ilhstrations wherein passage is prejudicial to peace, territorial sea with out complying with any of
authorization have rested their case on
good order or security of the coastal state. The States which have argued for previous
functional end from that of
the principle that the pausage of warships has different
a
Passage of a foreign ship shall be considered to, be prejudicial to the peace,
of the coastal State's Sovereignty:
merchant ship, and isprimafacle an infringement
good order or security of the coastal State is in the territorial sea it engages in any if passage of warships is tolerated without
authorization, this is no more than
a

of the following activities: concession: those of therm which have actually required previous notification have

(a) any threat or use of force against the sovereignty, territorial integrity or their right to exclude foreign
done so really as a stamp in the direction of asserting
accommodated, and have
political independerice of the coastal State, or in any other manner in violation when their national interest would thereby be
warships of foreign warships in their
of the principles of international law embodied in the Charter of the United been their' case om the argument that the presence thee
Nations; territorial waters could be disturbing to
national security unless the details of
(6) any exercise or practice with weapons of any kind; The States which have claimed an
warships' transit were known in advance,."
this right has in practice been
(c) any act aimed at collecting information to the prejudice of the de fense or unrestricted right of passage have contended that
nations from time immemorial.?
security of the coastal state; exercised for a long period and been recognized by
If it is
(d) any act of propaganda aimed at affecting defense or security for the coastal is a right, it is clear that the coastal state cannot act arbitrarily.
Ifpassage be
State; mere comity, then the coastal state may decide for itself when the right may
on board of any aircraft; withdrawn at the cost merely of being regarded as unfriendly.*
(e) the launching, landing or taking on 1958, and
(. the launching, landing or taking board of any military device; Geneva Convention on the Territorial Sea and the Contiguous Zone,
on the
(8) the loading or unloading of any commodity, currency or persons contrary United Nations Converntion on the Law of the Sea, 1982, do not throw light
to the customs, fiscal, immigration or sanitary laws and regulations of the issue of the right of innocent passage of warship in the territorial sea.
In the absence
becomes
coastal state; of any express conventional provision in this regard, customary law
to this convention;
(h) any act of willful and serious pollution contrary instructive. Unfortunately, cven customary international in the territorial waters.
(1) and fishing activities; The controversy over the passage of warships in the territorial sea was intensified
G) the camying out of research or survey activities; during the Hague Peace Conference in 1907, during hearings of the North Atlantic
communication
(k) any act aimed at interfering with any systems of
or any
other facilities or installations of the coastal state;
Coast Fisheries Arbitration, the United Elihu Root denied the
States agent, Mr
existence of right of passage for warships. Ile observed:
() any other activity not having a direct bearing on passage

Geneva Convention on the Teritorial Sea and Contiguous Zone, 1958 makes
in its Article 14 with the difference that Geneva Convention
analogous provision
does not contain the illustrations wherein passage is prejudicial to peace, good
order or security of the coastal State. The work 'security' was added at the request
Zones Act, 1976 airms of
of India. Section 4, paragraph I ofthe Indian Maritime
the above mentioned position concerning right of innocent passage, of course,
without explaining the words peace, good order or security.
Submarines: Article 20 of the UN Convention on the Law of the Sea stipulates
that in the teritorial sea, submarines and other underwater vehicles are required
is contained
to navigate on the surface and to show their flag. Similar provision
in paragraph 6 of Article 14 of the Geneva Convention on Territorial Sea
and Contiguous Zones,1958. Ilowever, section 4 of the Indian Maritime Zones
Act, 1976, treats submarines and to her underwater vehicles water vehicles may
Warshipa may not pass without consent into this zone (territorial" sea) because they
threaten. Merchant ships may pass because they do not threaten
At the Hague Codification Conference, 1930, Schucking, Chairman ofthe sub-
commitlee, proclaimed the right of passage for all vessels without distinctions.
However, he could not resist to state that it was more natural to doubt the pacific
character of the passage of a large war fleet which enters the territorial sea in a time
of general political tension than in case of an ordinary merchant ship. In the same
22. D.P.O. Connell, The International law ofthe Sea, Vol. I, 1982, p. 274.
23. bid.
24. Ibid.
25. North Atlantie Coast Fisheries Arbitration, Proccedings, 1912, Vol. 11, p. 2006.
26. LON Doc. C. 196. M. 70, 1927, Vol. 1, p. 72.
 250 INTERNATIONAL LAW
LAW OF THE SEA2
breath, he ugzesed that even
of warnhips possess a right of commoa uset in respect
foreign territorial wateri, which India, thus, insists the requiremenl of
on
prior noufication for the pasae
could
reasors of national selfpreervatioa. The not be restricted arbitrarily, but only for foreign warships through Indian territorial sea.
the
by preparatory committee questionnaire addresed to goveramenls
Soviet Union
(whose expresly
laws laid down sought opinions on actively, inchuding the 13.3.3 Breadth of the Territorial Sea
forbid it) while five regulations for passuze but appeared not to
were of the governments replied negatively, inchuding the United The debate of the seventeenth century on mare liberum v mare
opinion that previous
pemisaion of the coastal State, was States, clausum focused
or
before the right of the attention of the world community on a much narrower and more
that submarines passage could be exercised. All of the affirmative required practical issp
territorial sea on the surface. replies indicated
should traverse the of the extent to which nations
In 1949, the might legitimately claim exclusive nights in their
issue arose in the neighbouring seas. It was thought that a State might acquire sovereignty over parts
inter alla,
rgued that warshíps Corfu Channel case " The United
innocent passage through theKingdom,
of the sea, which could be commanded and
ea, which was a
right
hadaright of
territorial
controlled by
Since the basis of the coastal State's claim to a belt of the seaartillery
on the shore.

argued that there wasno fortiori

a in the case of
straits. On the was the
such right either contrary, Albania protection, its extent was supposed to be mcasured by the principle of
straits. In its generally power of the littoral
on the
judgement, International Court of Justice didspecifically
or
in the case of sovereign. In 1737, Bynkershoek translated this idea into a maxim
right of passage of warship not
express an opinion finitur ubi fAinitur armorum vis (the limit of the territorial Terrae postestas
to the case of
straits. through territorial waters. It limited its sovereignty ends where
observations
observutions on the issueHowever
the power of the fire-arms ends. He
of innocent judges,
some in their declared that the territorial domains ofa
since war had been passage of warships.
dissenting views, made extendecd as far as projo iles could be fimed from state
outlawed in the UnitedNations Judge Alvarez felt that of Bynkerslock, cannon on the shore. In the
days
can only be to secure the Charter, the mission of warships range ofa cannon was one marine
legitimate defence of the countries Jessup renuarked that although the league or three nautical miles.3"
Judge Krylov argued form to which
they range of cannon extended much further
Hague Conference that therebelong."
the failure of the the ycars, the three nautical through
right of innocent passage through the mile rule came to be
especially by Great Britain andaccepted
territorial was no maritinve powers, and adopted by the
position of warships in respect of sea" Judge Azevedo saidthat the later
big
passage generally found to be a convenient by the USA. Since it was
ships was
different from that of merchant of coastal States and compromise between the conflicting interests
In the debate the
international community."
of International Law Commission in It is
inportant to note that three nautical miles was not the
allowing the coastal State, to 1995, there was a trend towards limit of territorial waters and
require previous notification or universally
the emphasis varied between
subjecting transit to authorization, although Cause of the
the writers and States
differed on this point. accepted
it in consent and merely
advance Accordingly, the Draft of the International informing of disagrcement
reveuled a new under sea world developments science and technology which
was
in
The root
Was Law Commission, which
prescnted, to the Geneva Conference subjected the innocent of nuan not full of natural resources beyond the
to previous passage of warships
only in sea water but also on the oceanic widest dreams
authorization or notification. Howover, this was layers. It bccanie known to the States floor and in the
that the coAstal State
should, in general, grant innocent qualified byAtthe statement that territorial sea had
inmportance for the coastal States. The coastal underlying
tremendous economic
Conference the States showed difforence of passage. the Geneva in
prolccting as large an area as possible near states, therefore, become interesting
Geneva Convention contains no text on the opinion on this issue and, therefore, Despite strong support of the maritime their shores.
subject of
sea. The
purpose behind such omission is to let warships through the teritorial ot be
accepled as a general rule of power, three nautical miles rule
fact remains that the answer to the sleeping dogs lie. Therefore, the Conferene. There was intemational law at the 1930 l could
issue of passage of dilference lague Codification
depends upon the state of customary law. The warshlps
sea through territorial the International Law of Opinion on this
under the United Nations Convention position remains the same even Commission during 1950-56. In itsissue even in the
debates of
on the Law of the Sea of
1982.
Ausembly the International Law Commission 1956 report to the
General
Section 4, paragraph 2 of the Indian Maritime statcd:
Zones Act, 1976, states the Indian (i) the Commission
standpoint in the following words: recognizes that
regards delimitation of the territorialinternational practice is not uniform as
(i) the Commission considers that sea;
Poreign warships including submarines and other underwater vehicles
pass through the territorial waters aler may enter or of the territorial sea intemational law does not permit an
giving prior nolice to the central government. beyond 12 nautical miles extension
(ii) the Commission without
27. sca up to that taking any decision as to the breath to the territorial
Corfu Channel case, ICJ Rep., 1949, p. 4 limit, notes, on the
28. 1bid, p. 47. brcadth greater than 3 nautical one hand, that many States have fixed a
29. Ibid., p. 74. do not miles and on the other hand that
30. Ibid., p. 98.
recognize such a breadth when that of their many States
territorial sea is less.
31. Yearbook of Internallonal Law Commission, 1955-1, 143. 31(u).I nautical mile is equal to 1.15 miles.
p. 32. Jessup, The Law
of Tarrltorlal Waters and Maritime
Jurisdiction, 1927.
 253
LAW OF THE SEA
252 INTERNATIONAL LAw Constitution, extends
by of Article 73 of the
virtue
executive power of the Union, make laws. In
exericise
to which Parliament has the power to
At the eve of the first United Nations Conference on the Law of the Sea at to matter with respect laws. In exercise of the
said
Geneva, States differed one the issue of the breadth of territorial sea. The dilference the President has the power to make in which it
of the said power, a Proclamation
on 22 March 1956,
of opinion varied from 3 nautical miles-to-six to twelve-to-two hundred nautica power, the
President of India issued,

miles. It was against this confuséd background that

an
attempt
was made at the was declared:
First United Nations Conference on the Law of the Sea at Geneva to establish the the contrary which may
have been
of law or practice to
limit of the territorial sea. Amidst divergent opinions, First United Nations Notwithstanding any ule thereof, the territorial
waters of
in relation no India or any pert
observed in the past measured from the
Conference failed to settle the issue of the breadth of territorial waters. Accordingly, to a distance of
six nautical miles
makes no India extend into the sea
Geneva Convention on Territorial Sea and Contiguous Zone of 1958 appropriate baseline.
mention of the almost of the territorial sea.
declaration implicitly
was held in 1960
The Second United Nations Conference on the Law of the sea
above-mentioned
here that the issuance of the said
at Geneva with a view to makinga further attempt to gain agreement on the subject. It may be mentioned maritime belt until the
that India had a three mile extend into the sea
made by Canada and United recognized territorial waters of India
This time numerous proposals were made. The proposal Proclamation, which declared
that the
baseline. In 1976,
Conference. It was made on the appropriate
States was Favored by many States participating in the nautical miles measured from
to a distance of 12 Economic Zone and
other
was that a statc would be Exclusive
8 April 1960 in an attermpt at compromise. This proposal the Territorial Waters,
Continental Shelf, clear
its territorial sea extending to
a
3, paragraph 2 of the Act makes it
entitled to establish a fishing zone contiguous to Maritime Zones Act was passed.
Section
from the baseline from which the breadth waters is the line every point
of which is at a distance
maximum limit of twelve nautical miles territorial
that the limit of the baseline. Paragaph
which it would have the same rights in respect from the nearest point of the appropriate
of the territorial sea was measured, in of twelve nautical miles notification
its the central govemment to alter, by
resources of the sea as it
had in
of fishing and the exploitation of the living 3 of Section 3 of the Act empowers considers
obtain the required two thirds waters whenever it
The proposal failed by one vote to Gazette, the limit of the territorial
territorial sea. Conference thus closed without
g been successful in the Official
to international law
and State practice. This
majority. The second Geneva so to do having regard
necessary the sea was in a process
in establishing the breadth of
the territorial sea. in view of the fact that law of
settled the issue of provision is understandable on the Law of the
Sea
Conference on the Law of the Sea United Nations Conference
The Third United Nations miles of development at the Third
territorial waters at its early stages in favour of twelve nautical
the breadth of of proposals
when the Conference was convened, majority
territorial sea. However, indicative
sea omitted
reference to its breadth," which was
concerning the territorial twelve nautical miles. In fact,
at least ofa desire to press this beyond
in some c a s s
another for a 50 nautical miles"
one proposal was
fora 200 nautical miles* and position that
United States adopted the negotiating
territorial sea. Although the state to recognize

FINLAND
that international law required any
three nautical miles was the
most

agrecement by treaty,
the position of the maritime power
in the absence for general submitted to the
in favour of twelve nautical miles by drafts
was foreclosed
and the Eastern European bloc.*
A

Conference by the United Kingdom

1982 places the
Convention on the Law of the Sea,
Finally, United Nations waters at 12
things beyond all doubts by
unequivocally fixing of territorial has the
the limit
Convention provides that every State right
nautical miles. Arnicles 3 of the
territorial to a limits not exceeding 12 nautical
sea up
to
breadth
establish the of its accordance with this Convention.
miles, measured from baseline determined in
Constitution of India does not make
As far as Indian position is concermed, the
the legislative
this recgard. The territorial waters of India are within
any provision in
Parliament. In the absence of Parliamentary legislation, the
competence for the

188, 190: India, Spain, Dangladesh,

33 UNCLos 11, Omcial Records, Vol. I1, pp. 187,
Turkey, and the Pour Archipelagic States
34 Ibid, Ecuador, p 189.
Geographical Configuration of Norwegian Coast
35. bid, Nigera, p. 190
6. Ibid, pp 183, 203, Greece also.
254 NTERNATIONAL LAW LAW OF THE SEA
255
when the lndian Act was
passed in 1976. Thus, Indian
with the new dimensions in position is in consonance bya long usage. In other words, the Court utilized history to establish social and
intemational law. economic faciors in determining the legality of the straight baseline system. The
Court relicd upon history in two ways: first, to vindicate, partly through Norwegian
133.4 Measurement of the Terrltorlal Sea history, the existence of the standard nules (straight baseline system) and herethe
It well settled that normal
is Court was employing an ordinary method for the particular application of the
baseline is the low water line. Article 5 of the United
Nations Convention on the Law of standard rules (straight baseline system) in the Norwegian case by recognizing that
the Sea,
measuring breadth of the territorial sea is1982,
the
states that the normal baseline for
the low water line of the coastal State. the local ahemmen had for a long time exarcised a fishing monopoly upon which
An
analogous provision in the Geneva Convention on the social stnucture had come to depend. History here played the role of intellectual
Zone of 1958 is Article 3. Territorial Sen and Contiguous reinforcenent compelling a particular judgement. In the present case,
In certain case where
the coastline is
Norway
unusually complicated by the existence of appliod the straight baseline system conaiatontly and without intermuption for a long
skjaergaard, multiple boys and ofThore features, timo (since 1869) until the time tho dispute arose between
depart from that standard and to link the so that the interface of
land and to Norway and United
which the temitorial sea is drawn. In outermost baselinos by straight lines îrom Kingdom. Furthermore, the inhabitants of the Norwegian coast depended for their
1951, Intemational Court of living on lahing in Norwegian téritorial sea measured from straight baseline from
sanction to such a system In Justice
gave
Anglo-Norwegian Fisheries case. The case involvos judicial time immemorial.
a
dispute between United Kingdom and Norway brought before International Court The cconomic factor played a role in three contexts of
of Justiceby the United Kingdom in 1949. the judgement in the
Norway has a coast of complex Anglo-Norwegian Flsheries case: firatly in reference to the fact that the inhabitants
and cut into. There is also a geographical configuration, It is deeply indonted of Norway derived their livelihood
essentially from flshing; secondly, in roferenco
immediate vicinity. fringe islands (skjacrgaard) along tho
of to tlhe roality and
importance of economic interests
coast in its linking the oconomic and historio fictors; and beinginevidenced by long usage
Norwegian government issued a decree in 1935, which rights of lshing. thirdly reference to traditional
northem territorial waters on the delimited Norway's
basis of straight baselines drawn What matters for the determination
(skjaergaard) which line the coast. In along
seaward points on the islands the most of the legality of
1948, Norway the cumulative cffect of straight baseline system is
decided to enforce the Royal Decree. In 1949, Unitcd determinants must be lookedgcographic, historic and economic interests. These three
to International Court of
Justico Kingdom subnitted the matter at
cumulatively and not individually,
baseline to be actual low water contending that international law required the Court of Justice has demonstrated in Intçmational
It is
line.
pertinent to mention here that straight baseline
Anglo-Norwegian
adoption of atraight baseline syatcm by Norway Fisheries case that thhe
appropriate points on outemost islands system consists in choosing three doterminants. was
justifled by the above-mentioned
and then In the
straight lines by following the general direction of thejoining those points by drawing
coast (not all the
Judgement, there
coastal Stato, In tho
is strong
omphasis'upon the legitimate interests of the
International Court of Justice held that in tho normal sinuousities). process, the Court has attached considerable
coast the low-water line is considerations. The judgement ia a value to
the baseline. However, the Court
glaring cxample of the activism of the social
geographic, economic, and historicjustiled,atraight baseline system on the basis of
considerations.
Court of Justice.
The julgement of the
International
On geographiç
considerations, the court statod that if the geographical character Intemational Court of
of the coast is such that it is case has
oormously inluenced Justice in Anglo-Nonvegian Flsherles
intemational legislative process.
deeply indentod and cut into and is surrounded a Genova Convontion
fringe of islands along the coast in its immodiate by
vicinity s0 that these apperlain to Into six paragraphs, on Terrilorial Sea and Contiguous Zone, 1958, Article 4 of the
of tho principal criteriaalthough divided
the land territory and can be is a faithful
treatod as part tho land oxprquslon
International Court of Justice in the
mcasuring territorial sca may be drawn by choosing territory, then bascline for adopted by the
Convention on the Law of the Sea,Anglo-Norweglan Flsherlus case. United Nations
islands and joining those points appropriate points on theso
by stralght lines following the goneral direction of 1982, aleo contains the
the coast. The Court held that Norweglan Plshers case. Article 7 of the ruling of the Anglo
Norwegian coavt hus peculiar Convention pruvidos:
so as to
justify the adoption of straight baseline systom by geographical character 1. In loculities where the coastline is
Economic and historic consideration were linked Norway.
Court of Justice in order to together by the International a
Sringe of islands along the coastdeoply
in ita
indented and cut into, or
if there is
The Court held that
justify the adoption of straight bascline system by
Norway. straight baselince joining approprlate imunediate vicinity, the method of
straight baseline system must be warranted by certain economic the baveline from which points may be
the breaduh of the territoriul enployed in drawing
interests peculiar to region, the reality and 2.
importance of which are clearly
evidence Where because of the acu is
presonce of a delta und other naturul
mmcasured.
coustline is highly unatuble, the appropriate conditions the
37.
urthest scaward extent of the low points may bo selocted ulong the
Anglo-Norweglan Flsherles case, ICJ Rep., 1951, p. 116. water line und
regrewwion of the low water lIno, the straight notwithstanding subsequent
until ehunged by the bpuolinos shall
coastal State in accordance with this remain effective
convention.
256 INTERNATIONAL LAW

LAW OF HE SEA 257

3. The drawing of straight baselines must not
of the coast, anddepart
from the general direction to any the North Corfu Channel, IIMS Saumart and IMS »lage, struck mines which
the ses areasappreciable
extent
lines must be lying within the had been laid, and as a result forty four oflicers and men lost their lives, forty-two
sufficiently
the regime of intemal closely linked to the land domain to he offticers and nien were injured, and scrious damage was caused to the two ships.
4.
waters. subject to Thereancr, on 12 and 13 Novenber UK resorted to nuineaweeping operation in
Straight baselines shall not be drawn to and from the Corfu Channel. Albania protestcd. Asa reault ofminesweeping operation, 22
lighthouse or similar installations which are low tide elevations, unless moorcd mines were detected. The minexwecping operation also established that
have been built on them or permanently above sea level
except in instances where the drawing the mines had been laid only a very short time before the incident. United Kingdom
to and from such
elevations has received of baselines refcrred the mntter to Internationnl Court of Justice, contending in its Memorial
5. Where the method of general international recognitlon.
straight baselines is applicable
under paragraph that the Albanian Clovernment hadd either caused to be laid, connived al, or had
account may be taken in
determining particular baselines, of economic l knowledge of the Iaying of minex in its tcrritorial waters in the stroit of Corfu,
peculiar to the interents
region concemed, the reality and the importanee of which which was part of an international highway used to the knowledgo of the Albanian
were are clearly evidenced by long usage. govt. by lhe shipping of other States; that even if the Corfu Channel was not a
such
6. The system of straight baselines may not lhighway, a State wus not entitled to lay or pcrmit the existence of an unknowwn
be applied by aState in auch a and
manner as to cut off the teritorial sea of another State from the high aeasor
minefield in its territorial waters, both generally under international law under
an exclusive economic zone. llague Convention No. VIll of 1907. In its counter memorial, Albania stated that
It is pertinent
to note that the
the Corfu Channel was minor route, and therefore not a
legally strait. It pointed out
concept of general direction of the coast is a that the North Channel constituted the frontier between Albanla and Oreece and
matter of appreciation and cannot be that the important clement in the afTair was the fact that the Oreek Oovemment
applied mathematically. In fact, International
Court of Justice used the word 'appreciably' in regarded itselfus being in a state of war with Albania. Passage of foreign ships, and
suggesting how fur departure
from the general direction of the coast would bear upon the legality in partieular warships, through the atrait in those circumstances not did constitute
of any specifle
system. merely a question of liberty of pas8ngo, but should be considered in relation to the
problem of national security. Albania had informed the British government that it
required to be notiled of the passage of British warships. This had not been done
13.3.5 Dellmltatlon of the Territorlal Sea between States with in case of the attempted passage of the British Squardron of 22 October 1946.
Opposlte or Adjacent Coasts Albania contended that this was not innocent passage but a case of offensive
passage.
The relevant issue before International Court of Justice was detenination of
The provision ofthe UN Convention on the Law of the Sea concerning delimitation
22 Court it
of the territorial sea repeats Geneva formula. Article 15 of the UN Conventlon on the legality of the Royal Navy's pasage on
Oclober. The held that
was
the Law of the Seu provides: generally recognized and in nccocdanco with international custom that States in
tineofpeace have a right to scnd their warahips straits
through for
used international
Where the coasts of two states are ncither of tho
opposite or adjacent to ench other, navigation between two parts of the high acna without the previous authorization of
a coastal Stnde, provided that the paasage is innocent. Unless otherwise
two states is entitled, falling agrecment between them to the contrary,
to cxlond ite
in international convention, there is no right for a coastal State to prohibit such
preacribed
territorial sea beyond the median line every point of which is cquidiatant rom the
nearest points on the baselines from which the breadth of the
terrltorial seu of euch of passage through straita in time of pence.
where it i The Court then took up the issue of determining whether Corfu Channel was a
the two states ls measured. The above provlalon docs not apply, however,
or other special circumstances to delimlt tho
necessary by reason of historlc tltle strait and wlhether, aupposing it was, the pasnago of was in circumstances
warships the
thercwith.
territorial seus of the two states in a way which ls at varlance innocent. As regarda definition ofstrait, the
Court that the
stated deciaive criterion
was the geographical situation of the strait as connecting two parts of the high seas,
coupled with the fnct that it wns actually used for intemational navigation. According
13.4 PASSAGE THROUGH INTERNATIONAL STRAITS
to the Court, to be a strait, a channel need not bo a necessary route between two
strait is passage connecting of the
two sections
parts of the high seas. The Corfu Channel constituted an altemative passage which
of geography, a narrow
In terms
following discussion will reveal that legal concept ofstralts
high seas. However, the was a route for international maritime trafMc and this was sufficient.
is different. On the issue of innocent passage of warships, the Court expressed its opinion
The concept ofstraits was given judiclal expression
in the Corfu Channel case." that, in the circumatances which existed, namely that Greece had made territorial
The case involves a dispute between United Kingdom
and Albania. On 22 October claims on Albanian teritory bordeming on the Channel and had declared that she
1949, two units of United Kingdom's Royal Navy Squadron proceeding
through considered herself technically in a state of war with Albania,
and that Albania, in
view of the danger of Greck incursion, had considered it necessary to take certain
38. Corfu Channel case, ICI Rep., 1949, p. 1.
 258 INTERNATIONAL LAW LAW OF THE SEA 259

measures of vigilance in this region. Albania, in view of these cxccptional through international straits is concerned by ignoring the requirement of the
as a route for intemational
maritime trallic. Actual user of
circumslances would have been usefulness of the strait
justifled in issuing
passage of warships through the strait, but not in regulations respect
in of the as sulicient in Article 16(4). It may
prohibiting such passage or in the strait for international navigation is treated
subjecting it to the requirement of special authorization. restrictive right of the coastal state to
The Court,
however, be noted that even under such a
thereaner, turned to the refuse passage, it has still got a wide discretion and, of course, an authority at least
observed: question of innocence of passage and
innocent or not.
in the first instance, to decide whether a passage is
It is ahown The oxtension of the limit of teritorial sca to 12 nautical miles in the United
by evidence that the ships were not Nations Convention on the Law of Sea has made I16 straits as part of the territorial
in line, one afler the
other procceding in combat fornation but
Their movements were duethey manoeuvring until after the first explosion. sca subject to coastal State jurisdiction. These include such important waterways
were not
to the
save human lifo and the explosions and were made necessary in order to as the Dover strait, Gibraller strait, the Bering straits and the Malacca Straits. The
mined ships maritime powers were conscious of this fact at the Third United Nations Conference
The Court did on the Law ofthe Sea. On 23 May 1970, President ofthe United States
emphasized
not regard
the Royal Navy's motive in negating the innocence of the passage the fact that
as
the need for a treaty establishing 12-mile limit for the territorial sea and free transit
1946 was to clarily whether sending
the ships through the straits on 22 October
the Albanian through international straits. On 3 August 1971, USA introduced in sub Committee
again impose its view by Mringgovernnient
attitude, and would maintain its illegal ll of the UN Seabed Committee which contained a set of Draft Articles on the
on passing
ad been elicited from Albania ships, since no guarantee breadth of territorial sea, straits and fisheries. In these Draft Articles, United States
by diplomatic means. In the
passage rendered non-innocent by the fact that theopinion
nor was tho of the Court,
stated that in straits used for international navigation between one part of the high
stations ready to retaliate qulckly if fired ships were at action
upon. Their were in a normal seas and another part of the high seas or the territorial sea of the foreign State, all
position, main armament being in the lino of the slhip guns
und anti-aircraft guns
stowage ships and aircral in transit shall enjoy the same freedom ofnavigation and overflight
outwards and up into the air. pointing
The Court viewed the theyhuveall on the and
astransit high seas. Coastal State may designate corridors suitablo for
minesweeping
different light. The United Kingdom hadoperationto
on 12 and 13 November in
a
by ships aircrat through and over such straits, where particular
sought justify the operation on the channcls of navigation are customarily employed by ships in transit, the corridors
ground extreme urgency, but the Cort could not accept sucha line of
of should include such channels. The United States concluded that
any agreement on
and held hat such defence
operations were not justified under international law. The Court its part to a twelve mile territorial sea would be conditional
upon acceptance of the
regarded tho minesweeping operalion as intorvention amounting to manifestation concept of high seas passage' for straits. However, while insisting on the
ofa policy of force. free transit, United States showed its right
of

The willingness to accept and observe reasonable

Corfu Channel case established two propositions: firstly, warships have a tralic safety and marine pollution
regulations of the coastal States. Soviet Union
right to innocent passage through intemational straits, apparently and United Kingdom also
in times of supported the stand taken by United States.
undeclared war as well as in The smaller countries bordering straits, on the other
peacetime; not all straits linking two parts of the high of free transit passage' instead of
hand, rejected the right
seas are international straits but only those which are important as communication "innocent passage' in the straits used for inter-
links national navigation. Freedom of the
seas, they argued, could not be permitted
In its 1956 draît, Intermational Law Commission recommended that to impuir the fundamental
there must
self presorvation."
principle of national sovereignty and inherent right of
be no suspension of the innocent passage of
foreign ships through straits normally Articles 34-35 of the United Nations Convention on the Law
used for internatíonal navigation between two parts the high seas. Article
of 16(4) doul with regimo of straits. Article 34 of the
of the Sea, 1982,
of the Geneva Convention on the Terrltorial Sea and Convention makes it clear that regime
Contiguous Zone, 1958, of passage through straits used for
provides that there shall be no suspension of innocent passage through straits which intermational navigation shall not in other respects
affect the status of the walers
are wed for international navigation between one part of the high seas and another
over them.
of straits,or the exercise of sovereignty or jurisdiction
part of the high seas or the territorial sea ofa foreign State. The Aticle was adopted
Article 37 of the United Nations Convention on the Law of
at the First United Nations Conference on the Law of the Sea at Geneva on the the Sea restricts
itself only to straits used for international
basis of a proposal jointly made by Netherlands, Portugal and United Kingdom. It
scas or on Exclusivo Economic Zone
navigation between one area of the high
is worth noticing that Article 16(4) deletes the word"normally' from the (hereinafter referred as
such area. Article 36 of the Convention excludes such straits EEZ)
and another
Commission's draft on an amendment proposed by USA. The objective of the when a high seas
route or a route through an EEZ of similar
convenience, with
and hydrographical exists through the strait. Article 38 of the respect navigational
amendment is to ensure passage through straits which are actually used for to

intemational navigation and to avoid friction over the concept of normal use. Article Convention proclaims
16(4) has made the ruling of Corfu Channel case more liberal insofar as passage 39. Maluysia, Morocco, Oman and Yemen, UNCLOS II, OMcial Records, p. 194.
260 INTERNATICONAL. LAW
LAW OF THE SEA 261

a right of transit passage which is not to be impeded, provided that the United
right would zone was fully recognized in the First
be exercised solely for the purpose of continuous and Therealer, the concept ofcontiguous Geneva
strait or to a State
expeditious transit through a Nations Conference on the Law of the Sea at Geneva. Article 24 of the
bordering
astrait. Any activity which is not an exercise of the Convention on the Territorial Sea and the Contiguous Zone, 1958,
contains the
right of transit passage would fall under other provisions. concept of contiguous zone. It is unequivocally
stated in this Article that in a zone
United Nations Convention on the Law of Sea empowers strait States to make of the high scas contiguous to its territorial ses, the coastal
State may exercise the
non-discriminatory laws and regulations for the safety of navigation and regulation control necessary to prevent infringement of its customs, fiscal, immigration
or

of traffic. Ships in transit are bound to comply with such laws and of the above
regulation sanitary regulations within its teritory sea; and punish infringement
and riparian sea. It is further provided
are bound not to hamper passage."
States regulations committed within its territory or territorial
miles from the baseline from
it may be mentioned that in the Geneva Convention on that contiguous zone may not extend beyond twelve
the
As concluding remark,
a
Sca and Contiguous Zone, the criterion is one ofmere usnge which the breadth of the territorial is measured. An analogous provision of the
Territorial whereas
in the UN Convention on the Law of the Sea, there is a modest retreat from this United Nations Convention on the Law
sea

Sea, 1982 is Article 33 which provides

of the
position. Under UN Convention on the Law of the Sea, usagc is suficient, but not as follows:
if an equally convenient high seas route or routes through the EEZ cxists through 1. In a zone contiguous to its
territorial sea, described as the contiguous
zone,
the strait. For example, transit through 12 mile
the sea in
territorial the IDenmark the coastal State may exercisc the control necessary
to:
strait would be merely innocent passage, because free transit is available in the
EEZ parts of that strait. Diversion to a route, even if equally convenient, other than immigration or sanitary laws
would be
(a) prevent infringement of its custoims, fiscal,
the strait would not be required. This means that the strait of Messina and regulations within its territory or territorial sea;
another route commited within
of the above laws and regulations
subject to transit passage and not to innocent passage, even though (b) punish infringement
around is available. "Transit passage' through straits difers ftom 'high
Sicily its territory or territorial sea.

as well as innocent passage in so far as quality

of the right is concerned. 24 nautical miles from the baseline
passage because the liberty 2. The contiguous zone may extend beyond
Transit passage' through straits is neither 'high seas passago', from which the breadth of the territorial sea is
measured.
as in the high seas, nor "innocent
of choice as to route and behaviour is not as great Convention
than it is in the territorial sea. UN 1958 and United Nations
passage, because that liberty is greater The difference between Geneva Convention of
unequivocally prohibits the suspension of transit passage the words 'of the high
on the Law of the Sea
of Convention of 1982 is that the latter Convention deletes
coastal State may suspend innocent passage nautical miles instead of twelve
through straits (Article 44) whereas is essential for the protection seas' and fixed the limit of contiguous zone at 24
the foreign ships in he territorial sea if such suspension miles prescribed by the former Convention.
exercises 25 (3)]. In fact, 'transit passage
[Article coastal States
ofits security, including weapons Both the Conventions make it clear that in the contiguous zone,
seas passage' and
'innocent passage. certain purposes. The
lies in between 'high have right to exercise preventive or protective control for
that of the territorial sea. Unlike
juridical nature of this zone is quite distinct from
territorial sea, coastal States do not exercise sovereignty in the contiguous
zone.
13.5 CONTIGUOUS ZONE
Furthermore, it is worth noticing that security coastal State does not figure as
of the
is a fairly ancient practicc. Ita first
The establishment of a contiguous zone
one of the purposes of the contiguous zone. As regards
the non-inclusion of the
actual of the territorial sea was
manifestations appeared even before the concept
the International term 'security' among the purposes of the contiguous zone,
International Law
its acceptance as a concept in stated:
defined and accepted. However, a Commission (before First United Nations Conference on the Law ofthe Sea)
The concept of contiguous zone developed as
Law of the Sea is relatively
new.
of all its
the coastal State to ensure effective protection It
result of the inability of The Commission did not recognize, special security rights in the contiguous zone.
interests due to the limited
breadth of the teritorial sea. considercd that the extreme vagueness of the term 'security' would open the way for
Codification Conference
was discussed at the Hague abuses and that granting of such rights was not necessary. The enforcement offcustoms
The issue contiguous zone
of regarding the nature of interents cases to safeguard the security of
in 1930. Through there
was diversity of opinion
of the zone, the concept as and sanitary regulations will be suMcient in most threat
to protect and the width the State. Insofar as measures of self-defence against an imminent and direct
that this zone was designed who represented there. to the security of the State are concerned, the Commisslon refere to the general
such was accepted as lawful bya big
majority of States
principles of the international law and the Charter of the United Nations."
42 and
United Nations Convention on the Law of the Sea, 1982, Articles 39, 40, 41,
40.
43.
41. Tbid., Article 42 (4). 43. UN Doc. A/3159, pp. 3940.
42. Ibid., Article 44.
 LAW OF THE SEA
262 INTLRNATIONAL LAW
contained in sub-section (1), the central govera
Indian Positlon 2. Notwitlistanding anything
so to do having regard to international
nay, wlhencver it considers necessary
On 3 December in the Official Gazette, the limit of
1956, President of India isaucd u luw und States practice, alter by notification
adopteda iwelvp milc contiguous zone for the proclamation wlhercin lndiu the contiguous zoi«.
purposCs of customs und Kunitary
regulatios,
Indian
A the Caracas scasion of UNCLOS
I in 1974, the leuder of the 3. No otilication shall be issued under
sub-section (2) unlcss resolution approving2

of a
de legution,
while making policy statement declarcd
a
that lndiu was in favour the issuc of such notification is passed by
both louses of Parliament.
contiguous zAvne of cighteen miles outsidc the tcrritorial seo, i.c. un area of 4. The central govern1nent may exercisc such powers
and take ineasures in or in
thirty milea in totul under with respect too
the control ufthe coastul State
for prevciting or relution to the contiguous zone as it nay consider neccssary
the infringement of customa, iscal, imunigration and sunitary punishing
the malter came up for detailcd discussion in the Sccond regulations." When (a) the security of lndia, and
mI, many delegations Comnittee of UNCLOS fiscal
(b) immigration, sanitation, customs and other
matters.
territorlal sca and 200expressed
the view that the
miles econoinle zone would acceplance of a twelve
milcs
contiguous zone superluous."" But India lnsisted render thc concept of the 3. The central govermment may, by notification in the Ofmicial Gazette
thut there was enough
to retain the
concept as it was not definite whether the justificution
zone would confer concept of cxclusive cconomic (u) cxtend with such restrictions and modification as it thinks fit, any enactment,
special jurisdiction on coastal States to prevent rclating to any matter referred to in clause (a) or clause (b)
of sub-section
customs, fiscal, imnigration, and infringement of
different Srom, but inot sunitary regulations. Since this concept was (4), for the time being in force in India or any part thereof, to the contiguous
incompatible with, the concepts of territorial sea and one, and
economic zone, it should be retained.* India was exclusive
Though Jagota of India declared 30 miles (12 + 18)supported by many delegations." (b) makc such provisions as it may consider necessary in such notification for
aproposal was introduced by India along with someof contiguous zone us desirable, facilitating the enforcement of such enactment,
other States at Caracas without
mentloning a limit for it." The blank space and any enactment so extended shall have effect as if the contiguous zone is a part
zone indicated that though some other Statesrcgarding
the limit of the contiguous
shared India's belief in the retention of the territory of India.'
of the concept, tlhey could not agrce upon the limit." There was a valid reason for
India's insistence on the relention of There are iwo noticeable points, namely: First, Indiahas
accepted 24 nautical
contiguous zonc. Smuggling betwcen India miles as limit of the contiguous zone: and secondly, the Act mentions one more
and the Middle ast has increased Mcld in which the government claims control in the contiguous zone, i.e. the security
treniendously during the 1960s. The lndian
governnent found itself helplcss to check such unlawful activitics bcyond twelve of India. The inclusion of 'security' amongst the purposes of the contiguous zone
miles. Even when it declared a territorial sea of 12 mil in 1967, it was not widens the authority of the Indian government over foreign ships in the outer twelve
to stop snuggling. So, it wanted an area of 30 niles
enouglh miles of contiguous zone.
along its coast to cffectively
curb smuggling. As a concluding remark, it may be mentioned that India's strong support to the
Finally, in 1976, India passcd Maritinme Zones Act. Section 5 ofthe Act provides concept of contiguous zone is responsible for the inclusion of the concept in the
as follows: United Nations Convention on the Law of the Sea, 1982. If India had not strongly
supported the concept of contiguous zone, perhaps the concept would not have
found its place in the Convention.
Contiguous Zone of Indla
1. The contiguous zone of India (hereinafter referred to as the contiguous zonc) is
13.6 CONTINENTAL SHELF
an area beyond
and adjacent to the territorial waters and the limit ofthe contiguous
zone is the line every point of which is at a distance of twenty-four nautical 13.6.1 Geologlcal Concept
miles from the nearest point of the baseline referred to in sub-section (2) of
Every country bordering sea has a continental shelf. Geologists and geographers
section 3.
generally use the term 'continental shelf to mean the submarine extension of the
44. Ookhale (India), UNCLOS III, OMcial Records, Vol. I, p. 96. continent outward into the sea. n other words, geographical meaning of
the
El Salvudor, Lebanon,
45. Mexico, lsrael, Kenya, Algeria, United Ropublic of Cummeroon, continental shelfis extensionoftheland teritory beneath sea (submerged landmass).
Tbid., Vol. I1, pp. 121-22. The geological configuration of the landmass beneath seawaters is shown the in
S.P. Jagote (India), Ibid., p. 121. ngure.
Ibicd., pp. 121-22.
47. Indonesia, Egypt, Iraq, Bahrain, and Nigeria, Two foatures of the submarine area identisied by geologists are: 'continental
48. UN Doc.A/CONF 82/C. 2/L. 78.
1976: lts Implication in International Law, slope' and 'continental rise'. The steeper fall-off of the seabed towards abyssal
49. Rama Puri, 'Indian Maritime Zones Act,
Law, 19, 1979, p. 319 at 328.
Indian Journal International
of
 264 NTERNATIONAL. LAW SEA 265
LAWOF THE
shelf. Some
depths beginning from the outer edge of the shelf is known as the continental slope; the issue of the limit of continental
States, but the States differed on the whole shelf,
standard while others claimed
that continuingoutwardis, the continental rise whose fall-off to the abynol depths States used the isobath limitation
countries deliberately
the Latin American
is less steep. 'Shelf*, 'slope' and 'rise' constitute the continental
margin.0 It may irrespective of depth. Some of
misconstrued the proclamation to suit
the exigencies of their own geographical
not be out of to mention here that some States have vast continental shelf
place
whercas some have no continental shelf at al. United States, West lermany, situation. Chile, Ecuador and Peru
claimed sovereignty over the
seabed up to 200
configuration.
of water depth or any continental margin
Indonesia, Australia and India have vast continental shel. nautical miles, irrespective

Shelf, 1958-To lend legal

the Continental
13.6.2.2 Geneva Conventlon on
Commission considered the topic of
13.6.2 Legal Concept sanctity to the situation, International Law International Law
work done by the
shelf and on the basis of the Geneva
Historical Perspective-The real catalyst continental Law ofthe Sea adopted
13.6.2.1 for the
contenporary Commission, First United
Nations Conference on the
developments on continental shelf was the historic Truman Proclamation off 28th Convention on the Continental
Shelf in 1958.
September, 1945 whereby the President of the United States claimed jurlsdiction
water depth. coastal
and control over the natural resources of the subsoil up to 200 meters
Article 2 ofthe Geneva
Convention makes it clear that
This proclamationwas legally in the sense that it created the two
significant (i) Nature ofRighis: over the continental shelf for the purpose of
State has exclusive sovereign rights State does not explore
precedents: its natural resources. Ifthe coastal
exploring it and exploiting one máy
undertake these
of the its natural resources, no
(a) firstly, the continental shelf was regarded as a natural prolongation the continental shelf or exploit without the express
consent of

of the coastal State; and activities, or make a claim to the

continental shelf, other non-living
landmass of the mineral and
delimited for legal purposes by specifte
a consist
the coastal State. The natural
resources

(b) secondly, the continental shelfwas seabed and subsoil together

with living organisms belonging
to
r e s o u r c e s of the cither
water depth. which, at the harvestable stage,
to say organisms
sedentary species, that is move except in
constant
or are unable to
or under the scabed
are immobile on
the seabed or the subsolI.
physical contact with Shelf makes it clear that
Convention on the Continental
LANO Article 3 of the Geneva not affect the legal
status
coastal State over the continental shelf do
SHELF the rights of the
of the superjacent waters as high seas or that of the airspace
above those waters.
the superjacent waters of the
not have right to fish in
Therefore, coastal State does
continental shelf.

ENT Limit: Article I of the Geneva

Convention on Continental Shelf explains
that
(i) submarine areas adjacent
Continental Shelf° refers to the scabed and subsoil ofthe
territorial sea, to a depth of 200
metres or,
of the
RISE to the coast but outside the arca
of the superjacent waters admits of exploitation
beyond that limit, to where the depth
arcas. Thus, a coastal
State can either use 200
ABYSSAL DEPTHS of the natural resources of the sald
far out as technology permits exploitation.
metre isobath or extend its jurisdiction as
200 metre
contains two alternative tests namely,
Geneva concept ofcontinentnl shelf mention.
These two alternative tests need special
cONTINENTAL MARGIN SHELF
8LOPE mSE
isobath 'or' exploitative capacity'.

test is inequitable inasmuch as it

of Continental Shelf Isobath or Depth Test: 'lsobath' or 'depth'
Geological Configuration of the submarine area, thereby causing
bestows on coastal States unequal portions shelves
proclamations by other
States. virtue ofthe fact that all continental
floodgates ofsimilar unjustifiable inequality. This is so by the legal regulation of geological
Truman Proclamation opened and control over submarinc width. Consequently,
are not uniform in area or
States had legislated
to jurisdiction
claim metre depth has
By 1958, 27 from adjacent
countries.
shelf through instrumentality of 200
to their coasts
and there were no protests of concept of the continental
areas adjacent
received general recognition in the practice failed toproduce cquitable solution.
continental shelf
The concept of that
belicve
as some
scientists
is also inequitable as it favours industrialized
is not ftree from controversy Exploitubility' Test: This test
50. This geological concept
constitute the margin.
only 'shelf and 'slope'
266 NTERNATIONAL LAW LAW OF THE SEA
267
States. Iriah fornula and Biscuit formula found incorporation In Article 76 of the Unite
During 1960s science and technology developed to the exlend that the
exploitation of deep seabed becane possible. Therefore, the extent of the Natlons Convention on the Law of the Sea of 1982. Article 76 of the Convention
continental shelfbecame endless for the industrialized delnes continental shelf as follows:
tilted the scales highly in favour of States. The test, therelore,
industrialized Stutes insofar as delemvination . The continental shelf of a coastal State comprisesthe seabed und subsoil of
the extent of continental shelf
is conccrned. Furthermore, the test of the submarine areas that extend beyond its teritorial sea throughout the natural
"technological capacity' of the coastal State is too ambiguous u test. prolongation of its land territory to the outer edgo of the continental margin,
13.6.2.3 or to u distanco of 200 nautical miles from the buselines from which breadth
United Nations Conventlon on the Law ofthe Soa, 1982-Articles 76-
85 of the United Nations of the territorial sea is measured where the outer edge of the continental
Convention on the Law of the Sea constitute
continental shelf. reginme of murgin does not extend up to that distance.
2. The continental shelf off a coastal State shall not extend beyond the limits
(i) Nature of Rights: On the issue of nature of providcd for in paragraphs 4 to 6.
the Sea does not make rights, UN Convention on the Law of 3. The continental margin comprises the submerged prolongation of the mass
Convention
changes in the Geneva concept of 1958. In this regard, UN
on the Law of the
Sea also of the coastal State, and consists of the seabed and subsoil of the shelf, the
exploitation beyond the 200-mile limit. provides
for revenuc sharing in
respect of slope and the rise. It does not include the deep ocean floor with its oceanic
Article 82 of the Convention states that the
coastal State would make ridges or the subsoil thereof.
payment or contributions in kind in respect of the
cxploitation of the non-living natural resources of the continental shelfr beyond 200 4. (a) For the purposes ofthis Convention, the coastal State shall establish the
nautical miles. These would be made Ouler edge of the continental margin wlherever the margin extenda beyond
site aner the first five years annually with respect to all production at a
of production at that site. For the sixth the rutcof 200 nautical miles from the baselines from which the breadth of the
payment or contribution would be one percent of the value or voluneyear, of production, territorial sea is measured, by either:
and this would be increased by one
per cent for cach () a line dolineated in accordance with paragraph 7 by reference to the
twelnh year and shall remain at 7 per cent thereafter. subscquent year until the
Those paynments would be outermost fixed points at each of which tho thickness of
sedimentary
made through the International Seabed
Authority set up to control the area of the rocks is at least I per cent of the shortest distance from such
point to
deep seabed, and the Authority is to distribute them to the parties to the Convention the foot of the continental slope; or
on the basis of
equitable sharing criteria, taking into account the interests and nceds (i) a line delineated in accordance with paragraph 7by reference to
of developing countries. It is further provided that a developing country which is u ixed points not more than 60 nautical miles from the foot of the
net importer of a mineral resource
produced from its continental shelf shall be continental slope.
exempt from making such pay1ments or contributions in respect of that resourcc. (b) In the absence of evidence to the contrary, the foot of the continental
(ii) Limits: The Third United Nations Conference on the Law of the Sea grappled slope shall be determined as the point of maximum change in the
at its base. gradient
with the problem of desining the outer cdge of the continental
margin. The issue off 5. The fixed points comprising the line of the outer limits of the continental
determining the outer limits of the continentnal rise became problematic due to the shelf on the soabed, drawn in accordance with
para 4 (a)(i) and (i), either
reason that parts of the continental rise essentially consist of debris resting on the shall not exceed 350 nautical miles from the baselines from
which the breadth
deepocean oor. On 15 April 1976 (Fourth Session), Ireland proposedafornula of the territorial sea is measured or shall not exceed 100
nautical miles from
that the rise should be regarded as ending either where the thickness of sedimentary the 2500 mcter isobath, which is a lino
rocks became less thanI per cent ofthe shortest distance betwecn such rocks and
connecting the depth of 2500 meters.
The above provision clarifles that continental shelfofa coastal
the foot of the continental slope, or at a distance of 60 nautical miles from the foot State comprises
seabed and subsoll of the submarine area up to outer
of the continental slope. The foot is normally regarded as the point of maximum to a distance of 200 nautical miles whichever is more.
edge of continental margin or
The technique employed by
change in the gradient at the base of the continental slope. In April 1978, Soviet the Convention for the delineation by a State
of the outer boundary of its.continental
a
Union proposed a formula which suggested nlat distance criterion for detennining shelf, where the shelf extends beyond 200 miles economic zone, is to fix points in
the maximum outer limit of the continental margin. During the inter-sessional accordance with paragraph 4 (Iriah formula), to define these points by coordinates
period between the seventh and the cighth sesions of the Conference, Soviet of latitude and longitude, and to connect the points by straight lines not
exceeding
proposal was revised aner negotiations between Soviet Union and the United 60 nautical miles in length. The Biscuit formula
envisages that continental shelf
Kingdom. According to the compromise formula, continental shelf shal extend to shall not exceed 350 nautical miles from the baselines from which the breadth of
a distance of either 350 miles from the baselines or 100 mlles from the
2500 meter the territorial sea is measured or shall not exceed 100 nautical miles from the 2500
isobath. This compromise formula was jocularly known as the 'Biscuit' formula. meter isobath. The next step is to submit the proposed delincation, together with
268 INTERNATIONAL LAW
LAW OF THE SEA 269

supporting scientific and technical data, to the

Commission on the Limits of the
Continental Shelf, to be established utnder the Convention 3. The limits of the territorial waters, the continental shelf, the exclusive
and other maritime zones of India shall be such as may
be
and composed of cconomic 2one,
in geology, geophysics, and experts
hydrography.
The Commission then make specified, from time to time, by or under any law made by Parliament.
recommendations to the State on its proposed shelf limits. Limits mayestablished 1976 was
passed. Section
State on the basis of the Commission's recommendations shall be final and by a Immediately thereafter, Indian Maritime Zonés Act, of
continental shelf, and defines the limits
but without prejudice to binding 6 of the Maritime Zones'Act deals with
questions of delimitation arising between it and an adjacent of India's
the shelf and the nature rights therein. Section 6 reads as
followa:
or opposite State. If the State
disagrees with the recommendations of the
Commission, it may make a revised or new ubmission to the Commission. Initial Continental Shelf
submissions must be made within ten years of the entry into force ofthe Convention referred to as the continental shelf)
in respect of that State, and revised or new submission within a 1. The continental shelf of India (hereinafter extend beyond the
reasonable time subsoil of the submarine areas that
after the first2 comprises the seabed and the natural prolongation of its
land
limit of its territorial waters throughout of two
to the outer edge of the continental margin or to a distance
territory referred to 'in sub-section (2) section
Indlan Position
hundred nautical miles from the baseline of
to that
continental margin does not extend up
India is a large peninsula bounded by the Arabian Sea on the West, the Indian 3 where the outer edge of the
Occan on the South, and the Bay of Bengal on the East. It has a coastline of over distance. of its
and exclusive sovereign right in respect
4000 miles long and also over 1280 islands and islets, including the two mid ocean 2. India has, and always had, full
continental shelf. the Union
archipelagos of Andaman and Nicobar islands ön one side and Lakshadweep on of the provisions of sub-section (2)
thié other. Indía's continentàlmargin extends over large areds of the Bay of Bengal 3. Without prejudice to the generality
has in the continental shelf
and the Arabian Sea. conservation
of exploration, exploitation,
On 30 August 1955, President of India issued a Proclamation which proclaimed: (a) sovereign right for the purposes
India has, and always had, full and exclusive sovereign right over the seabed and and management of all resources;
construction, maintenance or
subsoil of the continental shelf adjoining its territory and beyond its territorial (b) exclusive rights and jurisdiction for the other
oft-shore terminals, installations and
operation of artificial islands, and exploitation of the
waters. Constitution (Fiteentlh) structures and devices necessary for the exploration
In 1963, Constitution of India was amended by the shipPping for any other
continental shelfr after the of the shelf or for the convenience of or
Amendment Act, 1963 so as to insert the words "or the
resources

297 amended read as:

words 'territorial waters' in Article 297. Article
so
purpose; regulate and control scientifie reasearch;
(c) exclusive jurisdietion to authorise,
ofvalue underlying the ocean within the territorial
Afl lands, minerals and other things Union and be held for the
and
marine environment and
waters or the continental shelf
shall vest in the
of India
(d) exclusive jurisdiction to preserve and protect the
purposes of the Union. to prevent and control marine pollution.
Article 297 was further a foreign government) shall, except under,
and in
By the Constitution (Fortieth Amendment) Act, 1976, 4. No person (including
continental shelf of India shall he
amended to provide, tnter the limits
alia, that ofthe accordance with, the term of a licence or a letter of authority granted by
or under any law made by the government, explore the continental shelf exploit
its resources or cary
might be specified, from time time, by
to or
central
be such as
research within the continental
Parliament. Article 297, thus, reads as follows: Out any search or excavation or conduct any
artifñcial island, off-
shelf or drill therein or construct, maintaln or operate any
territorial waters or continental shelfand
resources
Article 297: Things of value within shore teminal, installation or other structure or device therein
for any purpose
zone to vest in the Union.
of the exclusive economic whatsoever.
underlying the ocean within the
ofvalue 5. The central govemment may, by notification in the Oficial Gazette:
1. All lands, minerals and other things of
or the exclusive economic zone, be a
territorial waters, or the continental shelf, (a) declare any area of the continental shelf and its superjacent waters to
held for the purposes of the Union.
India shall vest in the Union and be also vest in designated area; and
exclusive economic zone of India shall
2. All other resources of the (b) make such provision as it may deem necessary with respect to
of the Union.
the Union and be held for the purposes resources of the
(i) the exploration, cxploitation and protection of the
continental shelf with such designated area; or
51. United Nations Convention
on the Law ofthe Sea, 1982, Annexure 1.
52. Ibid., Annexure 11, Article 8.
 LAW OF THE SEA 271

270INTERNATIONAL LAW line is justified by special

and unless another boundary
(i) the safety and protection of artificial islands, off-shore terminals, In the absence ofagreement, application of the principle of
shall be determined by
circumstances, the boundary
installations and other structures and devices in such designated area, of the baselines from which the breadth of the
or equidistance from the nearest points In other words, Article 6
of the GenevVa
(i) the protection of marine environment of such designated area, or territorial aea of cach State is measured. contains equidistance special
Shelf of 1958
(iv) customs and other fiscal matters in relation to such designated area. Convention on the Continental
delimitation of the continental
shelf of the adjacent or
circumstance» formula for
Explanation: A notification isued under this sub-section may provide for the Circumstances' rule of 1958 Geneva
opposite States. 'Equidistance-Special
regulation of entry into and passage through the designated area of foreign ships by controversial, particularly because of
Convention on the Continental Shelf proved
the establishment of airway, sealanes, traflic separation schcmes or any other mode
nature of the term 'Special-Circumstances'.
of ensuring freedom of theimprecise the decisions of International
navigationwhich is not prejudicial to the interests India.
of he issuc of delimitation of continental shelf,
6. The central government may, by notification in the Official Gazette Court of Justice exhibit judicial activism.
(a) extend with such restrictions and modifications as it hinks fit, any enacument
arose between Federal Republic
for the time being in force in India or
any part thereof to the continental
(a) In North Sea Continental Shelfcases," disputes
shelf or any part [including any designated area under sub-section of Gemany on one side, the Netherlands and Denmark on the other, concerning
(5) thereof; the deljmitation of the boundaries of their respective continentul shelves
in the
and
(6) make such provision as it may consider necessary for facilitating the North Sea. The United Kingdom had concluded agreements with Norway, Denmark
enforcement of such enactment, and any enactment so extended shall have and the Netherlands on the boundary of their respective continental shelf claims.
elfect as if the continental shelf or the part [including, as the case may be, Deninark, The Netherlands and Germany, however, had not agreed with cach other
any designated area under sub-section (5)] thereof to which it has been on boundaries in tho easterm part
ofthe North Sa. On31 March 1966, Denmark
and the Netherlands reached agreement on the boundary line between their respective
extended is a part of the territory of India.
claims. This line based on the principle of the cquidistance line separating the
7. Without prejudice to the provision
of sub-section (2) and subject to any measures United Kingdom's shelf from the castem half of the North Sea, and oxtends to
that may be necessary for protecting the interests of India, the central
govermment point off the coast of West Germany, thus preventing Germany from extending its
may not impede the laying or maintenance of submarine cables or pipelines on
continental shelf to the United Kingdom boundary line in the middle of the North
the continental shelf by foreign States:
Sca. The Federal Republic of Germany was not a party to the Convention on the
Provided that the consent of the central government shall be necessary for the continental shelf.
delineation of the course for the laying of such cables or pipelines. Special agreements were concluded between the Foderal Republic of Germany
and the Netherlands and between the Federal Republic of
In principle, Indian legislation follows the consensus of the Third United Nations Germany and Denmark
Conference on the Law of the Sea at the time of the drafling of Indian legislation. providing or the submission to the lnternational Court of Justice of the disagreement
between Germany and its neighbour States over the proper delimitation of the
Indian legislation does not contain either Irish or Biscuit formula. Itmay. however, contincntal shelf in the North Sea.
be noted that in view of the special characteristics of itu continental shelf, Indiu The map, opposite, illustrates the equidistance line which, as drawn
supported the Irish, in preference to Soviet, formula for determining the outer limits by Denmark
and the Netherlands, would have allotted to thcse two countrics area outside a
of the continental shelf at the Third United Nations Conference on the Law of the smaller trlangle than that drawn up by the P.R.G.
Sea The lines AB and CD in the map represent the boundary lines of the continental
Another noticeable feature of the Indian legislation is that aler declaring India' ahelfof the Federal Republic of Germany established by the delimitation
full sovereign rights over the continental shelf, the Act indicates some illustrative agreements
between the Federal Germany and Denmark (9 June 1965), on the one hand, and
examples of India's rights and also the facilities available to other Statcs within the the Netherlands (1 December 1964), on the other. The three parties met several
shelf. times in 1966 to settle tho question of the continental shelf boundaries, but their
negotiations failed. Meanwhile, on31 March 1966, Denmark and the Netherlands
13.6.3 Dellmltatlon of Continental Shelf
proceeded delimit the
to
coptinental shelf areas on the basis of the median line
method, according to which the areas north of EF all for Denmark and those south
The issue of delimitation of continental shelf has been one of the hotly debated
issues. Article 6 of tbe Geneva Convention on the Continental Shelfof 1958 allows of t for the Netherlands. BE and DE, according to Denmark and the Netherlands,
States to determine boundary of their continental shelf by ayreement between them. represent the seaward boundaries of the Federal Republic, beyond the partial

53. Statement by India, Omcial Records of UNCLOS II, Vol. 1X, p. 73. 54. North Sea Continental Shelf cases, ICJ Rep., 1969, p. 3.
272 INTERNATiONAL LAw 273
LAW OF THE SEA

the
boundaries of AB and CD, already agreed upon. Lines BF and DF represent
the course
boundaries which the Federal Republic would have wished to obuain in
of the cases to the
ofnegotiations between the three parties prior to the submission
International Court of Justico.
Netherlands that the
The Court first rejected the argument of Denmark and the
because it gave
ule of cquidistance has a priorl character of inherent necessity
in
of proximity inherent
expression to, and translated into linear terms, principle
a
of the shelf to appertain
the basic concept of the continental shelf, causing every part
to the nearest coastal State and to no other.
It then considered the contention of
1958 Geneva Conference,
Denmark and the Netherlands that although prior to the
and States practice lacked
continental shelf law was only in the formative stage,
and consolidation of the emerging
uniformity, yet the process of the definition
law took place through the work of the International Law Commission,
customary
and the proceedings, of the Oeneva
the reaction of governments to that work
Conference: and that this emerging customary
law became crystallized in the
Conference. The Court rejected
adoption ofthe Continental ShelfConventionby the
this contention and stated:

of at least certain parts of the

Whatever validity this contention may have in respect
the delimitation provision (Arnicle
Convention, the Court cannot accept it as regards
almost unchanged from the drat of the
6) the relevant pointe of which were adopted
International Law Commission that formed
the basis of the discussions at the
The status of the rule in the Convention therefore depends mainly on
Conference.
it. These processes have already
the processes that led the Commission to propose
review suMlclent for present purposes
been reviewed.... The Court considers this
s it now figures in Article 6
also, in order to show that the principle of equidistance,
with considerable hesitation,
of the Convention was proposed by the Commission
and not at all de lege
somewhat on an experimental basis, at most de lege ferenda,
law. This is clearly not the sort
lata or as an emerging rule of customary international
could be said to have reflected or
of foundation on whlch Article 6 of the Convention
crystallized such a rule.

Article 6 was one of

The Court buttressed this conclusion by pointing out that
State to attach a
the provisions in reapect to which Article 12 permitted any
reservation on signing, ratifying or acceding. The Court
further concluded that
FRGC neither the effect of the Geneva Convention nor States practice
concluded that
Convention States practice since its signing
neither the effect of the Geneva nor any
justified the inference that delimitation according to the principle equidistance
of
rises to the level of a mandatory rule of customary law. Having
decided that neither
was obligatory, the
the equidistance method nor any other method of delimitation
delimitation must be
Court stressed as the basic applicable legal principles: (1) that
such agreement
NETHERLANDS the object of agreement between the States concerned and (2) that
must be arived at in accordance with equitable principles.
In its judgement, the
Court stated:

The principle and rules of international law applicable to the delimitation as

between the Parties.. . ate as follows:

274 NTERNATIONAL LAW LAWOP THE SEA 275

line in the Channel (except in relation

the partics ogrced on portions of the boundary
1. Delimitation ia to be offected by agroement in accordance with cquidistance
principlos, and taking Into account of all the relevant circumatances, in such follow simplifled median line. In case of boundary line in
to Channel islands) to a
Way a to leave as much us ponible to each Party all those parts United Kingdom wanted the median line to be drawn
of tho relation to Channel islands,
continontal uhelf that constitute a natural whereas France wanted the main
prolongatlon of lts land territory between these islands and the Prench mainland
Into and undor tho soa, without oncroachmont on the the two countries by ignoring
the land torrltory of the
natural prolongation of boundary line to be drawn between the mainland of
othor; these islands as special circumstances.
2. It, In tho
applicatlon of the preceding aub-paragraph, the delimitation leaves Thero were two major differences between the references to the International
to the partles aroas that
overlap, theso are to be divided between therm in Court of Justice and to this Court of Arbltration, namely in the 1969 cases, the
greod proportlons or, failing agreemont, oqually, unless
they decided on a Court was only to indicate the applicable principles or rules of international law
regime of Joint jurladiction, user, or exploitation for tho zones which but not to determine the boundary whereas in the present case, the Court of
or any part of them. overlap
Arbitration was asked to determine the course of the boundary (or boundaries)
In the courso of
negotiatlons, the fuctors to be taken into account are to include: betweon the two countries in the specified area. Secondly, in the 1969 cases, the
. The general
configuration of the coasts of the Parties, as woll as the presence boundary related to States with adjacent coasts, whercas in the present case
of any special or unusual the boundury related mainly to States with opposito coasts: Even in the 1969 cases,
2. So far as known or
features; tho International Court of Justice had recognized that a median line should be
roadily ascortained, the physical and geological structure
and natural resources, of the continental shelf cquitablo in determining the maritimo boundary among States with opposite coasts.
areas Involved;
3. The clement of a reasonable In the present case also, the two countries had themsclves recognized that in some
degree of proportionality, which a delimitation
carried out in accordance with sectors, the boundary will be the median line, which had in fact been drawn by
cquitable principlos ought to bring above them and adopted by the Court.
between the extent of the continental shelf arecas
apportaining to the
coastal
State and the length of its coast measured in the general direction of the
coastline, account being taken for this purpose of the effects, actual or
On the insue
Continental
of applicabilily of Article
Shelf, it ias worth
6 of the 1958 Convention bn the
noticing
that France had, whileacceding to the
prospoctive, of any other continental sholf delimitatlons between adjacent Convention, ontered a reservation to this Article that any boundary determined by
States in the same region. appllcation of the principle of equidistance required its specific agreement. The
Unlted Kingdom had objected to this reservation
It should be noted that the concept of by saying that they were unable
equitable principles is not a new concept. to accept tho reservation mado
by the Govemmont of the French Republic. The
Truman Proclamation of 1945 contalned the words
'equitable principler' but no
Stato paid much attention to their potontial nmeaning at that time. In
Court of Arbitration held: 'the combined olffect of the reservation and
objections to
1969, in North it io to rondor Articlo 6
Sea Continental Shelf cases, ICJ took the term inapplicable as between the two countries to the extent of
'cquitable principles out of Truman the rosorvation, where the
customary law will apply,*"*
Proclamation and declared that continental sholf boundaries between Stlates should The Court of Arbitration
be effected in accordance with equitable principles, taking account of all relevant explained as follows:
circumstanccs. The Court uscd tho term 'rclevant circunutances' for the term Articlo 6, as both the Unitod
Kingdom und the 'rench Republic strcss in their
which had been usod in Article 6 of the 1958 Geneva ploudinga, docs not formulale tho cquidistance principle und 'gpeciul circumstuncca'
'Special Circumstancen' s two
vopurato rules. Tho rulo there statod In each the two cusos is u single
conbined cquidistunce-special circumstances rule. of
Convention. one,u
"This being so, it muy be doubted
(b) Arbitrations between the United Kingdom of Great Britain and Northern Ireland whether, strictly speuking, there ls any legal burden of prouf in regurd to the cxistcnce
and the French Republic on the Delimitation of the Continental Shelf of 30 Juno
ofupecial circumstances. The fact that the rule is a single rule nmeuns thut the question
whether another boundary is justifled by
1977 and March 1978. the rule providing for
special circumstancen Ia on Integfal part of
upplication of the cquldistunce principle. An such, although
Involving malters of fact, the question is alwuys one of law of which, in cuse of
(i) The Decislon of 30 June 1977: In this decision, the Court of Arbitration appeared vubmiwwlon lo arbitratlon, the tribunal muat ilsolf, pmprlo molu tuko
to have reviewed the judgement in the North Sea Contngntal Shelfcases of 1969 upplying Article 6.
cognizance when
and ostablished a simple rule, namely, 'equldistance-spocial circumstances" rule,
as the conventional and customary rule on delimitation. The Court of Arbitration further pointed out:
In this case, disputes had arisen between the United Kingdom and France obout the
the alignment of the boundary line in relation to the Channel lslanda which were provisions of Article 6 do not deflne the condition for the upplication of the
located close to the French mainland, l.e. across the median line drawn with reference 55. The Toxt of the Arbitration Award has been
to the mainland of the two countries. Both the parties had opposite coasta. Both
published by Her Mujesty's Stationery
ofmce, London, in 1979 in Cmmd. 7438.
276 NTERNATIONAL LAW
277
WOF THE SEA
equidistance-special
circumstances circumstances rule; moreover, the telimtatin of the boatary n
rule and the rule of
customary
equidittance special rules of customary law had the ume object the
delimitation of boundary in law have the same
objecl--the accordance with equitable prirciples.
accordance with equitable
principles... where
previna cava,
Finally, Court of Arbitration concluded:
the
(c) In Libya-Tunisla Continental Shelf case," unlike mot
te oder party
for equitable principles ard
any one party to the litigation argued erdorvs he d
.the both parties strongly
appropriatenes of the equldistance method or
any other method for the for equidistance, in theandpresent casw,
both denied the mandatory applicability of te 1952
purpose of effecting an equitable delimitation is a function equitable principles, to
or reflection of the alvw took the wme tatt in yng
geographical and other relevant Convention's equidistance rule. The parties
of the method or circumstances of each. particular case. The choice of natural prolongation and in attempting tn liet all
relevart
methods of utilize the princíple
Convention or customary law,delimitation
inany given case, whether under the 1958 on what was the true cncep
of
has therefore to be circumstances. The parties did disagee, however,
circumstances and of the fundamental nom that the determined in the light of those natural prolongation and what were the relevant circumatancea

with the delimitation must be in sccordance entered into an sgreement lon

vsemission
equidistance principle. Purthermore, in One 10 June 1977, Libya and Tunisia
equidistance method as a means of achlevingappreclating
the appropriatenets delimitatíon of continertal
the or to International Court of Justice
of the question of the
equitable solutlon, regard must th Cout was
"lateral' boundary between 'adjacent' Stotes andbea
had to the difference between a Under the special agreement,
shelf between the two countries. be applies
median' boundary betrween what principles and rules of international law might
'opposite' States. requested to declare
continental shelf and o clar1fy
the practical
for the delimitation of each State's
The Court of Arbitration also 1 of the apecial ageerers,
gave a restrictive interpretation and application to method of their delimitation. Under Article 1, peragraph interrational law
the principles of "propotionality' the principlei and the rules of
and the 'reasonable evaluation of the effect of partics requested the Court to state of the continental shelf
natural features'. It did not be applied for delimitation of the areas
regard proportionality asa general feature providing an which might called upon
two Sutes. The parties furtter
independent source of rights to areas of continental shelf, but as an element in the respectively appertaining to each of the three factors:
approciation of a particular method of delimitation. its decision, to take account of the following
the Court, rendering
in
circumstances which characterize the area;
(a) cquitable principles; (b) relevant on the
(ii) The Decislon of 14 March 1978: The second decision of 14 March 1978 new accepted trends in the Third
United Nations Conference
and (c) the the practical
Sea. Article 1, second paragaph required the Court to clarify
concernedthethe interpretation of the award. The Court of Arbitration dealt with two Lawofthe enable the experts
method for the application of these principles and rules so as to
mattera: first related to the correction of the boundary line around the Channel Court was,
by taking into account the lowtide elevation which formed part of the of the two countries to delimit these areas without difficulties. The
Island called itself to draw the actual delimitation line.
cstablished basclines; the second related to the alleged eror in the delineatlon of therefore, not upon
the boundary between points M and N where the lsles of Sicilly had been glven
half effect. Natural Prolongatlon
The Court of Arbitratlon enunciated the applicablo rule as the single nule of
On the issue of natural prolongation, the parties agree that it is the concept of
equidistance-cum-apeclal clrcumatances, particularly for delimitation among State
natural prolongation of land into and under the sea which is commanding. The
with opposite coasts. The nule will apply without any onus of proof on the party
partics, however, differ on the issue ofcriteria to be applied for determining whether
invoking special circumatances. To thla extent, the conventional nule in Article 6 a given area is natural prolongation of one State or another.
of the Convention on the Continental Shelf, 1958 and customary international law
were ldentical. In thelr application, both should lead to an equltable result, In thls Libya contended, 'the natural prolongation is deteminable as a matter of scientific
fact by the applícation of geological criteria, equitable principles should play no
CAse, the Court of Arbitration recognlze the speclal circumatances crented by the
role in identifying appurtenant continental shelf based upon the juridical concept
Channel Islands and the lales of Sicilly. The former were given restricted marino
of natural prolongation' Furthermore, for Libya a delimitation which gives effect
spaces and enclaved within the French continental shelf surrounding them. The of natural prolongation' ia necessarily in accordance with
latter were given half effect in determining the boundary line in the Atlantie Ocean to the principle equitable
principles, since it rospects the inherent rights of each State. On the other hand,
region. Tunisia contented, "the satisfying of cquitable principles in a particular geographical
To sum up, in Anglo-'rench Continental Shelf Arbltration, the Court of
Arbitration gave prominenco to equldistance principle in case of delimitation of
the opposite continental ahelves. Howover, it refused to ondorse the traditional
6. Ltbya w. Tunlsia Continental Shelfcase, ICJ Rep., 1982, p. 17, International Lagal
Materlal, 21, 1982, p. 225; for commentu see, American Soclety oflnternatlonal Law,
interpretation of Article 6 which maintained that the 'equldistance' line was the
Prdceedings, 1982, pp. 150-65.
general nule and that 'speclal clrcumstancer' provlded tho oxceptlon. It declarod 7. Remarks by Sang-Myon Rhee, ICI declalon In the Llbya-Tunisla Continental Shelf
that the 'equldistance special circumatancos' rulo found in the Convention and the case, Amerlcan SocletyofInternatlonal Law, Proceedinga, pp. 150-53 at p. 152(1982).
278 INTeRNATIONAL LAW LAW OF THE SEA 279

situation is part of the subordinate to the goal. The equitableness of any specific principles of
process of the ldentification of natural were
parties in this respect is whether a natural prolongation
issue between the The usefulness of that principle in
delimitation had to be assesed in the light of the
scientifically without reference to equitable prolongation delined achieving an overall equitable result In
this respect, the Judgement of the Court in
for the
purpose of delimitation. principles is trnulya 'natural prolongation' this case cxplains Court's judgement in the North Sea Continental Shelf cases
The Court
rejectedthe of both Libya and "Tunisla. Reacting to Libya's wherein the Court did not draw a clear distinction between result and the means,
contention, International arguments
Court of Juatice made the The uaefulness of the case lies in its assertion of the equitableness of the 'result
wrong suppose that it will in all
to observation that it would be
cases, or even in the rather than means.
or
appropriate majority of them, be
prolongation of one State, just sopossible
to establiah that
no further, to
the natural In the process of arriving at the above mentioned conclusion, Intemational Court
that the two
Court also prolongations meet along an easlly delined line.far The
apparently disapproved
and
of Justice referred to Article 83, paragraph 1of'the Draft Convention on the Law of
the argument of
cquitable princlples in a particular "Tunisia that the
satisfying of
the Sea which is synonymous to Article 83, paragraph 1 of the UN Convention on
the process of
identification geographical
of the natural
situation is just as much a
part of
the Law of the Sea. Article 82, paragraph I reads as follows:
natural prolongation are
not to be prolongation as the
identification of the
subsequent part of Court's judgementplaced on
plane of equality. However, the
on the issue of
a
The delimitation of the continental shelf between States with opposite or adjacent
that the Court has in
substanco accepted Tunisia's 'natural prolongation', reveals cousts ahall be cifected by agreement on the basis of international law, as referred to
contention. In Aricle 38 ofthe Statute of the Intemational Court of Justice, in order to achieve an
cquitubke solution.

It is important to note that the new text does not contain

tely any specific criterion
Orese which could give guidance to the
interested States in their effort to achieve an
equitable solution which has to be achieved. The principles and rules applicable to
Tunis 8lolly the dellmitation of the continental shelf
reas are those which are
bring about an equitable result. .It is pertinent to note that the newappropriate to
text did not
alfect the role of the concept of
Ma natural prolongation.
The Court, thereafter, tried to explain its views on the concept of eguity. It
Malle noted that equity was often understood an idea
to ayoid or
as apart from law, indeed as a means
mitigate positive laws, But,it said, this was not the case in tho realm of
intemational law. According to Court, equity in intermational law was a
concept of law, directly applicable as law, taking into account the general
the particular case. Since that which circumstances of
Tuniela wau equitable had to depend on the
circumstances of cach given case, the Court particular
turned to a careful assessment
relevant circumstances submitted of. the
LIbyo by Tunisia and Libya; the geography,
geomorphology, land frontier, historic rights
and economic considerations.
Relevant Circumstances
Both the parties recognize that
Geographical Configuration of Libyun and Tunislan Coost equitable
circumstances which characterize that area beprinciples dictate that the relevant
taken into account but
upecial agreement coníers on the Court the task they
It may be to what thoy are. The differ as
re»emphasized here that the Court rejected the concept of natural what aro the relevant circumstances and ifascertaining
prolongation. It rejected the idea that natural prolongation provided a principle of assessing their relative weight for the
general applicability, one which would provide, by itselfa solution purpose of achieving an equitable reault. The Court has,
the various considerations which it therefore, to balance up
problems. The Court noted that geological information was not allallthat
to delimitation
equitable result.
regards as relevant in order to produce an
useful in
setting precise boundaries. The Court stated that the physical factor of natural Tunivia submitted before the International Court of
prolongation should not be considered as one which in and of ilself granted legal oireumatances to be takon into account included
Justice that relevant
title, but only to be considered in arriving at an equitable solution.
Equity, according geological and
factors, economic factors, and historical factors. On the other geographical
tothe Court, was involved both in the process of delimitation and in its hand, Libya's
Court emphatically stated that it was the result which was
result. The Conception of the relevant circumstances was stated in nore restricted tems, namely,
predominent. Principles geologlcal structure of the shelf and its relation to the adjoining landmass and the
 280 IN'TERNATIONAL LAW 281
LAW OF TIHE SEA
geographic configuration of the coasts as, a relevant circumstance to to be subjected to them,
then a nding
account. be taken Into exercise of those rights over the area claimed view of the
will be unnecessary. Such is in fact, in the
Reacting to the above-mentioned contentions, Intemational by the Court on the subject (adopted by the Court)...
observed: Court of Justice Court, the result ofthe method of delimitation considerations, Tunisia
invoked
relevance of economic
On the issue of the its relative
in two ways; firstly by
drawing attention to
economic considerations sgriculture
The relevant circumatances which characterize the aren are not limited to natural r e s o u r c e s like
in terms of absenco of of oil and
the fucts of poverty vls-d-vls Libya abundance in Liby, especially
gcography or
geomorphology, elther as a matter of interpretation of the special and minerals, compared
with the relative
agrecment or in application of the equltable resources; secondly, by
pointing out that fishing
as agricultural
circumstances to be taken into account. Apart fromprinciples gas wealth as well
areas must
requiring all relevant and 'historic waters'
the clreumstance of the exlstence r e s o u r c e s derived
from its claimed 'historic rights' in taking out
and interests of other States in the supplementing its national economy
area, and the existing, or potential necessarily be taken
into account
between each of the parties and such States, there delimitations,
is also the positlon of tho land The Court held:
its survival as a country.
frontier or more precisely the position of its inter sectlon with the the delimitation
coastline, to be considerations cannot be
taken into account for
taken into account. In that conncction, the cournt must in the t h e s e economic are virtually
extraneous
present case consldera shelfareas uppartaining to each party. They
number of alleged maritime limits resulting ftom the conduct calamity, as
of the States concerned. ofthecontinental are variables which unpredictable national fortuneororthe other.
It has further to give due conslderatlon to the historle rlghts claimed by Tunislo, and factors since they scale one way
couse to tilt the
of economic considerations which one or the other party has urged as the may be, might at any time, of an wells in
result event such
to u
number
rclevant.
case
and become rich
tomorrow ssa

country mght be poor today economic resoureo. As to the presence of oil

as the discovery
ofa valuable all relevant factors to
of welghing
an area to be
taken Into account in the proceis
Elaborating its observation, the Court noted that the parties were in agreement
achiove an equltable result.
to take into account the element of proportionality, which a delimitation carried out principle is quite
instructive.

in accordance with equltable principles ought to bring about between the oxtent of The comment of the Court on equidistance
the Court observed:
the continental shelf areas appertaining to the coastal State and the length of
its
Commenting on the equidistance principle,
coast measured in the general direction of the coastline." which also concerned
Sea Conllnental Shelf cases,
the element of the Court held in the North the continental shelf
In this case nlso, International Court of Justice consldered that method of delimitation of
..

that the equidistance the other hand, it

fundamental prlnclple of ennuring an adjacent States, law. On
proportionality' was indaed requlred by the la not prescribed by a
mandatory rule of customary
its applicatlon leads to an equitable
concemed, In which
equltable delimitatlon botween the States cmphasized the merlts ofthis
rule in caues
as is apperent from
treatles on continéntal
delimitatlon oxamined by the Court was the
Another circumstance rolevant for solution. The subsequent practlce of Stetes, in a nugmber
method has been employed
existence of an area off the coasts of
Tunisia over which it claimed hlstoric rlght shelfboundaries, shows that
the oquidistance
line, and had
doevlate from an equidistance
flahing actlvities. The historlc rights clalimod by it also shows that States may
deriving from long-establlshed
interests and activities ofitn population in
ofcases, But the delimitation, whenever they
found this a better way
Tunisia derive from the long-established máde use ofother crlterla for equidistance line
off its costs; One evolutlon may be combination of an
the fisherles of the bed and waters of the Mediterranean to arrive at an agreement. the area with a line of some
other
exploiting for the catching of the with a line of some parts of
shallow in shore banks for fixed flsheries of area
in some parts of this kind
the exploitation of the
dictated by the relevant circumstances. Examples
banks for the collection ofsendentary specles, kind in other parts, as
Delimltation of the Continental Shelf
swimming species, and of the deeper on historical are provided by
the /977 Arbiratlon on the
did not feel the need to make pronouncement Convention between Prance
namely spongs. 1he Court Unlted Kngdom, and by the
method for effecting an equltable between France and the
of the Court, the practical Continental Shelves of the two States in the Bay
factors as n the opinion historical rights in and Spain on the Delimitation
of the
Article 83 of
the Court in this case did not affect the practice, as well as the history of
delimitation adopted by of 29 January, the lawTreaty
ofBiscayconvention
1974.
of the sea, lesds to the
conclusion that equidistance
the aroa by Tunisla,
claimed the draft on
if not other methods should
be
observed: ",.. it is onlyifthe method of delimitation it lends to un equitable solution,
In this regard, the Court tho may be applied if
is such that it will or may encrosch upon
which the court finds to be appropriate cmployed
have to determine the validity and scope of
historic rlghts area that the Court wll such Delmltatlon of the Marltime Boundary
in the Guls of
method of delimitation (adopted by the Court) is (d) In the case concerning
those rights. If, howeve, the States of America concluded a special
agreement
leave Tunisia in the full and undiaputed Malne Area'" Canada and United
that the delimltation line will undoubtedly then a finding
area claimed to be subjected to them,
exercise ofthose rights over the
on the subject will undoubtedly
leave Tunisia in the full and undiaputed
by the Court
Judgoment dated 12 October
1984. Text of the
59. Canadav Unlted Stater America, of 543.
Judgement reprinted In Indlan Journalof
Internatlonal Law, 24, D84, p.
58. North Sea Continental Shelfcase, 1CIRep., 1969, p. 54,
282 INTBRNATIONAL LAW LAW OF THE SEA 283

and requested the Chamber of the International Convention--Whether Mandatory?

Court of Justice to draw, in the Gulf Artlele 6 of 1958 Geneva
of Maine Area, a single line to delimit
both the continental shelf and the 200-mile Article 6of the 1958 Geneva Convention on the Continental Shelf employs a single
exclusive flshery zones of the Parties in the Gulf of Maine
Area. Under the special
agreement, Chamber of the International Court of Justice was to be technique for continental shelf delimitation, but in the form of a median line in
five persons to be constituted afler compound of maritime ureas betwecn opposite coasts (paragraph 1), and a lateral equidistance
consultation with the
international law applicable in the matter as between the principles and rules of line where the coasts of the twp States are adjacent (paragraph 2). The Court is of
to decide following issuo: parties. The Chamber had
the view that this method is inspiredby and derives from a particular cquitable
criterion: namely, that the equitable aolution, at leastprimafacie, is an equal division
What is the course of the
single maritime boundary that divides the continental shelf
and flaheries zones of Canada
of the overlapping areas of the continental shelves of the two litigant States. The
and the United Statcs of Court has further exprossed its opinion that the applicability of this method is
America?
This case differs from the earlier subjected to the condition that there are no special circumstances in the case which
continental shelf cases decided by International
Court of Justice, namely, North Sea
Continental would inake that criterion inequitable, by showing such division to be unreasonable
Continental Shelf case. The differenco is two fold. Shelf cascs and Tunisla Libya and so
entailing recourse to a different method or methods or, at the very least,
Court was not required to draw a line of Firstly, in the earlier cases, the uppropriute correction of the effect produced by the application of the first method.
a task
delimitaiton itself, but merely to undertake lowever, the issue beforethe Court in this regard is whether the fact that the 1938
preliminary to the determination of such a line, i.e. to indicate the Convention on the continental shelf is in force between the parties does or does not
and rules of intemational law principles
applicable to that
Libya Case, was added the request that the Courtdelimitation,
to which, in the Tunisial mako it obligatory to usc, for the
should clarily the practical method delimitation requested in the present case, the
method specilied in Article 6 of the Convention.
for the application of these
principles and rules in the speciflc aituation. The Parties
had reserved for themselves the final No doubts have becn expressed on either side as to the fact that both
task, namely the determination of the regard tlhenwclves as bound by the Convention to which they have both acceded.
parties
delimitation line, to be undertaken
jointly
received from the Court. However, in the
and on the binding basis of the indications This case does not involve any
problems of the kind which arose in the case
to the Chamber. In this
present caso, this ask is directly entrusted concerning the delimitation of the continental shelf between France and the United
respect, the request submited to the Chamber is analogous kingdom because of reservations expressed by the former country but not accepted
to the request made to the Court of
Arbitration which was askod to draw the by the latter. The Chamber of the Intermational Court of Justice, therefore, took the
delinutation line of the continental shelf between France and the
It is pertinent to remark here that the
United Kingdom. view that if a question as to the delimitation the
above-mentioned difference between this of continental shelfonly had arisen
botween the two States, there would be no
case and earlier cases is not materlal for
the purpose of our present study which is doubt as to the mandatory applicátion of
confined to an analysis of the rulecs and the method prescribed in Article 6 of the Convention, always subject, of
and not the practical method chosen for the
general principles governing delimitation the condition that recourse is to be had to another course, to
method or combination of methods
purpose of the delimitation line actually where special circumstances so
drawn. require. However, the Court pointed out that the
task beforo it in the present case is not
The second difference which distinguishes this case from all those only to obtain delimitation of the continental
previously shelf, but to draw a single delimitation line for both the continental shelf and the
adjudicated is the fact that, for the first time, the delimitation which the Chamber is superjucent fishery zone. The court, therefore observed:
asked to offect does not relate exclusively to the continental
shelf, but to both the
continental shelf and the exclusive economic zone, the delimitation to be i t ie doubtful whether a
by a single treaty obligation which is in terms confined to the
boundary. delimitution of the continental shelf can be extended in a manner that would
manifcstly
It is pertinent to note that United States ratified 1958 Geneva Convention on the go'beyond the limits imposed by the strict criteria goverming the interpretation of the
Continental Shelf in l1961 and became a party when it into force treaty instruments, to a ield which is evidently, much greater,
in 1964. hoterogcnous, und accordingly fundamentally different. Apart from unquestionably
came
However, Canada ratified it in 1970. this formal, but
Canada claimed that delimitation should be effected by imporlunt consideration, thero is the more substantive point that such interpretation
equidistance line in would in the final analysis, make the maritme watet mass overlying the continental
accordance with Article 6 of the 1958 Geneva Convention on the Continental Shelf.
United States rejected Canadian claim and asserted shelf a mero accessory of that shelf. Such a result would be just as unacceptable as
inoquitableneas of the the converso result produced by simply extending to the continental shelf the
equidistance line in view of the existence of special circumstances. According to
the United States, equidistance line was not in
ofa method of delimitation adopted for the water column only and its fish applicaton
resources.
conformity with equitable principles
because of the special circumstances of the area, and expressed the view that a line qn The Chamber of the Intemational Court of Justice refused to ubscribe to the
which accorded with equitable principles was one taking inlo account
of the coastal view that 'cquidistance-special circumstances' rule was in the process of becoming
configuration of the area. b horm of goneral application. The Court recalled 1977
Decision of the Court of
Arbltration which shows:
 285
LAW OF THE SEA
284 INTERNATIONAL. LAW
Court is of the view that equitableness
of the means depends
The different levels at whieh the various rules concemed are situated: the provisions cquitable means, the boundary line for
upon circumstances of
the case. While determining single
of Article 6 of the 1958 Convention at the level of special international iaw: and at exclusive fishery zones, the Court focussed its
delimitating continental shelf and to geography.
the level of general international law, the norm prescribing application of cquitable
principlcs, or rather equitable criteria... attention at geographicpl features and
attached primary importance

between Libyan Arab

delimitatlon Conttnental Shelf
(c) In the casc concerning delivered its judgement o n 3
In the opinion of the Chamber of the International Court of Justice auch is
the Jamahiriya and Maluso International Court of Justice
current state of custonary international law. Accordingly, the Chamber decided: received in the Registry of the
June 1985. By a notification dated 19 July 1982, agreement
Malta notified the Court of a special
Court on 26 July 1982, Libya and dclimitatioon
The provisions of the 1958 conventlon on the continental shelf,olthough foreo
in ofa dispute concerming the
between them for submission to thc Court in the
between the parties, do not entnil cither for them or for the Chamber uny legnl
of the continental shelf between
them. Thereafter proceedings began
them maritime delimitation which is subject to the
obligations apply
to to the single International Court of Justice.
ofofice
present case. Mosler and El-khani) who[c ter1ns
Two Menmbers of the Court (Judge
under Articlo 13, parngruph 1, of the
Statute of the Court on 5 February
Convention the Law of the Sea, 1982 expired proceedings in accordance with
UN on
1985 have continued to participnte in the present
UN Conventionon the Law of the Sea, 1982 contains identical provision
for the 14 February 1985, the Court elected Judgc Nagendra
paragralh 3 of the Article 13. On of the
delimitation of exclusive cconomic zone and continental
shelf in Article 74,
Singh as Judge de Lacharriere as Vice president
President of the Court and
provision recads of the Rules of the Court, the
Court; in accordance with Article 32, paragraph 2,
The idcntical
paragraphl and Article 83, paragraph l respectively. continued to sit under the presidency
as follows: Court as composed for the prescnt proceedings
continental shel) between
of Judge Elias.
The delimitation of (the excluslve economic zone) (the of Justice was as
for determination before International Court
States with opposite or adjacent coasts shall be
effected by agreement on the basis of The question
38 Statute of the International Court follows:
international law, as referred to in Artíclo of the
of Justice, in order to achieve, an equitable solution. of
international luw applicable to the delimitution
Whut principles and rules of are

to the Republic of Maltu und the

It is thus limited to expressing the need for settlement problem by agreement
of the the
arca of
the continental shelf which uppertains
to the Libyan Arab Republic, and how in
solution. Thc provision of continental shelf which uppcrtuins
and recalling the obligation to achieve an equitable
arcu
in this particular
and does not specify the means to be practice such principles and rules can bo applied by the two parties
emphasizes the equitableness of the result casc in order that they may without dimeulty delimit such areas by an ugreement?
the doors are left open for the
adopted for arriving at equitable result. Thus,
continuation of the developments effected in this
fleld by international case law.
Case law, therefore, remains guiding stone in this regard. Libya contended that the delimitation should effected by agreement in
be
accordance withequitable principles and taking account ofall relevant cireumstances
Equltable Criterla
in
order to achieve an equitable result. Libya made it clcar that the application of
equidistance method was not obligatory, and its application in the particular
fundamental circumstances of this case would not lead to an equitable result. Malta argued as
According the Chamber of the International Court of Justice, the
to
law governing maritime delimitations requires that the follows:
ule of general international
is to be established while applying equitable criteria to that
delimitation line (i) the principles and rulcs of international law applicable to the delimitation
Court ruled that cquitable
operation, with a view to reaching an equitable result. The of thc areas of the continental shelf which appertain to Malta and Libya are
means should be selected according to specific requirements
of the case. The Court
further held that application of criteria and method should primarily be based on that the delimitation shall be cffected on the basis of international law in
order to achieve an equituble solution;
the geography of
geography. What is understood by geography is ofcourse mainly (ii) in practice the above principles and rules are applied by means of a median
the coast, which has primarily a physical aspect, to which may be added, in
the
second place, a political aspect. In this regard, the Court pointed out that a fair line every point which is cquidistant from the nearest points on the baselines
of Malta, and the low-water mark of the coast of Libya.
measure of weightage should be given to geographical features, namely, Iengths
of
the respective coastlines of the countries concerned, and presence of island or group
of small islands lying off a coast.
60. Lbyan Arab Jamahiriya v Atalta, 3 June 1985, General List No. 68, Reproduced in
To sumup, the Chamber Intermational Cour ofJustice, this
of in
case
not only equitableness of the result but also of the means adopted. Commenting on
emphasized mdian Journal ofnternattonal Law, 25, 1985, pp. 270-308.
 LAW OF T1IE SEA 287

286INTERNATIONALLAW
J. Equldlstance Method
The Republic of Malta is a State made up of a group of four inhabited islands
of the cquidistance
Malta (246 km in area), Gozo (66 km'); Comino (2.7 km?), Cominotto(les than contention on the applicability
The Court rejected Maltese revealed that the rule was not
one-tenth of a square kilometre), and the uninhabitated rock of Filla. Libya is a the States practice clearly
mainland State on the principle and observed that therefore, took the view that the
cpast of North Aftica. It encompasses some 1,775,500 square rule of international law. The Court,
a customary
kilometres. The coast of Libya streches for more than 1,700 kilomctres.
principle of cquidistance is not obligatory.
The following points in the Judgement of the International Court of Justice are
worth noticing1
4. Kqultable Princlples
North Sea
aflirmed the principles laid down in
1. Sources of the Law Applicable On cyuitable principles, the Court delimitation
case. The Court held that
ContinentalShelfcases and Libya v Tunisia
The Parties broadly agreed as to the sources of the law applicable in this casc. should he effected in accordance with equitable principles
and taking into account
Malta was a
party to the 1958 Geneva Convention on the continental shelf, while
Libya was not. Therefore, the partics, ayreed that 1958 Convention, and in particular of all rclevant circunistances, so as to arrive at an equitable result. Thus, the Court
means well as the result. The Court further held
the provision for delimitation in Article 6, wai not as such applicable in relations cmphusized equitableness of the be taken into account in
Both that the following circumstances and factors should
between them. partiee signed the 1982 Convention. However, it did not enter
into force and was, therefore, not operative us treaty law. The Parties, therfore, achieving un cquitable delimitation:

agreed that the dispute was to be governed by custonary international law. That their oppositeness,
does not mean that parties regarded 1982 Convention as irrelevant. The partics (i) the general configurations of the coasts of the parties,
and their relationship to each other within the general geographical
admitted that some of the provisons of 1982 convention constituted, to a certajn
extent, the expression of customary international law in the malter. l1owever, the context
(ii) the disparity in the lengths of the relevant coasts of the parties and the
parties did not agree in identifying the provisions of the 1982 Convention which distance between them;
have the status of customary international law.
In this regard, International Court of Justice further observed: (ii) the need to avoid in the delimitation any excessive disproportion between
the extent of the continental shelf areas appertaining to the coastal State
and the length of the relevant part of itu coast, measured in the general
The 1982 Convention sets a goal to be achieved, but is silent as to the method to be
it is len to States direction of the coastlines (proportionality factor).
followed to achieve it. It restricts itself to setling a standard,
und
themselves, or to the courts, to endow this standard with specinc content.
The Court rejected the Maltese argument that economic factors and security
2. Natural Prolongatlon and Dlstance Princlple should also be taken into account as relevant factors in the delimitation of the
continental shelves. The Court pointed out that delimitation should not be influenced
into and under the
The Libya's view that the prolongation of land territory of Stute by the relative economic position of the two States in question, in such a way that
sea, referred to by the Court in the
North Sen Continental Shelf cases, was a the area of continental shelf regarded u appertaining to the less rich of the two
geological fact and natural prolongation in the same physical sense involving States would be somewhat increased in order to compensate for its inferiority in
geographical as well as geologicol and geomorphological aspects, remains the economic resources. In the opinion of the Court, such considerations are totally

fundamental basis of legal title to continental shelfarcas. For Malta, while it is still
Stute constitutcs a natural prolongationof
true to say that the continental shelf ofa
and under the prolongation is no longer defined by rcscrence
its land territory into sea,
unrelated to the underlying intention of the applicable rules of intemational law.
On security considerations, the Cour made the observation that these are unrelated
to concept of C'ontinental shelf.

to physical features, geological or bathymetric,

but by refcrence to a certain distance
held that both nutural prolongation and the distancc are UN Convention on the Law of the Sea, 1982
from the coast. The court
continental shelf. What it mcans is Convention on the
essential elements in the juridical concept ofthe excecd 200 nautical
In case of delimitation of the territorial sea, Article 15 of the UN
of the continental shelfdoos not Law of the Sea repeata Geneva formula. However, the Third United Nations
that where natural prolongation irrespective of the
defined by distance from the shore, between two groups
miles from the shore, it is Confercnce on the Law of the Sea has witnessed controversy
seabed and subsoil. The Court, therefore, selt of continental shelf-equity group and equidistance
physical nature of the intervening distance are not opposed but pn the issuc of the delimitation the
natural prolongation and The judgement in the North Sea Continental Shelfcases, 1969 triggered
that the concepts of other. In view of the Court, natural prolongation as well as group.
UNCLOS III that equitable principles should be basic delimitation
complementary to each delimitation of the opposito Asertion at the developed the concept
distance from the coast are
relevant considerations for criteria. The Unlted Kingdom-France Arbltration (1977-78)
continental shelves.
 289
LAW OF THE SEA
288 INTERNATIONAL LAW
issues involved
are:
The jurisprudential
of fundamental probleims ofjurisprudence. 0 whether equity plays
a single equidistance-cum-special circumstances rule which promoted a whether each boundary is a unicum,
i.c. unique or monotypic; principle
whether equidistance
compromise mood. cquity or autonomous equity; of
the role of corrective should develop the jurisprudence
The controversy between the whether courls
two opposite groups, namely, cquity and represents basic premise;
equidistance groups could not, however, be resolved. In view of the lack of eonsensus structured equity.
and rigidness of the positions taken
by the two opposite groups, UN Convention on
the Law of the Sea, 1982 offers an ambiguous and
vague solution to the issue of 1. Unlcum Conception
delimitation of the adjacent or opposite continental shelves and exclusive economic continental shelf is not
ofrecent
of each boundary of
zones. The precise factors to be taken into account in delimitation and the value or The conception ofuniqueness continental shelf. The
evolutionof the concept of
effect to be given to them have not been specified or clarified. and dates back to the to formulate a
origin
so greatly that it
often becomes difficult
Articles 74 and 83 of the UN Convention on the Law of the Sea contain an geographical features vary establishment of maritime boundaries
between states.
the
identical compromise formula on the principles of delimitation of the cxclusive general principle governing only in the light of
its own
and can be solved satisfactorily
economic zone and of the continental shelfbetween States with opposite or ndjacent Each situation is unique
interests involved therein.
coasts. Paragraph I of Articles 74 and 83 reads as follows: facts and the particular decisions of the
Intemational
funds support in various Continental Shelf
"The Unicum conception
as arbitral awards.
In Libya-Tunisia
States Court of Justice-as well shelf case in dispute
The delimitation of the exclusive economic zone/continental shelf between held that cach continental
the busis of International Court of Justice to its peculiar
with opposite or adjacent coasts shall be effected by agreement on own merits, having regard
case,
its
should be considered and judged
on
international law as referred to in Article 38 of the Statute of the
International Coun the
should bé made to overconcephualize
attempt
of Justice, in order to achieve an cquitable solution.
circumstances and, therefore, no
continental shelf.This view
and rules relating to the
appliction ofthe principles Court of Justice in Gulf of
Maine
that where there is an agreement the Chamber of the International
Paragraph 4 ofthe Articles 74 and 83 provides is affirmed by in the final analysis different
to the delimitation of the each specific case is,
in force between the States concerned, questions relating case. According to the Chamber, criteria can only be
determined in accordance with and that the most appropriate
exclusive economic zone/continental shelf shall be from others, that it is monotypic c ) In Gulnea/Gulnea Bissau
74 and 83 provides that particular
each case.
determined in relation to
the provisions of that agreement.' Paragraph of Articles
2 delimitation was a
of time, the States reafirmed that each case of
if no agreement can be reached within a reasonable period arbltration, the arbitral tribunal
for in Part XV of the Convention
concemed shall resort to the procedures provided
unicum,)
based the premise that endless variety of
The Unicum conception is
on
on settlement of disputes.

International
international maritime boundary ICJ Rep. 3 reprinted in 8
13.6.3.1 Equity vis-d-vis Equldistance-The 60(a). North Sea Continental Shelfcases, 1969, International
the Law of the Sea, 1982 scems to be Materlals, 340 (1969); Anglo-French Award of 1977, Reports of
law contained in the UN Convention on Legal Internatlonal Legal Materials, 397 (1979);
Tunisia
in of delimitation of the continental shelf and the Arbitral Awards 3 reprinted in 18
indeterminate inasmuch as case
Internallonal lLegal Materlals 225 (1982):
coastal states is to delimit the v Llbyn, 1982 /CJ Rep., 18, reprinted
in 21
exclusive economic zone, the legal obligation
of International
1984 ICJ Rep., 246 reprinted in 23
law, as refcrred to in Article Gulfof Mainc Area (Canada USA),
v

boundary by agreement on the basis of internationalin order to achieve an cquitable Arbitral

Legal Materlals, 1197 (1984);
Award of 1985 in Gulnea/Gulnea-Bissau
38 of the Satute of the International Court of Justice, Maritime Boundary, 25 International Legal
of teritorial sea, the UN Convention on Dispute concerning Delimitation of
solution. However, in case of delimitation Materials 251 (1986); I.ibya/Malta Contlnental Shel,
1985 ICJ Rep., 13 reprinted
references to the equidistant line, special Ouinea-Bissau/Senegal Arbitral
the Law of the Sea makes direct in 24 Internatlonal Legal Materlals 1189 (1985);
circumstances and historic title. In spite of
the indeterminancy of the law relating award was upheld by 1CJ
Award of 1989, 83 1.L.R. I (The procedural validity of this
exclusive economic zone, the coastal states Delimitation of Maritime Areas
to delimitation continentalshelfand
of in Ciulnea Bissau v Senegal, 1991 ICJ Rep., 53);
for the resolution of their International Legal
have preferred third-party dispute setlement procedures between Canuda and France (St. Pierre and Miquelon), 31
there are more judgements Salvador
maritime boundary delimitation disputes. As result,
a
Materlals, 1149 (1992); Land, Island and Maritime Prontier Dispute (EL
and awards on maritime boundary disputes than
on any other subject of international Honduras, Nicaragua intervening), Judgement of 1I September 1902, 1992,/CJ Rep.,
relating to maritime boundary Jan Mayen (Denmark
law. In view of the indeterminancy of the law 351; Maritime Delimitation in the Area between Oreenland and
Court Justice and Arbitral Awards
of v. Norway), Judgement of14 June 1993 ICI Rep. 38.
delimitation, the decisions of the International
even though there is no 60(6). 1982, ICJ Rep., 92.
articulate and shape the states' obligations in this regard
doctrine of stare decisis in international adjudication. 60(c). 1984, ICI Rep., 290.
The decisions of the Intermational Courtof Justice and
awards of arbitral tribunals 60d). 25 Internatlonal Legal Materlals al 289.90 (1986).
boundaries between States raise certain
with respect to the delimitation maritime
of
290 INTERNATIONAL LAW LAW OF THE SEA
291

geographical situations make each in cun ufford to shed its

fundaniental characteristic of universulity and generali,
y ina

dispute
case
uniquenes8 of cach case, the search for universally
a unlcum. In view of the
maritime boundaries.
the delimitution of
of maritime boundries
becomes otiose.* This ledds to
applicable rules for delinitalion
inconsistency on the subject because an attempt
of problem jurisprudential
solving all cases may lead to chase
to lay down precise critcria for 3. Struetured System of Equity
a chimera the taste is
appreciating the particular circumstances of the particularalways
as
of essentially onec
case. The solution to the jurisprudential problem created by autonomous equity lies in
rendering legal structure to cquity. An attempt to render legal structure to equity
2.Types of Equity takes us to the domain of corrective equity which focusscs ut uccording privileged
The slatus to cquidistance principle. This approach insists that cquidistance forms the
generally accepted principlo of
dolimitation of maritime boundaries is that
maritime boundaries must be determined the basis of u general rule to be modified, where appropriale, by the application of
by application of equitable principles,
taking account of all the relevant circumstances correetive cyuity. However, one cannot loss uight of vurious decisions of Intemational
Two distinct so as to achieve an
equitable result. Court of Justice and several arbitral awards whcrein cquidistance
approaches emerge on this issue, namely, corrective equity principle has
autonomous equity. and bcen demoted from the status of principle to merely one method among others of
delimitation of maritime boundaries. It has been consistently held that equidistance
(a) Correctlve Equlty method wus not a mandutory rule of international luw und that it cdid not
enjoy any
priority or prefcrential status. This has been settled jurisprudence since 1969. North
The corrective
equity approach views equity as a Sea Continental Shelf cascs,
Libya-Tunisia Continental Shelf case, Chumber in
the role of
cquity is to reduce the harshness of lawcorrective measure and holds that
and to mitigute the effects of the Gulf of Maine case and the urbitral tribunal in CGuinen-Guinea Bissau arbitration
application of the nule of law in particular alhered to this jurisprudence regarding
law would work an circumstances in which the strict rule of equidistunce. 'The lLihyu-Malta case needs
would result in
injustice. According to this approach, the special nention here. In this case, Malta argued that un equidistance line should be
modifying general rule of law where the parleular
the application of cquity considercd us a primary delimitution-as starting the delimitation process--to be
of the casc so circumstances
requiro. The corrective
equity adjustcd un necessary in the light of all relevant circunmstances. The Court
the cquidistance
principle in the delimitation approach
maritime
implion that application of
boundaries embodies the
to grunt
equidistanco any such special status by reculling that the refused
general rule. rojccted by the court in 1969 and has also failed of principlo was
Nations Conferenco on the Law of the Sea. ucceptance at the Third United
(b) Autonomous Equlty The Court did not
expressly confer any special status on the equidistance method
of delimitution-either as a
The autonomous general rule or as a
equity approach insists that legal concept of
equity is a general
or a
priority method, to be tested in every case. mandatorythemethod of delimitation
principle diroctly applicable as law and therefore constitutes an independo changed its tack in Libya-Malta case. In fact, theHowover, Court seemed to have
measures to delimit the maritime Court itself began the
boundaries. Equity assigned a lead role in the
is process by drawing a median line as a delimitation
delimitation process by this
approach. This nature of the provisional step by asserting that the cquitable
equity is to provide rules or criteria in the lightapproach maintains that the roleof equidistance method was particularly
of the particular case and these
nules
delimitation had to be effected between pronounced in cases where
or. criteria
vary from case to case. The Unicum breath, the Court warmcd that the fact that states with opposite coasts. In the same
equity which requires the court to render justice inconception supports autonomous
the concrete case by means of a an the
appropriate step should not be understood drawing of a median line
constituted
decision shaped by and adjusted to the relevant would bo an appropriate as
implying that an
The autonomous
factual matrix of the case.
between opposite states,The beginning in all
cases, or even all cases of equidistance line
rule of law which
equity approach amounts to excessive iIndlvidualization of the court, then, went on the reaffirm that delimitation
changes from one casc to another and is incompatible with the maritime delimitation was different in its every case of
very concept of law which body of equitable circumstances
from the next,
only a clear
guarantees
notion of autonomous equity intensifies the
minimum ofgenerality to a legal rule. The principles could permit such circumstances
tension between the weighed, and the objective of an equitablo to be
properly
justice arising from the uniqueness of a specific case andnecd for particular
the demand for
law to be attained. result asrequired by general international
Thereafter, the Court cited various
universalizable justice. The fundamental substance, the Court found itself bound equitable principles. In
jurisprudential problem is whether law to
international law and to balance up variousapply equitable principles as part of
relevant in order to produce an the considerations which it regarded as
60(e). L.D.M. Nelsen, The Roles of Equity in the Delimitation of Maritime
equitable result.
American Journal of Boundurics, 84
Iniernational Law, p. 837 at 839 (1990). 60(0. 1985, ICJ Rep., at p. 56.
 292 INTERNATIONAL LAW SEA 293
LAW OF THE
The Court stressed that so that it
equitable result was primordial requirement and the cconomie zones. However, the Court felt free to jettison equidistance
equitableness of a principle would be assessed in the light of its usefulness for the could craf alternative delimitation line in
the instant case.
indeterminate. The
purpose of arriving at an
equitable result. In sum, the court used autonomous cquíty The law on maritime boundary delimitations remains case
to achieve an equitablé result of Justice in LIbya/Malta
lnternational Court
notwithstanding the apparent change in its In seemingly changed approach
of
the arbitral award of 10 June 1992 involving Delimitation ofMaritime Areas track. case fell miles short
of rendering
became more pronounced in
Jan Mayen
Canada and France (St. Pierre and Miquelon), the arbitral tribunal rejected between which maritime boundary delimitation.
The Third United Nations
determinacy to the law on for emptying the
Conference on the Law of the Sea
has been mainly responsible
equidistance method because the case involved delimitation of adjacent maritimo Article 6 of the 1958
Geneva
delimitntion, as embodied in
boundaries and the application of equidistance method would produce a division law of maritime
The legislator gave
much of its juridical content.
of the area considerable different from the coastline ratio and the seaward projection Continental Shelf Convention, of
delimitation according to
indications. The goal of
of the Canadian coastline.a) The arbitral tribunal also refused to treat non- the judge only a few general 1982 UN Convention
Article 83, paragraph 1 off the
geographic considerations like social, economic and security considcrations as Article 74, paragraph 1, and solution. Any indication of
to achieve an equitable
on the Law of the Sea is simply
relevant factors and considered geographic consideration especially proportionality wlhich could give guidance to
the states in their efTorts to
achieve
a specific criterion convention. Emphasis
factoras a relevant to delimit the adjacent maritime boundaries. excluded in the text of the 1982
has been
In Jan Mayen (Denmark V. Norway)so« decided on 14 June 1993, the cquitable solution and rules
which has to be achieved. The principles
Court of is placed on cquitable nolution which are
International Court of Justice changed its approach. The International the delimitation of continental shelf
arcas are those
of 1958 to apolicnble to
limited to expressing
Justice favoured the application of Article 6 of the Geneva Convention result. The provision is
appropriate to bring about an cquitable the obligation to
delimit the continental shelf boundary. Article 6 of the Geneva Convention
on
agreement and recalling
the need for settlenment ofthe problem by
Continental shelf of 1958 contains the infamous equidistance/special circumstances solution.
equidistant principle. Norway argued
for the achieve an cquitable equidistance-special
rule wh gives preference to
In Bahraln0 decided by 1CI on 16 March 2001,
Qatar v
equidistant rule where as Denmark argued the opposite. Both Norway territorial sea has been held to be customary
application of Convention on Continental shelf of 1958
circumstances rule for delimitation of
circumstances nule as it has
and Denmark were parties to the Geneva rule and closely related to equitable principles/relevant
coastlines. The court was delimitation of
and the boundary to be delimited was between opposite law and state practice for
becn developed since 1958 in case
shelves as well as exclusive fishery delimited by adjusting equidistance
line in
called upon to delimit the opposite continental Convention and continental shelf and EEZ which are
The court clarified that both 1958 Geneva result.
and economic zones.
order to achicve equitable
was held that 'special
general international law seek produco an equitable result. It
to
Shelf Convention produce the
same
circumstances' under the 1958 Gontinental
international law. The court pointed
result as 'relevant circurmstances' used in general
4. Concluslon
and the general international law convention prescribes for maritime
out that both 1958 Continental Shelf Convention The generality of the norm that the 1982
Intermational CourtofJustice used equidistanco discretion and considerably increases
converged on this issue. Accordingly, exclusive delimitation leaves much room for judicial
delimitation of the opposite continental shelves, and arbitral tribunals dealing
as aprovisional line for and the findl delimitation linc the responsibility of lnternational Court of Justice
and Denmark maritime boundarics. Intemational
fishery and economic zones of Norway one cannot lose sight of the fact that with disputes conccrning the delimitation of
generated with reference to it. However, role to be played
was
the court emphasized the uniqueness of Court of Justice is conscious of the importanee of the legislative
in this care also as in the previous cases, the Court in international maritime boundary law but desisted from evolving
than the commonalities among
delimitations. The Court's by the Court, it would be
each delimitation determinative law on the subject because in the opinion of
more
The jurisprudential process
attempt equity cannot escape appreciation.
to structure
and techniques ia too carly to cvolve more detcrminative law on
delimitation of maritime
of evolution of structured and uniform delimitation procedures
circumstances nule of boundaries,)
initiated by ICJ-endorsed merger of the equidistance/special In the last 50 years, there have been more separate
intemational adjudications
Shelf Convention and the relevant circumstances/equitable on any other subject.
and arbitrations on this subject of public international law than
the 1958 Continental
intemational la, the rehabilitation of the
result rule of the contemporary general The legitimate questions0 posed to the court is: if now is too carly,
when would it
and the de facto application of the single maritime boundary. that it would be too
equidistance line, be time? The judicial inactivisn1 is not justified on the ground
out of the cellar and gave some recognition to its logic
The court took equidistance
delimitations of the continental boundary
and importance in maritime boundary
as well as thosc of
cxclusive fishery and 60(i). Indian Journal of Internatlonal Law, 42, 2002, p.
371.
delimitations of the continental shelf, 276.
60g). Wecramantry, J. Jun Mnyen, 1993, /CJ Rep., at pp. 214,
Maritime Boundary Delinmitation Law',
1149 at pp. 1162, 1168, 1169, 1176 (1992). 60(k). Junuthan I. Chamey, 'Progreas in Intermational
60(8). 31 International legal Materlals, p. Amerlcan Journal of Internatlonal Law, 88, 1994, p. 227.
60(h). 1993, ICI Rep., 38.
 LAW OF THE SEA 295

294 INTERNATIONAL LAw and South Americ

most of the developing
countries of Asia, Africa erica.
supported by
of its chief supporters
early for the Court to act. The state of indeterminacy in the law on maritime boundary India wus one
a few developed countries in the
however, opposed by
delimitation is most compelling reason for the Court to have resort to judicial The concept of EEZ was, Soviet Union. It was alleged that the
Japan and
activism and evolve structured system of equity for the purposes of delimitation of seabed conmittce, especially character of a part of the high seas, in
maritime boundaries. To achieve cstablishment of EEZ
would change the
consistency, predictability, certainty and objectivity
in the law of 1982 Convention for delimitation of freedom of fishing, gurantced by customary intemational
adjacent or opposite continental which all States had the
shelves and exclusive economic zones, Conventions of 1958. Japanese delegate alleged that the
equidistance principle must receive law and by the Geneva EEZ would be tantamount to granting
predominance and used as a starting method for drawing the boundary line to be isheries by establishing
protection ofcoastal grounds of the world as
to monopolizo the major fishing
coTected by equitable principles. The Court, therefore, carrles the judicial burden to a few countries the right
to spell out the guiding principles emanating from equity to correct the
equidistance the most lucrative fishing grounds
were to be found off the coast ofa limited number
line achieve equitable solution. The
so as to
the of EEZ on the plea that it would
initial application of equidistance line as of countries" Sovict Union opposed concept
boundary line and judicial crafting of equitable principles to modify the conservation of the biological resources
of the sea or their
not neccswurily lead to
equidistant line would render precision and determinancy to equity. This,is the which would mean the non-realization
of the optional catch.
mandate of law. rational cxploitution,
Japanese argument
The Japunvse und Sovict arguments do not appear convincing.
sound the of EEZ is devised to prevent making of fishing on the
is nol as concept
Indian Posltion Soviet arguniont is also fallacious
high weus tlhe monoploy of the developed countries.
Section 9 of the Indian Maritime Zones Act, 1976 us the coustul States were proparod to share
thoir surplus fisheries in the EEZ
the delimitation of boundaries of all the maritime prescribes the same principle for Finally, the concept of EEZ found its place in the Seabed
Committce due to its
zones between India and
State whose coast is opposite or any
overwhelming support by the developing countries. By thhe tine, UNCLOS II
adjacent to that of India. It provides that the
boundaries shall be as determined by agreement (whether entered into aANCmbled at C'arucus in 1974 for its first substuntive session, opposition to the
before or
after its commencement), and pending such concept hacd witherred uway. Not only did the developing countries clamour for it,
agreement, and unless any other nany developed countries also showed their inclinatiom to accept it. Sovict Union
provisional agreements are agreed to between them, the maritime boundarics
between India and such State shall not extend beyond the line and USA introduced proposal to that eftect" India introuuced a proposal along
is equidistant from the nearest overy point of which with Canada, Chile, Iceland, Indonesia, Mauritius, Mexico, New Zealand and
point from which the breadth of the territorial waters
of India and of such State are measured. Norway eluining sovereign rights for the purposc of exploring und cxploiting the
In bries, according to section 9, the maritine boundaries nutural rexources, whether rencwable or non-renewuble, in a 200-nautical mile
should not extend beyond
the equidistace line, in the absence of zonb The concept of exclusive economic zone, thus, became generully acceptable
any agreement between the parties. India's
maritime agreements with its neighbours follow the to the Stutesinthe UNCLOS l. At its Geneva session in 1975, it was incorporated
cquidistance line us a general
principle. in the Infornal Singlo Negotiating Text which provided: coastal State has certain
iglts in an urca of the sca beyond the torritorial waters; the breadth of this area
should bhe 200 nauticalmiles the neighbouring landlocked und other geographically
13.7 EXCLUSIVE ECONOMIC ZONE
disadvuntaged Stutes also have some riglht on the surplus fisheries and such a zone
The Exclusive Economie Zone (EEZ) would be of universal churacter. These principlcs remained
was also known as patrimonial sca during its unchanged in the later
generic phase. It aims to secure for coastal States the resources of the sea, the texts ofUNCLOS Ill and finally found their place in the United Nations Convention
seabed and the subsol, irrespective of variations in geographical or economic or on the law of the Sea of 1982.
ccological circumstances. The concept of EEZ is a product of UNCLOS II. It is
advanced by some developing countries with an uim to offset the economic .Ldmlt of the Excluslve Economie Zone
imbalance crealed by history in favour of a fow powerful countries.
UN Convention on the Law of the Sea, 1982 sels out the basic
The Seabed Committee received two important proposals. Colombia, Mexico provisions concerning
and Venezuela, under the heading "Patrimonial Sea,' introduced dralt articles which the legal regime of ELZ in its Articles 55 to 75. Article 55 defines the specific legal
was the result of the Santo Domingo Declaration of 1972, according to which "the regime of E2. I states that the EEZ is an area beyond und adjacent to the territorial
coBstal State has sovereign rights over the renewable and nonrenewable natural
resources which are found in waters, in the scabed and in the subsoil of an area 61. UN DOC. AJACI138/SC. IWSR 42.
adjacent to the territorial sea called the patrimonial sea.' The outer limit of the 62. UN DOC. AIACI/I38/SC. IWSRS. p. 56.
patrimonial sea shall not exceed 200 nautical miles from the applicablebuscline 63. UN DOC. A/CONF. 62/C. 2/L 38 and L. 47.
64. UN DOC. A/CONP. 62/ L. 4, Articles 12 to 18.
Another proposal was the draft article introduced by Kenya in 1972 which was
 297
THE SEA
LAW OF
296 1NTERNATIONAL LAW
environment.
the marine
and preservation of
sea, subject to the specific legal regime established in this part, under which the (ii) the protection in the
Convention.

duties provided
for the
rights and jurisdiction of the coastal State and the rights and freedoms of other C o n v e n t i o n in
(c) other rights and under this
its duties to the rights
and performing
States are govemed bytherelevant ofthis
provisions Convention. Article 57 ofthe 2. In exercising
its rights
the coastal
State shall
have due regard
with the
compatible
Convention provides that EEZ shall not extend beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured.
exclusive
e c o n o m i c zone,

other States
and shall act
in a m a n n e r
and duties of subsoil shall
Convention. scabed and
provisions of this article with respect
to the
out in this
3. The rights set accordance with Part VI.
Indian Position be excrcised in sovereign
coastal State: firstly,
Section 7, paragraph l of the Indian Maritime Zones Act, 1976 also adopts 200 off rights of the the
Article 56
identifies two types
and exploiting, conserving
and managing and the
nautical miles exclusive economic zone. It makes it explicit that the exelusive of exploring subsoil
seabed and
economic zone of India is an area beyond and adjacent to tho territorial waters, and rights for the purpose whether living or
non-living, of the exploitation
natural r e s o u r c e s , other activities
for the economic
and with regard to
curents
the limit of such zone is 200 nautical miles from the baseline. However, parngraph water,
2 provides that, notwithstanding anything contained in paragraph 1, the central
superjacent waters, the production of energy fromC othe n v e n t i o n . Article
ofthe zone, such as for in this
and cxploration provided
so to do having regard to other rights and duties to: (i) the
e s t a b l ishment
government may, whenever it considers necessary and winds. Secondly, coastal State with regard
international law and State practice, alter, by notification in the official Gazette, the jurisdiction in the marine scientific
56 also vests and structures; (ii)
e n v i r o n m e n t . It is
that no notification shall islands, installations,
limit of the exclusive economic zone. Paragraph 3 insists and use of artificial and preservation
of the marine the
resolutions approving the issue of such research; and (iii)
the protection dutics in the EEZ,
be issued under paragraph 2 unless and performing its
other States and
Parliament. in exercising its rights and duties of the
notification are passed by both Houses of made explicit that to the rights
have due regard of the C o n v e n t i o n .
coastal State should
with the provisions nature of the
m a n n e r compatible
should act in a it indicates the
and Duties of States for two r e a s o n s . Firstly, State has
2. Right Articles 56 is important of which the coastal
of areas: (i) tho waler and the activities in respect is detailed in other
Clearly, exclusive economic zone comprises two categories coastal State's rights, and jurisdiction
subsoil underlying the water
column. The aren the extent of such rights Sea. In fact,
column,. and (ii) the seabed and jurisdiction. However, the Law of the
is the continental shelf which,
in sevoral UN Convention on
which falls under the second category m o r e specific
provisions of the of the coastal State in
exclusive
nnd duties the rights and jurisdiction
the limits of the seabed within EEZ. Thus, rights Article 55 summarizes underlines the fact that
the coastal State's
cases, cxtends beyond nautical 'miles 56
of the coastal States extend to
water column up to a distance of 200 economic z o n c . Secondly,
Article
and categorizes only
the economic rights
above-mentioncd wuter economic in nature,
seabed and subsoil underlying the confined to the living
and
from the baseline and the
balance hclween rights are primarily rights are not only
column. UN Convention on the
Law of thc Sca of 1982 strikes a as 'sovereign righta'.
These sovereign
activities for the
cconomic
the one hanel, and the r e s o u r c e s but also
to the other
dutics of the coastal State, on the non-living natural from the
the rights, jurisdiction and the production of energy
States on the other. of the zone, such as
rights and duties of other exploitation and exploration
winds.
wntcr cuTents and
Coastal States
provides as follows: (b) Other States
the Law of the Sea
Article 56 of the UN Convention
on
cxclusive cconomic
other States in the
the coastal State has Articles 58 contains rights and duties of
1. In the exclusive economie zone, follows:
zone. It provides as
the purpose ofexploring and cxploiting, conserving all States, whether coastal
or land-locked,
(a) sovereign rights for whethcr living or non-living, of economic zone,
and munuging the natural resources, 1. In the exclusive of this Convention; the
freedoms
and its subsoil, and with regard
provisions
to the relevant
the waters superjacent to the sea-bed enjoy, subject and overflight and of the laying of
and exploration of the referred to in Article 87 of navigation
other activities for the economic exploitation lawful uses of the
to
from the water, currents and
and other internationally
production of energy submarine cables and pipclines,
zone, such as the
such as those associated with the operation
sea related to these freedoms,
winds; and compatible with the
the relevant provisions of this Convention submarine cables and pipelines,
(b) jurisdiction as provided for in ships, aircraft and
Convention.
other provisions of this to the
rules ofintemational law apply
with regard to:

of artificial islands, installntions and 2. Articles 88 to 115 and other pertinent with this part.
(i) the estublishment and use insofar an they are not incompatible
exclusive economic zone Convention
their duties under this
structures
3. In their rights and performing
cxercising
(ii) marine scientific rescarch;
 LAW OP THE SEA 299
298INTERNATIONALLAW
installations or structures, measured
in the 500 meters around such islands,
exclusive economic zone, States shall have due not exceed
otherwise authorized by intermational
duties of the coastal Sate and shall regard to the rights and from each point of their outer edge, unless
comply with the laws and regulalions intermational organization. All ships
adopted by the coastal State in accordance with the slandards or as recommended by the competent
provisions of this intermational standards regarding
Convention and other rules of international to these zones and comply with
law insofar as they are not ure required respect
incompatible with this Part. of artificial islands, installations, structures, and safety
navigation in the vicinity to establish islands and other
coastal Sute is required not
Arnicle 58 provides that all States zones. 1lowover, the
enjoy, ithin the EEZ, the frecdom of sea lanes essential
devices where interference may be caused to the use recognized
of
and overflight and of the navigation
relevant provisions of this laying submarine cables and piplines, subjecl to the
of 60 gives priority to the interests of
to international navigation. Thus, Article
Convention. Thus, the cnjoyment of these freedoms is Article 60
not abvolute, but is
subject to the rights of the coastal State within the EEZ. international navigation over those of the coastal State. Furthermore,
the above-mentioned three Besides makes it explicit that artificial islands, installations and structures
do not possess
of the Convention, other frecdoms, other States cnjoy, subject to the provisions the status of islands. They have no territorial sea of their own and their presence
intemationally lawful uscs of the sca related to these
freedoms, such as those associated with the operation of does not affect the delimitation of the territorial sea, exclusive economic zone or
cables and piplines, and ships, aircraft and submarine continental shelf.
Furthermore, in the exercisecompatible with the other provisions of this Convention.
of their rights in the
regard to the rights and duties of the coastal State and EEZ, States should have due
and regulations shall comply with the laws (e)Llving Resoures
adopted by coastal State in accordance with
the
the provisions of
this Convention and other rules of
international law insofar as these In addition to Article 56, the rights and obligations of the State concerning living
incompatible with this Convention. are not
resources of the EEZ are detailed in Articles 61 to 70 and Article 73.
Article 61 deals with the conservationofthe living resources of EEZ. It provides
(c) Residual Rights and Jurisdictlon that the coastal State shall determine the allowable catch of the living resources in
In Article 59, UN Convention on its EEZ. Purther the coastal State shall ensure
the Law of the Sca through proper conservation and
realization that it is gives expression to the management measures that the maintenance of these resources is not endangered
and other States
impossible
to detail all the rights and jurisdiction of the coastal
comprehensively. It provldes: by over-exploitation. Such moasures shall also bo designed to maintain or restore
populationu of the harvested species at lovels which can produce the maximum
In cuse where this Convention does not uttribute rights or sustainuble yield, as qualified by relevant environmental and economic
State jurisdiction to the coustal factors,
or to other States within the exclusive
ecunomic vone, and u conflict including the economic needs of coastal fishing communities and the special
between the interests of the coastal State and uriscs requirements developing States, and taking into account fishing patterns, the
of
should be resolved on, the basis of any other State or Slutes, thc conlict
cquity und in the light of all the relevant interdependence of slocks and any generally recommended international minimum
circumstances, taking into pccount the respective standards, whether subregional or regional or global. These conservation
to the parties as well as to
the international
importance of the intercsts involvecd
community as a whole. prescriptions formed part of Article 61 of the UN Convention on the Law of the
Sen at the insistence of the
(d) Artilclal Islánds, Installations and Struetures developed fishing States.
Article 62 concerns utilization of the living resources.
Article 62, paragraph 1
Article 60 of the UN Convention on the Law of the Sea requires the coastal State to promoto tho objective of optimurh utilization of the
economic zone, the coastal State shall have the provides that in the exclusive living rcsources in the EEZ without prejudice to Articlo 61.
exclusive right to construct and to the allowable catch in Article 61 and the Thus, the concepts of
authorize and regulate the construction, optimum utilization in Article 62(1) are
operation and use of: (i) artificial islands; deulgned to promote full utilization of the living rosources.
(i) installations and structure for the purposecs
provided for in Article 56 and other
economic purposes; (ii) installations and structures which Article 62, parayraph 2 requires the coastal State to
determine its capacity to
interfere with the harvest the living resources within the EEZ. If the coastal State
exercise of the righta of the coastal State in tho zone. It is may has the capacity to
also provides that the harvest the entire allowable catch, then,
costal State shall have exclusive
jurisdiction over such artificial islands, installations 70 (deuling with rights of landlocked and
subject to the provisions of Articles 69 and
and structures, including
jurisdiction with regard to customs, lscal, health, safety geographically disadvantaged States
and immigration laws and respectively), the coastal State is under no obligation to allow other States access
regulations. Furthermore, the coastal State niay, where to the living resources of the EEZ. Where
the coastal State does not have the capacity
necessary, establish reasonable safety zones uround such artificial to larvest thhe cntire allowable
installations and structures in which it may take islands, catch, it shall give other States access to the surplus
appropriate measures to ensure the of the ullowable catch,
subject to the terms and conditions established in its
safety both of navigation and of the artilcial islands, installations and structures. regulations mentioned in Arlicle 62, paragraph 4.
The breadth of such safety zones shall be determined the
by coustal Slatc but shall Article 62, paragraphs 2 and 4 specify certain factors which the coastal'State

AAJ
300 NTERNATIONAL LAW n TUnePA 321

should take into account in LAW OF THE SCA 301

requires that the coastal Stategiving access to other
States. Article 2,
Articles 69 and 70, should have paragraph 2 whole, including the countries fated by history to occupy the hinterland. But these
especially in relation to theparticular regard to the provisions of attempts were defeated in the Conference. Article 69 of the UN Convention on the
This.provision gives special consideration developing States mentioned
therein. Law of the Sea, 1982, recognizes the right of landlocked States to participate, on
disadvantaged
In respect of
States in the context of to landlocked and
access to the geographieally an equitable basis, in the exploitation of the living resourcen of the exclusive
giving access to other States, Article surplus of the allowable catch. coastal States in the same region or subregion. Such right of the
coastal State shall take into 62, paragraph 3 states that economic zones of
landlocked States is subject to two main qualifications firntly the right exists only
account all relevant the
significance of the living resources of the area to factors,
the
including, Inter ala, the in respect of an appropriate purt of the surplus and secondly, the relevant economic
concemed and its other national economy of tho coantal State and geographical circumstances of all States concemed must be taken into account
requirements of developing Statesinterests,
the provisions of Articles 69 and together with the generally applicable criteria goveming conservation and utilization
70, the
in the subregion or
the surplus and the need to region in
minimize economic dislocation in Statesharvesting part of of the living resources of the E:2," The terms and modalities ofparticipation must
have habitually fished in the zone whose natlonals be agreed by way of bilateral, subregional, or regional arrangements, taking into
or which have made
and identification of stocks. substantial effortas in research account the need to avoid detrimental effects on the fishing industries of coastal
Thus, except in cases of landlocked and geographically States, the extent to which a purticular landlocked State maybe ablo to claimaccess
disadvantaged States, UN Convention on the Law of the Sea gives coastal State to the exclusive economic zones of other States, the extent to whlch a particular
wide discretion in
determining who shall have access to surplus living resources of coastal State may be burdened by claim to participation by other landlocked States,
the zone. and the nutritional needs of the populations of the States concemed." Similar
Finally, Article 62, paragraph 4 requires the nationals of other States fishing in provisions are made with respect to Stuates with special geographical characteristics
the EEZ to comply with the conservation measures and with the other terms and which are defined as coastal States, including States bordering enclosed o
conditions established in the laws and regulations of the coastal State. semi-enclosed seas, whose geographical situation makes them dependent for the
nutritional needs of their populations on the exclusive economic zones of other
States in the region, and coastal States with no exclusive economic zones of their
Landlocked and Geographlcally Disadvantaged States own.

The landlocked States and geographically disadvantaged States, such as those with
short coast-lines and shelf-locked States formed a distinct negotiating group at
UNCLOS I1. It is interesting to note that before the beginning of UNCLOS II,
landlocked States were preoccupied with the question of access to the high seas
and transit across neighbouring teritories." At UNCLOS 1, the ainm of
landlocked States was far-reaching. Their aim in the Conference was to necure for
landlocked and other geographically disadvantaged Sates (LLODS)
also developing countries, preferential rights in
cspecially those
thatw neighbouring cconomie
zones as wellas cquitable treatment in the sharing ofthe
resources of the
International
Scabed Area. The success of the LLODS Group may to some extent be meaured
by the number of references to landlocked and disadvantagod States
geographically
in the text of UN Convention on the Law of the Sea.
At UNCLOS 1, LLGDS Oroup made an attempt to secure a right to share in
the non-living as well as the living resources of
neighbouring economic zonos
Such a right was arguably based, inter alia, on a conception of the continental shelf
as a natural prolongation not merely of the coastal State but of the landmass
as a
(0 Pollutlon Control
UNCLOS II has witnesed controversy between developed and developing States
over the issue of the extent of coastal State's jurisdiction in EEZ for pollution
the control. The developed States strongly emphasized that the coastal States ahould at
the
most have the juriadiction
to adopt internationally agreed standards of pollution
control. This viewpoint was criticized by some coastal States, not all of whom
were developing States, who argued that coastal States should be able to enact
national standards, if in their view the international atandards were inadequate.
This latter view was supported by India who suggested that lnternatlonal
up two sets of standards: firstly mandatory standards
organizations should draw
whichwouldbe applicablein any State accepting them, and secondly, recommended
of pursuasive value, with due regard to the economie burdens for
practices
developing countries and the problems of the sensitive regions or areas." UN
Convention on the Law of the Sea follows the former approach. Part Xll of the

65. Barcelona Convention and Statute on Freedom of Transit, LN. T.S. 7, 1921, p. 11: 67. UN Convention on the Law of the Sea, Aricle 69, para .
68. Ibid., Article 69, para 2.
Declaration recognizing the Rlght to a Plag of States having no sea-coast, Ibld., p. 73;
Geneva Convention on the Hlgh Seas, 1958. Anicle 3. U.N.T.S. 450, p. 11; Convention
69. UX, Israel, USSR, Denmark, und Italy, UNCLos 1, omcial Records, Vol. I,
on the Transit Trade of Landlocked State 1965, U.N.T. S. 597 p. 3; UN Conventlon pp. 200, 179, 79, 311,312-13.,315 respectively
70.
on the Law of the Sea, 1982, Arnicles 124-32. China, Chile, Canada, Tan/ania, New Zealand, Ibid., pp. 187, 328-29 and 311,317,
320 und 326
66. UN Convention on the Law of the Sea, 1982, Aticles 58, 69, 70, 71, 72, 82, 87,90, respectively.
124-32, 140, 141, 148, 254, 266, 272, 274. 71. Kakodkar (India), Ibld., p. 203.
 LAW OF THE SEA 303
302 INTERNATIONAL LAW

Convention deals with protection and extension to thein ofscientific and

technical assistance." In this oreo, it also provides
preservation of the marine environment. Purt international organizations in
XII consists of 11 sections
comprising of 46 Articles (Articlos 197-237). for preferential treatnvent for developing States by
the utilization oftheir specialized
UN Convention on the Law of the Sea,
1982, clarifles that pollution of the the allocation of funds and technical assistance and
marine environment means the introduction
by man, directly or indirectly of servicos."
substances or energy into the marinc environment roduce and control marine
(including estuaries) which resulls The Convention also makes provisions to prevent,
or is likely to result in such
deleterious effects as harm to living resources and pollution from landbased sources, pollution from seabed activities subject to national
marine life, hazards to human health, hindrance to nuarine
and other legitimate use of the sen,
activities, including fishing8 jurisdiction, pollution from activities in the Internmational Seabed Area, pollution
reduction of amenities.
innpairment of quality for use of sca water and by dumping. pollution from vessels, and pollution from or through
the atmosphere."
In this rogard, the Convention also contains enforcement provisions. As a general
Article 192 of the UN Convention on the Law of the Sea
on the State to
imposes an obligation rule, UN Convention on the Law of the Sca provides for the application of
protect and preserve the marine environment. Article 193 of thec the
Convention enunciales that States have the
sovereign rights to cxploit their natural
international rules and standards in respect ofall'sources of pollution of marine
environment. The prescription of international rules and stondards in respect of
resources pursuant to their environmental
policies and in accordance with their marine pollution is intended to achieve uniformity and effectiveness. It may, however,
duty proteot preserve the marine environnient, These two articles altempt to
to and
strike a balance between resource oxploitation and bo submitted that the developing countries do not possess sulicient economic and
cnvironnmental considerations. technical resources to onable them to meet thoir environmental obligations. Unless
Article 194 doals with measures to prevent, reducc and control
marine environment. It obligates the Statos to take mcasures to control pollution of the the developed countries help developing countries technically and financially, it
pollution possible for the developing countries to implement intcrnational rules
from any sourco, using for the purpose the bost
and in accordanco with their
practicable means at their disposal would not bo
and standards.
capabilitics," It is pertünent to note liere that in UNCLOS
III, the following sources of marine pollution were identificd for the
purpose of the () Sclentile Rescarch
Convention: (a) landbased sources; (6) pollution resulting from seabed activities
within national jurisdiction; (c) pollution resulting from seabed activities in UN Convention on the Law
intemational arca beyond the limits of national jurisdiction; (d)
the of the Sea draws a distinction between scientific rescarch
in the teritorial sea and scientiflc research in the EEZ.
pollutionby dunmping; Article 245 of the Convention
(e) pollution from ships; and () pollution from and through the atmosphere" "The provides that in the territorial sea, coastal States, in the cxercise of their sovereignty,
States are also under an obligation to ensure that activitics under their have the cxclusive right to regulate, authorizo and conduct marine
or control are so conducted as not to cause
jurisdiction scientilic research.
damage by pollution to other States and It urher states that marine scientifc rosearch
their environment." "Th« Convention further obligates the States not to
therein shall be conducted only with
transfer, the express consent of and under the conditions set forth
directly or indirectly, damage or hazards from one area to another to troansform one by the coastal State. This
implies that the authority of the coastal State in this rogard is practically absolute.
type of pollution into another.* The issue of scientilic research in the EEZ has witnessed
UN Convention on the Law of the Sea seeks to secure III. The dilcmna surrounded the issue wheter it was controversy in UNCLOS
global and regional co-
operation to protect and preserve marine environment. It inposes obligation on necessary for States or scientific
bodies to seck to consent of the coastal State before
in that State's exclusive economic zone or not. underlaking
States to cooperate on a global busis and, as appropriate, on a regional basis, directly scientific research
In accordance with the 1958
or through comipetent intermational organizations, in formulating and elaborating Convention on the Continental Shelf, marine scientific rescarch has to be
intermational rules, standards, and recommended practices and procedures consistent done
with the consent of the coastal State. With that
that the same regime would be accoptable for prcedent
it was sensible to expect
with theConvention, for the protection and preservation of the marine environment, the EEZ, since both areas have a
taking into account characteristic regional features," llere, tho Convention simlar regime. Understandably, tho
developed States insisted that it would be an
accommodates the interesta of the developing Statcs by making provision for the unwarranted restriction of the freedom of the high scas to
the coastal Stato to givo its impose any necessity for
express consent. Thus, developed States made an effort
to chanye the legal regime to marino
UN Convention on the Law ofthe Sca, 1982, Article I, puru 4.
scientifie research undertaken on the continental
72. shelf in order to have complete froedom in that ield. From the
point of view of
73. Ibid., Article 194, para 1.
74. Jose Luis Vallarta, "Protection and Preservation of the Marine Environment und the developed States, the freadom of marine scientilc resoarch, if even within the
national jurisdiction, would be a blessing for mankind as a whole. On the other
Marine Sciontifle Rescarch at the Third United Nations Conference on the Law of the
Sea', Law and Contemporary Problems, 46, 1983, p. 147 at 148. hand, doveloping States felt that the bonefitu of marine scientific research would be
75. UN Convention on the Law of the Sea, 1982, Article 194, pura 2. 78.
76. Ibid., Article 195.
1bid., Aricle 202.
79. Ibld., Article 203.
77. 1bid., Article 197. 80. Ibld., Articles 207 to 212.
 304 INTERNATIONAL LAw
LAW OF THE SEA 305
achieved only if the coastal
State
controlled all foreign research within
jurisdiction that would include exclusive national a
It would be of interest to mention here that developing coastal States accepted
India supported this view by stating thateconomic zone and the
research in the EEZ ofcontincntal shelt.
the obligation to grant their consent on the condition that duties should be imposed
and the
should be undertaken coastal State
a on the researcher which ensure mutual benefit for the researching State
either by the coastal State itself or with the
consent of the coastal coastal State. Accordingly, UN Convention on the Law of the Sea recognizes a
State which should also have prior
activities in case its
regulations right to terminate the express research
series of duties of the researcher which ensure mutual benefits for the researching
State should also be able to
were
disregarded. India further added that the coastal State and the coastal State." Such duties include: duty to ensure the right of the
coastal State, if it so desires, to participate in the rescarch project; duty to provide
reserve certain
research by its own specific areas of its zone exclusively for
agencies and
marine scientific research in the vessels. As regards settlement of a dispute over access to the coastal State, at its request, with preliminary reports, soon a
as
EEZ ofa coastal State, India practicable, and with the final results and conclusions after the completion of the
judicial tribunal of, and in accordance suggested
should be settled in the that
these
with, the law of that research, duty to provide access for the coastal State, at it request, to all data and
State. samples derived from the, marine scientific research project and likowise to furmish
UN Convention on the l.aw it with data which may be copied and samples which may be divided without
of the Sea follows 1958 Convention on the
Continental Shelf. The Convention the
EEZ and on the continental shelf provides
that marine scientific research in
the
detriment to theirscientific value; duty provide coastal State, if requested,
to
in
consent of the coastal State." To
shall be conducted with the express or
implled
with an assessment of auch data, and research resultu provide assiatanceare their
or

avoid delay caused by inefficient

bureaucratic
assessment
or interpretation; duty to ensure that the research reaults made
procedure, the Convention includes provisons for the tacit consent of the coastal internationally available through appropriate national orintemational channels, as
soon as practicable; inform the coastal State immediately of any major change in
State. It provides that a research
project may be undertaken upon the expiry of six
months after the date
upon which the request with the necessary informntion was the research programme; and duty to remove the scientific researchinstallation or
conveyed to the coastal State, and nothing was heard from it within four imontl cquipment once the research is completed, unless otherwise agreed." Such
the receipt of the request.
Furthermore, the coastal State has the information received by the coastal States will be of great value for the scientific
right to regulate, communities of coastal States if they are able to organize proper dissemination of
authorize and conduct marine Bcientific research." In normal
circumstances, tho
Convention made it the duty of the coastal State to give its consent to such rescarch." the information received.
However, the Convention recognizes the right of the coastal State to withdraw it On the whole, UN Convention on the Law of the Sea, 1982, seems to have
consent, if the project: uccessfully balanced the interests of developed and developing States by providing
wel-balanced legal framework for marine scientific research.
(a) is of direct significance for the exploration and exploitation of natural
resources, whether living or non-living; (h) Indian Positlon
(b) involves drilling into the continental shelf, the use of explosives or the
introduction of harmful substances into the marine onvironment; Constitutional Position
the construction, operation or use of artifical
()involves
and structures;
islands, installations
Article 297 ofthe Constitution of India was amended by the Constituion (Fortieth
(d) contains information communicated pursuant to Article 248 regarding the Amendment) Act, 1976. Before this amendment, Article 297 read:
nature and objectives ofthe project which is inaccurate or if the researching
State or competent intermational orgenization has outstanding obligations All lands, mineralsandotheshelf
things ofvalue underlying the ocean with the territorlal
to the coastal State froma prior research project." waters, orthe continental of Indla, shall vest in the Union and be held for the
purpose of the Union.
Law the
UN Convention on
the of Sea, however, denies the coastal State of its
right to withhold consent in project to be executed on the continental shelf beyond After the amendment, Article 297 reads as follows:
200
nautical nmiles, unless the coastal Statehas concrete
projects for the exploration 1. All lands, minerals and things of value underlying the ocean within the
or exploitation of the part of the continental shelf*
territorial waters, or the continental shelf, or the economic zone of India shall
81. Kakodkar (India), UNCLOS I1, oMcial Records, Vol. I1, 352, Jain (India), Ibid., vest in the Union and be held for the
p. purpose of the Union.
Vol. IV, pp. 94 and 109. 2. All other resources' of the exclusive economic zone of India shàll also vest in
82. UN Convention on the Law of the Sea, Article 246, pana 2.
the Union and he held for the purpose of Union.
83. Ibid., Article 246, para 1, Article 252.
84. Ibid., Article 264, para 3.
85. Ibid., Article 246, para 5. 87. Ibid., Article 249.
86. Ibid., Article 246, para 6. 88. 1bid.
 LAW OF THE SEA 307
306 INTERNATIONAL LAw
notification in the Oficial Gazette,
3. The limits of the 6. The central government may,
by
territorial waters, the continental shelf, the exclusive zone to be a designated area;
economic zone, and other maritime zones of area of the exclusive economic
India, shall be such as may be (a) declare any
specified, from time to time, by
or under
any 1law made by Parliament. and with
respect to
deem necessary
The amendment vests in the Union of India (b) make such provisions as it may
the resources within EEZ. This is in resources of such
consonance with UN Convention on the and protection of the
coastal State has sovereign
Law of the Sea which providcs that the (i) the exploration, exploitation
rights over the resources of EEZ. designated area; or
of such
economic exploitation and exploration
(i) other activities for the from tides, winds and
Maritime Zones Act, 1976 of energy
designated area such as the production
Section 7 of the Act deals with EEz of India and current, or
provides as follow: of artificial islands, of-shore terminals,
(ii) the safcty and protection and devices in such designated area;
Excluslve Economic Zone installations and other structures
or
1. The exclusive economic zone of India environment of such designated area; or
(hereinaler referred to as the exclusive (iv) the protection of marine
economic zone) is an area beyond and adjacent to the territorial waters, and the relation to such designated area.
in
(v) customs and other fiscal matters
limits of such zone is two hundred nautical milcs from the baseline for the
sub-section (2) of section 3. referred
to in
Explanation-A notification issued under this
sub-section may provide
the designated areu of foreign ships by
2. Notwithstanding anything contained in sub-section
(1) the central governnment regulation of entry into and passage through
traflic separation schemes or any other
may whenever it considers necessary so to do having regard to international law the estublishment of airways, scalanes,
is not prejudicial to the interests of
and State practice, alter, by notification in the Offical
Oazette, the limit of mode of ensuring freedom of navigation which
exclusive economic zone. India.
3. No notification shall be issued under sub-section (2) unless resolutions
approving 7. The central govern1ment may, by notification in the oflicial Gazette
the issue of such notification are passed by both Houses of Parliament.
with restriclions and modifications us it thinks fil, any
enactment
4. In the exclusive economic zone, the Union has (a) extend, thereof to the exclusive
for the time being in force in India or any part
(a)sovereign rights for thethepurpose ofexploration, exploitation, conservation cconomic zone or any part thereof; and
for facilitating the
and management of natural resources, both living and non-living
well as for producing energy from tides, winds and currents;
as
(b) make such provisions as it may consider necessary
cnforcement of such cnactment,
(6) exclusive rights and jurisdiction for the construction, maintenance or
und any enuctment so extended shall have effect as if the exclusive economic
zone
operation of artificial islands, of-shore terminals, installations and other
a part of the territory of India.
or the purt thereof, to which it has been extended as
structures and devices necessary for the exploration and exploitation of the
resources of the zone or for the cónvenience of shipping or for any other 8. The provisions of sub-section (7) of section6 shall apply in relation to the laying
or maintenance of submarine cablesor pipclincs on the seabed
of the exclusive
purpose;
(c) exclusive jurisdiction to authorise, regulate and control scientificrescarch economic zone as they apply in relation to the laying or maintenance of subnarine
(d) exclusive jurisdiction to preserve and protect the marine environment and cahles or pipelines on the seabed of the continental shelf.
aircraft
to prevent and control marine pollution; and 9. In the exclusive economic zone and the air space over the zone, ships and
(c) such other rights as are recognised by international luw. of ull States shall, subject to the exercise by India or its rights within the zone,
enjoy frecdom of navigation and overflight.
5. No person (including a foreign govemment) shall except under and in accordance
with, the tern» of any agreement with tho central govennent or of a licence
or

a letter of authority granted by the central govemment, cxplore, cxploit any Linmlt of India's EEZ

resources of the cxclusive economic zone or carry out any search or excavation Section 7, paragraph 1 of the Maritime Zones Act, 1976, provides that exclusive
cconomic zone or drill therein or and
or conduct any research within the exclusive econonic zone of India is an area beyond and adjacent to the territorial waters,
construct maintain or operate any artificial island, off-shore terminal installation the limit of such zone is 200 nautical miles from the buseline from
which territorial
therein for purpose whatsoever: Section 7 empowers the central
or other structure or device any walers of India are measured. Paragraph 2 of
so to do having regard to international
Provided that nothing in this sub-section shall apply in relation to fishing by a governent, whenever it considers necessary
citizen of lIndia.
 308 INTERNATIONAI. LAW
309
LAW OF TH SEA

law and States

practice to alter, by
this zonc.
Paragraph 3 of scction 7notification in the Omicial
Gazettc, the limit of 13.8 IGH SEAS
Part VII
only after resolutions approving the requires
issue
that such notification shall be
issucd High are that part
Seas of the Sea which are beyond national jurisdictions.
1982 (Articles 86 to 120)
deal with
Houscs of Parliament. of such notification are passed by both on the Law of the Sea, the
These ofthe UN Convention seas. UN Convention on
UN, Convention« the Law provisions correspond to Articles 55 and 57 of the the regime of the high
are not defined by
High seas
impliedly explains
the
of the Sea of 1982. Article 86 of the Convention
Law of the Sea. However, not included in
the exclusive
the that are
as all parts of
sea
or in the
concept of high seas internal waters of a State,
Rights of Indla cconomic zone, in the
territorial sea or in the
intermal waters, territorial
waters
archipelagic State. Thus,
Section 7, paragraph 4 of the archipelagic waters ofan from the limits of the high
seas.
excluded
Maritime Zones Act, 1976 contains and cxclusive economic
zones are

(a) of paragraph 4 corresponds to Articlc 56 rights of tho UNin

her EEZ. Clause of India
Convention on the Law of the Sea. Clause (1) (a) Freedom of High Seas
(b) ofparagraph 4 coresponds to 13.8.1
(1) of the UN Convention on the Law of the Sea. Articles
principles of
S6 (1) (6) (i) and 60
governed by a regime characterized by
Clause (c) Likewise, Once, all the seas were
of the territorial sea
followed by
of paragraph 4 on scientific research is in harmony with Article 56 (1) commonage' and
freedom. The emergence
high seas
Even the
the limits of the high
seas.
(6) (ii) of the UN Convention on the Law of the Sea. However, Clausc (c) of cxclusive economic zone
has reduced rights
State's
to additional rights fof
coastal States, such as, coastal
paragraph 4 appears to deviate, in some respects from the UN Convention on the are now subject seas in ase it extends beyond 20o
Law of the Sea when it confers on the Union exclusive shelf where it is under the high
jurisdiction to preserve and in its continental
control and scientific
research. Subject

protect the marine environnment and to prevent and control marine pollution, It is EBZ; new regimes for pollution
nautical miles continues to be
characterized by

pertinent to remark here that this provision represcnts the stand taken by the the regime of the high seas
at all
to these limitations, not mean, as it
used to,
but commonage does
developing coastal States in UNCLOS I. UN Convention on the Law of the Sea commonage and frcedom, and the seabed, and frecdom is
of the sea
does not concede exclusive jurisdiction to the coastal State in respect of free to take the resources
marine States are
intermational regulation.
pollution. However, the Convention recognizes the jurisdiction of the coastal State subject to increasingUN Convention on the Law of the Sea deals with freedom of
in this regard to the cxtent indicated in the relevant provisions on the marine Article 87 of the all States, whether
coastal or
that high scas are open to under the
environment. the high seas. It states the high seas is exercised
areas in clear that freedom of
landlocked. It is made rules of international law.
Paragraph 6 of Section 7 of the Act contains the concept of designated to bo this Convention and by other
of the BEZ conditions laid down by
the EEZ and empowers the central govermment to declare any area seas comprises, inter
alla, both for coastal and
a designated area. The Act does not indicate size the designated area, Technically
of Furthermore, freedom of the high
does not contain the concept of laridlocked States:
speaking, UN Convention on the Law of the Sea the Convention
designated areas either in EEZ or in continental shelf. However, the (a) frecdom of navigation;
allows the coastal State to establish reasonable safety zones, not exceeding freedom of overflight;
and structures within (b)
breadth specified therein, around artificial islands, installations, (c) frecdom to lay
submarine cables and pipelines;
measures to ensure installations pemitted under
in which it take appropriate artificial islands and other
EEZ and the continental shelf, ofartificial may
islands, installations and structures."
(d) freedom to construct
the safety both of navigation and international law;
establishment ofsafety zones around scientific
The Convention also provides for the (e) freedom of fishing:
research installation. In special circumstances,
the Convention permits the coastal
Sreedom of scientific research.
in the EEZ wherein it could take special mandatory ( contains only four
State to designate special
a area
Convention on the High Seas
for the prevention of pollution from vessels." In contrast, 1958 Gencva freedom of overflight,
measures
freedom offishing,
freedoms, namely, freedom of navigation, the Law of
Act, 1981 and freedom to lay submarine cables
and pipelines. UN Convention on
The Maritime Zones ofIndia (Regulation ofFlshing by Forelgn Vessels) the Sea contains two additional freedoms, namely, freedom to construct to artificigl
to Maritime Zones Act, 1976, India has
It may also be mentioned that in addition islands, and freedom of scientific research.
also enacted the Maritime Zones ofIndia (Regulation ofFishing
by Foreign Vessels)
by foreign vessels in the
Act, 1981. The Act provides for the regulation of fishing the Act, as
been defined, for the purpose of 13.8.2 Sea Piracy
Maritime Zones of India which havé of
the territorial waters of India and EEZ of
India. activities ofmankind in the seas, the problem
With the enormous increase of the
has assumed alarming dimensions. Traditionally, robbery
international sea pirncy with
89. 1bid, Aticle 60. This view underwent a change
was treated as an essential ingredient ofpiracy.
90. Ibid., Article 260.
91. Ibid, Article 211.
 LAWOF THE SEA 311

310 INTERNATIONAL LAW

Constuntinople, the Turkish
Lotus arrived ut
Turkish subjects. When the captain of the Turkish
the passage of time. Now, robbery is not cssential ingredient of pirucy. Acts of eight criminal proceedings against
Govement instituted joint were both
and they
violence are sulTicient for the comumission of un uct of piracy. Article 101 of the the watch on board tho Lotus,
veNOl and the French OMicer of on the ground that
UN Conventionon the Law of the Sea delines piracy. According to it, piracy consists
of any of the following acts: scntenccd to imprisonment. The
French Government protested
committed on the open sea by a foreigner
on
an act
Turkey had no jurisdiction
over
asserted) had exclusive jurisdiction as
(a) any illegul act of violence or detention, or any act of depradation, committed bourd a foreign vessel, whose flag
Stato (it
to PCIJ which held by
for private cnds by the crew or the passengers of a private ship or a private was referred by agreement
rogarda such acts. The dispute not acted in conlict with
the principles
aircrafl, und directed: Vote, that Turkey has
the Prevident's Casting because, inler alia, the
law in instituting the criminal procoedings
(i) on tho high seas, against another ship or aircrafl or aguinst persons or of international
committed on board the Lotus produced its effects on board the Boz-Kourt
property on bourd such ship or uireran; act
and thus as it were, on Turkish territory wlhereupon Turkey
i) against a ship, aircran, persons or property in u place oulside the under the Turkish flag
jurisdiction of any State acquired jurisdiction over its foreign perpetrator. is no rule of international law
The Court also expressed the opinion that
there
(6) any act of voluntary participation in the operation of a slhip or of an aircral over a foreigner in respect of
which prohibits a State from exercising jurisdiction
with knowledgc of facts making it a private ship or aireraft; The territoriality of criminal law is not
an offence committed outside its territory.
(c) any act of inciting or of intentionally facilitating an act described in sub.
an absolute principle of intemational law
and by no means, coincides with territorial
paragraph (a) or (b).
soveroignly the high
An analogous provision is made by Article 15 ofthe 1958 (Jeneva Convention The Court made the observation: what occurs, on board a vessel upon
sCas must be regarded as if it occurred on the territory of the State whose flag the
on the High Seas.
shlp flies. If, therefore, guilty act committed on the high seas produces effects,
its
Piracy is treated as an offence against all nations. Thereforo, any State can have
on a vessel Nying another flag or in foreign territory, the same principles
must be
jurisdiction over pirates. Accordingly, Article 103 of the UN Convention on the
Law of the Sea stutes that a ship or aircran is considered a private ship or aircraln it applied as if the territories of two different States were concermed and the conclusion
must therefore be drawn that there is no rule of international law prohibiting
the
it is intended by the persons in dominant control to be used for the purposc of
comitting one of the acts referred to in Article 101. The sane applies ifthe ship State to which the ship on which the effects of the offence have taken place belongs,
or alrcran has been used to commit any such act, so long as it remains under the from reyarding the offence as having been committed in its territory and prosecuting,
control ofhe persons gully of that act. Article 105 of the Convention provides that accordingly the delinquent.
on the high aseas, or in any othet place
The Court, pointed out that thero was no rylo of customary intemational law
outside the jurisdiction of State,
any cvery which going urthor than the principle stated above established the exclusive
State may seize a pirateship or or a ship
aircral), or aircra
tuken by
piracy and
under the control of pirates, and arrest the persons and scize the property on boards. Juriadiction of the State whose flag wa flown.
The courts of the Stato which carried out the seizure may doçide upon the pcnalties In January 1929, a communication was received by the League of Nations from
the International Association of Mercantile Marine officers, expressing their concerm
to be imposed, und may also determinc the action to bo luken with regard
to
the ships, aircrafl or property, subject to tho rights of third parties acting in good about the Lotus judgenment which was capable of involving masters of ships in
doublo prosecutions. Tho question was also conaidered by tho lntemational maritime
faith.
Committee at ius Autwerp (1930) and Oslo (1933) Conferences and by a number
It must, however, be noted that undcr Article 107 of the Convention a seizure on Latin American States at their Montevideo Conseronce in March 1940 which adopted
account of pirucy may be carricd out only by wurships or mlitary aircrafl, or other that Crimes
service a treaty on 'International Penal Law.Article 8 of this Treaty provides
ships or aircran clearly markod und identifiuble us being on government Committed on lHigh Seas', whother on board alrcraft or merchant ships, must be
and authorized to thal cffect.
tried and punished according to the law of the State whose lag the vessel Nies.
Article
The principles enunciated in these conventiona are also incorporated in
13.8.3 Criminal Jurlsdlctlon for Collslon l of the Genova Convention of 1958 on the High Seas which enacts that no penal
for the
on the open sea or disciplinary proceeding may be instituted against the persons respon_ible
The question of criminal jurisdiction over an act causing a collision colliion oxcept before the
judicial or administrative authorities either of the flag
Permanent Court of International Justice (PCU) in the Lotus case"
came before the State or of the State of which Jhey are natlonals.
betwecn the French Steumship Lotus and
A collision had occured on the open sea Article 11 of the Geneva Convention thus overules Lotus case. Applying
both
loss of the latter and the death of
the Turkish Steamship Boz-Kourt, resulting in the the tests lald down in Artlcle 11, France has jurisdiction as the ship
(lies lag of
France and ito captaln was also a French National.
92. Lotus ocase, PCIJ Serlos A, No. 10 (1927).
 313
312 INTERNATIONAL LAW LAW OF THE SEA
or aircraft
excercised only by warships or military
aircraf, or other ships
An analogous provision in the UN may be service and authorized to
Convention on the Law of the Sea ia Article marked and identifiable as being
on govemment
97. Paragraph 1 of Article 97 clenrly
provides thhat in the event of collision or other
incident of navigation concerning a ship on the high seas, involving theany that effect."
c e a s c s ns soon as the ship pursued
enters the territorial
penal or
disciplinary responsibility of the master or of any other person in the service of the The right of hot pursuit
State, '00 Where a ship has
been stopped or arrested
ship, no penal or disciplinary seaof its o w n State or of a third the exercise of the
proceedings may be instituted against such circumstances which do not justify
persons outside the territorial sca in that may have
except before the judicial or administrative authorities either of the flag State or of damage
be compensated for any loss or
the State of which such right of hot pursuit, it shall
person is a national. Paragraph 2 states that in dinciplinary becn thercby sustained.0
matters, the State which has issued master's certificate
a or a certilicate of
competence or licence shall alone be competent, aster due legal process, to pronounce
the withdrawal of such certificates, even if the holder is not a national of tho State Indlan Positlon
which issued them. Maritime Zones of India
Finally, paragraph 3 of the Article 97 makes it cleur that no On the right of hot putsuit, section 9, paragraph 5 of the followa:
arrest or detention of the
ship, even as measure of investigation, shall be ordered by Act, 1981, provides as
any authorities other than
(Regulation of Fishing by Foreign Vessel»)
those of the flag State. this Act, any foreign
commisslon of any offence under
Where in pursuance of the India, the
the cxclusive cconomic zone of
13.8.4 Hot Pursuit vessel is pursued beyond the limits of cxerciacd beyond
authorized oficer by this Section may be
powers conferred on un
law
und to the extent recognizcd by .international
Intemational law recognizes the right of hot persuit on the basis that a coustal State uch limits In the circumstunccA
cannot be expected to allow a foreign ship to evade its jurisdictions by cscaping und Stutc pructicc.

into the high seas." Under customary international law, persuit must commence in Section 9, paragraph 5 of the Act will
have to be interpreted and applied
in the
internal waters or territorial waters of the persuing State." of the above-mentioned principles of international
law.
Article 23 of the 1958 Geneva Convention on the High Sens states that the hot light Foreign Vessels) Act,
pursuit can commence in the contiguous zone of the pursuing State in case of The Maritime Zones of India (Regulation of Fishing by
imprisonment, for the use of any
violation of the rights for the protection of which the zone is established. In this 1981, provides for heavy penalties, including licence or
zone of India without a valid
regard, Aticle III of the UN Convention on the Law of the Sea is comprehensive. foreign vessel for fishing in any maritime
pursuit and also for confiscation of such vcssel. 0
Under Article III of the UN Convention on the law of the Sea, the right of hot
pursuit shall also apply mutatis mutandis to violations in the exclusive economic
zone or on the continental shelf, including safety zones around continental shelf 13.9 SEABED MINING
installations, of the laws and regulations of the coastal State applicable in excluaive
Science and technolo8y advanced to such ah extent during 1960s
that it could be
economic zone or the continental shelf, including such safety zones." Such pursuit
at the mid oceans.
may only be continued outside the maritime zones mentioned above irthe puruit possible for the industrialized States to exploit the resources even
Occans contain treasures of mineral and hydrocarbon resources. Mineral
resources
has not been interrupted.* This means that once hot pursuit is broken ofr, it cannot
are found in the oceans in the form of manganese nodulea
which consist of
be resumed.
resources are found in liquid
mangancse, nickle, cobalt, copper, etc. lydrocarbon
Hot pursuit begins only if the ship satisfied
pursuing has itselfby
such
means as may be available that the ship pursued or one of its boats or other cran
practicable or gascous form such as petroleum, gas condences, helium, and sulphur.
working as a team and using the ship persued as a mother ship, is within the limits In 1967, the delegation of Malta to the United Nations proposed to put limitations
of the territorial sea, or, as the case may be within the contiguous zone or the to the search for minerals in the seabed.0 The delegation pointed out that recent
exclusive economic zone or above the continental shelf." The pursuit may only be recoverics of manganese nodules from tho loor of the
ocean at great depths
commenced afer a visual or auditory signal to stop has been given at u distance, pretcndeda racc on the part
of the technologically equipped nations to exploit this
which enables it to be seen or heard by the foreign ship." The right of hot purwuit newly revealed resource, which would thus accnie to the beneft of the rich and
93. Gcorge Schwurzenberyer, A Manual ofInternational l.aw, 1976, p. 110. 99. Ibid., Article 111, para 5.
94. Granville L. Williums, "The juridical Basis of Hot Pursuit', British Yearhook of
100. Ibid., Article l11, para 3.
International Law, 12, 1939. pp. 92-93.
101. 1bid., Article l11, paru 8.
95. UN Convention on the Law of the Sen, 1982, Article II1, paru 2. 102. Maritime ZonesofIndia (Regulution of Fishing by Foreign Vesscls) Act, 1981, Sections
96. Ibid., Article 111, paru 1.
10to 17.
97. Ibid., Article III, para 4.
103. UN Doc. A/6695.
98. lbid., Article I, paru 5.
 LAW OF THE SEA 315
314 1NTERNATIONAL LAW

other hand, the developing States

developed countries when really it was a resource that could be said to belong to having minimum possible powers. On the
mankind. The delegation of Malta further stated that if the resource was
exclusive
whercby tle toright
represonted by the 'Group of 77' sought regime be vested in the International
a

intemational control and the benefit distributed to

subject to
developing countries,
the world
economy would be transformed.
General Assembly Resolutions
On 15 December 1969, General
Assembly acdopted a Moratorium Resolution
declaring that pending the establishment of the proposecd intenationul regime, States
and persons are bound to refrain from all activities of
of the arca of the seubed and occan Noor, and subsoil
exploitation of the resourccs
thereof, beyond the linmits of
national jurisdiction. On 17 Dccenmber 1970, General
Auscmbly adopted a
resolution proclaiming the principles
governing the seabed the limits of nutional
jurisdiction.a It, inter alia, declared:
Seabed and Occan noor, und the subsuil thcreof, beyond the limits of nutional
jurisdiction (herelnater referred to as 'Arcu'), us well as the rosources of the Areu,
are the conmon
heritage of mankind. All uctivities regurding the cxplorution und
exploitation of the resources of the Area und other relutcd uctivitieu ahull be governed
by the intcrnutional recgime lo be cslublished. The cxploratlon of the Areu und the
exploitation of its resources shall by curried out for the beneflt of munkind us u
whole, irreCspective of the gcographlcal location of Stulcs, whether landlocked or
coastal, and taking into particular considerution the interests and nccds of tho
developing countrica. Accordingly, an internalional regime, applying to the Areu und
its resources und including uppropriute, internutional
muchinery to give cffect to its
provisions shall be cstablishod by an intornational treuty of universal churacter,
generally agreed upon. 1he rogime shall, Inler alia, provide for tho orderly and sufc
development und rational nunagemenl of the Arca and its resources und for expunding
opportunitios in the use thercof and ensure the cquitable sharing by States in the
benefts derived thercfrom, tuking into purticulur considerution the interests und needs
of the developing countries, whether landlockcd or coastul.
Thind Untted Nations Conference on the Law of the Sea
UNCLOS 1Il witnessod conflict of opinions on the isue of powers and functions
of the International Seabed Authority. While all Stutes had agroed that the resources
of the seabed were the common heritage of mankind, they disagrecd sharply us to
how mankind was to keep the beneflts of that heritago. Consoquently, the Stutes
diffored on the principles that should govern exploitation, and the organization and
role of any international seabed authorlly. The developed States sought essentially
international licensing system whoreby an international authority would issue
licences to yovemment (or to thoir nationals), collecting fceu or royalties that might
go to international development purposes. The internutional authority would be
organized to reflect the dominant interest of the Stutes that had the capital and the
technology necessary to support exploitation, and to assuro its limited function. In
other wordo, developed Slates wanted to creato a woak intermational seabed authority
104. Oeneral Auenibly Resolutlon No. 2574 (XXIV)
105. Oeneral Auembly Resolutlon No. 2749 (XXV).
would
mine tho veabod beyond national jurisdiction
for that purpose. They wished
Soubecd Authority which would establish an Enterprise
the basis of majority rule by States of cqual
an uuthority organized principally
on
voting authority. would estublish a "purallel' system,
In 1976, a compromise was proposed which
be exploited by Statcas (or their corporution), the other by
(one not of nining sites to
"The developel States would
an operuting unm of the Authority--the Enterprise.
ulsoprovide the Enterprise cupital and technology lo cnuble the Enterprise
to
however, us to the organizalion
curry out its lirst exploitation. Differences continued,
on a Council
of tho International Scabed Authority. There was agrecment inprinciple as in
(wilh weighted represcntation) and an Assembly (with cqual represcntation)
thhe United Nutions. "The developed States, however, insinting on 'assured uccess'
to their part of the system, wished to distribute authority to make certain that the
Assembly, which they could not control, could not interfere with such uccess. The
developing Stules continued to press for ellective control by the majority through
the Asvenmbly.
UN Convention on the Law of the Sea, 1982
Part XI (Articles 133 to 191) ofthe UN Convention on the Law ofthe Sea constitutes
regime of the International Scabed Area (referred to as 'Area"). At the outset, in its
Article the Convention makes it clear that Area' mcuns the seabed and occan
hoor and subsoil thercof, beyond the limits of national jurisdiction. The Convention
declares that Area and ils resourccs are common heritage of mankind, It also
provides that activities in the Area aro to be carried out for the bencfit of mankind
as u whole, irrespective of the geographical location of States, whether coastal or
land ocked, und tuking into consideration the intercsts and needs of the developing
countries,0 Furthermore, States must conduct themselves in the Arca according to
these principles, and have the responsibility to ensure that the activities in the Area,
whether undertaken by States Parties, or State enterprises, or nationals of Statcs,
are conducted according to
them."
13.9.1 Conntltution, Powers and Funetiona of International Seabed Authorlty
Intemational Seabed Authority (hereinafter referred as 'Authority ,) shall have three
principal orgyuns, namely, Assembly, a Council, and a Secretariat,0 In addition,
Authority shall have Enterprise as its organ through which it shall carry out its
minlng functions, In addition, such subsidiary organs as may be found necessary
may also be cstablished.
106. UN Convention on the Law of the Sea, Article 136.
107. 1bld., Article 140.
108. 1bld., Article 139.
109. 1bld., Arlicle 158, para .
10. lbid, Article 158, para 2.
1. 1bid., Article 158, para 3.
316 INTERNATIONAL LAW
LAW OFTHE SEA317
The Assembly
The Council
Composition, Procedhure and
Voting: Article 159 of the UN Convention on the Composition, Procedure and Voting: The Council shall consist of 36 members of
Law of the Sea deals with the Aulhority elected by the Assembly" Of these, 12 shall be from industrialized
consist of all the composition, procedure and voting. 1he Assensbly shal States, 6 from developing States, and remaining 18 shall be elected according to
members of the
representative in the Asscmbly, whoAuthority.
Each member shall have one
cquitable geographical distribution.3
advisors.2 The Assembly shall may be accompanied by altcrnates and Each member of the Council shall have one vote. " Weighted voting system is

Each member of the adopt its nules of procedure. followed in the Council. On questions of procedure, decisions shall be taken by a
Assembly shall have one vote" Decisions on questions
procedure, including decisions to convene or majority of the members present and voting." On questions of substance, voting
be taken special session of the Assembly, shall
by a majority of the members present and pattern difers according to the nature of the question. Decisions on substantive
of substance shall voting. Decisions on questions matters may be taken by way of two-third majority, three-fourths majority or by
be taken by a two-thirds
majority of the members
voting, provided that such majority includes a majority of the members present
and consensus depending upon the nature of the question." Consensus, here, means
in the session," participating absence of any formal objection
When the issue arises as to whether a question is one of
or not, that substaAnce
question shall be treated as one of substance unless otherwisc decided Powers and Functions: The Council is the executive organ of the Authority.° The
by the Assembly by the majority required for decisions on questions of
substance. Council shall have the power to establish, in conformity with this Convention and
the general policies established by the Assembly, the specific policies to be persued
and Functions: Article 160 of the UN Convention
Powers the Law of the Sea
on
contains powers and functions ofthe Assembly. The Assembly, as the sole organof
by the Authority on any question or matter within the competence of the Authority.3
Furthermore, the Council shall supervise and coordinate the implementation of the
the Authority consisting of all the members, shall be considered the supreme organ provisions of this Part (Part XI dealing with activities in the Area) on all questions
of the Authority to which the other principal organs shall be accountable as and matters within the competence of the Authority and invite the attention of the
specifically provided for in this Convention." The Assembly shall have the power Assembly to cases of non-compliance The Council has the power to submit the
to establish general policies in conformity with the relevant
provisions of this
Convention on any question or matter within the competence of the Authority." In
propo_ed annual budget of the Authority to the Assembly for its approval.

addition, the Assembly elects members of the Council" Secretary Generalfrom The Secretariat
among the candidates proposed by the Council,"30 membetrs of the Goveming Board Composition and Punctions: The Secretariat of the Authority shall comprise
of the Enterprise and the Director General of the Enterprise upon the
recommendation of the Council. Secretary General and such staf as the Authority may require." The Secretary
General shall be elected for four years by the Assembly from among the candidates
The Assembly shall consider and approve the proposed annual budget of the
consider proposed by the Council and may be re-elected. The Secretary General shall be
Authority submitted by the Council." It shall also have the power to
problems of a
general nature in connection with activities in the Area arising i the Chief Administrative Omicer of the Authority, act in that
and shall capacity in
States in connection all meetings of the Assembly, of the Council and of any subsidiary organ, and shall
particular for developing States, as well as those problems for perform such other administrative functions as are entrusted to the Secretary General
with activities in the Area that are due to their geographical location, particularly
for landlocked and geographically disadvantaged States.3

124. Ibid., Article 161, para 1.

112. 1bid., Article 159, para 1. 125. Ibid.
113. Ibid., Article 159, para 4. 126. Ibid., para 7.
114. Ibid., Article 159, para 6. 127. Ibid., para 8.
115. Ibid., Article 159, para 8. 128. Ibid.
116. Ibid. 129. 1bid.
117. Ibid., Article 160, para 1.
130. Ibid., Article 162, para 1.
118. Ibid. 131. 1bid.
119. 1bid., para 2 (a). 132. 1bid., Article 162, para 2 (a).
120. Ibid., para 2 (6). 133. Ibid., para 2 (b).
121. Ibid., para 2 (¢). 134. Ibid., Article 166, para 1.
122. 1bid., para 2 (d). 135. 1bid., Aricle 166, para 2.
123. Ibid., para 2 (k).
 LAW OF TUE SEA 319
318INTERNATIONALLAW
nine sections.
by these organs The Secretary General shall make an annual report to the Xl of the Convention. It consists of 10 Articles and an Anncx having
Assembly on the work of the Authority." that the provisions of the Agreement and
At the outset, the Agreement provides
In the event
Part XI shall be interpreted and applied together as a single instrument.
Enterprise of any inconsistency between the Agreemient and Part XI of the Convention, the
Enterprise shall be mining am of the Authority. It shull be the oryun of the Authority provisions of the Agreement shall prevail. No stato or entity may establish its
consent to be bound by this Agreement unless it has previously established
or
which shall carry out activitics in the Area
directly. The Bnterprise shall act in
accordance with this Convention and the rules, rcgulations and cslablishes at the same time its consent to be bound by the convention.
procedurcs of the
Authority, as well as the general policics cstablished by the Asuembly, and shall be
subject to the directives and control of the Council," The Enterprise shall huve its Flectlon of Council Members
principal place of business at the seat of the Authority, i.c. Januaica The Agreement provides that the Council shall consist of 36 niembers of the
Auhority elected by the Assembly in the following order
13.9.2 Parallel System
The central feature of the proposcd sclheme lor the control of activitics in the (u) Four members from largest consumcr or importer of minerals derived from
the Arca provided that these four members shall include:
Intermational Seabed Area is so-called 'parallel system'
the ofexploitation." When
-one State from Eastem European Region having largest economy in that
a State or one of its entities finds a promising site, it must submit a plan of work to region in terms of gross domestic product;
the Authority for approval, The site chosen must be larye enough to accomniodate
two operations, or must be adjacent to unother site suitable for a single operator. and

The Auhority then chooses one of these sites, the reserved area, hands it over to its
-
one State having largest economy in the world in tems of gross domestic
operating ann, the Enterprise, and grants a licencc for the Stute or its entity to product.
exploit the other. Joint ventures between the Enterprise and a State or its entity are (b) Four members from cight states which have made largest investments in the
also possible. The terms and conditions of activities in the Area would be regulated preparation for and conduct of activitics in the Area.
by a detailed Annex to the Convention" Principles and policics, however, are luid (c) Four members from major exporters of the minerals to be derived from the
down in the body of the C'onvention. These include the orderly and safe development Arca including at least two developing countries whose export of such
and national management of the resources in the Arca, thhe expansion of opportunities minerals have a substantial bearing upon their economies.
for participation in the Area, sharing of revenues with the Authority, transfer of (d) Six members from developing states representing special interests,
technology to the enterprise and to developing countries, tho promotion ofjust and landlocked and geographically disadvantaged states, states with large
stable prices for minerals taking into account land-based sources, cspecially the bopulations, island states, stat which are major importers of such minerals
effects on the economics of developing countrie's which are producers of such or which are potcntial producers of such minerals and least developed stateés.
(c) Eighteen members to be clected acçording to the principle of equitable
minerals, and the development of the conmmon heritage for the benefit of munkind
as a whole.4) geographical distribution. The geographical regions for the purpose shall
be Africa, Asia, Eastem Europe, Latin America, the Caribbean and Westem
urope and others.
13.10 AGREEMENT OF 1994 RELATING TO TIIE IMPLEMENTAdION
OF PART XI OF THE UN CONVENTION ON TIIE LAW OF The patlem of the electionof Council
members makes it clear that the Agreement
TIE SEA cnsurcw a place in the Council for United States.
The deliberutions in the Preparatory Conumission led to the adoption of an agreciment
Decison-making
in 1994 to iniplement the provisions of Part XI of the UN Convention on the Law
of Part
ofthe Sea, 1982. In fact, the Agrecment of 1994 hus revised the provisions The dlecision-making procedure in the Assembly and the Council of the 1994
Agreement dilfers from the Convention. According to the Convention, in the
136. Ibid., Article 166, pura 3.
137. 1bid., Article 166, pura 4.
Assembly, decisions on procedural issues are taken by simple majority of members
present und voting and on substantive issues, by 2/3rd majority whereas in the
138. Ibid., Article 170, pura 1.
139. 1bid., Article 170, pura 2. Council, decisions on procedural issues are taken by way of simple majority and on
140. Ibid., Article 170, pura 3.
141. 1bid., Annex. I.
142. Ibid., Article 143. 144. 1994 Agrecment, Article 2.
145. Ibid., Article 4.
143. Ibid.
 LAW OP THE SEA 321

320INTERNATIONAL LAW Obligation of State Parties to

Fund the Mining Operatlons of Enterprise

substantive issues, voting pattern differs from consensus, 2/3rd,

3/4th majorlty
UN Convention on the Law ofthe Sea, 1982 imposcs obligation on states parties to

to funding structure enumerated therein.57

according
depending upon nature of the issue.
ahall provide funds to the Enterprisethe of State Parties to fund the Enterprise
The Agreement of 1994 provides that the general policies of the Authority The 1994 Agreement scraps obligation
of the
AL be establiahed by the Assembly in collaboration with the Council." As general
a shall bo under no obligation to flnance any
and clarifies that states partiea
ule, decision-making in the organs of the Authority should be by consensus. Enterprise.," Instead the Enterprlae shall conduct
operations in any mine site ofthe
However, if all efforts to reach a decision by consensus have been cxhaustod, its mining operations through joint ventures,
lald down In
decisions in the "Assembly shall be taken according to the procedure
the Convention. Decisions of the Assembly on matters forwhich
Councll also Transfer of Technology
has competence or any budgetary, administrative or financial matter shall be based
Sea imposes an obligation on the State P'arties
on the recommendation of the Council. IfAssembly does not accept recommendation UN Convention on the Law of the of
of the Council on any matter, it shall return the matter to the Council for further International Scabed Authority to initiate programmes for the transfer
and
and developing countries with regard to activities in
consideration which shall reconsider the matter.5 technology to the Enterprise
and conditioins,0"The Authority and the
The 1994 Agreement provides that as a general decisions inthe Council
rule, the the Area under fair and reasonable terms
toward advancemont of technology
shall be made by consensus. If efTorts to arrive at consensus have been cxhausted, States Parties shall also take measurcs directed
training to
then on procedural issues, decisions shall be taken by the Council by majority of of tho Enterprise and developing countrics, particularly by providing ofstates
The obligation
members present and voting. On substantive issues, the Council shall decide by personnel from the nterprise and developing countries.
is not specifie but of general
2/3rd majority or consensus ifconvention provides for consensus providccd that the partics under the convontion to transfer technology and
decisions are not opposed by a majority in any of the Chamber. The opposition nature and is merely to initiation of programmes by the Authority
directed
by majority of the members in any of the chambers shall have crippling effect on States Parties concerning transfer of technology to Enterprise and developing
states
the decision-making authority of the Council. In the absence of the concurrence by countries as well as advancement of technology of Enterprise and developing
the majoriry ofmembers in the chambers, the council gets paralyscd and is not able countries
by way of providing training to pcrsonnel from Enterprise and developing
to decide. Therefore, the requirement of the concurrence by majority of members in marine science and technology by the Authority and States Parties.
in the chambers has the effect of veto which made the United Nations Security which
Council cripple in the past.
Annexure Ill of the Convention contains a provision emphatically imposes
The 1994 Agreement further provides that the Council shall opprove a
a specific obligation In unequivocal words on
the operators transfer to the
to
Enierprise, at the request of the Authority, the technology used by the operators in
recommendation by the Legal and Technical Commission for approval ofa plan of carrying out activitics in the Area on fair añd reasonablc commercial terms and
work.3 The plan of work approved by the Legal and Technical Commission can conditions.162
be disapproved by the Council only by 2/3rd majority of mcmbers prescnt and The general obligation of the Convention conceming technology transfer remains
voting including majority of the members in each of the chambers of the Council unchanged in the 1994 Agreement. However, the specific obligation ofthe operators
present and voting. Council does not take a decision on a recommendation
If the contained in the Annexure 1ll ofthe
Convention is scrapped in the 1994 Agreement.
for approval ofa plan of work within 60 days, the recommendation shall be
to have been approved. If the Commission disapproves the plan of work, the
decnmed The Agreement permits Enterprise and developing states to seck, ifthey wish,
Council may nevertheless approve the plan of work.* Any dispute rclating to
technology on fair and reasonable commercial terms on the open market and the
Statcs Parties undertake to co-operate with the Authority. The Agreement further
disapproval of a plan of work shall be settled according to dispute scttlement mentions that the transfer of technology shall be consistent with the effective
provisions of the Convention.*
protection of intcllectual property rights. The clause concorning effective
146. Ibid., Anncxure, Section 3(15). protection of intclleclual property has becn inserted and given predominance to
147. Ibid., Annexure, Scction 3(1).
148. Ibid., Anncxure, Section J(2). 157. UN Convention on the Law ofthe Seu, 1982 Annexure IV, Article 11(3).
149. Ibid., Annexure, Scction 3(3). 158. 1994 Agrecment, Annexure, Section 2(1).
150. Ibid., Annexure, Section 3(4). 159. Ibid., Annexure, Scclion 2(2).
151. 1bid., Annexure, Section 3(5). 160. UN Convention on the Luw of the Sea, Artlcle 144.
152. Ibid., Annexure, Section 3(11) 161. Ibid.
153. Ibid. 162. 1bid., Anncxure lI, Article 5.
154. Ibid.
163. 1994 Agrccment, Anncxure, Section S(1).
155. Ibid. 164. Ibid.
I56. Ibid., Anncxurc, Scction 3(12).
322 INTERNATIONAL LAWw LAW OF THE SEA 323

tailor the technology transfer any time by the

provisions of the Convention accurding to WTO inslend providcs that the Review Conference nay be held at
Agreements ANNCInmbly on the recommendation of the Council.
Production Policles
The Convention provides for a 13.11 P1ONEER INVESTORS
syatemof production
authorization by the Authority,
production limitations and production celings. The 1994 The UN C'onvention on the Law of the Sea was udopted on 10 Decenber 1982
of
system production authorization, limitations and Agreement scraps the alongwith four resolutions. Resolution I ereated Prepuratory Conimission for the
ceilings. Instead, the Agreement Internuational Seabed Authority and the International Tribunal for the Law of
states that the production
policy of the Authority shall be based on the following the
principles 1
Sea (hereinafner referred as PREPCOM) to prepare drat rules, regulations and
procedures necessary to enable the Authority to commence its functions, as wcll as
(a) Developnment of the resources of the Area shall take to make recommendations for the early entry into effcctive ojperation of the
with sound commercial principles; place in accordance
(b) The provisions of the General Agrcement on 'Tarifs and Trade, its rclevant Enterprise. Resolution ll consists of provisions to govern preparalory investient
in pioncer activities. Under this resolution, certain protections are granted to
codes and successor or superseding
agreeinenls shall apply with respect to qualilying seabed miners who apply to PREPCOM and are registered by it to conduct
activities in the Area explorutory activities. Resolution ll empowered PREPCOM to fulfil certain
(c) In particular, tliere shall be no subsidizütion of uctivitieu in the Area functions on behalf of the international community as a whole, on the other sicle of
as may be
except
permitted under thhe ugreenments referred to in paragraph (h); the parallel system, prior to the entry into operation of the Authority.
(d) There shall be no discrimination between minerals derived from the Aren
vis--vis mineruls derived from other 8ources by wuy of tariflf ion-turin Ploneer Activities
or
burriers.
Resolulion I1, paragraph 1(6) provides that the term 'pioneer activities' means
The above provisions of the Agreenment are tailored in accordance with WITO underlakings, commitments of financial and other assets, investigations, findings,
Agreements of 1994. rewcarch, engincering development and other activities relevant to the identification,

Economlc Assistance of AJected Developing Land-based Prolucer State

diwcovery, and systematic analysis and evaluation of polymetallic nodules and to
the detemination of the technical and economic feasibility of cxploitation.

The Agroement makes final attemptthut

to operationalize the concept of common
it shall be the policy of the Authorilty to
Cutegorles of Pioneer Investors
heritage
assist
of mankind by proclaiming
developing countries
which sufer serious adverse eflects on their export Resolution 11, paragraph I as provides that there are following thre categories of
eamings or cconomies resulting fromna reduction ofthe price ofan afected mineral ploneer investors:
or in the volume. of oxports of that minoral," It is obligatory for the Authority to
(o) four Stutes (Frunce, India, Japan and the USSR) or a state enterprise of
establish an oconomic assistance lund from a portion of the fund of the Authority cuch of those Stalcs or nalural or juridical porson which possesses the
which excoeds those necessary lo cover the ad1ministrative expenscs of the nationality of or is effectively controlled by each of those States, or their
Authority. "Tho Authority shall provide assistance from the fund to affected nutionals;
developing land-bused producer statcs. (b) four cntities which posses the nationality of one or more of the following
Slutes, or are effectively controlled by one or more of them or their nationals:
Review Conerence Belgiun, Canada, the Federal Republic of Germany, laly, Japan, the
UN Convecntion on the Law of the Sea provides that the Review confcrence shall Netherlands, the United Kingdom of Great Britain and Northern Ireland
and the United States of America;
be held 15 years after the commencement of production under
the above
approved plan of
of the Convention and (c) any developing State or state enterprise or national or juridicial person which
work. The 1994 Agreement scraps provision
possess the nationality of such State or is effectively controlled by it or its
nationals or any group of the foregoing,
165. UN Convention on the Law of the Sea, Article 151 .The pioneer investor is under an obligation to have expended an amount
166. 1994 Agreement, Annexure, Section 6(1).
167. Ibid., Section 7(1).
cquivalent to at least USS 30 million in pioneer activities provided that no less than
168. Ibid. 170. 1994 Agreement, Annexure, Section4
169. UN Convention on the Law of the Sca, Article 155.