International Law

Bba llb (301)

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 Al
Al-Ameen
-Ameen College of Law
Bangalore

(VIII SEM 5 YEARS & IV SEM 3 YEARS)

Prepared by: Kav

Kavya
ya Hebbar

Lecturer in Law

Al-Ameen College o
of
f Law

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 AL – AMEEN COLLEGE OF LAW

MODEL ANSWER PAPER- May 2014

IV Semester of 3 Years & VIII Semester 5 Years LL.B. Examination

SUBJECT: International Law

Duration: 3 Hours Max Marks: 100

Instructions:

1. Answer all 5 Questions.

2. One essay type and one short note question or problems from each unit have to be
attempted.

UNIT-I
1. a. Define International law. What is the basis of International Law?
Ans:

Introduction:

International Law is the law of nations. International Law is such laws which govern
the relation between the states. The word “International Law” first time used by Jermy
Bentham in 1780. Since then these words have been used to denote the body of rules and
principles which regulate the relations among the members of international community.
International Law is not a new issue, it developed from ancient time. According to
Oppenheim it is essentially a product of Christian Civilization. India, Rome most of the
countries contributed to the development of International Law.

Definition:

According to Oppenheim, “Law of Nations or International Law is the name for the
body of customary law and conventional rules which are considered legally binding by
civilized states in their intercourse with each other.”

According to J.L Breirly, “ The law of Nations or International Law may be defined
as the body of rules and principles of action which are binding upon civilized states in their
relation with one another.”

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J.G Starke defined International Law “as that body of law which is composed for its greater
part of the principles and rules of conduct which States feel themselves bound to observe, and
therefore, do commonly observe in their relations with each other, and includes also:

a. The rules of law relating to the functioning of the international institutions or

organizations, their relations with each other, and their relations with States and individuals;
and

b. Certain rules of law relating to individuals and non-state entities so far as the rights or
duties of such individuals and non-state entities are the concern of the international
community.

The Law of Nations aims at securing justice for human beings. In modern International Law
individuals are covered under the scope and also international organization.

Basis of International Law:

There are two main theories which explain the basis of International Law. They are as
follows:

1. Theories as to Law of Nature

2. Positivism

1. Theories as to Law of Nature:

The exponents of this theory have the view that the law is a part of nature. The
states follow the International Law because it is the law of nature and is the
higher law. It is the Natural Law which has conferred binding force on the
International Law. In the ancient period the law of nature was related with
religion. It was regarded as a divine law. This concept was later in 16th and
17th century secularized by the jurists. Much credit will go to Grotius.
According to him the law of nature was the ‘dictate of right reason’.
International Law was considered binding it was in fact, natural law applied to
special circumstances.

Criticisms:

The exponents of the International Law believe that the international

law is binding because it is based on natural law and they use it as a metaphor.
Different jurists give different meaning such as, reason, justice, utility, general
interest of international community, etc… hence the meaning of law of nature
is vague and uncertain. Its main defect is it is not based upon realities and
actual practices.

2. Positivism:

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 Positivism is in fact as contrasted with law which ought to be. According to
the positivists, law enacted by appropriate legislative authority is binding. It
based upon the actual practice of State. In their view, the treaties and
conventions entered by the states are main sources of International Law.
According to Starke, “International Law can in logic be reduced to a system of
rules depending for their validity only on the fact that States have consented to
them. According to the followers of this theory the state are binding for the
international law as they have given consent to it. The Italian jurist, Anzilotti,
one of the chief exponent of the positivist school. According to him, the
binding force of international law founded on a supreme principle or norm
known as pacta sunt servenda.

Criticisms:

1. The concept of the will of State presented by the positivists is purely

metaphorical.
2. It fails to explain the basis of customary international law where states have
not given consent.
3. They failed to explain the case when the states are admitted in to family of
nations. International law is applicable to them even without the consent.
4. Some principles of International law is applicable even to the non-members of
the U.N.
5. The positivists failed to explain the ‘General Principles of Law recognized by
civilized state’.

According to Starke no specific theory is capable of explaining the true basis of

International Law. Because in modern times, no state can escape from the hands of
International L aw, as most of the states are interdependent on other state for one or
the other reason. The International law is binding on the states. It ultimately binds the
man, whether he is single or associated with others in a state, is constrained in so far
as he is reasonable being, to believe that order and not chaos is the governing
principle of the world in which he has to live.

Some other theories:

a. Theory of Consent:
This theory based on the positivism. It failed to explain the basis of
International Law. According to this theory States obey the International Law
because they have given their consent to them.
The following are the criticisms:
i. As regards customary rules, it is not necessary to prove that States have
given their consent.
ii. In regard to customary rules, the basis of implied consent is far from
correct.

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 iii. It fails to explain in case of recognition of states
iv. It fails to explain the true basis of law even if we distort facts & fit them in
the theory.

b. Auto limitation Theory:

According to this theory, International Law is binding upon the states
because they have restricted their power through the process of auto limitation
and have agreed to abide by international law. The basis of this theory is this
that each state has a will which is completely independent and free from
external influences. But through the process of limitation, State can restrict its
powers and thereby limit its will. In short, the states are not bound to follow
the International law as they are sovereign, but by imposing limitations on
their power they themselves bound by such rules.

Criticisms:
i. It is based upon the presumption that there exist the will of the state.
But the will of the state is nothing but the will of the people who are
living in such state.
ii. The auto limitation theory will imply that the States can free itself from
self-imposed restriction at its will. In practice, this is not possible.
iii. It fails to explain the case of a state acquiring territory or undergoing
some changes, which bring with it, for the first time, the incidence of
the obligation under rules which previously it had no opportunity either
to observe or break, and to which it had no occasion to give or
withhold consent.

c. Pacta Sunt Servanda:

According to Anzillotti, the binding force of International law is
founded on the fundamental principle known as pacta Sunt Servanda, which
means that the agreements entered into by the states must be followed by them
in good faith.

Criticisms:

It fails to explain the customary International law which is not based on the
agreements between the states.

d. Theory of Fundamental Rights:

This theory is based on the view of naturalistic theory. According to this view,
prior to the existence of state, man used to live in natural state and even in that
state he possessed some fundamental rights, such as, independence, equality, right

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 to self-preservation. Like man, state also possessed these fundamental rights
because so far there is, no world institution over and above the states

Criticisms:

1. According to this theory when a new state is admitted to the family of nations,
it brings with it certain fundamental rights which are inherent. Such rights are
meaningless unless and until there is a legal system which confers validity on
them.
2. This theory is in favour of giving more freedom to the states and lays less
emphasis on the social relations and co-operation among the states. Into the
international field the problem is not of enhancing the freedom of states, but of
restricting it so as to create social solidarity and co-operation among the states.
3. This theory regards certain fundamental rights, such as right to independence,
equality, etc.., as natural rights. But as a matter of fact, these fundamental
rights are as a result of historical development.

The influence of natural law:

The early and original law of Romans was called ‘Jus Civile’. Later on,
they developed another legal system called ‘Jus Gentium’, so called because it
was thought to be the law of universal application. In the Republican era of
Rome, the ‘Jus Gentium’ was reinforced as ‘Jus Naturale’ which means, sum
of those principles which ought to control human conduct, because it founded
in the very nature of man as a rational and social being.

Thus, natural law was based on the rational and reasonable needs of man’s
nature. Most of the jurists admit that natural law greatly influenced the international
law and gave it, binding force. In other words, States followed international law
because it was a higher law applied in special circumstances.

Conclusion:

International law is a law where it regulates the relationship between the

states. There is an influence of natural law theory in the development of International
law. There are many theories which explain the basis of International law. But no
theory in itself is sufficient to explain the basis of International Law. The contribution
of all these theory can be said as basis of law.

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 Or

Examine the theories as to the relation between International law and

State Law
Ans:

Introduction:

The international law deals with the relation between the states and the municipal law
deals with the relation between the individuals. Is the international law and the municipal law
related to each other if so how they are related? There is divergence of opinion on the
question as to whether international law and municipal law can be said to form a unity being
manifestation of single conception of law or whether international law constitutes an
independent system of law essentially different from the Municipal Law.

There are main five theories which speak about the relation between the International
Law and the municipal law. They are Monism, Dualism, Specific Adoption Theory,
Transformation Theory, and Delegation Theory.

1. Monistic Theory:
The exponents of this theory emphasize the scientific analysis of the internal
structure of law. According to this theory, law is a unified field of knowledge,
no matter whether it applies on individuals, States or other entities. According
to monist belief, international obligation and municipal rules are facets of
same phenomenon, the two deriving ultimately from one basic norm and
belonging to the unitary order comprised by the conception of law. According
to Kelsen and other monistic writers to deny that the two systems constitute
part of that unity corresponding to the unity of legal science. Thus any
construction other than monism and in particular dualism is bound to amount
to denial of the true legal character of international law. According to the
exponents of Monism International Law and municipal law are intimately
connected with each other. International law and municipal law are the two
branches of knowledge of law which is applicable to the human community in
some or the other way.

Criticisms:
The theory of monism seems to be correct in one way as in some or the
other way it applies to the mankind or the man is the root of all law.
But in actual practice states do not follow this theory. Some exponents
contended that the Municipal law and the international law are the two
different systems of law. Further they explain that all the states are
sovereign states and they are not bound by the international law. They
are obliging the international because they have given consent for such
law and so they are bound by the same.

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2. Dualistic Theory
According to the exponents of this theory the municipal law and international
law are two different separate laws. Triepel and Anzilloti are the chief
exponents of this theory. According to Triepel, international law and state law
are different because their subject and origin are different. In his view,
individuals are the subjects of state law and the states are the subjects of the
international law. Besides this, origin of the state law is the will of the state,
but origin of the international law is common will of the States.

Criticisms:

According to this theory they say that the subject of international law only the
states are the subject. But it includes not only states but in modern times
applicable to states, individuals & certain other non-state entities. According
to this theory state law origin by the state will. But this conception of state will
is not correct; it is the will of the people who compose it. The sources of IL not
only the common will of the states but there are some fundamental principles
binding upon states against their will.

3. Specific Adoption Theory

According positivists, this theory of international law can be enforced in the
field of State law only after it has been specifically adopted by State law. It
cannot be directly enforced; there must be specific adoption by the law of that
state. International law can be applied in the municipal law only when
municipal law either permits it or adopts it specifically. This view is generally
followed by States in respect of the International Treaties. It is argued that
unless there is specific adoption of the international treaties or there is some
sort of transformation it cannot be enforced in municipal law. For example:
Tokyo Convention Act 1975 and Vienna Convention of Diplomatic Relations
Act 1972 enacted by Indian Parliament.

Case: Jolly George Vs. The Bank of Cochin

In this case the Supreme Court of India, while considering the International
Covenants held that, “The positive commitment of the State parties’ ignites
legislative action at home but does not automatically make the covenant
enforceable part of the “Corpus Juris of India”.

As regards specific adoption of International treaties by Indian parliament, the

Anti-Apartheid (United Nations Convention) Act, 1981, the Anti Hijacking
Act 1982, takes the special mention here.

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 Criticisms:

This theory is also subjected to criticisms because there are several principles
of International Law which are applied in the field of municipal or the state
law without specific adoption. For example, there are customary laws which
are not specifically adopted even then those rules are followed.

4. Transformation Theory:
According to this theory, the rule of International Law to be applied in the
field of Municipal Law then it has to undergo transformation . This theory is
based on the consent of the state.

Criticisms:

This theory is criticized as there are several treaties and principles of

International law which becomes applicable in the field of municipal law
without undergoing the process of transformation. The headquarters
Agreement between the United States of America and the United nations is a
glaring example.

5. Delegation Theory
The critics of the transformation theory put forward a new theory called
delegation theory. According to this theory the constitutional rules of
international law permit each state to determine as to how international treaties
will become applicable in the field of State Law. The constitution of each state
contains provision in this connection. Thus no transformation takes place.

Criticisms:

This theory also severely criticized by the jurists. One may ask when and how
International rules have delegated power to state constitutions, and what are
the constitutional rules of International Law? State is sovereign it does not
recognize any authority over and above it. Then how the concept o delegation
arises?

Conclusion:

There are different theories which discussed above, which explains the relationship
between the municipal law and the international law. But no theory in itself correctly explains
the relationship between the international law and the municipal law. Sometimes the monistic
theory seems to be correct as the root of all laws is man. But when it comes to the subject of
two different laws under International law, States, international organizations, non-state
entities are considered as subjects. The subjects of Municipal law are individuals. So the
dualistic theory consider good. In some cases there is need of adopting or transforming the
international law is needed as to enforce it in municipal law. So no theory is perfect in itself.
There are loopholes in each theory as it discussed earlier.

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b. Write short notes on:

Is International Law is a true law?

Ans:

There are two main theories which are controversial to each other. One theory says
the international law is a true law. Another theory says that International law is not a true
law in its sense. This controversy is depending upon the definition of the word ‘Law’. If
we rely on the definition given by Hobbes, Austin and Pufendrof, that law is a command
of sovereign enforced by superior political authority to political inferior and which is
backed by sanction. Then we cannot say that the international law is a law. Under
international law, law is not the command of sovereign. There is no superior political
authority or inferior. It is the agreement between the states so as to maintain the good
relation between the states. As to sanction there is no prescribed sanctions under
international law. Then international law cannot be included in the category of law.

According to Hobbes man is by nature nasty, brutish and violent and fear or sanction
which is inherent in law is necessary to maintain order in society. Further, men need for
their security “a common power to keep them in awe and to direct their action to common
benefit.” Holland, Bentham, Jethro Brown, etc are other jurists who deny the legal
character of international law. According to these jurists, International law lacks effective
legislative machinery, an executive machinery and potent judiciary above all the sanction
which is necessary for enforcement of law.

But this view is not seems to be correct. According to Oppenheim, the existence of
law presupposes the existence of three pre-requisites:

i. A community
ii. The body of rules and
iii. Common consent of the community that if necessary these rules shall be
enforced by an external power.

According to this definition the International Law can be said as law. There is
a community of states which is bound by laws and rules. The states together have
given consent to this rules and laws.

Most of the jurists subscribes to the view that international law is a law. It has
been noted that sanction is not an essential element of law. Even if it is regarded as an
essential element it is wrong to say there is no sanction behind international law. But
the sanctions are weaker as compared to State Law. International law operates in a
decentralized system. Each state is sovereign and equal in the eye of law. Art. 59 of
the statue of International Court of Justice provide that the decisions of the
International Court of Justice shall not be binding except upon a party to a dispute and
only in respect of the particular dispute. In case party fails to comply with the decision

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 of the court then Security Council on the request of the party may make
recommendations or decide upon measures to be taken to give effect to the judgment.

Public opinion is also considered as the ultimate sanction behind the binding
force of International law and for that matter, behind any law. The stopping of aid,
economic relations are also considered as sanction. When the states violate
International law they never question the existence or legal character. On contrary
they try to interpret the rules of International Law so as to justify their character.

Thus it can be concluded that the International law is a law in its true sense
even though it is violated frequently. The state law is also violated, but it is said law.
The violation does not mean that it is not law. The enforcement machinery is weak.

Or
Treaties as source of Law
Ans:

The term ‘source’ refers to methods or procedure by which the international law is
created. As pointed out by Starke, “The material source of law may be defined as the
actual materials from which an international lawyer determines the rule applicable to a
given situation. The important sources of International law are International Convention,
International Customs, General Principles of law recognized by civilized nations,
Decisions of Judicial and Arbitral Tribunals and Juristic works and Decisions or
Determinations of the Organs of International Institutions. In this most important is
International conventions applies to treaties, protocols or agreement regardless of its title
or form. According to Article 38 of the Statute of International Court of Justice, it is the
first source of International Law. In modern time treaties are the most important source of
law. As defined by Article 2 of Vienna Convention on the Law of Treaties 1969, “a treaty
is an agreement whereby two or more states establish or seek to establish relationship
between them governed by international law.” Article 3 adds that the fact that the present
convention does not apply to international agreements concluded between States and
other subjects of International Law, or to international agreements not in written form
shall not affect:

a. The legal force of such agreements;

b. The application to them of any rules set forth in the present convention to which
they would be subject under international law independently of the convention;
c. The application of the convention to the relations of States as between themselves
under international agreements as to which other subjects of international law
are also parties.

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 International Treaties are of two types. They are as follows;
a. Law-Making Treaties – Law making treaties are those treaties which are entered
into by a large number of states. These are the direct sources of international law.
Law making treaties are divided in two following types:
i. Treaties enunciating the rules of Universal International law
Those treaties which are signed by a majority of the States are called
the treaties the rules of Universal International law. United Charter is
an example of such type of treaties.
ii. Those enunciating general principles
Treaties which are entered into by a large number of countries
enunciated general principles of international law 1958 and 1960.
Geneva Conventions on the Law of the Sea and Vienna Convention on
Diplomatic Relations, 1961, are good examples of such types of
treaties.

b. Treaty Contracts – those treaties which are entered into by two or more States.
The provisions of such treaties are binding only on the parties to the treaty. Such
type of treaties are also the source of international law because they held in the
development of customary rules of international law.

Unit – II

2.a. Briefly explain the various modes of acquiring and loss of territory
under the International Law.
Ans:

Introduction:

State territory may be defined as “portion of globe which is subjected to the

Sovereignty of a State. One of the essential of state is territory, without which the state seized
to exist. The territory of the state may be small but there must be some land which is
considered as the territory of such state. Let us take the example of Vatican City, it is very
small city. A wondering tribe though it may has a government and is otherwise organised, is
not a state until it has settled down in a territory of its own. The state territory where the state
exercise it sovereign power, it is an object of international law. The exclusive domain of state
within its territory is basic to international system and Article 24 of the U.N. Charter
accordingly requires all members to refrain in their international relations from the threat or
use of force against the territorial independence of any state. The territory of state comprises
not only of its land mass but also its national waters, i.e., rivers, lakes, bays, estuaries, other
enclosed areas and the territorial sea.

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What are the modes of acquiring such territory? The modes of acquiring and loosing such
territory are discussed as follows.

Modes of Acquisition of Territory

1. Occupation
It is the act of appropriation by a state by which it intentionally acquires
sovereignty over such territory as it is at the time not under the sovereignty of
another state. Occupation is an original mode of acquisition in that the
sovereignty is not derived from another state. Occupation can only take place
by and for a state; it must be a state act that it must be performed in the service
of a state, or it must be acknowledged by a state after its performance. Thus,
according to Starke, “Occupation consists in establishing sovereignty over a
territory not under the authority of any state whether newly discovered or an
unlikely case—abandoned by the State formerly in control.”

Case: Island of Palamas Arbitration (1929)

In this case there was a dispute between America and Netherlands over Island
of Palamas. America claimed that they acquired it under a treaty of 1898 with
Spain. This Island was discovered by the Spaniards. On the other hand the
Netherlands claimed to have occupied that since 1700. It was held by the
Court of Arbitration that, the Island of Palamas is the part of Netherlands,
although it was discovered by the Spaniards. They never occupied it and
established contracts with the inhabitants of the Island. Thus for occupation of
a territory it is not sufficient to have a intention to establish sovereignty over
the territory concerned. It is also necessary to a make some actual exercise of
such authority.

2. Prescription
This is another mode of acquiring territory. According to Starke, “Title by
prescription is the result of peaceable exercise of de facto sovereignty for a
very long period over a territory subject to the sovereignty of another state.”
But international law does not prescribe any fixed period for prescription. To
acquire some territory by prescription the following conditions has to be
fulfilled:
a. When it has not accepted the sovereignty of any other state over the said
territory.
b. Possession should be peaceful and uninterrupted.
c. Possession should be in Public.
d. Possession should be for definite period.

There is no recognized principle of international law fixed in terms of years

the period of time that will constitute a good root of title. The treaty of 1897
by which the boundary dispute between Great Britain and Venezuela

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 prescribed a period of fifty years for acquisition of title be prescription. But
this is not followed in practice generally by all the states.

3. Accretion
As pointed out by Starke, “Title by accretion occurs when new territory is
added mainly through natural causes, to territory already under the sovereignty
of the acquired state.” No formal act or assertion of title is necessary.”
Oppenheim defines ‘accretion’ as ‘increase of land through new formations.’
An island coming out of a river is an accretion to the territory of a State which
owns the river. Accretion may be either natural or artificial. If it is by human
efforts then it is said to be accretion by artificial.

Case: Anna [5C. Rob (373)]

This case relates to the capture of Spanish Vessel by a British privateer. The
United States of claimed that the vessel was captured within the American
Maritime Belt. Lord Stonewell upheld this claim on the ground that the vessel
was captured beyond three miles of the Continental Coast but within three
miles of some mud island which were formed within the American maritime
belt. The mud islands were held to be accretions extending the territory of the
USA. This case also shows that the maritime-belt was measured from the mud
islands and not from the coast.

4. Cession
Cession of territory is a transfer of sovereignty from one sovereign to another.
Its basis lies in the intention of the concerned parties to transfer sovereignty
over the territory in question, and it rests on the principle that the right of
transferring its territory is a fundamental attribute of the sovereignty of a State.
It occurs by means of an agreement between the ceding and the acquiring
States. The cession may comprise a portion of the territory of the ceding State
or the totality of its territory. In the latter case, the ceding State disappears and
merges into the acquiring State.

Cession of territory may be voluntary as a result of a purchase, an

exchange, a gift, a voluntary merger, or any other voluntary manner or it may
be made under compulsion as a result of a war or any use of force against the
ceding State. History provides a great number of examples of cession.
Examples of voluntary cession are the United States’ purchase of Alaska from
Russia in 1867, the exchange of a portion of Bessarabia by Romania to Russia
in exchange for Dobrudja in 1878, the France’s gift of Venice to Italy in 1866,
and the voluntary merger of the Republic of Texas into the United States in
1795. Examples of cession as a result of a war are the cession to Germany by
France of the region of Alsace- Lorraine in 1871, and the merger of Korea into
Japan in 1910.

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 Case: Re Berubari Union and Exchange of Enclave

The Supreme Court of India observed, “It is an essential attribute of

sovereignty that a Sovereign State can acquire foreign territory and, in case of
necessity, cede a part of its territory in favour of a sovereign state and this can
be done in exercise of its treaty-making power. Cession of national territory in
law amounts to the transfer of Sovereignty over the said territory by the owner
of state in favour of another state. This power, it may be added is of course
subject to the limitation which the constitution of the State may either
expressly or by necessary implications impose in that behalf.

5. Annexation
Annexation is an act of defeating an opponent State and occupying all or part
of its territory. Annexation is the extension of sovereignty over a territory by
its inclusion into the State. Under traditional International Law; conquest did
not of itself constitute a basis of title to the land. It was merely a military
occupation. If followed by a formal annexation of the conquered territory,
then it was called subjugation and could be considered a valid derivative title
to territory. Accordingly, conquest followed by annexation constituted a mode
to transfer the title of the conquered territory to the conqueror. Like
compulsory cession, conquest followed by annexation would transfer territory
by compulsion, but unlike cession, it involved no agreement between the
concerned parties.

While the acquisition of territory through conquest followed by annexation

was an accepted mode of acquiring title to territory under traditional
International Law, it is no longer legal at modern times. The acquisition of
territory through the use of force is outlawed by paragraph 4 of article 2 of the
Charter of the United Nations, which obliged the member States to refrain
from the use of force against the territorial integrity or political independence
of any State. This same principle is reaffirmed in the 1970 General Assembly
“Declaration on Principles of International Law Concerning Friendly
Relations and Co-operation among States in Accordance with the Charter of
the United Nations”. This Declaration adds that the territory of a State shall
not be the object of acquisition by another State resulting from the threat or
use of force, and that no territorial acquisition resulting from such act shall be
recognized as legal.

Although today conquest is not a legal mode of acquiring title to territory, it

does give the victor certain rights under International Law as regards the
occupied territory, such as rights of belligerent occupation. The territory
remains the legal possession of the ousted sovereign because sovereignty does

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 not pass by conquest to the occupying State, although it may pass in certain
cases where the legal status of the territory occupied is in dispute prior to the
conquest.

At present times, acquisition of territory following a war would require further

international action in addition to internal legislation to annex. Such further
international action would be either a treaty of cession by the former sovereign or
international recognition.

Modern examples of annexation following conquest are Israel’s annexation of the

Golan Heights and the East Jerusalem, and Iraq’s annexation of Kuwait in 1990.

6. Lease
A state is entitled to lease its territory to another State for a term of years.
Lease of State territory is of recent origin and materially differs from lease of
private property. There is no uniform rule as to what passes to the lessee on
the completion of the lease. Sometimes lease grant certain jurisdictional rights
and do not involve transfer of sovereignty or the exercise of sovereignty over
the leased territory.
For example, State of Malta has leased an island to Britain for some time.

7. Pledge
A state is also entitled to take loan on the security of its territory or part of it.
History evidences numerous cases of pledges of state territories. In 1768 the
then Republic of Genoa pledged Corsica to France.

8. Plebiscite
There is controversy as to whether a territory may be acquired through
plebiscite or not. The term ‘Plebiscite’ is formed of two words: ‘Pleb’ means
the people, ‘Scitum’ means a decree. It means an expression of will by direct
vote of a whole people or community on a public issue, especially one
concerning change of Government or Constitution.
For example, East and West Germany were united by plebiscite. The USSR
was split into 15 separate States by means of plebiscite namely; Kazakhstan,
Uzbekistan, Byelorussia, Azerbaijan, Georgia, Kirghizstan, Armenia, Latvian,
Estonian, etc. acquired their territory by means of plebiscite.

9. Acquisition of territorial sovereignty by newly emerged state

A newly emerged State can acquire territorial sovereignty only when it
becomes independent. This is particularly true in case of those states that were
previously the colonies of some states. In this connection the difficulty is how

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 the territory which was previously part of another State can acquire
sovereignty after becoming independent. This has been aptly explained by
Starke in the following word: “This abstract difficulty may be resolved by
treating the territory, as such, provided they have sufficient degree of political
maturity, as having or acquired sovereignty pending attainment of statehood.
Upon the foundation of new State, there is simply crystallization of the
situation, territorial sovereignty of the people than becoming that of the State
itself.

Modes of Loss of Territory

1. Cession
If any state acquires another state by conquest then the state which acquires
such territory will hold the state territory and other state loses its state
territory.

2. Operation of Nature
As how the state acquires the territory through natural same way it loses its
territory. For example the state may lose its territory through earth quake,
flood etc…

3. Subjugation
A state may acquire territory through annexation; the other State may lose it
through subjugation. But like annexation this no more valid mode. For
example, Kuwait lost its territory through subjugation by Iraq who declared it
to be Iraq’s 19th province. The Security Council not only disapproved of Iraq’s
action but passed a resolution asking all member states of the UN not to
recognize it. Subsequently, Security Council took action against Iraq under
Chapter VII allowing States cooperating with Kuwait to use all means to free
Kuwait. Thus Iraq was forced to withdraw from Kuwait.

4. Prescription
When a State occupies a particular territory for a long period then it is entitled
to acquire it through prescription. On the contrary, the State which had
occupation over it earlier may lose it.

5. Revolt
Sometimes a state may lose its territory and a new state may emerge by
revolution or revolt. For example, in 1579, through revolution Spain lost
Netherlands. Similarly in 1776 through the war of Independence of America,
Great Britain lost the territory of America. Pakistan lost her territory of East
Pakistan as people of the said territory revolted and formed a new State known
as Bangladesh.

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 6. Dereliction
When a state renounces a part of its territory or fails to exercise or slackens, to
exercise sovereignty over it, then it may lose such territory.

7. Losing a territory by Granting of Independence to a colony

Yet another mode of losing territory is granting of independence to a colony.
This newly emerged state acquires territorial sovereignty and the state which
grants independence loses that territory. So will be the case if the colony itself
acquires independence.

Conclusion:

Thus the state territory is such part of state where it can enforce its sovereignty in
such territory. There are many modes of acquiring the territory, in that one of is annexation.
In modern period the acquiring the territory through annexation is not encouraged as it takes
away the peaceful relating between the states. Sometimes the state loses its territory by
cession, revolt, dereliction, subjugation, prescription, operation of nature, and losing the
territory by granting independence of the state. For last point we can see the glaring example
of India which became free from the British government and emerged as a newly independent
state.

Or
What is recognition? Explain the different theories relating to recognition
of states and also modes of recognition.
Ans:

Introduction:

In modern world the concept of recognition is a popular subject of international law.

Recognition of an entity doesn’t mean only that this entity has met the required
qualifications, but also that the recognizing state will enter into relations with the recognized
State and let that State to enjoy usual legal consequences of recognition such as privileges
and immunities within the domestic legal order. Therefore it is claimed that, generally the
decision of to recognize or not, depends on political views rather than legal grounds. Is there
a duty of recognition? Lauterpacht and Guggenheim hug the opinion that recognition is
constitutive, but that there is a duty to recognise. This point of view has been criticised as
bearing no relation to the State practice and for its inconsistency. Browlie asserts that,
“recognition is an optional and political act and there is no duty in this regard.

Meaning and definition:

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 Through the act of recognition a new state is joined the community of the states. If a
state fulfills the all the essentials of the state then any state can recognize it as a state and
welcome them to the community of the states.

According to Prof. Oppenheim, “in recognizing the state as a member of international

community the existing States declare that in their opinion the new state fulfills the
conditions of state hood as required by International Law.”

Theories of Recognition:

There are mainly two theories relevant to recognition, the constitutive and the declaratory
theory.
1. Constitutive Theory:
According to this theory, recognition clothes the recognized state with rights and
duties under International Law. Recognition is a process through which a political
community acquires international personality by becoming a member of family of
nations. According to Oppenheim, “A State is, and becomes, an international
person through recognition only and exclusively”. Lauterpacht and Guggenheim
hug the opinion that recognition is constitutive, but that there is a duty to
recognise. According to constitutive theory, Statehood and participation in the
international legal order are attained by political groups only in so far as they
are recognised by established states. This theory does not conform to the
practice of States. In practice most of the States accept the declaratory theory.

Criticisms:
a. States do not accept any obligation to recognise a community that has
attained Statehood, although they may normally recognise it.
b. According to this theory the unrecognised state can have neither rights nor
duties under international law. This is a very absurd suggestion.
c. It will create difficulties in the case of new State which is recognised by
some States but not recognised by others.

2. Declaratory Theory:
According to this theory, state hood or the authority of the new government
exists as such prior to and independently of recognition. Recognition is merely
formal acknowledgement through which established facts are accepted. The
act of recognition is merely declaratory of an existing fact that a particular
State or government process the essential attributes of Statehood as acquired
under the international law. The chief exponents of this theory are Hall,
Wagner, Brierly, Pitt Corbett and Fisher. A state may exist without being
recognized if it exists in fact, then whether or not it has been formerly
recognized by other States, it has a right to be treated by them as a state.

Criticisms:

a. Recognition is only a declaratory of an existing fact is not completely

correct. In fact when a State is recognized, it is a declaratory.

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 b. When the State is recognized at that moment it ensue some legal effects of
recognition which may be said to be of constitutive nature.

Modes of Recognition

The following two kinds are the modes of recognition:

a. De facto Recognition
De facto recognition is given when a State wants to delay recognition de jure
of any state, it may in the first stage grant de facto recognition. De facto
recognition is given because it doubted that the State recognized may not be
able and willing to fulfill its obligation under international law. De facto
recognition means that the State recognized possesses the elements of
statehood and is fit to be a subject of international law. According to Prof.
Oppenheim, “The De facto recognition of a state or government takes place
when in the view of recognizing State the new authority although actually
independent and wielding effective powers in the territory under its control,
has not acquired sufficient stability or does not yet offer prospects of
complying other requirements of recognition such as willingness or ability to
fulfill international obligations.

De facto recognition is provisional and it is liable to withdrawn if the absent

requirement of recognition fails to materialize. Under de facto recognition the
diplomatic relations are not established. In the view of Judge Lauterpacht, de
facto recognition shows that the State wants to establish relations with the
recognized state without establishing the diplomatic relations.

b. De jure Recognition
This recognition is granted when in the opinion of the recognizing state the
recognized state or its government possesses all the essential requirements of
statehood and is capable of being a member of the international community.
According to Phillip Marshall Brown, “Recognition de jure results from an
expressed declaration or from a positive act indicating clearly the intention to
grant this recognition, such as establishment of diplomatic relations. De jure
recognition is final and irrevocable. For the grant of de jure recognition of a
new state or a new government the following conditions has to be fulfilled:
a. A reasonable assurance of stability and permanence;
b. The government should command the general support of the population;
c. It should be able and willing to fulfil its international obligations.

Distinction between De facto and De jure Recognition

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 1. The de facto recognition is provisional and may be dependent upon conditions which
the new entity has to comply. The de jure recognition is permanent which state
fulfilled all the essential conditions of a state.
2. The De facto recognition is temporary in nature. The De jure recognition is permanent
in nature.
3. The De facto recognition can be withdrawn but the De jure recognition cannot be
withdrawn under any circumstances.
4. Under De facto recognition the diplomatic relations between the states were not
established, but under De jure recognition the diplomatic relations was established.

So far as legislative and other internal acts of the state recognized are concerned, there is
hardly any difference between de facto and de jure recognition. Although in de facto
recognition diplomatic relations are not established. Yet from the point of view, legal effects
there are no difference. In the words of Kelsen, “From the juristic point of view, the
distinction between de jure and de facto recognition is of no importance. Any codification of
International Law relating to recognition can ignore it.”

Case: Luther vs. Sagor

It was held that there is no distinction between de facto and de jure recognition for the
purpose of giving effect to the internal acts of the recognized state.

Facts: In June 1918, Russia nationalized timber and other industries. Consequently, the Mill
of the plaintiff was acquired. In August, 1920, the representatives of Russian Government
entered into a contract with the defendant to sell some timber etc… The plaintiff requested
the Court to declare that all the goods purchased by the defendant under said contract are his
property. The defendant contended that Russia was a Sovereign State and by the act of a
Sovereign State, the ownership of the plaintiff was ended. Britain had given the de facto
recognition to Russia. The Court decided in the favour of the defendant. It was held that,
“There is no difference for the present purpose between a government recognized as such de
jure and one recognized de facto. In the latter case, as well as in the former the government in
question acquires the right to be treated by the recognizing state an independent sovereign
state.”

Conclusion:

Thus, when a state fulfils all the essentials of the state and which is ready to oblige
with the rules of the International law, any recognized state may recognize such a state as a
state and joins such state in to the community of state. There are two kinds of recognition
such as de facto and de jure recognition. De facto is provisional and it can be withdrawn but
the de jure recognition is permanent and irrevocable. There are two theories which speak with
regard to recognition one is constitutive theory and other is declaratory theory. But no theory
is perfect in itself. The truth lies somewhere between the two theories. To conclude it can be
said that the recognition is declaratory as well as constitutive.

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2.b. Problem:

State ‘A’ was accorded recognition on a condition that, it shall not impose
any religious disabilities on its subjects. State ‘A’ committed breach of this
condition. Can the recognition given to it be withdrawn?
Ans:

In this above mentioned problem, the recognition given to State ‘A’ cannot be
withdrawn.

According to Prof. Oppenheim, “in recognizing the state as a member of international

community the existing States declare that in their opinion the new state fulfills the
conditions of state hood as required by International Law.” There are two modes of
recognition. One is de facto recognition, where the recognition is temporary in nature. It can
be withdrawn by the recognizing state if it feels that the recognized state is not going to fulfill
the international obligation. Another mode of recognition is de jure, which is permanent in
nature. It cannot be withdrawn once it has given recognition.

The above mentioned problem is relating to conditional recognition. The international

law does not recognize conditional recognition. Since recognition is said to be political
diplomatic function and depends much upon the discretion of the recognizing state,
recognizing state impose certain conditions along with their grant of recognition. For
example, in 1878 while recognizing Bulgaria and Rumania, Germany imposed the condition
that the said States shall not discriminate their citizens on the basis of religion. It may,
however, be noted that under international law such a condition is meaningless. It can never
imply that if the condition is not fulfilled the recognition shall be withdrawn. According to
International Law, recognition denotes that the recognized state has attained statehood and
has become a member of a international community. Hence such condition will have no
effect.

The very essence of recognition is that the recognizing state thereby declares that it
has satisfied itself that the recognized authority possesses the distinguishing marks of a state.
To say that one recognizes that has been, subject to its conduct being satisfactory in other
particulars, is sheer nonsense. It is like telling a pupil that her sum is correct if she will
promise to be a good girl.

Thus here in this above mentioned problem the recognition given under condition, the
violation of the same will not authorize to withdraw the recognition.

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 Or

Short Notes:
Explain different kinds of state
Ans:

State is the main subject of International Law. State is a community of people which
has been established for some objectives such as internal order and external security. To be a
state there some essential this has to be fulfilled. They are as follows:

a. A permanent population
b. A defined Territory
c. A Government
d. Capacity to enter into relation with other States

The different kinds state are as follows:

1. Confederation:
It is formed by independent states. Under international law confederation has
no international personality. The aim and objective of confederation is to
establish a sort of co-ordination among the states, leaving states independent
in their internal and external matters. But under international law, these States
are not international persons.

2. Federal State:
This kind of state is formed by the merger of two or more than two sovereign
States. Under international law, a Federal State is an international person. The
Federal State exercises control and has rights only over the member States but
also over the citizens of states. In Federal State, generally there is a division of
powers between the central authority and the States through contribution.
States are generally autonomous in their internal matters but the federation or
the central authority exercises control over them. The United States of
America is good example for Federal State.

3. Condominium:
When two or more states exercise rights over a territory, it is called
Condominium. A condominium exists when over a particular territory joint
dominion is exercised by two or more external powers. New Hebrides is a
good example of a Condominium. Both England and France exercised control
and had rights over the territory of New Hebrides between 1914-1980. Thus
there is a joint sovereignty of France and Britain over New Hebrides.

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 4. Vassal State
A state which is under the suzerainty of another State is called a Vassal State.
Its independence is so restricted that it has no importance under international
law. As remarked by Starke, “Vassal State is one which is completely under
the suzerainty of another state. Internationally its independence is so restricted
as scarcely to exist at all. In its foreign affairs, the Vassal State possesses no
power and all its foreign policies are governed by the State of which it is a
Vassal State.

5. Protectorate State
According to Starke, “Although not completely independent, a Protectorate
State may enjoy a sufficient measure of sovereignty to claim jurisdictional
immunity in the territory of another state, if may also still remain a state under
international law.” In the case of Ionian Ship, the court held that a state may
remain international person even though it is dependent upon some other state.
Facts: The treaty of Paris, 1815 declared the Ionian group of islands as an
independent State under Britain. The treaty provided that the Ionian State
could independently perform its internal functions with the consent of Britain.
This treaty had empowered Britain to declare war or peace on behalf of Ionian
State. In 1854 the German war broke out between Britain and Russia. During
the war, the British warships apprehended some ships which were carrying on
trade with the enemy. It was contended that the inhabitants of the Ionian group
of Islands are British subjects and consequently they cannot carry on the trade
with the enemies of Britain during the war period. The court decided that the
Ionian group of Islands is an independent State and it was, therefore, free to
trade with Russia.

6. Trust Territories:

The charter of the United Nations has introduced a new system of trust territories.
The trusteeship system is applicable to:
a. The former mandated territories;
b. Territories taken from enemy states as a result of the Second World War;
c. Territories voluntarily placed under the trusteeship system by states responsible
for their administration.

The UN charter provides that the trust territories are to be administered pursuant to
trusteeship agreement under the supervision of the UN. The basic object of the trusteeship
system is the advancement of the people of trust territories and their progressive development
towards self-government of independence. One such example here it can be mentioned is
South West Africa.

The administering countries do not claim any title to sovereignty. Very often the
question, “Where does sovereign reside?” There is no agreement as to whether it resides in

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the UN or elsewhere. At the same time, it must be noted that though the administering powers
do not enjoy sovereign rights over the trust territories, yet they have wide powers and
responsibility both regarding its financial administration and defence matters.

Unit- III

3.a. What is territorial jurisdiction of the State? Who are exempted from
territorial jurisdiction and to what extent?
Ans:

Introduction:

Jurisdiction of the state is the area where the state can exercise its power or the it is a
inherent authority of a court to hear a case and to declare a judgment. State jurisdiction is the
power of a state under international law to govern powers and property by its municipal law.
It includes both the power to prescribe the rules (prescriptive jurisdiction) and the power to
enforce them (enforcement jurisdiction). Jurisdiction may be concurrent with the content of a
state’s law and its procedures for enforcing that law. Each state has normally jurisdiction over
all persons and things within its territory.

The rules of state jurisdiction identify the persons and the property within the
permissible range of a state’s law and its procedures for enforcing that law. They are not
concerned with the content of a state’s law except in so far as it purports to subject a person
to it or to prescribe procedures to enforce it. State jurisdiction connotes “essentially the extent
of each state’s right to regulate conduct on the consequences of events.” A state may regulate
its jurisdiction by legislation, through its courts or by taking executive or administrative
action. State jurisdiction concerns both international law and internal law of the state.

Principles of Territorial Jurisdiction

The term jurisdiction refers to the legal competence of State officials to prescribe and
enforce rules with regard to persons, things and events. By distinguishing between those
situations in which a state may exercise its jurisdiction and those situations in which it may
not, international law serves to clarify the authority of officials and to minimize friction
among the states.

There are two principles relating to territorial jurisdiction of a state. They are as follows:

a. Subjective Territorial Principle

b. Objective Territorial Principle

a. Subjective Territorial Principle:

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 According to this principle, a state may claim jurisdiction over crimes
commenced within its territory but consummated outside its territory. The
state where the crime commenced or was initiated may enact under its
criminal law that it will have jurisdiction over such preparatory acts.
Ordinarily, States do not exercise this type of jurisdiction. There are, however,
certain situations where in States where the crime commenced or was initiated,
are under duty to punish the accused. This is provide for example, under the
Geneva Convention for the suppression of the Illicit Drug Traffic (1963). State
parties to these conventions have accepted this obligation so as to prevent
commission of crime in other state.

b. Objective Territorial Principle

According to this principle, a State gets jurisdiction over the crime, if any of
the constituent elements of the crime is consummated in its territory. For the
State concerned to assume jurisdiction it is also necessary that the act must
have produced some harmful effect within or on the territory of State.
In S.S. Lotus Case, Judge Moore, observed: “it appears to be now universally
admitted that when a crime is committed in the territorial jurisdiction of one
state as the direct result of the act of a person at the time corporally present in
another State, international law, by reason of the constructive presence of the
offender at the place where his act took effect, does not forbid the prosecution
of the offender by the former State, should he come within its territorial
jurisdiction.”

Thus the jurisdiction of a State is not always a co-incident with its territory.
Each State exercises jurisdiction over its territory. The sovereignty of the State
is limited to that territory. But there are some exceptional circumstances where
the State can exercise its jurisdiction outside its geographical limits. The State
can exercise extra-territorial jurisdiction over foreigners. This law explained
clearly in the case K.T.M.S Abdul Cader and others Vs. Union of India.

Facts: The petitioner was alleged to have been smuggling or dealing with the
smuggled goods. This led the Madras State to reasonably apprehend that
unless they were detained forthwith they would continue to indulge in similar
activities which may prove a hazard to safety and security of the country.
Hence detention orders were passed first under Sec 3(i) (c) of the Maintenance
of Internal Security (Amendment) Ordinance, 1974 and then, under the
Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974; but the warrant of arrest under the said two Acts, could not be
executed because the petitioners continued to live abroad. Therefore, at the
instance of the State Government issued proclamations under Sec 82 (1),
Cr.P.C on 2-12- 1974 and Sec 7(1) (c) of the Act of 1974, read with Sec 82
(1), Cr.P.C. on 16-1-1975. The petitioners was urged before Madras High
Court that the Act has no extra-territorial application and hence the State

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 Government has no power under the Act to pass orders of detention against
persons who at the time when the orders were made, were not within India but
outside its territorial limits. The full bench of Madras High Court rejected his
contention and dismissed his petition. The Supreme Court observed that it is
well established that the power of the Parliament to make a law in relation to
the topic entrusted to it is plenary, that a law passed by the Parliament under
Article 245 cannot be invalidated merely on the ground it has extra-territorial
and that such a law cannot be questioned on the ground that it may not be
found capable of enforcement outside its territory.

There are some exceptions so as to exercise the jurisdiction of the State. They are as
follows:

a. Diplomatic Agents
b. Foreign embassies
c. Foreign Sovereigns
d. Immunity in respect of public property of Foreign Sovereign State
e. International Organizations
f. Extradition Treaties
g. Foreign Troops
h. Immunity of warship and their crew

a. Diplomatic Agents:
They enjoy certain privileges and immunities. They are immune from the
jurisdiction of the civil and criminal court of the receiving State. According to
the modern view, diplomatic agents enjoy certain privileges and immunities
because of the special functions they perform. This was affirmed in the case
Ex party Petroff (1971) by the Supreme Court of Australia.

b. Foreign Embassies:
They are often considered to be outside the jurisdiction of the State in which
they are situated. They are treated as a part of their home States. The correct
view, however, is that though not part of their home states, embassies enjoy
certain immunities because of the special functions performed by them.

c. Foreign Sovereigns:
They are often treated to be outside the jurisdiction of other states and possess
many privileges and immunities. This is based upon the principle that one
sovereign cannot exercise jurisdiction over another sovereign. In the case of
Christina Lord Wright observed, “There are general principles of international
law according to which a sovereign state is held to be immune from the

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 jurisdiction of another Sovereign State…. The rule may be based on the
principle of par in Parem Non habit Imperium, no state can claim jurisdiction
over another state.”

Case: Mighell Vs. Sultan of Johore. :

In this case, the Sultan of Johore, during his stay in England, promised
to marry the plaintiff. When the said promise was not fulfilled, the plaintiff
filed a case for the breach of the promise. The Sultan of Johore contended that
he was a sovereign of a foreign sovereign State who had not submitted to the
jurisdiction of the court and as such the court could not have jurisdiction over
him. The court accepted his contention and decided in his favour.

d. Immunity in respect of public property

Like the person of foreign sovereign, the property of the sovereign or the
public property of the State also receives certain immunities and exemptions
from the exercise of jurisdiction.
Case: Schooner Exchange Vs McFaddon (1812)
In this case, C.J. observed that it is a principle of public law, “that national
ships of war, entering the port of a friendly power open for their reception, are
to be considered as exempt by the consent of that power from its jurisdiction.”
If a sip engaged in a commercial transaction then such ships are not exempted.
It is little difficult to determine as to whether a particular act is commercial or
not. According to Prof. W. Friedmann, there are different views in the
classification of commercial matters and the sovereign matters. They are as
follows:
 All that property which is owned by state is entitled to immunity.
 According to second view, this immunity is not absolute and it has
certain limitation. It depends upon the type of the act. But it is difficult
to determine as to whether a particular act is a sovereign ac or not.
 According to third view, immunity depends upon the nature of the
function. In accordance with this rule, those ships which are owned by
the state and perform commercial functions, are treated equivalent to
private ships during peace times.

e. International Organisation
It also enjoys certain immunities and privileges from the jurisdiction of the
States in which they are situated. For example, the United Nations
International Labour Organisation, and other specialized agencies enjoy
several privileges and immunities. For the purpose of granting privileges and
immunities to the UN a convention known as the Convention on the Privileges
and immunities of the United Nations were entered into.

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 f. Extradition Treaties
Any person who runs away from his country after committing crime may be
extradited under this provision. It means handover of accused to state where
he committed crime, so that he could be prosecuted and punished according to
the law of the land. Thus in respect of such persons also, State may exercise
some sort of jurisdiction even outside its territory.

g. Foreign Troops:
A sovereign is understood to cede a portion of his territorial jurisdiction where
he allows the troops of a foreign prince to pass through his dominions. The
grant of free passage therefore implies a waiver of all jurisdictions over the
troops during their passage and permits the foreign army authorities to
exercise jurisdiction upon the army personnel to maintain discipline and to
inflict those punishments which the government of his army may require.

h. Immunity of warship and heir crew:

Under International Law warships enjoy a great measure of immunity.
Warships are immune from legal process, execution or jurisdictional measures
of foreign authorities. This immunity is applicable to the commander of the
crew as well as the ship itself. The immunity is not lost for acts of State (i.e.,
official acts) even if they are illicit (but not including crimes under
international law). The home state of the warship will be responsible for its
acts. Last but not the least, no immunity will be available if the warship, its
commander or crew intrudes in a foreign country in disguise and/or under
false pretence.

Conclusion:

State territory is the area where the state can exercise its sovereign power. The state
jurisdiction is a power of a state under international law to govern persons and property by its
municipal law. If any person commits crime inside its territory then the state has got the
jurisdiction so as to punish such criminals. Even though the crime is committed outside the
state but the person belongs to that state then also the state has got the jurisdiction to try such
case. Sometimes it can operate its state law outside its territory, i.e., extra-territorial
operation. But while exercising this jurisdiction some persons and property of the foreign
sovereign are exempted. A foreign sovereign has no immunity when it enters into a
commercial transaction with a trader and any dispute arises which is properly within the
territorial jurisdiction of that court.

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 Or

What is meant by State Responsibility? Explain briefly the state

responsibility in different fields.
Ans:

Introduction:

In international relations, the violation of a legal right of one state by another state
gives rise to international responsibility of the wrong doing state towards the wronged state.
The functions of the rulers of State responsibility is to determine the legal consequences of
the breach of the rules of International Law by one State which has resulted in injury to
another State in damage to the dignity or prestige of another state.

Meaning of the term ‘State Responsibility’

Often it is said that the sovereign has no obligation under law. This statement is true
only in respect of the subjects of the sovereign because a state may change its law at its will
and may thus bring about changes in its obligations. A state has certain obligations under
International Law. “The state responsibility concerning international duties is, therefore, a
legal responsibility, for a state cannot abolish or create international law in the same way that
it can abolish or create municipal law.” The rules of international law as to State
responsibility concern the circumstances in which and the principles whereby the injured
state becomes entitled to redress for the damage suffered.

States Responsibility in different fields:

It is an obligation of a state to prevent its own subjects as well as foreign subjects

living within its territory from committing such acts which may cause injury to other state.
However, if any wrongful act is done by an individual or group individuals, a state to which
they belong is held responsible for their acts. State is responsible not only for the wrongful
acts done by its organs but also responsible for the acts of the individual.

1. International Delinquency
Delinquency means wrong doing; an action going against law. International
delinquency is a wrongful act committed by a state on the aliens of another
state directly or indirectly. According Prof. Oppenheim, “Every neglect of an
international duty constitutes an international delinquency and the injured
State can, subject to its obligations of pacific settlement through ‘reprisals’ or
even war, compel the delinquent State to fulfil its international duties.”
In practice, most cases of responsibility, at least before international tribunal,
arise out of wrong alleged to have been committed by the state concerned. By
wrong in this connection meant the breach of some duty which rests on a state
at International Law and which is not the breach of purely contractual

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 obligation. A person who goes to live in the territory of a foreign state must
submit to its laws; but, that is not to say that certain duties under international
law in respect to the treatment of that person do no bind the state. Examples
are the duty of the state to provide proper judicial remedies for damage
suffered, and the duty to protect alien citizens from gratuitous personal injury
by it officials or subjects.

Notion of Imputability

If, an agency of state causes injury to citizen of another state, former state will
be liable to the latter state if the said act in law is imputed to the state. Imputability
depends upon two conditions. They are

a. Conduct of a state organ or official in breach of obligation under international

law and
b. According to international law, breach will be attributed to the state.

A state becomes internationally responsible for the breach only if breach is imputable to
the state.

2. State Responsibilities for the acts of aliens

It is generally agreed that aliens living in a state should be given same right
which are given to the citizens of that state. It is responsibility of state to
protect the rights of aliens in the same way as they protect the rights of their
own citizen. State responsibilities for aliens are as follows:
a. State responsibility for the acts of individuals
If a citizen of a state caused damage or harm to an alien, that alien gets the
rights to file a suit for the compensation according to the law of that state.
In case of a state tribunal is arbitrary and against justice, the alien may
approach his home state to settle the matter through political means so as
to ensure that the matter is decided in accordance with the principle of
international law.
b. State responsibility for the acts of Mob Violence
A state may be held responsible for the harm caused to the alien by
mob violence only when it has not made due diligence to prevent it.
But, this is a very uncertain and ambiguous principle because ‘due
diligence’ to prevent mob violence depends upon the time, fact and
circumstances.
The responsibility of the state also extends to the officers or servants of
the international organization.

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 Case: Reparation for Injuries Suffered in the Service of the United
Nations
In this case Count Bernadotte along with a French observer was
appointed by the United Nations Security Council to mediate in the
conflict between Arab and Jews in Palestine. On Sep 17, 1948, when
he was in the area of Jerusalem, occupied by Israel, he and the French
observer were murdered. The question arose whether the United
Nations could claim reparation for his death. The matter was referred
to the International Court of Justice for its advisory opinion. The
World Court held that United Nations is an international person and
under international law it has rights and duties; that it can claim
damages and compensation for the injuries or loss suffered by the
persons working under its service or auspices. The Government of
Israel paid the money in the form of compensation but made it clear
that it did not accept any obligation under international law in this
connection.

c. The state responsibility for the acts of insurgents

The general rule is that it is the responsibility of the state to try to prevent
the violent acts of revolutionaries. According to Fenwick, the state
responsibility for the acts of insurgents is different from state
responsibility for the acts of mob violence. In his words, “the very
existence of organized revolution raises a presumption of ‘due diligence’
on the part of the state for suppressing it since the Government had an
immediate interest in such an open attack upon its authority.”

Calvo Doctrine

It was propounded by Mr. K. Calo of Argentina. In his view during

civil war the state is not responsible for the losses suffered by alien persons
because if the responsibility is accepted, big nations will get an excuse to
intervene in the weaker states. Many states, such as, America and England do not
accept this doctrine. They point out, since the revolt or insurrections are frequent
in the states, the presumption that the states made ‘due diligence’ becomes weak.

3. For the acts of governmental organs

A state is responsible for the acts performed by its representatives or high
officials towards alien persons. The state will be responsible only to the extent
when the officials concerned act beyond their powers and jurisdiction.
Similarly the state is responsible for the acts of its judicial organs.

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4. Contracts with foreigners
As a matter of fact, the state is not responsible under international law if there
is a breach of contract entered into by a state with aliens. However, the alien
person may avail the local means available to him in the law of the state
concerned. If he fails to get the desired remedy, he may approach his home
state to pursue the matter.

5. For the Breach of Treaty or Contractual Obligations

State responsibility as a result of the breach of treaty will depend upon the
provisions of the treaty. If there is a breach of treaty obligations, the state
concerned shall be responsible to pay the compensation.
Case: Chorzow Factory (Indemnity) Case
The permanent court of justice held that, it is a principle of
international law that the reparation of wrong may consist in an indemnity
corresponding to the damage which the national of the injured state have
suffered as a result of the act which is contrary to international law. Although
the rights of the individuals are different from those states, yet they may be
taken into account while assessing the damages.

6. In respect of Expropriation of Foreign Property

There is a great controversy in regard to the expropriation of foreign property
situated in a state. However, in the modern period, significant changes have
taken place in this connection. Till the 19th century, if any state expropriated
the foreign property it was considered to be the violation of international law
making the said state liable for the same. But, in the modern period, in view of
the complete control of states over their Economic system and in consequence
of nationalization of different industries, it has become difficult to recognize
such expropriation as the violation of international law. It may be noted that
the term ‘Expropriation’ includes nationalization and confiscation of property.

Case: Anglo-Iranian Oil Co. Ltd vs. Jaffrate

It was held that, on the basis of practice, principles and decided cases,
it may be that expropriation of foreign property may be valid only when there
has been no irregularity or discrimination with the foreigners.

7. Acts of Multinational Corporations

There is lack of definite international law in respect of liability of transnational
or multinational corporations. The charter of Economic Rights and Duties
adopted by the General Assembly on 12th Dec, 1974, recognizes the right of
each state “to regulate and supervise the activities of transnational co-
operations within its national jurisdiction and take measures to ensure that
such activities comply with its laws, rules and regulations and conform to its
economic and social policies. But developed countries such as U.S., U.K.,
Federal Republic of Germany and Japan voted against this.

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 Case: M.C. Mehta Vs. Union of India (Oleum Gas Leak Case)
The Supreme Court held “the enterprise must be under an obligation to
provide that the hazardous or inherently dangerous activity, in which it is
engaged must be conducted with the highest standard of safety and if any
harm results on account of such activity the enterprise must be absolutely
liable to compensate for such harm and it should be no answer to the
enterprise to say that it had taken all reasonable care and that the harm
occurred without an negligence on its part. The enterprise is strictly and
absolutely liable to compensate all those who are affected by the accident and
such liability is not subject to any of the exceptions which operate vis-à-vis the
tortuous principle of strict liability under the rule of Ryland vs. Fletcher.

Conclusion:

The rules of International law as to state responsibility concern the circumstances in

which and the principles whereby, the injured state becomes entitled to redress for the
damage suffered. The wrongs which give rise to state responsibility may be various kinds,
like original responsibility and vicarious responsibility. The breach of duty may be either an
act or omission. Thus, international responsibility may be occurred by direct injury to the
rights of a state and also by a wrongful act or omission which causes injury to an alien.

3.b. Short Note:

Rights and duties out of State Succession
Ans:

A succession of international person occurs when one or more international persons

take place of another international person, in consequence of certain changes in the latter’s
condition. Ordinarily the practice of states shows that no general succession takes place.
However, most jurists agree that when an international person is extinct or disappears then
some of its rights and obligations are succeeded by other international persons which take its
place.

The rights and duties out of state succession are as follows:

1. Political Rights: No succession takes place in respect of political rights and duties,
hence succeeding state are not bound by the political treaties of the former state such
as treaties of peace or neutrality.

2. Local Rights & duties: A genuine succession takes place in respect of local rights
and duties, such as land, rivers, roads, railways etc…

3. State Property: Art. 11 of the Vienna Convention of State Property Archives and
Debts, 1983 provides that unless otherwise agreed the passing of State property will

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 take place without compensation. Art. 12 provide that property, rights, and interest
owned by a third state should not be affected by a succession of a State. Art. 13 ask
the predecessor state to take all measures to prevent damage or destruction to State
Property which passes to Succession state. Art. 15 allows State succession of newly
independent state– bilateral treaties– shall not infringe the principle of the permanent
sovereignty of every people over its wealth & natural resources.

4. State Archives: Art. 25 of the Vienna Convention of State Property Archives and
Debts, 1983 lays emphasis on preserving the integral character of groups of State
archives of the predecessor State. Art. 28 provides passing of appropriate
reproduction of state archives of the predecessor state to a newly independent
successor state.

5. State or Public Debt– Art. 36provides that the succession of a State does not as such
affect the rights and obligations of creditors. When successor state is newly
independent state, no debt shall pass on to the new state unless an agreement between
two states provides otherwise. Art. 38 provides that it shall not infringe the principle
of the permanent sovereignty of every people over every people over its wealth &
natural resources nor shall its implementation endanger the fundamental economic
equilibria of newly independent state.

6. Contracts: The majority of jurists are of the view that the succeeding state should be
bound by the contract entered into by the extinct State. The Case: West Rand Central
Gold Mining Co. Ltd Vs. King is a suitable case to explain the succession for
contracts.

In this case West Rand Central Gold Mining Co. Ltd was registered company in
England is engaged in the work of digging of gold mines. Gold parcel were seized by
South African Republic. It was the responsibility of South African Republic. Later on
war broke out between this state & Britain. Conquered by Britain it was held that the
succeeding state was entered to decide whether it will accept the financial obligations
of the former State. Until it accepts the financial obligation of the former state, it will
not be bound by them.

7. Concessionary Contracts– It means the contracts through which certain concession

such as digging of mines, laying of railways, etc.., are granted. It is of local nature &
succeeding state bound by it.
8. Laws: Civil law continues until it is changed by the succeeding state.
9. Unliquidated damages for torts: No succession takes place. But state will bound if
the former state has accepted or had decided to pay compensation
10. Nationality: The nationals lose their nationality at the extinction of the state and
become the nationals of the new international person. Such national are given certain
period within which they has to decide as to continue loyalty towards the former state
or to accept the citizenship of succeeding state.

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 11. Succession of property in foreign State: The succeeding state becomes the
successor of the property of the extinct state situated in foreign country.
12. Succession of States in respect of treaties: on 23rd August, 1978, convention known
as the Vienna Convention on Succession of States in Respect of Treaties has been
adopted. Art. 1 of this convention speaks about the scope of convention. It applies to
the effect of succession of state in respect of treaties between the states.

Succession regarding membership of the United Nations: No succession takes

place. A state becomes a member after fulfilling the formalities required under the
United Nations Organization. Application for admission of a state should be
recommended by the Security Council & general assembly should select it by the
2/3rd majority.

Or

The King of State ‘A’ during his stay in state ‘B’ promised to marry Miss.
Bobby. Subsequently, King refused to marry her. Miss Bobby wants to file
a suit against the King in State ‘B’. Can she do so?
Ans:

No here the State ‘B’ has not got jurisdiction to decide the case as the King is the
sovereign of State ‘A’. So Miss. Bobby cannot sue in State ‘B’ against the King.

State jurisdiction is the power of a state under international law to govern powers and
property by its municipal law. It includes both the power to prescribe the rules (prescriptive
jurisdiction) and the power to enforce them (enforcement jurisdiction). Jurisdiction may be
concurrent with the content of a state’s law and its procedures for enforcing that law. Each
state has normally jurisdiction over all persons and things within its territory.

The term ‘Jurisdiction’ refers to the legal competence of State officials to prescribe
and enforce rules with regard to persons, things and events. There are two kinds of
jurisdiction are there. They are subjective territorial jurisdiction and objective territorial
jurisdiction. According to subjective territorial jurisdiction principle, a state may claim
jurisdiction over crimes commenced within its territory but consummated outside its territory.
According to objective territorial jurisdiction principle, a state gets jurisdiction over the
crime, if any of the constituent elements of the crime is consummated in its territory. But
there are some exceptions so as to exercise this kind of jurisdiction. The exceptions are as
follows:

i. Diplomatic Agents
j. Foreign embassies
k. Foreign Sovereigns
l. Immunity in respect of public property of Foreign Sovereign State

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 m. International Organizations
n. Extradition Treaties
o. Foreign Troops
p. Immunity of warship and their crew

So in this above mentioned problem the suit was instituted against the sovereign, i.e.
the King of that State. So he is exempted from the jurisdiction of State ‘B’. This problem is
similar to the case Mighell Vs. Sultan of Johore. In this case, the Sultan of Johore, during
his stay in England, promised to marry the plaintiff. When the said promise was not fulfilled,
the plaintiff filed a case for the breach of the promise. The Sultan of Johore contended that he
was a sovereign of a foreign sovereign State who had not submitted to the jurisdiction of the
court and as such the court could not have jurisdiction over him. The court accepted his
contention and decided in his favour.

Unit-IV

4.a. What is meant by extradition? Explain the main purpose and essential
conditions and restrictions on surrender of criminals.
Ans:

Introduction:

Extradition denotes the process whereby under treaty or upon a basis of reciprocity
one state surrenders to another state at its request a person accused or convicted of a criminal
offence committed against the laws of the requesting state, such requesting state being
competent to try the alleged offender. If any person commits an offence and escapes to
another country, what is the duty of the latter with regard to him? Should the country of
refuge try him in its own country according to its own laws or deliver him up to the country
whose law he has broken? In general there is no certain answer under International law.
Gotives opines that it is the duty of each country either to punish him or to return them to the
countries where they have committed crime. There must be an agreement between the states
to such effect.

Meaning and definition:

Extradition is derived from two Latin words ‘Ex’ & ‘Tradium’, which means delivery
of criminals.

According to Oppenheim: “extradition is the delivery of an accused or a convicted

individual to the State on whose territory he is alleged to have committed, or to have
been convicted of a crime by a State on whose territory the alleged criminal happens
to be for the time being”.

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 According to Edward Collins: “the inability of a State to exercise its jurisdiction
within the territory of another state would seriously undermine the maintenance of law &
order if there were no co-operation in the administration of justice. The awareness among
national decision-makers of the social necessity of jurisdiction co-operation is illustrated by
the wide-spread practice of returning a person who is accused or who has been convicted of a
crime to the state in which the crime was committed.”

Purpose of Extradition

1. To prevent criminals who flee from a jurisdiction to escape from punishment for a
criminal offence they have been accused or convicted of. Criminals are extradited so
that their crimes shall not be left unpunished

2. It has a deterrent effect on criminal who commits crime and flee from one country to
another.

3. It safeguards the interest of the territorial state. If they are not extradited then that
place may become a place for international criminals & may again commit crime.

4. It is based on reciprocity

5. Extradition is done because there is bilateral treaty and as a step towards achievement
of international co-operation in solving international problems of a social character.

6. The state on whose territory the crime has been committed is in a better position to try
the offender because the evidence is more freely available in that state only, the
requesting state has the greatest facilities for ascertaining the truth in the matter or the
alleged crime, and it is the requesting state only and exclusively which has the
greatest interest in the punishment of the offender whose law the offender has been
alleged to have violated.

Essential conditions or Restriction on Surrender

1. Extraditable Person: The state may obtain the surrender of not only its own nations
but also the nationals of a third state. But a very large number of sates usually refuse
the extradition of their own nationals who have taken refuge in their own country.
Some states who do not extradite their own nationals claim the right to exercise
criminal jurisdiction over their nationals even though the offence committed by them
in other country.
2. Extraditable Crime:
There are extradition crimes. They are as follows:

a. Specified Crimes:
The offence which is specified in the treaty can be extraditable. No state can
ask for the surrender of person guilty of any offence which is not mentioned in the
treaty.

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 b. Rule of double criminality:
What act or conduct constitutes a crime may differ from country to country?
The activity of fugitive should be such as may constitute crime in both countries
in that case only it is extraditable crime. Even though if it is a specified crime in a
treaty but it is not a crime in a state where he flew then extradition cannot be
asked. The rule of double criminality requires that the activity complained of
should constitute the same crime in both the countries in order to be an
extraditable crime for example; the individual was convicted of ‘perjury’ under
American Law but that particular act did not constitute ‘perjury’ under English
Law and therefore, request for the extradition was not allowed.

Case: Factor Vs. Laubenheimer

In this case, the British authorities started proceedings for extradition of Jacob
Factor on a charge of receiving in London money, which he knew to have been
fraudulently obtained. At the time extradition was applied for, Factor was residing
in the state of Illinois.
The Supreme Court held that this did not prevent extradition if, according to the
criminal law of United States, the offence is punishable; otherwise extradition
might fail merely because the fugitive offender would succeed in finding in the
country of refuge some province in which the offence charged was not considered
to be punishable there.

c. Rule of Speciality
It means that the requesting state is under a duty not to try or punish the
offender for any other offence than that for which he is extradited. It is based on
principle of rational consideration of fairness & justice in international law

Case: US Vs. Rauscher

The fugitive offender was extradited from Great Britain to the US to be tried
for a murder committed on board an American ship on the High Seas. Since there
were no good evidence to prove murder, Rauscher was convicted of the offence of
grievously hurting a man named Johnson.
The Supreme Court Held: That it was a violation of the Extradition Treaty & thus
the rule of I.L. The person who has been brought within the jurisdiction of the
Court by virtue of the extradition under a treaty can only be tried for which he had
been charged for his extradition & to no other offence even if the offender does
not complain against the violation of this rule of speciality.

3. Prima Facie Case:

There should be sufficient evidence for the crimes for which extradition is
requested. It should prima facie appear that the accused has committed the
crime. In the Tarasov Extradition case (1963), the accused was discharged by
the court because no prima facie case was made out against him. The evidence

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 This treaty had empowered Britain to declare war or peace on behalf of Ionian
State. In 1854 the German war broke out between Britain and Russia. During
the war, the British warships apprehended some ships which were carrying on
trade with the enemy. It was contended that the inhabitants of the Ionian group
of Islands are British subjects and consequently they cannot carry on the trade
with the enemies of Britain during the war period. The court decided that the
Ionian group of Islands is an independent State and it was, therefore, free to
trade with Russia.

6. Trust Territories:

The charter of the United Nations has introduced a new system of trust territories.
The trusteeship system is applicable to:
a. The former mandated territories;
b. Territories taken from enemy states as a result of the Second World War;
c. Territories voluntarily placed under the trusteeship system by states responsible
for their administration.

The UN charter provides that the trust territories are to be administered pursuant to
trusteeship agreement under the supervision of the UN. The basic object of the trusteeship
system is the advancement of the people of trust territories and their progressive development
towards self-government of independence. One such example here it can be mentioned is
South West Africa.

The administering countries do not claim any title to sovereignty. Very often the
question, “Where does sovereign reside?” There is no agreement as to whether it resides in

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the UN or elsewhere. At the same time, it must be noted that though the administering powers
do not enjoy sovereign rights over the trust territories, yet they have wide powers and
responsibility both regarding its financial administration and defence matters.

Unit- III

3.a. What is territorial jurisdiction of the State? Who are exempted from
territorial jurisdiction and to what extent?
Ans:

Introduction:

Jurisdiction of the state is the area where the state can exercise its power or the it is a
inherent authority of a court to hear a case and to declare a judgment. State jurisdiction is the
power of a state under international law to govern powers and property by its municipal law.
It includes both the power to prescribe the rules (prescriptive jurisdiction) and the power to
enforce them (enforcement jurisdiction). Jurisdiction may be concurrent with the content of a
state’s law and its procedures for enforcing that law. Each state has normally jurisdiction over
all persons and things within its territory.

The rules of state jurisdiction identify the persons and the property within the
permissible range of a state’s law and its procedures for enforcing that law. They are not
concerned with the content of a state’s law except in so far as it purports to subject a person
to it or to prescribe procedures to enforce it. State jurisdiction connotes “essentially the extent
of each state’s right to regulate conduct on the consequences of events.” A state may regulate
its jurisdiction by legislation, through its courts or by taking executive or administrative
action. State jurisdiction concerns both international law and internal law of the state.

Principles of Territorial Jurisdiction

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The term jurisdiction refers to the legal competence of State officials to prescribe and
enforce rules with regard to persons, things and events. By distinguishing between those
situations in which a state may exercise its jurisdiction and those situations in which it may
not, international law serves to clarify the authority of officials and to minimize friction
among the states.

There are two principles relating to territorial jurisdiction of a state. They are as follows:

a. Subjective Territorial Principle

b. Objective Territorial Principle

a. Subjective Territorial Principle:

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 According to this principle, a state may claim jurisdiction over crimes
commenced within its territory but consummated outside its territory. The
state where the crime commenced or was initiated may enact under its
criminal law that it will have jurisdiction over such preparatory acts.
Ordinarily, States do not exercise this type of jurisdiction. There are, however,
certain situations where in States where the crime commenced or was initiated,
are under duty to punish the accused. This is provide for example, under the
Geneva Convention for the suppression of the Illicit Drug Traffic (1963). State
parties to these conventions have accepted this obligation so as to prevent
commission of crime in other state.

b. Objective Territorial Principle

According to this principle, a State gets jurisdiction over the crime, if any of
the constituent elements of the crime is consummated in its territory. For the
State concerned to assume jurisdiction it is also necessary that the act must
have produced some harmful effect within or on the territory of State.
In S.S. Lotus Case, Judge Moore, observed: “it appears to be now universally
admitted that when a crime is committed in the territorial jurisdiction of one
state as the direct result of the act of a person at the time corporally present in
another State, international law, by reason of the constructive presence of the
offender at the place where his act took effect, does not forbid the prosecution
of the offender by the former State, should he come within its territorial
jurisdiction.”

Thus the jurisdiction of a State is not always a co-incident with its territory.
Each State exercises jurisdiction over its territory. The sovereignty of the State
is limited to that territory. But there are some exceptional circumstances where
the State can exercise its jurisdiction outside its geographical limits. The State
can exercise extra-territorial jurisdiction over foreigners. This law explained
clearly in the case K.T.M.S Abdul Cader and others Vs. Union of India.

Facts: The petitioner was alleged to have been smuggling or dealing with the
smuggled goods. This led the Madras State to reasonably apprehend that
unless they were detained forthwith they would continue to indulge in similar
activities which may prove a hazard to safety and security of the country.
Hence detention orders were passed first under Sec 3(i) (c) of the Maintenance
of Internal Security (Amendment) Ordinance, 1974 and then, under the
Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974; but the warrant of arrest under the said two Acts, could not be
executed because the petitioners continued to live abroad. Therefore, at the
instance of the State Government issued proclamations under Sec 82 (1),
Cr.P.C on 2-12- 1974 and Sec 7(1) (c) of the Act of 1974, read with Sec 82
(1), Cr.P.C. on 16-1-1975. The petitioners was urged before Madras High
Court that the Act has0 no extra-territorial
0 application and hence the State

26
Government has no power under the Act to pass orders of detention against
persons who at the time when the orders were made, were not within India but
outside its territorial limits. The full bench of Madras High Court rejected his
contention and dismissed his petition. The Supreme Court observed that it is
well established that the power of the Parliament to make a law in relation to
the topic entrusted to it is plenary, that a law passed by the Parliament under
Article 245 cannot be invalidated merely on the ground it has extra-territorial
and that such a law cannot be questioned on the ground that it may not be
0 0
found capable of enforcement outside its territory.
 There are some exceptions so as to exercise the jurisdiction of the State. They are as
follows:

a. Diplomatic Agents
b. Foreign embassies
c. Foreign Sovereigns
d. Immunity in respect of public property of Foreign Sovereign State
e. International Organizations
f. Extradition Treaties
g. Foreign Troops
h. Immunity of warship and their crew

a. Diplomatic Agents:
They enjoy certain privileges and immunities. They are immune from the
jurisdiction of the civil and criminal court of the receiving State. According to
the modern view, diplomatic agents enjoy certain privileges and immunities
because of the special functions they perform. This was affirmed in the case
Ex party Petroff (1971) by the Supreme Court of Australia.

b. Foreign Embassies:
They are often considered to be outside the jurisdiction of the State in which
they are situated. They are treated as a part of their home States. The correct
view, however, is that though not part of their home states, embassies enjoy
certain immunities because of the special functions performed by them.

c. Foreign Sovereigns:
They are often treated to be outside the jurisdiction of other states and possess
many privileges and immunities. This is based upon the principle that one
sovereign cannot exercise jurisdiction over another sovereign. In the case of
Christina Lord Wright observed, “There are general principles of international
law according to which a sovereign state is held to be immune from the

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 jurisdiction of another Sovereign State…. The rule may be based on the
principle of par in Parem Non habit Imperium, no state can claim jurisdiction
over another state.”

Case: Mighell Vs. Sultan of Johore. :

In this case, the Sultan of Johore, during his stay in England, promised
to marry the plaintiff. When the said promise was not fulfilled, the plaintiff
filed a case for the breach of the promise. The Sultan of Johore contended that
he was a sovereign of a foreign sovereign State who had not submitted to the
jurisdiction of the court and as such the court could not have jurisdiction over
him. The court accepted his contention and decided in his favour.

d. Immunity in respect of public property

Like the person of foreign sovereign, the property of the sovereign or the
public property of the State also receives certain immunities and exemptions
from the exercise of jurisdiction.
Case: Schooner Exchange Vs McFaddon (1812)
In this case, C.J. observed that it is a principle of public law, “that national
ships of war, entering the port of a friendly power open for their reception, are
to be considered as exempt by the consent of that power from its jurisdiction.”
If a sip engaged in a commercial transaction then such ships are not exempted.
It is little difficult to determine
0 0 as to whether a particular act is commercial or
not. According to Prof. W. Friedmann, there are different views in the
classification of commercial matters and the sovereign matters. They are as
 follows:
 All that property which is owned by state is entitled to immunity.
 According to second view, this immunity is not absolute and it has
certain limitation. It depends upon the type of the act. But it is difficult
to determine as to whether a particular act is a sovereign ac or not.
 According to third view, immunity depends upon the nature of the
function. In accordance with this rule, those ships which are owned by
the state and perform commercial functions, are treated equivalent to
private ships during peace times.

e. International Organisation
It also enjoys certain immunities and privileges from the jurisdiction of the
States in which they are situated. For example, the United Nations
International Labour Organisation, and other specialized agencies enjoy
several privileges and immunities. For the purpose of granting privileges and
immunities to the UN a convention known as the Convention on the Privileges
and immunities of the United Nations were entered into.

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 f. Extradition Treaties
Any person who runs away from his country after committing crime may be
extradited under this provision. It means handover of accused to state where
he committed crime, so that he could be prosecuted and punished according to
the law of the land. Thus in respect of such persons also, State may exercise
some sort of jurisdiction even outside its territory.

g. Foreign Troops:
A sovereign is understood to cede a portion of his territorial jurisdiction where
he allows the troops of a foreign prince to pass through his dominions. The
grant of free passage therefore implies a waiver of all jurisdictions over the
troops during their passage and permits the foreign army authorities to
exercise jurisdiction upon the army personnel to maintain discipline and to
inflict those punishments which the government of his army may require.

h. Immunity of warship and heir crew:

Under International Law warships enjoy a great measure of immunity.
Warships are immune from legal process, execution or jurisdictional measures
of foreign authorities. This immunity is applicable to the commander of the
crew as well as the ship itself. The immunity is not lost for acts of State (i.e.,
official acts) even if they are illicit (but not including crimes under
international law). The home state of the warship will be responsible for its
acts. Last but not the least, no immunity will be available if the warship, its
commander or crew intrudes in a foreign country in disguise and/or under
false pretence.

Conclusion:

State territory is the area where the state can exercise its sovereign power. The state
jurisdiction is a power of a state under international law to govern persons and property by its
municipal law. If any person commits crime inside its territory then the state has got the
jurisdiction so as to punish such criminals. Even though the crime is committed outside the
state but the person belongs to that state then also the state has got the jurisdiction to try such
case. Sometimes it can operate its state law outside its territory, i.e., extra-territorial
operation. But while exercising this jurisdiction some persons and property of the foreign
sovereign are exempted. A foreign sovereign has no immunity when it enters into a
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commercial transaction with a trader and any dispute arises which is properly within the
territorial jurisdiction of that court.
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Or
What is meant by State Responsibility? Explain briefly the state
responsibility in different fields.
Ans:

Introduction:

In international relations, the violation of a legal right of one state by another state
gives rise to international responsibility of the wrong doing state towards the wronged state.
The functions of the rulers of State responsibility is to determine the legal consequences of
the breach of the rules of International Law by one State which has resulted in injury to
another State in damage to the dignity or prestige of another state.

Meaning of the term ‘State Responsibility’

Often it is said that the sovereign has no obligation under law. This statement is true
only in respect of the subjects of the sovereign because a state may change its law at its will
and may thus bring about changes in its obligations. A state has certain obligations under
International Law. “The state responsibility concerning international duties is, therefore, a
legal responsibility, for a state cannot abolish or create international law in the same way that
it can abolish or create municipal law.” The rules of international law as to State
responsibility concern the circumstances in which and the principles whereby the injured
state becomes entitled to redress for the damage suffered.

States Responsibility in different fields:

It is an obligation of a state to prevent its own subjects as well as foreign subjects

living within its territory from committing such acts which may cause injury to other state.
However, if any wrongful act is done by an individual or group individuals, a state to which
they belong is held responsible for their acts. State is responsible not only for the wrongful
acts done by its organs but also responsible for the acts of the individual.

1. International Delinquency
Delinquency means wrong doing; an action going against law. International
delinquency is a wrongful act committed by a state on the aliens of another
state directly or indirectly. According Prof. Oppenheim, “Every neglect of an
international duty constitutes an international delinquency and the injured
State can, subject to its obligations of pacific settlement through ‘reprisals’ or
even war, compel the delinquent State to fulfil its international duties.”
In practice, most cases of responsibility, at least before international tribunal,
arise out of wrong alleged to have been committed by the state concerned. By
wrong in this connection meant the breach of some duty which rests on a state
at International Law and which is not the breach of purely contractual

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 obligation. A person who goes to live in the territory of a foreign state must
submit to its laws; but, that is not to say that certain duties under international
law in respect to the treatment of that person do no bind the state. Examples
are the duty of the state to provide proper judicial remedies for damage
suffered, and the duty to protect alien citizens from gratuitous personal injury
by it officials or subjects.

Notion of Imputability

If, an agency of state causes injury to citizen of another state, former state will
be liable to the latter state if the said act in law is imputed to the state. Imputability
depends upon two conditions. They are
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a. Conduct of a state organ or official in breach of obligation under international
law and
 b. According to international law, breach will be attributed to the state.

A state becomes internationally responsible for the breach only if breach is imputable to
the state.

2. State Responsibilities for the acts of aliens

It is generally agreed that aliens living in a state should be given same right
which are given to the citizens of that state. It is responsibility of state to
protect the rights of aliens in the same way as they protect the rights of their
own citizen. State responsibilities for aliens are as follows:
a. State responsibility for the acts of individuals
If a citizen of a state caused damage or harm to an alien, that alien gets the
rights to file a suit for the compensation according to the law of that state.
In case of a state tribunal is arbitrary and against justice, the alien may
approach his home state to settle the matter through political means so as
to ensure that the matter is decided in accordance with the principle of
international law.
b. State responsibility for the acts of Mob Violence
A state may be held responsible for the harm caused to the alien by
mob violence only when it has not made due diligence to prevent it.
But, this is a very uncertain and ambiguous principle because ‘due
diligence’ to prevent mob violence depends upon the time, fact and
circumstances.
The responsibility of the state also extends to the officers or servants of
the international organization.

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 Case: Reparation for Injuries Suffered in the Service of the United
Nations
In this case Count Bernadotte along with a French observer was
appointed by the United Nations Security Council to mediate in the
conflict between Arab and Jews in Palestine. On Sep 17, 1948, when
he was in the area of Jerusalem, occupied by Israel, he and the French
observer were murdered. The question arose whether the United
Nations could claim reparation for his death. The matter was referred
to the International Court of Justice for its advisory opinion. The
World Court held that United Nations is an international person and
under international law it has rights and duties; that it can claim
damages and compensation for the injuries or loss suffered by the
persons working under its service or auspices. The Government of
Israel paid the money in the form of compensation but made it clear
that it did not accept any obligation under international law in this
connection.

c. The state responsibility for the acts of insurgents

The general rule is that it is the responsibility of the state to try to prevent
the violent acts of revolutionaries. According to Fenwick, the state
responsibility for the acts of insurgents is different from state
responsibility for the acts of mob violence. In his words, “the very
existence of organized revolution raises a presumption of ‘due diligence’
on the part of the state for suppressing it since the Government had an
immediate interest in such an open attack upon its authority.”

Calvo Doctrine
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It was propounded by Mr. K. Calo of Argentina. In his view during
civil war the state is not responsible for the losses suffered by alien persons
 because if the responsibility is accepted, big nations will get an excuse to
intervene in the weaker states. Many states, such as, America and England do not
accept this doctrine. They point out, since the revolt or insurrections are frequent
in the states, the presumption that the states made ‘due diligence’ becomes weak.

3. For the acts of governmental organs

A state is responsible for the acts performed by its representatives or high
officials towards alien persons. The state will be responsible only to the extent
when the officials concerned act beyond their powers and jurisdiction.
Similarly the state is responsible for the acts of its judicial organs.

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4. Contracts with foreigners
As a matter of fact, the state is not responsible under international law if there
is a breach of contract entered into by a state with aliens. However, the alien
person may avail the local means available to him in the law of the state
concerned. If he fails to get the desired remedy, he may approach his home
state to pursue the matter.

5. For the Breach of Treaty or Contractual Obligations

State responsibility as a result of the breach of treaty will depend upon the
provisions of the treaty. If there is a breach of treaty obligations, the state
concerned shall be responsible to pay the compensation.
Case: Chorzow Factory (Indemnity) Case
The permanent court of justice held that, it is a principle of
international law that the reparation of wrong may consist in an indemnity
corresponding to the damage which the national of the injured state have
suffered as a result of the act which is contrary to international law. Although
the rights of the individuals are different from those states, yet they may be
taken into account while assessing the damages.

6. In respect of Expropriation of Foreign Property

There is a great controversy in regard to the expropriation of foreign property
situated in a state. However, in the modern period, significant changes have
taken place in this connection. Till the 19th century, if any state expropriated
the foreign property it was considered to be the violation of international law
making the said state liable for the same. But, in the modern period, in view of
the complete control of states over their Economic system and in consequence
of nationalization of different industries, it has become difficult to recognize
such expropriation as the violation of international law. It may be noted that
the term ‘Expropriation’ includes nationalization and confiscation of property.

Case: Anglo-Iranian Oil Co. Ltd vs. Jaffrate

It was held that, on the basis of practice, principles and decided cases,
it may be that expropriation of foreign property may be valid only when there
has been no irregularity or discrimination with the foreigners.

7. Acts of Multinational Corporations

There is lack of definite international law in respect of liability of transnational
or multinational corporations. The charter of Economic Rights and Duties
adopted by the General Assembly on 12th Dec, 1974, recognizes the right of
each state “to regulate and supervise the activities of transnational co-
operations within its national jurisdiction and take measures to ensure that
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such activities comply with its laws, rules and regulations and conform to its
economic and social policies. But developed countries such as U.S., U.K.,
Federal Republic of Germany and Japan voted against this.

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Case: M.C. Mehta Vs. Union of India (Oleum Gas Leak Case)
The Supreme Court held “the enterprise must be under an obligation to
provide that the hazardous or inherently dangerous activity, in which it is
engaged must be conducted with the highest standard of safety and if any
harm results on account of such activity the enterprise must be absolutely
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liable to compensate for 0 harm and it should be no answer to the
enterprise to say that it had taken all reasonable care and that the harm
occurred without an negligence on its part. The enterprise is strictly and
 absolutely liable to compensate all those who are affected by the accident and
such liability is not subject to any of the exceptions which operate vis-à-vis the
tortuous principle of strict liability under the rule of Ryland vs. Fletcher.

Conclusion:

The rules of International law as to state responsibility concern the circumstances in

which and the principles whereby, the injured state becomes entitled to redress for the
damage suffered. The wrongs which give rise to state responsibility may be various kinds,
like original responsibility and vicarious responsibility. The breach of duty may be either an
act or omission. Thus, international responsibility may be occurred by direct injury to the
rights of a state and also by a wrongful act or omission which causes injury to an alien.

3.b. Short Note:

Rights and duties out of State Succession
Ans:

A succession of international person occurs when one or more international persons

take place of another international person, in consequence of certain changes in the latter’s
condition. Ordinarily the practice of states shows that no general succession takes place.
However, most jurists agree that when an international person is extinct or disappears then
some of its rights and obligations are succeeded by other international persons which take its
place.

The rights and duties out of state succession are as follows:

1. Political Rights: No succession takes place in respect of political rights and duties,
hence succeeding state are not bound by the political treaties of the former state such
as treaties of peace or neutrality.

2. Local Rights & duties: A genuine succession takes place in respect of local rights
and duties, such as land, rivers, roads, railways etc…

3. State Property: Art. 11 of the Vienna Convention of State Property Archives and
Debts, 1983 provides that unless otherwise agreed the passing of State property will

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