A.K. Jain Public International Law

PUBLIC INTERNATIONAL LAW &
HUMAN RIGHTS
[LAW OF PEACE]
[LEADING CASES, MATERIALS & Q.A.]
Dr. ASHOK K. JAIN

LL.M; Ph.D (Delhi)
ASCENT PUBLICATIONS
21/29, Shakti Nagar, Delhi - 110 007
First Edition 1998
Reprint 2000/2002/2004/2006/2007
Second Edition 2008 (Enlarged)
Third Edition 2010
Reprint 2 01 1 /2 01 2
© ALL RIGHTS RESERVED. No part of this book may be reproduced in any

form including translation by any means without prior permission of the
author.
Published By :
ASCENT PUBLICATIONS
21/29, Shakti Nagar,
Delhi - 110 007
Printed at: G.S. Offset, Delhi.

CONTENTS
1. NATURE, DEFINITION AND SCOPE OF INTERNATIONAL LAW 1
2. SUBJECTS OF INTERNATIONAL LAW 20
3. SOURCES OF INTERNATIONAL LAW 29

4. RELATIONSHIP BETWEEN INTERNATIONAL LAW AND
MUNICIPAL LAW 74
5. RECOGNITION 88
6. LAW OF THE SEA 113
7. STATE RESPONSIBILITY 140 (i-xxxii)
8. PUBLIC INTERNATIONAL LAW-ADGENDA 141
9. HUMAN RIGHTS 159
10. INTERNATIONAL ORGANIZATIONS (UNO/ICJ/ICC) 186

TABLE OF CASES
A.D.M. Jabalpur v Shukla ................................. 82 Libyan-Malta Continental Shelf
Adams v Adams ................................................ 94 case .................................................... 125, 138
Anglo-French Continental Shelf Luther v Sagor....................................... 100, 106
Arbitration ..................................... ............... 124 Macleod v United States .....................................80
Anglo-Iranian Oil Co. Case .................. ........... 52 Maganbhai v UOI ...............................................83
Anglo-Norwegian Fisheries Case..... ................ 116 Mavrommatis Palestine Concession
case ......................................... .............. 48, 66
Bank of Ethiopia v National Bank of Military and Paramilitary Activities in
Egypt & Ligouri .............................................. 101 and against Nicaragua ....................... 34, 36, 62
Barcelona Traction case .............................. 56, 70 Namibia case ...................................................... 53
Berubari Union cases ........................................ 84 Nanka v Govt, of Rajasthan. ............................... 84
Birma v State .................................................... 84 Nationality Decrees case.....................................58
Black Bum v Attorney General.......................... 79 Nicaragua case ...................................................37
Blom v Sweden ................................................. 27
North Atlantic Fisheries case .............................. 42
Chank Fishery cases (Annakumaru Pillai v
North Sea Continental Shelf Cases.........................
Muthupayal; A.M.S.S.V.M. &
............................... 32, 48, 56, 86, 122, 124
Co. v State of Madras)....................................... 82 Os time v Australian Mutual Provident
Civil Air Transport Inc. v Central Air
Transport Corpn .............................................. 106 Society ............................................................... 80
Civil Rights Vigilance Committee, Pacquete Habana ease................................ 35, 71
Bangalore v UOI ............................................... 84
Queen v Keyn ......................................................4
Condition of Admission of a State to
Reservation to the Genocide Convention
the United Nations.................................. 67, 96
case ................... ...................... 42, 49, 56, 73
Corfu Channel case .................................67, 119
S.S. Lotus Case .............................................. .. 38
Danzing Railways Official case ......................... 25
S. S. Wimbledon case .........................................63
De Becker ......................................................... 25
Delimitation of the Maritime Boundary in the Serbian and Brazilian Loan case ......................... 66
Gulf of Maine Area (Canada Shiv Kumar Sharma v UOI .................................83
v USA)............................................................ 124 South West Africa case................................. 68, 73
Diversion of Water from the Meuse
Tag v Rogers ...................................................... 80
case ............................................................ ..... 67
Temple of Preah Vihear ......................................66
Eastern Greenland case...................................... 65
The Arantzanu Mendi ....................................... 101
Ex parte Quirin.................................................. 26
The Asylum Case ...............................................35
Fisheries Jurisdiction cases .......................... 58, 60
The Lawless Case ...............................................24
Free Zones case ................................................. 53
The Right of Passage Case..................................39
German Interests in Polish Upper Silesia
(Chorzow Factory case)............... .. ....... 48, 65 Trendtex Trading Corpn. v Central
Gramophone Co. of India Ltd. v B.B. Bank of Nigeria ..................................................79
Pandey .............................................................. 83
U.N. Administrative Tribunal Case .....................64
Great Britain -Costa Rica Arbitration
(Tinoco Concessions case) .............................. 110 United States v P.L.0 ..........................................80
Gulf of Maine Boundary case ............................ 67 United States v Pink ...........................................80
Island of Palmas case .................................. 53, 66 UOI v Sukumar Sen Gupta ....... ........................ 84
Jolly Verghese v Bank of Cochin....................... 83 Upper Silesian Mixed Tribunal case ...................27
Libya - Tunisia Continental Shelf case............. 124 West Rand Central Gold Mining Co.
Ltd. v R .............................................................. 37
□
NATURE, DEFINITION AND SCOPE OF INTERNATIONAL
LAW
The term ‘International Law’ or ‘Law of Nations’ has been used in

contradistinction to the ‘National Law’ or ‘Municipal Law’ which means the law of
country. International Law is, generally, above and outside, the national laws of the
various States and to some extent operates on the territories of all the States. The
question whether it can be called a superior law remains in doubt in spite of the
growing acceptance and respect for international law among the member-States.
International Law deals with States as legal and political entities and it
applies to all the States equally without any regard to their size and power.
However, the powerful States have a peculiar tendency to interpret the principles of
international law in such a manner as to suit their interest and convenience.
Recent geometrical advances in science, technology and industry have
brought to the fore one stark fact - that no nation, howsoever, big or small, can
afford to lead an isolated life. There is more and more collaboration between the
nationals of one country with the nationals of other countries. Multi-national
companies have sprung up which have their offices in many countries. Today the
scope of international law has extended from the preservation of peace to regulate
the various activities of international life, like space expeditions, ocean floor
explorations, protection of human rights and global environment, management of
international financial system, etc. All these factors and developments emphasise
the need for an international law in the modem scenario.
A law, howsoever important and crucial, is not of much use if it is not
properly defined and codified. There is no single universally accepted definition of
international law, though some good attempts have been made in that direction.
Definition of International Law
The words ‘international law’ were used for the first time by eminent British
jurist, Jermy Bentham in 1780. Since then, these words have been used to denote
the body of rules which regulate the relations among States.
2 PUBLIC INTERNATION LAW
Though international law can be traced to ancient Greece, Rome and India, it
cannot be denied that the public international law which we know today, has come
to us through Europe. It is determined by the modern European system.
Oppenheim’s definition1
Professor Oppenheim has defined international law in the following words :
“Law of Nations or international law is the name for the body of customary and
conventional rules which are considered legally binding by civilized States in their
intercourse with each other”.
The above definition given by Oppenheim in 1905 has become obsolete and
inadequate. The definition has been subject to the following criticism :
(i) The definition takes into account of the relations of ‘States’ only. But,
presently, international organisations and institutions are also regarded as
subjects of international law. They have been given rights and duties under
international law, even though they may not have all the rights and duties
that States have. Certain activities of multinational corporations are also
regulated by this branch of law.
(ii) International Law also provides certain rights and duties to individuals. It
has been so, particularly, after the establishment of the United Nations
Organisation. Universal Declaration of Human Rights and International
Covenants of Human Rights further confirm that the individuals have
become not only the subjects of international law but can also directly
claim rights and remedies provided under international law.
Above all, the Charter of the U.N. begins with the words “we the people of
the United Nations”. Thus, the present international law cannot be regarded
as the law governing the relations between States.
1. “Law of nations or international law is the name for the body of customary or treaty rules
which are considered legally binding by civilized States in their intercourse with each
other”. Critically analyse this definition in the light of developments after second world
war. How does the modern definition differ from this definition ? [C.L.C.-96\
I.A.S.—95]
Define International Law. [L.C.II-93/94/95]
Oppenheim and others have defined International Law as rules and principles of inter -State
relations, which are considered as binding on States. State your views on the true nature of
international law keeping in view the above definition. [L.C.II-96]
NATURE, DEFINITION & SCOPE OF INTERNATIONAL LAW 3
but must be regarded “as the common law of mankind in an early stage of
its development” (Jenks). At present, it also governs relations between
States and international organisations, between States and private persons,
and between international organisations and private persons (Judge Jessup
has therefore suggested an alternative name “Trans-national law” to
include all law which regulates actions or events that transcend national
frontiers).
(iii) The use of the term ‘civilized States’ by Oppenheim is also severely
criticised. In not too distant past, the Western States regarded only the
‘Christian States’ as ‘civilized States’. At present there are as many as
185 members of the U.N. which include Christian as well as non-
Christian States. The term ‘civilized States’ was thus deleted in the later
editions of Oppenheim’s book.
(iv) The words ‘legally binding’ (in the Oppenheim’s definition) connote
positive character which is diffused and diluted by the subsequent words
‘by civilized States’. Oppenheim does not say that these rules are ‘legally
binding’, but that they ‘are considered’ so. His definition, though broad, is
a qualified one.
(v) The definition lays down that the rules of international law derive only
from customs and treaties, but it is not correct. Article 38 of the Statute of
International Court of Justice mentions ‘General Principles of Law
recognised by the civilized nations’ as third source of international law to
be used while deciding an international dispute.
(vi) The expression ‘body of rules’ denotes that international law is static or
fixed. Its rules cannot be changed. However, international law is a
dynamic and living law. Its rules have been changing with the passage of
time out of experiences and necessities of situations (It may be noted that
it has become customary to define law as ‘body of rules’, therefore, it is
not proper to criticise Oppenheim on this account).
In the ninth edition of Oppenheim’s book (1992) the term ‘international law’ has
been defined differently after taking into account of the new developments :
“International Law is the body of rules which are legally binding on States in their
intercourse with each other. These rules are primarily those which govern the
relations of States, but States are not the only subjects of international law.
International organizations and, to some extent, also individuals may be subjects of
rights conferred and duties imposed by international law”. )
This new definition of international law is nearly similar to that given by Starke
and Fenwick (see below). However, it is still deficient in one respect viz. its silence
regarding 'general principles of law’ recognized by civilized nations.
Other Classic definitions
Brierly : “The law of nations or international law may be defined as the body of rules
and principles of action which are binding upon civilized States in their relations with
one another”.
Torsten Gihi : “The term ‘international law’ means the body of rules of law which
apply within the international community or society of States”. Hackworth similarly
defines : International Law consists of a body of rules governing the relations between
States”.
Queen v Keyn : In this case [2 Ex. D. 63 (1876)], Lord Coleridge, C.J. defined
international law as : “The law of nations is the collection of usages which civilized
States have agreed to observe in their dealings with one another”.
Gray : “International Law or the law of nations is the name of a body of rules which
according to the usual definitions regulate the conduct of States in their intercourse
with each other”. Kelsen has also given a similar definition.
Cobbett : “International Law may be described as the sum of the rules accepted by
civilized States as determining their conduct towards each other, and towards each
other’s subjects”.
The above definitions can also be criticised in the same way as Oppenheim’s
definition has been criticised. The definitions are inadequate to represent modem
international law.
Modern definitions
Fenwick : “International law may be defined in broad terms as the body of general
principles and specific rules which are binding upon the members of the international
community in their mutual relations”.
The definition takes into account the changes that have taken place after the
Second World War. The words ‘members of the international community’ include
States, international institutions, individuals and non- State entities. The term ‘general
principles is also incorporated in the definition.
Whiteman : “International law is the standard of conduct, at a given time, ""for States and
other entities subject thereto”.
A brief but adequate definition; the words ‘other entities subject thereto’ may
include international organisations, individuals and non-State entities. Whiteman has
also emphasised dynamic aspect of international law : “International Law is, more or
less, in a continual state of change and development”.
Starke : “International law may be defined 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 which includes also :
(a) the rules of law relating to the functioning of international
institutions/organisations, their relations with each other, and their
relations with State and individuals; and
(b) certain rules of law relating to individuals and non-State entities so far as
the rights and duties of such individuals and non-State entities are the
concern of the international community”.
The definition of Starke takes into account the changing character of
international law and truly reflects the present position of international law.
However, if an entity not enumerated by Starke ever comes within the scope of
international law with the passage of time, the definition would again be subjected to
criticism. Thus, the definition does not stand correct for all times to come.
Schwarzenberger : “International law is the body of legal rules which apply between
sovereign States and such other entities as have been granted international
personality”.
Thus, unlike Starke, Schwarzenberger very rightly preferred not to name the
entities whose rights and duties are regulated by international law. According to
him, international law. if and when grants international personality to any entity, or
when international law would be capable of regulating rights and duties of any
entity, its rules shall apply to them. It is immaterial if only certain rules regulating
the rights and duties are framed for them.
Conclusion
On the basis of the above definitions one may conclude that “International law
is constantly evolving body of norms that are commonly observed by the members
of international community in their relation with one another. These norms confer
rights and impose obligations upon States and, to a lesser extent, upon international
organizations and individuals”.
The above view takes into account both the new and classic definitions of
international law. The classic view is supported by the fact that international law is
primarily a system regulating the rights and
duties of States and that is why it is also termed as the ‘law of nations’. The modern
view is supported by the fact that international law is a living and expanding code.
DEVELOPMENT OF INTERNATIONAL LAW
(Scope of International Law)2
International law is a dynamic law. It has been changing since its inception. It
is constantly developing, sometimes it does not keep up with developments, other
times it anticipates them and gives an early warning of tendencies in the
development of international relations. It is a developing philosophy of values. For
example, in June 1989, the United Nations Environment Programme (UNEP) with a
view to warn the people of the increase in earth’s temperature due to “green-house
effect”, gave the slogan of ‘Global warming : Global warning’. Similarly, the Rio
Conference in 1992 highlighted the need to protect and preserve earth from
environmental pollution. At crucial or important turns of history, there are
qualitative changes in international law. The recent breaking of the Soviet Union is a
glaring example of this.
New International Law
The term ‘new international law’ indicates the norms and values that have been
evolved since the second world war. The traditional, juridical and individualistic
character of international law (i.e. law governing the relations of sovereign States
with each other) is being replaced by the law of social interdependence (i.e.
interdependence of the nations or international community). At the present time,
there is hardly a State which in the interests of the international community has not
accepted restrictions on its liberty of action. The shift has been “from the more or
less formal regulation of diplomatic relations between States to an international law
of welfare” (Friedmann)2a
Interdependence among nations, today, has become inevitable in view of the
expanding horizons of science, technology, trade, commerce, etc. In
2. “Today the scope of international law has" extended from the preservation of peace to
regulate the various activities of international life, like space expeditions, ocean floor
explorations, protection of human rights, and management of international financial
system, etc.” Elaborating the above statement discuss the development of international
law since the Second World War. [C.L.C.-97]
2a. “No Constitution can limit sovereignty, which is an attribute of the king in a monarchy, and
of the people in a democracy.” Do you agree with the view that the modern developments
in international law cast a doubt on this statement. [I.A.S.-94]
fact, the growth and development of international law is parallel to the growth and
development of international relations in the field of science and technology, trade
and commerce, etc.
In the 20th century, factors which contributed largely to the development of
international law further, could be summarised as below:-
(i) International organisations - subject of international law
For the first time, organizations of universal character were set up viz. U.N.,
ILO, ICJ, etc. The organs of international organisations contribute to the clarification
and development of international law. Handling of social, cultural and economic
problems of the States by the international organisations is an important event of the
present century. In fact, the “future belongs to such organisations”.
For instance, W.H.O. (World Health Organisation), an organ of U N.,
contributed to the International Sanitary Regulations. I.C.A.O. (International Civil
Aviation Organization) contributed to the international standards and recommended
practices, etc. regarding international air navigation. I.L.O. (International Labour
Organization), lCJ(International Court of Justice), IMF (International Monetary
Fund) are other important international organizations. In the last few decades, U.N.
Environment Programme, World Food Council, International Energy Agency (IEA),
etc. have been established.
It is only because of these international organizations that international law is
today actively and continuously concerned with such divergent and vital matters as
human rights, the international control of nuclear energy, trade organisation, labour
conventions, transport control, health regulation, environment protection, etc.
(ii) Individuals - subject of international law
New international law has been evolved around the individual. The most
important change that has taken place is that of addition of new subjects.
International organisations and individuals are now regarded as subjects of
international law. It is significant that individuals have been given a right to make
petitions before some international forums.
Corbett has written : “We are witnessing a transition in international legal
development from a prolonged stage in which the predominant concern was the
regulation of the conduct of States as distinct entities to one in which equal attention
is given to promoting the growth of a body of world law transcending States, and
applicable on a footing of equality, to individuals, corporations, international
organisations and States”.
(iii) Codification of international law

In the 20th century, rules of international law which were hitherto
ambiguous and uncertain have been made systematically in written form which are
applied uniformly to all the States or most of the States.
(iv) Multilateral treaties
In the present century, rules of international law have been made by the
conclusion of treaties in many frontiers which had never been imagined in the
earlier centuries. For instance, at present, space, moon, and deep sea are governed
in accordance with the rules framed through multilateral treaties.
Crisis in International Law
As compared to municipal law, international law is confronted with many
difficulties and problems to keep pace with the rapidly changing times and
circumstances. One of the main defects of international law, according to Brierly,
has been that it has aimed to stabilize rather than to provide for the growth of
international society, and to maintain existing values rather than to create new ones.
In the absence of a world legislative body, treaty making is the counter part
of the legislative process in the domestic field of the States. But treaty process is a
cumbersome process for it obviously depends upon the consent of States with
different ideologies, traditions and interests. Above all, the greatest problem is the
concept of sovereignty. International law operates in a decentralised system.
The rapid changes in different fields have brought a sense of “crisis” in
international law. The factors responsible for this crisis include - rapid
technological progress, the rise of new ideologies and systems of public order,
including militant communism, the appearance of many new States of widely
different cultural backgrounds and levels of development, the fear of war and
growing reluctance of the more advanced States to protect their interests by
coercive means, and the increase in the number and functions of international
organizations.
Thus, in the dynamic world of today, international law finds itself confronted
with many challenges viz. communism, emergence of a large number of new States
on the world scene, nuclear weapons, scientific and technological revolution,
environmental pollution, AIDS, etc.
International law “must be continuously developed by revision in content,
expansion of scope, and improvement of the means of securing compliance, so that
it is keep in accord with the changing needs of the
NATURE,DEFINITION & SCOPE OF INTERNATIONAL LAW 9
international community” (Edward Collins). Indeed the future of mankind rests on

the capability of international law to develop and adapt itself to the changing times
and circumstances. International law must become universal in order to serve the
interests of all States properly, equitably and effectively.
India's position - Like other new States. India has also sought to reject or modify
some of the rules and principles of the traditional international law. India has
neither accepted the whole nor has rejected the entire fabric of the traditional
international law. India, like many other new nations, has expressed dissatisfaction
with some of the rules of international law as developed in the West. Since her
emergence as new State after the attainment of independence, India has made her
own contribution for the progressive development of international law. Her
contribution has been particularly significant in the fields of codification of
international law, colonial issue, peaceful co-existence, non-alignment, and,
environmental protection.
NATURE OF INTERNATIONAL LAW

Is International Law true Law ?3
One of the most controversial issues that has long been debated and on
which the opinions of the jurists are sharply divided concerns the status of
international law. The debatable question is : Is international law really law? One
view is that international law is not a true law. It is a code of rules of conduct of
moral force only. Another view is that international law is a true law, and it is to be
regarded as law in the same way as that of ordinary laws of a State which are
binding upon the individuals.
The controversy whether international law is a law or not revolves on the
divergent definitions of the word ‘law’ given by the jurists.
Austin's view3a
According to Austin, law is a command of the sovereign attended by

sanction in case of violation of the command. In other words, law should
3. The critics of international law argue that there can be no international law since
there is no international legislature to make it, no international executive to enforce
it, and no effective international judiciary to develop it or to resolve disputes about
it. Do you agree ? Can international law be enforced ? Discuss. [L.C.I-
96]
Do States accept International Law as binding on them in the same manner as
Municipal law binds a citizen ? Give reasons. [L.C.I-
94]
Discuss whether
3a. Amongst theInternational Law iswas
positivists, Austin a true
of law? [L.C.II-93/95/96]
the view that international law is no law.
What is the rationale for this statement and do you agree with it?
[C.L.C.-91/93/94/95]
be limited to rules of conduct enacted by a determinate legislative authority and

enforced by physical sanction. The superior, according to him, is the real sovereign.
The definition contains two important elements. Firstly, law is a command enacted
by the sovereign legislative authority, and, secondly, it must be enforced by the
sovereign authority.
Austin said that international law cannot be called law proper in the true sense,
because it has neither sovereign legislative authority to enact law nor there is an
adequate sanction behind it. Moreover, there is no enforcement agency which can
enforce it as a body of rules. The rules commonly called international law, are in fact
the rules of ‘poisitive morality’; the rules are analogous to the rules binding a club or
society. International law is a code of conduct with moral force and nothing more. It
consists of ‘opinions or sentiments current among nations generally’.
A rule is a rule of morality, if by common consent of the community it applies
to ‘conscience and to conscience only’. Such rules are different from rules of law
wherein by common consent of the community it is eventually enforced by
external/superior power. International law is a body of rules governing the relations
of sovereign States inter se, but there is no sovereign power over and above a
sovereign State which could enforce the rules of international law.
It is also argued that there is no such executive power in international law as
may enforce the decisions of the International Court of Justice and ensure the
observance of the provisions of the treaties. International law lacks a potent
judiciary. That is why, some writers call international law a ‘quasi-law’ (Lathan
Brown), Other noted jurists holding similar opinion are Befitham, Holland, Hobbes,
Pufendorf, etc.
Criticism of Austin’s view
The above view which denies the legal character of international law has been
severely criticised by a large number of jurists. According to Oppenheim, law is “a
body of rules for human conduct within a community which by common consent of
this community shall be enforced by external power”. 3b
According to this definition, firstly, there must be community; secondly, there
must be a_body of rules for human conduct within that
3 b. ‘Common consent of the family of nations is the basis of international law’. Discuss. [IA.S.-
92]
“The great majority of the rules of international law are generally observed by all nations
without actual compulsion, for it is generally in the interest of all nations concerned to
honour their obligations under international law” (Morgenthan). In the light of the above
statement, discuss whether international law is true law. [C.L.C.-92]
community (all the communities submit to the rule of law because they wish to
afford due respect and protection to the dignity of men and nations); and, thirdly,
there must be common consent of that community that these rules shall be enforced
by external powers. It means that it is not necessary that rules should be enacted
through a law-making authority or there should exist a law administering court
within the community concerned. Oppenheim said that the three requirements of
this definition are satisfied by international), law, to a greater or lesser extent.
However, definition given by Oppenheim will be regarded correct only when
it is proved that there exists an international society or community. Oppenheim is of
the opinion that the States of the world do together constitute a body bound together
through common interests which create extensive intercourse between them, and
differences in culture, economic structure, or political system, do not affect as such
the existence of an international community as one of the basic factors of
international law.
According to Sir Fredric Pollock, the “only essential conditions for the
existence of law are the existence of a political community and the recognition by its
members of settled rules binding upon them in that capacity”, international law seem
on the whole to satisfy these conditions. According to Louis Henkin, “'what matter is
not whether the international law has legislative, judicial or executive branches
corresponding to those we have become accustomed to seek in a domestic society;
what matter is whether international law is reflected in the policies of nations and in
relations between nations”.
Oppenheim regards international law as law because of the following two
reasons : firstly, international law is constantly recognized as law in practice, the
Government of different States feel that they are legally as well as morally bound to
follow it; secondly, while breaking it, States never deny its legal existence, rather
they recognise its existence and try to interpret international law as justifying their
conduct.
According to Brierly, “the best evidence for the existence of
international law is that every State recognizes that it does exist and that it is itself
under obligation to observe it. States may often violate international law, just as
individuals often violate municipal law; but no more than
individuals do, States defend their violations by claiming that they are
above the law”. As pointed out by Edward Collins : “International law is
created and is deemed to be legally binding by authoritative national and
intemational decision makers because they understand that generally agreed
upon rules and principles of action serve the indispensable function of providing a
basis for the orderly management of international relations”.
According to Starke, international law is really law. He has put forward four
main arguments : firstly, in many primitive communities, a system of law existed
without there being a .formal legislative authority; secondly, international
legislation in the form of law-making treaties and conventions has come into
existence today; thirdly, the authoritative agencies responsible for the maintenance
of international intercourse do not regard international law as merely a moral code;
lastly, the United Nations is based on the true legality of international law.
The arguments of the jurists who regard international law as really law, may
be summed up as follows :
(i) The term ‘law’ cannot be limited to rules of conduct enacted by a
sovereign authority. Customary rules of law do exist viz. common law of
England. The rules laid down by treaties are binding although they do not
emanate from a sovereign political authority. The procedure for
formulating international rules is well settled by means of treaties, etc.
(ii) When international questions arise, States do not rely upon moral
arguments but rely upon treaties, precedents and opinions of specialists.
Thus, States do not deny the existence of international law. In some
States (e.g. USA and UK), international law is treated as part of their
own law [Paquete v Habanna (1900) 175 US 677], As aptly remarked by
Prof. Hart, international law is law because States regard it as law.
Nothing need be further proved.
(iii) International conferences and conventions also treat international law as
law in its true sense. The United Nations is based on the true legality of
international law. As per statute of the International Court of Justice, the
Court has to decide disputes as are submitted to it in accordance with
international law. The Court's decisions are binding upon the parties to a
dispute, and under certain conditions its decisions can be enforced.
Besides this there are a variety of International Tribunals such as
International Tribunal for the Law of the Sea.
(iv) So far as sanction in law is concerned, international law does not
completely lack it (See infra).
(v) International law is not very frequently violated. Thousands of treaties have
been concluded by the States, but the instances of their violation are very
few. Rules regarding immunities provided
to diplomatic agents are generally observed. Other rules of international

law including the laws of warfare are also o serv usually.
Every State or municipal law is violated. Frequent violations of law indicate
the weakness of enforcement machinery and have not nothing to do with the legality
of the rules. Oppenheim observed that “while the frequency of the violations of
international law may strain its legal force to breaking point, the formal (though
often cynical) affirmation of its binding nature is not without significance”.
Conclusions - International law is a law in its true sense. As compared to municipal
law it is definitely weak; nevertheless it is law. An emerging system of sanctions for
the enforcement of international law, recourse to law-making treaties and certain
aspects of the activities of intenational organisations indicating the emergence of
legislative process, recognition of certain rules having the character of jus cogens,
etc. are some of the “indications of a growing maturity in the international legal
order”.
“Furthermore, international law may now properly be regarded as a complete
system. By this is meant not that there is always a clear an specific legal rule readily
applicable to every international situation, but that every international situation is
capable of being determined as a matter of law, either by the application of specific
legal rules where they already exist, or by the application of legal rules derived by
the use of known legal techniques, from other legal rules or principles” (Oppenheim).
Brierly has aptly remarked : “It is both practically inconvenient and also contrary
to best juristic thought to deny its (international law) legal character”. Sir Cecil Hurst
remarked that “the modern conception of a State is itself the creation of international
law and it is by the canons o international law that the rights and duties of a State are
defined .
Basis of International Law - Theories3c
The roots of international law go deep into history and evidence of treaties,
immunities of ambassadors, usages of war, etc. can be found in ancient Egypt, India,
the Greek and Roman empires.The present day international law owes its origin to
the great jurist Grotius whose work De jure Belli ac Paces (1625) lent legal basis to
many areas of international relations. His main idea is that there are certain eternal,
unchangeable an independent rules of law which have roots in human reason. This
law of reason is called by him as Natural Law. In the Grotian theory, there are
3c Discuss the different theories about the basis of international law.
[C.L.C.-92 J
three basis of international law : Laws of reason, Customs, and Treaties. Emanating
from his conception are two theories as to true basis of international law:-
(a) Naturalist theory (.Pufendrof) -There exists a system of law which emanates
from God or reason or morals. Law of nations is only a part of law of
nature. Hart explains that a minimum content of law flowing from the
immutable nature of man is that which is necessary for survival of
mankind. International peace and security being necessary for survival of
human kind, all laws relating to it are thus parts of law of nature. The
theory is criticised on the ground that it is too vague.
(b) Positivist theory (Bynkershook) - Only those principles may be deemed as

law which have been adopted with the consent of the States. Law is that
which exists in fact. It is that law which is enacted or followed by States
(i.e. emanate from their own free will) and is hence binding upon States.
Customs and treaties come into existence from express or tacit consent of
States. The theory is criticised as all rules of international law are not
derived from customs and treaties. Further, a treaty may be binding on
third States as well, and, States in some cases are bound by general
international law even against their will.
(c) Eclectic theory - The views taken by the naturalists and positivists are
extreme views. A theory giving equal importance to both the views
appears to be correct^
As to the true basis of international law, contemporary sociological theories
tend to support Naturalism because they argue that international law is based on
social interdependence and aims at bringing about international social justice. Thus,
natural law underlies even at the positive law (customs and treaties) which is only
an expression of this social interdependence.
INTERNATIONAL LAW IS A WEAK LAW
Starke has expressed the view that international law is a “weak law”. Existing
international legislative machinery, operating mainly through lawmaking
conventions, is not comparable in efficiency to State legislative machinery. Some
other weaknesses of international law are as follows
(i) There is no effective executive authority to enforce the rules of
international law.
(ii) The International Court of Justice lacks compulsory jurisdiction in the true
sense of the term. The court does not have jurisdiction to
decide the disputes of all the States since the court acts with the consent of
the States only. Further, the court does not have any real power to enforce
its decisions.
(iii) As compared to rules of State law, the rules of international law suffer
from greater uncertainty. Further, rules expressed in treaties, etc. are
sometimes formulated in such a way so as to give wide options to the State
parties.
(iv) Due to lack of effective sanctions, rules of international law are frequently
violated. Further, to compel the ‘strong’ States for the observance of the
rules of international law becomes difficult on a number of occasions.
(v) International law has, in many cases, failed to maintain order and peace in
the world. A great limitation of international law ts that it cannot intervene
in the matters which are within the domestic jurisdiction of States.
Thus, international law is a weak law in comparison to the municipal law.
However, it must be noted that, unlike municipal law, international law operates in a
purely decentralised system. All States consider themselves independent and
sovereign. International law must be understood and appreciated in the peculiar
system in which it operates. It is as good and effective as it can be under the
circumstances and peculiar system under which it operates. It is really creditable that
rules of international law are considered binding upon the States because either
through treaties or otherwise States have consented to surrender a part of their
sovereignties. |
Suggestions for improving international law
(i) The machinery to enforce the rules of international law should be
strengthened. The United Nations Charter should be amended so as to
authorise the U.N. to intervene in such matters within the domestic
jurisdiction of the States as are of international concern.
(ii) The International Court of Justice should be given compulsory jurisdiction
in the true sense of the term, over all international disputes. Further, an
International Criminal Court should be established to adjudicate cases
relating to international crimes.
(iii) In order to make international law changeable and adaptable in accordance
with the changing times and circumstances, powers and scope of the
activities of the International Law Commission should be expanded.
(iv) The doctrine of judicial precedents should be applied in the field of
international law. This will help to strengthen it.
In order to strengthen the rule of law in international relations, the General

Assembly of U.N. in 1989 declared the period 1990-99 as the ‘United Nations
Decade of International Law’. The assembly stated by adopting a resolution that
the main purposes of the Decade should be, inter alia (a) to promote acceptance of
and respect for the principles of international law (b) to promote means and
methods for the peaceful settlement of disputes between States, including resort to
and full respect of the international court of justice (c) to encourage the
progressive development and codification of international law (d) to encourage the
teaching, study, dissemination and wider appreciation of international law. These
activities are likely to play a positive role in removing the weaknesses of
international law.
It is felt that the weaknesses generally pointed out are not the weaknesses of
the rules of international law. In fact, they reveal and bring to the fore the lack of
feeling on the part of the States as to its imperative character. International law is
very much a law, but its observance, progress and development will depend upon
the attitude of nations. In order to strengthen international law, it should be clearly
recognized by all States that the observance of the rules of international law is in
their own interest and hence they should ensure that there are no breaches of the
rules of international law.
Sanctions in International law 3d
A‘sanction’ is a penalty imposed in order to enforce obedience to a rule of
law. Sanctions in international law include measures, procedures and expedients
for exerting pressures upon a State to comply with its international legal
obligations. A question arises as to what sanctions international law provides to
those States which violate the rules Sanctions in the modern international law are
quite different from those which existed in the classical international law. The
latter provided the sanction generally in the form of war and reprisals. However, at
present, these measures in most of the cases have become unlawful. Sanctions
applied by the aggrieved States are required to be lawful and they must conform to
the provisions of U.N. Charter. Sanctions may be applied by the States
individually or collectively by international organizations.
(a) Sanctions by States - A State may apply sanction by means of self-help. The
action taken in self-help is required to be in strict compliance with the
provisions of the Charter. Under Art. 2(4) of the Charter, the members
of U.N. have undertaken that they shall
3d . Discuss the sanctions behind International Law. [L.C.11-93/95/96, L.C.I-95]
NATURE. DEFINITION & SCOPE OF INTERNATIONAL LAW 17
respect the territorial integrity and political independence of each other

and shall not use force against each other. Use of armed forces in self-
help in response to international wrongful acts involving armed attack is
forbidden.
(b) Collective sanctions - International organisations which States themselves
have established have been empowered to take collective sanction against
an erring State. Under Chapter VII of the United Nations Charter, if there
is a threat to the international peace and security or an aggression has
taken place, the Security Council can take necessary action to maintain or
restore international peace and security. The Charter postulates economic,
financial and military sanctions.
The economic and financial sanctions include the complete or partial
severance of economic relations against a State or the application of embargo.
Military sanctions may include demonstrations, blockade, and other operations by
air, sea or land forces of the members of U.N. Political sanctions (not expressly
mentioned in the Charter) include appeal to a State to do or not to do certain acts,
suspension of an exercise of the rights and privileges of the membership of U.N.,
and expulsion from the U.N. membership.
Besides the U.N., specialised agencies of it such as ILO, WHO, IPO and ITO
have also been authorised to take action against an erring State. For instance,
constitution of the International Labour Organization lays down a procedure for
dealing with complaints regarding a failure by a member State to secure the
effective observance of an International Labour Convention binding it.
The decisions of the International Court of Justice are binding upon the
parties to the dispute. Article 94 of the U.N. also provides that if a party to the
dispute does not follow the Court’s decision, the other party may approach the
Security Council which can take necessary measures to ensure the implementation
of the decision.
(c) Public opinion - Public opinion is the ultimate sanction behind international
law and for that matter any law. Public opinion becomes adverse with the
application of U.N. sanctions against a State. It was the world public
opinion which forced the United Kingdom and France to pull out their
troops from the Suez Canal in 1956.
Effectiveness of Sanctions
Thus international law is not without sanctions although these sanctions are not
generally for the enforcement of international law. These
18
PUBLIC INTERNATION LAW
sanctions are to maintain or restore international peace and security which is only a
part ot international law. Further, even these sanctions are not quite effective.
Brierly has remarked that “sanctions which it possesses are not systematic or
centrally directed, and that accordingly they are precarious in their operation”. The
greatest shortcoming of international law is the absence of effective machinery to
carry out sanctions.
Despite this, whatever sanctions there are behind international law make
impact upon the States and in practice States generally follow
international law As remarked by Dias, “The principal reasons why States v in ema
lona aw appear to be fear and self-interest. Fear operates through war reprisals,
pacific blockade, etc.” However, Rahmatullah Khan has observed: Nations obey
international law not because of the fear of some brooding omnipresence in the sky
threatening retribution to the recalcitrant but because they feel obliged (for various
reasons) to do so. And the consent of the constituent entities is continually decisive
[I.J.I.L.Vol. 15(1975).
This is equivalent to saying that law itself has an in-built element of c an sanction
behind it and wise human beings in their own interests need not search for authority
to obey law as all laws are ordained to be
Obeyed(Manu). The position of international law is somewhat like Manu’s
concept in is respect that there is no ostensible sanction or world authority...
however, respect flowing from inherent utility is so, embedded in the very
concept of that branch oflaw that it compels obedience to the precepts and
tenets of international law [Dr. Nagendra Singh,I.J.I.L.,Vol 24(1984)].
w Nagendra Singh, I.J.I.L., Vol. 24 (1984)]j As pointed out in Ninth Edition of
Oppenheim’s International Law
emerging system of sanctions for the enforcement of international law is
discernible...., there are . *■ f ^.
’ atso certam other indications of a growing maturity
n in ernationa or er, viz. there is increasing acceptance that the rules of n emationa
aw are the foundation upon which the rights of States rest, no onger mere y
imitation upon States’ rights which are unlimited”. Whether International Law is
the vanishing point of jurisprudence ?
Holland regards international law as the vanishing point of
jurispru ence cause it cannot be kept in the category of law as there is
C1, f a"y sovereign authority nor there exists sanctions if its rules are
u
Vi!° 3 ^ <-Cre 1S n° JU<ê or arbiter to decide international disputes and he rules of
international ,aw are followed by States by courtsey
It is submitted that while his view was perhaps correct at his time but a present
t e same is subjected to severe criticism and therefore, it is not ena e in the changed
character of international law. It is wrong to say
that there are no sanctions at all in international law. It is incorrect to say that
international legal system is without a Court to decide international disputes. If a
State violates rules of international law, it can be enforced by an external power. In
numerous treaties, States have not only accepted it to be binding but also confirm
the fact that it is a law between themselves. Thus, it is incorrect to say that
international law is the vanishing point of jurisprudence.
Differences between Public and Private International Law
, It is to be noted that the expression ‘International Law’ is identical with The
so called ‘Public International Law’. It is different from ‘Private International Law’
which is a law of different States and which concerns mainly such matters between
individuals as fall at the same time under the jurisdiction of two or more different
States. Rules of private international law have evolved to avoid the conflicts which
arise due to conflicting rules of municipal or State laws of different countriesj
Public and private international law differ on many counts. Firstly, while
public law deals primarily with the States and to some extent with the individuals,
private law deals primarily with the individuals of two States (e.g. contracts of sale
or service between persons in different countriesjjjSecowaVy, while rules of private
law are part of the internal law of the State concerned, it is not so in the case of
public \awj\Thirdly, while public law is applied uniformly to all the States, private
law differs from State to State^ Fourthly, while private law is enacted mainly
through legislation enacted by the legislatures of different States, public law
evolves largely through the consent of the States by means of customs and treaties.;
^Private international law deals entirely with the relations of persons living
under different legal systems. Occasions for the application of it arise when justice
requires that law of some outside jurisdiction - not necessarily a foreign State - be
applied in a particular case. For example, to cite a famous English situation, when
couples left England to be married in Scotland where the marriage laws were less
stringent, and question arose whether the validity of marriage should be determined
by English Law or by Scottish Law. The English Courts held that the laws of
Scotland should apply. \
In some exceptional cases, rules of private international law may become
rules of public international law when they are incorporated in the international
treaties.
2
SUBJECTS OF INTERNATIONAL LAW
Any entity which possesses international personality is called an international

person or a subject of international law(A subject of rules is a being upon which the
rules confer rights and capacity and imposes duties and responsibility^ whereas an
object enjoys and is burdened by no such competence. The law commands its
subjects but it merely regulates the use and disposition of objects. An entity may be
deemed to possess international personality if it is capable of possessing
international rights and duties and having the capacity to maintain its rights by
bringing international claims.
It is significant to note that it is not necessary for an entity to possess all the
rights and duties recognized by international law. If an entity is competent to
perform only a few acts or even a single act as provided by the rules of international
law, that entity would be regarded as to have possessed capacity to become a subject
of international law. Some jurists are of the opinion that international organisations
and individuals are ‘derivative’ subjects or ‘passive’ subjects in the sense that they
draw their existence from the formal decisions of other subjects i.e. States who may
be called ‘active’ subjects because law is created exclusively by them [Verdross,
AJIL Vol. 43 (1949) p. 439].
Status of International Organizations
It is now generally agreed that international organisations are also the subjects
of international law. The International Court of Justice in its advisory opinion on the
question of ’ ‘Reparation for injuries suffered in the service of United Nations' (I.C.J.
Rep. 1950) accorded legal personality to the U.N.
The Court made the following significant observations : “In the opinion of the
Court, the organization was intended to exercise and enjoy and is in fact exercising
and enjoying functions and rights which can only be explained on the basis of the
possession of a large measure of intemational personality and the capacity to operate
upon an international plane . . .it could not carry out the intentions of its founders if
it was devoid of international personality.... Thus, organization is an international
person. That is not the same thing as saying that it is a State which it certainly is
SUBJECTS OF INTERNATIONAL LAW 21
not or that its legal personality and rights and duties are the same as those of a State.
What it does mean is that it (U.N.) is a subject of international law and capable of
possessing rights and duties and that it has the capacity to maintain its rights by
bringing international claims. It is a juristic person
sui generis.
In the above case, a French observer appointed by U.N., was murdered while
doing his duty. The U.N. requested ICJ to give an advisory opinion as to whether in
such matters the U.N. can claim compensation and damages for Organization and
the persons appointed under its service. The Court held that the Organization has the
capacity to claim appropriate reparation from the concerned State, including also
reparation for damage suffered by the victim or by persons entitled through him.
Thus a State is responsible for injuries caused in its territory to person serving the
U.N. or any other international organisation.
PLACE OF INDIVIDUALS IN INTERNATIONAL LAW1

In the classical international law, individuals were regarded as the object of
international law, and not as its subjectj(Oppenheim, Brierly, Hall, etc.).
Consequently, they had no legal significance from the international point of view, as
they were related to one State through the bond of citizenship or nationality, and
they stood in relation to other States in the role of aliens, if an injury was caused to
an individual, it was the State which alone owed*the responsibility under
international law to another State. Thus, there was no responsibility if the injured
individual was Stateless
i.e. if he had no nationality.
However, the above position of individuals has considerably changed since the
establishment of U.N. The U.N. Charter by using the words ‘People of the United
Nations’ in the Preamble has given a place of importance to individuals;. However,
this alone did not change the position of individuals in the domain of international
law. Whether individuals have any place in international law is a question which is
dependent upon another question i.e. whether they have been bestowed rights and
duties under international law, i ___________________________ _ ___________
1. “It is no longer possible, as a matter of positive law, to regard States as the only subjects of
international law and there is an increasing disposition to treat individuals, within a
limited sphere, as subjects of international law”. Discuss. [C.L.C.-91/92/93/94/96]
Discuss with the help of international instruments which conferred rights and imposed
duties upon individuals, the status of individuals under international law. [L.C.II-93/96,
L.C.I-95]
Write a short note on ‘Position of individuals in international law’.
[L.C.I-96, L.C.II-95]
22 PUBLIC INTERNATION LA\y
It is undisputed that international law primarily regulates the relationship of

States, and they are the primary subjects of international law. But States are not the
only subjects of international law. In addition to them, individuals have also been
conferred to certain rights and duties in accordance with the rules of international
law. While many rules are directly concerned with regulating the position and
activities of individuals, many rules indirectly affect them. In the view of Prof.
Schwarzenberger, it is contradiction in terms to say that individuals are not the
subjects but objects of international law because how can it be expected that
individuals who are the basis of society may only be objects of international law.
The dynamics of international law during the last few decades has led to the
realization, that individual is the pivot on which international peace, development
and co-operation tumla.
Some jurists are of the opinion that only individuals are the subjects of
international law. “The duties and rights of the States are only the duties and rights
of men who compose them” (Westlake). Kelsen was of the view that under
international law the duties of the States are ultimately the duties of the individuals.
Both international and State laws apply on the individuals and they are for the
individuals. However, the above view is incorrect, because, although, individual
possesses a number of rights under international law, his procedural capacity to
enforce the observance of these rights is grossly deficient. In most of the cases,
claim on his behalf can be brought only by the State whose national he is. Ey taking
up the case of one of its subjects, a State is in reality asserting its own rights - its
rights to ensure, in the person of its subjects respect for the rules of international law
(One may, howev er, still argue that the substantive right belongs to the individual
because the amount of claim is based on the injury suffered by the individual and
normally the award is given to him). Thus the extreme view that the individuals
alone are the subjects of international law cannot be accepted. As long as the
international community is composed of States, it is only through the exercise of
their will alone rights and duties are conferred to individualslb.
J.G. Starke has defined the term “Subject of international law” as possessing
three main attributes :
(i) Incumbent of rights and duties.
la. ‘Since the law of nations primarily deals with relations between States, the States are the only
subjects of international law’. Critically examine.
[I.A.S.-92]
lb. “The duties and rights of States are only the duties and rights of men who compose them”.
Do you agree with this view? [L.C.I-95]
SUBJECTS of international law 23
(ii) Holder of procedural capacity fo"r enforcing a claim before an
international tribunal.
(iii) Possessor of interests for which provision is made by international l a w !
Beginning with the Treaty of Versailles (1919), individual is gradually
becoming a holder of rights, an incumbent of duties and the possessor of procedural
capacity in international law.
(I) Holder of Rights10
Human Rights - A number of rights have been given to individuals in 1 International
law through the adoption of international conventions. The Preamble to the U.N.,
1946 and Art. 1 thereof both impose legal obligation on member States to promote
and protect “human rights". A major elucidation of human rights was made by the
Universal Declaration of Human Rights, 1948. It consists of a preamble and 30
Articles, covering both civil and political rights and economic, social and cultural
rights. (
Arts. 1 and 2 state that all human beings are bom free, with equal dignity and
rights. ..jLArts. 3 to 21 provide civil and political rights viz. rights to lif&'and liberty,
right to seek asylum, right to nMonality, prohibition against slavery and torture,
etcÂrts. 22 to 27 provide economic, social and cultural rights viz. right to social
security, right to work, right to education, right to Culture, et^ Arts. 28 to 30
recognize that everyone is entitled to a social and international order in which rights
and freedoms set forth can be fully realized. Many States modified their criminal
procedures and penal codes in the light of these provisions.
The provisions of the Universal Declaration are cited as justification for
actions taken by the U.N. They have also inspired international conventions both
within and outside the U.N. In a large number of instances, the Universal
Declaration has been used as a conduct and as a yardstick to measure the degree of
respect and compliance with the international standard of human rights.
Other International Instruments dealing with Human Rights include -
European Convention on Human Rights, 1950; Convention on Elimination of all
kinds of Racial Discrimination, 1965; International Covenant on Civil and Political
Rights, 1976 and International Covenant on Economic, Social and Cultural Rights,
1976; Optional Protocol, 1976 (wherein the
lc. “The question of the status of individuals in international law is closely linked with the rise
in international protection of human rights”. Discuss with relevant examples, how far
individuals have been recognised as participants and subjects of international law.
[C.L.C.-97]
contracting parties declared that they would provide different rights as stipulated in
the Covenants to the individuals); Convention on Rights of Child, 1990; etc.
European Convention on Human Rights, 1950, conferred rights upon
individuals even against the States. Under the provisions of the said convention,
European Commission and the European Courts were established. The European
Commission is entitled to investigate the violation of human rights. It may,
however, be noted that the case may go to the European Court only with the consent
of the State concerned. The International Covenant on Human Rights, 1976 and the
Optional Protocol represent the culmination of the benign trend that individual can
claim rights directly (i.e. without the medium of the State) under international law.
To the extent that sovereign States recognize their obligations under various
international treaties as their international duty to treat mankind with the same
respect with which they treated other members of the international community, to
that vital extent the recognition of inalienable human rights and the recognition of
the individual as a subject of international law will become synonymous.
The Lawless Case [56 AJIL (1960) 187]
(European Court of Human Rights)
Mr. Lawless, an Irishman, was detained in prison by the Irish Government
without any trial; no reasons were given for his detention. A writ of habeas was not
allowed to him so that he could not approach the Supreme Court of Ireland.
Thereafter, Lawless applied to the Commission of Human Rights which, in turn,
referred the entire matter to the European Court of Human Rights. The Court
admitted the petition and observed that it did have jurisdiction over such cases
where basic human rights were denied by a State to its own nationals or aliens.
However, the Court upheld the action of the Irish Government on the ground that
the Government had acted under its statutory powers as conferred by the legislature.
Lawless was detained under emergency power of the Government.
At the same time, Commission on Human Rights communicated to Mr.
Lawless the decision of the Commission and also supplied to him a copy of its
report with directions that it should be kept secret. The observations of Lawless on
the report were also sent to the Court along with Commission’s own decision. At
this the Irish Government raised objections that such matters were to be kept secret
at the government levels because the parties to the case or the matter concerned
directly the State which was an international
SUBJECTS of international law 25
entity. By giving up this rule of secrecy and enabling Lawless to know the
observations, comments and the reports, the entire procedure amounted to treating
Lawless as a subject of international law.
The Court, however, rejected these contentions on the ground that the Court
which was established under the Convention must have full knowledge of the
applicant’s point of view in the interest of proper administration of justice. An
individual is as much a subject of international law as a State is; it is more so, when
an individual suffers grievously by the acts of his government for reasons which he
does not know. He has a natural and legal right to know the reasons for his
detention or for any act of the government affecting his person, his life and
property.
Comments - Thus, in this case, the Commission allowed the observations of the
Commission to be supplied to the prisoner to seek his own point of view, which was
held to be a correct procedure. In another famous case, De Becker (1962), the
observations of the Commission infact forced the Belgian Government to change
the legislation with regard to the detention of individuals.]
Other Rights
There is nothing in international law to prevent individuals from acquiring
directly rights under a treaty provided that this is the intention of the contracting
parties. It was so held in Danzing Railways Official case [P.C.I.J. (1928) Series B.
No. 15]. In this case, Poland had acquired, under an international agreement,
Danzing Railway Co. Under the said agreement, Poland had agreed to provide
certain facilities to the railway officials. Subsequently, Poland refused to provide
those facilities. Poland argued that since the agreement was in the form of an
international treaty it created rights and duties only in respect of parties to the
treaty, and hence the individuals as such cannot possess any rights under the said
treaty.
jUnder some treaties, individuals have been conferred upon some rights
whereby they can claim compensation or damages against the States. For example,
the Treaty of Versailles, 1919. The persons who invest their money in foreign
countries have been conferred upon certain rights against the State concemedjby the
‘Convention on the Settlement of Investment Disputes between States and the
Nationals of other States’.
(II) Duties of Individuals
International law imposes following duties on individuals
, (i) Crimes against peace and humanity - Under international law pirates are
treated as enemies of mankind. Thus under international
law it is the obligation of the parties not to commit piracy. Further,

the individuals should not be involved in such acts as may prove
detrimental for the good relations among States. Thus espionage
is a crime under international lawj
! _ (ii) War criminalsld - These can be punished under international law.
The Nuremberg and Tokyo Tribunals propounded the principle
that international law may impose obligations directly upon the
individuals (Since crimes under international law are committed
by individuals, only by punishing them the provisions of
international law can be enforced. The officials of Germany and
Japan who were guilty were tried as per the provisions of
international law and their pleas that they acted under the orders
of their superiors while on duty were not accepted by the Military
Tribunals and they were punished as individuals^
In Ex parte Quirin (U.S. Supreme Court, 1942) the Chief Justice
Stone observed : “The very essence of the U.N. Charter is that individuals
have international duties which transcend the national obligations of
obedience imposed by the individual States. He who violates the law of
war cannot obtain an immunity while acting in pursuance of the authority
of the State if the State in authorising action moves outside its competence
in international law”.
(iii) Crime of genocide - The Genocide Convention of 1948 has
imposed certain duties directly upon the individuals. Persons
U- guilty of the crime of genocide may be punished, no matter
whether they are the head of the State, high officials or ordinary
individuals.
.(iv) Aircraft hijacking -Individuals may be given punishment for the hijacking of
aircraft (Tokyo CoWention, 1963, Hague Convention, 1970, Montreal
Convention, 197l)
(v) Kidnapping of diplomatic personnel, etc. -Convention on Prevention and
Punishment of Crimes against Internationally Protected Persons, 1973, and
Convention on Taking of Hostages, 1979, provides for the punishment to
the individuals for the acts mentioned in the conventions.]
(vi) Prevention of drug trafficking - Narcotic Drugs Convention, 1973 provides
for the punishment to individuals involved in drug trafficking,
ld . Write a short note on : Liability of individuals for war crimes. [I.A.S.-91]

SUBJECTS OF INTERNATIONAL LAW 27
(HI) Procedural Capacity of Individuals1®

A limited procedural capacity (i.e. power to enforce claims before an
international tribunal) has been conferred upon the individuals under international law.
Treaty of Versailles, 1919 provided that an individual could file suit against Germany
for compensation/damages) Under the European Convention for Protection of Human
Rights, 1950, the Commission has laid down that a petition can be received from any
person if his human rights are violated (See The Lawless and De Becker cases). In Upper
Silesian Mixed Tribunal case, the independent procedural status of individuals as
claimants before an international agency was recognized even against the State of which
they are national.
Art. 3 of the Optional Protocol to the International Covenant on Civil and
Political Rights, 1976 provides individuals with the right to petition the Human Rights
Committee in case of violation of any of their civil and political rights by the State. In
Blom v Sweden [Commonwealth Law Bulletin
Vol. 14 pp. 821-22 (1988)], a petition of a student alleging discrimination was held
admissible.
Other instruments which provide individuals with the right to petition in their
individual capacity are : International Convention on Elimination of all forms of
Racial Discrimination, 1966; International Convention for Settlement of Investment
Disputes, 1966; International Tribunal for the Law of Sea, 1982; etc.
It is significant that individuals have no locus standi in the proceedings before
the International Court of Justice. According to Article 34 of the Statute of ICJ, only
States can be parties. Presently, the cases of the individuals could be brought before
the court if they are sponsored by the States.
Conclusions
I Thus individuals are subjects of international law as they have rights, duties
and limited procedural capacity in the international sphere, even though their capacity
is less than that of States Art. 34 of the ICJ should be amended in order that
individuals may have access to the Court directly.
lc. To be a subject of international law, an entity should be endowed with the procedural capacity
to sue and be sued, and with the treaty-making power. On this basis, can the individual be
considered as a subject of international law ? [C.L.C.-95, L.C.I-94]
\^'nl ■ The individual can sue and be sued under international law. But, the individual does not
have a treaty-making power (an exclusive domain of States). ou gh the individuals can be
conferred rights under a treaty.]
zo PUBLIC INTERNATION LAW
If the States, by imposing limitation upon themselves, have agreed to provide a

number of rights to the individuals, there is no reason to prevent the individuals
from providing remedies in those cases where their rights are violated.
Lauterpacht opined that “individual is the ultimate unit of all laws, 3
international and municipal, in the double sense that the obligations of international
law are ultimately addressed to him; that the development, the well-being and
SOURCES OF INTERNATIONAL LAW
dignity of the individual human beings are a matter of direct concern to
international law”. Starke said that “the use of the State as a medium and screen for Oppenheim defines the term “source of law” as the name for a historical
the application of international law cannot now do justice to all far-reaching aims of fact out of which rules of conduct come into existence. The term ‘source’ refers to
the modem system”. methods or procedures by which international law is created. The source may be
The legal order will continue to be imperfect as long as it faces new formal (i.e. legal procedures and methods for the creation of general rules) or
challenges such as apartheid and modem technological advances, and the individual material (i.e. actual materials providing evidence of the existence of rules)j
as subject of international law will continue to play an important role in the Oppenheim opined that there is only one source of international law viz.
development of law. Thus, slowly and gradually individuals are occupying place of common consent Lawrence said that “If we take the source of law to mean its
importance under international law. Wright said : “Justice requires that the power of beginning as law, clothed with all the authority required to give it binding force,
the States be curbed so far practicable in consideration of these other interests. In a then in regard to international affairs. There is but one source of law, and that is the
distant future, these interests, especially the interests of the individuals for whose consent of nations”. Consent may be either express or tacit (implied) .Logically,
welfare other institutions exist..., may achieve a better balance in Universal law therefore there are two chief sources of international law - Treaties (express consent)
with the national interest of sovereign States”. and Customs (tacit consent).
Article 38 of the Statute of International Court of Justice 1
(1) The Court, whose function is to decide in accordance with international
law, such disputes as are submitted to it. shall apply -
(a) International Conventions, whether general or particular, establishing
rules expressly recognized by contesting States.
(b) International Custom as evidence of general practice accepted by law.
(c) General principles of law recognized by civilized nations.
(d) Subject to provisions of Article 59, Judicial decisions and teachings of
most highly qualified publicist of various nations, as subsidiary means
for determining the rules of law.
(2) This provision shall not prejudice the power of the court to decide a case
ex aequo et bono, if the parties agree thereto^
1. There had been a controversy among the jurists regarding the sources of international law
for a pretty long time. This was finally settled under Art. 38 of the Statute of ICJ. Clearly
state the sources formally referred to in Art. 38. [C.L.C.-95]
k&hcy&cuns f'oXh aW V a. > 1 h

(The above is the text of the highest authority. It is generally regarded as a

complete statement on the sources of international law, despite the fact that the
Article does not refer anywhere the expression ‘sources’,.A fifth source ‘Decisions
or determinations of the organs of International Institution’ does not find mention
in Art.38 but it has now become a well-recognized sourcejSome writers have
mentioned additional sources of international law viz. International comity, State
papers, State guidance for their officers, Reason equity and justice, Resolutions of
international conferences, Decisions of municipal courts on matters touching
foreign nationals or other States, etc.
Thus Art.38 is not exhaustive. If Art.38 be simply declaratory, it clearly
cannot inhibit the emergence of new source of law, brought into being by the
development of the international community and its progressive organisation.
Sources enumerated in Art.38 are hardly adequate to meet new challenges posed
by today’s world order.
(After enumerating the sources of international law in Art.38(1), Art.38(2)
qualifies Art.38(l). Thus, it makes possible a decision based upon considerations of
fair dealing and good faith (ex aequo et bono), if parties agreed thereto, which may
be independent of or even contrary to lawj
Order of use of sources
Ân authoritative order of the use of sources of international law is given in
Art.38. Thus the Court is expected to apply the above sources in order in which
they appear. Thus, international conventions (i.e. treaties) shall be give preference
by the court, and in those cases where conventions are not available, they would be
decided in accordance with international custom. General principles of law shall
find place only where conventions and customs are not available. Judicial
decisions and teachings, etc. have been regarded as subsidiary means for the
determination of rules of lawj
As pointed out by Manley O. Hudson, “Yet Art.38 did not establish a rigid
hierarchy. In applying a provision in a convention, the court may have to take into
account the customary law prevailing when the convention was entered into, or
general principles of law, as well as judicial precedents. A distinction may also
have to be drawn between the categories listed, for they are not on an equal
footing; while it is possible to apply conventional or a customary rule of law. it
seems more proper to say that general principles of law, judicial precedents, and
juristic teachings have only the nature of sources from which an applicable rule
may be deduced”.
SOURCES OF INTERNATIONAL LAW 31
[I] INTERNATIONAL CUSTOMS

International custom is the oldest and most original source of international
law. Customary rules of international law are the rules which have been developed
in a long process of historical developmentjln order to understand the meaning of
custom' it is necessary to know tfie meaning of the word ‘usage’.
Development or formation of a Custom
(a) Custom and Usage2 - Usage means those actions which are often repeated
by the States; custom on the other hand emerges, when a clear and
continuous habit of doing certain actions grows up under the aegis of the
conviction that these actions are right. Custom is such a usage as has the
force of law. Usage is an international habit which has yet not received the
force of law
Usage represents the twilight zone of custom, custom begins where usage ends.
When States in their international relations start behaving in a particular way in
certain circumstances, it is expected that in the similar circumstances they will
behave in the same way (usage). But when this usage receives the general
acceptance of recognition by the States in their relations with each other, there
develops a conception that such a habit or behaviour has become right as well as
obligation of the State and in this way usage becomes the custom. Westlake defines
custom as “that line of conduct which the society has consented to regard as
obligatory”., The obligation arises from the fear of enforcement before the courts.
A usage may or may not give rise to a custom. Together with usage there are
a number of other purely factual phenomenon - State interests, powers, factors,
generaTopinion, historital events, etc. which contribute to the creation of
international customs^ A usage crystallize into a custom through the conduct of the
States at the diplomatic level, actions or statements of various States, foreign policy
documents, speeches of delegates at international conventions and conferences,
practice of international organs like the U.N., ICJ, etc. The decisions of municipal
courts of States, military and administrative tribunals in their deliberations and
proceedings, following a specific usage in practice, convert a usage into customj
The true test whether a usage has crystallized into a custom is that it must be
approved by the common consent of civilized nations or general consensus of
opinions. As to the question of long continuance of the usage
2. “Before a usage may be considered as amounting to a customary rule of international

law, the material and psychological aspects involved in the formation of the customary
rule must be established”. Discuss. [I.A.S.-97]
or the number of States adopting it, a unanimous opinion of recent growth will
constitute a better foundation than of the long practices of particular Statesj
Opinio juris et necessitatis
(According to Art.38 of the Statute of ICJ, international custom shouftfbe the
evidence of general practice ‘accepted as lawThis feeling on the part of States that
acting as they do, they are fulfilling legal obligations is called opinio juris sine
ncessitatis. Thus when a general usage in international sphere, or State practice, is
connected with opinio juris et necessitatis, international customary law exists. “For
a State practice to constitute opinio juris not only must the acts concerned amount
to a settled practice, but they must also be such, or be carried in such a way, as to
be the evidence of a belief that this practice is rendered obligatory by the existence
of a rule of law requiring it” (ICJ in North Sea Continental Shelf Cases
. (b) Generation of customary rules by treaty3 - A provision of a treaty may also
generate a rule of customary international law, as held in the below-
discussed case :
North Sea Continental Shelf Cases
(1969) ICJ Repji .
/In this case, a dispute arose between the States of Germany, Denmark and
Netherlands regarding the delimitation of their continental shelfj^Both Denmark
and Netherlands relied on a multilateral treaty which provided for delimitation by
equidistance method, in the absence of agreement. The treaty permitted the
signatory States to reserve their position with respect to the equidistance method.
Germany had signed the treaty but had not ratified it, moreover, it had reserved its
position with respect to delimitation which might adversely affect its own
continental shelf. Both Denmark and Netherlands contended that the equidistance -
special circumstance rule is not only a conventional provision but has emerged into
a custom, and hence binding on Germany. Germany, while denying the obligatory
character of the provision, contended that the correct rule to be applied in such
cases is one according to which ejch of the States concerned should have a “just
3. How would you prove that a particular practice/usage has matured into a principle of
customary international law ? Give your answer keeping in view the various reasons laid
down by the ICJ in North Sea Continenti Sl.jlf Cases. [L.C.11-95/96]
'“A provision of treaty may sometimes generate a rule of customary international law”.
Discuss. [I.A.S.-96]
SOURCES of international law 33
and equitable share” of the available continental shelf, in proportion to the length of
its coastline or sea frontage, j
The World Court made some important observations which are as follows33 :
(1) A treaty provision can generate customary international law, but only
when the provision concerned is “of a fundamentallv norm- creating
character such as could be regarded as forming the basis of a general rule
of law”j
The ‘norm-creating process’ is a perfectly possible one and does from time to
time occur; it constitutes indeed one of the recognised methods by which new rules
of customary international law may be formed. The first three articles of the
Geneva Convention on the Continental Shelf, 1958, are of norm-creating character.
(2) With respect to the other elements usually regarded as necessary before a
conventional rule can be considered to have become a general rule of
international law, it might be that, even without the passing of any
considerable period of time, every representative participation in the
convention might suffice of itself, provided it included the States whose
interests were specially affected. j(In the present case, number of
ratifications and accessions secured were hardly sufficient).
(3) As regards the time element... although the passage of only a short time
period is not necessarily a bar to the formation of a new rule of customary'
international law on the basis of a purely conventional rule, an
indispensable requirement would be that within the period in question,
short though it might be, State practice (including that of States whose
interests are specially affected), should have been both extensive and
virtually uniform in the sense of the provision invoked; and should
moreover have occurred in such a way as to show a general recognition
that a rule of law or legal obligation is involved. Thus, opinio juris must be
present before a practice/ usage is to become a customary rule.
3a. “Generally States that do not sign and ratify an international convention are not bound by its
terms. But there is always a possibility that a provision in a treaty may constitute the basis
of a rule which if coupled with opinio juris can lead to the formation of a binding custom
governing all States, even non- members to it”. In the light of the above observations
discuss the role of law making treaties in the creation of an international custom.
[C.L.C.-97; L.C.I-94]
The court held as follows : Article 6 of the Convention which lays down
equidistance’ principle, w as not intended to be of a ‘norm-creating character'. One
of the reasons being that the principle of equidistance’ was prefaced by the words ‘in
the absence of agreement’. The principle of equidistance is not obligatory in all
cases of delimitation of continental shelf. In the present case, opinio juris was absent
or not established (there was no evidence that States so acted because they felt
legally compelled to draw' boundaries, according to equidistance principle, by
reason of a rule of customary law obligation, States might have been motivated by
other obvious factors). The court thus held that each of States should have a just and
equitable share of shelf according to the length of its coastline
Comments - In this case, the court articulated a new methodology' for determining
which provisions in treaties can form the basis of universally binding customary law.
Not only is there a definite meeting of the minds in a treaty (as we infer from an act
involving two or more States that constitutes practice for the purposes of customary
law ), but also there is the clear articulation of a rule of law that gives the treaty a
special impetus towards formulating a general rule. As the spreading netw ork of
international conventions (treaties) becomes more fine-meshed the substantive rules
of international customary law may be expected to conform more and more closely
to the treaty provisions.
Further, a customary practice, even w hen it is general and consistent, is
notcustomary law unless, opinio juris is present, i.e. unless the practice is recognized
as being required by international lawj It is this sense of legal obligation, as
distinguished from motives of fairness, convenience, or morality, that underlies
customary law [Military and Paramilitary Activities in and against Nicaragua, ICJ
Rep. (1986)].
Some international lawyers hold that opinio juris is not a condition precedent
for the existence of the custom. Akehurst points out that State practices need not be
accompanied by a genuine belief that it is already law. It is sufficient of the
existence of international custom if States assert that something is already a rule of
international law' and the other States acquiesce. Kunz points out the fallacy inherent
in the notion of opinio juris inasmuch as opinio juris requires that a State should feel
itself bound by the customary rule at the time of its formation, when it is really not
bound, as it is merely usage, till the conviction converts it into custom. Thus, a rule
becomes customary rule of international law if a State or group of States assert it and
such assertion acquires the acquiescence of other States (i.e. Lhe notion of opinio
juris merges into the principle of acquiesenco).
In sum, the general practice of States should be recognized as prima facie ev

idence that it is accepted as law. Such evidence may, of course, be controverted if
the practice shows much uncertainty and contradiction. It may also be controverted
on the test of opinio juris
Essential ingredients of a Custom4
. According to Art.38 of the Statute of ICJ, there are two requirements for the
existence of international custom, namely : firstly, there should be a sufficiently
uniform State practice; and secondly, the belief that such a practice is obligatory
(this psychological element is called the opinio juris).
Following are the main ingredients of an international custom:-
(1) Long duration_ - In Art.38, emphasis is not given on a practice being
repeated for a long duration. What is more important is the practice of
States accepting the practice concerned as law. In the field of
international law, customs have emerged in a short duration, for example,
custom relating to sovereignty over air space and the continental shelf. In
North Sea Continental Shelf cases, the World Court observed that “the
passage of only a short time period is not necessarily a bar to the
formation of a new customary international law”
Akehurst remarks that time is less important now than it used to be, because
improvements in communications enable the action and reaction of States to be
known all over the world more quickly than in the past.
(2) Uniformity and Consistency - The custom should be uniform and
consistent. Though complete uniformity is not necessary, yet there must
be substantial uniformity. In Pacquete Habana case (U.S. Supreme Court,
1900), the court examined State laws and practices, treaties, writings of
publicists evidencing usage, and decisions of court, and held that these
materials uniformly proved the existence of a valid customary rule giving
immunity to small fishing vessels, honestly pursuing their calling, from
belligerent capture in time of war. This is the ancient custom which has
been recognized by all civilised nations.
The Asylum Case

ICJ Rep. (1950)
i This case concerns the institution of diplomatic asylum in Latin America.

In 1949, Columbia gave asylum to a rebel Peruvian political
4. What are the essential elements for the existence of international custom? Is it
necessary to prove the consent on the part of every State in order that a rule of
custom be said to exist? Refer to decided cases in support of your answer.
[L.C.1-95/96, L.C.II-9&, C.L.C.-96]
leader in its embassy in Peru. The Colombian Ambassador requested the Peru
Government to allow rebel leader to leave the country on the ground that the
Colombian government qualified him as a political refugee. But the Peru
government refused. The case was referred to the International Court of Justice. In
its submission, Colombia claimed the right to qualify (i.e. characterize) the nature of
the offence by unilateral decision that it would be binding on Peru. The Colombian
government based his claim on certain international agreements, and an international
custom regarding diplomatic asylum (it referred to the large number of particular
cases in which diplomatic asylum was in fact granted and respected)^
The court observed: "The party which relies on usage of this kind must prove
that this custom is established in such a manner that it has become binding on the
other party. The Colombian government must prove that the rule invoked by it is in
accordance with constant and uniform usage practiced by the States in question, and
that this usage is the expression of a right appertaining to the State granting asylum
and a duty incumbent on the territorial State. This follows from Art.38 of the Statute
of the Court, which refers to international custom ‘as evidence of general practice
accepted as law.
The court rejected Colombian contention as the facts brought before it
disclosed uncertainty, contradiction and fluctuations with regard to the exercise of
diplomatic asylum. The Colombian government failed to prove the existence of the
alleged custom. According to the court, even if it could be supposed that such a
custom existed between certain Latin American States only, it could not be invoked
against Peru which had repudiated it by refraining from ratifying the Montevideo
Conventions of 1933 and 1939, which were the first to include a rule concerning the
qualification of the offence in matters of diplomatic asylum.
Comments - The Asylum case shows that international law recognised the "existence
of a special custom or local custom. The local or regional custom which derogates
from general customary law becomes binding only on States that support it. j
Regarding the uniformity and consistency of a customary rule, it was observed
in Military and Paramilitary Activities in and against Nicaragua (ICJ Reports, 1986):
“It is not to be expected that in the practice of States the application of the rules in
question should have been perfect, in the sense that States should have refrained,
with complete consistency, from the use of force or from intervention in each other’s
internal affairs. The court does not consider that, for a rule to be established as
customary, the
3
7
corresponding practice must be in absolutely rigorous conformity with the rule In
order to deduce the existence of customary rules the court deems it sufficient that
the conduct of States should in general, be consistent with such rules and that
instances of State conduct inconsistent with a given rule should generally have been
treated as breaches of that rule not as indication of the recognition of a new rule”.
(3) Generality of Practice- Although universality of practice is not necessary,
the practice should have been generally observed or repeated by numerous
States. In West Rand Central Gold Mining Co. Ltd.v R. (1905) 2 KB 291, it was
held that a valid international custom should be proved by satisfactory evidence
that the custom is of such nature that it has received general consent of the States
and no civilized State shall oppose it. If a State acts in a way prima facie
incompatible with a recognized rule, but defends its conduct by appealing to
exceptions or justifications contained within the rule itself, then, whether or not
the State’s conduct is in fact justifiable on that basis, the significance of that
attitude is to confirm rather than to weaken the rule (Nicaragua case, ICJ
Reports, 1986)
(4) Opinio juris et necessitatis - It is a psychological element which implies a
feeling on the part of the States that in acting as they do they are fulfilling
a legal obligation. In order to establish the existence of an international
custom what is sought for is general recognition among States of a certain
practice obligatory j(See North Sea Continental Shelf cases).
Application of International Customs - Difficulties5
It is quite difficult to establish an international custom before an international
judicial tribunal, on account of the following reasons
(i) The very existence of a custom must be proved.
(ii) It has to be established that the custom in question has had a continuous
practice among a large number of States, and that too consistently and
without any break whatsoever or without any variation in its practice.
(iii) It is very difficult to prove opinio juris, a subjective element. For deducing
this subjective element, treaties, resolutions of General
5- Since it is a matter of fact whether a particular State practice has acquired the status of
customary law', what problems are encountered in relying on this provision; s pecifically
what has to be proved ? [C.L.C.-91]
Assembly of U N., international conferences and statements of State

representatives, etc. may be seen.
(iv) The onus of proving the existence of an international custom lies on the
State which seeks to rely thereon. The ICJ or any International Tribunal
cannot suo motu (i.e. on its own motion) presume a custom as a guiding
factor.
(v) The international custom must not run counter to the rules or principles
embodied in law-making treaties, otherwise it will be superseded by the
latter.
The difficulties in establishing or proving an international custom is
highlighted bv the following cases (also see North Sea Continental Shelf cases and
Asylum case)
S.S. Lotus Case

(1927) PCIJ, Series A No. 10
In this case, there was a collision between a French and a Turkish ship,
resulting in death of eight Turkmen. When the French ship Lotus arrived in Turkish
waters, criminal proceedings were instituted in the Turkish courts against the French
officer of the watch on duty on the Lotus at the time of collision. The matter is
referred to the ICJ The French government contended that there was a customary
rule of international law granting exclusive criminal jurisdiction to the State the flag
of which a vessel is flying.
. After examination of the material before it (treaties, State laws, judicial

decisions. etc.), the court held that no such customary rule was established because
opinio juris could not be proved. The court explained that even if the facts alleged
by France were true, they would merely show that States had often, in practice,
abstained from instituting criminal proceedings, and not that they recognised
themselves as being obliged to do so. It would be possible to speak of an
international custom only if such abstention of the State were based on their being
conscious of having a duty to abstain j
The court, therefore, arrived to the conclusion that there was no rule of
international law in regard to collision cases to the effect that criminal proceedings
were exclusively within the jurisdiction of the State whose flag the ship was flying
and. therefore, each State could exercise jurisdiction in respect of the incident.
Comments - The Lotus case demonstrates that the opinio juris is essential to the
creation of a new customary rule of international law. In the Lotus case, even if
States had refrained from exercising jurisdiction over crimes
SOURCES O F INTERNATIONAL LAW 39
committed on high seas in deference to the flag States, the French Government was
unable to prove that States had acted in this manner from a sense of legal
obligation. The judgement of the case has been criticised insofar as it implies that
international law permits all it does not forbid.
The Lotus case has been overruled by the Geneva Convention on Law of Sea,
1958, Art. 11 of which states that no penal or disciplinary proceeding may be
instituted against the persons responsible for the collision -except before the
judicial/administrative authorities either of the flag State or of the State of which
they are nationals.
The Right of Passage Case
(ICJ Rep. 1960, p.6)
This case deals with the question relating to the right of Portugal to send its
nationals and military through the Indian territory. Until 1954, Portugal possessed
the right of passage through Indian territory; the right was, however, subject to
control and regulation by India. The right of passage was only in respect of private
persons, civil officials and goods in general, to the extent necessary for the exercise
of its (Portugese) sovereignty- over the Portugese enclaves. In 1953-54, because of
tension created by the overthrow of Portugese rule in the enclaves, the Indian
Government suspended the right of passage of Portugal over the affected area, in
view' of repercussions over the border areas of Indian territory'. Portugal contended,
before the ICJ, that Indian action was in furtherance of Indian efforts to annex the
Portugese territories in India and had made it impossible for Portugal to exercise her
rights of sovereignty in the affected areas. The claim of Portugal was based on the
treaty of 1979.)
[The Court found that there existed a constant and uniform practice of allow
ing passage through Indian territory (Daman and its enclaves). The treaty of 197 9
was a valid treaty and Portugal was entitled to get passage through Indian territory
in consequence of the provisions of said treaty.^ The Court ruled that if under a
treaty a State gets the right of passage through the territory of another State and if it
continues for a long time, then it gains the force of law and thereby imposes the
obligation upon the State affected to continue to give right of such passage. The
Court further noted that no right of passage in favour of Portugal involving a
correlative obligation of India has been established in respect of armed forces,
armed police and arms and ammunition..
Having found that Portugal had in 1954 a right of passage over intervening
Indian territory in respect of private persons, civil officials and goods in general, the
Court nevertheless concluded that India had lawfully.
in exercise of its power of regulation and control of the Portugese right, suspended
all passage in 1954 because of tension in the area.
Comments - The case illustrates that when in regard to any matter or practice, two
States follow it repeatedly for a long time, it becomes a binding customary rule.
The case, like the Asylum case, made it clear that local to regional custom which
derogates from general customary law becomes binding only on States that support
it.]
Importance of Custom as a source of International law 6
There has been a marked decline in the importance of customs as a source of
international law in recent times. Art.38 of the Statute of ICJ also relegates it to the
second position. The reasons for decline in the importance of customs are
(1) Changes and development in international law - Modern world is a very
complex world and the subject matter of international law has increased
tremendously, for example, intellectual property, nuclear disarmament,
greenhouse effect, ozone hole, etc. These subjects by their very nature
require precise agreements and custom by its very nature is general.
Custom-making is too traditional a method to cope with the accelerated
speed of the changes in international community.
The process of the development of a new custom is very slow. On the other
hand, rapid changes can be effected through treaties and conventions so as to adopt
international law in accordance with the changing times and circumstances.
However, in modern times also the development of a new custom is possible and at
times customs have developed with accelerated speed. Principles relating to
sovereignty over air space and continental shelf are its glaring examples. Moreover,
international organizations also contribute to the development of customary
international law by providing a clear, concentrated forum for State practice. )
(2) Custom making - an individualistic process - The development of custom
is based on the agreement between States. Consequently, customary rules
are binding only on those States who have given their consent for them. A
local or regional custom which derogates from general customary law
becomes binding only on States that support it. International legislation
by treaty, on the other hand, is a collectivist process involving a large
number of States. Moreover.
6. Why the international custom as an evidence of State practices has been relegated to
the second position instead of the first one which it enjoyed for centuries together?
[C.L.C.-93/94]
a treaty has its effect on third parties (i.e. States which have not given
their consent to a treaty), j
(3) Difficulties in application of customary rules - As Lotus case,
North Sea Continental Shelf case and Asylum case, prove that it is very difficult to
prove opinio juris (a subjective or psychological element involved in the
formation of a custom). Treaties are advantageous in this regard as precise terms
of the agreement are set out in writing.
[II] INTERNATIONAL TREATIES
In the modern period, international treaties are the most important source of
international law. Article 38 of the Statute of ICJ lists ‘international conventions
whether general or particular, establishing rules expressly recognized by the
contesting States’ as the first source of international law. The term ‘convention’
implies any treaty, convention, protocol or agreement, etc. A convention may be
‘general’, either because of the number of parties to it, or because of the character
of its contents; it may be ‘particular’ because of the limited number of
parties/subject-matterj
Thus, treaties may be classified into following two categories
(a) Law-making treaties - These treaties have a large number of parties and
create general or universal norms. The provisions of these treaties are
directly the source of international law. Thus these treaties perform the
same functions in the international field as legislation does in the State
field. Law-making treaties are the means through which international law
can be adapted to in accordance with the changing times and
circumstances and the rule of law among the States can be strengthened.
Law-making treaties may be of two kinds: (a) enunciating universal rules e.g.
United Nations Charter, and (b) laying down general rules e.g. 1958 Geneva
Convention dn the Law of the Sea. Vienna Convention on the Law of Treaties,
1969, Hague Conventions of 1899 and 1907, etc.
(b) Treaty-contracts - It is a treaty between two or only a few States dealing with
a special matter concerning these States exclusively. Treaty contracts are
not directly a source of international law, but they help the formation of
international law through the operation of the principles governing the
development of customary rules. A series or a recurrence of treaties
laying down a similar rule may produce a principle of customary
international law. Further, a treaty
originally concluded between a limited number of States may gets

generalised by subsequent independent acceptance. A treaty is therefore, of
considerable evidentiary value as to the existence of a rule which has
crystallized into law by an independent process of development.
Meaning of a ‘Treaty ’
“International treaties are agreements of a contractual character between States
or Organisations of States creating legal rights and duties" (Oppenheim). According
to Art.2 of the Vienna Convention, 1969,Â treaty is an agreement whereby two or
more States establish or seek to establish relationship between them governed by
international law”. This does not mean that other subjects of international law such
as international organisations cannot conclude treaties (Art.3).,
(Prof. Schwarzenberger gave a more exhaustive definition : “Treaties are
agreements between subjects of international law creating a binding obligation in
international law”..
Pacta Sunt Servanda (Basis of the binding force of Treaties)
According to Starke, “In nearly all the cases the object of the treaty is to
impose binding obligations on the States who are parties to it”. There is a great
controversy' amongst the jurists in regard to the binding force of a treaty - some find
it in the law of nature, others in moral principles, others again in the self-restraint
exercised by States in becoming a party to the treaty. Lauterpacht stresses that
“treaties are legally binding because there exists a customary rule of international
law that treaties are binding”. The binding effect of that rule rests in the last resort
on the fundamental assumption which is neither consensual nor necessarily legal, of
the objective binding force of international law (kunz).
This assumption is frequently expressed by the form of principle - pacta sunt
servanda, which means ‘ States are bound to fulfil in good faith the obligations
assumed by them under treaties’. The principle of sanctity of contracts is an essential
condition of life of any social community. No economic relations between States
and foreign corporations can exist without this principle. It is a positive norm of
international law. ICJ in its advisory opinion of 1951 on the Reservation to the
Genocide Convention stated that, “None of the contracting parties is entitled to
frustrate or impair by- means of unilateral decisions or particular agreements, the
object and raison de etre of the Convention. In North Atlantic Fisheries case (1910)
the PCIJ pointed out the central position of the good faith principle in the concept of
pacta sunt servanda.
SOURCES OF international law 43
The binding force of treaties is evident from the fact that treaties are pieces of
international legislation and. therefore, possess legislative authority Accordingly.
Vienna Convention on the Law of Treaties provide: "Every treaty in force is
binding upon the parties to it and must be performed by them in good faith”
(Art.26). Intemational Law Commission stressed that the principle of good faith is
iSgal principle which forms an integral part of the rule pacta sunt servanda. The
preamble to the Convention notes that the principle of pacta sunt servanda is
universally recognized Art.27 of the Convention strengthens pacta sunt servanda
rule by providing that no party to a treaty might attempt to justify its failure to
perform any of its international treaty obligations by invocation of its internal lawj
The requirement of good faith is also inherent in the United Nations Charter.
The preamble states that the United Nations is determined, inter alia, to establish
conditions under which justice and respect for the obligations arising from treaties
and other sources of international law' can be maintained,
Thus, perhaps the most fundamental principle of international law and surely
the basic principle of treaties is pacta sunt servanda. A treaty- must be performed in
good faitfy Kelsen includes this doctrine in his normative theory and for him the
principle forms a basic norm of the whole legal system which is called international
law. He said, ‘States ought to behave as they have customarily behaved’j
Exceptions to the principle - Although the principle is observed by the “States in
respect of all the treaties, there are exceptions to this rule. When a new State comes
into existence as a result of revolt, it does not consider itself to remain bound by the
treaties concluded by the predecessor State. The principle is also not applied when
the obligations arising from the treaty is related to that part of the territory w hich
has been ceded/merged with other States.
Rebus sic stantibus is an important exception to the principle of pacta sunt
servanda. According to it, there is an implied clause in every treaty that provides
that the agreement is tending only so long as the material circumstances on which it
rests remain unchangedj Finally, pacta sunt servanda is not an absolute principle for
it fails to explain the binding force of customary rules of international law.
Vienna Convention on the Law of Treaties, 1969
The Vienna Convention on the Law of Treaties, 1969, is a landmark
convention in the sphere of international law, for it codified the law of
treaties. Treaties are an important source, infact the foremost one. of international
law. The Convention consists of a Preamble and 85 Articles, and is divided into
eight parts. The Convention came into force on Jan.27, 1980 when it was ratified or
acceded to by 35 States. Since then, more and more States have ratified it. It is
important to note that the Convention applied to those treaties which are concluded
by States, after the entry into force of the present Convention with regard to such
States’. It implies that treaties made before that date are still governed by the ‘old’
law.
The Convention is significant as by re-asserting the principle of pacta sunt
servanda it strengthens the customary rule which has always been the keystone of
the treaty structure. Further, by codifying the doctrines of jus cogens and rebus sic
stantibus the Convention provides a framework for dealing with change in an
orderly fashion.
Parties competent to make a treaty

Generally, only sovereign States are competent to make a treaty. The Vienna
Convention, however, lays down that ‘eveiy State possesses capacity to conclude
treaties’. The word ‘State’ or elements of Statehood has not been defined in the
Convention. Thus, all the States including those which are-not-fully sovereign have
a capacity to conclude treaties. Thus, a colony, trust territory, a protectorate or a
vassal State may also be a party to a treaty. However, if there is a limitation in the
capacity of a State to enter into any category or all categories of treaties by reason of
its qualified status or by existing treaty obligations, that State may not enter into
treaties. Thus, a neutralized State is presumably incapable of concluding a treaty of
offensive alliance.
Apart from the States, international organizations also possess capacity to
make a treaty. However, treaties concluded by international organizations do not
come within the scope of the Vienna Convention. Such treaties are governed in
accordance with a separate Convention, adopted in 1986.
Free consent of the parties

It is one of the principles of treaties that the consent of a State to be bound by
a treaty should be ‘free’. If the consent of a State has been obtained by fraud, or by
corruption of a representative of a State, or by coercion of a State by the threat or
use of force, a treaty shall be void.
If the consent of a State bound by a treaty has been given in error or un3er a
mistake, it shall not be binding on it even if the consent was free provided the error
relates to a fact or situation which was assumed by that State to exist at the time
when the treaty was concluded by and formed an
essential basis of its consent-to be bound by the treaty (Art.48).; But this
provision will not apply if the State in question constituted by its own
conduct to the error or “if the circumstances were such as to put that State
on notice of a possible error”.
Modes of expression of State's consent

The consent of a State to be bound by a treaty' may be expressed by
following means (Art. 11)
(i) By signature - The consent of a State to be bound by a treaty may
be expressed by the signature of its representative.
(ii) By an exchange of instruments constituting a treaty.
(iii) By ratification, acceptance or approval.
(iv) By accession - it includes signature as well as ratification.
(v) By any other means if so agreed
Formation or Conclusion of Treaties1
International law does not prescribe any specific form for the
conclusion of a treaty. The parties are free to choose what form they
please, provided their intention clearly results from it. However, following
are the steps which are generally adopted in concluding a treaty
(1) Accrediting of persons by the contracting States - The first step
in the conclusion of a treaty is the appointment of the
representatives, having necessary authority, by the States. The
representatives are provided with a formal instrument called ‘full
powers’ meant for negotiating, adopting or authenticating the text
of a treaty, for expressing the consent of the State, etc.
(2) Negotiation and adoption - The accredited persons of contracting
"States enter into negotiations for the adoption of treaty. After the
matters are settled, the treaty is adopted. The adoption takes place by the
consent of all the participating States, however in case of a treaty at an
international conference, adoption of the text of treaty takes place by the
vote of two-thirds of the States present and voting.
(3) Signatures - The text of a treaty is regarded as authentic and definitive by
signatures of representatives of the States. Where a treaty is not subject to
ratification, a treaty comes into force on such signatures. But, where a
treaty is subject to ratification, the
1. Elaborate the law and procedure on the conclusion of a treaty. [C.L.C. -P5]
signatures only implies that the representatives have agreed upon a text
and willing to accept it and refer it to Governments which have a
competency either to approve it or reject it.j
(4) Ratification - It is a very important step in the formation of a treaty. When
a treaty signed by the representatives of the States is confirmed by the
States, the act of confirmation is called ratification. The State parties
become bound by the treaties after ratification^
(5) Accession or adhesion - Accession is the traditional method by '■*' which
a State may, in certain circumstances, becomes a party to
a treaty of which it is not a signatory. If the treaty contains no provision
concerning accession, a State may only accede with the consent of all the
States. When a State becomes a party through accession, ratification is
not required. Normally accession is open only in multilateral treaties. The
meaning of the term ‘adhesion’ is the same as to that of ‘accession^
(6) Entry into force - A treaty enters into force in accordance with the
provisions of a treaty (Art. 24). Some treaties enter into force
immediately after the signature. But the treaty in which ratification is
necessary enter into force only after they have been ratified by the
prescribed number of State parties. \
!_(?) Registration and publication - A treaty is required to be registered with the
Secretary General of the United Nations, after it has come into force (Art.
102 of the U.N. Charter). A non-registered treaty shall be valid, but no
party can invoke it before any organ of the United Nations. Thus if any
party of an unregistered treaty wishes to invoke before the International
Court of Justice, in order to claim its rights arising from the treaty against
other party to the treaty, it cannot do so. j
Ratification of Treaty2
\When a treaty signed by the representative of the State is confirmed or
approved by the State, the act of confirmation or approval is called ‘ratification’.
(_Vienna Convention under Art. 2(l)(b) lays down that
2. State ‘A’ was the principal negotiator of the Havana Charter, but could not become its
member because ‘A’s’ Parliament refused to ratify the treaty. State whether ratification
is a prerequisite under international law to create binding legal obligations ? What is
the significance of ratification ? Can a treaty be invoked against a State which has
signed but has not ratified it ? Discuss in the light of the North-Sea Continental Shelf
Cases (1969). [C.L.C.-92/95]
‘ratification’ is an international act whereby a State establishes on the international

plane its consent Jo be bound by a treaty. It is generally agreed that ratification
becomes effective from the day when it is made. It has no retroactive effect The
rights and obligations of the treaty become applicable to the ratifying State only as
from the date of ratification and not from the date of signature.
Ratification of a treaty by the States is done only in those cases where it is so
required by the provisions of a treaty. According to Art. 14 of the Vienna
Convention, ratification of a treaty is necessary when (a) the treaty provides such
consent to be expressed by means of ratification, (b) it is otherwise established that
the negotiating States agreed that ratification should be required, (c) the State
representative has signed the treaty subject to ratification, or (d) when the intention
of ratification is evident from the circumstances and talks during negotiations. It
may be noted that the process of ratification is confined only to the signatory States,
thus, when a State becomes a party through accession no ratification is required.
Purpose or significance of ratification
At present, generally all the treaties are required to be ratified. Purpose of
ratification of a treaty may be many. For instance, ratification gives an opportunity
to the contracting parties to re-examine and review the treaty signed by their
representatives. The implications of a treaty therefore can be studied thoroughly.
Secondly, a State ratifies a treaty on the basis of sovereignty. If so wishes, it may
withdraw itself from a treaty by non- ratifying it. Thirdly, a State may require to
amend its own laws in order to give an effect to the provisions of a treaty. The
period between signature and ratification may be utilized in doing so. Fourthly, it is
one of the principles of the democratic set up that the Government should consult
public opinion either in Parliament or elsewhere as to whether a particular treaty
should be confirmed (Starke).
Mode of ratification
Ratification of a treaty is an internal procedure, determined by the internal
laws and usage of each State. In USA, a treaty must be ratified by President with the
advice and consent of Senate. In U.K., ratification is done by the Crown on the
advice of the minister concerned. In India, President ratifies the treaty on the advice
of the Central Cabinet.
Refusal of ratification
States are not bound to ratify a treaty. International law does not impose any
duty upon the States to ratify those treaties which have
been signed by their representatives. Nor it is necessary for the States to explain
the reason for not ratifying the treaty. The above rights flow from the concept of
State sovereignty. It may be noted that Arts. 39 and 41 of the U.N. Charter, the
Security Council is empowered to exert pressure against a State for the ratification
of a treaty which is related to the maintenance of international peace and security.
No doubt, if a treaty is refused to be ratified by a State which happens to be a ‘big
power’ or a State which is friendly to them, no action is likely to be taken against
them because of the exercise of veto power. The position of other States is
definitely different.
International law does not prescribe any time within which ratification must
be given. States certainly must allow each other a reasonable time in which a treaty
has to be ratified (Oppenheim). Much will depend upon the nature of the treaty.
Certainly some treaties are still ratified after a lapse of many years. It is significant
to note that, in between the period of signature and ratification a State is under a
duty not to do any act which is likely to defeat the object and purpose of the treaty
(Art. 18). In the case of certain German Interests in Polish Upper Silesia [PCIJ
(1928) Ser. A. No. 7], it was pointed out that a signatory States’ misuse of its rights
in the interval before ratification may amount to a breach of treaty (It implies that
with the signature of a treaty, a certain limited status is conferred upon the signatory
State with respect to treaty).
Consequences of non-ratification
Ordinarily, State parties are not bound by treaties until they ratify them.
However, it is not necessary in all cases for a treaty to be binding with ratification
only. Much depends upon the intention of the State parties. If a State party has
intended that ratification was essential then the treaty becomes enforceable in law
only after ratification. But if ratification is not essential then under some special
circumstances, the provision of treaty may create binding force. In Mavrommatis
Palestine Concession case [PCIJ (1924) Ser. A. No. 2], it was observed that the
principle that a treaty becomes effective only after ratification has become very old.
So far as the application of an international treaty in the municipal field is
concerned, it is applied only after it is ratified by the State concerned.
In North Sea Continental Shelf cases (1969), a dispute arose between State of
Germany on one side and Netherlands and Denmark on the other, concerning the
delimitation of boundaries of their respective com intal shelves. A rule was sought
to be imposed upon Germany who was signatory to the treaty in question but has
not ratified it. The court observed that,
“generally States that do not sign and ratify an international convention are not
bound by its terms. But there is always a possibility that a provision in a treaty may
constitute the basis of a rule which if coupled with opinio juris can lead to the
formation of a binding ‘custom’ governing all States, even non-members to it”.
Thus, this case implies that a treaty can be invoked against a State who has signed
but has not ratified it, if the treaty declares a customary rule of international law.
Reservations to a Treaty3
When a State accepts a part of a treaty and thereby excludes the legal effect
of certain provisions of the treaty in its application, it is known that a State has
accepted a treaty with reservation. The term ‘reservation’ has been defined in Art.
2(1) of the Vienna Convention as, “a unilateral statement made by a State when
signing, ratifying, accepting, approving or acceding to a treaty, whereby, it
purports to exclude or modify the legal effect of certain provisions of the treaty in
their application to the State”.
There are few aspects of the law of treaties which have generated greater
controversy in recent decades than the question of reservation to treaties. So far as
bilateral treaties are concerned, there are no difficulties because if either party
refuses to accept the reservation, the treaty comes to an end. Multi-lateral treaties
present conflicting legal problems. A State is free by virtue of having sovereignty
to formulate such reservations as it thinks fit. But this may result in fragmenting
multilateral treaties into bilateral treaties of variable content. Reservation may be
expressly allowed by the treaty, or expressly prohibited by the treaty; it is when the
treaty is silent about reservations, that the problems arise. The modern practice of
States shows that even in such cases a State is entitled to make reservation in a
treaty and the relation of those States which do not oppose the said reservation are
governed by the treaty.
In Genocide Convention case [ICJ Rep.(1951)], a number of States sought to
attach reservations to the Genocide Convention, the Convention however contained
no provisions governing reservations. A number of contracting States objected to
certain of those reservations. The ICJ held that
(a) a State which has made and maintained a reservation which has been
objected by one or more of the parties to the Convention but not by others
can be regarded as a party to the Convention if the
3. What
do you mean by reservation to a treaty ? Elucidate the cases when a State may not
formulate reservation ?
[C.L.C.
-97]
Write a short note on : Reservation to a treaty. [1A.S.-94]
reservation is compatible with the object and purpose of the Convention,

(b) if a party to the treaty objects to a reservation which it considers to be
incompatible with the object and purpose of treaty, it can consider that the
reserving State is not a party to the treaty, and if compatible..., it could
consider that the reserving State is a party to the treaty.
Thus, it was the compatability of the reservation with the purpose of the
Convention which must furnish the criterion of the attitude of the State making the
reservation, and the State which objected thereto. The ‘compatability’ test has been
criticised on the ground that it was fundamentally subjective and uncertain in its
application and, therefore, would be unworkable in practice.
The Vienna Convention adopts the view that modem practice along with the
compatibility doctrine expressed by ICJ should be generally accepted. The
provisions contained in Arts. 19-23 may be summarised as follows
(1) States are entitled to formulate a reservation on signature or ratification of
a treaty or accession thereto unless the treaty prohibits the reservation or
provides that only specified reservations, which do not include the
reservation in question, may be made.
(2) In other cases, States are entitled to formulate a reservation unless the
reservation is incompatible with the object and purpose of the treaty.
(3) A treaty will operate between the State making the reservation and States
accepting the reservation, but not between the State making the reservation
and a State objecting thereto (except with the express consent of the
latter). The State making an objection may consider that the reserving
State is not a party to the treaty.
(4) The legal effect of a reservation established with regard to another party in
accordance with these provisions is that it (a) modifies for the reserving
party in its relations with that other party the provisions of treaty to which
the reservation relates to the extent of the reservation, and (b) modifies
those provisions to the same extent for that other party in its relations with
the reserving State.
The reservation does not modify the provisions of the treaty for other parties
to the treaty inter se. The reservation creates legal rights and obligations different
from those arising from the original treaty only between
the reserving State and the accepting State. The legal relationship between other
non-reserving States is not affected.
(5) When an objecting State has not opposed the entry into force of the treaty
between itself and the reserving State, the provisions to which the
reservation relates do not apply as between the two States to the extent of
reservations.
(6) Once a reservation has been made by a State, it does not require any
subsequent acceptance by the other contracting States unless the treaty so
provides. In latter cases, at least one State must accept the reservation.
However, when in a treaty, the number of parties is limited, and it is
intended that a treaty should be accepted in its entirety between all the
parties, acceptance of reservation by all other parties is essential.
(7) Unless the treaty otherwise provides, a reservation may be withdrawn at
any time and the consent of State which has not accepted the reservation
is not required for its withdrawal. Similarly, an objection to a reservation
may be withdrawn at any time.
(8) A reservation made by a State shall be considered to have been accepted
by another State if no objection to such reservation has been raised within
12 months from the date of notification of reservations or by the date on
which it expressed its consent to be bound by the treaty, whichever is
later.
Concluding remarks - The large number of States has made it veiy difficult to draft
the general multilateral conventions which will reconcile all interests and view
points. This fact alone argue in favour of some degree of liberality with respect to
the making of reservations. The International Law Commission had come to the
conclusion that frequently a number of States have found it possible to participate in
the treaty subject to one or more reservations. It added, “when today the number of
negotiating States may be upwards of 100 States (now 159) with very diverse
cultural, economic and political conditions, it seems necessary to assume that the
power to make reservations (without the risk of being totally excluded by the
objection of one or few States) may be a factor in promoting a more general
acceptance of multilateral treaties”. According to Soviet members of the
Commission, reservations were necessary institution because treaties should be the
expression of the will of the parties.
Regarding the ‘uncertainty’ element introduced in the treaties by the reservations,
Oppenheim has suggested : “A more rational solution would
seem to be to confer the power to decide on the admissibility of a reservation either

upon some international, judicial or administrative authority or upon the contracting
parties themselves. These could act either through an organ created by them or by
arriving at a decision themselves in the sense that a reservation should be regarded
as admissible unless rejected by a substantial majority of the contracting parties”.
Treaties and Third States4
It is a general principle of treaties that a treaty is binding only to the
contracting parties. In other words, rights and obligations arising from a treaty are
binding only to the parties to a treaty and not to a third State without its consent.
This customary law principle has been expressed in the maxim ‘Pacta tertis nec
nocent nec prosunt\ International Law Commission considered that there appears to
be almost universal agreement upon such a general rule, which is based not only on
a general concept of the law of contract but also on the sovereignty and
independence of States. This rule has been incorporated under Art. 34 of the Vienna
Convention which says that “a treaty does not create either obligations or rights for a
third State without its consent”.
In Anglo-Iranian Oil Co. Case (ICJ, Rep. 1952), Anglo-Iranian Company was
a company registered in Britain, a contract was entered into between this company
and Iran wherein Iran gave some concessions to the company in respect of extracting
oil in Iran. Later, Iran nationalised this company by passing a law to that effect.
Britain contended that said contract was sponsored by her and Iran had promised not
to end or otherwise make any change in the concessions granted. The ICJ rejected
the contention of Britain on the ground that there was no privity of contract between
Iran and Britain. The agreement of 1933 was neither a concessionary contract
between Iran and the company nor an international treaty between Iran and Britain,
since Britain was not a party to the contract.
The philosophy behind such a rule is that law is a body of rules enforced by
common consent of the community in which it operates. However, the rule is subject
to certain exceptions
(7) Obligations on a third party
When a treaty imposes some obligation on a third State party and it accepts
that obligation in writing, then such a third party becomes bound by that treaty (Art.
35, Vienna Convention). This provision makes it clear that the juridical basis of the
obligation for the third State is not the treaty itself but the collateral agreement
whereby third State has accepted the obligation.
4. Write a short note on ‘Treaties and third States’.

[C.L.C.-91/96; L.C.11-93/95/96]
In Free Zones case (PCIJ, 1932 Ser. A. No. 46), it was held that Art. 435 of
Versailles Peace Treaty was not binding upon Switzerland who was not a party to
that treaty, except to the extent to which that country accepted it In the Island of
Palmas case, Arbitrator Huber observed : “It appears further to be evident that
treaties concluded by Spain with third powers recognizing her sovereignty over the
Phillipines could not be binding upon the Netherlands”.
The rule that an obligation arises for a third State from a provision in a treaty
only with its consent would not apply to the case of an aggressor State (Art. 75,
Vienna Convention). Another exception is contained in Art.
2, para 6, of the UN Charter which states that UN Charter in so far as it is necessary
for maintenance of international peace and security. This obligation of the third
States was confirmed in Namibia case (ICJ, Rep. 1971) where ICJ held : “As to non-
member States, although not bound by Arts. 24 and 25 of the Charter, they have
been called upon in paras 2 and 5 of resolution 276 (1970) to give assistance in the
action which has been taken by the United Nations with regard to Namibia”.
Judicial decisions also recognize that there are exceptions to Art. 35 of the
Vienna Convention. In the Injuries case (ICJ Rep 1949) and in Genocide Convention
case (ICJ Rep 1951), the ICJ has recognized that treaties can impose obligations
upon States which are not party to it.
(2) Rights of third States
Art. 36 of the Vienna Convention provides that a right arises for a third State
from a treaty provision if the parties to the treaty intend the provision to accord that
right to it, and the third State assents thereto. A State exercising such a right shall
comply with the conditions for its exercise provided for in the treaty.
In Free Zones case (1932), Switzerland, a third party, enjoyed since 1815 the
benefit of a free customs zone in French territory in accordance with a stipulation
made in her favour by certain multipartite treaties to which France was a party.
Switzerland, though not a party, accepted those benefits. It was held that she could
not be deprived of that right without her consent.
Revocation/modification of obligations or rights - According to Art. 37 of Vienna
Convention, the obligation may be revoked or modified only with the consent of
parties to the treaty and the third State. As regards revocation or modification of
rights, the rule is that a right which has arisen for a third State may not be revoked
or modified by the parties if it is established that the right was intended not to be
revocable or subject to modification without the consent of third State.
The practical course for States not wishing, in any treaty concluded by them,
to confer such rights or impose such obligations is to stipulate expressly against this
result, while a non-party State, unwilling to be saddled with an external treaty
obligation, should ensure that neither by its conduct nor by its declarations has it
assented to imposition of the obligation.
(5) International customs created by a treaty
Art.38 of the Vienna Convention provides that the rules contained in treaty
may become binding upon third States as customary rules of international law. A
treaty concluded between certain States may formulate a rule which afterwards
comes to be generally accepted by third States and becomes binding upon third
States by way of custom. For example, Hague Conventions regarding the rules of
land warfare were held by International Military Tribunal at Nuremberg to
enunciate rules which had become generally binding rules of customary law.
Further, 1958 Geneva Convention on the High Seas is binding on even non-parties
to the Convention. In North Sea Continental Shelf Cases, the ICJ expressed the view
that provisions in treaties can generate customary law and may be of norm- creating
character.
Jus Cogens5
There are certain principles in international law which all the States must
observe, their non-observance may affect the very foundation of the legal system to
which they belong. They, therefore, cannot be altered by concluding treaties. These
basic or fundamental rules possess the character of jus cogens. The evolution of jus
cogens may be traced to Roman law doctrine jus publicum privatorum pactis mutari
not potest which means that a public law or right cannot be altered by the
agreements of private persons.
The concept of jus cogens in international law is a controversial one.
According to one approach (Schwarzenberger, Rousseau, etc.), jus cogens does not
exist in international law, as no existing rule of international law can be considered
to possess the character of peremptory (authoritative or final) norms. Further, there
is nothing like illegal objects in treaties. The second approach (emphasised by
modem European and Anglo-American jurists like Verdross, McNair, etc.) while
acknowledging that majority of rules of international law are jus dispositivum (i.e.
laws capable of being
5. Discuss the
law related to Jus Cogens under Vienna Convention on Law of Treaties, 1969.
[L.C.II.-
93/96]
Write a short note on Jus Cogens. fC.L.C.-91]
“One of the most controversial provisions in the Vienna Convention on the Law of
Treaties is in respect of Jus Cogens”. Discuss. [/.AS.-93/95]
modified by contrary consensual agreements), but recognizes that certain rules are
absolute and non-rejectable i.e. jus cogens. The approach thus supports lawful
object of treaties. “A treaty, or any of its provisions, is void if its performance
involves an act which is illegal under international law and if it is declared so to be
by the International Court of Justice” (Lauterpacht).
Jus cogens and Vienna Convention
Articles 53, 64 and 66 form jus cogens regime of the Vienna Convention.
Article 53 provides : “A treaty is void, if at the time of its conclusion, it conflicts
with a peremptory norm of general international law. For the purposes of the present
Convention, a peremptory norm is one accepted and recognised by the international
community of States as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international law
having the same character”.
The article does not give content to the concept of jus cogens (ostensibly
because to do so might lead to misunderstanding as to the position of norms not
included). The article, however, lends dynamism to the concept of jus cogens. What
is jus cogens today may not remain jus cogens tomorrow. It is not a static concept
and changes with change in social, political, humanitarian and strategic values.
Art. 64 is a corollary of Art. 53, and provides : “If a new peremptory norm of
general international law emerges, and existing treaty which is in conflict with that
norm becomes void and terminates”. The necessity for it as a separate article springs
from the fact that different legal consequences attend a treaty that is entered into in
violation of an existing rule of jus ccgens (which is considered as void ab initio) and
the annulment of an existing treaty by the emergence of a new rule. An example of
the latter is treaties regulating the slave trade becoming void and terminating owing
to the general recognition of the total illegality of all form of slavery in international
law.
The Convention provides for compulsory settlement of disputes relating to jus
cogens. Art.66 provides that if no solution is reached within a period of 12 months
following the date on which the objection was raised, any one of the parties to a
dispute concerning the application or interpretation of Art. 53 or 64 may, by written
application, submit it to the International Court of Justice for a decision unless the
parties by common consent agree to submit the dispute to arbitration.
The International Law Commission had observed : There is no simple
criterion by which to identify a general rule of international law as having
56 PUBLIC INTERNATION LAMM
the character of jus cogens. The emergence of rules having the character of jus
cogens is comparatively recent, while international law is in process of rapid
development. The Commisssion considered the right coarse to be to provide in
general terms that a teraty is void if it conflicts with a rule of jus cogens and to leave
the content of this rule to be worked out in State practice and in the jurisprudence of
international tribunals.
Illustrations of Jus Cogens
According to Verdross, norms having a character of jus cogens can practically
be created only by a norm of general customary law or by a general multilateral
treaty. According to him three types of jus cogens rules exist in international law.
Firstly, those exist in the common interest j of the whole international community;
secondly, those created for humanitarian purposes; and thirdly, those introduced by
the U.N. Charter against the threat or use of force in the international relations.
As noted above, the Vienna Convention is silent as to what are the rules
which are accepted and recognized by the international community. Therefore, it is
difficult to say as to what these norms are. For some States, sovereignty may be jus
cogens. For developing countries, ‘unequal treaties’ (i.e. those favouring ‘big
power’) may be jus cogens. For some States, economic exploitation by developed
States may be jus cogens.
However, the commentary of International Law Commission contains three
illustrations of jus cogens, namely : a treaty contemplating an unlawful use of force
contrary to U.N. Charter, a treaty contemplating die performance of any other act
criminal under international law; and a treaty contemplating or conniving at the acts,
such as trade in slaves, piracy or genocide, in the suppression of which every State
is called upon to co-operate.
In the Genocide Convention case, the court did not refer to jus cogens as such
but the language used by the Court is significant in the sense that it refers to the
common interest of international community, J and that it acknowledges that the
norm prohibiting genocide may be binding on States even if they are not parties to
the Genocide Convention.
In North Sea Continental Shelf case, it was held by three judges that a reservation
would be null and void if it were contrary to an essential principle of Continental
Shelf institution which must be recognised as jus cogens. In Barcelona Traction case
(ICJ, Rep. 1970), it was stated that principle of self-determination is a norm of jus
cogens. Again in the Namibia case, (ICJ, Rep. 1971), the imperative character of the
right of people to self-determination and the imperative character of human rights
was emphasised.
58 PUBLIC INTERNATION LAW SOURCES OF INTERNATIONAL LAW 57
submitted to the courts. In Nationality Decrees case (PCIJ Ser. No. 2), France Rebus Sic Stantibus6
contended that perpetual treaties were always subject to termination in virtue of the The maxim rebus sic stantibus asserts that a treaty may be terminated if there
rebus clause and claimed that the establishment of French protectorate over occurs a fundamental change in the circumstances under which it was concluded.
Morocco had for that reason the effect of extinguishing certain Anglo-French There is an implied clause in every treaty that provides that the agreement is
treaties. The British Government observed that the argument advanced by France binding only so long as the material circumstances on which it rests remain
was that of rebus sic stantibus. In the case concerning the Denunciation of the Sino- unchanged’ (clausula rebus sic stantibus). The doctrine may be regarded as to have a
Belgian Treaty of 1865, China invoked, changes of circumstances as a justification juridical base if it is examined on the analogy to the doctrine of ‘frustration of
of its denunciation of a 60 year old treaty. contract’ in municipal laws of many countries. Art. 56 of the Indian Contract Act
However, in many cases (like, Free Zones case) the court while not rejecting it gives a right to a party to terminate a contract if vital change has occurred in the
in principle, has refused to admit that it can be applied to the case before it. Prof. circumstances under which the contract was entered into.
Oppenheim explains the reason behind this : “The operation of the doctrine is The Report of the International Law Commission on which the Vienna
necessarily limited for the simple reason that it is the function of the law to enforce Convention is based, rejected the theory of an implied clause or term and preferred
contracts of treaties even when they become burdensome for the party bound by the doctrine of fundamental change upon grounds of equity and justice as the basis
them”. of the doctrine. Art. 62 of the Vienna Convention embodies the rebus doctrine
However, in Fisheries Jurisdiction cases (ICJ, Rep. 1973) the ICJ has (though the words rebus sic stantibus are not used). Art. 62(1) allows the invocation
recognised the existence of the doctrine of rebus sic stantibus (under Art. 62 of of the doctrine, but subject to the following conditions
Vienna Convention) as a customary rule of international law. The court emphasized (i) the change must be of circumstances which existed at the time the treaty
two features of rebus doctrine which are as follows : was concluded,
(i) In order that a change of circumstances may give rise to a ground for (ii) the change must be fundamental one,
invoking the termination of a treaty, it is also necessary that it should have (iii) the change must also be one not foreseen by the parties at the time of
resulted in a radical transformation of the extent of the obligations still to conclusion of the treaty,
be performed. The change must have increased the burden of the (iv) the existence of those circumstances must have constituted an essential
obligations to be executed to the extent of rendering the performance basis of the consent of the parties to be bound by the treaty, and
something essentially different from that originally undertaken. (v) the effect of the change must be radically to transform the scope of
(ii) The change does not automatically extinguish treaty obligations. It only obligations still to be performed under the treaty.
operates to confer a right to call for termination, and if call is disputed, the Art. 62(2) excludes treaties that fix boundaries from the operation of the
matter must be submitted to an international judicial/ arbitral tribunal. doctrine in order to avoid an obvious source of threat to the peace. Further, if the
Conclusions - The doctrine of rebus sic stantibus has remained controversial, on the fundamental change is the result of a breach by the party invoking it of an
one hand, it may be styled as ‘mischievous’, ‘dangerous’ and ‘notorious’ for it obligation under the treaty, then the doctrine cannot be invoked as a party cannot
permits the unilateral denunciation of treaty obligations in violation of the rule pacta take advantage of its own wrong.
sunt servanda (i.e. parties to a treaty are bound by its provisions). On the other hand, Judicial dicta6a - The principle of rebus sic stantibus has been invoked as a ground
the doctrine may be justified as being necessary on the ground that treaty obligations for the termination of treaty by many States in the statements
must give way if these conflict with the growth or development, self-preservation
and vital interests of a nation. There may be situations in which the continued
6. Write a short note on : Doctrine of Rebus sic stantibus in treaty law.

[C.L.C.-91/93; L.C.II-95-, I.A.S.-96]
6a. Write a short note on Rebus sic stantibus and judicial practice of States.
[C.L.C.-96]
60 PUBLIC INTERNATION LA% SOURCES OF INTERNATIONAL LAW 59
In the Fisheries Jurisdiction case, the ICJ had also occasion to consider the application of a treaty may be both contrary to the shared expectations of the
validity of treaties concluded under coercion. The court observed that a treaty parties and an intolerable burden on them (in view of the changes in social,
concluded under the threat or use of force is void. The allegation that a given treaty political and economic conditions of State parties).
it concluded under coercion is a very serious accusation, and it cannot be based on Kunz noted that “the pacta sunt servanda means the inviolability, not of the
the grounds of a vague general charge, unfortified by evidence in its support. Such a unchangeability of treaties. The revision of treaties is neither exception nor in
question should be decided by an international body, preferably the ICJ. contradiction with the norm of pacta sunt servanda”. Brierly said, “ the clausula is a
(vii) Jus cogens - A treaty shall be void if it conflicts with the general principles rule of construction which secures that a reasonable effect should be given rather
of international law. than an unreasonable one which would result from literal adherence to its expressed
Non-compliance with domestic law of a State7 terms only. The doctrine is clearly a reasonable doctrine which it is right that
international law should recognize”.
Art. 27 of the Vienna Convention provides that a State may not invoke the
However, it may be submitted that the doctrine should be clearly defined and
provisions of its internal law as justification for its failure to perform a treaty. The
provision thus strengthens pacta sunt servanda rule. However, the provision is should not be allowed to serve as a means to undermine international agreements by
without prejudice to Art. 46 of the Convention which establishes that a State may providing an excuse for the breaches of treaty obligations that States find it
not invoke the fact that its consent to be bound by a treaty has been expressed in inconvenient to fulfil. Thus, the modern jurists accept the existence of the doctrine
violation of a provision of its internal law regarding competence to conclude treaties in international law but they confine its scope within narrow limits by regulating the
as invalidating its consent unless that violation was manifest and concerned a rule of conditions under which it may be invoked. This is done as there is not yet a general
its internal law of fundamental importance. It is further provided that a violation is system of compulsory jurisdiction to deal with invocation of the doctrine. Invalidity
manifest if it would be objectively evident to any State conducting itself in the of Treaties
matters in accordance with normal practice and in good faith. A treaty concluded by the parties may on various grounds subsequently be
Termination of Treaties invalidated. Arts. 46-53 of the Vienna Convention provide the grounds of invalidity
which are as follows (under Arts. 52 and 53, the treaty becomes automatically void)
When a treaty comes to an end it is regarded as to that of termination of a
treaty. While it is true in the case of bilateral treaties, where the defection of one (i) Lack of proper authority of the representative (Art. 47).
party terminates the treaty, in the case of a multilateral treaty position is different as (ii) Error in the treaty (Art. 48) - discussed earlier in this chapter.
here the defection or withdrawal of one party does not involve the end of the treaty (iii) Fraud committed by another party (Art. 49).
as between other parties to it. The treaty comes to an end with regard to defected
(iv) Corruption of the representative (Art. 50).
party only. Sec. 3 of the Vienna Convention lays down the different ways by which
a treaty comes to an end (v) Coercion of a representative (Art. 51).
(vi) Coercion of a State (Art. 52) - A treaty is void if its conclusion has been
(i) By consent of the parties - A treaty may be terminated at any time by the
procured by the threat or use of force in violation of the principles of
consent of all the parties after consultation with the other contracting
international law embodied in the U.N. Charter. The above rule implies
States [Art. 54(b)],
that economic and political coercion will not invalidate a treaty (as such
(ii) By denunciation or withdrawal of a party (Art. 56). pressures are part of the normal working of the relations between States).
Further, it is difficult to distinguish between the legitimate and illegitimate
use of such form of pressure as a means of securing consent to treaties.
7. Can a State invoke non-compliance with its domestic constitutional law as a ground for
invalidating its consent to be bound by a treaty and if so when ? [I.A.S.-97]
61
(i) By concluding another treaty - relating to the same subject matter, and the
parties intend that the matter should be governed by the subsequent
treaty. Further, a treaty shall be considered as terminated if the
provisions of the later treaty are so incompatible with those of the
earlier one that the two treaties are not capable of being applied at the
same time (Art. 59).
By material breach - A material breach of a bilateral treaty by one party entitles the
other party to terminate treaty (Art. 60). The term ‘material breach’ means a
repudiation of the treaty not sanctioned by the Convention or the violation of a
provision essential to the accomplishment of the object or purpose of treaty.
However, a party may lose its right to invoke the breach if, after becoming aware of
the facts, it expressly or impliedly agrees that the treaty remains in force or continues
in operation.
(i) Impossibility of performance - Sometimes events or developments
occurring outside the treaty subsequent to its conclusion, make the
performance of treaty impossible (Art. 61). The permanent destruction or
disappearance of a party is a ground for automatic dissolution of a treaty
in case succession does not take place. Further, a treaty is terminated
where a treaty provides for a joint project on an island which subsequently
disappears. However, where the impossibility of performance is only
temporary (viz. existence of an emergency in a State might prevent it to
comply with its treaty obligations temporarily), the treaty may only be
suspended.
(ii) According to provisions of the treaty - A treaty made for a fixed period or
specific object, comes to an end after the expiration of that period or
fulfilment of the object.
(iii) Outbreak of war - Some treaties are completely terminated, others remain
unaffected whereas some others are simply suspended during the war.
(iv) Jus cogens - If a new peremptory norm emerges and the treaty is in conflict
with that norm, the treaty terminates.
(ix) Rebus sic stantibus - The occurrence of the fundamental change in the
circumstances may terminate a treaty.
Custom and Treaties : Inter-relationship8

Custom and treaties are the two methods for the creation of the legally binding rules
ever since the beginning of the international
8.
“...Cust
om and treaties are the two principal sources of international law”. Discuss. [IA.S.-
94]
community. In both, consent of the States is reflected, and therefore, they did not
impose obligations on those States who did not wish to be bound by them.
However, while in customary rules, consent of the States is implied, in the treaties,
consent is express. Further, the development of international law through the
process of customary rules is very slow, while the treaty making process is more
rapid. Moreover, customary rules are often not precise and adequate, while treaty-
rules are clear and precise. This has led to the transformation of many customary
rules into treaty rules.
Sometimes, a situation arises when same principle is found in customary law
and is also codified in a treaty. The court in Military and Paramilitary Activities in
and against Nicaragua observed : "Even if the customary norm and treaty norm
were to have exactly the same content, this would not be a reason for the court to
hold that the incorporation of the customary norm into treaty law must deprive the
customary norm of its applicability as distinct from that of treaty norm. More
generally, there are no grounds for holding that when customary international law is
comprised of rules identical to those of treaty law, the latter ‘supervenes’ the
former, so that the customary international law has no further existence of its own".
Thus, customary rules of international law cannot be regarded as to have
ceased to exist if they have been transformed into treaty rules. The court cannot be
prevented to apply customary rules in such cases. Thus, principles such as those of
the non-use of force, non-intervention, respect for the independence and territorial
integrity of States, and the freedom of navigation, continue to be binding as part of
customary international law . despite the operation of provisions of conventional
law in which they have been incorporated (Case concerning Military and
Paramilitary activities in and against Nicaragua. ICJ Rep. 1986). The existence of
identical rules in international treaty law and customary law has been clearly
recognised in the North Sea Continental Shelf Cases.
The issue of their inter se relationship has always been a debatable one. One
view is that treaty rules are indisputably superior to customary rules. Another view
is that custom is capable of annulling treaty rules just to the same extent as a treaty
cancels out a custom. While the former view is based on the ground that subject
matter of a treaty is more specific than a rule of custom (Zkharova). The latter view
, similarly, based on the ground that a customary rule may be more specific than a
treaty (.Akehurst). The latter view represents the truth because in principle, it is
possible to change the customary norm by means of a treaty and a treaty norm by
means of
community. In both, consent of the States is reflected, and therefore, they did not
impose obligations on those States who did not wish to be bound by them.
However, while in customary rules, consent of the States is implied, in the treaties,
consent is express. Further, the development of international law through the
process of customary rules is very slow, while the treaty making process is more
rapid Moreover, customary rules are often not precise and adequate, while treaty-
rules are clear and precise. This has led to the transformation of many customary
rules into treaty rules.
Sometimes, a situation arises when same principle is found in customary law
and is also codified in a treaty The court in Military and Paramilitary Activities in
and against Nicaragua observed : “Even if the customary norm and treaty norm
were to have exactly the same content, this would not be a reason for the court to
hold that the incorporation of the customary norm into treaty law must deprive the
customary norm of its applicability as distinct from that of treaty norm. More
generally, there are no grounds for holding that when customary international law is
comprised of rules identical to those of treaty law. the latter 'supervenes' the former,
so that the customary international law has no further existence of its own”.
Thus, customaiy rules of international law cannot be regarded as to have
ceased to exist if they have been transformed into treaty rules. The court cannot be
prevented to apply customary7 rules in such cases. Thus, principles such as those of
the non-use of force, non-intervention, respect for the independence and territorial
integrity of States, and the freedom of navigation, continue to be binding as part of
customary international law. despite the operation of provisions of conventional law
in w hich they have been incorporated (Case concerning Military and Paramilitary
activities in and against Nicaragua. ICJ Rep. 1986). The existence of identical rules
in international treaty law and customary law has been clearly recognised in the
North Sea Continental Shelf Cases.
The issue of their inter se relationship has always been a debatable one. One
view is that treaty rules are indisputably superior to customary rules. Another view
is that custom is capable of annulling treaty rules just to the same extent as a treaty
cancels out a custom. While the former view is based on the ground that subject
matter of a treaty is more specific than a rule of custom (Zkharova). The latter view ,
similarly, based on the ground that a customary rule may be more specific than a
treaty (Akehurst). The '* latter view represents the truth because in principle, it is
possible to change the customary norm by means of a treaty and a treaty norm by
means of
a custom. An instance where custom has repealed treaty - law of the sea has
witnessed repeal of four Geneva Conventions of 1958 by the custom that emerged in
the late 1960’s and 1970’s, which was finally codified into the U.N. Convention on
the Law' of Sea in 1982.
The correct view is that treaty and custom are different forms of one essential
element i.e. agreement of subjects of international law. Therefore, these have
identical legal force and are mutually reinforcing. These do not oppose each other
but interact and supplement each other. However, a treaty is superior to custom
when there is an apparent conflict between the two (S.S. Wimbledon case, ICJ,
1923)9.
[Ill] GENERAL PRINCIPLES OF LAW10

LÂrt. 38(l)(c) of the Statute of ICJ lists ‘General principles of law recognized
by civilized States’ as the third source of international lawj It constitutes an
important landmark in the history of international law inasmuch as the State parties
to the Statute did expressly recognize the existence of third source of international
law independent of custom or treaty.
The phrase “general principles of law recognized by civilized nations’’ means
principles so general as to apply within all systems of law that have achieved a
comparable state of development. The rationality for the inclusion of general
principles of law as one of the sources of international law lies
9. ‘A’ State, located on the coast of a strait, was used as an international waterway as per the
provisions of a Treaty. A vessel S.S. Robinhood, belonging to the State ‘B’ was stopped
by State ‘A’ on the ground that it was carrying arms/ammunition to a third country which
was at war with State ‘C’, an ally of State ‘A’. The State ‘B’ challenged this act in the
ICJ, contending that the act violates the provisions of the treaty, of which both States were
signatories, which provides for free passage of all vessels of all nations at peace with the
State ‘A’. State ‘A’ on the other hand, relied on an international custom which permitted
stopping of vessels carrying arms and ammunition which could be used against any ally of
State ‘A’. Whose claim shall succeed ? [C.L.C.-96]
[Hint : State ET will succeed, as State ‘A’ is under obligation to allow passage to S.S.
Robinhood.]
10. The incorporation of “General Principles of Law' recognised by civilized States” as one of
the material sources of international law constitutes an important landmark in the history
of international law. Discuss and explain the importance of this source with the help of
judicial decisions. [L.C.I-94/95\ L.C. 11-93] Write a short note on ‘General Principles of
Law’ as a source of international law. [C.L.C.-91/94/97-, L.C.I-96; L.C.II-95/96]
in the fact that a principle which has been found to be generally accepted j by certain
civilized legal systems may fairly presumed to be so reasonable as to be necessary to
the maintenance of justice under any system. In S. S. j Lotus case, the ICJ observed :
“The words ‘principles of international law’ i as ordinarily used can only mean
international law as it is applied between nations belonging to the community of
States”.
^By general principles of law we mean those rules/standards which we find
repeated in much the same form in the developed systems of law, either j because
they have a common origin (as in Roman law) or because they express j a necessary-
response to certain basic needs of human association. Examples are “ the rule of pacta
sunt servanda, that contracts must be kept, the principle j that no man may be a judge
in his own cause, the right of self-defence, etc.”. ij (Fawcett). In the view of Judge
Chagla, principles of international law can be taken from the municipal law if they
have received universal acceptance and are not inconsistent with any rule of
international law.
It is significant to note that the principles of law recognised by many
StateSTdo not become principles of international law automatically. They are
required to be recognized by the World Court. Before any such principle is applied
by the court, certain considerations are taken into account. Firstly, a rule is a
general principle of law, i.e. it is not limited in scope. Secondly, the role is
recognized by most of the States of the world community. The word ‘recognized?
presupposes the existence of the rule in the municipal law. It may be noted that
general principles of law include substantive as well as procedural principles^)
Examples/Cases
Some general principles of law common to municipal legal systems are
described below
^(7) Res judicata (a thing or matter settled by judgement)
A matter once judicially, decided is finally decided, and there is an absolute
bar to a subsequent action involving the same claims, demand or cause of action.^ This
principle was taken into account in the below- _ discussed case :
U.N. Administrative Tribunal Case
(ILR, 1954, p.3I0)
ijn this case, certain members of the Secretariat of United Nations were
discharged of tLeir services by the Secretary General of the U.N.. They filed
complaints in the U.N. Administrative Tribunal allegi. 0 that their discharge was
illegal, In some cases, the complaints were found to be justified and the Tribunal
made awards in favour of officials concerned^
The question arose before the General Assembly whether it was bound to comply
with the awards. The General Assembly sought advisory opinion of the ICJ on the
issue whether the General Assembly has the right to refuse to give effect to an
award of compensation made by the Tribunal in favour of a staff member of U.N.
whose contract of service has been terminated without his assent.
The court observed : ‘The Tribunal was established as an independent and a
truly judicial body. The contracts of service were concluded between the staff
members concerned and the U.N. represented by the Secretary General. The
judgement of the tribunal, which was final and without appeal and not subject to
any kind of review, had a binding force upon the U.N. as the juridical person
responsible for the proper observance of the contract of service. Since the
Organisation became legally bound to carry out the judgement and to pay the
compensation awarded to the staff members, it followed that the General Assembly
as an organ of the U.N. must likewise be bound”.
The court further observed : “The General Assembly could always amend
the statute of the tribunal and provide for the review of its awards, but in the
opinion of the court, the Assembly itself, in view of its composition and functions,
could hardly act as a judicial organ, all the more so as one party to the dispute was
the Organisation itself’.
The court finally decided that General Assembly could not refuse to comply
with the judgement of the Tribunal.]

In Chorzow Factory case (German interests in Polish Upper Silesia case) (Pub.
PCIJ, 1928, Ser.A., No.17), it was held that the attitude adopted by the Polish
government in taking possession of the nitrate factory at Chorzow was
incompatible with the provisions of Geneva Convention 1922 between Germany
and Poland concerning upper silesia. The court upheld the plea of res judicata put
forth on behalf of the German government, decided in its favour granting the
indemnity asked for. The court noted that 'a party cannot take advantage of its own
wrong’, a principle generally- accepted in the jurisprudence of international
arbitration as well as by municipal courts.
(2) Prescription (a claim to a right founded upon enjoyment)
In Eastern Greenland case (1933, PCIJ), both Norway and Denmark claim
their title over a part of the Greenland on the basis of displayed sovereignty.
Denmark contended that it exercised sovereignty over Greenland peacefully and
continuously for a long period. Norway maintained that at the time of its
occupation it was a no man’s land area
and lay outside the limits of Danish colonies in Greenland. It was held that a claim to
sovereignty based not upon some act or title such as a treaty of cession but merely
upon continued display of authority involves two elements - the intention or will to act
as sovereign and some actual exercise or display of such authority. The court held that
Eastern Greenland was under the sovereignty of Denmark.
Similarly, in the Island of Palmas case_( 1928), both America and Netherlands
claimed sovereignty over the Island of Palmas. The arbitrator, Huber, decided in
favour of the Netherlands on the basis of unchallenged acts of peaceful display of
sovereignty by Netherlands spread over the period, 1700 to 1906.
(3) Subrogation (substitution or stepping into shoes of another)
In Mavrommatis Palestine Concessions case (PCIJ, 1925, Ser.A., No.5). M, a
Greek subject received certain concessions from the Ottoman authorities in regard to
certain public work in Palestine, and thereby the British government as a Mandatory
Power for Palestine had refused to recognize his rights to their full extent. The Greek
government sought judgement to the effect that the British government, in its
capacity as a Mandatory Power was bound to maintain concessions, or to redeem
them by paying reasonable compensation. The court held that the concessions
concerning Jerusalem were valid (by application of the principle of subrogation), but
since M had suffered no loss, the claim for indemnity should be dismissed.
(4) Estoppel (preclusion)
A State party to international obligation is bound by its previous acts or
attitude when they are in contradiction with its claims in the litigation. In Temple of
Preah Vihear (ICJ. Rep. 1962, p.6), the court observed that a 3tate must not be
permitted to benefit by its own inconsistency to the prejudice of another State. The
party which by its recognition, its representation, its declaration, its conduct or its
silence has maintained an attitude manifestly contrary to the right it is claiming
before an international tribunal is precluded from claiming that right.
In the Serbian and Brazilian Loan case, a number of Serbian loans for
considerable amount of Gold francs were offered. These loans were serviced for
French holders in French francs at the current market value. Later, the holders of loan
coupons insisted the payment on gold basis. At the diplomatic negotiations while the
French government supported the cause of the bond-holders, the Serbian government
considered that the pryment was due only in French paper currency'. The Court held
(by the
application of 'estoppel' doctrine) that the bond-holders were entitled to payment in

Gold francs (each bond being interpreted as the number of francs, equivalent to a
particular weight of gold).
(5) Equity (reasonableness, fairness)
The term equity’, as a source of international law’, is used in the sense of
considerations of fairness, reasonableness, and policy often necessary for the
sensible application of the more settled rules of law. A principal objective of
international society is to build a more equitable and just society. Law-making
should reflect this principal objective of international society and should therefore
be guided by the principles of equity and justice. Strictly speaking, equity cannot be
a source of law, and yet it may be an important factor in the process of decision.
The principle of the ‘exception’ whereby existing rules are qualified to meet special
cases, is a form of equity which takes on the form of judicial legislation Equity is of
great importance in those fields where rules are not readily available. Many rules of
equity have transformed into customary rules with the passage of time.
Equity, in the present context, is encompassed by Art. 38(1 )(c) and not by
Art. 38(2). The power of decision ex aequo et bono [under Art. 38(2)] involves
compromise, conciliation, etc., whereas equity is applied as a part of the normal
judicial function.
The ICJ has been increasingly referring to equity in its judgements in recent
years. In the Gulf of Maine Boundary case, it stated that the concepts of
acquiescence and estoppel in international law “followed from the fundamental
principles of good faith and equity”. In North Sea Continental Shelf cases, the court
applied equity as an interpretative instrument by taking into account the particular
circumstances of the situation and thereby avoided inequities resulting from general
rules. In the Diversion of Water from the Meuse case (1937), Judge Hudson said that
"under Art.38, the court has some freedom to consider principles of equity as part
of the international law which it must apply”.
(6) Other principles
The principle that every violation of an engagement involves an obligation to
make reparation (i.e. repair a wrong), is recognized in Chorzow Factory case.
Principles of good faith and abuse of rights recognized in Conditions of Admission to
Membership in the U.N. (ICJ, Rep. 1951). Territoriality of criminal law recognized
in Lotus case. Elementary considerations of humanity are applied in Corfu Channel
case (ICJ, Rep. 1949).
Status of General Principles of Law IOa

The question arises whether general principles of law are a distinct source of
international law. Soviet and other writers maintain that Art. 38(l)(c) does not
envisage a separate source of international law, nor any separate means of creation
of international norms. The argument that ‘General principles of law’ are not a
distinct source of international law is based on the following grounds
(i) If a given principle is affirmed constantly in international judicial
decisions and accepted in the practice of States, it acquires the status of
custom. It matters little if the principle has been originally borrowed from
municipal law. Such a principle becomes part of international law by the
normal operation of the sources of that system.
(ii) ‘General principles of law’ means general principles of international law
and not the principles common to the municipal legal systems. There are
no such general principle except those established by- international
agreement as part of international law.
(iii) Positivists claim that customs and treaties were the only sources of
international law, as according to them international law is a body of rules
on which the States have given their consent.
The Soviet view is very narrow, as it was based on the prejudice to the
Western countries’ ideologies. Inspite of the ideological differences between
capitalist and socialist systems, it is possible to find similar principles, such as res
judicata. The correct view is that the ‘general principles of law’ are a primary
source of international law because they are valid through all kinds of human
societies (Judge Tanka, dissenting opinion, South West Africa case ICJ, Rep. 1966,
p. 296). These principles are established by a process of reasoning based on the
common identity of all legal systems.
The use of analogies drawn from municipal legal systems to develop or
supplement international law is as old as international law itself. Owing to the ‘gaps
in international law’ it was felt that the competence of the
10*. The expression “general principles of law recognized by civilized States” i n Art. 38(1
Xc) is very vague. Positivists do not consider it as an independent source, but merely as
evidence of customary law rules, which adds a flexible element to the corpus of law.
However, majority of international lawyers seem to agree that these words are to be
understood to mean general principles of justice as distinguished from any particular
system of jurisprudence. What is your opinion ? [C.L.C.-92/95]
court could not be confined to making judgments according to positive international

law (customs and treaties). ‘General principles of law’ has jjgen included as a
source in order to provide an additional basis for a decision in case the other
material should prove unhelpful. The development 0f general principles of law as an
important source of law has given a death-knell to the positivism.
Judge Lauterpacht has rightly remarked that the main function of the ‘general
principles of law’ has been that of a safety-valve to be kept in reserve rather than a
source of frequent application. Art. 38(l)(c) describes the inexhaustible reservoir of
legal principles from which the tribunals can enrich and develop international law.
Brierly remarked that by recognising general principles of law, dynamism of
international law and the creative function of the International Court have been
ensured. Oppenheim said : “It enables rule of law to exist which can fill the
gaps/weaknesses in the law which might otherwise be left by the operation of
custom and treaty, and provides a background of legal principles in the light of
which custom and treaties have to be applied and as such it may operate to modify
their application”.
[IV] JUDICIAL DECISIONS AND JURISTIC WORKS 11
Art. 38(l)(d) of the Statute of ICJ states that the Court shall apply “subject to
the provisions of Art. 59, judicial decisions and teachings of the most highly
qualified publicists of various nations, as subsidiary means for the determination of
rules of law”. Thus, judicial decisions and juristic works are subsidiary and indirect
sources of international law.
(a) Judicial Decisions
Ci)
The decisions of International Court of Justice does not create a binding
general rule of international law, as Art. 59 of the Statute of ICJ makes it clear that
the decisions of the court will have “no binding force except between the parties
and in respect of that particular case”j Although ICJ has not adopted the common
law doctrine of precedent (i.e. stare decisis), it has largely adopted its substance.
The court follows its own decisions for the same reasons for which all courts do so,
namely, because such decisions are a repository of legal experience to which it is
convenient
11. “Decisions of courts and tribunals are a subsidiary and indirect source of international
law”. Discuss this statement and explain how far decisions of judicial institutions lead to
the formulation of the rules of international law. [I.A.S.-93]
Write a short note on : Judicial decisions and juristic writings as sources of international
law. [L.C.I-94]
to adhere. Thus, in practice the ICJ does not dev iate from its earlier decisions
(which are used to distinguish or illustrate the application of particular rules) and it
changes them only in very special circumstances , So far as the advisory opinion of
the ICJ is concerned, it is not binding at all But it clarifies the rule of international h
n a particular point or mattery
The decisions of ICJ have eno nsly influenced States and codifying agencTes.
Straight baseline system evolved in Anglo-Norwegian Fisheries case was accepted by
International Law Commission and incorporated in the U.N. Convention on the Law
of Sea. 1982. Likewise, the rule of equitable principles enunciated in North Sea
Continental Shelf cases was adopted and developed in many cases and also
incorporated in the 1982 U.N. Conventior Law of Sea. i
In pr e, the decisions of ICJ have assumed such an importance that these

constitute a source of international law and are not merely subsidiary means for
determining the rules of law. The main function of sources is to facilitate the task of
identifying the norms of international legal orderjln a decentralized legal order, such
as international, no other organization is probably more competent to express the
"judicial conscience” of the international community as the ICJ. Similarly, the
decisions of the regional courts like European Court of Human Rights, and the
awards of the international tribunals have contributed a lot to the development of
international law.
State judicial decisions - It is true that decisions of municipal courts of a State have
little value in international law. but the uniform decisions of the courts of many
States have a tendency to create evidence of international custom especially in those
fields of international law w hich are interwoven between international law and
municipal law such as nationality, extradition and diplomatic immunities.
State judicial decisions are treated as weighty precedents. In the words of
Chief Justice Marshall of the Supreme Court of America, “The decisions of the
court of every country show how the law of the nations in the given case as
understood in that country will be considered in adopting the rule which is to prevail
in that case". In the Barcelona Traction case, the court very rightly stated that
“...whenever legal issues arise concerning the rights of States... as to which rights
international law has not established its own rules, it has to refer to the relevant rules
of municipal law”.
(b) Writings of Jurists
^This source may be resorted to as final resort i.e. only when all the other
sources listed in Art. 38 have failed to resolve the dispute before the
Court. Lauterpacht points out that ICJ is reluctant to refer to writers because the
divergence of views among writers on many subjects as well as apparent national
bias, or politically inspired nature of the writings may render Stations from them
unhelpful. Although the court itself has been reluctant to identify writers in its
judgements and advisory opinions, it is evident from the pleadings and from the
references in the separate and dissenting opinions of the judges that the opinions of
authorities on international law have been brought to the court’s attention and have
often been taken into account by some of the judges.
Sometimes juristic opinion does lead to the formation of international law.
juristic opinions, very often, throws light on the rules of international law and their
writings make it easier to frame a particular rule. ‘Calvo clause’ and Drago doctrine’
are the instances of such rules in international Taw. \In Paquete Habana case, Justice
Gray observed : “Where there is no treaty and no controlling executive or legislative
act or judicial decision, resort must be had to the customs and usages, and, as
evidence of these, to the works and commentators, who by years of labour, research
and experience have made themselves peculiarly well acquainted with the subjects
which they treat. Such works are resorted to by judicial tribunals not for the
speculations of their authors concerning what the law ought to be but for trustworthy
evidence of what the law really is”.
[V] RESOLUTIONS OF THE GENERAL ASSEMBLY12
(Modern Sourq&^ of International Law)
The evolution of international organisation represents a significant stage in
the history and development of modern international law. International organisation
in its wider sense, is the process of organising complexity of international relations.
In fact after the establishment of U N., most of the development of international law
and its codification has taken place through the instrumentality of international
organisations. General Assembly, one of the principal organs of U.N., has
established International Law Commission. The decisions and determinations of
organs are now recognized as an important source of international law (although
they do not find mention in Art. 38 of the Statute of ICJ). The reason for this was
quite obvious that by this time international organisations had not assumed such an
important role as they have done now. |
12. Write a short note on : Place of resolutions of General Assembly amongst the sources of
international law. [ C.L.C.-92]
Write a short note on : Legal significance of the Resolutions of the General Assembly.
[I.A.S.-97]
^Resolutions of the General Assembly of the United Nations do not possess

legal character, and as such are not binding on the States. They do not create any
legal obligations on its members irrespective of the fact that they have been adopted
unanimously or by overwhelming votes or even if the contents of it is a matter of
common interest for all the States. However,] if a resolution is adopted unanimously
or by two-third majority of the members, and if the same resolution finds reflections
in many other subsequent resolutions, it must not be lightly weighed. “Resolutions
with similar contents repeated through time, voted for overwhelming majority
giving rise to a general opinio juris, have created the norm in question (Rosalyn
Higgins).
y_A persual of the cases like - South West Africa Voting Procedure case (ICJ
Rep 1955V: Amlo-Nonvevian Fisheries case (ICJ, Rep 1951), ICJ’s Advisory opinion
on Namibia and the Western Sahara case - indicates f that legal effect may be given
to collective pronouncements of the General Assembly despite their non-binding
character,) but for it is necessary to consider not only the number of States which
supported the resolution but also the extent of their interest and involvement, their
precise interest in adopting the resolution, and the position taken by them in other
situations.
As to the determination of status of General Assembly resolutions, D.H.N.
Johnson has commented that those resolutions of General Assembly which are
concerned with internal work of U.N. organisation are binding. General Assembly
may create binding obligations on those j States which voted in favour. But as to
member States who voted against them, a legal effect is only in the sense that they
constitute subsidiary I means for the determination of rules of law capable of being
used by the I international court.
At present there is a difference of opinion between the Western States j and
Third World countries regarding the competence of the resolutions of j General
Assembly in creating customary rules of international law. The , former are of the
opinion that resolutions may at most be taken into I consideration as elements in the
formation of a customary rule on condition that they are confirmed by the
corresponding practice on the part of States. The latter are of the view that these
resolutions constitute the expression of the will of international community, and
therefore they themselves have a capacity to form custom and the declaration of
general principle of law.
It is submitted that resolutions of General Assembly have a tendency to acquire the
character of customary rules in the sense that they fulfil the essential elements of
custom i.e. generality and continuity.
Through its egalitarian character (‘welfare of all’), its majority basis and its
democratic origin it is submitted that the resolutions adopted therein present
sufficient guarantee as a method for the elaboration of international law responding
to the present day need. They provide basis for the progressive development of law.
Instances of some of the principles that have acquired the status of customary rules
of international law through the adoption of the resolutions by the General
Assembly are - prohibiting the use or threat of force in international relations, non-
intervention, right of self-defence, and, self-determination.
Those resolutions which are of law-making character, serve as an important
link in the development of new principles of international law. Examples of such
resolutions are - Universal Declaration of Human Rights, 1948; Declaration on the
Prohibition on the use of Nuclear Weapons for War purposes, 1961; Declaration on
the Granting of Independence to Colonial Countries and Peoples, 1960; Declaration
on Permanent Sovereignty over Natural Resources, 1962; Declaration of Legal
Principles governing activities of States in Exploration and Use of Outer Space,
1963; Friendly Relations’ Declaration, 1970; Resolution defining Aggression in
1974; Rio Declaration (Earth Summit), 1992; etc.
Concluding remarks -The resolutions of General Assembly have become a stepping
stone, a stage in the political and legal process, an evidence of the view of the
States, a factor in the development of international law. They are helpful in the
agreement between States and contribute in preparing the necessary environment
for the development of the rules of international law. In South-West Africa case
(1966) Judge Jessup remarked that numerous resolutions of General Assembly
condemning apartheid was declared an international crime by International
Convention on Apartheid, 1973, the World Court declared it as violative of
international law and obviously this decision was based on resolutions of General
Assembly.
The resolutions and declarations of General Assembly have capacity to
become the sources of universal international law. In Reservation to Convention on
Genocide (ICJ, Rep. 1961), Judge Alvarez aptly remarked, “. ... they have not yet
acquired a binding character, but they may acquire if they receive the support of
public opinion....”.
4
RELATIONSHIP BETWEEN INTERNATIONAL LAW AND

MUNICIPAL LAW
^While international law is applied in the relations of the States and to other
subjects of international law, national or State law (the name ‘municipal law’ has
been employed for want of a better term) is applied within a State to the individuals
and corporate entities. Apparently, there is hardly any relationship between the two
systems as each is designed to operate in its own sphere and they are applied
distinctly to their subjects by different courts But it is not so. The problem of
relationship betw een the rules of international law and municipal law is one of the
most controversial questions of legal theory . When there exists a conflict between
the two systems, a court is faced with the difficulty of arriving at a decision.j t
Further. international law cannot work without the cooperation and support of
national legal systems, viz. diplomatic immunities granted by international law
would become meaningless unless they are recognized by municipal law. Moreover,
a very large part of modern international law is directly concerned with the activities
of individuals who come under the jurisdiction of municipal courts. ,
Theories of the Relationship1
The views of the jurists on the question of relationship of international law and
municipal law are divergent which have led to the emergence of different theories.
Of all these theories the most popular are ‘Monism’ and ‘Dualism’ and they are
diametrically opposed to each other.
, (1) Monistic theory
L:
According to monistic theory, municipal law as well as international law are
parts of one universal legal sy stem serving the needs of the human community in
one w ay or the other. Law is a unified branch of knowledge, no matter whether it
applies to persons or other entities. International obligation and municipal rules are
facets of the same phenomenon^ the tw o deriving ultimately from one basic norm
and belonging to the unitary order comprised bv the conception of law [Kelsen.
Wright, Westlake, etc.],
1. State the various theories regarding the relationship between international law and
municipal law.
[C.L.C.-92/97-, L.C.1-94/95/96, L.C.II-94/95/96, l.A.S-95]
RELATIONSHIP - INTERNATIONAL LAW & MUNICIPAL LAW 75
j^ Thus. international law and municipal law are concomitant aspects of one
leg3* system. The reasons given by monists are
(i) All laws are made for men and men only in the ultimate analysis. Both
systems regulate the conduct of individuals, while municipal law does so
immediately, international law . as a matter of technique does so
mediately (i.e. through States).
(ii) In both, the substance of law is the same i.e., command binding upon the
subjects of law independently of their will.
(iii) Both systems have their origin from a single basic norm (grund norm)
which is the fountaiiFTiead of all lawsj
Monism is a very' sound theory . It exercised a great influence upon
international law. because it had close association with natural law. It is very
difficult to disprove the view that man lies at the root of all lawsj,But in actual
practice States do not follow this theory. They contend that municipal law and
international law are tw o separate sy stems of law. Further, each State is sovereign
and as such is not bound by international law. States follow international law
simply because they give their consent to be bound and on account of other
reasons^
(2) Dualistic theory
(Âccording to dualistic theory, international law and municipal laws of the
several States are two distinct, separate and self-contained legal systems. The chief
exponents of this theory' are Triepel and AnzillOti. Starke is also of the view tjiat
international law have an intrinsically different character from that of State law.
The reasons given by dualists are :-
(i) The subjects of municipal law are individuals (subjects of sovereign),
while the subjects of international law are States (sovereign themselves).
Moreover, the subject matter of municipal law is limited, while that of
international law has alw ays remained dynamic.
(ii) The origin of the two is also different in as much as source of municipal
law is the will of the State, whereas source of international law is the
common will of the States.
(iii) The substance of law is also different in as much as municipal law is the
command of a sovereign (laws enacted by appropriate legislative
authorities are to be obey ed), whereas international law is more in the
nature of promises (the fundamental principle of international law is pacta
sunt ser\>anda. namely, agreement between States are to be respected).
Thus, while in municipal law
76 PUBLIC INTERNATION LAfy
there is legal sanctity, international law is followed because States are

morally bound to observe themj
^Dualist theory is subjected to many criticisms. Firstly, it is incorrect to say
that international law regulates the relations of States only. In the modem period,
individuals and other non-State entities are also the subjects of international law.
Secondly, it is incorrect to say that origin or source of international law is common
will of the States. There are certain fundamental principles of international law
which are binding upon the States, even against their will. Thirdly, no doubt, pacta
sunt servanda is an important principle of international law, but it cannot be said
that it is the only principle on which international law rests. There are certain
customary rules which are legally binding on a State, and in regard to which the
States have not given their consent.j
(3) Theories having monistic/dualistic perspective
Specific adoption or Transformation theory - Dualists contend that rules of
international law are not automatically applicable in the municipal sphere, and they
become binding on municipal courts, only if such rules are transformed into
municipal or State legislation. Thus, international law cannot be directly enforced
in the field of State law; it can be applied so only when municipal law either
permits it or adopts it specifically. This view is generally followed by States in
respect of international treaties (which require some sort of transformation before
becoming part of the State law).
The theory is criticised, as there are many principles of international law
(viz. customary rules) which are applied in the field of municipal law without
specific adoption. Further, several law-making treaties become applicable to the
States even without undergoing the process of transformation. The theory fails to
draw a vital difference between ‘adoption’ and ‘implementation’. As regards
treaties which require legislative action for their implementation, it cannot be
termed as transformation, there is direct application of the treaty by the competent
organ (Kelsen).
Delegation theory - Monists contend that there is delegated to each State
constitutional rules of international law which permit each State to determine as to
how international treaties will become applicable in the field of State law. Thus, in
fact, there is no transformation nor is there specific adoption in every case. There is
not even fresh creation of the rules of municipal law.
The theory is criticised, as one may ask where are and what are the
constitutional rules of international law? When and how these rules have]
delegated power to State constitutions? Further, each State is equal and sovereign
and does not recognize any authority over and above it.
Note : The specific adoption /transformation theory or delegation theory are the
“theories concerning the application of the international law within the municipal
sphere”. They are, in no way be called the theories of relationship of the two systems
(Starke).
Primacy of Municipal law or International law ?
Monists attaches primacy to international law and treats it as superior
legal”system. Dualists attaches primacy to municipal law and considers it as superior
legal system. The basis of their view is that State is independent and sovereign.
Further, municipal law strengthens international law and makes it operative by
incorporating it intoîational law by legislationj
^However, the view that State law will prevail in case of conflict between State
law and international law is not correct. If this view is accepted, there will be
anarchy and disorder in the international field. If it is accepted that international law
derives validity from the State Constitution, it will mean that with the disappearance
of the State Constitution, the validity of the rules of international law will also
disappear. This is a very absurd suggestion and cannot be accepted, j
, In fact, on the other hand, most of the States have accepted the supremacy of
international law in their Constitutions. It is the duty of each State to adopt its law
and Constitution in accordance with the rules and principles of international law.
International law exerts a definite check upon municipal law and holds the States
responsible or liable for their failure to perf international obligations^
, The pra of States indicate that sometimes there is the primacy of international
law, sometimes there is the primacy of municipal law and sometimes there is
mixture (or coordination) of different legal systems. In view of the prevailing
controversy, each situation must be analysed by itself to decide as to whether there
will be primacy of international law or that of the municipal law. In practice,
national courts endeavour to interpret Statutes in such a way as not to conflict with
the provisions of international law (Edward Collins).]
LHarmonisation theory
According to this theory, neither municipal law nor international law has
supremacy to each other; international law as well as municipal law have been made
for human beings, and so, primarily there should not be any contradiction in them,
and if contradictory rules appear, they should be harmonised (O' Connell).
Harmonisation of rules is possible mainly in two
ways. Firstly, it is the duty of the judges to eliminate contradiction by their juristic
reasoning. Secondly, enactments in the municipal legal system of a State should not
be made in such a way so that it is contradictory to the existing rules of
international law, and if contradiction exists, amendment should be made so as to
avoid contradiction, j
^Hence, judges of all the courts - municipal as well as international court,
should aim at harmonising the systems rather than to treat one sy stem superior
than to other. The two systems “are not like a gear, but like two wheels revolving
upon the same axis”. Starke is also of the view that “the approach should be to
harmonise wherever possible the two competing legal prescriptions so as to avoid a
conflict of obligation j(i.e. national law says one thing and international law
another)”.
t It may be said that while dualistic and monistic theories are traditional and
most popular, the harmonisation theory is comparatively modem. Each theory has
its own adherents and critics. Although no theory can be said to be appropriate,
harmonisation theory appears to be better.
STATE PRACTICES REGARDING RELATIONSHIP2
^ Practice of States suggests that States have chosen to follow the theory
which they themselves considered more appropriate in accordance with their
political, social and economic systems. How far international law - customary as
well as treaties, are applied by them is different from State to State. Practice of
some of the States are as follows )
(a) Great Britain
L
In U.K., customary international law and treaties are applied differently.
According to British practice, the English statutory law _i§ absolutely binding
upon English courts even if it conflicts with the international law
(i) Customary international law - British courts treat customary rules of
international law as a part of their own land, subject to the conditions that
they are not inconsistent with the British statutes, and if the highest court
once determines the scope of a customary
2. None of the theories which explain the relationship between international law and municipal law
reflects the correct position of State practices in this regard. We can know the exact position only
by examining the State practices. Examine the practices followed by the USA, U.K. and India.
[CL.C.-93, I.A.S.-95] According to Fitzmaurice, the entire monist - dualist controversy on the
subject of ‘international law and municipal law’ is unreal and does not exist. Both are supreme in
their respective spheres. However, occasions come when they clash. How does State practice
reconcile this conflict ?
fC.L.C.-94/95/96, L.C.I-94/95; I.A.S.-93]
0^' Co-iAt - U-Ui* _
Ot&AftrdL v/c, Pi {>/^.?<x£U'i3/'0 9 A^V^d-^V’^ S»t-u£fey

RELATIONSHIP - INTERNATIONAL LAW & MUNICIPAL LAW 79 C
rule, then all the courts in Britain arejwund by it. The principle
has been affirmed in West Rand Central Gold Mining Co. Case
(1905) 2 KB 391. and Trendtex Trading Corpn. v Central Bank of
Nigeria (1977) 1 All ER 881. 1,
t/
In case of inconsistency between any clear or unambiguous rule of
municipal law and international customaiy law, the municipal law prev ails 2*.
In case the municipal law is ambiguous, the English courts adopt the rule
of harmonious construction and thereby avoid the conflict of the statute
law with international law. In this connection, the presumption is that
Parliament never intends to violate international law. It may be noted that
in Britain, the rules of international law need not be proved through evidence, j
British practice in regard to customary rules of international law
admits of certain exception^ Thus, acts of State do not come within the
purview of British courts, irrespective of the violation of international law.
In some matters the British courts are bound to obey the prerogative powers
1M
of Crown fyj*. if the Crown grants recognition to any State)j , ctcu^^r-
((ii) Treaties - In regard to treaties, the British practice is based on the
constitutional principles governing the relationship between ,< kM
Executive or Crown and Parliament. In regard to treaties, the matters
relating to negotiation, signatures, etc. are within the prerogative powers of
the Crown. In Britain it is necessary that some type of treaties should
receive the consent of Parliament [Black Burn v Attorne^General (1971) 2
All ER 1380].j
|_A11 treaties do not automatically come into force. Treaties which affect private
rights, involve cession of British territory, impose additional financial obligation
upon Government, vest additional powers in the Crown, amend or modify common
law or statute law of England, do not automatically become law and required to be
incorporated by Parliament through legislation. Treaties which are not of primary
importance and do not entail major intrusions into legislative domain of the
Parliament, do not require legislative action for their implementation j
L In case of a conflict between a law enacted by Parliament and ? treaty, the
former will prevail if it is clear or unambiguous. If the statute law is ambiguous, the
court may look at the treaty for the purpose of
2*. The British Parliament passed a law prohibiting fishing in an area of the British maritime
belt. A Danish trawler was captured while fishing in this area and were put on trial. The
captain of the trawler pleaded that the international law permitted it. Decide.
[C.L.C.-92]
[Hint : The plea of Danish captain cannot succeed. Similar is the position in relation to a
treaty' in Britain.]
interpreting the ambiguous statutory language. However, in Ostime v Australian

Mutual Provident Society (1959) 3 All ER 245, it was held that if a treaty has been
enforced through the law enacted by Parliament, then this will prevail over an
earlier inconsistent British lawj
(b) United States of America
In America also, the practice regarding customary law and the rules laid
down by treaty is different.
(i) Customary international law - American practice with reference to
international customary rules is similar to British practice as proved by
the cases of Tag v Rogers (1959) 267 F (201), and the Paquete Habana
case (1900) 175 US 677, wherein American courts found themselves
bound by international customary law unless it comes into conflict with
clear and unequivocal statute law. i
i However, the position in the United States is more explicit than in Great
Britain Justice Grey in Paquete Habana case stated that ‘international law is part of
our law...’. In Macleod v United States, the court stated that ‘the statute should be
construed in the light of the purpose of the Government to act within the limitations
of the principles of international law, the observance of which is so essential to the
peace and harmony of nations...’. The American courts also interpret the Statute of
the Congress in such a way that may not go against international law. j
I (ii) Treaties - As far as treaties are concerned, American practice is different
from the British practice. In America, everything depends upon the
provisions of the Constitution. Article 6 of the Constitution states that all
treaties made by United States shall be the “supreme law of the land”. In
United States v Pink, the Supreme Court stated that a treaty is a law of the
land under the supremacy clause (Art. 6 of the Constitution). Thus,
international treaties have been placed in the same category as State law
in America.^
jln United States v P.L.O. (695 F Supp 1456, SDNY 1988), the U.S.
Government ordered the closure of the observer mission of P.L.O. and prohibited
its activities within the United States after it found the P.L.O. to be terrorist
organisation in view of the Anti-Terrorism Act enacted in 1987. The Order of the
U.S. was inconsistent with the U.N. Headquarters Agreement which it had entered
into with the United Nations in ; J47, wherein it was provided that U.S. as a host
country must permit governments accredited to the World body to stay and work in
the United Nations. The General Assembly adopted a resolution in 1988
condemning the action of
United States. The federal district court of U.S. held that both - statute and treaties,
are the supreme law of the land and conflicts between them must be reconciled
whenever possible. If a seeming conflict between a treaty and a later statute cannot
be resolved, the statute takes precedence only if the court can discern “the clearest
of expressions on the part of Congress” to override the treaty obligations. The ICJ in
its advisory opinion ruled against the U.S. attempt to shut down P.L.O. mission
unilaterally. The federal court also held so. The above decision demonstrated the
respect for the international obligations of the U.S. especially for the treaty
obligations.
(Jt may be noted that in America the practice is that if there is a Mconflict in
between international treaty and a State law, whichever is later in date shall prevail.
If there is a conflict between American Constitution and an international treaty, the
Constitution will prevail. Jt is significant to note that American courts do not regard
all the treaties strictly as part of the law of the land. In practice, a distinction is made
between self-executing treaties (enforceable without implementing legislation) and
non selfexecuting treaties (enforceable only by an implementing legislation). The
self-executing treaties override State Constitutions and laws and such treaties are
covered within the framework of the Constitution. The non self-executing treaties
do not become part of the law of the land ipso facto.
(c) European States
A number of European States follow the principle of incorporation, or
adoption, of customary international law. As far as treaties are concerned, many
countries adhere to the principle that treaties made in accordance with the
Constitution bind the courts without any specific act of incorporation.
In the erstwhile Soviet Union, international treaties and internal statutes were
given equal status. However, if there was a direct conflict between international law
and a Soviet statute, the latter will prevail.
(d) Indian practice2b
i Indian Constitution under Art. 51 (Directive Principles) provides the general
obligation of India to the world. It says : “The State shall endeavour to (a) promote
international peace and security (b) maintain just' and honourable relations between
the States (c) foster respect for international law and treaty obligations in the
dealings of organised people with one another, and (d) encourage settlement of
international disputes by arbitration The Directive Principles, though non-
justiciable, are fundamental in
2 b. Discuss, with the help of relevant cases, the status of international law rules before the
municipal courts of India. [C.L.C.-97; L.C.I-96\ L.C.I1-94/95/96]
governance of the country and it shall be the duty of the State to apply them in
making laws, j
Art. 51 is too general and no conclusion can be drawn from it as to how far
rules of international law shall be applied by the courts. It is simply a pledge. It has
been implemented by the executives through the foreign policy of India. It may be
noted that reference of the words International law’ and ‘treaty obligations' implies
that the former refers to customary international law.
jj(i) Customary international law - The courts in India follow the English
practice that international customary rules are ipso facto part of Indian law
and do not require incorporation^C7iar;A- Fishery cases i.e. Annakumaru
Pillai v Muthupayal ILR 1907 Mad 551, and, A.M.S.S. V.M. & Co. v State of
Madras (1953) 2 MLJ 587],
I^Jn Annakumaru case, the issue was whether the Rajah of Ramnath by
continuous and effective occupation from time immemorial had acquired title to the
species of sedentary fishery (chanks) on the seabed of Palk’s Bay. Held that he
acquired historic title (customary right) over sedentary fishery on the basis of
prescription and acquiescence. The court, thus, applied international custom
(customaiy norms concerning prescriptive title)j lin A.M.S.S. V.M. & Co. case, the
issue was whether the State of Madras was entitled to abolish private rights on the
exploration of chank fish in Palk’s Bay. Held that the particular part of sea bed
vested in the crown and that, according to common law principles, the government
was entitled to abolish private rights. The High Court enforced international
customary law i.e. maritime law principles (historic title based on prescription and
acquiescence of the other States)j
^However, in A.D.M. Jabalpur v Shukla (AIR 1976 SC 1207) (Habeas Corpus
case), the majority (speaking through J. Beg) held that international customary rules
were merely ethical principles and were not applicable ipso facto. This judgment has
been criticised as Art. 372 of the Constitution enacts that all laws in force in the
territory of India immediately before the commencement of the Constitution, shall
continue to be in force until altered, repealed or amended by a competent legislature.
The words “law in force” includes British common law, hence common law doctrine
is applicable to India ((Dissenting opinion of Justice Khanna in Habeas Corpus
case).
Thus, Indian courts would apply customary rules of international law, if they
are not overridden by clear rules of domestic law.(hi other words, if there is a
conflict between international rules and clear or
unambiguous internal rules, the latter will prevail. If the internal rules are
ambiguous, the courts will try to avoid the conflict by adopting a harmonious
construction.
j In Gramophone Co. of India Ltd. v B.B. Pandey (AIR 1984 SC 667), Justice
Chinnappa Reddy observed : There can be no question that nations must march
with the international community and municipal law must respect rules of
international law. The comity of nations requires that rules of international law may
be accomodated in the municipal law even without express legislative sanctioiyBut
when they do run into such conflict, the sovereignty and integrity of the Republic
and supremacy of the constituted legislatures in making the laws may not be
subjected to external rules (except to the extent legitimately accepted by the
constituted legislatures themselves). If in respect of any principle of international
law, the Parliament says “no”, the national court cannot say “yes”. National court
shall approve international law only when it does not conflict with national law.
National courts being organs of the State and not organs of international law must
per force apply national law if international law conflicts with itj
(ii) Treaties -Ârticle 73 of the Constitution states that executive power of
Union extends to all matters in respect of which Parliament has power to
make law'. Thus, treaty-making is an executive act. Under Entry 14, List I
read with Art. 246, power to make laws with respect to implementation of
treaties rests with the Union ParliamentÂrt. 253 says that Parliament has
power to make any law for the whole or any part of the Indian territory
for implementing any treaty, agreement or convention or any decision
made at any international conference, etc. Art. 253 however does not give
clear directions as to whether enactment by Parliament is required for
implementation of all treaties and agreements.!
(As to the position of treaties in Indian law, two attitudes prevail. One viewis
that treaties shall not be binding upon courts unless they are implemented by
legislation. In many cases it has been held by the courts that legislation would be
expressly required to give effect to a treaty. In Shiv Kumar Sharma v UOI (AIR
1968 Del 64), it was held that in India, treaties do not have the force of law and
consequently obligations arising therefrom will not be enforceable in municipal
courts unless backed by legislatianjSimiiar views were expressed in Maganbhai v
UOI (AIR 1969 SC 783)|and •Ioljv Verghese v Bank of Cochin (AIR 1980 SC 470).
In the latter casST Krishna Iyer J. asserted that ‘the positive commitment of the
State parties ignites legislative action at home but does not automatically make the
Covenant an enforceable part of the corpus juris of India’. |
j_In Civil Rights Vigilance Committee, Bangalore v UOI (AIR 1983 Kant 85),
the question was as to whether Boycott and Cook shall be allowed to visit India and
to play cricket matches as members of the English cricket team against India in
view of their links with South Africa which is practising policy of apartheid. The
petitioner contended that the government’s action in permitting them to play was in
breach of its obligations under the Otenfeagles Aeeord-ami-obligations attached to
its membership of U.N. It was held that as such obligations are not made part of the
law of India by means of appropriate legislation, they cannot be enforced and the
court cannot compel Parliament to make such law. i U f t
j_The other view.is that in India all treaties do not require implementation by
legislation. In Berubari Union case No. 1 (AIR 1960 SC 845), it was held that an
agreement Involving cession of part of Indian territory to Pakistan, required
amendment to the Constitution, hence legislative enactment is necessary. In
Berubari Union case No. 2 (AIR 1966 SC 644), wherein the territory de jure
belonged to Pakistan, it was held that giving it back did not entail cessation of
territory; hence transfer could be effected by executive action and no legislation
was necessaryjiJn UOI v Sukumar Sen Gupta (AIR 1990 SC 1692) (Teen Bigha
case), it was held that lease in perpetuity of Teen Bigha in favour of Bangladesh did
not amount to cessation of territory and hence legislation was not required^
In Maganbhai Ishwarbhai Patel v UOI (AIR 1969 SC 783), the court said that
a settlement of a boundary dispute cannot be held to be cessation of territory. In this
case, the Supreme Court seems to have followed the American practice regarding
the distinction between ‘Self-executing’ and ‘non self-executing treaties’. The court
observed : “Where a treaty comes into existence, it has to be implemented and this
can only be if all the three branches of Government - Legislature, Executive or
Judiciary, or any one of them, possesses the power to implement it ... In some
jurisdictions the treaty acquires full effect automatically in the municipal law. Such
treaties are ‘self-executing’. Legislation may be passed in aid of implementation but
is usually not necessary”. The court further said that treaties which affect rights of
citizens are required to be implemented by legislation to become enforceable. In
Birma v State (AIR 1951 Raj 127) and Nanka v Govt, of Rajasthan (AIR 1951 Raj
153), it was held that in case of extradition treaties which entail infringement of
constitutional rights to life and personal liberty (Art. 21), the legislative action is
necessary.
^Conflict between treaty and statute law - In Habeas Corpus case, one of the question
for consideration was whether Universal Declaration of Human Rights and the two
International Covenants on Human Rights, 1966 were
part of Indian municipal law. By majority the Supreme Court held that they were not
part of Indian municipal la^j|In his dissenting opinion, however, Justice H.R.
Khanna held that if there was a conflict between the provisions of a treaty and
municipal law, it is the latter that will prevail. But if two constructions of the
municipal law were possible, the court should give that construction as might bring
about harmony between municipal and international law or treaty. The
Constitutional provision should be construed in such a way as to avoid conflict with
the Universal Declaration of Human Rights. ^
j Similarly, in Jolly Verghese case, Justice Iyer reaffirmed the above view of
H.R. Khanna. He construed Sec. 51 of the Civil Procedure Code of India in such a
way as to avoid conflict with Art. 11 of the International Covenant on Civil and
Political Rights, 1966j It was held that Sec. 51 of the C.P.C. shall prevail if the
treaty in question has neither been specifically adopted in the municipal field nor has
gone under transformatioijjLikewise jjn Gramophone Co. of India v KB. Pandey (AIR
1984* SC 667), the Indian Copyright Act was construed harmoniously with
international treaties and conventions.,
^Concluding remarks - Like British and American courts, Indian courts also attribute
primacy to municipal law if it is clear and unambiguous. In case of ambiguous
wording, Indian courts follow the doctrine of harmonious construction to avoid
conflict between municipal and international law. It may be noted that ^ Art. 51 of
the Constitution of India, in so far as it requires the various organs of State to foster
respect for international law and treaties would seem to strengthen rather weaken the
legacy of the common law principle that international law is a part of the law of the
land j In the case of treaties, Indian practice is similar to British practice.
Conclusions : State practices20
I The practice of States makes it clear that neither delegation theory of monists
nor adoption theoiy of dualists holds good in all situations. Howev er, dualistic view
is closer to the truth, as international law is not always enforceable in the municipal
courts of England, America and India. Municipal courts give effect to international
law only if it does not conflict with clear and unambiguous municipal law_
In large number of States, municipal courts give priority to the application of
municipal law, irrespective of the applicability of rules of international law and the
question of any breach of international law is left
2C . Which theory regarding the relationship between international law and municipal law is
nearer to reality ? [C.L.C.-92/94]
8f PUBLIC INTERNATION LAW
to be settled at the diplomatic level. From the technical point of view, municipal law
cannot give direction for any act which is prohibited under international law but in
practice individuals are compelled to follow such laws (Edwin Corchard)^
Âlthough it is not possible for the municipal courts to enforce international law
if it conflicts with municipal law, yet it is possible to create and proliferate
international conscience to the effect that international law should be made self-
executing. The legislature and judiciary of a State^ has to realise that neither
municipalTaw nor international law is supreme, but they are concordant with each
other.
G.V.G. Krishnamurty has rightly identified the relationship between
international law and municipal law in the following words : “For international law
to be intensely effective in fulfilling the functions, keeping in view the ultimate
benefits of mankind, it is all the more necessary that States, new and old, should
innovate appropriate systems and modalities to honour enforcement of such law
through their tribunals even though some principle or other may directly or
indirectly affect the supremacy of the sovereign power of a State” (AIR 1985, p. 17).
Concept of Opposability3
The concept of opposability which has come into current use in the field of
international law, is of some value where the relationship between international law'
and municipal law is concerned.
Starke has explained the concept of opposability with the help of the
following illustration In a dispute before an international tribunal between two
States, A and B, where State A relies upon some ground in support of its claim,
State B may seek to invoke as against i.e. oppose to State A some rule,
institution/regime under State B domestic law in order to defeat the ground of claim
set up by State A. As a general principle, if the domestic rule, institution/regime is in
accordance with international law, this may be legitimately ‘opposed’ to State A in
order to negate its ground of claim but if not in accordance with international law,
this may not be ‘opposed’.
However, for the applicability to this rule in respect of a ‘treaty’ rule, it is
necessary that the State against which rule is being invoked must be a party to treaty.
In North Sea Continental Shelf case (ICJ. Rep. 1969), it was held that Art. 6 of the
Geneva Convention on the Continental Shelf, 1958 containing the rule of
equidistance for the delimitations of continental shelf common to adjacent States,
was not opposable’ to Germany which
3. Write a short note on : Concept of Opposability. [I.A.S.-97]

had not ratified the Convention. But in a subsequent case, if a State which had
ratified the Convention including Art. 6 without reservation, Art. 6 would be
‘opposable’ to such a State.
It may be noted that even if a rule of domestic law is held to be non-
opposable, the rule concerned will not cease to be valid rule in the domestic
domain. The position will, however, be different if the domestic rule itself is held to
be unconstitutional.
Even a determination of the U.N. Security Council, which correcdy declares
that a certain situation is illegal, may be opposable to all States, whether members
or non-members, that may seek to rely upon the legality of the situation.
RECOGNITION
Meaning of Recognition1
According to Phillip Jessup, recognition means that an existing State
acknowledges the political entity of another State, by overt or covert act. Fenwick is
of the view that through recognition the members of the international community
formally acknowledge that the new State has acquired international personality. It
may be noted that recognition is neither I a contractual arrangement nor a political
concession. It is a declaration of the existence of certain facts.
As to recognition of State, the Montevideo Convention, 1933 has said that the
‘State’ should possess four qualifications : Permanent population, definite territory,
Government, and, capacity to enter into relations with other States. When
possession of these attributes (of Statehood) in a State is acknowledged by other
existing States, it is known [ as recognition of a State. Recognition may, therefore,
be defined as a formal acknowledgement by the existing members of the
international I community of the international personality of a new State.
Oppenheim lays down that the grant of recognition establishes that the new
State, in the opinion of existing recognising States, fulfills the » conditions of
Statehood required by international law, so that the new State I can be regarded, quoad
the recognising States, as an international person possessing the rights and duties
which international law attributes to States. I However, international law does not
provide as to how these essential I conditions are to be determined. It is because of this
reason that very often recognition is said to be a political diplomatic function (Jessup).
Problem of recognition of a State arises when a State disintegrates into
several States, a former colonial territory gains Statehood, or when two or more
States merges to form a new State.
Theories of Recognition2
The legal significance of recognition is controversial. This has ] led to emerge
different theories which are discussed below. The ]
1. Define and evaluate the relevance of recognition of States.

[C.L.C.-96; L.C.I-94]
2. Discuss the principal theories of recognition. Which theory is supported by I State
practice? [C.L.C.-92/95, L.C.I-95, L.C.1I-94/95/96/97]
RECOGNITION 89
theories attempt to explain the nature, basis and effect of the act of
recognition.
(a) Constitutive theory - According to this theory, an entity does not become
a State by possessing essential attributes of Statehood, it becomes so,
when it is recognized by other States. It implies that other States constitute
the personality of a State by granting recognition. Thus a new entity
cannot become a State ipso facto, it has to be recognized by other States so
as to become an international person (and thus acquire rights and duties
under international law). This theory has been advocated by Hegel,
Anzilloti, Oppenheim, etc.
The exponents of constitutive theoiv want the institution of recognition to be
under a system of law and that is why, Lauterpacht, posits a legal duty on the part of
existing States to recognize any community that has in fact acquired the
characteristics of Statehood. The act of recognition is thereby defined as a clearly
legal act, with new States having the legal right to be recognized and established
States having the legal duty to recognize them.
The traditional constitutive theory is criticised on a number of grounds.
Firstly, recognition is a political act of a State. If this theory is accepted, it would
mean that the fate of new State would be determined by other States. It may be
noted that recognition by no means produces subjects of international law. The
acceptance of this theory would mean that a State exists for some States (which
have granted recognition) and does not exists for others (which have not granted
recognition). This situation shows that recognition is not a conclusive proof for the
existence of a State.
Secondly, there is no legal duty on the part of the existing States to recognize
any community that has in fact acquired the characteristics of Statehood. Although
established States normally recognize new States that in fact exist, they have not
consented to law norms that obligates them to do so.
Thirdly, a State exists prior to its recognition. Recognition has a retrospective
effect i.e. when a new State is recognized by other States, the latter is regarded to
have recognized all the acts of the former from the date of its establishment. It
follows that a State at the time of granting recognition to a new State accepts that it
has come into existence prior to its recognition. Fourthly, a State do have some
rights and obligations under international i">w, even without recognition.
However, in support of the constitutive theory, it must be admitted that once a

State is recognized it acquires status and is recognized as such by the municipal
courts of the recognising States. Sometimes, existence alone is not sufficient to
create an international personality. Thus, in the case of Vatican city recognition
alone is conclusive proof of its existence and not its automatic existence as a State.
(b) Declaratory/Evidentiary theory - According to this theory, Statehood or
the authority of the new government exists as such prior to and
independently of recognition. Recognition is merely a formal
acknowledgement through which established facts are accepted. The act
of recognition is merely declaratory or evidence of an existing fact that a
particular State or government possesses the essential attributes as
required under international law. Recognition is necessary only because it
enables new State to enter into official intercourse with other States. This
theory has been advocated by Hall, Wagner, Brierly, Fisher, etc.
Brierlv has stated. “A State may exist without being recognized, and if it does
exist in fact, then, whether or not it has been formally recognized by other States, it
has a right to be treated by them as a State”. Thus the international personality does
not depend upon recognition. Birth of a State is the act of internal law rather than
that of international law. State is the ultimate source of international rights and
duties. There is no legal duty to recognise States even after it has attained statehood.
Thus, according to the declaratory theory, recognition depends upon the discretion
or sweet will of the recognising States. States are, in practice, not prepared to be
bound by any norms in this connection.
In practice, most of the States accept the declaratory theory. Recognition
frequently been withheld for political reasons. The theory also finds support in the
fact that recognition has retrospective effect. The Tinocco Concessions case
(discussed later) seems to support this theory. However, the view that recognition is
only a declaratory act is not completely correct. In fact when a State is recognized, it
is a declaratory act. But the moment it is recognized, there ensue some legal effects
of recognition which may be said to be of constitutive nature.
Conclusions - Recognition is declaratory as well as constitutive act. Oppenheim said
that “Recognition is declaratory of an existing fact but constitutive in its nature at
least so far as concerns relations with the recognising States”. Further there is “no
settled view whether recognition is the only means through which a State becomes
part of the international
RECOGNITION 91
community”. Indeed, “The problem is largely theoretical because State practice is

inconclusive and may be rationalised either way”.
According to Kelsen, Statehood may be distinguished into natural statehood
and juridical statehood. The former exists in a State from the moment it comes into
possession of the essential elements of statehood. The latter can be acquired by a
State only when it is recognized by other States. Thus, recognition although is
declaratory of the existence of the natural statehood, it is constitutive of juridical
Statehood. It marks the beginning of the effective enjoyment of the international
rights and duties of the recognized community. It follows that recognition is
constitutive only of more specific rights and not of the minimum rights of existence.
The above view taken by Kelsen may be termed as ‘modified constitutive theory'.
Prof. T.C. Chen has remarked, “In the last analysis, the question of
international recognition is but a reflection of the fundamental cleavage between
those who regard the State as the ultimate source of international rights and duties
and those who regard it as being under a system of law which determines its rights
and duties under that law”.
Act of Recognition - legal or political (State Practices)23
International law leaves the States free to determine as to whether a particular
State possesses the essential elements of statehood. In the view of Judge
Lauterpacht, international law posits a duty on the existing States to recognize any
community which possesses the essential elements of statehood. This view does not
seem to be correct because neither it is supported by State practices nor does
international law impose any such duty upon States. States are only empowered,
they are not obligated to perform the acts of recognition. '
According to facultative theory of recognition, recognition is a political or
discretionary act. Granting of recognition is a question of policy than of law, and
therefore, recognition of a State depends upon the discretion of a State. The practice
of the States shows that recognition is a political diplomatic function. It is
determined by reason of expediency and high State policy. A.V. Levontin said :
“Recognition constitutes the weakest
2*. “To recognize a political community as a State is to declare that it fulfills the conditions of
statehood as required by international law. If these conditions are present, the existing
States are under a duty to grant recognition”. (Lauterpacht). Do you agree with this view
i.e. is there a duty to recognize? Elaborate vour answer with the help of State practices.
[C.L.C.-92/95-, L.C.I-94]
‘Recognition of a State is not a legal but political action’. Explain and illustrate.
[I.A.S.-92]
92 PUBLIC INTERNATION LAVj
link in international law. Since recognition tends to enhance the prestige of

recognized community, and also sometimes its material resource recognition is
accorded prematurely to sympathetic regimes and is protectedly withheld from
unsympathetic ones”.
According to the Soviet view also, recognition is a political act and it is in
the establishment of diplomatic relations which facilitate co-operatio between
States, that the political meaning of recognition above all consist In respect of
recognition, the British practice is also based on political reason. In practice, India
also considers recognition as a political and discretionary act. The practice of
States shows clearly that the act of recognition is influenced by political, economic
and strategic considerations. As J.G. Starke points out that recognizing States use
legal principles as a convenient camouflage for political decisions. Starke also lays
down that at the time of granting recognition. States generally make sine that the
State to be recognized at least possesses the requisite legal qualifications. To this
degree, States do treat recognition as a legal act.
Thus, China was not recognized by many countries (viz. USA) for a long
time although China possessed all the essential elements of statehood. The obvious
reason for this was that it was in the political interests of States not to recognize
China. Similarly, Bangladesh was not recognised for sometime by China, Pakistan,
etc. On the other hand, there have been instances where States have been recognized
even without one or more of the attributes of statehood (i.e. premature recognition),
for example, Israel, Poland, Czechoslovakia, etc. In general, today, admission into
United Nations amounts to a certificate of statehood (collective recognition).
However, as the act of recognition is the free will of each State, even in the case of
recognition by U.N., the States which did not vote in favour, are not deemed to have
recognized a new State.
In actual practice, recognition is an optional and political act and there is no
legal duty in this regard. However, in a deeper sense, if an entity bears the marks of
statehood, other States put themselves at risk legally if they ignore the basic
obligations of State relations. For example, even though Israel is not recognized by
her Arab neighbours, these States cannot ignore the existence of an entity which
possesses the characteristics of a State (there is a legal duty to recognize for certain
purposes at least), though they may not make an express, public, and political
determination to enter into diplomatic relations by means of recognition. It is
entering into diplomatic relations that is political and discretionary, and absence of
diplomatic relation is not in itself non-recognition of the State (Henkin).
RECOGNITION 93
Further, in modern times international personality does not depend upon

recognition. M. Lachs has observed : “We face today the waning (diminishing) legal
importance of recognition.... Non-recognition based on political considerations has
lost much of its meaning. It no longer produces all the effects it was meant to in the
past. In the long run the institution of recognition will surely be more and more
affected by inevitable trend towards greater mutual understanding and towards the
adoption of principles and criteria reflecting the growing co-operation of States of
different political and economic structure”. Moreover, if States do not grant
recognition to other States, the purposes of the U.N. Charter (viz. ‘friendly relations’
and ‘international cooperation’) are likely to be defeated. M. Lachs’s observations
has come true, as evidenced by the growing cooperation between Russia and USA
and China and USA, in recent times.
Why should Recognition be accorded ? 2c
Recognition is a political or discretionary act. Recognition should however be
granted because it has important legal consequences. The recognized State acquires
certain rights, privileges and immunities under international law as well as municipal
law. The typical act of recognition has two legal functions : firstly, the determination
of statehood, a question of law; secondly, the act of recognition is a condition of the
establishment of formal, optional and bilateral relations, including diplomatic
relations and the conclusion of treaties. Further, recognition brings about an increase
in stability at home and prestige abroad; access to foreign aid, loans and trade; etc.
Following are the main legal effects of recognition :
(i) Recognized State becomes entitled to sue in the courts of the recognizing
State.
(ii) Recognized State is entitled to sovereign immunity for itself as well as its
property in the courts of recognizing State.
(iii) Recognized State is entitled to the succession and possession of property
situated in the territory of the recognizing State.
(iv) Recognized State may enter into diplomatic and treaty relationships with
the recognizing State (de jure recognition).
(v) Recognizing State gives effect to past legislative and executive acts of
recognized State (retroactivity of recognition).
2C . If there is no duty to recognize, then why should recognition be accorded ? [C.L.C.-95]

Discuss the legal effects of recognition. [L.C.I-94]
Consequences of Non-recognition2d
Although recognition is essentially a political act, it is important to realise
that the consequences of non-recognition are of both political and legal importance.
(i) An unrecognized State is not entitled to enter into diplomatic relations
with the non-recognising States. Further, diplomatic representatives do
not possess immunity.
(ii) An unrecognized State cannot sue in the courts of non-recognising State.
The courts of latter State cannot give effect to legislative and executive
acts of the former State. Thus in Adams v Adams (1970) 3 All ER 572, the
English Courts refused to recognize a Rhodesian divorce decree.
(iii) An unrecognised State is also not entitled to get its property situated in
foreign States.
However, non-recognition of a State does not mean that the new entity will
be devoid of legal effects in relation to the non-recognising States. General
international rules or treaties on the co-ordination of States such as the norms on the
high seas or respect for territorial or political sovereignty, etc. do apply to the
relationship between the new State and all other members of the international
community. Thus, a non-recognised State is immune from the jurisdiction of the
courts of the State which did not recognized it. However, non-recognition has no
effect before international courts or tribunals (See Tinocco Concessions case).
Stimson Doctrine (Non-recognition)
Stimson doctrine of non-recognition was a statement of the United States
national policy. The doctrine imposed a duty of non-recognition of all territorial
acquisitions brought about in breach of international law. Thus if a State grants
recognition to another State in violation of international treaty (Paris Pact, 1928),
such a recognition would be invalid. Although this doctrine has much to
recommend itself, it is not always followed by the States so far as the grant of
recognition to new State is concerned. States refuse to accept any such obligation
and treat recognition as a political diplomatic function.
Distinction between Recognition of States and Government 3
Recognition of a State is entirely different from the recognition of a
government. Recognition of a government means that the recognising State
2d . Discuss the effect of non-recognition. Can State A bring a suit against B, a non-recognized
government ? [L.C.II-95]
3. Distinguish
between recognition of a State and recognition of a government. [C.L.C.-96]
RECOGNITION 95
regard it as the sole representative of the given State in international intercourse.

When the regime of a State is changed, it is required to be recognized by other
States. Change in the government of a State may take place either in the normal
course of political life (i.e. by constitutional means), or when it is effected through a
coup cf eat’ (revolt or revolution, unconstitutional means). In the former case, a new
government ordinarily receives recognition from other States. But in the latter case, a
new government usually receives recognition only when the other States are satisfied
that it commands the support of the majority of the people and may become stable.
Willingness and capacity to carry out its international obligations is also considered
relevant.
As in the recognition of States, in respect of the recognition of a government
also States do not accept any obligation and much depends on their discretion or
sweet will. Thus, Communist government of China (1948), Pot Pol government in
Kampuchea and Amir government in Afghanistan (1979-80), and, Rabuka
government in Fizi (1987), were not recognised by many States, as these
governments had come in the power by unconstitutional means.
Recognition of governments serves three functions - (i) it ensures that only
regimes which clearly deserve such status are accepted as governments of States (ii)
it assures new governments that others will respect their status and (iii) it serves to
inform courts, government agencies and nationals of recognising States that a
particular regime is in fact the government of another State. Since non-recognition of
a new government has nothing to do with the recognition of a State, official
intercourse and treaties are not terminated but only suspended; they revive when the
old government comes in the power again or when the new regime is recognised.
FORMS OF RECOGNITION
A State may be recognised in two ways : express and implied recognition.
Besides these, a State may be recognized conditionally or prematurely.
(1) Express recognition - When an existing State recognizes the new State by
a notification or declaration (public statement), announcing the intention of
recognition, the recognition is said to be express. In other words, it is
granted in express terms. In 1991, three Baltic republics (Lithuania, Estonia
and Latvia) were expressly recognized by India viz. the Indian Prime
Minister sent the messages to this effect to the Presidents of these States.
Express recognition may also be granted by the conclusion of a treaty
(2) Implied recognition34 - The tacit or implied recognition results from any
act which implies the intention of recognizing the new State. The
intention may be indicated by the States unilaterally or collectively.
(a) Unilateral acts - When a State enters into a bilateral treaty, or
establishes diplomatic relations with an unrecognized State, it may
be inferred that the former has granted recognition to the latter.
Similarly, intention may also be inferred by sending representatives
to attend ceremonial functions in an unrecognized State. The
exchange of consuls also indicates an intention to recognize the new
State.
(b) Collective actsih - A new State may be recognized collectively by the
existing States. It occurs when an unrecognized State participates in
a multilateral conference/treaty, the other participants or parties are
regarded to have recognized the new State if the intention has been
indicated. It cannot be said that participation in a treaty itself is
sufficient to regard as a presumption of recognition, the intention to
recognize is a determining factor.
Does the admission of a new State to an international organisation such as
the United Nations imply collective recognition ? Admission to the Organization
certainly means that all Members must treat the new fellow Member as an equal
partner in law in all matters relating to the application of the Charter. To this extent,
common membership means that the newcomer is partially recognized. But apart
from that, all States are free to decide whether to proceed to full recognition or limit
their relations to the minimum. A State which has become a member of U.N. is
treated by other States as if it has been recognized by other States in dealings inside
the U.N. and not elsewhere, it is sometimes called quasi-recognition.
In its advisory opinion on Condition of Admission of a State to the United
Nations (ICJ, Rep. 1948), the ICJ opined that if a State is admitted as a member of
the U.N., it will amount to collective recognition by those States only who voted in
the favour of the admission of such a State.
(3) Condition?! recognition - It implies that the recognition is granted
subject to the fulfilment of certain stipulation by the recognized State in
addition to the normal requirements of statehoo 1 For
3a. Under what circumstances it may be implied that a State has been recognised by another
State? [C.L.C.-96]
3 b. Write a short note on 'Collective recognition’. [L.C.I-94]
RECOGNITION 97
example in 1878, while recognizing Bulgaria and Romania, 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. Recognition is neither a contractual arrangement nor a political
concession. It is a declaration of the existence of certain facts i.e. a State possesses
all the attributes of statehood. This being so, it is improper to make it subject to
conditions other than the existence - including the continued existence - of the
requirements which qualify a community for recognition as an independent State.
Thus, any condition attached at the time of granting recognition is contrary to the
true function of recognition. Perhaps, because of this reason conditional recognition
has disappeared from contemporary practice.
(4) Pre-mature or Precipitate recognition - Recognition is granted to a
new State when it possesses all the attributes of statehood. However,
since it is a political act, sometimes it is granted to an entity even if it
does not possess them. Such recognition is termed as premature or
precipitate recognition. Generally, when the authorities organise a
secessionist (separatist) movement and establish a provisional
government in a State for the prospective new State, recognition of such a
government is granted by other States.
It is to be noted that pre-mature recognition given to a State amounts to an
unwarranted and illegal intervention in the affairs of the existing State. The
recognition of Israel by the United States in 1948 has been regarded as precipitate
recognition.
MODES OF RECOGNITION4
Recognition may be of two kinds : de facto recognition and de jure
recognition.
(1) De facto recognition
When an existing State considers that the new State has not acquired
sufficient stability, it may grant recognition to the latter provisionally which is
termed de facto recognition. It is granted normally when the recognizing State
considers that the new State although has a legitimate government, its effectiveness
and continuance to govern the territory is doubtful. De facto recognition means that
the State recognized possesses the essential elements of statehood and is fit to be a
subject of international law, but it
4. What do you understand by de facto and de jure recognition? [L.C.I-96]

is doubted that it may be able and willing to fulfil its obligations under international
law.
Oppenheim says that de facto recognition takes place when, in the view of
recognising State, the new authority, although actually independent and wielding
effective power in the territory under its control, has not acquired sufficient stability
or does not as yet offer prospects of complying with other requirements of
recognition. The de facto recognition may be regarded as a preliminary step towards
de jure recognition. The de facto recognition once granted may be withdrawn by the
recognising State when the latter considers that the new State has ceased to possess
the capability of administering the territory.
The Soviet Union was recognized by Great Britain de facto on March 16,
1921 and later de jure on Feb. 1, 1924. Similarly, Italian conquest of Abyssinia was
recognized de facto by Great Britain in 1936 and de jure in 1938. Other instances of
de facto recognition are the communist government of China, and Israel’s occupation
of part of Jerusalem, by the United Kingdom.
It is to be noted that by granting de facto recognition to a State, the
recognizing State secures certain advantages especially economic. It enables it to
protect the interests of its citizens in the de facto recognised State. Further, it also
enables the recognizing State to acknowledge the external facts of political power,
and protect its interests and trade in the de facto recognized State.
(2) De jure recognition
When an existing State considers that the new State is capable of possessing
all the essential attributes of statehood with stability and permanency, the
recognition granted is known as de jure recognition. As pointed out by Prof. H.A.
Smith, the British practice shows that three conditions precedent are required for the
grant of de jure recognition : (i) a reasonable assurance of stability and permanence,
(ii) the government should command the general support of the population, and (iii)
it should be able and willing to fulfil its international obligations.
Recognition de jure results from an expressed declaration or from a positive
act indicating clearly the intention to grant this recognition, such as the
establishment of diplomatic relations. De jure recognition is final, and once given
cannot be withdrawn. It may be given with or without prior to de facto recognition.
When a new State comes into existence peacefully and constitutionally, de jure
recognition may be granted directly.
RECOGNITION 99
Distinction between de facto and de jure recognition 44

It is to be noted that de facto and de jure recognition is an act intended or
calculated to give rise to legal rights and obligations. However, there are differences
between the two.
DE FACTO RECOGNITION DE JURE RECOGNITION
(1) It means that in the opinion of the (1) It means that according to the
recognizing State, provisionally and recognizing State, the State or
temporarily and with all due Government recognized formally (i.e.
reservations for the future, the State or without reservation and on a definitive
Government recognized, fulfills the basis) fulfills the requirements laid
requirements laid down in international down in international law for effective
law for effective participation. participation.
(2) It is a lesser degree of recognition, (2) It is the fullest kind of recognition.
taking account on a provisional basis of
present realities.
(3) It may be made dependent on conditions
with which the new State has to
(3) It is final, and once given cannot be
comply. If it fails to do so, the
withdrawn.
recognition may be withdrawn.
(4) When the new State is formed through
revolt, recognition may be granted after
granting the de facto recognition. (4) When a new State comes into existence
(5) Full diplomatic relations cannot be peacefully and constitutionallly, de jure
established with a de facto recognized recognition may be granted directly.
State. (5) It can be done so when a State is
(6) Full diplomatic immunities are not recognized de jure.
granted to the representatives of the de
facto recognized State. However, in (6) The representatives of the de jure
USA, such immunities are granted. recognized State are granted such
(7) De facto recognized State cannot make a immunities.
claim to property situated in the
territory of recognizing State. It lacks
extra-territorial jurisdiction.
(7) The de jure recognized State can claim

so. The Soviet Government could get
possession of Tsarist Archives and
other property in England only when
the latter accorded de jure recognition to
the former.
4a. State the difference between de jure and de facto recognition.

[C.L.C.-93/94, L.C.II-94/95/96/97, L.C.I-95, I.A.S-93]
DE FACTO RECOGNITION DE JURE RECOGNITION

(8) Official visits to and official (8) This is not so in case of a State dealings with the State in
relation recognized de jure. to its additional territory which has been recognized de facto
may be kept to a minimum and avoided altogether.
Obliteration of distinction : Municipal law effects4b
There are substantial similarities in legal incidents of de facto and de jure
recognition. Thus the recognizing State treats the legislative and executive acts of a
de facto or de jure recognised State as having full legal effect. Further, both de facto
and de jure recognised States have jurisdictional immunities.
A number of cases support the contention that de facto and de jure recognition
is indistinguishable as far as legislative and other measures (i.e. municipal law
effects) are concerned
Luther v Sagor
(1921) 3 KB 532
In 1918, Russia passed a decree for nationalising mechanical sawmills and
wood working establishments belonging to private or limited companies, and took
over the plaintiffs mill. In 1920, the representatives of the 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 the
said contract were his property. He argued that the decree should not be recognised
by an English court inter alia because the Soviet government had not been
recognized in the United Kingdom. The defendant contended that Russia was a
sovereign State and by the act of a sovereign State, the ownership of the plaintiff was
ended. Further, Britain had given de facto recognition to Russia. The court decided in
favour of the defendant.
Bankers, L.J., held that the Government of this country having... recognised the
Soviet government as the government really in possession of the powers of
sovereignty in Russia, the acts of that government must be treated by the courts of
that country with all the respect due to the acts of a duly recognised foreign
sovereign State.
4 b. Write a short note on : Legal implications of de facto and de jure recognition.
[C.L.C.-95]
“So far the municipal law effects are concerned, the judicial decisions have virtually
erased a number of distinctions between de facto and de jure recognition”. Examine.
[I.A.S.-97]
RECOGNITION 101
Warrington, L.J. held that there is no difference for the present purposes
between a government recognised as such de jure and one recognised de facto. In the
latter case as well as in the former the government in question acquires the right to
be treated by the recognising State as an independent sovereign State. Thus, the de
facto government acquires sovereign immunity from being sued in the courts of a
recognising State.
This rule has been applied in a number of cases. In Bank of Ethiopia v National
Bank of Egypt & Ligouri (1937) 3 All ER 8, the court ruled that in view of the fact
that the British Government granted recognition to the Italian Government as being
the de facto government of the area of Abyssinia (which was under Italian control),
effect must be given to an Italian decree in Abyssinia dissolving the plaintiff bank
and appointing liquidator. It was held that authority of de jure ruler (exiled emperor
of Abyssinia) was merely theoretical (incapable of being enforced), and effect must
be given to the acts of de facto ruler.
The Arantzanu Mendi4c (1939) 1 All ER 719
There was a civil war going on in the State of Spain. A major part of it was
under the effective control of the rebel leader. General Franco, whose Government
was recognised de facto by the Government of Britain. A ship named Arantzanu
Mendi was registered in the port under the effective control of General Franco.
While it was on the high seas, the I Government of General Franco and the de jure
government of Spain
I ’I issued decrees requisitioning the ship. The ship arrived at the port of
London in the State of Britain, three days after the respective decrees.
Both the de facto and de jure governments of Spain moved the court in
Britain to secure control of the ship. The owners of the ship, however
expressed their willingness to follow whatever decision is given by the
court. The court asked the foreign office to state whether it recognized
the government of General Franco, it replied that de facto recognition
has been granted to Franco’s government. The court held in the favour
of de facto government of General Franco.
Lord Atkin observed : By ‘exercising de facto administrative control’ or
‘exercising effective administrative control’, I understand exercising all the functions
of a sovereign government. It necessarily implies the ownership and control of
property whether for military or civil purposes, including vessels whether warships
or merchant ships. In those circumstances, it seems to me that the recognition of a
government as possessing all these
4°. A question based on this case. [C.L.C.-93/94; L.C.I-95]
102 PUBLIC INTERNATION tfl
attributes in a territory, while not subordinate to any other government • that

territory, is to recognize it as sovereign, and for the purpose* international law as a
foreign sovereign State.
He further observed : There is ample authority for the propositw that there is
no difference for the present purpose between a recognition of a State de facto as
opposed to de jure. For these reasons, I think that it established by the foreign
office letter that the de jure government of Spain at the date of writ was a foreign
sovereign State and could not be implead^
Comments - Thus, so far as conflict of authority takes place between a displaced de
jure government and a newly recognised de facto govcmmew concerning matters
in the territory ruled by the de facto government, the rights and status of de facto
government will prevail. It has also been held similarly in Bank of Ethiopia case. It
may be noted that since even a de facto government is entitled to sovereign
immunity the same cannot be sued by the de jure government (of Spain) in English
courts.
The decision, however, has been criticised on the ground that in such
circumstances the concession of jurisdictional immunity to a de facto government
without full sovereignty goes too far.
Conclusions
The majority of jurists are of the view that so far as the legal effects are
concerned, there is hardly any difference between the two types of recognition. If
at all there is difference, it is political rather than legal. However, Fenwick and
Judge Lauterpacht have pointed out that in case of succession only the State, which
has been granted de jure recognition wilt be deemed to be the successor State. But
the judicial decisions, in the last few years, have not subscribed to this view. Since
succession to liabilities is same, whether de facto or de jure recognition is
extended, it cannot be argued consistently that a difference arises in succession of
rights.
The difference between the two types of recognition is chiefly political
(degree of political approval and acceptance) rather than legal. In de jure
recognition formal diplomatic relations are established w hereas in de facto
recognition diplomatic relations are not established. It may be pointed out that the
de jure and de facto recognition are out of fashion and the current practices of
States is to grant ‘full recognition’ or ‘full diplomatic recognition’ and there is no
half way between the two. Prof. Charles L. Cochran said : “Whatever the merits of
the arguments for or against the distinction between de facto and de jure
recognition, it is clear that the difference, if any, is becoming less clear. The
existence of de facto recognition is becoming a moribund issue simply by not being
raised as a possibility by the Government”.
, tioN 103
RECOON '
gecogn't'on Insurgenc> Belligerency and Govemment-in-exile

As a general principle. States maintain a policy of non-interference • ^
domestic affairs of another State. A stage may come when rebels are !n effective
occupation of a large part of the territory and exercise authority in that territory. In
these circumstances, third States, without making a formal pronouncement and
without conceding to the rebellion forces’ belligerent rights- refrain from treating them
as law-breakers, and consider them as the de facto authority in the territory under
their occupation. Such attitude is adopted by the third States to maintain with rebels
relations deemed necessary for the protection of their nationals, their commercial
interests, etc. When that happens, the rebels possess against third States the status of
‘insurgents’.
Before insurgency is recognised, recognizing State is required to satisfy
certain conditions viz. insurgent should have control over a considerable part of
territory and support from the majority of the people living in the territory, and,
should have the capacity and will to carry out the international obligations. As a
result of recognition, insurgents are not treated as pirates and international rules of
war become applicable to them. It is to be noted that the recognizing State itself
acquires no new rights so far as its relations with the insurgents are concerned. The
recognition of the State of insurgency should be discouraged because sometimes it
may amount to intervention which is illegal and contrary to the principles of U.N.
Charter.
A stage may come when civil war between insurgent forces and parent
government assumes such dimensions that third States are compelled to treat the
civil war as a real war between rival powers. If such a situation occurs, third States
recognize insurgent forces as a ‘belligerent’ power. This happnes if insurgent forces
act under the command and necessary guarantees of an organized authority in
possession of considerable territory and offer of complying with the accepted rules
of war. If state of insurgency gets transformed into state of belligerency, the
belligerents must act in accordance with the laws of war. Thus, as a result of
recognition of belligerency, the conflict is internationalised and the belligerent get
some rights under international law.
Government-in-exile - When recognition is granted to a new State whose
administration is carried on by the government from outside the State, the
recognition is termed as recognition of the government-in-exile. This situation may
arise when the State is temporarily occupied by invaders or usurpers and the
government has had to flee, or there is a rebel community which has not yet
succeeded in establishing itself in the territory of which it aspires to be the
government. An example is Palestine Liberation
Organisation (PLO), recognised by many States including India, whose territory had
remained under the occupation of Israel.
It is to be noted that international law traditionally required a stable and
effective government as an element of statehood. However, this requirement has
now become obsolete. After the creation of U.N., the right of self-determination has
become a recognized principle of international law. Since the concept of effective
government is against the above principle, it has ceased to be an attribute of
statehood. This conclusion would appear to be imperative where the local
population is forcibly prevented from exercising the right of self-determination by
the belligerent occupation of its territory by a foreign State. An entity without
having an effective government may be termed as a State, and therefore be
recognised. Nonrecognition does not mean that the entity does not qualify for
statehood.
In contrast to de facto government, govemments-in-exile lack effective
control over the territory of a State and have been accorded de jure recognition. The
legal consequences of de jure recognition of govemments- in-exile included
recognition in municipal law of the control by the exile government of assets in the
recognizing State. The recognizing governments also acknowledged the authority of
the govemment-in-exile over its nationals abroad. It was also acknowledged that
certain decrees of govemment-in- exile applicable to events in the occupied territory
would be given effect in the municipal courts of the recognizing States. The decrees
of the govemment-in-exile were not deprived of legal effect by subsequent de jure
recognition of another government.
Illegal States - Is there a duty not to recognize illegal States? The issue has been
accorded treatment in the resolutions of General Assembly and Security Council. In
1965, the Security Council passed a resolution calling upon all States not to
recognize illegal “minority regime” in Southern Rhodesia which violated the
principle of self-determination. In 1976, the General Assembly called upon all
States to deny any form of recognition to the so- called independent Transkei (South
Africa’s move to perpetuate white minority domination).
Estrada Doctrine (No necessity of Recognition)
The Estrada doctrine is generally understood to mean that recognition of
government is unnecessary once the State has been recognized. This doctrine was
propounded by Mr. Estrada, the Foreign Minister of Mexico. He stated that his
government would no longer issue declarations in the sense of grants of recognition
inasmuch as such a course is an insulting practice. He declared that regarding the
establishment of diplomatic relations with other States, Mexico Government
considers itself free to determine it
RECOGNITION 105
in accordance with the facts and circumstances of each case. In other words if the
Mexico government considers that after the change of government in any State
through revolution, a revolutionary government commands the support of the
people, it may establish diplomatic relations with it.
Professor Richard Baxter suggested that recognition is an “institution of law
that causes more problems than it solves it and therefore must be rejected”. A
number of States indicated that they had abandoned traditional recognition policies
and substituted the Estrada doctrine or some equivalent by which they accepted
whatever government was in effective control without raising the issue of
recognition. However, the doctrine has been criticised as it disregards the rules of
international law and encourages individual appraisal in this field.
Withdrawal of Recognition
Although the act of granting recognition is political, recognition de jure once
granted is, generally speaking, irrevocable. Art. 6 of the Montevideo Convention,
1933, also declared that de jure recognition is ‘unconditional and irrevocable’. If
States would start withdrawing recognition of a State on political grounds, they
would find a number of occasions for doing so. Such acts of States are likely to
affect international peace and co-operation amongst the States. If a State does not
have cordial relations with another State it may take other steps, including the
rupture of diplomatic relations which does not result in withdrawal of recognition.
Even recognition de facto cannot be withdrawn so easily inspite of the fact that
revocability is inherent in its concept.
However, recognition de jure ceases to have effect in case of a definite
disappearance of one of the essential elements of Statehood or ineffectiveness of the
government. It may happen that a State may lose its independence or a government
may cease to be effective. In such cases, withdrawal of de jure recognition is
permissible but most stringent proof is required of the final disappearance of the
essential elements of Statehood or the governmental capacity. It is significant to
note that it is the recognition of new authority which operates as withdrawal of
recognition from the defunct State. Perhaps, there is no instance in which
recognition has been withdrawn from a State without a corresponding measure of
recognition being granted to the successor.
RETROACTIVITY OF RECOGNITION 5
Recognition de facto as well as de jure has a ‘retroactive’ effect in the sense
that all the acts of newly recognized State are treated valid dating
5. What is the principle of retroactivity with regard to the recognition of government?

Referring the relevant examples, explain the cases where this principle is not
effectively applicable. [C.L.C.-97\ L.C.I-96]
[^COGNITION iv.
iuo PUBLIC INTERNATION LAW
corporation to a U.S. firm. This property included 40 air-crafts which were lying at
back on the commencement of the activities of the authority thus recognized. For
an airfield in Hongkong. Meanwhile, the revolutionary communist government of
instance, if the communist China was recognised by the U.S.A. in 1979, the latter
China declared that respondent corporation was its property; the chairman of the
would treat all the acts of the former from the date when it in fact come into
corporation also declared his loyality towards the communist government.
existence. British and American courts have adopted this practice. But the
The national government was a de jure government of China, recognized so by
practice followed by them cannot be regarded as a principle of international law. To
give retroactive effect of recognition is a matter of convenience, if any State does so Britain. The transaction between the national government and the U.S. firm took
it is because of maintaining the friendly relations and good understanding. It may be place in Dec., 1949. In Jan., 1950 the Britain recognised the communist government
noted that the recognition of a new State cannot be retroactive ex hypothesi (upon the of China as de jure government. The question in issue was whether this recognition
supposition); on the other hand, recognition of a new government of an existing could effect the right of the U.S. firm. In other words, the court had to decide the
State can, and normally should be retroactive. Further, the retroactive effect is retroactive effects of the grant of de jure recognition to the communist government
limited to the persons and property situated within the effective control of the by Britain, i.e. whether past acts of de jure government can be valid only if such a
recognised State. Like recognition the extent of retroactivity is confined to, the area government is the same which had been granted de facto recognition previously.
of effective control. The Court held as follows :
(i) Retroactivity depends upon intention.
Every act of recognition is not retroactive in its operation. It depends upon the
(ii) Where there is a clear date mentioned, recognition takes effect from that
intention behind the individual act of recognition, and has to be interpreted from
date (mentioned) [Thus, it is an exception to the general rule of
evidence. In Luther v Sagor (1921) 3 KB 532, a plywood factory owned by British
retroactivity],
subject in Russia was confiscated. Later, the Russian Government sold it to another
British subject. Validity of this act of conveying title was questioned. The issue was (iii) Acts of previous de jure government cannot be invalidated by subsequent
whether the Russian government had been recognized by the British government so de jure recognition of new government.
that its decrees and official acts would be recognized by British courts. During (iv) Prima facie, recognition operates retrospectively not to invalidate the acts
pendency of the appeal, the British Government recognized Russian Government as of a former government, but to validate the acts of a de facto government
de facto government, but the foreign office certificate provided no guidance on the which has become the new de jure government.
question of retroactivity. The court assumed that recognition would be in principle In other words, at the date when the transaction regarding the sale of the
retroactive (unless there is contrary intention) and made its own estimate of the property of respondent corporation took place, the nationalist China was de jure
beginning date. The court did not regard the distinction between de facto and de jure government of China and hence it was entitled to sell its property. In short, the
recognition as crucial, and held that de facto recognition dates back in the same granting of de jure recognition of communist government of China would not
manner as de jure recognition. invalidate the legal acts of the former de jure government of China.
Another case which furthers the ‘Intention test’ is discussed below : Comments - The case laid down two important propositions : firstly, the retroactive
effect of a de jure recognition of a government did not mean dial the legal acts
Civil Air Transport Inc. v Central Air Transport Corpn.5a
(1952) 2 All ER 733 performed by the other or previous de jure government would become invalid.
In this case, the appellants were a registered corporation in U.S.A. and the Secondly, where a State is granted de facto recognition initially and de jure
respondent corporation was an institution under the national government of China. recognition later on, the effect of recognition starts from the date of de facto
After the revolution in China, the national government of Chiang Kai fled away to recognition. It may be regarded as a prima facie rule (Starke).
Formosa and sold the property of the respondent
5*. What do you understand by retroactivity of recognition ? Discuss with the help of CATI v
CATC. [L.C.11-94/95/96]
108 PUBLIC INTERNATION I_Aty
/ INDIA’S PRACTICE ON RECOGNITION

India’s practice is in conformity with the norms and principles of
international law as well as general practice of States. India’s policy 0t recognition is
influenced by political, economic and strategic considerations It has immediately
accorded or delayed recognition of States or government! as her national interest
dictated. In recognising States, India had accorded recognition as soon as the
conditions of Statehood had been fulfilled. A substantial measure of effectiveness
had been the guiding principle of India in recognizing governments. In cases where
the situation was doubtful in the initial stages, India preferred to wait and take the
decision in favour of the country when conditions became reasonably stable.
As a matter of general policy, India has attached primacy to de factoism and
has generally recognized the supremacy of de facto regimes. Another striking
feature of India’s recognition policy is that it has adopted the broader version of
Stimson doctrine and, as a matter of policy, has denounced illegal territorial
acquisitions and unlawful governments. In recognising Israel, India reiterated her
determination to subscribe to the principle of de factoism, even if it was at the risk of
some misunderstanding or alienating the sympathies of some of her best friends in
the world. Further, by recognising Israel in 1950, though not establishing diplomatic
relation with her (till 1992), the Government of India has clearly proved weighty
reasons for thinking that it distinguishes between recognition as a legal act and the
establishment of diplomatic relations as a purely political act, a view confirmed by
the State practice of the most countries.
India has delayed recognition or accorded quickly being influenced by her
national interest, expediency and political consideration. Thus, while recognition in
respect of Israel, Spain, Vietnam and East Germany had been delayed, India was
very quick to accord recognition to Bangladesh. India was the first country to
recognize Bangladesh. This was obviously due to expedience and political
considerations.
However, the Indian policy in according early recognition to Bangladesh
reflects the usual support by India of national liberation movements. India’s policy
to support national liberation movements is based on the principle of self-
determination enshrined in the U.N. Charter. That is why India has always
denounced the role of South African racist regime in Namibia. It supports the
struggle of the people of Namibia for freedom. India has made it clear that the racist
minority regime of South Africa should not be allowed to hold the entire
international community to raasom. The recognition of Palestine Liberation
Organisation (PLO) affirms
RECOGNITION 109
India’s strong commitment to the principle of self-determination and its long standing
support to national liberation movements. It speaks volumes for India’s opposition to
oppressive regimes.
India’s recognition of China (emergence of a united and forceful China free
from Western domination) was influenced by her continuous support of anti-
colonialism. While participating in debates of the U.N. General Assembly on the
situation in Kampuchea (Cambodia), the Indian representative, Mr. Mishra declared
that India had always supported the struggles of peoples all over the world against
colonialism and for national liberation, independence and sovereignty.
IMPORTANT ILLUSTRATIONS
[1] The Govt, of Zanadu passed a decree nationalising all privately owned mechanical
saw mills in the country and took over plaintiff’s sawmill. When Zanadu
government contracted to sell the property of sawmill belonging to the plaintiff to
the defendant in Keetan, the plaintiff sought an injunction on that transaction.
Defendant contended that the plaintiff could not dispute the sale since the
nationalizing decree which forfeited the property was a sovereign act. The Keetan
government did not recognize the Zanadu government when the case was filed. The
case was decided in favour of the plaintiff. The defendant filed an appeal. During
the pendency of appeal, the Zanadu government was accorded de facto recognition
by the Keetan government. The question arose whether the appeal will succeed now.
Further, what would be the position if the recognition has been granted from a
particular date viz. Jan.l, 1921 6.
As soon as the de facto recognition is given, the Government acquires
sovereign immunity from being sued in the courts of a foreign State which so
recognizes it. It does not matter in such cases, whether a de facto or de jure
recognition is given, because a de facto recognition dates back in the same manner as
a de jure recognition (Luther v Sagor case). Thus the defendant will succeed. The
only case where the original purchaser (defendant) could be made to part with his
goods, is the case where recognition has been granted from a particular date. Because
in such a case, the recognition cannot operate retrospectively and thus the property
must be returned to the original owner (plaintiff) (Civil Air Transport Inc. case).
[2] In 1991, M, a military officcr, ousted the Government of Timbakto. He promulgated
a new Constitution for Timbakto. M remained in power for over two years and
thereafter fled the country. M’s government (though peaceful) was never recognized
by many nations including the Government of Great Land. The new government of
Timbakto repudiated certain
6. A question based on this illustration. [C.L.C.-91/93/97]

obligations undertaken by M’s government towards the nationals of State of Great

Land. State of Great Land brings a claim against the State of Timbakto; the latter
disputes the locus standi of Great Land since it never recognised M’s regime 7 .
The present illustration is based on the following case
Great Britain -Costa Rica Arbitration73
(Tinoco Concessions case) (1923 UN Rep (1) p.369)
In this case, Tinoco overthrew the Government of Costa Rica in January,
1917, assumed power and after holding elections promulgated a new Constitution.
In August 1919, he left the country and his government fell. The new
administration restored the old Constitution. In August 1922, the Government of
Costa Rica enacted the Law of Nullities No. 41, invalidating all contracts made by
the executive power with private persons with or without approval of the legislative
power during the Tinoco regime. The Tinoco Government (not recognized by Great
Britain) had granted a concession to a British company and was heavily indebted to
the Royal Bank of Canada, a British corporation. By Law No.41, both these
obligations were abrogated. Great Britain challenged it. The question arose whether
the successor government is liable to honour the concessions granted by its
predecessor i.e. Tinoco government.
In his award, the Chief Justice Taft, the sole arbitrator, asserted that
(i) Changes in the government or in the internal policy of a State do not
as a rule affect its position in international law. A monarchy may be
transformed into a republic or vice versa-, but, though the government
changes, the nation remains, with same rights and obligations. The
principle of continuity of States has important results. The State is
bound by engagements entered into by government that have ceased
to exist; the restored government is generally liable for the acts of the
usurper.
(ii) Evidence clearly disclosed that Tinoco regime had in fact governed
Costa Rica for two years. Non-recognition cannot outweigh the
evidence as to de facto character of Tinoco government. In reply to
Costa Rica’s contention that Tinoco government could not be
considered a de facto government since it was not established in
accord with the Constitution of Costa Rica, it was said that
recognition was to be determined
7. A question based on this illustration. 7*. A [C.L.C.-95; L.C.1-96]

question based on this case. [I.A.S.-95]
RECOGNITION 111
by enquiry into a government's de facto sovereignty and complete

governmental control and not into its illegitimacy or irregularity of its
origin.
(iii) It was stated that Britain by her failure to recognize Tinoco
government was estopped now to urge claims of her subjects. It may
be noted that failure to recognize de facto government can be used
against it as evidence to disprove the character it now attributes to
that government but this does not bar it from changing its position...
the failure to recognize de facto government did not lead the
succeeding government to change its position in any way upon the
faith of it.
(iv) The most serious objection to the concession is that it was granted by
a body without power to grant it. Its validity is to be determined by
the law in existence at the time of its granting, and that means the law
of government of Costa Rica
under Tinoco ....... The Government of Tinoco itself could have
defeated concession on the ground of a lack of power in the Chamber
of Deputies to approve it....
It was held that as the obligations undertaken were themselves invalid under
the 1917 Constitution (Tinoco Government), the State of Great Britain cannot
succeed in its claim.
(v) Mere fact that a State is not recognized, does not mean that the State does
not exist. Such (unrecognised) State continues to be bound by its rights and
obligations under international law. Hence successive government is liable
for the acts of its predecessors. In international law, a successor
government cannot repudiate those contracts/acts of the predecessor which
have international ramifications (unless those contracts/acts were
unconstitutional at the time of their granting or making).
Thus, in the illustration, State of Great Land has the locus standi and its claim
may succeed if the obligations undertaken were themselves valid under M’s
Constitution.
13) State X deposited some gold in State Y. There was a rebellion in State X and the
rebels were successful in establishing a parallel government. After some time, State
Y granted de jure recognition to the new government formed by rebels. The new
government claims the gold deposited in State Y by the old government. Will it
succeed8 ?
8. A question based on this illustration. [L4.S.-96]

The new government which has been granted de jure recogniti will be
entitled to the succession and possession of the gold deposited by the old
government, for recognition of a government means the recognizcU government
has effective control over the State and is fit to represent that State.
[4] The Government of Zululand is overthrown and the rebels establish a new
government. Britain continues to recognize the old government but accords de facto
recognition to the new government. A suit is filed in Britain by the new
government of Zululand against a bank for recovery of some money due to
Zululand. The suit is contested by the old government which claims that the money
should belong to it since it is the de jure government and hence the lawful
representative of Zululand. Will it succeed 9 ?
In view of the decisions in Bank of Ethiopia and The Arantzanu Mendi cases,
the claim of the de facto government will prevail over that of de jure government.
The reason being that the de facto government is in actual or effective
administrative control, while the de jure government possesses only a theoretical
power or control.
9. A question based on this illustration. [C.LC.-96; IA.S.-94]

6
LAW OF THE SEA
Introduction
( Laws on the sea were evolved during the time of Grotius, and they were
observed by the States as customary rules of international law. The entire sea was
divided into three parts (maritime zones), viz. territorial sea, contiguous zone and
the high seasy,_Laws relating them were settled upto 19th century. The sacrosanct
principle mare liberum or “freedom of the seas” was the guiding light of the
classical law of the sea. The hallmark of this law was freedom meaning essentially
non-regulation and laissez faire._j
(But many developments in the 20th century have led to eclipse of the doctrine
mare liberum, and led to States clamouring for more and more area under their
exclusive control. Increase in the uses of the sea resulted in conflicts between the
wider claims of coastal States seeking to protect their economic interests over large
parts of the sea and attempts by major maritime powers to maintain the status quo on
the othe^Further, emergence of new Asian and African States, scientific advance
and discovery of rich minerals in the sea bed especially Manganese nodules, need
for conservation of fisheries for one’s country, and, increased security concerns, led
to increase in disparity among the nationsYThus there was imperative necessity to
adopt the traditional doctrine to tne present times and circumstances so as to
accomodate the interests of all States, the developing and the developed.]
First two U.N. Conferences on the Law of Sea
JVith a view to reconcile the conflicting claims and resolve controversies, the
two U.N. conferences on the Law of the Sea were held in Geneva in 1958 and
1960^
, In the first conference, i.e. 1958 Geneva Conference on the Law of the Sea
(attended by 82 States), Jour, conventions were adopted : (i) Convention on the
Territorial Sea and Contiguous Zone (ii) Convention on the High Seas (iii)
Convention on Fishing and Conservation of Living Resources (iv) Convention on
the Continental Shelf. The most important issue which was left undecided was the
breadth of the territorial sea. The
Second U.N. Conference, held in 1960, to fix breadth of the territorial sea but it
could not achieve success.J
All the four Conventions came into force. However, it began to be realized
that the laws formulated by the Geneva Conference were inadequate in view of the
hidden vast quantities of minerals, oil and gas deposits in the sea, and the increased
efficiency and capacity of some of the States to exploit them.
Third U.N. Conference on the Law of Sea (JJNCLOS III)
Lfhe acute and urgent need of sea minerals and other factors such as military
and strategic aspects therefore necessitated to lay down such laws which may
possibly control and regulate the sea in a more effective way. The law of the sea was
in the state of disorder before the beginning of UNCLOS IHj(There were conflicting
claims on the breadth of territorial sea, nature and extent of coastal jurisdiction over
fisheries, regime for marine scientific research, coastal State rights and obligations
concerning the preservation of the marine environment, disputes as to the
outeV'edge of the continental shelf, etc.).
The first session of the Third U.N. conference was held in 1973.
Subsequently, ten other sessions were held by the end of 1981. During all these
sessions, many texts for the new convention on the law of the sea were considered.
In the Tenth session, it was decided that the outcome of the session would be issued
in a document ‘draft convention’. In the 11th session, on April 30, 1982, the
conference adopted the draft of the Convention on the Law of the Sea by an
overwhelming majority of 130 States.
, The Convention on the Law of the Sea of 1982 has 320 Articles (divided into
XVII parts) and IX annexes.LIt is a very comprehensive document and covers almost
every aspect of the law of the sea. Art.308 of the Convention provided that it shall
come into force 12 months after it has been ratified or acceded to by 60 States.
Accordingly, the convention came into force on Nov. 16, 1994. By May 15, 1996,
the convention has been signed by 159 States and 91 States have ratified it. But
some major powers like the U.S., U.K., France, Germany, Italy, Japan, etc.
concluded on 3rd August, 1984, provisional undertaking regarding deep sea-bed
matters. This has rightly been termed as ‘Mini-treaty’, as contrasted with ‘Maxi-
treaty’ (i.e. the Convention) and is aimed at erecting an alternative legal regime to
facilitate exploration of deep sea-bed resources on the basis of unilateral
legislation.yjndia has signed the U.N. Convention on the Law of the Sea, 1982.
India, however, ratified the Convention in June.l995.j
LAW OF THE SEA 115
TERRITORIAL SEA/WATERS1
, ‘Maritime belt’ or ‘territorial sea’ (formerly called the territorial waters) is
that belt of the sea which is adjacent to the coastal State and over which the
coastal_State exercises the sovereignty (subject only to a general right of innocent
passage on the part of foreign shipping vessels). It is different from the ‘internal
waters’ in the sense that internal waters lie within the boundaries of the State and
they are used exclusively by the States themselves, right of innocent passage is not
available in respect of them. It is also different from ‘high seas’ which is free to the
commerce and navigation of all the States^
, The possession of this territory is not optional, nor dependent upon the will
of the State, but compulsory (Judge Me Nair, dissenting opinion, Anglo-Norwegian
Fisheries case, ICJ Rep. 1951)j|_Both the Geneva Convention, 1958 and the 1982
U.N. Convention, have recognized this territory i.e. territorial sea. Territorial sea
has tremendous strategic, economic and navigational importance for the coastal
States. Two important aspects are involved in the concept of territorial sea. They
are : breadth of territorial sea and the rights of States over the territorial seaj
(1) Breadth of Territorial Seala
JThe determination of breadth of territorial sea has always been a contentious
issue, and upto 18th century the opinion was, that breadth of territorial sea extends
to the range of a cannon shot which at that time was 3 nautical miles
(Bvnkershoek^Âccording to Grotius, the sovereignty of the coastal State over the
maritime belt should extend only to that area upto which it can exercise effective
control. As a result of the scientific inventions, the range of cannon shot
considerably increased and hence it became necessary to change this rulej
1. Discuss the concept of the ‘ Territorial Sea' or '’Maritime Zone' or ‘Maritime Belt', bringing
out how and by whom it was conceived, the powers of the coastal State and the restraints
placed on them under the Law of Nations, together with the present position following the
U.N. Convention on the Law of Sea signed at Montego Bay in Jamaica on Dec. 10, 1982 ?
Also state the position under the Indian Maritime Zones Act, 1976.
[C.L.C.-91/92/94; L.C.I-95/96/97; L.C.11-94/95/96/97]
la. What is the limit of the territorial sea under the 1982 U.N. Convention? Discuss the
provisions for drawing baselines for measuring the territorial sea, under the Convention.
Refer the case law and which State introduced the straight baseline system ?
[C.L.C.-94/96/97]
[Hint : Norway introduced the straight baseline system.]
The Hague Conference of 1930 made an unsuccessful attempt to obtain

consensus of the nations on a specific breadth of the maritime belt. Thereafter the
first and second U.N. Conferences likewise failecf^JJ.N. Convention, 1982 finally
settled this issue. Art. 3 of the Convention provides that every State has the right to
establish the breadth of its territorial sea upto a limit not exceeding 12 nautical
miles, measured from the baseline determined in accordance with this Convention^
Art. 4 sets the outer limit of territorial sea as the line every point of which is at a
distance of 12 nautical miles from the nearest point of the baseline.,
I Art.5 of the 1982 Convention states that the 'normal baseline’ for measuring
the breadth of the territorial sea is the low-water line along the coast. However, in
certain cases where the coastline is unusually complicated by the existence of such
geographical features (viz. multiple bays) that the sea cannot be easily described by
reference to low water mark, it is then legitimate to depart from that standard and to
link outermost baselines by straight lines from which the territorial sea is drawn. (
Anglo-Norwegian Fisheries Case >- '
(ICJ, Rep. 1951) A
Li« this case, a dispute arose between Norway and U.K. regarding the breadth of
the territorial sea. Norway has a coast of complex geographical configurations
(deeply indented and cut into, having a fringe of islands).
In 1935, Norwegian government issued a decree which delimited Norway’s northern
territorial waters on the basis of straight baselines.LUK submitted the matter to ICJ
contending that international law required the baseline to ^ be the actual low water
line^The Court held that in the normal coast the low-water line is the baseline. But
straight baseline system can be used on the basis of geographic, economic and
historic considerations^
On geographic considerations, the court stated that if the geographical
/
character of the coast is such that it is deeply indented and cut into and is
surrounded by a fringe of islands, then baseline for measuring territorial
u sea may be drawn by choosing appropriate points on these islands and
joining these points by straightlines following the general direction of the
coast. On historic considerations, the court stated that Norway applied the
straight baseline system consistently for a long time (since 1869). On
economic considerations, the court stated that inhabitants of Norway derived
their livelihood essentially from fishing in territorial sea.
In the judgement, there is strong emphasis upon the legitimate interests of the
coastal State. In the process, the court has attached considerable value to the social
considerations. The court, in this case, also observed
C ( £ h r LCU^J.
aL !S?1-
^VV OF THE SEA ~ 117
jjjat the States are not completely free in respect of delimitation of territorial paters
with regard to other States.(Although it is true that act of delimitation is
necessarily an unilateral act because only the coastal State is competent to
undertake it, rhe validity of the delimitation with regard to other States depends
upon international law. }
Comments -,The Rule of Anglo-Norwegian Fisheries case is incorporated
in Art. 7_o£ 1982 Convention, which provides that in localities where the
coastline is deeply indented, the method of straight baseline sy stem may be
employed in measuring the breadth of territorial sea. The drawing of straight
baseline system must not depart to any appreciable extent from the general
direction of the coast. Further, the account may be taken, in determining
particular baseline, of economic interests peculiar to the region concerned
(evidenced by long usage). Jhe system of straight baselines may not be
applied by a State in such a manner as to cut off the territorial sea of
another State from the high seas or an exclusive economic zone.] ,
Cpt —
Indian Position q IJnder Ml.3 of the Indian Maritime Zones Act, 1976,
the position is same as in the 1982 U.N. Convention, and the limit of
territorial sea is the line every point of which is at a distance of 12 nautical
miles from the baselinej
(2) Rights of States over Territorial Sea
(^Coastal State exercise sovereignty not only over the territorial waters, but
also over air space above the territorial sea as well as to its bed and sub-soil.
However, sovereignty is to be exercised subject to this Convention and other rules
of international law (Art. 2, 1982 U.N. Convention). It follows from the regime of
sovereignty that the coastal State has the exclusive right to appropriate the natural
products of the territorial seaj
, The word sovereignty, however, is not used in an absolute or exclusive
sense, and exception to it is the right of innocent passage of the ships of other
States. Thus for international transport and communication some facilities are
provided to other States by the coastal Statej
Right of Innocent Passage lb
The doctrine of “innocent passage” reconciles the interests of the world
community on the one hand, and the coastal States on the other. The interests of
the former lie in the fact that trade should be secure, economical and able to
expand whereas the interest of the latter lie in their ability to Prevent and ward off
dangers to their security and well-being which might ^ costly, politically and
economically
* ■ Write a short note on : Right of Innocent Passage.
[C.L.C.-93/94/95; L.C.I-94]
118 LAW OF THE SEA 119
. Art, 17 of the 1982 Convention specifies that ships of all States (whether warships. Some States insist on the previous authorization of the coastal State for
coastal or landlocked) enjoy a right of innocent passage through the territorial their transit; other States insist on prior notification to the coastal State for their
sea^The term ‘passage’ may be defined as passing through the territorial sea from transit. Thus, coastal States consider passage of warships as an infringement of
high seas to high seas, and proceeding to or from a port; entry upon the territorial their sovereignty or a disturbance to national security. The States which have
sea for any other purposes is not ‘passage’, although it may not be illegal. Further, claimed an unrestricted right of passage have contended that this right has in
ship must have the purpose of traversing the territorial sea, and if it enters for any practice been exercised for a long period and been recognized by nations from time
other purposes (even though its action amount only to passing in the sense immemorial.
defined), it is not innocent passage., ‘Passage’ is defined under Art. 18 as In Corfu Channel Case (ICJ, 1949), ICJ did not express an opinion on the
navigation through territorial sea which is continuous and\expeditious; however, right of passage of warships through territorial sea. It limited its observations to the
passage includes stopping and anchoring, but only so far as the same are incidental case of ‘ straitsHowever. some judges, in their dissenting views, made observations
to ordinaiy navigation or are rendered necessary by force majeure or distress or for on the issue of innocent passage of uarships^Judge Alvarez felt that since war had
the purpose of rendering assistance to persons, ships or aircraft in danger or been outlawed in the U.N.
distress^ Charter, the mission of warships can only be to secure the legitimate defence of
LArt. 19 defines ‘innocent’ and states that passage is innocent so long as it is countries to which they belong. Judge Krylqy argued that there was no right of
not prejudicial to peace, good order and security of coastal States, and take place innocent passage through the territorial sea. Judge Azevedo said that the position
in conformity with these articles and with other rules of international lawjiThe said of warships in respect of passage was different from that of merchant ships__,
article illustrates that spying, fishing, causing marine pollution, launching or international Law Commission had proposed that a State might make innocent
taking on board any aircraft, any other activity not having a direct bearing on passage of w arships subject to prior authorisation, or notification, but the State
passage, etc. shall be considered prejudicial to peace, good order and security of should normally grant innocent passage.[In 1989, U.S. and USSR made an
coastal State. important joint statement that ‘All ships, including w'arships, enjoy the right of
Further, passage of foreign shipping vessels shall not be considered innocent innocent passage through the territorial sea in accordance with international law,
if they do not observe such laws and regulations as the coastal state may make and for which neither prior notification nor authorisation is required’ [ILM 28 (1990) p.
publish in order to prevent these vessels from fishing in the territorial sea. Art. 20 1444]. However, as it is a joint statement made by two States, it is in no way
state that in territorial sea, submarines and other underwater vehicles are required binding on other Statesj
to navigate on surface and show their flag. Ârt. 23 provides that foreign nuclear jjndian Position - Indian position with respect to ‘right of innocent passage’ is the
powered ships arid ships carrying nuclear or other inherently dangerous/noxious same as in 1982 Convention, according to Sec.4, Para 1 of the Indian Maritime
nuclear substances shall, when exercising the right of innocent passage through the Zones Act, 1976. As to the question of innocent passage of warships, Sec.4, Para 2
territorial sea, carry documents and observe special precautionary measures as equates warships with submarines and underwater vehicles and enacts that such
established by international agreements. . ships/vehicles can only pass through Indian territorial waters after giving prior
As regards the duties of the coastal State, Art. 24 provides that the coastal notice to the Central Govemmentj
State shall not hamper the innocent passage of foreign ships through the territorial
sea except in accordance with this Convention. Further, the coastal State shall give CONTIGUOUS ZONE2 riff ( ^
appropriate publicity to any danger to navigation, of which it has knowledge, (^Contiguous zone is that part of the sea which is beyond and adjacent to the
within its territorial sea. As passage is a ‘right’, the coastal State cannot act territorial waters of the coastal State. ^The concept of contiguous zone developed
arbitrarily^ due to the inability of coastal States to ensure effective Protection of all its interests
I Position of Warships - Neither the U.N. Convention 1982 nor the customary due to limited breadth of territorial sea. (
international law- throw any light on the issue of innocent passage of Explain the concept of ‘Contiguous Zone'. What is the difference between
territorial sea and contiguous zone? Discuss with reference to 1982 U.N.
Convention and the Indian Maritime Zones Act, 1976.
[L.C.1-95/96/97', C.L.C.-91/94]
L_ Art. 33 of the 1982 Convention provides .

(i) Contiguous zone may extend to 24 nautical miles from the baseline from
which the breadth of territorial sea is measured. Thus, the area of
contiguous zone would be 12 miles beyond the territorial
sea.
(ii) In the contiguous zone, the coastal State may exercise control to prevent
the infringement of its customs, fiscal, immigration or sanitary
regulations and punish the infringement of these laws.,
(JThus the contiguous zone, like territorial sea, imposes certain restrictions on
the freedom of the high seas. It is important to note that the juridical nature of
contiguous zone is distinct from territorial sea, as the coastal States do not exercise
sovereignty in the contiguous zone (only police and revenue jurisdiction could be
exercised); ‘security’ of the coastal State is a notable absentee, j
LSince the 1982 Convention has made the concept of the Exclusive Economic
Zone (EEZ), the contiguous zone is no longer be described as a part of the high
seas. Since Art. 3 3 is permissive, and since indeed the contiguous zone is entirely
in the area of EEZ where such a zone is claimed, it is perhaps doubtful whether a
State is required to formally claim or proclaim a contiguous zone as a precondition
of the contiguous zone jurisdiction^
Indian Position - Under Sec.5 of the Maritime Zones Act, 1976, India also
adheres to the 24 nautical miles rule, and in contradistinction to the 1982
Convention, security of State is enumerated as one of the areas where India may
exercise control. The inclusion of “security” amongst the purposes of contiguous
zone widens the authority of the Indian Government over foreign ships in the
contiguous zone, and jurisdiction of Indian courts extends to taking cognizance of
any offence^
CONTINENTAL SHELF 3
l_Every country bordering a sea has a continental shelf i.e. extension of the
land territory beneath sea (submerged landmassjjjhe concept of continental shelf is
mainly co-related with the exploitation of natural resources from the sea adjacent to
territorial sea. It was therefore of little importance until such exploitation became
technically possiblej i The concept acquired significance when it was propounded
by the U.S.
3. Discuss the concept of Continental Shelf. What are the rights of the coastal
and other States in the continental shelf ? Discuss with special reference to
the 1982 U.N. Convention and the Maritime Zones of India Act, 1976.
[.L.C.I-94/95/96/97; L.C.II-93/94/95/96] \
OF THE SEA 121
president, Trueman in 1945 through a proclamation which laid down that certain
natural resources underlie in many parts of the continental shelf of the coasts of the
U.S. The proclamation also claimed the jurisdiction and control of the U.S. over
these natural resources. India claimed for the first time in 1955. The continental
shelf concept acquired prominence very rapidly and enunciated in Geneva
Convention, 1958^ i anterpacht stated that the concept had become a part of
customary international lawj
The legal concept of continental shelf also regards it as a natural
prolongation of the land mass of a coastal State, but it is delimited at a certain
distance. For the first time, legal sanctity was given to the concept by the Geneva
Convention, 1958; however, it instead of defining the meaning of the term, defined
the area of the sea which may be referred to as continental shelf.
Definition under the Geneva Convention, 1958
Under Art.l, the Convention has laid down that “the Continental Shelf is the
sea-bed and sub-soil of the submarine areas adjacent to the coast, but outside the
area of the territorial sea, to a depth of 200 metres or beyond that limit to where the
depth of superjacent waters admits of the exploitation of natural resources of the
said areasj Art.2 provides the coastal States with exclusive sovereign rights over
the continental shelf for the purpose of exploring it and exploiting its natural
resources.j
The above definition is ambiguous and inadequate. The definition contains
two alternative criteria for defining the area of continental shelf: depth of the sea
criterion and the exploitation criterion^ (A depth- limit of 200 metres was
prescribed because at that time exploitation of resources beyond that depth was not
feasible. However, where the exploitation of resources could be made beyond that
limit, that area could be referred to as continental shelf on the basis of exploitation
criterion. But it led to the States to interpret the area of continental shelf according
to their own convenience. The developed States applied the exploitation criterion.
The United States want to explore oil and gas upto 300 miles on the east coast
continental slope at a depth of 4000- 5000 feet deep on the Atlantic coast. Thus, it
was feared that if a clear definition and delimitation of the continental shelf were
not made at the earlier possible time, the whole sea-bed might be partitioned by the
advanced countries among themselves, Jn fact. Art. 1 of the Continental Shelf
Convention is said to be one of the most disastrous clause ever inserted in a treaty
of vital importance to mankind^
122 OF THE SEA
Definition under the 1982 U.N. Convention (2) Rights of States

£ln the North Sea Continental Shelf case (1969), the ICJ observed, “The , The area of continental shelf cannot be appropriated bv the States. anCj
rights of the coastal States in respect of the area of continental shelf that constitutes therefore, States cannot exercise sovereignty over this part of the sea. however,
of natural prolongation of its land territory into and under the sea exist ipso facto they may exercise sovereign rights over it for the purposes of exploring it and
and ab initio by virtue of its sovereignty over the land, and as an extension of it in exploiting its natural resources. Thus, the 1982 Convention preserves the
exercise of sovereign rights for the purpose of exploring the sea bed and exploiting
sovereign rights given by the 1958 Convention. But in Art.82, a provision has been
its natural resources. In short, there is here an inherent right’^)
made for revenue sharing in respect of exploitation beyond the 200 nautical miles
^fhe court noted that what confers the ipso jure title which the international
law attributes to the coastal State in respect of its continental shelf is the fact that limit. That is, coastal States are required to make payments or contributions in
submarine areas concerned may be deemed, to be actually part of the territory over kind to the International Sea-bed Authority, in such casesj
which the coastal State had dominion, in the sense that although covered with The above right of exploring and exploiting the natural resources are
water, they are a prolongation or continuation of that territory, an extension of it exclusive inlh£-sense that if the coastal State does not explore the continental shelf
under the sea However, the court did not laid down a precise limit of the or exploit its resources, no other State may undertake these activities without its
continental shelf) express consent (Art.77)r Art.81 provides that the coastal States shall have the
' Articles 76 to 85}of the U.N. Convention on the Law of Sea, 1982, contain exclusive right to authorise and regulate drilling on the continental shelf for all
provisions with regard to continental shelf. The main provisions are discussed purposes, j
below :
The above rights of coastal States over the continental shelf do not affect the
(1) Outer Limit of Continental Shelf
^ Under Art.76, the continental shelf has been defined as comprising, “the sea- legal status of the superjacent waters or the air space above those waters. Jhe
bed and sub-soil of the submarine areas that extend beyond its territorial sea* exercise of the right of the coastal States over the continental shelf must not
throughout the natural prolongation of its land territory^\o the outer edge of the infringe or result in any unjustifiable_interference with navigation and other rights
continental margin^r to a distance of 200 nautical miles (from the baseline from and freedoms of other States (Art.78). Jims, coastal States are entitled only to
which the breadth of territorial sea is measured) where the outer edge of construct and operate the necessary installations within their continental shelves in
continental margin does not extend upto that distance . j accordance with these safeguards.
^This definition incorporates the concept of the continental shelf as highlighted Other States have also been given a few rights over the continental shelf of
by the World Court Further, it provides for a uniform continental shelf upto a the coastal States. Thus, all States are entitled to lay submarine cables and
distance of 200 miles to those coastal States who have a short continental shelf and pipelines on the continental shelf. However, the right may be exercised only with
does not extend upto the said distance. The 1982 Convention thus clarifies that
the consent of the coastal States, j
continental shelf of a coastal State comprises sea bed and subsoil of the submarine (3) Delimitation of Continental Shelf between two or more States
area upto outer edge of continental margin or to a distance of 200 nautical miles, \s to the delimitation of continental shelf between adjacent or opposite States,
whichever is more. Further, where a State’s outer edge of continental margin there has been much controversy., The Geneva Convention, 1958 âdopted the
extends beyond 200 nautical miles, the convention lays down that continental shelf “equidistance - special circumstances rule[j iArt.6 of it allow s "States to determine
shall not exceed 350 nautical miles from the baseline from which the breadth of boundary of their continental shelf by agreement between them. In the absence of
territorial sea is measured or shall not exceed 100 nautical miles from the 2500
agreement, and unless another boundary line is justified by special circumstances,
metres isobath33.)
the boundary shall be determined by aPplication of the principle of
3*. A State ‘C’s exploration ship discovered oil below the depth of 1500 metre in the seabed at
a distance of 190 miles from the Indian coast. India claims that she has exclusive rights to equidistancejfrom the nearest points of the baselines from which the breadth of
exploit and use the oil. Is India’s claim justified? [P.C.S. (1990)} territorial sea of each State is measured However, the above rule proved
[Hint : India’s claim is justified.] controversial, particularly because of the ■niprecise nature of the term “special
circumstances”.^
124 PUBLIC INTERNATION ^
On the issue of delimitation of continental shelf, the decisions

international Court of Justice? exhibit judicial activism :
d> North Sea Continental Shelf case (1969) - “Delimitation if to
effected by agreement in accordance with equidistance prinejgj^'
and taking into account all the relevant circumstances, in such a
way as to leave as much as possible to each Party all those parts
of the continental shelf that constitute a natural prolongation of its
land territory...., without encroachment on the natural prolongation
of the land territory of the other”. The court used the term ‘relevant
circumstances’ instead of the term ‘special circumstances
Anglo-French Continental Shelf Arbitration (1978) - The Court of
(ii)
Arbitration established a simple single rule, namely, “equidistance
- special circumstances” rule, as the conventional and customaiy
rule of delimitation (i.e. delimitation in accordance with equitable
principles). However, it refused to endorse the traditional
interpretation of Art. 6 which maintained that the "equidistance"
line was the general rule and that “special circumstances” provided
the exception. The fact that the rule is a single rule means that the
question whether another boundary is justified by special
circumstances is an integral part of the rule providing for
application of the equidistance principle. Thus, there is no legal
burden of proof in regard to the existence of special circumstances.
Libya - Tunisia Continental Shelf case (1982) - The court asserted
L0ii) that equitableness of the “result” is important rather than “means”j
The equitableness of any specific principles of delimitation had to
be assessed in the light of the usefulness of that principle in
achieving an overall equitable result^Further, equity in international
law is a general concept of law, directly applicable as law, taking
into account the circumstances of the particular case. The relevant
circumstances could be the geography, geomorphology, land
frontier, historic rights and economic considerations.jThe court
noted that merit of “equidistance rule” is in cases in which its
application leads to an equitable solution. States may deviate from
an equidistance line, and make use of other criteria for the
delimitation, whenever they found this is a better way to arrive at
an agreement^
Delimitation of the Maritime Boundary in the Gulf ofMaine Area
(Canada v USA) (1984) - The Court emphasized not only
li.iv) equitableness of the result but also of the means adopted. The
[^W OF THE SEA 125
equitable means should be selected according to specific requirements of

the case. While determining single boundary line for delimited
continental shelf and exclusive fishery zones, the court attached primary
importance to geographyj
(v) Libyan-Malta Continental Shelf case (1985) - The court held that I-
^'equidistance principle” is not a customary rule of international law, as
evidenced by the State practices. Thus the principle of equidistance is not
obligatoryjOn “equitable principles”, the court held that delimitation
should be effected in accordance-with equitable principles and taking into
account of all relevant circumstances, soas to arrive at an equitable result
jThus the court emphasized equitableness of the means as well as the
result. [The Court laid emphasis on geographical/geo-morphological
features, and rejected the economic factors (e.g. a poor State to be given
more of the area) and security as relevant circumstances.
The Court also noted that “the tracing of a median line between those coasts
by way of a provisional step in a process to be continued by other operations, is the
most judicious manner of proceeding with a view to the eventual achievement of an
equitable result But, it should not be understood as implying that an equidistance
line will be an appropriate beginning in all cases, or even in all cases of delimitation
between opposite States”.
Conclusions : Position under the 1982 Convention
The 1982 Convention has witnessed controversy between two groups on the
issue of the delimitation of continental shelf, viz. equity group (equitable principle
as the basic delimitation criterion) and the equidistance group (equidistance cum
special circumstance rule as the delimitation criterion). However, the 1982
Convention failed to resolve the conflict^rt. 83 of it provides that “delimitation of
the continental shelf between States with adjacent or opposite coasts shall be
effected by an agreement on the basis of international law, in order to achieve an
equitable solution^/
Thus the 1982 Convention does not at all mention the equidistance principle.
However, parties “in order to achieve an equitable solution” may take into account
the equidistance principle to conclude the agreement. The 1982 Convention has not
specified or clarified the precise factors to be taken into account in delimitation and
the value or effect to be given of {hem. i“It sets a goal to be achieved, but is silent
as to the method to be followed to achieve it. Thus, doors have been left open for
development of case law in this field’ (Libyan - Malta Continental Shelf case).
Indian Position on Continental Shelf

I Under Sec.6 of Indian Maritime Zones Act, 1976, the Indian definition of
continental shelf is substantially the same as under the 1982 U.N. Convention,
except that this Act indicates some illustrative examples of India’s sovereign
rights over the continental shelf which include -
(i) Rights of exploration, exploitation, conservation and management of all
resources.
(ii) Right to construct and maintain artificial islands, off-shore terminals, etc.
(iii) Right to scientific research.
(iv) Right to protect marine environment and control marine pollution^
.As to delimitation of continental shelf, Sec. 9 provides that maritime
boundaries should not extend beyond the equidistance line, in the absence of any
agreement between parties. India’s maritime agreements with its neighbours
follow the equidistance line as a general principle^
EXCLUSIVE ECONOMIC ZONE 4

- (EEZ) £S — “
i The Exclusive Economic Zone (EEZ) or ‘Patrimonial Sea’ aims to secure
for coastal States the resources of the sea, the seabed and the subsoil, irrespective
of variations in geographical or economic or ecological circumstancesjjThe
concept is advanced by some developing countries with an aim to offset the
economic imbalance created by history in favour of a few powerful countries.
l(The concept was initiated by Kenya in 1972 at the Geneva Session of the U.N.
Committee on Peaceful uses of Sea-bed, etc. India was one of its chief supporters^
The concept was, however, opposed by a few developed countries (Japan and
USSR) on the ground that the establishment of EEZ would change the character of
a part of the high seas, in which all States had the
4. Discuss the concept of Exclusive Economic Zone (EEZ). What is its legal status under
the 1982 U.N. Convention ? What are the rights of the coastal and other States in EEZ ?
Discuss also the position under the Indian Maritime Zones Act, 1976. [C.L.C.-95,
L.C.I-94/95/96/97; L.C.II-95]
“The EEZ is sui generis and although not territorial, is nevertheless, importantly modifies
the regime of the High Seas over which it extends”. Critically examine this statement
drawing attention to the special features and legal incidents of this new maritime zone as
established by the 1982 U.N. Convention.
[IA.S.-96]
Write a short note on ‘Exclusive Economic Zone’ .[C.L.C.-94/96; IA.S.-93]
LAW OF THE SEA 127
freedom of fishing, guaranteed by customary international law and by the 1958

Geneva Convention. Further. EEZ would not necessarily lead to conservation of the
biological resources of the sea or their rational exploitation, w hich would mean the
non-realization of the optional catch, j (However, these arguments are not sound as
the concept of EEZ is devised to prevent making of fishing on the high seas the
monopoly of the developed countries. Further, the coastal States were prepared to
share their surplus fisheries in the EEZ. j
The concept of EEZ was thoroughly discussed and considered in different
sessions of the Third U.N. Conference on the Law of the Sea. In 1974 Session,
India introduced a proposal claiming sovereign rights for the purpose of
exploring/exploiting the natural resources, whether renewable or non-renewable, in
a 200-nautical mile zone. The EEZ finally found place in the 1982 U.N.
Convention. Since then, it has become a generally accepted institution of the Law
of the Sea. Oppenheim said that it has become a part of general international law,.
The ICJ in Tunisia-Malta case declared that the institution of EEZ is shown by the
practice of States to have become a part of customary international law. |
Breadth/Limit of EEZ
Art. 57 of the 1982 Convention provides that EEZ shall not extend 200
nautical miles from the coast baseline from which the breadth of territorial sea is
measured. It may be noted that the breadth of continental shelf may extend beyond
the limits of EEZ, i.e. 200 nautical miles. In such cases, the continental shelf covers
the area of EEZ. Clearly, EEZ comprises two categories of cases : (i) the water
column, and (ii) the sea bed and subsoil underlying the water column. The area
under the second category is continental shelf which, in several cases, extends
beyond the limits of sea bed within EEZ._j
Rights and Duties of Coastal States fVsfc'‘x2i S£ 56
, The 1982 U.N. Convention sets out the basic provisions concerning the legal
regime of EEZ in its Articles 55 to 74. Art. 55 provides that the EEZ is an area
beyond and adjacent to the territorial sea, subject to the specific legal regime
established in this Part, under which the rights and jurisdictions of the coastal State
and freedoms of other States are governed by the relevant provisions of the
Convention. Art. 56-deate-with rights, duties an4 jurisdiction of a coastal State^J
Ârt. 56 identifies two types of rights of the coastal State : firstly, sovereign
rights for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living of the sea
bed ana subsoil and the superjacent waters, and with regard to other activities for
the economic exploitation/exploration of the zone, such as the production of
energy from the water, currents, etCjSecondly, other rights and duties provided for
in this Convention. Thus, Art. 56 underlines the fact that the coastal State’s rights
are primarily economic in nature, and categorize only the economic rights as
“sovereign rights”.
, Art. 56 also vests jurisdiction in the coastal State with regard to : (i) the
establishment and use of artificial islands, installations, and structures
(ii) marine scientific research (iii) and, the protection and preservation of marine
environment. Art. 56 also makes it clear that in exercising its rights and
performing its duties in the EEZ, the coastal State should have due regard to the
rights and duties of the other States and should act in a manner compatible with
the provisions of the Convention j
Rights and Duties of other States
I Art . 58 provides that all States (whether coastal or land-locked) enjoy, witlun
the EEZ, the freedom of navigation and overflight and of the lay ing of submarine
cables/pipelines, subject to the relevant provisions of this ConventionJ Besides the
above mentioned freedoms, other States enjoy other internationally lawful uses of
the sea related to these freedoms, such as those associated with the operation of
ships, aircraft and submarine cables/pipelines, and compatible with the other
provisions of this Convention.
L_A.it. 58 further provides that in the exercise of their rights in the EEZ,
States should have due regard to the rights and duties of the coastal State and shall
comply with the laws and regulations adopted by the coastal State in accordance
with the provisions of this Convention and other rules of international law insofar
as they are not incompatible with this Convention^jThe coastal State may take
measures including boarding, inspection, arrest and judicial proceeding as may be
necessary to ensure compliance with the laws and regulationsjlt may be noted that
other States may also conduct marine scientific research in the EEZ, but with the
consent of the concerned coastal State and exclusively for peaceful purposes.
Consent should be granted in normal circumstances, but the coastal States have the
discretionary power to withheld consent on different grounds.
t Art. 59 provides that in case where this Convention does not attribute
rights/jurisdictions to the coastal or other States, and a conflict arises be ,een the
interests of coastal State and any other State, the conflict should be resolved on the
basis of equity and in the light of all the relevant circumstancesjThus, the 1982
Convention strikes a balance between the
LAW OF THE SEA 129
rights/jurisdictions/duties of coastal State, on the one hand, and those of other

States on the other.
^Since the coastal States have been given 'sovereign rights’ over the
resources of EEZ, the character and status of the area has been completely
changed. The area ceased to be a part of the high seas. However, the freedom of
the high seas that are available to all the States shall not be substantially affected J
Thus, States can enjoy freedom of navigation and overflight, laying of submarine
cables/pipelines, etc. (i.e. freedoms mentioned in Art.58). However, other
freedoms of the high seas, viz. freedom of fishing, or constructing artificial
islands/installations, or of scientific research, are not available to other States in
the EEZ of coastal States.
Landlocked and Geographically Disadvantaged States 43
Â State whose boundaries are entirely surrounded by land (i.e. a State with
no sea-coast or short coast-lines) is called landlocked State. The geographically
disadvantaged States are those coastal States whose geographical situation makes
them dependent for the nutritional needs of their population on the EEZs of other
States in the region, and coastal States with no EEZ of their own. There are about
30 land-locked States (viz. Nepal). In view of their specific geographical situation,
they have been granted rights and privileges under international law'. Rules
regarding them have been made at the Geneva Convention, 1958, Convention on
Transit Trade of Land-Locked States, 1965, and the Convention on the Law of Sea,
1982j
These States formed a distinct negotiating group at UNCLOS III; before that
they were preoccupied with the question of access to the high seas and transit
across neighbouring countries. At UNCLOS III, their aim was to secure
preferential rights in neighbouring economic zones as well as equitable treatment
in the sharing of the resources of the International Seabed Area. They made an
attempt to secure a right to share in the nonliving as well as living resources of
neighbouring economic zones. Such a right was arguably based on a conception of
the continental shelf as a natural prolongation not merely of the coastal State but of
the landmass as a whole, including the countries fated by history to occupy the
hinterland.
Butjthe 1982 U.N. Convention recognised the right of these States to
participate, on an equitable basis, in the exploitation of the living resources of
EEZs of coastal States in the same region or sub-region, subject to some
qualifications^ )Jhus the right exists only in respect of an appropriate part
4a. Write a short note on : ‘Territorial waters and land-locked States’.

[I.A.S.-91]
of the surplus, and the relevant economic and geographical circumstances of all
States concerned must be taken into account together with the generally applicable
criteria governing conservation and utilization of the living resources of EEZ
(Art.69)/J-urther, such factors to be taken into account, like, the need to avoid
detrimental effects on the fishing industries of coastal States, the extent to which a
particular land-locked State may be able to claim access to the EEZs of other
States, the nutritional needs of the populations of the States concerned, etc. ,
Indian Position on EEZ
L Sec. 7 of the Indian Maritime Zones Act. 1976 also adopts 200-nautical miles
EEZ. However, the limit of the EEZ may be altered, after having regard to
international limit of EEZ, by notification in the official gazette; the notification is
required to be approved by both Houses of Parliament, j
Sec.7 further provides rights of India in her EEZ. The rights are similar to
those provided under the 1982 U.N. Convention, except some minor variations. For
instance. Union have been given exclusive jurisdiction to preserve and protect the
marine environment and to control marine pollution. Further, the central
government is empowered to declare any area of the EEZ to be a designated area. It
may be noted that the Maritime Zones of India (Regulation of Fishing of Foreign
Vessels) Act, 1981. provides for the regulation of fishing by foreign vessels in the
maritime zones (viz. territorial waters and EEZ) of India. Such provision is not
contained in the U.N. Convention.
Distinction between Continental Shelf and EEZ5
Coastal States have a sovereign right under the regime of the continental
shelf and the EEZ with respect to natural resources. These two regimes also possess
a similar legal character. The rights of coastal States in these two zones are
primarily of an economic kind and the traditional freedoms, including the freedom
of navigation and overflights, are preserved.
Thus, these zones could only be used in the sense of exclusively of the rights
of a coastal State over resources contained in its coastal waters. The States cannot
claim sovereignty over these zones, unlike territorial sea, which is regarded as a
part of the State territory and over which States exercise sovereignty. Thus, these
zones cannot be appropriated by the States. However, no State can take away rights
of a coastal State in the continental shelf and EEZ unless the latter itself transfer
them to others.
5. Distinguish between the EEZ and the Continental Shelf.

[C.L.C.-92/93/95; L.C.l-95/96; L.C.II-95]
LAW OF THE SEA 131
As regards delimitation of the EEZ between States with opposite or adjacent

coasts, the Convention provides, under Art.74, that it shall be effected by
agreement in conformity with international law, in order to achieve an equitable
solution. Thus the position is similar to that provided for the continental shelf in
the Convention.
The two institutions, however, differ in certain respects
(i) While the breadth of EEZ shall extend upto 200 nautical miles from the
coast line, the breadth of continental shelf may extend beyond the limits
of EEZ, i.e. 200 nautical miles. In such cases, the continental shelf covers
the area of EEZ. It follows that there can be a continental shelf where
there is no EEZ, but there cannot be an EEZ without a corresponding
continental shelf. Thus, the two institutions are linked together in modem
law because rights enjoyed by a State over its continental shelf would
also be possessed by it over the sea bed and subsoil of any EEZ which it
might proclaim^)
From it follows that the rights which the EEZ entails over the sea bed are
defined by reference to the regime laid down for the continental shelf.
(ii) In the regime of the continental shelf, the sovereign rights cover
essentially the natural resources of the sea bed and sub soil, whereas in
the EEZ these rights also cover the natural resources of the waters
suprajacent to the sea bed.
(iii) The rights of the coastal States over its continental shelf need not be
proclaimed since such rights exist ipso facto and ab initio. They do not
depend on any ‘express proclamation’ or occupation (effective or
notional). However, in the context of EEZ, the Convention has not made
a parallel provision. Thus the coastal States are required to make
declaration for asserting the rights in the regime of EEZ. The practice of
States has been to issue such instruments.,
((iv) The fisheries regime of EEZ concerning the conservation and utilisation of
living resources, including the question of access by other States to such
resources, does not apply to sedimentary species. Such species form part
of the natural resources of EEZ and are regulated by that regime.
f The above implies that there is little practical difference between the EEZ
and continental shelf within 200 nautical miles. The real distinction lies between
the EEZ within 200 nautical miles and the sea bed area outside the zone. )
■HIE HIGH SEAS &6

i High seas are that part of the sea which are beyond national jurisdictions.^
Art.86 of the 1982 U.N. Convention explains the concept of high seas as all parts of
the sea that are not included in the EEZ, in the territorial sea or in the internal
waters of a State, or in the archipelagic waters of an archipelagic StatejThus,
internal waters, territorial waters and EEZs, are excluded from the limits of the high
seas_,
Freedom of High Seas ^ ^^
In the ancient period, it was generally believed that high seas are a common
heritage of mankind and are not within the jurisdiction of any State. All the States
were free to use it. In the course of time, uses of oceans multiplied and the coastal
States claimed wider parts of the sea. In the name of the freedom of the high seas
the developed maritime countries started using high seas for activities such as naval
military operations, dumping radio-active water, testing nuclear weapons and
sending submarines equipped with nuclear missiles near the coasts of other States.
The freedom of the seas was always interpreted by the technologically advanced
and powerful military States as giving them a right to move across the wide open
seas to threaten smaller States or to subjugate and colonize their people.
It had, therefore, become necessary' to adopt the traditional doctrine of the
freedom of high seas to the present times and circumstances so as to accomodate
the interests of the developing and developed countries. The 1982 U.N.
Convention, thus, provides that freedom of high seas is exercised under the
conditions laid down bv this Convention and other rules of international law ylThe
Convention provides that the high seas shall be reserved for peaceful purposes (Art.
88). No State may validly purport to subject any part of the high seas to its
sovereignty (Art. 89)7)
Art. 87 of the Convention states that high seas are open to all States, whether
coastal or landlocked, and the freedom of the high seas comprises :
(a) freedom of navigation,
(b) freedom of overflight.
(c) freedom to lay submarine cables and pipelines,
(d) freedom to construct artificial islands/installations permitted under
international law,
(e) freedom of fishing, and
(f) freedom of scientific research.^
OF THE SEA 133
( (In contrast to 1958 Geneva Convention, the 1982 Convention contains two
additional freedoms, namely, freedom to construct artificial islands, and freedom of
scientific research).
The freedom of high seas “is not an absolute principle and has never been
applied in absolute terms; because it contains an inherent danger of abuse of rights,
it has long since been qualified in various ways”
(i) State practice demonstrate that coastal State may and do exercise
jurisdiction and control over foreign vessels beyond territorial waters in
order to prevent injury to their territory and to enforce their laws. The
classic example being the provision for the universal jurisdiction with
regard to crimes of piracyjQSee Right of Search and Seizure on High
Seas, infra).
(ii) The U.N. Conventions demonstrate that freedom of high seas is subject to
increasing international regulation. The emergence of the territorial sea
followed by EEZ reduced the limits of the high seas. Further, coastal
State’s rights in its continental shelf where it is under the high seas in
case it extends beyond 200 nautical miles EEZ, new regimes for pollution
control and scientific research, etc. have curtailed the freedom of high
seas. |
( (iii) Today, States are not free to take the resources of the sea and the seabed as
they desire, because the emphasis in international law now is on
“conservation and co-operation”. What is required in the new legal order
for the seas is a better balance of interests, a better balance as between
exploitation and conservation, as between free seas and clean seas, as
between peaceful uses and strategic considerations, and as between
coastal interests and flag interests^
Lauterpacht has said : “Freedom of the seas’ true purpose is to ensure
freedom of navigation, unhampered by exclusive claims of individual States, and
freedom of utilization of the sea resources to a degree to which they can be
equitably utilized by all”.
| Right of Search and Seizure on High Seas 6 ] 'i-
, The legal ordcjr on the high seas is based on the rule of international law
under which evfery ship on the high seas is required to have the nationality of and
to fly the flag of one State. The general rule is that the State whose flag ship is
flying (and of course is entitled to fly) has complete jurisdiction over the ship and
its crewjiArt. 94 of the Convention provides that "every State shall effectively
exercise its jurisdiction and control in
6. When can a State exercise the right of search and seizure on the high seas?
[C.L.C.-
91/95]
administrative, technical and social matters over ships flying its flag"
i Art. 95 provides that warships on high seas have complete immunity frojjj the
jurisdiction of any State other than flag State. However, this immunity is only for
ships, State owned or operated by State and used only 0n government non-
commercial service. ,
M
But this ‘exclusive jurisdiction’ is subject to some exceptions. Thus every
State has the right of search and seizure in high seas under two conditions (i) Right
of visit, and, (ii) Right of hot pursuit.
flight of Visit - A warship on high seas may board a foreign ship if there is a
reasonable ground for suspecting that ship is engaged in piracy, slave trade,
unauthorised broadcasting, or the ship is without nationality or misrepresenting the
flag or refusing to show its flag. If such reasonable ground exists, the warship may
proceed to verify the ship’s right to its flag. To this end, it may send a boat under
the command of an officer to the suspected ship. If suspicion remains after the
documents have been checked, it may proceed to a further examination on board
the ship. If the suspicion proves to be unfounded, and provided that the ship
boarded has not committed any act justifying them, it shall be compensated for any
loss or damage that may have been sustained [Art. 110, 1982 U.N. Convention],
Sea Piracy
^Piracy’ consists of any illegal act of violence or detention, or any act of
depredation, committed for private ends, by the crew or the passengers of a private
ship/aircraft, and (i) directed on the high seas, against another ship/aircraft or
against persons or property on board such ship/aircraft, (ii) against a ship, aircraft,
persons or property’ in a place outside the jurisdiction of any State [ArtJOL 1982
U.N. Convention],
As piracy is treated as an offence against all nations, every State has
jurisdiction over pirates. A pirate has always been considered outlaw, a hostis
humani generis, and rightly so, as a pirate has animo furendi (intent to plunder).;
Art. 105- thus, provides that on the high seas, or in any place outside the
jurisdiction of any State, every State may seize a pirate ship/ aircraft, and arrest the
persons and seize property on boards. The Courts of the State which carried out the
seizure may decide upon the penalties to be imposed, and may also determine the
action to be taken with regard to the ships, aircrafts and propertyjft may be noted
that such search/ seizure may be carried out only by warships or military aircrafts,
or other ships or aircraft clearly marked and identifiable as being on government
service and authorised to that effect (Art.l07)J
OF THE SEA 135
The act of piracy may be committed only by private ships or aircraft.

^ public vessel or aircraft may be considered pirate if it is intended by the
person in dominant control to be used for the purposes mentioned in Art. 101.
L A warship' is not regarded as a pirate ship. However if the acts of piracy
are committed on warship, whose crew has mutinied and taken control of
the ship/aircraft, it may be treated as pirate ship (Art. 102)/-
‘Right of Hot Pursuit63 International law recognizes the right of hot
^ pursuit on the basis that a Coastal State cannot be expected to allow a
foreign ship to evade its jurisdiction by escaping into the high seas. Hot
pursuit of a foreign ship may be undertaken when the competent authorities
of the State have good reason to believe that the ship has violated the laws
and regulations of that State. j
Under customary international law. pursuit must commence in internal
waters or territorial waters of the pursuing State. Under Art.23 of the Geneva
Convention, 1958. hot pursuit can commence in the contiguous zone of the
pursuing State: Art.lll of the 1982 U.N. Convention provides that the right of hot
pursuit shall also apply mutatis mutandis to violations in the EEZ or on the
continental shelf in case of violation of laws and regulations applicable to that
zone.
Hot pursuit begins only if the pursuing ship has satisfied itself by such
practicable means as may be available that the ship pursued or one of the boats or
other craft working as a team and using the ship pursued as a mother ship is within
the limit of the territorial sea/contiguous zone/ EEZ/Continental shelf. The pursuit
may only be commenced after a visual or auditory signal to stop has been given at a
distance which enabled it to be seen or heard by the foreign ship. LThe right of hot
pursuit may be exercised only by warships/military aircraft, or other ships or
aircraft clearly marked and identifiable as being on government service and
authorised to that effect.) ^
I Art. 11 lj also states that such pursuit may only be continued outside the
maritime zones of a State if the pursuit has not been interrupted. .This means;once
the hot pursuit is broken off, it cannot be resumed. Further, the right of hot pursuit
ceases as soon as the ship pursued, enters the territorial sea of its own State or of a
third State, j
Finally, there is a provision for payment of compensation for any
loss/damage caused where a ship has been stopped or arrested outside the territorial
sea in circumstances which do not justify the exercise of the right of hot pursuit.
6 a . Write a short note on : ‘Right of Hot pursuit’ [C.L.C.-92/94]

136 PUBLIC INTERNATION LA
(Îndian Position - As to right of hot pursuit, Sec. 9, para 5 of the India® Maritime
Zones (Regulation of Fishing by Foreign Vessels) Act, 19g] provides that where in
pursuance of the commission of any offence under this Act, any foreign vessel is
pursued beyond the limits of EEZ of India, the powers conferred on an authorised
officer may be exercised beyond such limits in the circumstances and to the extent
recognized by international law and State practice. Thus, even illegal fishing gives
right of hot pursuit in India, j
IMPORTANT ILLUSTRATIONS
[1] A murder was committed inside a foreign commercial vessel docked in Bombay
harbour. The vessel left the harbour for the high seas soon after it was pursued by
the police vessel belonging to the Bombay coast-guard and it ignored all the signals
given to it to stop. It entered the territorial waters of a neighbouring State before it
could be seized by the pursuing vessel of the Bombay coast guard still following,
which then seized the vessel and brought it to Bombay to face a trial. The legality
of the action taken by the Bombay coast guard was challenged. 61’
The Bombay coast guard initially acted rightly, as an offence had been
committed in the ‘territorial waters’ of India and it gave it the “right of hot pursuit
under Art. 111 of the 1982 U.N. Convention. But the action of the Bombay coast
guard turned out to be illegal, because the right of hot pursuit ceases once the
pursued ship enters the territorial waters of a neighbouring State (Art.Ill, para 3).
[Note : It would have made no difference if murder had been committed in India’s
contiguous zone’ because under Sec.5 of the Indian Maritime Zones Act, “security
of States” is enumerated as one of the areas in which India may exercise control
(murder in an area under the control of India can be injurious to the security of
India). However, if it is argued that the offence of murder is not included in the
word “security”, a right of hot pursuit did not accrue to the Bombay coast guard.]
[2] ‘A’, a foreign vessel carrying contraband gold, entered the territorial waters of
India near Bombay and delivered the contraband to local smugglers there. The
Bombay Policc came to know of it and challenged the ship under the effective
control of the Bombay Police. The ship which was running away, could not be
captured on the high seas; il could be captured only after it has entered the
territorial waters of the neighbouring State from where 1 A’ was arrested and
brought to Bombay for adjudication. The legality of the action taken by the
Bombay Police was challenged. Would it make any difference in the position if the
6 b. A question based on this illustration. [C.L.C.-91]

OF THE SEA 137
vessel ‘A’ after entering the territorial waters of the neighbouring State, re-entered
the high seas and it was then seized by the Bombay Police 7 60
The action of the Bombay Police is illegal because under Art.Ill, para 3 of
the 1982 U.N. Convention the right of hot pursuit ceased when the ship enters the
territorial waters of a neighbouring State. The Bombay police seized the ship ‘A’
after the right of hot pursuit had ended.
The right of hot pursuit may only be continued outside the maritime zones of
a State if the pursuit has not been interrupted. This means once the hot pursuit is
broken off, it cannot be resumed. Thus, even if the vessel ‘A’ re-enters the high
seas, the capture of it by the Bombay Police is illegal, as the right of hot pursuit
which accrued to the Police had ended when the vessel ‘A’ entered the another
State’s territorial waters.
[3] A foreign ship while passing through the Indian territorial waters was involved in
illicit trade of narcotic drugs. By the time the Indian authorities could realize the
illegal activity, the foreign ship entered the high seas. Indian coast-guard ships
pursued and captured it and brought it back to the Indian port for trial. The liability
of the foreign ship under the 1982 U.N. Convention was in question. 6d
Under the 1982 U.N. Convention, the hot pursuit must commence in the
territorial waters (or contiguous zone or EEZ or continental shelf) of the pursuing
State. In the above illustration, by the time the Indian authorities could realize the
illegal activity, the foreign ship entered the high seas. Thus, the late action taken
by the Indian authorities would not make the foreign ship liable to the jurisdiction
of the Indian courts.
It may be noted that the 1982 U.N. Convention imposes duty upon all States
to cooperate for the repression of piracy, slave trading, etc. So is also the case of
illicit traffic in narcotic drugs or psychotropic substances (Art. 108). Thus, the
Indian courts might have a jurisdiction regarding the trial of the foreign ship, on
the basis of the above provisions in the Convention.
[4J “Although there can be a Continental Shelf where there is no EEZ, there cannot be an
EEZ without a corresponding Continental shelf. It follows that for juridical and
practical reasons, the distance criterion must now apply to the continental shelf as
well as to the EEZ. and this is quite apart from the provisions as to distance in para
1 of Art.76 (Sea Law Convention, 1982) - I.C.J. in Libya/Malta case concerning the
Continental shelf (ICJ, Rep. 1985, p. 13).
6 C . A question based on this illustration. [C.L.C.-93/94/95/96]

[C.L.C.-97]
6d. A question based on this illustration.
138 PUBLIC INTERNATION LA
Critically examine the above observations of the International Court 0f Justice and
consider whether they entail any departure from the law g, expounded by the court
in the 1969 Continental Shelf Cases1.
In the Libya/Malta case, the ICJ observed : As the 1982 Convention
demonstrates the two institutions, continental shelf and EEZ are linked together in
modern international law. Since the rights enjoyed by a State over its continental
shelf would also be possessed by it over the sea bed and subsoil of any EEZ which
it might proclaim, one of the relevant circumstances to be taken into account for the
delimitation of the continental shelf of the State is the legally permissible extent of
the EEZ appertaining to that State. This does not mean that the concept of
continental shelf has been absorbed by that of the EEZ; it does however signify that
greater importance must be attributed to elements such as distance from the coast
which are common to both concepts.
In the above case, with reference to the delimitation of the continental shelf,
the Libya argued that natural prolongation of land territory into and under the sea is
still a primary' basis of title to continental shelf, while Malta argued that the
distance principle as laid down in Art.76 of the 1982 Convention ('each State can
claim continental shelf upto a distance of 200-nautical miles from the coastline’)
represents the truth. The principle of natural prolongation was referred to by the
Court in 1969 Continental Shelf cases; the prolongation was defined by reference to
physical features, geological or bathymetric. The Court in the Libya/ Malta case
held that both natural prolongation and the distance are essential elements in the
juridical concept of the continental shelf. What it means is that where natural
prolongation of the continental shelf does not exceed 200 nautical miles from the
shore, it is defined by reference to distance from the shore, irrespective of the
physical nature of the intervening seabed and subsoil. The court, therefore, felt that
the concepts of natural prolongation and distance are not opposed but
complementary to each other. Thus, natural prolongation as well as distance from
the coast are relevant considerations for delimitation of the opposite continental
shelves.
IMPACT OF UNCLOS III/ 1982 U.N. CONVENTION 8
( The Law of the Sea was in the state of disorder burdening on chaos JjefaiC the
beginning of the Third U.N. Conference on the Law of the Sea
7. A question asked in the I.A.S.-97.

8. Elaborate the new concepts laid down by the Third U.N. Conference on the Law of
the Sea (UNCLOS HI). [I.A.S.-
94]
OF THE SEA 139
^JHCLOS III). There were conflicting claims on the breadth of territorial sea.
nature and extent of coastal jurisdiction over fisheries, regime for marine scientific
research, coastal State rights and obligations concerning the preservation of the
marine environment, disputes as to the outer edge of the continental shelf,
disagreements concerning the rule for boundary limitation, etcj
UNCLOS III, the longest conference in the history of international law,
made a major contribution to the international rule of law.) The conference is not
merely an attempt to codify technical rules of law. It is a resource conference; it is
a food conference; it is an environmental conference; it is a conservation
conference; it is an economic conference; it is a maritime boundary delimitation
conference; etc. It is a conference which regulates all the uses of the oceans by
humanity. Most importantly, it is a conference which provides for the peaceful
settlement of disputes concerning the oceans.
The Convention on the Law of the Sea, 1982, an outcome of UNCLOS III, is
a comprehensive “constitution” of the oceans embodying hundred of legal
rights/duties for all uses of the sea. Even before it came into force in 1994, a large
part of it has already became part of customary international law.
I (i) Impact on National Policy and Legislation-^ The Convention has an impact
on national laws of States. Many States have adopted or are adopting
legislation consistent with the provisions of the Convention. For instance,
by the end of 1985, seventy jiine nations have made in their municipal
laws the EEZ upto 200 nautical miles as authorised by the
ConventionjThe General Assembly in 1988 adopted a resolution wherein
it called on States to observ e the provisions of the Convention w hen
enacting their national legislation. '
(ii) Impact on International Law - The International Court of Justice has taken
note of the importance of the Convention.; In Libya/ Malta case (ICJ.
Rep. 1985), it observed : “The 1982 Convention is of major importance,
having been adopted by an overwhelming majority of States, and hence it
is clearly the duty of the Court even independently of the references
made to the Convention by the parties, to consider in what degree any of
its relevant provisions are binding upon the parties as a rule of customary
international law”.
140
A number of international organizations have undertaken studies of the

implications of the Convention for their activities as well as for multilateral treaties
related to their mandates.
Conclusions
7
The 1982 U.N. Convention serves as an excellent guideline to the regime of
the law of the sea. Further, the Convention has endeavoured to achieve the STATE RESPONSIBILITY
synthesis between the exclusive claims of developing countries and inclusive claims
of major maritime powers. The institution of Exclusive Economic Zone (EEZ) is a
landmark achievement of the Convention""^
There were, however, some provisions which proved to be an obstacle to Basis of State Responsibility
universal participation in the Convention. A number of industrialized countries The State as a sovereign person can have no legal responsibility for some of its acts
objected to mandatory and regulatory approach to “deep sea bed mining . Further, towards its subjects. But the position is different with respect to external
the Convention is silent or unclear on certain issues, viz. innocent passage of responsibility of a State, ^tate responsibility is a fundamental principle of
warships, the provision relating to delimitation of continental shelf between international law, arising out of the nature of the international legal system and the
adjacent States, etc. □ doctrines of State sovereignty and equality of States. It provides that whenever one
State commits an internationally unlawful act against another State, international
responsibility is established between the two. State responsibility means the
responsibility of States for internationally wrongful actSj
, If a State by its act or omission commits a breach of an international
obligation, it incurs international responsibility. Thus, international responsibility is
distinct from the international obligations; the latter are ‘primary’ rules, the breach
of which is the source of international responsibilitj/jThe former are ‘secondary’
inasmuch as they determine the legal consequences of failure to fulfill obligations
established by the primary rules. However, all breaches are not treated in the same
way. The gravity of a wrongful act and its consequences affect responsibility.
I The law of State responsibility is not as settled as the municipal law
regarding individual responsibility. The former is still in evolutionjThe subject has
been under consideration of the International Law Commission since 1955. The
Commission has drafted a composite set of articles on responsibility for
internationally wrongful acts. At the same time, certain rules of international law
regarding State responsibility can be formulated.
In the Spanish Zone of Morocco claims, Judge Huber emphasised that

responsibility is the necessary corollary of a right. All rights of an international
character involve international responsibility. In Chorzow Factory case
[140-i]
140-ii STATE RESPONSIBILITY
(Jurisdiction), PCIJ (1928) Series A, No. 9, p. 21, the Court observed that it is a
principle of international law (and even a greater conception of law) that the
breach of an agreement involves an obligation to make reparation, even if this is
not stated in the convention itself.
L-Aga' n. *n Corfu Channel case, ICJ Reports, 1949, p. 23, the International
Court of Justice held Albania liable for certain omissions, in particular the
absence of a warning of the danger of mines laid in her territorial waters. It stated
that Albania is responsible under international law for the explosions which
occurred, and for the damage and loss of human life which resulted from them
and that there is a duty upon Albania to pay compensation to the United
Kingdornj
, The wrongs or injuries which give rise to State responsibility may be of

various kinds, viz. for breach of treaty; in respect of contractual obligations;
regarding expropriation of property; for international delinquency; acts
endangering em)fronment, international peace (aggression); denial of national
independence; violation of other norms of international law (viz. damage to State
property).jThus, State responsibility may incur during the time of war as well as
during the time of peace. As far as State responsibility in time o f war is
concerned, it is well recognized under the Hague Convention of 1907. However,
State responsibility during the time of peace has not been properly laid down
under customary international law. i
Nature (Constituent Elements) of State Responsibility <j£ '<: y' j

_The essential characteristics of responsibility hinge upon certain basic factors.
First, the existence of an international legal obligation in force as between two
particular States; secondly, that there has occurred an act/omission which vio lates
that obligation and which is imputable to the State responsible, and finally that
loss or damage has resulted from the unlawful act or omission. The State should
have been bound by the obligation in question at the time the act/omission
occurs^
It is, of course, international law that determines what constitutes an

internationally unlawful act, irrespective of any provisions of municipal law. The
State responsibility concerning international duties is, therefore, legal
responsibility, for a State cannot abolish or create international law in the same
way that it can abolish or create municipal law.
s Regarding the constituent elements of international responsibility, certain
theories have been in voguej

PUBLIC INTERNATIONAL LAW 140-iii
(a) ‘Damage’ Theory

Failureto fulfill an international obligation is not enough to make a State
under international law. The claiming State must have suffered some
^•‘responsible”
‘damage’ on account of the failure of acting State. A certain conduct i s forbidden
because it is likely to cause damage to other subjects; however State ‘A’ only
becomes responsible towards State ‘B’ if, as a result of forbidden act of State ‘A’,
State ‘B’ suffers damage_j
The requirement of damage is an expression of the fundamental legal
principle that no one can maintain an action unless he has an interest of a legal
nature. It is always the element of damage suffered by one State that entitles that
particular State to claim against the State which caused the damage, and de mand
redress J lowever, the International Law Commission’s Draft Code on State
Responsibility, 2001 does not specifically include ‘damage’ as a 'separate
constituent element of State responsibility. It is implicit in Art. 2 of the Draft
Code:
“There is an internationally wrongful act of a State when

conduct consisting of an action or omission: (a) is attributable
to the State under international law; and (b) constitutes a
breach of an international obligation of the State.” |
However, Part II of the Draft Code (‘Content of the International Responsibility
of a State’) mentions ‘damage’ as legal consequences of an internationally
wrongful act.jArt. 31 provides that the responsible State is under an obligation to
make full reparation for the injury caused by s uch act. Injury includes any
‘damage’, whether material or moral, caused by such actj
(b) ‘Fault’ Theory / ‘Risk’ Theory
^Jhere are contending theories as to whether responsibility of the State for
unlawful acts or omissions is strict or whether it is necessar y to show some fault
or intention on the part of the officials concerned. /
The principle of objective responsibility (‘risk’ theory) maintains that the
liability of the State is strict. Once an unlawful act has taken place, which has
caused injury and which has been committed by an agent of the State, that State
will be responsible in international law to the State suff ering the damage
irrespective of good or bad faith.)The principle of subjective responsibility
(‘fault’ theory) emphasised that an element of intentional (dolus) or negligent
(culpgX conduct on the part of the person concerned is necessary before his
140-iv STATE RESPONSIBILITY
State can be rendered liable for any injury caused. This view holds that the
presence of malice or culpable negligence is a condition precedent, j
In general, rules of international law do not contain ‘a general floating

requirement of malice or culpable negligence as a condition of responsibility’
The doctrine and practice support the objective theory (i.e. strict liability). This
is right, particularly in view of the proliferation of State organs and agencies
, In the Corfu Channel case, the Court was concerned with Albania’s
knowledge of the laying of mines and the question of prima facie responsibility
for any unlawful act committed within the territory of the State c oncerned
irrespective of attribution. The Court did not reach its conclusion by an enquiry
into the mental state~oF any individual organ or agent of the Albanian
Government. The question of fault, however, was invoked by the dissenting
judges in their individual opinions, by saying that: “It cannot be concluded from
the mere fact of the control exercised by a State over its territory and waters that
that State necessarily knew, or ought to have known, of any unlawful act
perpetrated therein ... This fact, by itself and apart from other circumstances,
neither involves prima facie responsibility nor shifts the burden of proof.” j
Oppenheim is of the opinion that “an act of a State injurious to another

State is nevertheless not an international delinquency if committed neither
willfully and maliciously nor with culpable negligence.” In support of this
opinion, the decision in Corfu Channel case is cited. And it is further added
that)there is an increasing tendency among modern writers to reject the theory of
strict liability and to base the responsibility of the States upon fault.j But Starke
is of the opinion that “it is difficult to accept so wide a conclusion and so
invariable a requirement.”
. In Howe Missionary Society Claim, 1 ILR, p. 173 (1920), the tribunal noted
that it was established in international law that no government was responsible
for the acts of rebels where it itself was guilty of no breach of good faith or of no
negligence in suppressing the revolt. This is a leading case supporting the fault
theory. .
■ There are cases where circumstances demand that wilfulness or malice, or

negligence may be necessary to render a State responsible, for example, if a State
knowingly connives in the wrongful acts of insurgents/rioters, it would become
liable. There are also certain international conventions establishing rules in
respect of sea or space accidents which allocate responsibility on the basis of the
fault of the individual operator (e.g. 1971 Convention on
pUBL'.C INTERNATIONAL LAW 140-v
International Liability for Damage Caused by Space Objects), At the same time,
there are cases where strict or absolute liability is needed. For instance, the safety
of international community cannot be ensured under a system whereby a State
would be responsible only if it were proved to be negligent in the management of
nuclear fuels and installations (Starke)^j
of‘absolute liability’ or ‘risk’ establishes the liability of States

arising uui ui me performance of certain activities which are lawful but create
serious risks, such as spatial and nuclear activities. However, the principle of risk
is applied, not as a general principle of responsibility, but in circumstances and
conditions which are clearly defined in international conventions.|iFor instance,
the principle of strict liability finds application in the Convention o n International
Liability for Damage Caused by Space Objects, 1971. Under it, a launching State
is absolutely liable to pay compensation for damage caused by its space objects
on the surface of the earth or to aircraft in flight. A series of treaties have
established a regime of strict liability for injurious consequences arising out of
peaceful uses of nuclear energy^J
It may be noted that State responsibility for risks resulting from lawful
activities only results from conventional law, has no basis in cu stomary law or
general principles and since it deals with exceptions rather than general rules,
cannot be extended to fields not covered by the specific instruments.
( It is clear from the above discussion that there is no single basis of
international responsibility which may be applicable in all circumstances. ,
Act of State (Rules of Attribution/Imputation)

Împosing upon the State absolute liability wherever )fficial is involved
encourages that State to exercise greater control over its various departments and
representativesjilt also stimulates moves towards complying with objective
standards**of conduct in international relations.
[2t is important to note that a State is not responsible under international
law for all acts performed by its nationals. If an Englishman were to attack and
injure a Frenchman on holiday in London, the UK would not be held liable for the
injury caused, unless the offender were, for example, a policeman or a soldier. A
State is responsible only for acts of its servants that are imputable or attributable
to it. Imputability is the legal fiction which assimilates the actions or omissions
of State officials to the State itself and which renders the State liable for damage
resulting to the property or person of an alien. Responsibility begins where
imputability ends.j
140-vi STATE RESPONSIBILITY
the 11
^ Article 4 of tfiiTlLC Code, 2001, provides that the conduct of any State
organ (person/entity) shall be considered an act of that State unde
international law, whether the organ exercises legislative, executive, judicial, or
any other functions. Conduct of persons or entities (though not an organ of
the State) exercising elsments-of governmental authority shall also be
considered an act of State (Art. 5). This covers entities such as public or public
utility corporations. Similar is the position with respect to conduct of organs
placed at the disposal of a State by another State; the former State would be
liable (Art. 6).j
The breaches of duty by State agencies may be attributed to the State

according to rules of international law, even though under municipal law such acts
would not have been attributed to that State, because, for example, the agency
concerned had acted outside the scope of its authority.
t Thus, to examine whether a State is liable for the delinquencies committed

by its officials/organs, first, it must be ascertained whether the act in question of
the official of the State organ had not a general authority under the municipal law
of that State. Once it is found that such official/organ had such general authority,
then, it must be ascertained whether the wrong can be attributed to the State
according to international law. At this stage, international law operates
independently. It is immaterial if the official or State organ had exceeded the
authority conferred by municipal law. Even then, at international law, the act will
be imputed to the State and the State will be held
liablej
<D
jThis principle is illustrated in Youman’s case, 3 ILR, p. 223 (1926), in whicnThe
militia ordered to protect threatened American citizens in a Mexican town, instead
joined the riot, during which the Americans were kill ed. The troops in fact had
disobeyed the orders of the superiors. Yet, it was held that the Mexican
Government was responsible for the acts of the soldiers, even though the soldiers
had exceeded the authority given to them. Thus, a State may become respons ible
for an act which was not authorised by the authorities of the Statej
However, in case of an act which is completely ultra vires (i.e. beyond the
legal capacity of the official involved), no attribution of liability arises. Where an
incompetent State agency commits ultra vires acts, it cannot be said to have acted
on behalf of the State. But in some circumstances, a State may become
responsible for the wrongs, if such wrongs were made possible by the omission or
default of some other official or State organ which could have
PUBLIC INTERNATIONAL LAW 140-vii
prevented the occurrence of the offence. The State may incur an indirect
responsibility arising out of ultra vires acts.
L Article 7 of the ILC Code, 2001, also provides that the conduct of a State
orân or of a person/entity empowered to exercise elements of the governmental

authority shall be considered an act of the State if the organ, etc. acts in that
capacity, even if it exceeds its authority or contra venes instructions. This article
appears to lay down an absolute rule of liability, one not limited by reference to
the apparent exercise of authority^
Acts Committed by Private Pen

Although private individuals are not regarded as State officials so that the ^tate is
not liable for their acts, the State may be responsible for failing to exercise the
control or diligence necessary to prevent such attacks (or if it ratifies such
unlawful acts) or punishing the offender. Thus, the State responsibility for acts of
private individuals is based on ‘fault’ theory, j
In the Iran case (United States ofAmerica v Iran), ICJ Rep. (1980), p. 3, the
International Court noted that the initial attack on the US Embassy by militants
could not be imputable to Iran since they were clearly not agents or organs of the
State. However, the subsequent approval of the Ayatollah Khomeini and other
organs of Iran to the attack and the decision to maintain the occupation of the
Embassy translated that action into a State act. The militants thus became agents
of the Iranian State for whose acts the State bore international responsibility.
, Under the ILC Code of2001, a conduct of a person or group of persons
directed or controlled by a State constitutes an act of State (Art. 8). The
responsibility of a State also arises if a person/group of persons was in fact
exercising elements of the governmental authority in the absence of the official
authorities and in circumstances which justified the exercise of those elements of
authority (Art. 9). For example, discharge of such public functions during a
military invasion in the absence of official bodies, or during natural disasters,
such as earthquakes or floods in the absence of officials^
,Thus, the activities of private persons are attributed to the State only in
exceptional circumstances where there is some genuine connection of such
private activities with State activities That means unlike the State responsibility
for acts of its organs or officials which is extensive, responsibility for private
persons is limited because in practice it is impossible for a State to prevent a
private person from committing injurious acts against a foreign State or aliens
living in that State.
140-viii, STATE RESPONSIBILlTl
Acts Committed by Mob-violence, Insurgents/Civil War

L State responsibility for acts of mob-violence is the same as for acts 0f private
individuals. Generally, State may be held responsible for mob -violence only
when it has not made due diligence to prevent it. Similar is the position when
injuries are sustained by aliens on account of insurrections and civil wars. Thus,
in general, the acts of insurgents cannot be attributed to the State. |
It may be noted that if the insurgents succeed in overthrowing the

established government, the State becomes responsible for the acts of the rebel
forces since the revolution commenced Ârt. 10 of the 2001 Draft Code also lays
down that the conduct of an insurrectional movement which becomes the new
government of a State shall be considered an act of that State under international
law. j
‘Due diligence’ test is rather ambiguous and uncertain. Due diligence to

prevent mob-violence, revolution, etc. depends upon the time, facts and
circumstances (Fenwick). “The State is responsible for injuries caused to an alien
in consequence of riots, civil strife or other internal disturbances if the
constituted authority was manifestly negligent in taking the measures which, in
such circumstances, are normally taken to prevent or punish t he acts in question”
(Rapporteur for the International Law Commission on State Responsibility,
Gracia Amador).
There is some authority for the view that the granting of an amnesty to
rebels constitutes a failure of duty and an acceptance of responsibility for their
acts on the basis of a form of estoppel; but in many cases this inference will be
unjustified (Brownlie). In the Case concerning United States Diplomatic and
Consular Staff in Tehran, ICJ Rep. (1980), p. 3, the rioters and other militants
attached and occupied the U.S. diplomatic and consular premises in Iran. Iran /T \
was held responsible for their acts (see above).
Cairo doctrine - The general principle that the State is not responsible for losses
incurred by aliens in time of civil war became associated in Latin America with
the name of the Argentine publicist Calvo. According to this doctrine, during
civil war the State is not responsible for the losses suffered by the alien persons
because if this responsibility is accepted then big nations will get an excuse to
intervene in the independence of weaker States. Also, it would establish an
unjustifiable inequality between nationals and foreigners (Fenwick). ^
PUBLIC INTERNATIONAL LAW 140-ix
JBut many States such as America and England do not accept completely the
above doctrine. Since the revolts or insurrections are frequent in the States, the
presumption that State made due diligence becomes weakj
State Responsibility for Act of Another State

Article 16 of the 2001 Draft Code lays down that a State which aids or assists
'"another State in the commission of an internationally wrongful act by the latter
is responsible (internationally) if that State does so with knowledge of the
circumstances of the wrongful act and the act would be internationally wrongful
if committed by that State^j
I Article 17, similarly, provides that a State which directs and controls
another State in the commission of an internationally wrongful act by the latter is
internationally responsible for that act. Art. 18 lays down that a State which
coerces another State to commit an act is internationally responsible for that act
if the act would, but for the coercion, be an internationally wrongful act of the
coerced State, and the coercing State does so with the knowledge of the
circumstances of the actj
International Crimes and Delicts

|A distinction has been drawn between international crimes and international
delicts within the context of internationally unlawful actSj_Art. 19 of the ILC
Draft (1980) provides that all breaches of international obligations are
internationally wrongful acts. However, an internationally wrongful act which
results from the breach by a State of ‘an international obligation so essential for
the protection of fundamental interests of the international community that its
breach is recognised as a crime by that community as a whole’ constitutes an
international crime. All other internationally wrongful acts are international
delicts, according to the Draftj
[Ârticle 19 gives some examples of situations that may give rise to

international crimes, viz. aggression, the establishment or maintenance by force
of colonial domination, slavery, genocide, apartheid and massive pollution of the
atmosphere or of the seasj
The question as to whether States can be criminally responsible is highly

controversial. Brownlie, for example, argues that the concept is of no legal value
and cannot be justified in principle. State responsibility was limited to the
obligation to compensate. However, others have argued that particularly since
1945, the attitude towards certain crimes by States has altered so as to bring it
within the realm of international law. The Rapporteur in his commentary to Art.
19 pointed to three specific changes since 1945 in the context: first, the
140-x PUBLIC INTERNATIONAL LAW 140-xi
STATE RESPONSIBILITY
development of the concept of jus cogens as a set of principles from which no serious breach, nor render aid or assistance in maintaining that situation. Other
derogation is permitted; secondly, the rise of individual criminal responsibility legal consequences of an internationally wrongful act will also apply to such
directly under international law; and thirdly, the UN Charter and its provision for serious breach.
enforcement action against a State in the event of t hreats to or breaches of the Legal Consequences of Breach of International Obligation
peace or acts of aggression.
(Reparation for Injury)
A rather different distinction in the area of responsibility was drawn in the The legal consequences of an internationally wrongful act have been set out L[h
Barcelona Traction case, ICJ Rep. (1970), pp. 3, 32, where the Court referred to the Part Two of the 2001 Draft CodejThe legal consequences do not affect the
obligations of a State tow'ards the international community as a whole as distinct continued duty of the responsible'State to perform the obligation breached (Art.
from those vis-a-vis another State in the field of diplomatic protection. By their 29). The State responsible for the internationally wrongful act is under an
very nature the former are the concern of all States (e.g. aggression and human obligation to cease that act (if it is continuing), and, to offer appropriate
rights violations); they are obligations erga omnes. assurances and guarantee of non-repetition (if circumstances so require) (Art. 30).
However, in view of the International Law Commission, international The responsible State may not rely on the provisions of its internal law as
crimes always constituted a breach of an obligation erga omnes, but it could not be justification for failure to comply with its obligations (Art. 32).j
said that the breach of an obligation erga omnes always constituted an As far as the scope of international obligations is concerned, it is laid down
international crime (for instance, the breach of the rules of the law of the sea is in Art. 33(1) that the obligations of the responsible State may be owed to another
not necessarily an international crime). The definition of international crime State, to several States, or to the international community as a whole, depending
adopted by International Law Commission partakes of the character of jus cogens in particular on the character and content of the international obligation and on
in the law of treaties. the circumstances of the breach.
The distinction between international crimes and delicts entails the In many cases the legal consequences of a breach of a substantive rule of
following consequences as described by the Special Rapporteur Robert Ago: In international law will be laid down by that rule itself. In ceitain circumstances, all
respect of international crimes the breach of the obligations would entitle subjects State parties to the treaty or bound by the relevant rule of international customary
other than the State directly injured to invoke the responsibility entailed by the law may be regarded as ‘‘injured States , thus enabling them to claim
breach, while in case of international delicts only the State directly injured in its compensation (for instance, in the case of human rights treaties). In certain
own interests has the right to submit a claim invoking the State responsibility. situations, the ‘international community as a whole’ may be interested in th e
It may be noted that in the ILC Draft Code of2001, international crimes are matter (collective responsibility) e.g. international crimes.
not expressly mentioned. The issue of State criminal responsibility is a complex Article 33(2) of the Draft Code lays down that ‘This Part is without
one and is unlikely to be easily resolved. It may also be noted that recently prejudice to any right, arising from the international responsibility of a State,
‘International Criminal Court’ (ICC) has been set up to tackle this complex issue. which may accrue directly to any person or entity other than a State . Thus, an
international organization (e.g. U.N.) can claim compensation in respect of an
Under the 2001 Draft Code, Art. 40 provides for ‘serious breaches of
obligations under peremptory norms of general international law’. A breach of injury caused to any of its members serving in a State from that State which is
such an obligation is serious if it involves a gross or systematic failure by the responsible for such injury.^ ^
responsible State to fulfill the obligation. So far as the particular consequences of Reparation ^ Ukfcx. & - • )
a serious breach of an obi igation are concerned, Art. 41 provides for that the l_A State discharges the responsibility incumbent upon it for breach of an
States shall cooperate to bring to an end through lawful means any serious breach. international obligation by making reparation for the injuries caused. Injury
Further, no State shall recognize as lawful a situation created by a includes any damage, whether material or moral, caused by the internationally
wrongful act of a State (Art. 31, ILC Draft Code 200l)j
140-xii STATE RESPONSIBILITY
jThe basic principle with regard to reparation, or the remedying of a breach

of an international obligation for which the State concerned is responsible was
laid down in the Chorzow Factory case,Pp IJ. Series A, No. 17 (1928), where the
Court emphasised that preparation must, as far as possible, wipe out all the
consequences of the illegal act and re-establish the situation which would, in all
probability, have existed if that act had not been commi tted, j
i The forms of reparation mentioned in 2001 Draft Code are: Restitution,

Compensation, and, Satisfaction. |
L (a) Restitution
Restitution is the obvious method of performing the reparation, since it aims to
re-establish the situation which ought to exist had the wrongful act not been
committed^rt. 35 of the Draft Code, however, lays down a condition: ‘Provided
and to the extent that restitution (a) is not materially impossible; (b) does not
involve a burden out of all proportion to the benefit deriving from restitution
instead of compensation’ (i.e. a burden disproportionate to the benefit which the
injured State would gain from restitution instead of compensation)^
, Restitution may be by: performance of the breached obligation, revocation
of the unlawful act, return of a property wrongfully removed or abstention from
further wrongful conduct. In the Chorzow Factory case, the Court observed that
restitution is the normal form of reparation and indemnity (compensation) could
only take its place if restitution in kind is not possible^
L While restitution has occurred in the past, it is rather rare today, if only
because the nature of such disputes has changed. A large number of cases now
involve expropriation disputes, where it is politically difficult for the State
concerned to return to multinational companies the expropriated propertyj
( Brownlie notes that in certain cases, such as the illegal possession of
territory' or acquisition of objects of special cultural, historical or religious

significance, restitution may be the only legal remedy. For instance, in the Temple
of Preah Vihear case, ICJ Rep. (1962), p. 6. ,
(b) Compensation (Indemnity)

l_ This is the most usual form of reparation since money is the common measure of
valuable things. Art. 36 of the 2001 Draft Code lays down that the State
responsible is underlin obligation to compensate for the damage caused thereby,
insofar as such damage is not made good by restitution.
PUBLIC INTERNATIONAL LAW 140-xiii
The compensation shall cover any financially assessable damage including loss of
profits insofar as it is established^)
L_Since monetary compensation must, as far as possible, wipe out all the
consequences of the illegal act and correspond to the value which a restitution in
kind would bear, loss of profits are included and the value of a confiscated
property must be determined at the time of payment, (instead of at the time of
confiscation). ^Monetary compensation is, thus, intended to replace the value of
the asset confiscated and would probably include loss of expected profits, but not
more remote prospective gainsjThe basic test is the certainty of the damage. It is
not essential that the damage should have already taken place for compensation to
be recoverable (for instance, the future damaging consequences which will result
from nuclear fall-out warrant compensation).
Punitive damages go beyond the concept of reparation as such, j Monetary
compensation may also be paid for non-material damage. In the Rainbow Warrior
case, 82 ILR(1990), p. 499, the Arbitral Tribunal held that 'an order for the
payment of monetary compensation can be made in respect of the breach of
international obligations involving... serious moral and legal damage, even though
there is no material damage.^
(c) Satisfaction
j This form of reparation is appropriate for non-material damage or moral injury
to the dignity or personality of the State. This would include official apologies,
the punishment of guilty officials or the formal
acknowledgement or judicial declaration of the unlawful character of an acy
U^rticle 17 of the 2001 Draft Code lays down that the responsible State is
under an obligation to give satisfaction for the injury caused insofar as it cannot
be made good by restitution or compensation. Satisfaction may consist in an
acknowledgement of the breach, an expression of regret, a formal apology, etc.
Satisfaction, however, shall not be out of proportion to the injury and may not
take a form humiliating to the responsible StateJ
yjt has been a long established practice of States and international courts of
using satisfaction as remedy for the breach of an international obligation,
particularly where moral or legal damage had been done directly to the StatejJn
the Rainbow Warrior case, the tribunal concluded that the public condemnation of
France for its breaches of treaty obligations to New Zealand made by the tribunal
constituted ‘appropriate satisfaction’^
140-xiv STATE RESPONSIBILITY
In some cases, a party to a dispute will simply seek a declaration that the
activity complained of is illegal. In territorial disputes, for example, such
declarations may be of particular significance.
) Guarantee against repetition - (The International Law Commission has provided in
its Draft Convention (1984) that one of the forms of reparation is that the injured
State may require the State committing a wrongful act to provide appropriate
guarantees against repetition of the act. The nature and effect of such guarantees
has not been specified. The recent Draft Convention of 2001 also mentions
‘guarantee of non-repetition} (Art. 30, see above), however, not under the
heading of ‘Reparation’.
*
Question of Appropriate Reparation (Restitution or Indemnity)
^The issue whether restitution-in-kir.d or indemnity (compensation) should take
precedence in the international law of reparations has been raised in several
cases^
In BP v Libya, 53 ILR, p. 297, there was expropriation by Libya of BP oil
concessions. The tribunal emphasised that restitution ( restitutio in integrum)
would not be a proper remedy in case of confiscation of a foreign concession in
breach of the concession agreement. The responsibility incurred by the defaulting
party for breach of an obligation to perform a contractual undertaking is a duty to
pay damages. The concept of restitution has been employed merely as a vehicle
for establishing the amount of damages.
However, in Texaco Overseas Petroleum Co. case, 17 ILM, 1978, p. 1,
which similarly involved Libyan nationalization of oil concessions (foreign), the
arbitrator held that restitution-in-kind under international law (and indeed under
Libyan law) constituted the normal sanction for non-performance of contractual
obligations and it is inapplicable only to the extent that restoration of the status
quo ante is impossible. The parties, in fact, settled the dispute by Libya supplying
152 million dollars worth of crude oil.
This is an approach that in political terms is unlikely to prove acceptable to
States since it appears a violation of sovereignty. The problems of enforcing such
restitution awards against a recalcitrant State may be imagined. ^The correct
position is that in such cases, the arbitral tribunal will take into consideration the
practical difficulties or inconvenience which may be involved in restitution -in-
kind and select pecuniary compensation instead. For these reasons, although
restitution-in-kind remains the basic form of reparation, in practice, and i n great
majority of cases, monetary compensation takes its place_j
PUBLIC INTERNATIONAL LAW 140-xv
. In the case concerning Military and Paramilitary Activities in and ngainst

Nicaragua [Nicaragua v USA. ICJ Rep., 1986, p. 14], the International Court of
Justice held United States liable for acting in breach of its obligations under
customary international law by training, arming, equipping, financing and
supplying the contra forces or otherwise encouraging, supporting and aiding
military and paramilitary' activities in and against Nicaragua. The Court called
upon the United States to immediately cease and refrain from such activities and
make reparation to the Republic of Nicaragua for all injury caused to Nicaragua.
It was decided that the form and amount of such reparation, failing agreement
between the Parties, would be settled by the Courtj
Claim of Damages: State/Individual/Organization

jWhen a State claims damages against another for delinquencies, the damage that
can be claimed by the State will not be identical with that which can be claimed
by the individual. In the Chorzow Factory case (1928), the Court observed:
“Rights or interest of an individual the violation of which right causes damage are
always in a different plane to rights belonging to a State, •which rights may also
be infringed by the same act. The damage suffered by an individual is never,
therefore, identical in kind with that which will be suffered by the State; it can
only afford a convenient scale for the calculation of the reparation due to the
State.’}
In several cases, two separate heads of damages, one in respect of the

damage suffered by individuals and the other in respect of injury to the claimant
State have been awarded. For instance, in the Lusitania Death Claims
- the case arose out of the sinking of the vessel The Lusitania by a German
submarine in 1915.
Similarly, in I’m Alone, PCIJ, (1928), Series A, No. 17(1) W.C.R. 646, i am
Alone’, a British ship of Canadian registry, was sunk by a U.S. Coast Guard
Vessel, as it was engaged in the smuggling activities in the United States. The
ship was managed almost entirely by the U.S. citizens. The Canadian government
complained of the sinking of ship. The Commission appointed to look into the
Canadian claim, observed that in view of the facts, no compensati on ought to be
paid in respect of the loss of the ship or the cargo, to the management of the ship.
The act of sinking the ship, however, by the U.S. officers was an unlawful act.
Thus, the United States ought formally to acknowledge its illegality and to
apologize to the Canadian government and also to pay a sum of25.000 dollars to
it.
In the case of Reparation for Injuries Suffered in the Service of the U.N. ICJ
Rep. (1949), p. 174. the issue was whether United Nations can claim
compensation and damages for organization and the persons appointed under its
service. Further, in what manner the action taken by the United Nations could be
reconciled with such rights as might be possessed by the State of which the
victim was a national. The Court held that the U.N. had the capacity to bring a
claim and to give it the character of an international action for reparation for the
damage that had been caused to it. The organization can claim reparation not only
in respect of damage caused to itself, but also in respect of damage suffered by
the victim persons entitled through him. The risk of possible competition between
the organization and the victim’s national State could be eliminated by a general
convention or by a particular agreement in any individual case.
In the aforesaid case, the responsible State (Israel) paid the compensation
for the death of a French observer and one other person on account of mob
violence, but refused to accept any obligation under law in this connection. Thus
the legal position is that a State is responsible for injuries caused in its territory
to persons serving the U.N. or any other international organization.
State Responsibility for Treaty or Contractual Obligations
In the case of treaty obligations, State responsibility depends upon the exact
terms of the treaty. If, by construction of the treaty, it can be shown that there is a
breach of treaty obligation, responsibility follows.
The issue of the relationship between the rules of State responsibility and
those relating to the law of treaties arose in Rainbow Warrior Arbitration between
France and New Zealand in 1990 [82 1LR, p. 499], Tne argument put forward by
New Zealand centred upon the breach of a treaty obligation by France, whereas
that State argued that only the law of State responsibility was relevant and that
concepts of force majeure and distress exonerated it from liability. The arbitral
tribunal decided that the law relating to treaties was relevant, but that the legal
consequences of a breach of a treaty, including the determination of the
circumstances that may exclude wrongfulness (and render the breach only
apparent) and the appropriate remedies for breach, are subjects that belong to the
customary law of State responsibility.
In respect of contractual obligations, the position is different. The general
rule is that if there is a breach of the contract entered into by a State with aliens
(citizens / corporations), then it does not give rise to any
PUBLIC INTERNATIONAL LAW 140-xvii
international responsibility. The alien person, however, has the remedy to avail
the local means available to him in the State law of the State concerned. If the
matter is not resolved to the satisfaction of the alien person then he may try to
s ettle it through the medium of his home State by resorting to political and
diplomatic means.
It may be noted that it is quite possible that, while committing a breach of

contract with aliens, the State might commit a breach of some duty extraneous to
the contract. For example, a State may be guilty of‘denial of justice’ to the other
party while committing a breach of contract. In such circumstan 9es, the
responsibility of the State at international law exists.
The responsibility of the State might also aris e regarding a breach of

contract if such State has impliedly entered into a contract with another State that
it will observe the terms of the contract with a citizen of the other State.
However, a “weighty proof’ or sufficient evidence is required to prove such an
implied treaty in a contract entered into between a State and the citizens of
another State, as noted in the below-mentioned case.
In Anglo-Iranian Oil Co. case, ICJ Rep. (1952), p. 93, a contract w'as entered
into between the aforesaid company (registered in Britain) and Iran wherein Iran
gave some concessions to the company in respect of extracting oil in Iran. Later,
Iran nationalised this company and thus annulled the concessions. Britain had
sponsored the oil concession contract and Iran had promised not to end or
otherwise alter the concessions granted. Britain contended that by annulling of
the concessions by Iran, a claim arises at international law. The Court rejecting
the contention held that there was no privity of contract between Iran a nd Britain.
Sometimes it is argued that a contract with alien by its very nature becomes
‘internationalised’ and subject to international law rather than (or possibly in
addition to) the law of the contracting State. The consequences of this would
include the operation of the principle of international law that agreements are to
be honoured (pacta sunt servanda) which would constrain the otherwise wide
competence of a State party to alter unilaterally the terms of an agreement. This
proposition was adopted by the Arbitrator in the Texaco v Libya case, 53 ILR, p.
389 (1977), where it was noted that this may be achieved in various ways viz. by
stating that the law governing the contract referred to ‘general principles of law’,
which was taken to incorporate international law; by including an international
arbitration clause for the settlement of disputes, etc. However, this approach is
controversial and case law is by no means consistent (Shaw).
140-xviii STATE RESPONSIBILITY
In Rainbow' Warrior, it was also noted that international law did not
distinguish between contractual and tortuous responsibility, so that any violation
by a State of any obligation of whatever origin gives rise to State responsibility
and consequently the duty of reparation. i ,, ■> -1
State Responsibility forTxgropriation of Foreign Property

In
L the nineteenth century, any expropriation by a State of the property of an alien
gave rise to international responsibility of the State. The expansion of the
Western economies since the 19 th century in particular stimulated an outflow of
capital and consequent heavy investment in the developing areas of the world.
This resulted in substantial areas of local economies falling within the ownership
and control of Western corporations.^
l_ However, with the granting of independence to the various Third World

countries and in view of the nationalisation measures taken by the communist and
Afro-Asian States, an expropriation of foreign property for a public purpose with
a declared domestic policy became a common feature. |
| In assessing the state of international law with regard to the expropriation of

the property of aliens, two opposing objectives are: The capital -exporting
countries require some measures of protection and security before they will invest
abroad; the capital-importing countries are wary of the power of foreign
investments and the drain of currency that occurs, and are often stimulated to take
over such enterprise in the interests of economic and social reformj
|Nationalisation is a perfectly legitimate measure for a State to adopt and

clearly not illegal as such under international law. Further, there is no doubt that
under international law, expropriation of alien property is legitimate.
International Covenant on Economic, Social and Cultural Rights, 1966, provides
that developing countries, with due regard to human rights and their national
economy, may determine to what extent they will guarantee to non nationals the
economic rights recognized in the CovenanJJ In its resolution on permanent
sovereignty over natural resources, adopted on 17 December 1973, the U.N.
General Assembly affirmed that each nationalizing State, by virtue of its
sovereignty to safeguard its natural resources, is entitled to determine the amount
of possible compensation, and that any disputes should be settled in accordance
with the domestic legislation of that nationalizing State.
Though, in modem times, the right of States to expropriate property is

conceded, and though every claim of foreign citizens against expropriation would
not be considered as a claim in international law, yet when expropriation
PUBLIC INTERNATIONAL LAW 140-xix
becomes purely confiscatory and discriminatory, it will be considered to be

contrary to international law.
I The rules of international law on this question may be summarized as below:
(1) If the expropriation of foreign property is in accordance with a
declared domestic policy, and if it is applied without discrimination
between the citizens and the aliens, then, such expropriation is
justified in international law (Starke).
(2) If the expropriation is purely confiscatory and does not provide just
compensation to the foreign citizens or corporations, such acts of
expropriation will be contrary to international law.
(3) If the compensation is just nominal, or is indefinitely postponed, or
which is the subject of a vague and non-committal promise, or
which is below the rate of compensation awarded to nationals of the
expropriating State, then such act of expropriation is contrary to
international law (Starke).
mere plea of non-discrimination is no defence to a claim founded
on an expropriation, which is in the nature of a clear breach of
international law, though non-discrimination may be one of the
grounds justifying the act of expropriation.
(5) A compensation will be deemed to be appropriate where it is
adequate, prompt and effective. Art. 13 of the European Energy
Charter Treaty, 1994|provides thatêxpropriation must be for a
purpose which is in the public interest, not discriminatory, carried
out under due process of law and accompanied by the payment of
prompt, adequate and effective compensation^
While the discrimination factor would certainly be a relevant factor
to be considered, it would in practice often be extremely difficult to
prove in concrete cases. The political motive itself would not per se
constitute sufficient proof of a purely discriminatory measure
[Liamco case, 20 ILM, 1981, p. 1]. i
•I Calvo Clause
l^Very often, the citizens of one State might agree with another State that, in any
matter arising out of a particular contract, they renounce the assistance and the
protection of their native State or the intervention of the diplomatic agents of their
country. Such clauses were frequently included in contracts between Central and
South American Governments and foreign companies,
140-xx STATE RESPONSIBILITY
to whom concessions were granted under contracts. The object of such clause -
‘Calvo clause’ (named after the Argentinean jurists, Calvo) - is to ensure that the
disputes arising out of the contract shall be referred to the municipal courts of the
State granting the concession or other rights, and to oust the jurisdiction of
international tribunal^
Ljhe legality of this clause has been questioned before several international
tribunalsJn several cases, it has been held to be null and void, on the ground that
no citizen can contract away the right of the Government to protect him. In other
cases, it has been upheld as valid.yThe below-mentioned case clears the point.
j In North American Dredging Company case (U.S. v Mexico, General Claims

Commissions, 1926), the Calvo clause was held to be binding on the claimant
(alien) to be governed by Mexican laws, subject to the condition that it could not
take from him “his right to apply to his own Government for protection if his
resort to the Mexican tribunals or other authorities available to him resulted in a
denial or delay of justice as that term is used in international law.”j
According to Starke, Calvo clause is illegal and void to the extent it

attempts to waive in general the sovereign right of a State to protect its citizens,
or where it purports to bind the claimant’s government not to intervene in respect
of a clear violation of international law.
Apart from that, it would be obviously improper for the individual to treat
the State against which he seeks redress as an inferior and untrustworthy country
and to apply for his government’s intervention without making any claim in the
local courts (Rule of exhaustion of local remedies). Further, there is no rule of
international law which prevents the inclusion of a stipulation in a contract that in
all matters pertaining to the contract, the jurisdiction of the local tribu nals would
be complete and exclusive.
L T O sum up, it may be said that Calvo clause is ineffective to bar the rights
of States to protect the international abroad, or to release States from their duty to
protect aliens on their territory.
A State s Natural Asset is a National Asset

The term ‘expropriation’ includes nationalisation and confiscation of property.
There is general agreement about the sovereign right of each State to nationalise
or expropriate foreign property and hence it has been remarked that ‘A State’s
natural asset is a national asset’jjjach State has permanent
PUBLIC INTERNATIONAL LAW 140-xxi
sovereign rights over its natural resources, all natural resources are therefore its
national assets. An example in this regard is nationalization of Suez Canal in
1956 by Egypt. By this Egypt asserted its sovereign rights over its natural
resources. This was resented by France, Britain and Israel. An agreement that
followed recognized the sovereign right of Egypt to nationalize Sue z Canal and to
realize taxes for the use of the canal, j
A similar example is the sovereign rights of West Asian countries in
respect of their most valuable natural resources, viz. oil. In recent years, more and
more emphasis is being given to the recognition of the principle of nationalization
or expropriation of foreign property by the developing countries and the
opposition of the developed countries have weakened in this regard. The main
attack is against the implementation of the principle and not the principle itself.
One may well expect that international law will continue to protect alien property,
but that the extent of protection will more than previously be in accordance with
modern developments in domestic property orders^
■Corporations and National Law of Claims
Barcelona Traction Light and Power Co. Ltd. (Belgium v Spain)
[ICJ Rep., 1970, p. 3]
In this case, thejssues were: Whether a State is entitled to espouse the claim of
companies and its shareholders, and, what considerations govern determination of
the nationality of a corporate entity^)
In this case, the Barcelona Traction Co. was incorporated in Canada, and it
was operating in Spain. However, a considerable investment in the company was
made by shareholders in Belgium. Certain action taken by the Government of
Spain seriously injured the company. In the eyes of law, the company was of
Canadian nationality, though a majority of the shareholders affected were Belgian
nationals. The Belgian Government espoused the cause of its citi zens as
shareholders of the company. ^
The International Court of Justice observed and held as follows:
^(i) In municipal legal systems, generally, a company (whose capital is
represented by shares) enjoys a separate and independent corporate
personality vis-a-vis its shareholders. So long as the company is in
existence, a shareholder has no right to corporate assets. It is to
rules generally accepted by municipal legal systems and not to
municipal law of a particular ^tate, that international law refers. \
140-xxii STATE RESPONSIBILITY 140-xxiii
PUBLIC international law
( (ii) The mere fact that damage is sustained by both company and
not espoused the cause, Belgium had no locus standi to espouse, before the ICJ, the
shareholders does not imply that both are entitled to claim
compensation. While in case of a company, its rights are infringed, claims of Belgian nationals - shareholders in the company^)
in the case of shareholders, their interests are affected. The latter Nationality by Naturalization and Claimant State As a State has a right to protect
must look to company to institute appropriate action. its citizens abroad, it is entitled to intervene '"diplomatically to lodge a claim f or
decision before an international tribunal against injuries suffered by its subjects. It
C (iii) The shares of companies (whose activity is international)

are
widely scattered and frequently change hands. Thus, the
may also be considered that the claimant State would be asserting its rights to
ensure respect for the rules of international law regarding its own nationalsj
adoption of the theory of diplomatic protection of shareholders “Once a State has taken up a case on behalf of one of its subjects before an
as such, by opening the door to competing diplomatic claims, international tribunal, in the eyes of the latter, the State is the sole claimant”
could create confusion and insecurity in international economic [Mavrommatis Palestine Concessions Case (Jurisdiction) PCIJ (1924), Series A,
relations. Therefore, only the national State of a company No. 2, p. 12]. The injured subject’s only right is to claim through the State. Some
concerned was entitled to exercise diplomatic proceedings for writers hold that the State can proceed with the claim, even though the injured
the purpose of seeking redress for the wrong done to the subject waives it.
company^ A State is entitled to propound an international claim only on behalf of its
C (iv> When a wrong is done to the company, the wrongdoer is not liable to nationals or on behalf of protected subjects, such as those who are under the
the shareholders. Therefore, the Spanish State was not liable to the diplomatic protection of the State. The injured person must have the nationality
Belgian shareholders. The situation would be different if the act of the claimant State or its protected subjects at the time the injury was suffered
complained of is aimed at the direct rights to any declared and must retain it until the claim is decided or at least until the claim is
dividend, the right to attend and vote at general meetings, the right presented.
to share in the residual assets of the company on liquidation. In
Nottebohm Case [Liechtenstein v Guatemala]
such cases, the State of nationality of any individual shareholder [ICJ Rep., 1955, p. 4]
may intervene in his favour, regardless of the company’s
I In this case, Nottebohm was a German national since birth in 1881. In 1905 ne
nationality^
^(v) In allocating corporate entities to States, international law is based, moved to Guatemala and started residing and doing business there. In 1939,
but only to a limited extent on an analogy with the rules governing Nottebohm applied for naturalization in Liechtenstein, and obtained a passport of
the nationality of individuals. The traditional rule attributes the that country. He then returned to Guatemala to resume his business activities. At
right of diplomatic protection of a corporate entity to the State his request, Guatemalan authorities made appropriate changes regarding
under the laws of which it is incorporated and in whose territory it Nottebohm’s nationality in the Register of Aliens and in his identity document.
has its registered office. It has been the practice of some States to In 1941, United States blacklisted Nottebohm and froze his assets in the
give a company incorporated under their law diplomatic protection United States. Later, in the same year, war broke out between United States and
solely when it has its seat or management or centre of control in Germany, and between Guatemala and Germany. Nottebohm was arrested by
their territory, or when a majority or a substantial portion of the Guatemalan authorities in 1943 and deported to the United States, where he was
shares has been owned by national of the State concerned. interned until 1946 as an enemy alien. On his release, he applied for his
However, this test of ‘genuine connection’ has not found general readmission to Guatemala but his application was ref used. Nottebohm then took
acceptance.} up residence in Liechtenstein, but Guatemala had in the meantime confiscated his
hi the present case, Barcelona Traction’s links with Canada are manifold. Besides property in that country. Liechtenstein instituted an
being incorporated in Canada and having its registered office there, its board
meetings were held in Canada for many years. In fact, Canadian nationality of the
company has received general recognition. As Canada had
140-xxiv STATE RESPONSIBILITY
international action against Guatemala, claiming that Guatemala was bound to

pay compensation for the violation of international law in arresting, expelling
and refusing to readmit Nottebohm and in seizing his property. Guatemala argued
that the Liec'nstein’s claim was inadmissible on grounds of the claimant’s
nationality
The Court observed and held as follows:
The naturalization of Nottebohm was an act performed by

Liechtenstein in the exercise of its domestic jurisdiction. When one
State has conferred its nationality upon an individual and another
State also does so on the same person, each State remains within
the limits of its domestic jurisdiction.)
(ii) In cases of dual nationality, where the question arose with regard
to the exercise of protection, international arbitrators have given
preference to the real and effective nationality, that based on
stronger factual ties between the person concerned and one of the
States whose nationality is involved. For instance, the habitual
residence of the individual concerned, his family ties, attachment
shown by him for a given country,
/ (iii) In order to appraise the international effects of naturalization, it is

impossible to disregard the circumstances in which it is conferred,
the serious character which attaches to it (as it involves breaking of
a bond of allegiance and establishment of a new bond towards a
country), the real and effective, and not merely verbal preference
of the individual seeking it for the country which grants it t o him.
An individual’s close and genuine connection with the State which

has made him its national is crucial (as per the State practices,
arbitral and judicial decisions). At the time of his naturalization,
Nottebohm was settled in Guatemala for 34 years; later, he also
attempted to return there. In contrast, his connections with
Liechtenstein were extremely tenuous. In his application for
naturalization in Liechtenstein, he requested that the naturalization
proceedings should be initiated and concluded without delay. He
showed no intention of settling there; on the contrary, he returned
to Guatemala very shortly after his naturalization and showed
every intention of remaining there\
PUBLIC INTERNATIONAL LAW 140-xxv
(jhus> in the present case, there is absence of any bond of attachment

between Nottebohm and Liechtenstein, despite his naturalization in that country.
Naturalization was asked for not so much for the purpose of obtaining a legal
recognition of Nottebohm’s membership in fact in the population of Liechtenstein,
as it was to enable him to substitute for his status as a national of a belligerent
State that of a national of a neutral State, with the sole aim of thus coming within
the protection of Liechtenstein. In such circumstances, therefore, Guatemala is
under no obligation to recognize the nationality granted to Nottebohm.
Liechtenstein consequently is not entitled to extend its protection to Nottebohm
vis-a-vis Guatemala and its claim must be held to be inadmissible^)
Comments: Nationality of Claims

A State is under a duty to protect its nationals and it may take up their claims
against other States. However, there is under international law no obligation for
States to provide diplomatic protection for their nationals abroad. Such diplomatic
protection is not a right, but merely a discretion exercised or not by the State as an
extra-legal remedy^
The scope of a State to extend its nationality to whomsoever it wishes is
unlimited, except in so far as it affects other States. Further, diplomatic protection
may not extend to the adoption of claims of foreign subjects.jjn the Nottebohm
case, the ICJ decided that only where there existed a genuine link between the
claimant State and its national could the right of diplomatic protection arise. The
exercise of diplomatic protection by a State regarding one of its nationals brought
the whole issue of nationality out of the sphere of domestic jurisdiction and onto
the plane of international law.j
I In the absence of any genuine connection, the Court held that Liechtenstein
was not able to extend its diplomatic protection to Nottebohm as regards
Guatemala. Jhe case has been subjected to some criticism relating to the use of the
doctrine of‘genuine connection’ by the Court. The doctrine had until then been
utilised with regard to the problems of dual nationality, so as to enable a decision
to be made on whether one national State may sue the other on behalf of the
particular national. Its extension to the issue of diplomatic protection appeared to
be a new move altogether (Shaw).
, As far as a corporation is concerned, it appears that there must be some

tangible link between it and the State seeking to espouse its claim. The factors
range from incorporation of the company in the particular State to the maintenance
of the administrative centre of the company in the State and the
140-xxvi STATE RESPONSIBILITY
existence of substantial holdings by nationals in the companÎn the Barcelona

Traction case, any application of the Nottebohm doctrine of the ‘genuine connection’
was rejected as having no general acceptance. Nevertheless, it remains true that
some meaningful link must bind the State to the company which seeks its
protectionj
(_There had been increase in the number of bilateral investment treaties in

the 1970s, which may be partly explained as the response to the post -Barcelona
Traction need to protect shareholders. These arrangements are intended to
encourage investment in a way that protects the basic interests of both the capital -
exporting and capital-importing States. By virtue of such arrangements, the
United Kingdom, for instance, may intervene in Barcelona Traction situations
where a national has an interest as a shareholder or otherwise, and the company is
defunct (Shaw).j
Rule of Exhaustion of Local Remedies

While assessing the liability of a State for the wrongs inflicted on aliens^ firstly,
they may be wrongs under the local law of a State and they may be redressed
under the local law. Secondly, either on account of absence of local remedies or
inadequacy of local remedies, redress may not be available. In such cases, the
State of aliens might prefer claims against the State where the wrongs are
committed^
Li* is well established rule of customary international law that before

international proceedings are instituted, the various remedies provided by the
local State should have been exhausted.!The rule has its root in the general
proposition that an alien entering a country submits himself voluntarily to the
legal regime prevailing in that State. This is both to enable the particular State to
have an opportunity to redress the wrong that has occurred there within its own
legal order and to reduce the number of international claims that might be
brought. Thus, a respect has to be accorded to the sovereignty and jurisdiction of
foreign States by not pre-empting the operation of their legal systems^
The principle of exhaustion of local remedies is a creative process involving

the marriage of its two components - the provision of legal facilities by the
receiving State and the activity of the claimant in using them. In applying the
principle international tribunals will examine both components to see whether the
performance is satisfactory and in compliance with the rule.Jn Ambatielos
arbitration, 12RIAA, p. 83 (1956), between Greece and Britain, the Greek claim
was rejected by the tribunal since the remedies available under
PUBLIC INTERNATIONAL LAW 140-xxvii
£ii2li s h law had not been fully utilized, viz. it had not appealed to the H ouse of
Lords from the decision of the Court of AppeaL^
The principle requiring the exhaustion of local remedies takes into account
the fact that obligations of the State (towards aliens, viz. that they be granted
recourse to domestic courts under the same condition as nationals) are established
for the benefit of certain persons and that it is normal for such persons to
cooperate in achieving the result required by the international obligation. Thus, if
a foreigner wishes to exercise a profession in a given State, he will have to begin
by seeking permission from the competent authority. If such permission is
refused, he will have to go to a higher authority to obtain a reversal of the
decision of the first authority.
Thus, the-beneficiaries of the obligation must collaborate in the State’s
action to ensure its discharge. The principle of exhaustion of local remedies is,
therefore, designed to ensure the intervention of all the organs of the State which
actually have the responsibility of securing the result required by the obligation.
The principle is, therefore, linked with the performance of international
obligation of result concerning the treatment of aliens and subsequently with the
requirement that the breach be complete. It may be noted that it is the totality of
the acts of the State which constitutes the performance or breach of the
obligation. Thus, if there is breach of an obligation because the State has failed to
achieve the required result by any of the means at its disposal, the wrongful act in
question is one which extends over a period of time and embraces both the first
and the last of the State’s actions in the matter.
i' i'
The term ‘local remedies’ applies only to ‘genuinely available effective
remedies.’ The duty of the injuring State to make effective local remedies
genuinely available creates corresponding duty of the claimant to exhaust such
remedies. Therefore, from the claimant’s side, all available remedies (judicial,
administrative, etc.) capable of redressing the situation must be u sed. I Generally
speaking, all legal grounds calculated to secure favourable decision must be
advanced.(_For example, essential evidence should be adduced to succeed in the
action. In fact, the claimant must show that he wants to win the case, not merely
to lodge an appeal in order to meet the requirement of formal exhaustion of local
remedies^
Thus, it will not be sufficient to dismiss a claim merely because the Person
claiming had not taken the matter to appeal, where the appeal would not have
affected the basic outcome of the case. ( Ut-such a case, a person will be
140-xxviii STATE RESPONSlBiu^
I» b
deemed to have exhausted the local remedies] [Finnish Ships Arbitration RIAA,
p. 1479 (1934)JJJoweve7,"tlie legal remedies will not be deemed to haV been
exhausted, if the national claimant State is actually in the course 0f litigating the
.matter before the municipal courts of the respective StateJIW in the Interhandel
case, ICJ Rep., 1959, p. 6, between USA and Switzerland after nine years of
litigation in the US courts, Switzerland took the matter to ICJ However, before a
decision was reached, the US Supreme Court readmitted Interhandel (Swiss
firm) into the legal proceedings, thus disposing of Swiss argument that the
company’s suit had been finally rejectedj
The same judgment also held that the legal remedies will not be deemed
to have been exhausted even though the Municipal Courts may be called upon to
apply international law in reaching a decision in the matter./The judgment has
been criticised on the ground that litigation extending over practically ten years
could hardly be described as constituting an ‘effective’ remedy Ûnreasonably
prolonged domestic remedies amount to extinction or dilution of the
international responsibility of the State (Gurdip Singh )j
^Very often, one State intervenes on behalf of its nationals resident in
another State on the groTihdTTiat tliere has been ‘denial ofjustice’ i.e. there has
been misconduct or inaction on the part of the courts of the respondent State,
and thereby denial to the citizens of the claimant State of the benefits of due
process of law. For instance, in the Cutting case (1886), between the United
States and Mexico, the United States successfully intervened w'ith Mexico to
obtain a proper trial for an American citizen on the ground that there was denial
ofjustice. USA claimed that the Mexican Criminal Procedure Code did not
facilitate proper administration ofjustice^J
As against this claim of denial ofjustice, the respondent State might
demand the exhaustion of local remedies^Jt may be noted that there is no
obligation in international law to exhaust the local remedies under the following
circumstances:
(i) If the municipal courts are not in a position to award compensation
or damages.
(ii) If there is no justice to exhaust i.e. when there is no independent
judiciary, and when the suit is against the Government, or where
the injury is due to an executive act of the Government as such.
(iii) Where one State has been guilty of a direct breach of international
law causing immediate injury to another State, as
pjBLlC INTERNATIONAL LAW 140-xxix
for instance where its diplomatic agents are assaulted. But it does
apply where the State is complaining of injury to its nationals.
(iv) The local remedies rule may be waived by treaty stipulationj
Case concerning Avena and other Mexican Nationals (Mexico v USA)

[ICJ Reports, 2004, p. 12]
In this case, the issues were similar to that in the LaGrand case:
In LaGrand Case (Germany v USA), ICJ Rep. (2001), p.
466, the Court held that the inability under domestic law to act
was no defence to non-compliance with an international
obligation. The court noted that the effect of the ‘US
Procedural Default Rule’, which was to prevent counsel for
the LaGrand brothers (German nationals) from raising the
violation by the US of its obligation under the ‘Vienna
Convention on Consular Relations, 1963’ before the US
federal courts system, had no impact upon the responsibility of
US for the breach of the convention. The aforesaid US federal
rule of criminal law essentially prevents a claim from being
heard before a federal court if it has not b een presented to a
State court.
The Court held that the US had breached its obligation under
Art. 36(1) of the Vienna Convention by not informing the
LaGrand brothers of their rights under that provision ‘without
delay’. Art. 36(1) ‘establishes an interrelated regime designed
to facilitate the implementation of the system of consular
protection’. Art. 36(1 )(a) lays down that the consular officers
shall be free to communicate with nationals of the sending
State and to have access to them, while nationals shall have
the same freedom of communication with and access to
consular officers.
Art. 36(1 )(b) lays down that if the national so requests, the
authorities of the receiving State shall without delay inform
the consular post of the sending State of any arrest or
detention. The authorities shall inform the national of the
sending State without delay of his/her rights. Similarly, any
communication from the detained national to the
140-xxx IT
STATE RESPONSIBILITY PUBLIC INTERNATIONAL LAW
Mexican national who has failed to meet the customary legal requirement of
140-xxxi
consular post must be forwarded without delay. Art. 36(1 )(c)

reads: “consular officers shall have the right to visit a national ‘exhaustion of local remedies.’ The Court observed that the individual rights of
of the sending State who is in prison, custody or detention, and Mexican nationals under the Vienna Convention are rights which are to be
to converse or correspond with him ...” asserted within the domestic legal system of the United States. Only when that
The Court found that the failure for 16 years to inform the process is completed and local remedies are exhausted would Mexico be entitled
brothers of their right to have their consul notified effectively to espouse the individual claims of its nationals through the procedure of
prevented the exercise of other rights that Germany might have diplomatic protection. In the present case, however, the Mexico is also a sserting
chosen to exercise under Art. 36(l)(a) and (c). its own claims basing them on the injury which it itself has suffered, directly and
through its nationals. In these special circumstances of “interdependence of the
In LaGrand case, the obligation to offer assurances of non-
repetition was also raised by Germany and discussed by the rights of the State and of individual rights,” the duty to exhaust local remedies
Court. Held that a US commitment to ensure implementation does not apply.
of specific measures was sufficient to meet Germany’s request As to the precise meaning of the expression “without delay” occurring in
for a general assurance of non-repetition, while with regard to Art. 36 of Vienna Convention, the Court observed: After examination of the text
Germany’s request for specific assurances, the Court noted of the Convention, its object and purpose, as well as its travaux preparatoires, the
that should the US fail in its obligation of consular Court finds that “without delay” is not necessarily to be interpreted to signify that
notification, it would then be incumbent upon that State to the provision of the information must necessarily precede any interrogation, so
allow the review and reconsideration of any conviction and that the commencement of interrogation before the information is given would be
sentence of a German national taking place in these a breach of Art. 36. However, there is nonetheless a duty upon the arresting
circumstances by taking account of the violation of the rights authorities to give the information to an arrested person as soon as it is realized
contained in the Vienna Convention. that the person is a foreign national. Applying this interpretation of “without
In the Avena (Mexico v USA) case: delay” to the facts of the present case, the Court finds that the United States was
The claimant State Mexico contended that there were internationally in breach of its obligations under Art. 36(l)(b) ofthe Vienna Convention.
wrongful acts committed by the United States viz. the failure of its competent
Mexico further contended that the United States violated its obligations
authorities to inform the Mexican nationals concerned, to notify Mexican consular
under Art. 36(2) of the Vienna Convention by failing to provide meaningful and
posts and to enable Mexico to provide consular assistance. It was contended by
effective review and reconsideration of convictions and sentences impaired by a
the Mexico that USA, in arresting, trying, convicting, and sentencing the 52-
Mexican nationals on death row, violated its international obligations to Mexico, violation of Art. 36(1), by applying the “procedural default” and other municipal
in its own right and in the exercise of its right to diplomatic protection of its law doctrines.
nationals, by failing to inform, without delay, the 52 Mexican nationals after their The Court observed that it has already considered the application of the so-
arrest of their right to consular notification and access under Art. 36(1 )(b) of the called “procedural default” rule in the LaGrand case. The court emphasized that “a
Vienna Convention, and by depriving Mexico of its right to provide consular distinction must be drawn between that rule as such and its specific application in
protection and the 52 nationals’ right to receive such protection as Mexico would the present case” stating: “In itself, the rule does not violate Art. 36 ofthe Vienna
provide under Art. 36(1 )(a) and (c) of the Convention. Convention. The problem arises when the procedural default rule does not allow
the detained individual to challenge a conviction and sentence by claiming, in
The United States contended that the Court should find inadmissible
reliance on Art. 36, paragraph 1, of the Convention, that the competent national
Mexico’s claim to exercise its right of diplomatic protection on behalf of any
authorities failed to comply with their obligation to provide the requisite consular
information “without delay”, thus preventing the person from seeking and
obtaining consular assistance from the sending
140-xxxii STATE RESPONSIBILITY
State” (ICJ Reports, 2001, p. 497). On this basis, the Court concluded that “the
procedural default rule prevented counsel for the LaGrands to effectively
challenge their convictions and sentences other than on United States
constitutional grounds”. This statement is equally valid in the present case, where
a number of Mexican nationals have been placed exactly in such a situation.
The Court then proceeded to examine the legal consequences of such a

breach and of the legal remedies therefor. The Court is of the view that the
remedy to make good these violations should consist in an obligation on the
United States to permit review and reconsideration of these nationals’ cases by
the US Courts. This freedom in the choice of means for such review and
reconsideration is not without qualification viz. such review and reconsideration
has to be carried out “by taking account of the violation of the rights set forth in
the Convention”.
The Court also clarified that in the present case it is not the convictions
and sentences of the Mexican nationals which are to be regarded as a violation of
international law, but solely certain breaches of treaty obligations which preceded
them. The rights guaranteed under the Vienna Convention are treaty rights which
the United States has undertaken to comply with in relation to the individual
concerned, irrespective of the due process rights under United States
constitutional law.
7
PUBLIC INTERNATIONAL LAW - ADDENDA
Scope of International Law

In People’s Union for Civil Liberties v Union of India (AIR 1997 SC 568), held that
International law today is not confined to regulating the relations between the
States. Today matters of social concern, such as health, education and economics
apart from human rights fall within the ambit of International Regulations.
International law is more than ever aimed at individuals.
Sources of International Law
Application of General Principles of Law (Estoppel)/Modification of Treaty by
Subsequent Practice
Temple ofPreah Vihear Case (Merits) (Cambodia v Thailand)

[ICJ Reports 1962, p. 6]
In this case, in 1904 the boundary between Cambodia (then a protectorate of
France) and Thailand (then Siam) in the sparsely populated area of the Preah
Vihear was determined by a treaty between France and Siam. The treaty stated
that it was to follow the watershed line. The area where the temple was situated
was awarded to Thailand under the 1904 boundary treaty. The details for the
demarcation were to be worked out by a joint Franco-Siamese Commission.
Later, surveys were conducted by technical experts on the basis of which a
map was prepared by the French authorities in 1908 which placed the temple in
Cambodia. This map was never approved by the Commission. It was sent in 1908
to Siam (Thailand), which far from protesting the error, thanked the French and
requested 15 more copies. In 1930, the Siamese (Thai) Prince visited to the temple
site, where he was accorded welcome of a foreign di gnitary at which the French
flag was flown.
Thus, there was no error in the treaty but the error had been in the
subsequent acceptance of the delimitation ofthe boundary contained in a tnap,
which misappl ied the terms of the treaty. In 1947, Thailand discovered the
IHi]
142 PUBLIC INTERNATIONAL LAW - ADDENDA
error and claimed sovereignty over the area, and in 1954, it put armed guards and
removed the sculptures and other objects from the temple. Thailand argued that
the map did not follow the watershed line as required by the treaty. Cambodia
claimed sovereignty over the temple and required Thailand to remove the armed
guards posted there since 1954 and to return sculptures and other objects it had
taken therefrom.
The Court awarded the territory to Cambodia by applying the rule of

estoppel, because by her conduct Thailand had acquiesced to the frontier line
contended by Cambodia, as shown in the map. Thailand was thus precluded to
contest the sovereignty of Cambodia over the Temple area. The Court rejected
Thailand’s plea of error in the map and observed that “the plea of error cannot be
allowed as an element vitiating consent if the party advancing it contributed by its
own conduct to the error, or could have avoided it, or if the ci rcumstances were
such as to put that party on notice of a possible error.”
Resolutions of General Assembly

The International Court of Justice in the advisory opinion given in the Legality of
the Threat or Use of Nuclear Weapons [ICJ Reports (1996), p. 70] stated that “the
Court notes that General Assembly resolutions, even if they are not binding, may
sometimes have normative value. They can, in certain circumstances, provide
evidence important for establishing the existence of a rule or the emergence of an
opinio juris."
The General Assembly vide Resolution 49/75 dated 15 Dec., 1994 requested
the ICJ to give its advisory opinion on the following question: “Is the threat or use
of nuclear weapons in any circumstances he permitted under International law"! The
ICJ unanimously held that there is no specific authorization for the threat or use
of nuclear weapons under customary or conventional law. There is an obligation
of the members of U.N. to pursue in good faith and conclude nego tiations leading
to nuclear disarmament under effective international control.
Relationship between International Law and Municipal Law

In People’s Union for Civil Liberties v Union of lr)dia (AIR 1997 SC 568), right to
transmit telephone message or hold telephone conversation in privacy, was in
issue. It was held that it forms part of right to privacy protected by Art. 21 of the
Constitution of India as well as by Art. 17 of International Covenant on Civil and
Political Rights. Thus, “telephone tapping” by Government under Sec. 5(2) of
Telegraph Act amounts to infraction of these rights.
PUBLIC INTERNATIONAL LAW 143
Held: India is a signatory to the International Covenant on Civil and

Political Rights, 1966. Art. 17 thereof provides for “right of privacy”. Art. 12 of
the Universal Declaration of Human Rights, 1948 is almost in similar terms. Art.
17 of the International Covenant do not go contrary to any part of our municipal
law. Art. 21 of the Constitution has, therefore, to be interpreted in conformity with
the international law. It is almost an accepted proposition of law that the rules of
customary international law which are not contrary to the municipal law shall be
deemed to be incorporated in the domestic law.
In Samatha v State of A.P. (AIR 1997 SC 3297), it was held that, India being
an active participant in the successful declaration of the Convention on Right to
Development (adopted by U.N.) and a party signatory thereto, it is its duty to
formulate its policies, legislative or executive, accord equal attention to the
promotion of, and to protect the right to social, economic, civil and cultural rights
of the people, in particular, the poor, the Dalits and Tribes as enjoined in Art. 46
read with Arts. 38,39 and all other related articles read with right to life guaranteed
by Art. 21 of the Constitution of India.
In Vishaka v State of Rajasthan (“sexual harassment case”) (AIR 1997 SC

3011), the attention of the Supreme Court was focused towards prevention of
sexual harassment of working women in all work-places. The Court took a serious
note of the matter and held that each such incident resulted in violation o f the
fundamental rights of “Gender Equality” and the “Right to Life and Liberty”
enshrined in Arts. 14, 15 and 21 of the Constitution of India. It was also held to be
violation of the victim’s fundamental right under Art. 19( 1 )(g) to practise any
profession or to carry on any occupation, trade or business, as a “safe” working
environment is needed for that.
The Apex Court observed: Gender equality includes protection from sexual
harassment and right to work with dignity, which is a universally accepted b asic
human right [Sec. 2(d) of the Protection of Human Rights Act, 1993], In the
absence of suitable domestic legislation in this sphere, international
conventions/norms, so far as they are consistent with the constitutional spirit, can
be relied on, viz. Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW, Arts. 11,22-24). They can be read into those rights for
interpreting them in the larger context to promote the objects of the Constitution.
They can be relied on by the Supreme Court to formulate guidelines for the
enforcement of fundamental rights.
Vellore Citizens' Welfare Forum v Union of India

(AIR 1996 SC 2715)
In this case, certain tanneries in the State of Tamil Nadu were discharging
untreated effluent into agricultural fields, roadsides, waterways and open lands.
The untreated effluent finally discharged in a river which was the main source of
water supply to the residents of Vellore. The Supreme Court issu ed
comprehensive directions for maintaining the standards stipulated by the Pollution
Control Board.
The Supreme Court observed that the “Precautionary principle” and the
“Polluter Pays principle” are part of the environmental law of the country in view
of the various constitutional and statutory provisions. These principles are
essential features of “Sustainable development”. The “Precautionary principle” in
the context of the municipal law means: (i) Environmental measures by the State
Government and the statutory authorities - must anticipate, prevent and attack the
causes of environmental degradation (ii) where there are threats of
serious/irreversible damage, lack of scientific certainty should not be used as a
reason for postponing measures to prevent environmental degradation (iii) The
“onus of proof' is on the actor or the developer/industrialist to show that his action
is environmentally benign.
The “Polluter Pays” principle means that the absolute liability for harm to
the environment extends not only to compensate the victims of pollution but also
the cost of restoring the environmental degradation. Remediation of the damaged
environment is part of the process of “Sustainable development” and as such
polluter is liable to pay the cost to the individual sufferers as well as the cost of
reversing the damaged ecology.
The Supreme Court further observed: Sustainable development as a
balancing concept between ecology and development has been accepted as a part
of the customary international law though its salient features have yet to be
finalized by the international law jurists. Some of the salient principles of
“Sustainable development”, as culled-out from Brundtland Report and other
international documents (like the 1992 Earth Summit declarations), are - Inter
Generational Equity, Use and Conservation of Natural Resourced, Environmental
Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to
assist and co-operate, Eradication of Poverty, and, Financial Assistance to the
developing countries.
In India, apart from the constitutional mandate to protect and improve the
environment [viz. Arts. 21, 47, 48-A and 5I-A(g)], there are various
legislations on the subject viz. TKe~Watet XPrevention and Control of Pol lution)
Act, 1974, The Air (Prevention and Control of Pollution) Act, 1981. The
Environment Act, 1986, etc. Even otherwise once the polluter pays and
precautionary principles are accepted as part of the customary internationa l law
there would be no difficulty in accepting them as part of the domestic law. The
rules of customary international law which are not contrary to the municipal law
shall be deemed to have been incorporated in the domestic law and shall be
followed by the courts of law.
CIT v P.V.A.L. Kulandagan Chettiar

(2004) 6 SCC 235
In this case, two issues were:
(a) Whether the Malaysian income cannot be subjected to tax in India on the
basis of the Agreement of Avoidance of Double Taxation entered into
between the Government of India and the Government of Malaysia?
(b) Whether the capital gains should be taxable only in the country in which
the assets are situated?
The respondent is a firm owning immovable properties at Ipoh. Malaysia. During
the course of the assessment year, the assessee earned income of Rs. 88,424 from
rubber estates; the respondent sold the property, the shortterm capital gains of
which came to Rs. 18,113. The Income Tax Officer assessed that both the incomes
are assessable in India and brought the same to tax. The respondent filed an appeal
before the Commissioner of Income Tax (Appeals) who held that under Art. VII
(1) of the Agreement of Avoidance of Double Taxation of Income and Prevention
of Fiscal Evasion of Tax, unless the respondent has a per manent establishment of
the business in India such business income in Malaysia cannot be included in the
total income of the assessee and, therefore, no part of the capital gains arising to
the respondent in the foreign country could be taxed in India. Thi s Agreement is
applicable to persons who are resident of one or both of the contracting States.
I.T. Tribunal confirmed the order of the CIT (Appeals) and held that: (i)
since the respondent has no permanent establishment for business in India, the
business income in Malaysia cannot be included in his income in India, and
(ii) since the property is situated in Malaysia, capital gains cannot be taxed in
India. The High Court held that the finding of the Tribunal is in accordance
with the provisions of the Agreement of Avoidance of Double Taxation of Income.

The High Court took the view that: Where there exists a provision to the contrary
in the Agreement, there is no scope for applying the law of any on e of the
respective contracting States to tax the income and the liability to tax has to be
worked out in the manner and to the extent permitted or allowed under the terms
of the Agreement. The Supreme Court agreed with the High Court but adopted
different reasoning.
It observed: Where liability to tax arises under the local enactment, Secs. 4
and 5 of the Income Tax Act provide that taxation of global income of an assessee
chargeable to tax thereunder is subject to the provisions of an agreement entered
into between the Central Government and the Government of a foreign country for
avoidance of double taxation as envisaged under Sec. 90. and, such an agreement
will act as an exception to or modification of Secs.
4 and 5. The provisions of such agreement cannot fasten a tax liability where the
liability is not imposed by a local Act. Where tax liability is imposed by the Act,
the agreement may be resorted to either for reducing the tax liability or altogether
avoiding the tax liability. In case of any conflict between the provisions of the
agreement and the Act, the provisions of the agreement would prevail, as is clear
from Sec. 90(2) of the Act:
“Where the Central Government has entered into an agreement with the
Government of any country outside India for granting relief of tax, or for
avoidance of double taxation, then, in relation to the assessee to whom such
agreement applies, the provisions of this Act shall apply to the extent they are
more beneficial to that assessee.”
The immovable property in question is situate in Malaysia and income is

derived form that property. Further, it has also been held as a matter of fact that
there is no permanent establishment in India in regard to carrying on the business
of rubber plantations in Malaysia out of which income is derived. Thus, the
business income out of plantations cannot be taxed in India because of closer
economic relations between the assessee and Malaysia in which the property is
located and where the permanent establishment has been set up will determine the
fiscal domicile. Reading the Treaty in question as a whole when it is intended the
even though it is possible for a resident in India to be taxed in terms of Secs. 4 and
5, if he is deemed to be a resident of a contracting State where his persona l and
economic relations are closer, then his residence in India will become irrelevant.
The Treaty will have to be interpreted as such and prevails over Secs. 4 and 5 of
the Act. Taxation policy is within the power of the Government and Sec. 90 of the
Income Tax Act enables the Government to formulate its policy through treaties
entered into by it.]
Law of the Sea
International Tribunal for the Law of Sea
Art. 287 ofthe U.N. Convention on the Law of the Sea, 1982, provides that when
signing, ratifying or acceding to the Convention or at any time thereafter, a State
shall be free to choose, by means of a written declaration, one or more of the
following means for the settlement of disputes concerning the i nterpretation or
application of the Convention:
(a) International Tribunal for the Law of the Sea (Annex VI),
(b) International Court of Justice,
(c) An Arbitral Tribunal constituted in accordance with Annex VIII.
(d) A Special Arbitral Tribunal (Annex VII) for specified disputes.
A declaration made under para I, Art. 287 shall not affect or be affected by the
obligation of a State party to accept the jurisdiction of the Sea -Bed Disputes
Chamber of the International Tribunal for the Law of Sea. Further, a State party,
which is a party to the dispute not covered by a declaration in force, shall be
deemed to have accepted arbitration in accordance with Annex VII.
Composition - The Sea Tribunal was finally established on 21 Oct., 1996, with a
seat at Hamburg, Germany. The Tribunal comprises of 21 Judges, elected from
among persons enjoying the highest reputation of fairness and integrity and of
recognized competence in the field of the law of sea. The members are to be
elected on the basis of'equitable geographical distribution’ (three members from
each geographical group). No two members may be the nationals of the same
State.
In Aug. 1996,21 members were thus elected - 5 from Asia, 5 from Africa,
5 from Western Europe, 3 from Eastern Europe and 4 from Latin America. Dr.
P.C. Rao of India was elected as one of the judges of Tribunal. The members of
Tribunal are elected for nine years and may be re-elected; provided, however, that
of the members elected at the first election, the terms of 7 judges shall expire at
the end of 3 years and the terms of 7 more at the end of 6 years (the above such
judges to be chosen by lot to be drawn by U.N. Secretary-General).
Access to the Tribunal - All the State parties to UNCLOS, 1982 have access to it.
The Tribunal shall be open to entities other than State parties in any c ase expressly
provided in Part XI of the Convention or the parties may confer jurisdiction on the
Tribunal by an agreement.
PUBLIC INTERNATIONAL LAW - ADDENDA
148
Applicable Law and Jurisdiction - The Tribunal shall decide all disputes and
applications in accordance with Art. 293, UNCLOS. Art. 293 provides that
Tribunal shall apply the Convention and other rules of international law not
incompatible with the Convention. But, the Tribunal can decide a case ex acquto et
bono, if the parties so agree.
The Tribunal’s decision shall be final and binding, but it shall have no
binding force except between the parties and in respect of that particular dispute.
In the event of dispute as to the meaning and scope of the decision, the Tribunal
shall construe it upon the request of any party (Art. 33). The Tribunal shall have
jurisdiction over any dispute concerning the interpretation or application of the
Convention (Art. 288) or an international agreement related to t he purposes of the
Convention. In the event of a dispute as to whether the tribunal has jurisdiction,
the tribunal shall decide it.
As regards reference of disputes subject to other Agreements, Art. 22 of
UNCLOS provides that if all the parties to a treaty/convention already in force
and concerning the subject-matter covered by the Law of the Sea Convention so
agree, any dispute concerning the interpretation or application of such
treaty/convention may, in accordance with such agreement, be submitted to the
Tribunal. Thus the tribunal’s jurisdiction is not compulsory; it is optional and
voluntary and based on the consent of parties to the dispute.
Sea-Bed Disputes Chamber
Article 186, UNCLOS provides for the establishment of the Sea -Bed Disputes
Chamber and the manner in which it shall exercise its jurisdiction. The Chamber
shall be composed of 11 members, selected (for 3 years, may be re-elected) by a
majority of the elected members of Tribunal from amongst them, keeping in view
the principal legal systems of the world and equitable geographical distribution.
Special and ad hoc Chambers - The Chamber may form ad hoc chamber, composed
of 3 of its members, for dealing with a particular dispute. The Tribunal may form
such special chambers, composed of 3 or more elected members, for dealing with
particular categories of disputes.
On 14 Feb., 1997, ^SpecialChamberfor Fisheries Disputes, comprising of 7
members, thus, formed for any matter concerning the conservation and
management of marine living resources. On the same date, the T ribunal formed a
Standing Special Chamber for Marine Environment Disputes for any matter
concerning the protection and preservation of the marine environment.
Advisory opinions - The Sea-Bed Disputes Chamber shall give advisory opinions at
the request of the Assembly or the Council of the International Sea -Bed Authority
on the legal question arising within the scope of their activities, as a matter of
urgency (Art. 191, U.N. Convention).
Conclusions
The establishment of the International Tribunal for the Law of Sea is a great
landmark in the development of the law of sea. The criticism that it was
unnecessary in the presence of ICJ is not justified. The codification of the entire
law of the sea (which covers nearly 71.4% of the earth’s space), would have been
incomplete if it did not provide dispute-settlement mechanism. Law of the sea has
its own special problems and may involve special disputes and can be better dealt
with by a Sea Tribunal, rather than by a general tribunal like ICJ.
Though it is true that Sea Tribunal is only one of the means of for the
settlement of disputes relating to the law of sea and the ICJ’s jurisdiction has been
left intact, yet its importance cannot be undermined because it is best suited to deal
with disputes relating to the law of sea. The sea disputes require special dealing by
men well-versed in the field of the law of sea. Further, as International Sea -Bed
Authority is an undertaking of commercial nature, it is necessary that the disputes
arising in the process (of exploration and exploitation of Sea -bed) must be settled
promptly. The Sea Tribunal is best suited to perform these tasks.
Agreement of 1994 relating to Implementation of Part XI of UNCLOS, 1982
Part XI of the U.N. Convention on the Law of the Sea constitutes regime of the
'international Seabed Area.” An Agreement was adopted in 1994 to implement the
provisions of Part XI. The aforesaid Agreement revised the provisions of Part XI,
and. in case of any inconsistency between the two, the Agreement is to prevail
over Part XI. Only those States who have given their consent to be bound by the
Convention are to be bound by this Agreement.
The 1994 Agreement differs in'certain respects from the 1982 Convention,
viz. [See, G. Singh, International LOM\ Macmillan, pp. 319-323 (2003)]:
(i) In relation to International Seabed Authority (consisting of Council and
Assembly), the pattern of election of Council members ensures a place in
the Council for USA. For instance, four members are to
be elected from eight States which have made largest investments in

the preparation for and conduct of activities in the International Seabed
Area; four members from largest consumer or importer of minerals
derived from the Area.
(ii) As per 1982 Convention, the decisions on substantive issues a re taken
by 2/3 rd majority; under the Agreement, voting pattern differs from
consensus, 2/3 rd, 3/4 th majority depending upon nature of issue.
(iii) Decision-making in the organs of the Authority should be by
consensus; in case of no consensus despite all efforts towards that end,
the decisions in the Assembly shall be taken as per the 1982
Convention. In case of no consensus in the Council, then on procedural
issues, decisions shall be taken by majority of members present and
voting; on substantive issues, the Council shall decide by 2/3 rd majority
or consensus if Convention provides for consensus provided that the
decisions are not opposed by a majority in any of the Chamber.
(iv) As per the 1994 Agreement the Council shall approve a
recommendation by the Legal and Technical Commission for approval
of a plan of work. The plan of work approved by the Commission can
be disapproved by the Council only by 2/3 rd majority of members
present and voting. If the Commission disapproves the plan of work,
the Council may nevertheless approve it.
(v) The 1994 Agreement, unlike the 1982 Convention, scraps the
obligation of State Parties to fund the mining operations of Enterprise.
Instead the Enterprise shall conduct its mining operations through joint
ventures.
(vi) The general obligation of the 1982 Convention concerning transfer of
technology (to the Enterprise and developing countries) remains
unchanged in the 1994 Agreement. However, the specific obligation of
the operators (to transfer to the Enterprise, at the request of the
Authority, the technology used by the operators in carrying out
activities in the International Seabed Area on fair and reasonable
commercial terms) has been scrapped in the 1994 Agreement. The
Agreement permits Enterprise and developing States to seek, if they
wish, technology on fair and reasonable commercial terms from the
open market and the State Parties undertake to cooperate with the
Authority.
(vii) The Agreement mentions that the transfer of technology shall be

consistent with the effective protection of Intellectual Property Rights.
The clause thus tailors the technology transfer provisions of the 1982
Convention according to WTO Agreements.
(viii) The 1994 Agreement scraps the system of production authorization (by
the Authority), limitations and ceiling, as provided in the 1982
Convention. Instead, the Agreement provides that the development of
the resources of the International Seabed Area shall take place in
accordance with sound commercial principles; the GATT provisions
shall apply with respect to activities in the Area; etc. However, the
Agreement provides for economic assistance to developing land -based
producer States affected by the reduction of price of a mineral, etc.
(ix) The 1982 Convention provides that the Review Conference shall be held
15 years after the commencement of production under approved plan of
work. The 1994 Agreement scraps the above provision and instead
provides that the Review Conference may be held at any time by the
Assembly on the Council’s recommendations.
Case Law
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar
v Bahrain)
[ICJ Reports 2001, p. 40]
In this case, one of the major issues was: To draw a single maritime boundary
between the maritime areas of sea-bed, subsoil and superjacent waters
appertaining respectively to the State of Qatar and the State of Bahrain.
The Court observed and held as follows:
(1) Maritime Delimitation
Regarding the question of maritime delimitation, the Court noted that the Partie s
are in agreement that the Court should render its decision on the maritime
delimitation in accordance with international law. Neither Bahrain nor Qatar is
party to the Geneva Conventions on the Law of the Sea of 29 April 1958; Bahrain
has ratified the United Nations Convention on the Law of the Sea of 10 December
1982 but Qatar is only a signatory to it. The Court indicates that customary
international law, therefore, is the applicable law. Both Parties, however, agree
that most of the provisions of the 1982 Convention which are relevant for the
present case reflect customary law.
(2) A Single Maritime Boundary

The Court notes that, under the terms of the “Bahraini formula”, the Parties
requested the Court in December 1990, “to draw a single maritime boundary
between their respective maritime areas of seabed, subsoil and superjacent
waters”.
The Court observes that it should be kept in mind that the concept of
“single maritime boundary” may encompass a number of functions. In the
present case, the single maritime boundary will be the result ofthe delimitation of
various jurisdictions. In the southern part of the delimitation area, which is
situated where the coasts of the Parties are opposite to each o ther, the distance
between these coasts is nowhere more than 24 nautical miles. The boundary the
Court is expected to draw will, therefore, delimit exclusively their territorial seas
and, consequently, an area over which they enjoy territorial sovereignty. More to
the north, however, where the coasts of the two States are no longer opposite to
each other but are rather comparable to adjacent coasts, the delimitation to be
carried out will be one between the continental shelf and exclusive economic
zone belonging to each of the Parties, areas in which States have only sovereign
rights and functional jurisdiction. Thus both Parties have differentiated between
a southern and a northern sector.
The Court further observes that the concept of a single maritime boundary
does not stem from multilateral treaty law but from State practice, and that it
finds its explanation in the wish of States to establish one uninterrupted
boundary line delimiting the various - partially coincident - zones of maritime
jurisdiction appertaining to them. In the case of coincident jurisdictional zones,
the determination of a single boundary for the different objects of delimitation
“can only be carried out by the application of a criterion, or combination of
criteria, which does not give preferential treatment to one of
these ..... objects to the detriment of the other and at the same time is such as to
be equally suitable to the division of either of them”, as was stated by the
Chamber of the Court in the Gulf of Maine case. In that case, the Chamber was
asked to draw a single line which would delimit both the continental shelf and
the superjacent water column.
(3) Delimitation of the Territorial Sea - Equidistance Line

Delimitation of territorial seas does not present comparable problems, since the
rights of the coastal State in the area concerned are not functional but territorial,
and entail sovereignty over the sea-bed and the superjacent waters and air
column. The Parties agree that the provisions of Article 15 of the 1982
Convention on the Law of the Sea, headed “Delimitation of the
territorial sea between States with opposite or adjacent coasts”, are part of
customary law. This Article provides:
"Where the coasts of two States are opposite or adjacent to each other,
neither of the two States is entitled, failing agreement between them to the
contrary, to extend its territorial sea beyond the median line eveiy point of which
is equidistant from the nearest point on the baselines from which th e breadth of
the territorial seas of each of the two States is measured. The above provision
does not apply, however, where it is necessary by reason of historic title or other
special circumstances to delimit the territorial seas of the two States in a wa y
which is at variance therewith.”
The Court notes that Article 15 of the 1982 Convention is virtually
identical to Article 12, paragraph 1, ofthe 1958 Convention on the Territorial Sea
and the Contiguous Zone, and is to be regarded as having a customary' character.
It is often referred to as the “equidistance/special circumstances” rule. The most
logical and widely practised approach is first to draw provisionally an equidistant
line and then to consider whether that line must be adjusted in the light of t he
existence of special circumstances. The Court explains that once it has delimited
the territorial seas belonging to the Parties, it will determine the rules and
principles of customary law to be applied to the delimitation of the Parties’
continental shelves and their exclusive economic zones or fishery zones. The
Court will further decide whether the method to be chosen for this delimitation
differs from or is similar to the approach just outlined.
The equidistance line is the line every point of which is equidistant from
the nearest points on the baselines from which the breadth of the territorial seas
of each of the two States is measured. This line can only be drawn when the
baselines are known. Neither of the Parties has as yet specified the baseline s
which are to be used for the determination of the breadth of the territorial sea, nor
have they produced official maps or charts which reflect such baselines. Only
during the present proceedings have they provided the Court with approximate
base points which in their view could be used by the Court for the determination
of the maritime boundary. The Court indicates that it will therefore first
determine the relevant coasts of the Parties, from which will be determined the
location of the baselines, and the pertinent base points from which the
equidistance line is to be measured.
Qatar has argued that, for purposes of this delimitation, it is the mainland -
to-mainland method which should be applied in order to construct the
equidistance line. For Qatar, application ofthe mainland-to-mainland method
has two main consequences. First, it takes no account of the islands (except
certain islands), islets, rocks, reefs or iow-tide elevations lying in the relevant
area. Second, in Qatar’s view, application ofthe mainland-to-mainland method of
calculation would also mean that the equidistance line has to be constructed by
reference to the high-water line.
Bahrain contends that it is a de facto archipelago or multiple-island State,

characterized by a variety of maritime features of diverse character and size. All
these features are closely interlinked and together they constitute the State of
Bahrain; reducing that State to a limited number of so-called “principal” islands
would be a distortion of reality and a refashioning of geography. Since it is the
land which determines maritime rights, the relevant base points are situated on
all those maritime features over which Bahrain has sovereignty. Bahrain furth er
contends that, according to conventional and customary international law, it is
the low-water line which is determinative for the breadth of the territorial sea and
for the delimitation of overlapping territorial waters. Finally, Bahrain has stated
that, as a de facto archipelagic State, it is entitled to declare itself an archipelagic
State under Part IV of the 1982 Sea Convention and to draw the permissive
baselines of Article 47 of that Convention, i.e., “straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs of the
archipelago”. Qatar has contested Bahrain’s claim that it is entitled to declare
itself an archipelagic State under Part IV of the 1982 Convention.
The Court turns to the determination of the relevant coasts from which the
breadth of the territorial seas of the Parties is measured. In this respect the Court
recalls that under the applicable rules of international law the normal baseline for
measuring this breadth is the low-water line along the coast (Art. 5,1982
Convention). In previous cases, the Court has made clear that maritime rights
derive from the coastal State’s sovereignty over the land, a principle which can
be summarized as “the land dominates the sea”. It is thus the terrestrial ter ritorial
situation that must be taken as starting point for the determination of the
maritime rights of a coastal State. In order to determine what constitutes
Bahrain’s relevant coasts, and, what are the relevant baselines on the Bahraini
side, the Court must first establish which islands come under Bahrain
sovereignty. The Court said that the decision of the Bahrain to declare itself an
archipelagic State is a unilateral action.
(4) Island/Low-tide Elevation - Drawing of Equidistance Line

A question arises in the present case: Whether a State can acquire sovereignty by
appropriation over a low-tide elevation situated within the breadth of its
territorial sea when that same low-tide elevation lies also within the breadth of
the territorial sea of another State. As per Qatar, a low -tide elevation cannot be
appropriated. Bahrain contends that low-tide elevations by their very nature are
territory, and therefore can be appropriated in accordance with the criteria w hich
pertain to the acquisition of territory.
The Court observes that according to 1982 Convention, a low-tide
elevation is a naturally formed area of land which is surrounded by and above
water at low tide but submerged at high tide (Ait. 13. para 1). When a low-tide
elevation is situated in the overlapping area of the territorial sea of two States,
whether with opposite or with adjacent coasts (and even if the low -tide elevation
is nearer to the coast of one State than that of the other), both States i n principle
are entitled to use its low-water line for the measuring of the breadth of their
territorial sea. The same low-tide elevation then forms part ofthe coastal
configuration of the two States.
For delimitation purposes the competing rights derived by both coastal
States from the relevant provisions of the law of the sea would by necessity seem
to neutralize each other. In Bahrain’s view, however, it depends upon the
effectivites presented by the two coastal States which of them has a superior title
to the low-tide elevation in question and is therefore entitled to exercise the right
attributed by the relevant provisions of the law of the sea, just as in the case of
islands which are situated within the limits of the breadth of the territorial sea of
more than one State.
The Court observes that the international treaty law is silent on the
question whether low-tide elevations can be considered to be “territory”. Nor is
the Court aware of a uniform and widespread State practice which might have
given rise to a customary rule which unequivocally permits or excludes
appropriation of low-tide elevations. It is only in the context ofthe law of the sea
that a number of permissive rules have been established with regard to low -tide
elevations which are situated at a relatively short distance from a coast. The few
existing rules do not justify a general assumption that low -tide elevations are
territory in the same sense as islands. It has never been disputed that islands
constitute terra firma, and are subject to the rules and principles of territorial
acquisition; the difference in effects which the law of the sea attributes to islands
and low-tide elevation is considerable. It is thus not established that in the
absence of other rules and legal principles, low-tide elevations can, from the
viewpoint of the acquisition of sovereignty, be fully assimilated with islands or
other land territory. Further, there is a rule that a low- tide elevation which is
situated beyond the limits of the territorial sea does not
have a territorial sea of its own. A low-tide elevation, therefore, as such does not
generate the same rights as islands or other territory.
The Court, consequently, is of the view that in the present case, there is no
ground for recognizing the right of Bahrain to use as a baseline the low- water
line of those low-tide elevations which are situated in the zone of overlapping
claims, or for recognizing Qatar as having such a right. The Court accordingly
concludes that for the purposes of drawing the equidistance line, such low-tide
elevations must be disregarded.
(5) Method of Straight Baselines
The Court observes that the method of straight baselines, which Bahrain applied
in its reasoning and in the maps provided to the Court, is an exception to the
normal rules for the determination of baselines and may only be applied if a
number of conditions are met. This method must be applied restrictively. Such
conditions are primarily that either the coastline is deeply indented and cut into,
or that there is a fringe of islands along the coast in its immediate vicinity. The
fact that a State considers itself a multiple-island State or a de facto archipelagic
State does not allow it to deviate from the normal rules for the determination of
baselines unless the relevant conditions are met.
The coasts of Bahrain’s main islands do not form a deeply indented c oast,
nor does Bahrain claims this. It contends, however, that the maritime features off
the coast of the main islands may be assimilated to a fringe of islands which
constitute a whole with the mainland. The Court does not deny that the maritime
features east of Bahrain’s main islands are part of the overall geographical
configuration; it would be going too far, however, to qualify them as a fringe of
islands along the coast. The Court, therefore, concludes that Bahrain is not
entitled to apply the method of straight baselines. Thus each maritime feature has
its own effect for the determination of the baselines, on the understanding that, on
the grounds set out before, the low-tide elevations situated in the overlapping zone
of territorial seas will be disregarded. It is this basis that the equidistance line
must be drawn.
(6) Special Circumstances

The Court observes that since it did not determine whether Fasht al Azm is part
of Sitrah island, or, a separate low-tide elevation, it is necessary to draw
provisionally two equidistance lines. The Court then turns to the question of
whether there are special circumstances which make it necessary to adjust the
equidistance line as provisionally drawn in order to obtain an equitable result in
relation to this part of the single maritime boundary to be fixed.
PUBLIC INTERNATIONAL law 157
With regard to the question of Fasht al Azm, the Court considers that on
either of the above-mentioned hypotheses there are special circumstances which
justify choosing a delimitation line passing between Fash al Azm and Qit’at
Shajarah. The Court also finds that there is a special circumstance in this case
warranting the choice of a delimitation line passing immediately to the east of
Qit’at Jaradah. The Court observes that Qit’at Jaradah is a very small inhabited
island which comes under Bahraini sovereignty and is situated mid way between
the main island of Bahrain and the Qatar peninsula. Consequently, if its low -
water line were to be used for determining a base point in the construction of the
equidistance line, and this line taken as the delimitation line, a disproportionate
effect would be given to an insignificant feature.
On these considerations the Court finds that it is in a position to determine

the course of that part of the single maritime boundary which will delimit the
territorial seas of the Parties.
(7) Delimitation of Continental Shelf and Exclusive Economic Zone

The Court then deals with the drawing of the single maritime boundary in that
part of the delimitation area which covers both the continental shelf and the
exclusive economic zone. Referring to its earlier case-law on the drawing of a
single maritime boundary the Court observes that it will follow the same approach
in the present case. For the delimitation of the maritime zones beyond the 12 -mile
zone it will first provisionally draw an equidistance line and then consider
whether there are circumstances which must lead to an adjustment of that line.
The Court further notes that the equidistance/special circumstances rule,
which is applicable in particular to the delimitation of the territorial sea, and the
equitable principles/relevant circumstances rule, as it has been developed since
1958 in case-law and State practice with regard to the delimitation of the
continental shelf and the exclusive economic zone, are closely interrelated.
The Court then examines whether there are circumstances which might
make it necessary to adjust the equidistance line in order to achieve an equitable
result. With regard to Bahrain’s claim concerning the pearling industry, the Court
notes that that industry effectively ceased to exist a considerable time ago.
Further, pearl diving in the Gulf area traditionally was considered as a right
which was common to the coastal population. The Court, therefore, does not
consider the existence of pearling banks, though predominantly exploited in the
past by Bahraini fishermen, as forming a circumstance which would justify an
eastward shifting ofthe equidistance line as requested by Bahrain.
Decision
The Court decides that the single maritime boundary shall be formed in the first
place by a line which, from a point situated to the north -west of Fasht al Dibal,
shall meet the equidistance line as adjusted to take account ofthe absence of
effect given to Fasht al Jarim (a remote projection of Bahrain’s coastline in the
Gulf area; otherwise the northern coasts of the territories belonging to both the
Parties are flat). The boundary shall then follow the adjusted equidistance line
until it meets the delimitation line between the respective maritime zones of Iran
on the one hand and of Bahrain and Qatar on the other.]
8
HUMAN RIGHTS
Human rights are said to be those fundamental rights which every individual
inhabitating any part of the world should be entitled to merely by virtue of
having-been bom a human being. They are the basic or natural rights, which are
inalienable and essential for the adequate development of the human personality
and for the happiness and progress of the human society. Being fundamental
rights, they cannot be taken away by any act of the government/legislature of the
country. They are also ‘common rights’ which are shared by all men and women
in the world (just as the common law in England was the body of rules and
customs which, unlike local customs governed the whole country).
As pointed out by Lauterpacht since human rights are not created by any
legislation, they resemble very much the natural rights. They cannot be subjected
to the process of amendment. The source of international human rights as well as
other universally applicable human rights is the same, namely the acceptance of
the worth and dignity of the human person and the right to life in its profounder
dimensions that belongs to everyone.
“The conception of human rights is of central importance in
the development of the modern world. Like all such ideas, it is
very much theory-laden implying a general view of man and
society, of individuality, politics and the ends of Government.
Like all such ideas, it is profoundly historical, expressing the
aspirations and seeking to remedy the ills of particular places
and times. It is thus an idea with a history, an idea that
changes in both content and social function” (Eugene
Kamenka).
The English Bill of Rights, The American Declaration of Independence, and the
French Declaration of the Rights of Man and Citizen, sprouted from the concept
of the Universal Human Rights. Dharma in its wider connotation and articulation
enshrined human rights. However, it is the western quest for people’s rights that
gave a sharper edge to what we now call ‘human rights’.
[159]
160 HUMAN RIGHTS
Protection of Human Rights under the United Nations

The concept of human rights, imposing a responsibility on the State to respect
and protect these rights, is largely a post-1945 (Second World War)
phenomenon, which saw the establishment of United Nations (U.N.). Th e UN is
the modem nidus of human rights in their rich diversity.
(a) United Nations Charter

Human rights occupy a significant place in the UN Charter. The preamble of the
Charter reaffirms faith in fundamental human rights and the dignity and worth of
human persons and in equal rights of men and women. In substance, this
haunting idea appears in:
"‘Art. 1, on the purposes and principles of the United Nations;
in Art. 13, on the functions and powers of the General
Assembly; in Art. 62, on the functions and powers of the
Economic and Social Council; and in Art. 76, on the basic
objectives of the International Trusteeship system.
In Art. 56, all Members of the United Nations pledge to take
joint and separate action in co-operation with the
Organization for the achievement of purposes enumerated in
Art. 55, including the promotion of universal respect for, and
observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.”
Protection of human rights is one of the purposes of the U.N. [Art. 1(3) of
Charter]. Under Art. 13, it is the duty of the General Assembly to initiate studies
and make recommendations for the realization of human rights; similarly, under
Art. 62, ECOSOC may do so. Arts. 55 and 56 bind Members States to observe
and respect human rights. Under Art. 76, it is the objective of the Trusteeship
system to encourage respect for human rights and fundamental freedoms.
It is, however, doubtful whether these Charter provisions, as such, create
any binding legal obligation on the member nations in the arena of human rights,
apart from imposing a moral duty not to undermine the human rights, particularly
with regard to their own nationals.
Nevertheless, protection of human rights is the fundamental pi.i poses of

the Charter, and violation of this obligation by a State cannot be considered
essentially a matter of domestic jurisdiction. The General Assembly logically can
discuss and consider the breaches of human rights. If the breaches are of
a grave nature, as to endanger international peace and security, it may call such
to the attention of the Security Council [Art. 11(3)], which may address
situations
dictatorial injunctions.
The U.N. Charter, however, has provided the requisite impetus for the
further protection and improvement of human rights. There are 88 international
instruments (declarations, resolutions and conventions) adopted by the U.N. so far
to protect these rights. Though, the Charter failed to define the fundamental
freedoms and human rights, nor did it provide any machinery to secure their
observance. The subsequent U.N. instruments fulfilled this task.
(b) Universal Declaration of Human Rights, 1948

It was adopted by the General Assembly on Dec. 10, 1948 (at Geneva), which
elucidated the U.N. Charter provisions and defined expressly certain human ri ghts
and fundamental freedoms which need to be protected. It may be noted that
“Human Rights Day” is also celebrated all over the world on December 10 - the
date of the adoption of Declaration.
Art. 1 of Declaration provides, “All human beings are born fre e and equal
in dignity and rights, they are endowed with reason and conscience and should act
to one another in spirit of brotherhood.” Art. 2 provides that everyone is entitled
to all the rights and freedoms set forth in the Declaration without distinctio n of
any kind (such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or status). No distinction shall be made
on the basis of political jurisdiction, or international status of the country to
which a person belongs.
The rights enshrined in the Declaration, in its 30 Articles are broadly
divided into civil and political rights, and economic, social and cultural rights.
‘Civil rights’ include rights such as Right to life and liberty
(Art. 3); Prohibition of slave trade (Art. 4); Prohibition of
torture, etc. (Art. 5); right to equality before law and legal
remedies (Arts. 6-11); Right to freedom of movement (Art.
13); Right to seek asylum (Art. 14); Right to nationality (Art.
15); Right to own property (Art. 17); Right to freedom of
thought, conscience and religion (Art. 18); Right to freedom of
opinion and expression (Art. 19); and, Right to freedom of
peaceful assembly, etc. (Arts. 20-21).
‘Economic, Social and Cultural rights’ include the righ t to
social security (Art. 22); Right to work, employment, etc.
162 HUMAN RIGHTS
(Art. 23); Right to education (Art. 26); Right to enjoy arts and
share in scientific achievement (Art. 27).
The concluding Articles recognize that everyone is entitled to a social and
international order in which the rights and freedoms can be fully realized (Art.
28), and they stress the duties and responsibilities which the individual owes to
the community (Art. 29). Lastly, Art. 30 provides that nothing in the Declaration
may be interpreted as implying for any State, group, or person any right to
engage in any activity or to perform any act aimed at the destruction of any of the
rights and freedoms set forth in the Declaration.
The Declaration was originally conceived of, as a statement of objectives
to be achieved by Governments and as such, not part of binding law. Though
legally not binding, the Declaration has gained considerable authority as a
general guide of fundamental rights and freedoms for the member nations and
shaping the other international instruments. As noted by Dr. Nagendra Singh:
“The Declaration was not a mere resolution of the General Assembly but a
continuation of the Charter and had the dignity of the Charter.”
Rules of the Declaration now have the status of customary international

law. The rights enshrined in the Declaration are set “as a common standard of
achievement for all peoples and all nations”. States shall “strive by teaching and
education to promote respect for these rights and by progressive measures,
national and international, to secure their universal and effective recognition and
observance” (Preamble).
(c) International Covenant on Civil and Political Rights, 1966

It was adopted by the General Assembly on Dec. 16 , 1966, and it came into force
on March 23, 1976. Presently, there are 140 State Parties to this Covenant. The
Optional Protocol to this Covenant came into force on Jan.
3, 1976 and at present it has 92 State Parties.
The Covenant comprises of 53 Articles divided in VI parts. Specific
substantive civil and political rights are:
(i) Inherent right to life (Art. 6).

(ii) Prohibition of torture, etc. or punishment (Art. 7).
(iii) Prohibition of slavery, forced labor, etc. (Art. 8).
(iv) Right to liberty and security, and freedom from arbitrary arrest or
detention (Art. 9).
(v) Right of all persons deprived of their liberty to be treated with

humanity and dignity (Art. 10).
(vi) Prohibition of imprisonment merely on the ground of inability to
fulfill a contractual obligation (Art. 11).
(vii) Right to liberty of movement and freedom to choose residence and
right not to be arbitrarily deprived of entering one’s own country’
(Art. 12).
(viii) Freedom of aliens lawfully in the territory of State Party to
covenant from arbitrary expulsion (Art. 13).
(ix) Right to equality before the courts, right to a fair and public hearing
and right of a criminal offender to be presumed innocent until
proved guilty (Art. 14).
(x) Non-retroactive application of criminal law (Art. 15)
(xi) Right to be recognized everywhere as a person before the law (Art.
16).
(xii) Right to privacy, honour and reputation (Art. 17).
(xiii) Freedom of thought, conscience and religion (Art. 18).
(xiv) Right to freedom of opinion and expression (Art. 19).
(xv) Prohibition of propaganda of war and advocacy of national racial or
religious hatred constituting incitement to discrimination, hostility
or violence (Art. 20).
(xvi) Right of peaceful assembly (Art. 21).
(xvii) Right to freedom of association including the right to form and join
trade unions (Art. 22).
(xviii) Right to marry and to found a family (Art. 23).
(xix) Right of protection to a child; right of every child to acquire a
nationality (Art. 24).
(xx) Right of every citizen to take part in the conduct of public affairs,
to vote and to be selected, and to have access, on general terms of
'equality’, to public services (Art. 25).
(xxO Equality before law (Art. 26).
(xxii) Rights of ethnic, religious or linguistic minorities (Art. 27).
It may be noted that the rights set forth in the Covenant are not absolute and are
subject to limitations.
164 HUMAN RIGHTS
(d) International Covenant on Economic, Social and Cultural Rights, 1966
It came into force on Jan. 3, 1976. It comprises of 31 Articles divided into five
parts. The substantive rights mentioned in it are:
(i) Right to work freely chosen (Art. 6).
(ii) Right to enjoyment of just and favourable conditions of work (Art.
17).
(iii) Right to form and join trade unions (Art. 8).
(iv) Right to social security/social insurance (Art. 9).
(v) Right relating to family, motherhood, childhood and young
persons to protection and right of free consent to marriage (Art.
10).
(vi) Right to adequate standard of living (food, clothing and housing),
and to the continuous improvement of living conditions (Art. 11).
(vii) Right to physical/mental health (Art. 12).
(viii) Right to education including compulsory and primary education
(Art. 13).
(ix) Undertaking to implement the principle of compulsory education
free for all within a reasonable number of years (Art. 14).
(x) Right to take part in cultural life, enjoy the benefits of scientific
progress, and benefit from the protection of moral and material
interests resulting from any scientific, literary or artistic
production of which he is the author (Art. 15).
Thus, the obligations are essentially programmatic and promotional. The State
Parties undertake to take steps... to the maximum of its available resources to
achieve the full realization of the rights by appropriate means, including
particularly the adoption of legislative means [Art. 2 (1)]. The rights recognized
are to be exercised on the basis of non-discrimination [Art.
2 (2)]. However, in relation to economic rights, developing countries “may
determine to what extent they would guarantee” such rights to non -nationals.
India has become a party to these two Covenants. It may be noted that
the two Covenants represent the first two generations of human rights. The “first
generation” consists of civil and political rights, mainly based upon natural rights
philosophy of the 18*' century thinkers, like Rousseau. The “second generation”
consists of economic, social and cultural rights, which were recognized after the
advent of socialism in the 20 ,h century. The emphasis
in both has been on the individual's rights. The Universal Declaration, which is the
embodiment of the rights of both these generations, gave them equal importance
and made them interdependent.
However, in the 1970s, the “third generation” rights emerged, which are
collective/group rights, such as the right to development, right to healthy human
environment, right to peace, and right of self-determination. Art. 27 of the
Covenant on Civil and Political Rights also recognizes group rights for minorities.
International Bill of Rights

The Universal Declaration of Human Rights, along with the International
Covenant on Civil and Political Rights and the Optional Protocol to it, and -the
Covenant on Economic, Social and Cultural Rights, together form the
“International Bill of Rights”.
With the coming into force of this International Bill, the view of
Oppenheim that “the degree of enforceability of fundamental human rights is still
rudimentary” is no more correct. In fact, the Declaration along with the two
Covenants has become the backbone of human rights jurisprudence and finds an
appropriate place in the legislations and Constitutions of many new nations (e.g.
Part III of the Indian Constitution relating to Fundamental Rights).
Enforcement of Human Rights: U. N. Machinery & Other Conventions
(I) U. N. Commission on Human Rights
It is established in Feb. 1946 by the ECOSOC under Art. 68 of the UN Charter.

The Commission is considered to be the nearest approach to permanent machinery
for the supervision of protection of human rights. The Commission consists of 43
members elected for three years term (12 from Africa, 7 from Asia, 8 from Latin
America, 5 from East European States, and 11 from West European and other
States). The Commission submits a report on each session to the ECOSOC.
It is the most universal body for the implementation of human rights. It is
available to all the members of the U.N. The work of the Human Rights
Commission (HRC) is related to standard-setting, promotional activities and
enforcement of human rights. Under its terms of reference, the HRC was directed
to prepare recommendations and reports on
166 HUMAN RIGHTS
International Bill of Human Rights; International Conventions /Declarations on

civil liberties, status of women, freedom of information; protection of minorities;
prevention of discrimination on the basis of race, sex, etc; and other matters
concerning human rights.
It may be noted that the HRC prepared the drafts for the Universal
Declaration of Human Rights and two international Covenants, and also the
Convention on the Political Rights of Women, 1954. The Commission’s role has
become most significant in the enforcement of human rights standards via
receiving of private complaints. An individual of any member State of U. N. who
feels to be the victim of the violation of human rights can send a petition to the
Commission through the U.N. Secretary Genera! (the petitioner’s identity is not
divulged).
The Commission considers petition, call for the comments of the State
Government concerned and makes recommendations. The Commission has
undertaken public investigation against particular States (viz. South Africa,
Israel) for alleged gross violation (consistent pattern of violation) of human
rights, through Ad-hoc Working Group of Experts.
Complaints against minorities received from individuals and NGOs are

transferred by the U.N. Secretary General to the Sub-Commission on Prevention of
Discrimination and Protection of Minorities. It was established in 1947 by the HRC
and submits its report to it. The complaint is examined in private and in cases of
gross violations, ad hoc committees are appointed to undertake investigation with
the express consent of the State concerned. Finally, the Commission submits a
report and recommendations to the ECOSOC.
In view of the intervention of bloc politics, the Commission (since the

1980s) has established a Working Group and Special Rapporteurs to prepare
public reports on State practice. Rather than singling out a particular country, it
collects evidences in respect of human rights violations in all States. These
reports are discussed by the Commission at public meetings, in which the
concerned States are required to defend themselves.
Besides the influential role of politics, there are also no po wers to hear
witnesses or enter territory to conduct investigations. Where the human rights
violations are established, the Commission lacks power to impose legally binding
sanctions and is merely restricted to pursuance, public criticism and, in serious
cases, isolation of the offending State.
There also exists a Commission on the Status of Women (which started first as
a sub-commission ofthe HRC) established in 1946 by the ECOSOC. It is charged
with the functions of preparing reports and making recommendations to the
ECOSOC to promote rights of women.
The acceptance of the HRC’s practice by States in responding to the
allegations against them has brought the subject of protection of human rights
within the domain of international law.
(II) Procedure under the Covenants

The two international Covenants (Covenant on Civil and Political Rights and
Covenant on Economic Social and Cultural Rights) impose legal obligations and
provide machinery for dealing with complaints of violation of the Covenants.
The Covenant on Civil and Political Rights is more specific in delineation
of these rights, stronger in creating obligations in respect of them and their
enforcement than the Covenant on Economic, Social and Cultural Righ ts. Because
under the latter, the obligations are mostly positive and their observance is
dependent upon the availability of resources to the Government.
The primary method of implementation provided under the Covenant on
Civil and Political Rights [Part IV, Arts. 28-41] is a ‘reporting procedure’. To
monitor the implementation, there is the Human Rights Committee, consisting of 18
persons of high moral character and recognized competence in the field of human
rights and having legal experience (Art. 28).
The State Parties are required to submit periodic reports to the said
Committee on the measures undertaken by them to give effect to the rights
recognized in the Covenant. The Committee considers these reports at public
hearings in which the concerned State representative is asked to defend the report.
I
In considering a State report, the Committee may receive information from
NGOs (e.g. Amnesty International, International Commission of Jurists. The
Committee then sends its ‘general’ comments to the State Parties (Art. 40). The
Committee may transmit the comments to the ECOSOC with the copies of reports.
The State Parties may make observation on any comments made by the
Committee.
It may be noted that the Human Rights Committee performs the function of
implementation of human rights in the following ways:
168 HUMAN RIGHTS
(i) Reporting procedure.

(ii) Inter-State communication system (including ad hoc conciliation
procedure).
(iii) Individual communication system.
Under the Civil and Political Rights Covenant, a State Party may complaint
against another State Party for the non-compliance with the Covenant, on the
basis of reciprocity, accepting the competence of the Committee to receive such
complaints (Art. 41). Such a procedure also exists under the European
Convention on Human Rights, 1950. Such a complaint is subject to prior
bilateral attempt at adjustment and exhaustion of domestic remedies.
Ifthe Human Rights Committee fails to find a solution within 12 months,
it may, with the prior consent of the concerned State Parties appoint an ad hoc
Conciliation Commission. Where the Commission fails to arrive at a settlement,
it indicates in its report the possibilities of an amicable settlement. The
Commission’s report is not binding.
The individuals’ communication system does not find mention in the Civil
and Political Rights Covenant. It is provided in the Optional Protocol (First
Protocol, 1966) to this Covenant. Therefore, this measure of enforcement of
human rights is available only to those individuals whose States are parties to
the Covenant as well as Optional Protocol.
The Optional Protocol empowers the Human Rights Committee to receive
and consider communications from individuals subject to its jurisdiction, who
claim to be victims of violations by the State Party of any of the rights listed in
the Covenant and who have exhausted all available local remedies. But if the
same matter is under purview of another machinery (e.g. European Convention),
the Committee will not consider that matter unless there are more than one
victims and some of them have petitioned elsewhere (in such a case the
Committee may entertain communication from one of the victims).
The State charged with a violation is under an obligation to submit to the
Committee written statements/ explanations, and steps taken to remedy the
situation. The Committee, in private, examines the case; there is no provision for
oral hearings.
The Committee forwards its views to the concerned State Party and to the
individual, and provides the General Assembly with a summary of its activities
under the Protocol. The Committee’s views are legally not binding
but, in practice, the defender States generally adhere to them by taking

appropriate actions. These views in substance involve decisions on issues of law
and fact.
The implementation mechanism under the Economic, Social and Cultural

Rights Covenant (Arts. 16-22) consists only of a system of reporting. The State
Parties submit their reports to the ECOSOC on the measures adopted and the
progress made in achieving the observance of the rights recognized [Art. 16( 1)].
In 1987, however, the supervision task has been entrusted to an Expert Committee
on Economic, Social and Cultural Rights. The Committee consists of 18 members
elected by the Covenant Parties, giving due consideration to equitable
geographical distribution.
After receiving reports (which the States are required to submit every 5
years after an initial report), they are examined at public hearings in which
reporting States are required to defend them. The Committee, after examination,
makes suggestions and recommendations of a general nature. But, based on the
national report, the Committee can make observations in its annual report that a
country is not complying with its obligations under the Covenant.
The Second Optional Protocol to the International Covenant on Civil and

Political Rights aiming at the ‘Abolition of Death Penalty’ (adopted by the
General Assembly in 1989) has similar machinery for implementation as that
under the Civil Covenant, viz. Human Rights Commission.
(Ill) Procedure under Other General Conventions on Human Rights

Some of the key International Conventions relating to Human Rights under the
aegis of the U.N. are:
(i) Genocide Convention (1948).
(ii) Convention on Status of Refugees (1951).
(iii) Convention relating to Stateless Persons (1954).
(iv) Convention on the Political Rights of Women (1953).
(v) Convention on the Elimination of All Forms of Racial Discrimination
(1965).
(vi) Convention on the Crime of Apartheid (1973).
(vii) Convention on the Elimination of All Forms of Discrimination against
Women (1979).
170 HUMAN RIGHTS
(viii) Four Geneva Conventions on humanitarian laws of war [ Vj 2 Treatment

of Prisoners, Protection of Civilians in Time of War etc (l 949)].
(ix) Convention for the Suppression of Traffic in Persons and the
Exploitation of the Prostitution by Others (l 979).
(x) Convention against Apartheid in Sports (1985)
(xi) Convention against Taking of Hostages (1979).
(xii) Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984).
(xiii) Convention on the Rights of the Child (1989).
(xiv) Convention on the Protection of the Rights of All Migrant Workers
(1990).
(xv) ILO Conventions.
A “not-so-perfect” machinery for the enforcement of human rights exists under
these Conventions. The International Labour Organization (ILO) Constitution
requires member States to submit annual reports, which are examined by a
Committee of Experts. The provision also exists to make interstate complaints,
which are referred to a Commission of Inquiry, and failing a settlement, to the
ICJ.
The Convention on the Elimination of All Forms of Racial Discrimination
provides for a Committee, whose members are elected on the basis of equitable
geographical distribution. Unlike the Committees under the two human rights
Covenants, the expenses of this Committee are borne by the State Parties to the
Convention.
The parties are to submit biennial reports on the implementation of the
Convention. The Committee’s suggestions along with States’ comments are sent
to the General Assembly through the Secretary General. There is also a
compulsory system of inter-State complaints.
The 1984 Convention against Torture has also established a Committee,
which may examine in cooperation with the State Party, any "reliable
information” containing “well-founded indications” that torture, and not
inhumane treatment, “is being systematically practised” in that State. State
cooperation may involve a visit to the State Party.
pUBUC INTERNATIONAL LAW 171
(IV) Procedure under Conventions Relating to Women

The Commission on the Status of Women (established by ECOSOC) has drafted
the most extensive Convention on Women’s Rights - the Convention gn the
Elimination of All Forms of Discrimination against Women. 1979, which came into
force on Sept. 3, 1987. India ratified it in 1993.
The implementation mechanism under the Convention has been entrusted to
a Committee. The State Parties are required to submit reports (after an initial
report) every four years on the legislative, judicial, administrative or other
measures to given effect to the provisions of the Convention. The Committee,
after examining the reports may make suggestions and recommendations in the
form of a report to the U. N. Secretary General, who transmits it to the
Commission on the Status of Women.
However, there is no provision for inter-State or individual petitions. The
Convention also fails to provide any follow-up action on the report or any
sanction if the State fails to submit the report. Further, the Commission itself
lacks any power to take action in regard to complaints concerning the human .
rights or the status of women.
At the 1993 Vienna World Conference on Human Rights, Women’s rights
were recognized as human rights; appointment of a Special Rapporteur on
Violence against Women also stressed. The Action Plan at the 1995 Copenhagen
World Summit on Social Development, aimed at empowering the women.
The Fourth World Conference on Women (Beijing, 1995) adopted the
“Beijing Declaration” and Platform of Action to promote the status of women,
which include 12 critical areas: Health, Education, Poverty, Violence, Armed and
other conflicts. Power-sharing and decision making, Human rights, Mass media,
Environment and development, Economic participation, and the Need of girls.
(V) Recent Measures for Enforcement of Human Rights

U.N. Fund for Human Rights
On 18 Dec., 1991, the General Assembly of the U. N. resolved to establish a
voluntary fund to provide financial assistance to individuals among others who are
victims of slavery (contemporary forms) and whose human rights have been
violated by such practices.
U.N. Commissioner for Human Rights
This post was created by the General Assembly through a resolution on 20 Dec.
1993. The High Commissioner’s office is situated at Geneva. Under the
172 HUMAN RIGHTS
direction and authority of the U.N. Secretary General, the High Commissioner is
required “to promote and protect the effective enjoyment of all civil, cultural,
economic, political and social rights” and “to play an active role in removing the
current obstacles, and in meeting the challenges to the full realization of all
human rights.”
The Commissioner is, thus, required to prevent violations throughout the
world.
Vienna World Conference on Human Rights

It was held at Vienna from 14 th to 25 th June 1993, to assess the progress achieved
under the 1948 Universal Declaration of Human Rights. Vienna Declaration
adopted by the Conference has been described as a kind of “Second Universal
Declaration on Human Rights.” The Conference has “taken into co nsideration as
never before, the U.N.’s concerns to make human rights a priority in its action
worldwide.”
The conference called for specific measures designed to strengthen
international human rights instruments and their monitoring mechanism, and to
improve coordination of U.N. activities for the furtherance of human rights. It
also adopted two declarations on Bosnia and Herzegovina and the other on
Angola.
The conference expressed dismay at massive human rights violation
especially in the form of genocide (acts committed with intent to destroy in whole
or in part a national, ethical, racial or religious group as such), “ethnic cleansing”
and systematic rape of women in war situations, creating mass exodus of
refugees and displaced persons. The conference supported the creation of
International Criminal Court for the purpose.
Some of the major points of Vienna Declaration are:
(i) Universality and Indivisibility of human rights.
(ii) Effective international measures to guarantee and monitor
implementation of human rights of peoples under foreign
occupation.
(iii) Right to development.
(iv) Alleviation of external debt burden of developing countries.
(v) Gender-based violence and all forms of sexual harassment and
exploitation to be eliminated.
(vi) Right of minorities.
(vii) Re-affirmation of right of self-determination.
One of the greatest achievements of the Declaration is the proposal to

establish a post of High Commissioner for human rights (the post has been later
established by the U.N.). Its adoption of ‘right to development’ as an inalienable
right is also a great achievement. So is the case with the affirmation of
universality, indivisibility and inter-dependence of human rights. However, a
great drawback of the Declaration is the exclusion ofNGOs from the drafting
committee.
Regional Protection of Human Rights
(a) European Convention for the Protection of Human Rights and Fundamental
Freedoms, 1950
It mainly incorporates the civil and political rights enshrined in the Universal
Declaration of Human Rights. The economic, social and cultural rights in the
Universal Declaration find their way in the European Social Charter of 1961. All
the members of the Council of Europe are parties to the European Convention. It
has 11 protocols, adopted generally after its coming into force on Sept. 3, 1953.
The Convention imposes binding commitments on the State Parties to
enforce and secure “to everyone within their jurisdiction,” the rights and
freedoms enlisted in the Convention. The rights ar e listed with the exceptions and
restrictions (in times of war or other public emergency). The rights and freedoms
are guaranteed by an effective machinery for their enforcement - comprising of a
Commission, a Court and the Committee of Ministers of the Council of Europe.
The European Commission of Human Rights is the principal organ which
entertains all the complaints filed under the Convention. A State Party (High
Contracting Party) may refer to the Commission any alleged breach of the
Convention by another State Party; States may support the rights of nationals of
other States. Individuals or groups or NGOs can also petition before the
Commission directly, provided the State against which the complaint is laid, has
accepted the jurisdiction of the Commission in this regard. It is a precondition of
this right that the petitioner should have exhausted the domestic remedies.
Both the State and individual petitions are sent through the Secretary
General of the Council of Europe. If the Commission fails to dispose of the
matter by negotiation, it should report to the Committee of Ministers of the Council
of Europe, which then deals with the matter. However, with effect from
174 HUMAN RIGHTS
1 Nov. 1998, both the Committee and the European Commission have been
by Protocol No. XI. Thus, the European Court of Human Rights is no ; w the
abolished
only machinery for the implementation of the provisions of
Convention.
The European Court of Human Rights was set up at Strasbourg in 1959. Its
jurisdiction is compulsory only for those States making express declarations of
acceptance or an ad hoc declaration for a particular case. Under the Convention,
only State Parties to the Convention and the Commission of Human Rights can
directly bring cases before the Court. But under Protocol IX (1990), an individual
can also approach the Court.
The European Court has rendered a signal service by developing a body of
case law concerning human rights [Lawless v Ireland; Brogan v U.K.; Lingens v
Austria; Ireland v U.K.; etc.] The Lawless case which raised important points of
procedure relating to the respective functions of the Commission and the Court
has been discussed earlier. The decisions of the European Court are binding and
are generally accepted by parties to the case (in case of non -compliance, earlier,
the Committee of Ministers could ensure the compliance).
The Court’s decisions have led to changes in the national legislation. For
example, the Belgian Penal Code was amended after the Court decided the De
Beckers case. The Court has also held many national laws and decisions in
contravention of the Convention. In The Sunday Times (Thalidomide) case (1979)
the Court ruled that the injunction imposed by the House of Lords against the
petitioner restraining him from publishing the detrimental effects of the drug
thalidomide on the grounds of contempt of court, was in contravention of Art. 10
of the Convention.
The European Convention is by far the most established regional human
rights treaty whose jurisprudence is well developed.
(b) American Convention on Human Rights, 1969

It was adopted at San Jose, Costa Rica in 1969, and came into force in 1978.
Only mem'rfers of the Organization of American States (OAS) have the right to
become parties. Like the European Convention on Human Rights, the American
Convention incorporates only civil and political r ights.
For the enforcement of the Convention rights, there exist two organs:
Inter-American Commission of Human Rights, and, Inter-American Court of
Human Rights. It may be noted that the American Convention provides for the
compulsory system of individual petitions. The Commission may receive

petitions from any person or group or NGO; it is also empowered to deal with
inter-State petitions. The Commission attempts to secure a friendly settlement.
The Inter-American Court is accessible to those State Parties who have
expressly recognized its jurisdiction, and to Inter-American Commission. The
Court has contentious as well as advisory jurisdiction. Its contentious
jurisdiction is open to individual and State petitions.
Because of its heavy dependence on the OAS and its Charter, the
Commission has exercised jurisdiction in respect of individual petitions
coming from the non-members of the American Convention. This was the
reason to entertain petitions against the United States which is not a party to
the Convention but is bound by the American Declaration of the Rights and
Duties of Man.
(c) African Charter on Human Rights and Peoples’ Rights, 1981

The heads of the Organization of African Unity (OAU) adopted this Charter in
1981, which came into force in 1986. It is popularly known as “Banjul
Charter”. This is the first human rights document that emphasized upon the
peoples’ rights, i.e. the “third generation” rights (viz. right of self -
determination, right to freely dispose of their wealth and natural resources,
etc).
Another special feature of the Charter is that it also incorporates duties of
each individual. But it does not have any “deviation clause” like that in
European Convention (viz. a State Party can take measures derogating from
the obligations under the Convention in times of war or other public
emergency threatening the nation’s life).
For the enforcement of the rights and duties under the Charter, there is
an absence of any judicial organ; there exists the African Commission on
Human and Peoples’ Rights for the purpose. The Charter provides a
compulsory system of State petitions. The Commission is also empowered to
receive communications from individuals and NGOs.
176 HUMAN RIGHTS
Protection of Human Rights in India
(a) Human Rights and Indian Constitution/ Judiciary The human rights heritage
of India may be traced to the Constitution of India. The U. N. Charter (1945)
and the Universal Declaration of Human Rights (1948) influenced the
founding fathers of our Constitution. The Fundamental Rights inscribed in
Part II! echo the values of Covenant on Civil and Political Rights, while Part
IV provisions (Directive Principles) read in the light of the Preamble, are
succulent with the economic and social concerns of the ECOSOC Covenant.
Part IV-A (Fundamental Duties) goes further into ecological and
environmental justice, gender justice and jurisprudence of compassion and
common brotherhood.
Textually, we have a Constitution which is fragrant with humanism,
socialism, democracy, people-oriented mandates with a benign slant towards
the suppressed human sector and a developmental paradigm committed to
abolition of poverty and promotion of have-nots to a status of equality. For a
variety of reasons, the Indian State has committed itself to the essentials ofthe
International Bill of Human Rights [V.R. Krishna Iyer, Human Rights in India,
p. 270].
The “Bangalore Principles” (1988) - a resolution of the Judges of the
Commonwealth countries, affirms the importance of importing, by
interpretation, the values enwombed in the UN instruments on human rights
into domestic laws, as far as possible. Moreover, the Universal Declaration
casts an obligation on member States to bring the Corpus juris of the country
into line with the norms laid down in that paradigmatic masterpiece.
India became a party to both the International Covenants on Human
Rights by ratifying them on March 27,1979, but it has not ratified the Optional
Protocol I to the Covenant on Civil and Political Rights, which allowed
individuals to petition against the State to the Human Rights Committee.
Some of the human rights which have been proclaimed in the Universal
Declaration/International Covenants and have been specifically enumerated in
Indian Constitution are: Right to life and liberty ; Right to equality; Freedom
of expression, movement, association, etc; Freedom to carry on any
occupation, trade, etc; Freedom of religion; Right against ex post facto laws;
Right to equal pay for equal work; Right to education; Protection of ch' .dren
and young persons; Right to livelihood; Rights of workers; etc.
Some of the human rights have not been specifically enumerated but they
have been recognized by the higher judiciary in India as part of the existing
fundamental rights, viz. Right to go abroad; Right to legal aid; Right to speedy
trial; Right to privacy; Right of prisoners to be treated with humanity; Right to
know; Right to shelter; Right to compensation for violation of human rights;
etc.
The international instruments came for examination by the courts in
India. In its earlier decisions, the higher judiciary opined that the remedy for
breaches of international law in general is not to be found in the law courts of
the State because international law per se or proprio vigore has not the force or
authority of civil law, till under its inspirational impact actual legislation is
undertaken [ADM Jabalpur \ Shuk/a AIR 1976 SC 1207; Jolly George Verghese v
Bank of Cochin AIR 1980 SC 470].
For example, in Jolly Verghese case, the issue was whether a judgment-
debtor could be arrested and detained in prison in execution of a money decree,
or for failing to fulfill contractual obligations. While Art. 11 of the Covenant
on Civil and Political Rights prohibits so, Sec. 51 of the Indian Civil Procedure
Code authorizes so. The Supreme Court observed:
“India is a signatory to this Covenant and Art. 51 (c) of the
Constitution obligates the State to foster respect for
international law and treaty obligations in the dealings of
organized peoples with one another. Even so, until the
municipal law is changed to accommodate the Covenant
what binds the court is the former, not the latter”.
Though in Francis Coralie v Admn., UTof Delhi (AIR 1981 SC 746), the
Supreme Court read Art. 7 of the Covenant on Civil and Political Rights and
held that the right to live with basic human dignity was implicit in the right to
life guaranteed under Art. 21 of the Constitution and it included the right not to
be subjected to torture or to cruel, inhuman or degrading punishment or
treatment.
The Supreme Court has, in a number of recent decisions, ruled that even
in the absence of Parliamentary legislations under Art. 253 implementing
international covenants to which India is party, the provisions of such
covenants, as are “not inconsistent with the Fundamental Rights and in
harmony with its spirit, must be read into those provisions to enlarge the
meaning and content ...” and that “the executive power of the Union under Art.
73 is also available,till the Parliament enact legislations...” [Vishaka v
178 HUMAN RIGHTS
State of Rajasthan AIR 1997 SC 625; Apparel Export Promotion Council v A.K.
Chopra AIR 1999 SC 625],
Thus, if there is a conflict between the provisions of an International
Convention and that of Indian Constitution/law, obviously the latter will
prevail. But, if there is no conflict and the relevant provisions relating to
fundamental rights are of wide amplitude to encompass the provisions of the
international convention, their help can be taken for interpreting
constitutional provisions or they can be read into constitutional provisions.
(b) Legislations Relating to Human Rights in India

India is a party to many international conventions. To give effect to its
commitments, the Parliament has enacted several legislations, viz.
(0 Protection of Civil Rights Act, 1955.
(ii) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989.
(iii) Immoral Traffic (Prevention) Act, 1956.
(iv) Maternity Benefit Act, 1961.
(v) Equal Remuneration Act, 1976.
(vi) Dowry Prohibition Act, 1961.
(vii) Indecent Representation of Women (Prohibition) Act, 1986.
(viii) Commission of Sati (Prevention) Act, 1987.
(ix) Children Act, 1960.
(x) Child Labour (Prohibition and Regulation) Act, 1986.
(xi) Juvenile Justice Act, 1986.
(xii) Bonded Labour (System) Abolition Act, 1976.
(xiii) The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition
of Sex Selection) Act, 1994 (the Act is meant to check the growing
menace of female foeticide i.e. the killing of girl foetus - the hidden
genocide, in India).
(xiv) Medical Termination of Pregnancy Act, 1971.
(xv) Transplantation of Human Organs Act, 1994.
(xvi) Mental Health Act, 1987.
(xvii) Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995.
(xviii) National Commission for Minorities Act, 1992.

(xix) National Commission for Women Act, 1990.
(xx) The Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 (the Act is meant to give
the tribals'and other forest-dwelling communities certain livelihood
rights in the forest areas they inhabit; earlier, in view of the various
forest and wildlife legislations, these tribes have been declared
'encroachers' in their own land i.e. forestland).
(xxi) Several legislations relating to workers and environment.
In 1992, Parliament amended the Citizenship Act, 1955, in order to confer
Indian citizenship on a child bom to an Indian mother outside India. This was
done to grant women equal rights with men regarding the nationality of their
children.
In Vishaka case, the apex court observed:
“Gender equality includes protection from sexual
harassment and right to work with dignity, which is a
universally accepted basic human right. In the absence of
suitable domestic legislation in this sphere, international
conventions/ norms, so far as they are consistent with the
constitutional spirit, can be relied on, viz. Convention on
the Elimination of All Forms of Discrimination against
Women, Arts. 11, 22-24.
At the Fourth World Conference on Women in Beijing, the
Government of India has also made an official commitment,
inter alia, to formulate and operationalize a national policy
on women which will continuously guide and inform action
at every level and in every sector; to set up a Commission
for Women’s Rights to act as a public defender of women’s
human rights, etc.”
Again, in Apparel Export Promotion Council case, the apex court observed:
“The courts must forever remain alive to the international
instruments/conventions and apply the same to a given case
when there is no inconsistency between the international
norms and the domestic law occupying the field.”
180 HUMAN RIGHTS PUBLIC INTERNATIONAL LAW 181
The Court said that the message of international instruments such as and effectiveness of National Human Rights Institutions. They are:
the Convention on the Elimination of All Forms of Discrimination against Independence through legal and operational autonomy. Independence through
Woman, and the Beijing Declaration which directs all State parties to take financial autonomy. Independence through appointment and dismissal
appropriate measures to prevent discrimination of all forms against women procedures, and, Independence through pluralism of composition. Based on the
besides taking steps to protect the honour and dignity of women is clear and same guidelines, the Government of India brought forth the Protection of
loud. Human Rights Act, 1993, which established India’s National Human Rights
In People’s Union for Civil Liberties v Union of India (AIR 1997 SC Commission (NHRC) in the same year. The Act has recently been amended in
1203), People’s Union for Civil Liberties (PUCL) filed a writ petition under 2006.
Art. 32 of the Constitution of India for issue relating to the killing of two Sec. (2) (d) of the Act defines ‘human rights’ as the rights relating to
persons in a fake encounter by police and awarding of the compensation to the life, liberty, equality and dignity of the individual guaranteed by the
family members of the deceased. As against the ‘right to life’ guaranteed by Constitution or embodied in the International Covenants and enforceable by
Art. 21 of the Constitution, the State pleaded the defence of sovereign courts in India.
immunity. It was held that the defence of sovereign immunit y did not apply to The NHRC consists of the following: (a) a chairperson who has been the
the case in question. It was further held that the provisions of international Chief Justice of Supreme Court; (b) one member who is, or has been the Judge
covenant on civil and political rights, 1966 elucidating and effectuating of Supreme Court; (c) one member, who is or has been the Chief Justice o f
fundamental rights, are enforceable [The PUCL relied upon Art. 9(5) of said High Court; and (d) two members to be appointed amongst persons having
covenant and raised a question, viz. to what extent can the provisions of such knowledge of or practical experience in matters relating to human rights.
international covenants /conventions be read into national laws].
In Chairman, Railway Board v Chandrima Das (2000) 2 SCC 465, the Besides these, the chairpersons of National Commission for Minorities,
apex court held that when a woman, even though a foreign national, gang National Commission for SCs/STs and National Commission for Women shall
raped by the railway employees in Railway Yatri Niwas, Calcutta, Union of be deemed to be the members of the Commission for the discharge of the
India which runs the Railway as a commercial activity, is vicariously liable to functions specified in Sec. 12 of the Act. The Chairperson and members hold
pay compensation to the victim for crime committed by its employees. office for a term of 5 years.
Further, the ‘right to life’ guaranteed by the Constitution of India is available The headquarters ofthe NHRC is located at Delhi. The President of India
not only to Indian citizens but to foreign nationals (including tourists) also. appoints the Chairperson and other members of the NHRC based on the
The court held that since the word ‘life’has been used in Art. 21 of the recommendations of a Committee comprising ofthe Prime Minister, Speaker of
Constitution and recognized as a basic human right in the same sense as Lok Sabha, Home Minister, Leader of Opposition at both lower and upper
understood in the Universal Declaration of Human Rights of 1948, there is no houses and the Deputy Chairman of Rajya Sabha (Sec. 4). The first appointed
reason why it should be given a narrow meaning. The Declaration has the Chairperson of NHRC was the Chief Justice of India, Ranganath Mishra.
international recognition as the “Moral Code of Conduct” having been
As an autonomous national institution for the protection of human rights,
adopted by the U.N. General Assembly. The applicability ofthe Declaration
the NHRC has an important role to play in pressuring the Government to ratify
and principles thereof may have to be read, if need be, into the domestic and enforce human rights tools. According to Sec. 12 of the Act, the
jurisprudence. Commission shall perform the following functions-.
(a) Inquire suo motu or on a petition presented by a victim or any
(c) Protection of Human Rights Act, 1993 / National Human Rights Commission
(NHRC) other person on his behalf into complaint of violation of human
In 1992, the U. N. Commission on Human Rights adopted a consensus rights or abetment thereof, or negligence in the prevention of
resolution, the “Paris Principles”, articulating the status and responsibilities of such violation by a public servant.
national institutions for the protection and promotion of human rights. The (b) Intervene in any proceeding involving any allegation of
Principles outlined four yardsticks by which to measure the independence violation of human rights pending before a court with the
approval of such court.
182 HUMAN RIGHTS
(c) Visit under intimation to the State Government any

jail'institution to study the living conditions of inmates and
make recommendations thereon.
(d) Review the safeguards provided by or under the Constitution or
any other law for the protection of human rights and
recommend measures for their effective implementation.
(e) Review the factors (including acts of terrorism) that inhibit the
enjoyment of human rights and recommend appropriate
remedial
measures.
(f) Study treaties and other international instruments on human
rights and make recommendations for their effective
implementation.
(g) Undertake and promote research in the field of human rights.
(h) Spread human rights literacy among various sections of the
society and promote awareness of the safeguards available for
the protection of human rights.
(i) Encourage the efforts of NGOs working in the field of human
rights.
(j) Such other functions as it may consider necessary for the
promotion of human rights.
The NHRC has its own investigating staff for scrutinizing cases of
human rights violations. Under the Act, the Commission may utilize the
services of any officer/investigating agency of the Central Government/State
Government.
The main task of the NHRC is to make reports to the government on
human rights violations in a particular situation. Under Sec. 20 of the Act, the
Commission is required to submit an annual report to Central and to the State
Government concerned and may at any time submit special reports on any
important or urgent matter.
The Central /State Government shall cause the annual/special reports to
be laid before each House ofthe Parliament/State Legislature, along with a
‘memorandum of action’ taken or proposed to be taken on the
recommendations of the Commission and the reasons for non-acceptance of
the recommendations, if any. On the submission of a report, the government is
required to take action within one month in respect of general complaints and
within three months for complaints relating to the armed forces. If the need be,
the NHRC can also file a writ petition in court.
The Commission shall perform functions pursuant to the directions
issued by the Supreme Court in exercise of the jurisdiction under Art. 32 of the
Constitution (Sec. 12 of the Act). The Apex Court has laid down that the
Commission would function pursuant to the directions issued by this Court and
not under the Act under which it is constituted. In deciding the matters
referred by this Court, NHRC is given a free hand and is not circumscribed by
any conditions. Therefore, the jurisdiction exercised by NHRC in these matters
is of a special nature not covered by any enactment or law, and thus acts sui
generis [Premjit Kaur v State of Punjab Al R 1999 SC 340].
The Act also provides for the establishment of ‘State Human Rights
Commission’ which ‘may’ be constituted by State Government. Only 12 States
have established such Commission. The Act also provides for the
establishment of‘Human Rights Courts’ in Districts.
Assessment of the Working of NHRC

The Commission has rendered a signal service for the cause of protection,
promotion and observance of human rights, especially in the field of civil
liberties. For example, in the field of prevention of custodial death, rape and
torture.
According to the NHRC’s annual report of 1998-99, the Commission has
received three lakh complaints since 1993. Almost 70,000 complaints are filed
every year. More than half are dismissed by the Commission. Over 40 per cent
of all cases pertain to complaints against police, followed by human rights
violations in jails.
However, the Commission does not enjoy any power beyond making
reports after investigating the case situations. It has no teeth and it can take no
action directly. It can only recommend and the Government may or may not
accept its recommendations. Thus, its recommendations are not binding on the
Government. It does not have power of prosecution.
The Commission does not provide any remedy other than what has
already been provided under the Constitution by way of fundamental rights.
The only benefit which the victim gets is that after the investigation by the
Commission, if it is established that the violation of human rights has taken
place, it can recommend to the courts to initiate proceedings. The above
method provides relief to the victim or to the activist in the sense that in such
cases
184 HUMAN RIGHTS
they do not require the intervention of the courts to initiate investigation.

Further, the courts are more likely to look seriously at cases sent by the
Commission in comparison to victim or activist approaching directly.
The inquiry made by the Commission is not always impartial in view
of the fact that the Commission is not equipped with an independent
investigative agency. Its own investigative wing is not at all effective in size
to make investigations of numerous cases of human rights violations.
The Commission has also in certain matters, especially in respect of
action taken by armed forces against terrorists, seems to be taking one-sided
view. Its report always highlights the excesses committed by armed forces and
never emphasizes the excesses committed by the terrorists.
The NHRC has proposed certain amendments to improve its
functioning:
(i) Encompass all paramilitary forces under the purview ofNHRC.
(ii) NHRC Chairperson to be a part of the Committee to select its
members. A change in the composition of the NHRC with two
judicial and three non-judicial members of whom one should be
a woman.
(iii) The Commission to be empowered to recruit its own
investigating staff.
(iv) All States to appoint State Human Rights Commission.
Defaulters like U.P. and Bihar are today the major contributors
of complaints.
(v) NHRC’s annual report to be tabled in Parliament within 3
months of its submission. If the Government fails to do so, the
Commission should be allowed to go public with the report.
(vi) To confer greater financial autonomy on the NHRC.
The first and the primary task in furthering the human rights is the study of
the real situations, practical problems and actual obstacles. No national
institution or human rights commission, howsoever effective it might be, can
provide food, shelter, clothing, education and health facilities to the wanting
millions. It is the duty of the Government to provide these basic rights which
are essential for the promotion of human dignity. What the Commission is
required to do is to develop a culture of human rights, which can be achieved
by making people aware of their rights.
Concluding Remarks on Human Rights

[n spite of the impressive record of the United Nations in setting the norms of
human rights, and setting up the international and regional machinery for their
observance and enforcement, their violations are rampant. This requires some
political will and concerted efforts at the national, regional and international
levels by the State. There must be perennial vigilance.
Though the concept of “domestic jurisdiction” has not remained
absolute in the matter of human rights violations, the national sovereignty is
still a formidable obstacle in the enforcement of human rights. Furthermore,
the protection of human rights is closely dependent upon many other factors,
viz. international peace and security, and the economic and social development
of nations, which require close cooperation between the States.
“The human rights movement should itself give equal

priority to economic, social and cultural rights together with
civil and political rights. It should search for ways to play
as prominent a role in the future in the monitoring and
implementation of economic, social and cultural rights as it
has in the past in the monitoring and implementation of civil
and political rights” (lan Martin, Secretary-General,
Amnesty International, 1986-1992).
The ICJ (International Court of Justice) is not a human rights court in
the contemporary sense of that term. The Statute of the court provides, in Art.
34, that: “Only States may be parties in cases before the Court.” It follows that
individuals, corporations, NGOs, etc. may not be parties to contentious cases
before the court. Moreover, the focus of the large majority of contentious
cases between States, and advisory opinions given by the Court has not been
on human rights questions.
In comparison, the European Court of Human Rights, the Inter-

American Court of the Human Rights and some other international judicial
bodies provide for adjudication of human rights. Therefore, the World Court’s
statute should also be suitably amended to cognize human rights questions by
modifying Art. 34.
It is disheartening to note that the First Protocol to the International
Covenant on Civil and Political Rights, which gives teeth to the Covenant still
remains unratified by most of the Powers, U.S., U.K. and India included. The
U.S. has not, with all its boasts, even now signed the Covenant on Economic,
Social and Cultural Rights.
9
INTERNATIONAL ORGANIZATIONS
THE UNITED NATIONS (U.N.)
Brief Introduction
‘Organization of nations which is the result of treaties based
on international law is called international organization’
(Tankin).
International organizations- bodies of permanent institutions with the
cooperation of States- are the ‘subjects’ of international law, which came into
existence only in the second half of 19th century. Each international
organization is the creation of multilateral treaties. These treaties and the
other rules, which regulate the working of the organizations, might be
considered as ‘International Constitutional Law’. Decision -making was carried
on in two ways: (i) By drafting international treaties and submitting them to
member-States for ratification, or (ii) By adopting resolutions recommending
action by member-States.
The United Nations Organization (UNO)

Prior to the UNO, the League of Nations (established by the Treaty of
Versailles, 1919) aimed to promote international peace and security. The idea
of creating an effective organization was first mooted out in the Atlantic
Charter, 1941. The United Nations Declaration, 1942, followed it. Franklin
Roosevelt is associated with the phrase 'United Nations'.
The UNO finally came into existence on October 24,1945. The
organization was formed in San Francisco in 1945 under a permanent Charter
(ratified by 50 countries) that had its inception in conferences (1941 -45) held
by nations opposed to the fascist coalition of Germany, Japan, Italy, & their
satellites. The headquarters has been in New York City since 1946 and the
membership (2003) consists of 191 nations. East Timor being the latest entry.
[186]
Aims and Objectives

The UNO is governed by its Charter, which is the result of a multilateral treaty
by its members. It not only deals with the constitution of the UN, but also
describes rights and duties of member Sates. The original copy of the U. N.
Charter is kept safely at National Archives of USA.
The aims! objects of the U.N. are set forth in the Preamble, which states
that “We the people of the United Nations” are determined:
(i) to save the succeeding generations from the scourge of war;
(ii) to reaffirm faith in fundamental human rights and in the dignity
and worth of the human person;
(iii) to reaffirm faith in the equal rights of men and women, and all
nations large and small;
(iv) to establish conditions under which justice and respect for
international law and international obligations can be maintained;
(v) to promote social progress, etc.
(vi) to maintain international peace and security;
(vii) to ensure that armed forces shall not be used, save in the common
interest; and
(viii) to promote economic and social advancement of all the people.
The Preamble realizes the fact that ‘peace is not mere absence of war’. It sets
before the United Nations the object of positively achieving peace by
recognizing the worth and dignity of the individual, his fundamental rights and
by promoting social progress and better standards of life.
Purposes and Principles
Article 1 of the Charter enunciates the purposes (objectives) of the UN: To
maintain international peace and security; develop friendly relations among
nations; foster international cooperation in social, economic, cultural and
humanitarian matters; develop respect for human rights and freedom; take
necessary steps to achieve these objectives.
The main purpose of the UN is to maintain international peace and
security, and thus to prevent use of force as a means of settling international
disputes. The second-most important purpose is to strive to bring about friendly
relations among nations, based on independence (self-determination) and
sovereign equality. The main problem before the UN is to'reconcile these two
purposes.
188 INTERNATIONAL ORGANIZATIONS (UNO/ICJ/ICC)
Article 2 lays down the following basic principles to be observed both

by the UN and its members:
(i) Basis of UN shall be ‘sovereign equality’ of its members.
(ii) The member States shall fulfill in good faith their obligations
under the Charter.
(iii) The member States shall settle their disputes by peaceful means.
(iv) Member States shall not threaten or use force against territorial
integrity/ political independence of another member State.
(v) All member States are to assist the UN when it takes preventive
or enforcement actions against a State.
(vi) UN to ensure that ‘non-member States’ act in accordance with
these principles, so far as may be necessary for the maintenance
of international peace and security.
This right of the UN to lawfully affect ‘non-member States’ is supported by
the decision of ICJ in Reparation for Injuries Suffered in the Service of the United
Nations Case.
(vii) UN shall not interfere in the matters, which are within the
domestic jurisdiction of member States. But, this principle shall
not prejudice the application of the enforcement measures under
Chapter VII (action with respect to the threat to the peace, acts
of aggression, etc.).
Membership
The UN is an inter-governmental organization in which ‘sovereign
independent States’ can only be members. According to Art. 4, membership of
the UN is open to “all peace loving States which accept the obligations
contained in the Charter, and are able and wiling to carry out them”. However,
no State has a right to be admitted as a member of the UN.
Switzerland, which was a ‘neutral’ country', has become a member of
the U.N. by a referendum held in that country in 2002. There are some
countries which are still not a m-'-mber of the U. N. viz. Taiwan.
There are two types of members: (a) Original members- those States who
participated in the San Francisco Conference (1945) and signed and ratified
the Charter, (b) Members subsequently admitted- a State can be admitted when it
is first recommended by a majority of seven members, including all five
permanent members of Security Council and later approved by 2/3 majority of
General Assembly.
The ICJ in its advisory opinion on Conditions of Membership in the U.N.

(1948) said that in the absence of a favourable recommendation by the Security
Council, the General Assembly has no power to admit a new member on its own
decision. On the other hand, the General Assembly has the power to reject the
recommendation of the Security Council for membership of a State.
Suspension and Expulsion
Art. 5 provides that a member State, against which preventive or enforcement
action has been taken by the Security Council, may be suspended by the General
Assembly upon the recommendation of the Security Council. Art. 6 lays down
that the General Assembly may expel upon the recommendation of the Security
Council any member State which is persistently violating the principles
contained in the Charter.
As regards the withdrawal of membership, though there is no provision in
the Charter, the San Francisco Conference adopted a declaration that a member
State can withdraw “because of exceptional circumstances”.
The Organs of UNO

The following are the major organs of the UN:
(i) The General Assembly.
(ii) The Security Council.
(iii) The Economic and Social Council.
(iv) The Trusteeship Council.
(v) The International Court of Justice.
(vi) The Secretariat.
In addition, the Charter authorizes the General Assembly and Security Council
to establish ‘subsidiary organs’ which are deemed necessary for the
performance of their functions.
General Assembly
It is the only principal organ of the UNO consisting of all members. It is a
plenary organ ('Parliament of Men’). Each member State has one vote and five
representatives/ delegates. The General Assembly regularly meets once a year
(in the third week of the month of September). But special sessions can also be
convened by the Secretary General either on the request of Security Council or
on the request of majority of member States or at the request of one member
concurred by a majority of member States.
It is mainly a deliberative body with powers of discussion, investigation,

review, recommendation and criticism about the work of the UN as a whole
including its other organs and specialized agencies. Though primarily a
recommending body without having binding effect, the General Assembly can
also take final decision over certain matters like, budget and admission/ sus-
pension/expulsion of a member, etc.
Decisions on “important questions” are taken by a 2/3 majority of mem-
bers 'present and voting’. The important questions include: recommendation
with respect to the maintenance of international peace and security; the elec-
tion of members (non- permanent) of the Security Council, the ECOSOC, the
Trusteeship Council; the admission of new members; the suspension and
expulsion of members; questions relating to trusteeship system, and budget
(Art. 18). All other decisions are taken by a simple majority.
The General Assembly cannot make any recommendation to the Mem-

bers or to the Security Council on any question or any dispute or situation
over which the Security Council is exercising its functions. The primary re-
sponsibility of maintaining peace and security has been entrusted to the Secu -
rity Council, and the General Assembly can recommend measures only when
the Security Council refers such matters to it. It is empowered to discuss any
question relating to such matters brought before it by a member State or by
Security Council or a non-member State and make recommendation on it.
It could also call the attention of Security Council to any situation
which is likely to endanger international peace and security. Further, it may
consider the general principles of cooperation in the maintenance of
international peace and security, and may make recommendation to the
Members or to the Security Council or to both.
The other important powers and functions ofthe General Assembly are:
(i) To supervise the international trusteeship system; (ii) To adopt amend -
ments to the Charter; (iii) To elect members of other organ s of UN, viz. 10
nonpermanent members of Security Council, 15 judges of ICJ, etc.; (iv) To
elect Secretary General of UN; (v) To adopt international conventions.
Security Council
It is a continuously functioning body, originally consisted of 11 members, but
since 1965 of 15 members: Five permanent members (China, France, Soviet
Union, UK and USA) and Ten non-permanent members (elected by the General
Assembly for a period of 2 years keeping in view the contribution
of member States to maintenance of peace and security). In order to have

equitable geographical distribution, 5 members from Afro -Asian nations, one
from Eastern Europe, two from Latin America and two from Western countries
are elected.
It may be noted that in the U.N.O. regular budget, the contribution of
USA is 25%, while that of Japan is 20%. In peace-keeping operations, the
contribution of USA out of the total expenditure is 30%.
A retiring member State is not eligible for immediate re-election. Each
member State of the Security Council has one representative. It may be noted
that the member States of UN who are not members of the Security Council may
participate (without vote) in the discussion of the Security Council if the Coun -
cil considers that the interests of that member are specially affected or the
member State is a party to a dispute. In the latter case, even a non-member
State can be invited.
Voting Procedure: Each member State of the Security Council has one vote.
Decisions of the Security Council on procedural matters (e.g. time and place of
meetings, adoption of procedural rules) are to be made by an affirmative vote of
9 members; and, decisions on all other substantive matters are to be made by an
affirmative vote of 9 members including the concurring votes of five permanent
members.
If a permanent member casts a negative vote on a substantive matter, th e
decision is blocked or “vetoed” i.e. does not come into existence. USSR used
'veto’ for the first time in Security Council. It may be noted that in case of
pacific settlement of dispute, a party to a dispute (even a permanent member)
must abstain from voting.
Further, the question whether a particular matter falls within the category
of procedural matter or not, also requires concurring vote of permanent mem -
bers. Thus, a veto could also be exercised here also. This constitutes the
“double veto” (first, by casting a negative vote against calling the matter as
"procedural’ after which the matter becomes ‘substantive’, and second, by
casting another negative vote against this ‘substantive’ matter). It may be noted
that five permanent members do not enjoy any veto power in the General
Assembly.
This “veto power” of five permanent members (“Privileged powers”) is
against the principle of sovereign equality enunciated in the Charter (Kelsen).
The justification given for veto power is that the lack of unanimity a mongst the
permanent members might split the UN. and the organization might meet the
fate ofthe League of Nations. According to Starke, as the permanent members

bear the main burden of responsibility for maintaining peace and security, no
permanent member should be compelled by the vote of the Security Council
to follow a course of action with which it disagrees.
The “Uniting for Peace” Resolution of 1950 according to which the
General Assembly can take up an issue which is likely to threaten the
international peace and security and which the Security Council has failed to
resolve as a result of a veto, has helped the UN to neutralize some effects of
veto.
A Work-Group headed by the President of the U. N. General Assembly
Razali Ismail has recommended for a increase in membership of Security
Council from 15 to 24. The logical basis of increase in the number of
members (permanent as well as non-permanent) in Security Council is
increase in the number of members of General Assembly. Russian President
Vladimir Putin has openly supported for ‘permanent membership’ of India in
Security Council.
Powers and Functions: The functions of the Security Council are primarily of
an executive nature, almost exclusively confined to the maintenance of
international peace and security (Art. 25). It also exercises several other
powers concerning the structure and functioning of the UN and shares some
powers with the General Assembly. To take prompt and effective action, it
acts as the executive body of the UN with ‘Great Powers’ as its core members.
All members of the UN agree to abide by and carry out its decisions.
The powers and functions of the Security Council include:
(a) Pacific settlement of dispute: In disputes which are ‘likely to endanger
the maintenance of international peace and security’, the Council
may call on the parties to settle the dispute by negotiation, inquiry,
mediation, or other peaceful means (Art. 33). If they failed to reach
an agreement, they are obliged, under Art. 37, to refer the dispute to
Security Council which shall then decide either to recommend
‘appropriate procedures/ methods’ of settlement or ‘actual terms of
settlement.’ If it is a legal dispute, it is to be referred to ICJ.
Under Art. 34, the Security Council has the power to investigate any “dispute”
or “situation” inimical to international peace and security. It may investigate
either on its own or when it is brought to its notice by member States or
General Assembly or Secretary General or a non-member State which is a
party to the dispute.
(b) Preventive and enforcement action to maintain peace and security: If the
dispute or situation is of serious nature resulting in “thr eat to peace,
breach of the peace, or act of aggression”, the Security Council has the
power to recommend such measures as are necessary to maintain or
restore peace (Art. 39).
It is to be noted that while recommending measures under Art. 37 or Art. 39, th e
Council may exercise its powers “by peaceful means”, no such restriction exists
on its enforcement powers relating to suppression of threats to peace, breaches of
peace and acts of aggression. It can decide any of the enforcement actions: non -
military action (e.g. economic blockade, cutting off diplomatic relations), or
military action which may also involve blockade. The military action is resorted
to when other measures turned out to be inadequate.
(c) Other executive powers- include:
(i) The Security Council shall encourage the pacific settlement of
local disputes through “regional arrangements/ agencies”.
(ii) Control and supervision of “trust territories” classified as
strategic areas (viz. Pacific Islands).
(iii) Admission, suspension and expulsion of members- The General
Assembly could not on its own (suo motu) admit, suspend and
expel a State to/ from UN in case the Security Council failed to
recommend. The Security' Council may restore the rights and
privileges of a member State suspended by General Assembly.
(iv) The Security Council takes part along with the General Assembly
in the appointment of Secretary General of UN, and in the
election of the Judges of ICJ.
(v) Amendment of Charter- As per Art. 108, approval of five
permanent members is essential along with 2/3 members of
General Assembly.
It may be noted that the second method of altering the Charter is by review
method. Art. 109 provides that a general conference of the Members of UN for
the purpose of reviewing the Charter may be held, if so decided by 2/
3 members of General Assembly and by a vote of any seven members of the
Security Council. It may be noted that a review’ of Charter means the alterations
of the Charter even regarding the fundamentals on the basis of which the
Charter is formulated, while amendment of the Charter might mean altering the
Charter in its minor details.
Peace-keeping Machine of the UN: The term “peace-keeping” is not used in the
UN Charter. It has evolved over a period of time. In the absence of Security
Council’s enforcement action, interposition forces, groups/ missions can be
sent by UN to areas of conflict for the restoration or maintenance of peace.
When such a mission operates, unless the Security Council has provided to the
contrary, the operation of the mission does not depend on the consent of the
concerned States.
The Security Council alone has the responsibility to establish and oper-
ate a force compulsorily in the territory of a member State. However, for the
establishment of peace-keeping force, whether the consent of the host State is
necessary or not has been a subject of controversy.
The Economic and Social Council (ECOSOC)

The Charter of UN in order to achieve the economic and social advancement
of all people, created the ECOSOC as a permanent organ of UN with a view to
secure international prosperity, stability and justice. The Council originally
had 18 members but now composed of 54 members, elected by General
Assembly for a term of 3 years.
The functions of ECOSOC include: To discuss international economic
and social issues and formulate recommendations to member States and to
other organs and agencies of UN; To recommend for promotion of respect of
human rights and freedom; To prepare draft conventions on matters within its
scope of powers to General Assembly; To coordinate the activities of the
“specialized agencies” of the UN; etc.
The Council has established four regional economic commissions for

Europe, Asia and Far East, Africa and Latin America. The Council can also
establish “functional or ad hoc commissions” to deal with particular subjects
such as Human Rights, Population, etc.
The Trusteeship Council

The Charter of UN provides for an ‘International Trusteeship system’ with the
objectives of furthering international peace and security to promote the
advancement of the inhabitants of the Trust territories and their progressive
development towards Self-Government or independence.
‘Trust territories’ include territories held under mandate at the
commencement of the Charter; territories, which may be detached from enemy
States as a result of Second World War; and, territories voluntarily placed
under the system by States responsible for their administration.
The "Trusteeship Council’ consists of the members administering trust

territories, members of Security Council not administering trust territories, and,
members elected by the General Assembly. The Trusteeship Council is of his-
torical importance because today only the Trust territory of Pacific Islands
continues under the system of which the USA is the trustee.
The Secretariat
For smooth running of UN, for execution of its decision, and for administering
of its policies and programmes, the Charter created a Secretariat headed by a
Secretary General - appointed for a term of 5 years by the General Assembly on
the recommendation supported by nine affirmative votes (including the
concurring vote of five permanent members) of the Security Council.
Every person is required to take an oath before the start of his work in the
U.N. Secretariat. This oath is attributed to the world organization. There are six
official languages recognized by the UNO: (i) Chinese (ii) English (iii) French
(iv) Russian (v) Spanish (vi) Arabic.
The Secretary General is the chief administrative officer of UN and its
organs. He attends all meetings of UN and its organs. He is expected to act
without any guidance from the General Assembly or the Security Council. He
may bring to the attention of Security Council the matters which may threaten
the international peace and security. He has to submit Annual Report to the
General Assembly on the working of UN. He can summon special sessions of
General Assembly on the request of Security Council or of majority members of
UN.
The Secretary General acts as the registering authority of all treaties an d
international agreements. He has been assigned the control of various peace -
keeping forces created by the UN. It may be noted that he must maintain the
‘exclusive international character of the UN’. Thus, he should not seek or
receive instructions from any Government or from any authority external to the
organization.
THE INTERNATIONAL COURT OF
JUSTICE (ICJ)
Brief Introduction
The need for the establishment of a Permanent Court to solve international
disputes was felt in the First Hague Conference. It was in the Second Hague
Peace Conference, the USA proposed for the establishment of such a Court.
The Permanent Court of International Justice (PCIJ) was established in 1921
under the covenant of the League of Nations. After its dissolution, the new
International Court of Justice (ICJ) started functioning on 18 April 1946 with
the headquarters at the Hague.
ICJ is the principal judicial organ ofthe UNO. The rules concerning the
ICJ are set out in a Statute annexed to the UN Charter. All members of the UN
are ipso facto parties to the Statute of ICJ. The member States are under an
obligation to comply with the decision of ICJ in the cases to which they are
parties.
The function of the ICJ was conceived primarily to decide legal
disputes between State parties when they agree to submit their dispute to it.
The ICJ was not given the power of judicial review over the actions taken by
other international organs. Thus, the absence of compulsory'jurisdiction over
States and lack of power of judicial review makes it a weaker Court than the
municipal courts.
Art. 34 (1) of the Statute provides that “only States may be parties
before the Court.” But the international organizations may be requested to
provide information relevant to cases before the Court. International
organizations may invoke the advisory jurisdiction of the Court. Thus, the UN
may request the Court to give an advisory opinion on any legal question, but it
cannot bring a claim in contentious litigation before the Court. Individuals and
corporations totally lack any locus standi as parties before the Court. The
individuals can bring claims only through their own Governments.
Organization of ICJ
The Court consists of 15 judges who are elected regardless of their
nationality, from among persons of high moral character who possess the
qualifications required for the appointment to the highest judicial office of
their own States, or, who are jurisconsults of repute in international law. Bu t,
no two judges shall be elected from the same State.
The system of election is based on the “Root-Phillimore plan” devised in

1920. The list of persons to be elected as the judges is prepared by the national
groups in the Permanent Court of Arbitration on the request of Secretary Gen -
eral of UN. No national group shall nominate more than four persons. The
Secretary General then prepare the list of nominees in alphabetic order from
which judges are to be elected by the General Assembly and Security Council,
each voting independently, but simultaneously (by absolute majority).
These two organizations keep in mind that the judges elected are repre-
sentatives of “main forms of civilization” and “principal legal system ofthe
World”. Under a sort of “gentlemen’s agreement”, the judges are elected on
regional basis and as per present practice 3 from Africa, 3 from Asia, 2 from
Latin America, 2 from Eastern Europe and 5 from Western Europe and other
countries are elected. The casual vacancies due to death or resignation are also
filled in the same manner.
One third, i.e. 5 judges are elected, once in every three years. Thus, once
elected a judge enjoys tenure of 9 years and is also eligible for re -election. The
seat of the Court is at the Hague, though it can also sit elsewhere if it considers
necessary'. The quorum of the Court is nine judges. The judges elect a President
and a Vice-President from among themselves, to preside over the Court for a
period of three years.
The decisions regarding the disputes before the Court are taken by
majority of votes of judges and in case there is a tie, the President of the Court
exercises his casting vote. The salary and allowances of judges are determined
by the General Assembly. Each judge of the Court receives an annual salary.
The judges enjoy diplomatic privileges and immunities.
No judge of the Court may exercise any political or administrative func-
tion or engage in any other occupation of a professional nature. The ju dges of
the nationality’ of each of the parties retain their right to sit in the case before the
Court. If the Court includes upon the bench a judge of the nationality of one of
the parties, any other party may choose a person to sit as a judge. Thus, ad hoc
judges could be appointed so.
The Statute also provides for the formation of three types of chambers:
the chambers of summary procedure, chambers for dealing with particular cat -
egories of cases, like labour or environment, and chambers for dealing with a
particular case.
Though the judgment of the Court is “final and without appeal", yet a
State party may appeal for revision of judgment under certain circumstances.
The Court’s decision has no binding force except between parties and in
respect of that particular case only. Art. 38 (1) of the Statute of ICJ directs
the Court to apply international law to disputes derived from international
conventions, international customs, general principles of law, and subject to
Art. 59, judicial decisions and teachings of the most highly qualified
publicists.
Jurisdiction of ICJ
The access to the Court is open to States which are parties to the Statute and
Charter, as well as to the non-members who are admitted to UN under Art. 92
(2) of the Charter. The States, which are not parties to the Statute, can have
access to the Court if they fulfill the conditions laid down by the General
Assembly in each case and upon the recommendation made by the Security
Council. Such State must deposit a declaration with the Registrar of the Court
accepting the jurisdiction of the Court, and contributing towards expenses of
the Court.
The Court enjoys two types of jurisdictions, namely (1) Contentious,
and (2) Advisory.
(1) Contentious Jurisdiction: It comprises the following kinds of cases:
(a) All cases which the parties refer to it.
(b) All matters specially provided for in the Charter of the United
Nations.
(c) All matters specially provided for in the treaties and
conventions in force.
In all contentious cases, the Court can exercise its jurisdiction only with the
consent of the State parties to the dispute, which convey their consent through
notification in bilateral agreement known as ‘compromise’. But since the
1980s, the usual method of notify ing their joint consent is through a ‘Special
Agreement’, instead of a ‘compromise’.
A unilateral reference of a dispute to the Court by one State party
without prior Special Agreement can also be made under the “Principle of
Prorogatum”, provided the other State party or parties convey their assent to
voluntary submission to the jurisdiction of Court either after the case is re-
ferred or subsequently. However, if the consent of the other State party' or
parties is not forthcoming either after the case is referred or subsequently, the
Court cannot exercise jurisdiction over such a case.
The Court also exercises compulsory’ ox obligatory jurisdiction over fol-

lowing types of cases:
(1) Where the State parties to a treaty' have agreed that the Court
shall have jurisdiction over the disputes arising under the treaty;
or, where a treaty, which is in force, has a provision also come
under compulsory jurisdiction of the ICJ. For example, disputes
arising out of the working of the specialized agencies like the
l.L.O. give compulsory jurisdiction to the ICJ.
(2) The Statute in Art. 36 (2), known as “Optional Clause” provides
“the State parties to the present Statute may at any time declare
that they are recognized as compulsory subjects ipso facto, and
without special agreement, in relation to any other State
accepting the same obligation” the jurisdiction of the Court in all
legal disputes: relating to (a) interpretation of a treaty (b) any
question of international law (c) the existence of any fact which,
if established, would constitute a breach of an international
obligation; (d) the nature and extent of reparation to be made for
the breach of an international obligation.
Such a declaration under ‘Optional Clause’ by States may be made, with the
Secretary General of UN, either unconditionally or on condition of reciprocity
on the part of several or certain States, or for a specified time only. Under the
reciprocity principle, a State accepts the Court’s jurisdiction vis -a-vis any other
State only in so far as that State has also accepted it.
The States can also make such declarations subject to certain reservations.
The reservations may be regarding the following: Past disputes; Disputes for
which other methods of settlement are available; Questions within the domestic
jurisdiction of a State; Disputes arising in time of war or hostilities. But the too
many reservations which are “merely escape clauses or consciously designed
loopholes” prompted Starke to say “such a system of ‘optional’ compulsory
jurisdiction verges on absurdity'”.
(3) The disputes regarding application or interpretation of trusteeship
agreement between a trustee and another member of UN.
(4) The Statutes of certain Specialized Agencies of the UN contain
provisions to refer their disputes with other specialized agencies
to the Court.
At one time, it was thought that another category of compulsory juris -

diction existed, namely, where under Art. 36 of the UN Charter, the Security
Council recommends the parties to a dispute to refer their case to the Court if
the dispute is of a legal character. But after the decision of the ICJ in the Corfu
Channel Case (Preliminary Objection (1948)]. it is now settled that if a Member
State had not accepted the jurisdiction of the ICJ under a special agreement or
under a treaty or convention under a declaration made according to Para 2 of
Art. 36 of the Statute, compulsory jurisdiction cannot be exercised by the
Court.
The Statute does not provide any method for enforcement of the deci-
sions in the contentious cases, which is a major weakness of ICJ. However,
under Art. 94 ofthe Charter, each member of UN undertakes to comply with
the decision of the Court in a case to which it is a party'. If a State party to a
dispute does not fulfill its obligations as per the decision of the Court, the
other State party has a right to approach the Security Council which may
decide how the decision can be made effective.
(2) Advisory Opinion: The ICJ may give an advisory opinion on any
legal question, at the request of anybody authorized by, or in
accordance with, the Charter of the UN, to make such a request.
According to Art. 96 of the Charter, the General Assembly and the
Security' Council may request the advisory opinion of the Court on
any legal question. Other organs of the UN may also do so, if
authorized by the General Assembly. An advisory opinion lacks
the binding force of a judgment as in contentious case. But, States
may, by treaty or agreement, undertake in advance to be bound by
advisory opinion on certain questions.
The advisory function is designed primarily to assist the General Assembly
and Security Council in the discharge of their duties of conciliation over
disputes submitted to them, by rendering them an authoritative legal opinion.
Strictly speaking, the Court’s opinion is not given to States, but only to organs
entitled to do so. However, States are permitted, along with international
organizations to participate in proceedings before the Court.
The Court should not decide upon the merits of a dispute between
States by way of an advisory opinion. It may be noted that the absence of
consent of a State or States does not prevent the Court from giving an
advisory opinion on a legal question, the solution of which may clarify a
factor in a dispute between States or between a State and an international
organization, without affecting the substance of the dispute.
Ordinarily the Court cannot refuse to render advisory opinion, but it may
do so when: (i) The main point of the legal question referred relates to a contro -
versy between certain States and any one of these States is not present before
the Court, (ii) The question referred involves other than legal aspects (viz.
political or purely academic question), or is embarrassing. However, it may not
refuse to give an advisory opinion where the interpretation of a treaty provi -
sions is concerned, even though such a question and request are of a political
nature.
Though the advisory opinion lacks the binding force, yet the agencies,
which sought such opinion, have invariably treated the opinions with respect
and as authoritative statements of law. Advisory opinions have a great persua -
sive value.
Oppenheim has rightly said:
“The advisory jurisdiction has in fact proved to be much
fertile and more important than was originally contemplated.
The number of advisory opinions given by the Court almost
equals that given by way of judgments.”
The “clientele” of the ICJ is much larger (some 187 States are parties to the
Statute) than that of its predecessor i.e. PCIJ. However, it is credited with more
instances of non-compliance with its judgments and orders compared to the
PCIJ, whose judgments and orders were all complied with. The judgments in
the Corfu Channel Case, the Fisheries Jurisdiction Cases, Nicaragua Case, etc. have
not been complied with.
ICJ and Human Rights
In spite of the impressive record of the United Nations in setting the nor ms of
human rights, and setting up the international and regional machinery for their
observance and enforcement, their violations are rampant. This requires some
political will and concerted efforts at the national, regional and international
levels by the State. There must be perennial vigilance.
INTERNATIONAL CRIMINAL COURT (ICC)
Though the concept of “domestic jurisdiction” has not remained absolute in

the matter of human rights violations, the national sovereignty is still a
formidable obstacle in the enforcement of human rights. Furthermore, the
protection of human rights is closely dependent upon many other factors, viz.
international peace and security, and the economic and social development of
nations, which require close cooperation between the States.
The ICJ is not a human rights court in the contemporary sense of that
term. The Statute of the court provides, in Art. 34, that: “Only States may be
parties in cases before the Court.” It follows that individuals, corporations,
NGOs, etc. may not be parties to contentious cases before the court. More -
over, the focus of the large majority of contentious cases between States, and
advisory opinions given by the Court has not been on human rights questions.
In comparison, the European Court of Human Rights, the Inter -
American Court ofthe Human Rights and some other international judicial
bodies provide for adjudication of human rights. Therefore, the World Court’s
statute should also be suitably amended to cognize human rights questions by
modifying Art. 34.
Brief Introduction
The U.N. General Assembly, in 1989, requested the International Law
Commission to address the question of establishing an international criminal
court. The Commission prepared a Draft Statute. The Rome Conference - U.N.
Diplomatic Conference of Plenipotentiaries, in Italy, adopted the statute
known as the “Rome Statute of the International Criminal Court” on 17 July
1998. The Conference was attended by 162 countries.
Besides the Preamble, there are 128 Articles in the Statute, divided into
13 parts. According to Art. 126, the Statute shall come into force on the I s 'day
of the month after the 60"' day following the date of deposit of the 60 lh instru-
ment of ratification, acceptance, approval or accession with the U.N.
Secretary General. The Statute of ICC has come into force from 1st January
2003.
Earlier, an International Tribunal for Prosecution of Violators of Inter-
national Humanitarian Law in Former Yugoslavia was established in 1993 by
the Security Council. It was for the first time that UN has established an Inter -
national Criminal Court with jurisdiction to prosecute crimes committed during
armed conflict. The Tribunal is to deal with “crimes against humanity”, such as
murder, extermination, enslavement, torture, rape, persecution on political, ra-
cial and religious grounds and other inhuman acts. It may be noted that “crimes
against humanity” were first recognized in the UN Charter and judgment of
Nuremberg Tribunal (1945).
Then, Rwanda International Criminal Tribunal was established in 1994
under Chapter VII ofthe UN Charter by the Security Council for the purpose of
prosecuting persons responsible for genocide, etc. committed in the territory of
Rwanda and other neighbouring States.
Major Features of International Criminal Court (ICC) (1)

Establishment of the Court
Art. 1, which establishes the ICC, provides that it shall be a permanent
institution and shall have power to exercise jurisdiction over persons for the
“most serious crimes” of international concern. The ICC shall be complementary
to national courts. The ICC will exercise jurisdiction only when the national
judiciary concerned is genuinely unwilling or unable to prosecute crimes
mentioned in the Statute of ICC.
The Court shall be brought into relationship with the U.N. through an
agreement to be approved by the Assembly of State Parties to this. The seat of
the Court shall be established at the Hague (Netherlands).
(2) Jurisdiction
The Court has jurisdiction in accordance with the Statute with respect to the
following crimes: (a) Crime of genocide, (b) Crime against humanity, (c) War
crimes, and (d) Crime of aggression (Art. 5). The Court has jurisdiction only
with respect to crimes committed after the entry into force of the Statute (Art.
11). A State which becomes a party to the Statute thereby accepts the
jurisdiction of the Court with respect to these crimes (Art. 12).
The Statute shall apply equally to all persons without any distinction
based on official capacity (a Head of State/Government, a member of
Parliament, etc.); Immunities or special procedural rules which may attach to
the official capacity (under national or international law) shall not bar the court
(Art. 27). However, the Court shall have wo jurisdiction over a person under the
age of 18 at the time of the commission of a crime (Art. 26).
(3) Applicable Law

According to Art. 21(1), the Court shall apply firstly this Statute' elements of
crime and its rules of procedure and evidence; secondly, where appropriate,
applicable treaties and principles of international law (including those of
armed conflict); lastly, general principles of law derived by Court from
national laws of legal systems of the world including the national laws of
States that would normally exercise jurisdiction over the crime (provided that
those principles are not inconsistent with the statute/international law).
Art. 21 (2) lays down that the Court may apply principles and rules of
law as interpreted in its previous decisions. Art. 21(3) provides that the
application and interpretation of law pursuant to this Article must be
consistent with internationally recognized “human rights,” and be without any
adverse distinction founded on grounds such as gender, age, race, colour,
language, religion/belief, political or other opinion, national/ethnic/social
origin, wealth, birth or other status.
A person shall not be criminally responsible und er this Statute unless
the conduct in question constitutes, at the time it takes place, a crime within
the court’s jurisdiction - Nullium crimen sine lege. The definition of a crime
shall be strictly construed; in case of ambiguity, there shall be interpretation
in favour of persons being investigated, prosecuted or convicted (Art. 22).
A person convicted by the court may be punished only in accordance
with this Statute - Nulla poena sine lege (Art. 23). Art. 24 lays down that no
person shall be liable for conduct prior to the entry into force of the Statute. In
the event of a change in the law applicable to a given case prior to final
judgment, the law more favourable to the persons being investigated, etc. will
apply.
Art. 25 deals with “individual criminal responsibility.” The court shall
have jurisdiction over natural persons pursuant to this Statute. A person
committing a crime shall be individually responsible and liable for
punishment; it does not matter whether he commits crime as an individual,
jointly with another or through another person. A person is also criminally
responsible if he orders, solicits or induces the commission of a crime which
in fact occurs or is attempted.
A person is also liable if for the purpose of facilitating the commission

of a crime, he aids, abets, etc. in its commission; contributes to the
commission (or attempt) of a crime by a group of persons acting with a
common purpose; in respect ofthe crime of genocide, directly and publicly
incites others to commit crime.
It is also laid down that no provision in this Statute relating to individual

responsibility shall affect the responsibility of States under international law.
(4) Composition of Court
According to Art. 34, the Court shall be composed of: (a) The Presidency; (b)
Appeal Division, Trial Division and Pre-Trial Division; (c) Office ofthe
Prosecutor; and (d) The Registry.
The Court is to consist of 18 judges (having established competence in
Criminal Law and Procedure as a judge, prosecutor, advocate, etc, or interna-
tional humanitarian law and the law of human rights). Nominations of candi -
dates for election to the Court may be made by any State Party to the Statute;
every candidate is required to be fluent in one of the working languages of the
Court (i.e. Arabic, Chinese, English, French, Russian and Spanish). No two
judges may be nationals of the same State.
The judges shall hold office for a term of 9 years. But at the first
selection, 1/ 3 rd ofjudges elected shall be selected to serve for a term of 3 years;
1/3^ to serve for a term of 6 years; and the remainder for a term of 9 years (Art.
36). The ‘place of trial’ shall be the seat of the Court.
(5) Penalties
Art. 77 lays down the following penalties: Imprisonment up to a maximum of
30 years; or a term of Iife-imprisonment when justified by the extreme gravity
of the crime and individual circumstances. These penalties are subject to Art.
110 (review by the Court concerning reduction of sentence).
In addition to imprisonment, the Court may order a fine; a forfeiture of
proceeds, property and assets derived directly or indirectly from that crime,
without prejudice to the rights of bona fide third parties.
(6) Appeal and Revision

A decision under Art. 74 may be appealed in accordance with the Rules of
Procedure and Evidence (Art. 81). The convicted person, or his spouse,
children, etc. may apply to the Appeals’ Chamber to revise the final judgment
of conviction/sentence on the grounds specified in the Statute (Art. 84).
Anyone who has been the victim of unlawful arrest/detention shall have
an enforceable ‘right to compensation.’
(7) Assembly of State Parties
The State Parties are under a general obligation to cooperate with the Court
(Art. 86). A sentence of imprisonment shall be served in a State designated by

the Court from a list of States, which have indicated their willingness to
accept sentenced persons (Art. 103).
The Rome Statute also establishes an Assembly of State Parties; each
State Party to have one representative. Other States, which have signed the
Statute, may be observers in the Assembly (Art. 112). The Assembly shall’ve a
Bureau consisting of a President, two Vice-Presidents and 18 members.
The Assembly shall consider and adopt recommendations of the Prepa-

ratory Commission; provide management oversight; decide the court’s bud -
get; decide, whether to alter, the number of judges; to consider question relat -
ing to non-cooperation. The Assembly may establish subsidiary bodies for
evaluation and investigation of the Court, in order to enhance its efficiency.
The Assembly shall adopt its own rules of procedure.
(8) Settlement of Disputes

Any dispute concerning the judicial functions of the Court shall be settled by
the Court’s decision. Any other dispute between two or more State Parties
relating to the interpretation or application of the Statute shall be referred to
the Assembly of State Parties; the latter may itself seek to settle it or make
recommendations on further means of settlement including referral to the ICJ
(Art. 119).
(9) Miscellaneous
A unique feature of the Rome Statute is that it does not provide for any
reservations (Art. 120). A State Party may, by written notification add ressed
to the U.N. Secretary General, withdraw from this Statute (Art. 127).
Seven years after the entry into force of this Statute, the Secretary Gen -
eral of U.N. shall convene a Review Conference to consider any amendments
to this Statute. Such review may include, but is not limited to, the list of
crimes contained in Art. 5.
ICC: A CRITICAL APPRAISAL

The adoption of the Rome Statute of ICC is a great achievement. So far 139
States have signed and 87 States have ratified it (Dec. 2002). The Court has
sufficient safeguards in its structure, jurisdictional criteria and judicial process
to prevent politically motivated prosecutions. It does not undermine national
jurisdiction and sovereignty.
There are, however, certain shortcomings. For example, the crimes of‘hi -
jacking’ and ‘terrorism’ have not been included in the list of crimes over which
the ICC shall have jurisdiction. However, it may be noted that an
internationally acceptable legal definition of terrorism is still elusive and a
separate U.N. Convention on Terrorism is under negotiation.
The definitions and categories of crimes listed under the Statute are also
under scrutiny. While the countries that have ratified the Statute will have to
draw up a definition of the ‘crime of aggression,’ the ‘crime of genocide’ will
replicate the definition that was provided in the Genocide Convention, 1948.
India’s reservations with respect to the Statute (India has not signed and ratified
the Statute) basically pertain to the definitions that the Statute accords to
crimes against humanity and to war crimes.
As codified in the Statute, the Court will have jurisdiction over ‘crimes
against humanity’ committed in the course of armed conflict between nations or
otherwise. It will also have jurisdiction against State and non -State actors.
Similarly, the Court will have jurisdiction over ‘war crimes’ committed in the
course of conflict between States or in the course of conflict within States.
India has pointed out that these definitions go beyond customary law and
previous multilateral treaties. Some elements of India’s reservations are trace-
able to a context where the Indian State is pitted against certain ethnic minori -
ties and where certain political forces are pitted against religious minorities.
Further, while the national criminal law should, and usually does, p ro-
vide for the prosecution of those who commit crimes on a minor or mass scale,
the domestic criminal jurisprudence might not define large scale atrocity as a
separate and additional category of crime as does the Statute.
The U.S.A. does not favour the ICC because of few reasons: (a) It be-
lieves that the ICC downplays the role of UN Security Council; (b) The Rome
Statute of ICC imports unchecked powers to the ICC; and, (c) ICC threatens the
US sovereignty because ICC asserts jurisdiction over citizens of States.
India and the USA have reasserted their rejection of the ICC’s jurisdic -
tion over their nationals by signing an agreement under which neither country
would surrender citizens of the other to any international tribunal without the
consent of that person’s national government (The U.S.A. was one of seven
countries that voted against the adoption of the Rome Statute). 15 States have
already signed this agreement with the U.S.A.
The enforcement mechanism devised under the Statute is also far from
satisfactory. The Statute shows that States are yet not prepared to establish a
strong Court having compulsory jurisdiction over international crimes. How -
ever, the Statute represents the maximum agreement, which could be reached
in the present circumstances. A welcome feature of the Statute is the
provision of “review” of the Statute.
REFERENCES
(1) G. Singh: International Law.

(2) S.K. Verma: An Introduction to Principles of Public
International Law
(3) Shaw: International Law.
(4) S.K. Kapoor: International Law & Human Rights.
(5) H.O. Agarwal: International Law & Human Rights.
(6) I. Brownlie: Principles of Public International Law.
(7) I.A. Shearer, Starke's International Law.
(8) R. Jennings & A. Watts (eds.), Oppenheim's International
Law [Vol. I - Peace].
(9) D.J. Harris: Cases & Materials on International Law.
(10) K.K. Panda: A Text Book of International Law.
(11) N.H. Jhabvala: Public International Law.
Other Sources
1. The Landmark Judgments of 1997-1998 - Ashok K. Jain.
2. Supreme Court Yearly Digests - SCYD (1995-2008) - Shailendra
Malik (Ed.) (Eastern Book Co.).
3. Cases and Materials on Public International Law- I (.Law of
Peace) - Faculty of Law, Delhi University, Delhi.
4. Question Papers Referred - Delhi and Other Indian
Universities; Competitive Exams like IAS.
[209]

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PUBLIC INTERNATIONAL LAW &

Dr. ASHOK K. JAIN

© ALL RIGHTS RESERVED. No part of this book may be reproduced in any

Printed at: G.S. Offset, Delhi.

1. NATURE, DEFINITION AND SCOPE OF INTERNATIONAL LAW 1

2. SUBJECTS OF INTERNATIONAL LAW 20

3. SOURCES OF INTERNATIONAL LAW 29

6. LAW OF THE SEA 113

7. STATE RESPONSIBILITY 140 (i-xxxii)

8. PUBLIC INTERNATIONAL LAW-ADGENDA 141

9. HUMAN RIGHTS 159

10. INTERNATIONAL ORGANIZATIONS (UNO/ICJ/ICC) 186

Gulf of Maine Boundary case ............................ 67 United States v Pink ...........................................80

The term ‘International Law’ or ‘Law of Nations’ has been used in

(iii) Codification of international law

international community” (Edward Collins). Indeed the future of mankind rests on

NATURE OF INTERNATIONAL LAW

According to Austin, law is a command of the sovereign attended by

be limited to rules of conduct enacted by a determinate legislative authority and

to diplomatic agents are generally observed. Other rules of international

(b) Positivist theory (Bynkershook) - Only those principles may be deemed as

In order to strengthen the rule of law in international relations, the General

respect the territorial integrity and political independence of each other

SUBJECTS OF INTERNATIONAL LAW

Any entity which possesses international personality is called an international

PLACE OF INDIVIDUALS IN INTERNATIONAL LAW1

It is undisputed that international law primarily regulates the relationship of

law it is the obligation of the parties not to commit piracy. Further,

ld . Write a short note on : Liability of individuals for war crimes. [I.A.S.-91]

(HI) Procedural Capacity of Individuals1®

If the States, by imposing limitation upon themselves, have agreed to provide a

k&hcy&cuns f'oXh aW V a. > 1 h

(The above is the text of the highest authority. It is generally regarded as a

[I] INTERNATIONAL CUSTOMS

2. “Before a usage may be considered as amounting to a customary rule of international

In sum, the general practice of States should be recognized as prima facie ev

The Asylum Case

i This case concerns the institution of diplomatic asylum in Latin America.

Assembly of U N., international conferences and statements of State

S.S. Lotus Case

. After examination of the material before it (treaties, State laws, judicial

originally concluded between a limited number of States may gets

Parties competent to make a treaty

Free consent of the parties

Modes of expression of State's consent

‘ratification’ is an international act whereby a State establishes on the international

reservation is compatible with the object and purpose of the Convention,

seem to be to confer the power to decide on the admissibility of a reservation either

4. Write a short note on ‘Treaties and third States’.

6. Write a short note on : Doctrine of Rebus sic stantibus in treaty law.

Custom and Treaties : Inter-relationship8

[Ill] GENERAL PRINCIPLES OF LAW10

with the judgement of the Tribunal.]

application of 'estoppel' doctrine) that the bond-holders were entitled to payment in

Status of General Principles of Law IOa

court could not be confined to making judgments according to positive international

In pr e, the decisions of ICJ have assumed such an importance that these

^Resolutions of the General Assembly of the United Nations do not possess

RELATIONSHIP BETWEEN INTERNATIONAL LAW AND

there is legal sanctity, international law is followed because States are

Ot&AftrdL v/c, Pi {>/^.?<x£U'i3/'0 9 A^V^d-^V’^ S»t-u£fey

interpreting the ambiguous statutory language. However, in Ostime v Australian

3. Write a short note on : Concept of Opposability. [I.A.S.-97]

1. Define and evaluate the relevance of recognition of States.