1 Introduction: nature, scope and functions of International Law.

Sources of International
Law, Subjects of International Law.
Introduction
International law has become a prominent area in today’s legal field. It has become an area of interest for
many law students. The scope of international studies has covered a wide variety of topics. There is
exponential growth in different branches of international law. The development of technologies in
different countries has made International Trade and other development more frequent. International
law helps as a guiding principle in any kind of dispute between states.
Definition of International Law
According to Oppenheim, International Law is a “Law of Nations or it is the name for the body of customary
law and conventional rules which are considered to be binding by civilized States in their intercourse with
each other.”
Thus, International Law can be considered as treaties, set of rules and agreements between countries that
are binding between them. International Law governs how nations must interact with other nations. It is
extremely useful in regulating the issue of jurisdiction which arises when people trade among different
States. The main purpose of International Law is to promote justice, peace and common interest.
Scope of International Law
Interstate relations and their regulation
The International Law has state subjects. When civilized states came into existence then interrelation was
natural. A mutual understanding and natural interrelation became necessary. They have framed their own
rules, regulations, and treaties for further transactions. The rules and regulations are laid down
categorically in these relations because it facilitates the amicable working of the functions between the
states. The rules and regulations broadly provide opportunities for different programs to be carried out
by different states. The customs followed by the countries have culminated into laws. The same path of
evolution is taken by the International Criminal Law that has been codified. The wide variety of subject
matter has been covered under International Criminal Law such as extradition treaty, refugees, human
rights, and sustainable development.
Principles of International Law
International Law is based on the following two principles:

1. Jus Gentium: These set of rules do not form part of a legal statute but mutually governs the
relationship between two nations.
2. Jus Inter Gentes: These refer to those treaties and agreements that are accepted by both
countries mutually.
International Law provides effective means through which peaceful settlement of disputes can be done.
It is mainly concerned with the rights, duties and the interests of the State.
Classification of International Law
International Law can be classified into two groups:
Public International Law
Public International Law is regulated by the treaties and globally accepted norms and customs which are
included as State practice and opinio Juris. It regulates the relationship between those nations and
peoples that are prone to be affected by a particular law as they are bound by these legal codes and rules.
Private International Law
It regulates private conflicts between individuals rather than the States. It seeks to resolve disputes in the
domestic municipal body which involves an issue revolving beyond its domestic jurisdiction.
What are the sources of International Law?
The sources of International Law are treaties, custom, general principles of law recognized by civilized
nations, judicial decisions and teachings of publicists.
Treaties
The concept of treaty is based on pacta sunt servanda, which is a customary law principle which means
promises must be kept. In a treaty, countries create their terms of rights and obligations out of their
volition, thus it is very similar to a contract. Therefore, a treaty is a written agreement between two or
more States which lays down the manner in which every State would act while doing dealings with other
participating States. Sometimes, in place of treaties other terms such as charters, declarations,
conventions and statutes are often used. However, there is a slight difference in meaning of these
terminologies.
Custom
Custom is one of the primary sources of International Law. In International Law, it is considered to be of
particular importance because of its decentralized nature. Two conditions are essential for an act of a
State to constitute as custom:

1. The first being the State practice itself, it is not necessary that the act of a State necessarily
needs to be positive in nature. State practice should be extensive, uniform and consistent and
prevail for at least such a period of time as would establish it as a recognized act of States.
2. The second essential is opinio juris, which means, the psychological belief of a State that its
act is creating a legally obligatory position for itself. But it should be noticed that not every
activity of a State would necessarily create binding rules of customary law. For instance, if a
particular pattern is used by the State on a particular issue in the General Assembly, it is
reflective of the maxim opinio juris.

Subjects of International Law.

The term subjects of international law refer to entities endowed with legal personality, capable of
exercising certain rights and duties on their account under the international legal system. Personality in
international law necessitates the consideration of the international system and the capacity to enforce
claims.
According to Starke, the team “subject of international law” means:
1. An incumbent of rights and duties under international law
2. The holder of procedural privileges of prosecuting a claim before an international tribunal.
3. The possessor of interests for which provision is made by international law.
Oppenheim says that an international person is one who possesses legal personality in international law
meaning one who is subject of international law to enjoy rights, duties or powers established in
international law to enjoy rights, duties or powers established in international law and generally, the
capacity to act on the international plane either directly or indirectly through another state.
Theories regarding subjects of international law.
Jurists of the world are divided into two groups. However, some moderates try to bring about a
compromise between them. The difference of opinion among jurists as to what entities are deemed to be
the subjects of international law had led to the emergence of three popular theories. The sum-up of these
theories can be summarized as follows:
1. States alone are subjects of international law. (Realist theory)
2. Individuals alone are subjects of international law. (Fictional theory)
3. States, individuals, and certain non-state entities are subjects. (Functional Theory)
REALIST THEORY
According to traditional positivist doctrine, states are the only subjects with which international law is
concerned. This theory asserts that states alone, as sovereign political entities, are bearers of rights and
duties under international law. International law regulates the conduct of states and it is stated which
performs all types of international obligations under treaties and conventions. Prof.Oppenheim falls in
line with the traditional view.
According to this theory, Individuals are the object of international law. The recognition of the sovereignty
of each nation is the essence of international law. Individuals and non- state entities have no place in
international law. The jurists of this school maintain that individuals are only incumbents of rights and
duties st international law. Therefore, they are the ultimate objects of international law and not its
objects.
This theory has been subjected to various criticism by jurists. It does not tell about certain rights bestowed
upon the individuals and certain international offenses for which an individual may be punished.
FICTIONAL THEORY
According to exponents of this theory, it is individual beings that are subjects of international law.
According to them, individuals are the ultimate subjects of international law. The state is an abstract
concept and it is no more than aggregate of individuals who compose it. So in the ultimate analysis, it may
be noted that the policies which are made in the international plane are for the ultimate regulation and
control of individual conduct in the international scenario.
Prof. Kelson is the chief exponent of this theory and he reiterated that notion of the state is purely a
technical legal concept serving to embrace the totality of legal rules applying to a group of persons living
in a defined territorial area. The difference between international law and state law dissolves, both laws
ultimately apply to individuals and they are for the individual alone. While the former applies to them
directly and the latter is applied indirectly that is through states.
FUNCTIONAL THEORY
Jurists having a moderate view criticized the extreme view given by the supporters of the above theories.
If the traditional view is ignoring the status of an individual completely, the modern view is trying to assert
the position of individuals aggressively. Accordingly both the views need rethinking. Neither the state exist
in international context without the interference of the individuals nor the personality of an individual be
expanded to that of a state.
According to moderate jurists, state, as well as individuals and certain non-state entities, are subject to
international law. In the past 50 years or so, substantial changes have been made to the field of the subject
of international law. There has been a proliferation of new participants in international relations. The
scope of international law has widened and new entities have emerged on the international front.
Subjects of international law.
As mentioned earlier, following are considered to be subjects of international law:
 State.
 International organizations.
 Individual.
STATE
The state has been since time immemorial considered to be subject of international law. Also, it can be
asserted that the states are primary subjects of international law as the obligations flow from the states.
It is the states which are recognized and held liable not for their acts but even for the acts committed by
their citizens also. Also in terms of international trade and relations, it is the state which has the duty and
power to conclude relations with the international front. For ex, in India, liberalization, and globalization
of the economy was done after the positive intervention from the government.
INTERNATIONAL ORGANISATIONS
Until the outbreak of the first world war, world affairs were to a large extent influenced by the periodic
conferences held in various parts of the world. A conference could only be called into being upon the
initiative of one or more of the nation. This procedure implied several delays in the resolution of the
issues.
But after the first world war, the creation of the league of nations paved the way for the forthcoming
change in the international organization. This can be regarded as a changing point in the history of
international organizations. United Nations-led to the development of international organizations.
Various NGOs came into the international field. Amnesty International, WHO, IMF, EU, Red Cross, etc.
emerged.
In Reparation for injuries suffered in the service of the united nations, there were following legal issues:
 Whether the UN charter has given the organization such a position that it possesses, with its
members, rights which it is entitled to ask them to respect? In other words, does the organization
possess international personality?
 Whether the organization can bring an international claim against the responsible de jure or de facto
government to obtain the reparation due in respect of the damage caused to the united nations?
 How is action by the UN to be reconciled with such rights as may be possessed by the state of which
the victim is a national?
Answer to the first legal issue:
The organization is an international person. But this is not the same thing as saying that it is stated, which
it certainly is not, or that its legal personality and rights and duties are the same as those of a state. It is a
subject of international law and capable of possessing international rights and duties, and that it can
maintain its rights by bringing an international claim.
Answer to second legal issue:
The damage specified in the present issue means exclusive damage caused to the interest of the
organization itself, to its administrative machine, to its property and assets, and to the interests of which
it is the guardian. It is clear that the organization can bring a claim for this damage. As this claim is based
on the breach of international obligation on the part of the member held responsible by the organization,
the member can not contend that this obligation is governed by municipal law.
Answer to third legal issue:
When the victim has a nationality, cases can occur in which the injury suffered by him may engage the
interest both of his national state and organization. In such an event competition between the state’s
right of diplomatic protection and the organization’s right of functional protection might arise, and this is
the only case with which the court is invited to deal.
The action of the organization is based not upon his status as an agent of the organization. Therefore it
does not matter whether or not the state to which the claim is addressed regards him as his own national,
because the question of nationality is not pertinent to the admissibility of the claim.
INDIVIDUALS
Modern state practices and contemporary international law does demonstrate that individuals have
become increasingly recognized as participants and subjects of international law. Though limited,
individuals have international legal personality. This has occurred primarily but not exclusively through
human rights law. Since the first world war, international law has continuously empowered the individual
to a substantial extent.
CONCLUSION
Although the individual’s position is not equivalent to the states and international organizations, still the
individual is said to have limited international legal personality due to the following reasons:
1. Individuals have rights in international law.
2. Individuals have duties/obligations in international law.
3. Individual has a limited procedural capacity to enforce their international claims.
The individual is becoming the increasing concern of international law and many treaties are specifically
aimed at the betterment of its position. But a wide gap still exists before the international law confers
rights on individuals directly and without necessarily operating for this purpose through the medium and
under the cover of the state.
2 Relationship between International Law and Municipal Law.
What is the difference between International Law and Municipal Law?
The basis of both laws is different in many ways.
Firstly, International Law is majorly concerned with the relation among States. Whereas Municipal Law
controls the relationship between individuals and the State and between the individuals within a State.
Secondly, in the case of International Law, the law is not above the individuals but between the sovereign
States and the States themselves create the law. In International Law, the States often disobey the laws
or create laws as per their interests. Whereas in the case of Municipal Law, the law is deemed to be above
the individuals, as is the case with the laws of most of the countries, the law is deemed to be above
individuals.
Thirdly, the sources of both laws differ. Article 38 of the Statute of the ICJ is considered as the most
authoritative statement of the sources of law for the Public International Law. It states the sources of law
such as customs, conventions, treaties, general principles of law recognized by civilized nations and
judicial decisions and teachings of highly qualified publicists. Whereas in the case of Municipal Laws there
is a hierarchy of laws which determines, which legal commandment is more authoritative than others. For
instance, in many countries, a hierarchy of courts is established wherein the judgments of higher courts
are of more authoritative value and thus are relied upon by the lower courts.
Conclusion
International Law is a set of rules which are necessary in order to regulate the behaviour of nation-States
towards each other so as to ensure peace and welfare of the International community. It helps in resolving
disputes amongst States. International Law may influence internal laws too and may become a part of
domestic law.
It is not necessary for International Law to be codified into an agreement. There have been a lot of
developments in the Modern International Law and the International Court of Justice is considered as the
principal body responsible for upholding the tenants of International Law.

3 INTERNATIONAL LEGAL PERSONALITY

Full international legal personality refers to the unity of both legal and political recognition (by other
international legal persons) of an entity‟s capacity to represent its constituents externally and impose
constraints on them internally. International law is based on rules made by states for states. States are
sovereign and equal in their relations and can thus voluntarily create or accept to abide by legally binding
rules, usually in the form of a treaty or convention. By signing and ratifying treaties, states willingly enter
into legal, contractual relationships with other state parties to a particular treaty, which observance is
normally controlled by the reciprocal effects of non-compliance. The capacity of states to enter into such
relationships with other states and to create legally binding rules for themselves, is a result of
states' international legal personality, a prerogative attributed to all sovereign states.

4 Recognition of States and Government.

Recognition of state means acknowledgement as an international political entity by another state.
Recognition helps a state or government enormously by all means. Even though a state or government
already exists before recognition, the acknowledgement brings more power to the system. There are
several theories about recognition, yet there seem to be some criteria of qualifications to be recognised.
This article discusses the recognition of government and state. It also talks about the recognition of the
state in international law.
Recognition of states
The question of the legal effect of recognition of new entities claiming to be “States” has been
characterised for over a century by the “great debate” between the “constitutive” and “declaratory”
schools of thought. While the former contends that a State only becomes a State by virtue of recognition,
the latter – which is now widely accepted – argues that a State is a State because it is a State, that is,
because it meets all the international legal criteria for statehood. In the first case recognition is status-
creating; in the latter it is merely status-confirming. International lawyers and States do not always
distinguish clearly between the requirements for recognition of an entity as a State (the criteria for
statehood) and the requirements for recognition of a State, that is, the preconditions for entering into
optional or discretionary – diplomatic, political, cultural or economic – relations with the entity (the
conditions for recognition). While the former are prescribed by international law, the latter may vary from
State to State.
Recognition of governments
The question of recognition of government normally arises only with regard to recognised States. When
a State recognises a new “government,” it usually acknowledges a person or group of persons as
competent to act as the organ of the State and to represent it in its international relations. The only
criterion in international law for the recognition of an authority as the government of a State is its exercise
of effective control over the State’s territory. States may, however, continue to recognise a government-
in-exile if an incumbent government is forced into exile by foreign occupation or the de
facto government in situ has been created in violation of international law. Despite a trend in the literature
to the contrary, there is still no rule of general or regional customary international law that a de
facto government, to be a government in the sense of international law, must be democratically
elected. Attempts to introduce such a requirement either by treaty (Central American Treaties of Peace
and Amity of 1907 and 1923) or as a matter of national (Tobar, Wilson and Betancourt doctrines) or
regional policies (Santiago Commitment to Democracy and the Renewal of the Inter-American System,
OAS General Assembly Resolution 1080 of 5 June 1991) have failed.
5 Loss of international personality (State Succession).
Introduction
State succession refers to the merging of two or more States. It is different from government succession
in the sense that in government succession there’s a change of government whereas in State succession
the State loses control over its partial or whole territory. Art 2(1)(b) of the Vienna Convention on the
succession of States in respect of treaties in 1978 defines the term State succession as ‘the replacement
of one State by another in the responsibility for the international relations of territory’.
In essence, it deals with the succession of one state with another and the transfer of rights and
obligations. This concept has assumed greater importance since World War II owing to its effects on the
legal obligations of the States.
Circumstances of State Succession
State succession can arise in a number of defined circumstances, which mirror the ways in which political
sovereignty may be acquired. They are:

 Decolonization of all or part of an existing territorial unit: This refers to situations where the
nation partially or completely overcomes itself from the holding of a superior nation.
 The dismemberment of an existing State: This refers to a situation when the territory of the
predecessor State becomes the territory of two or more new States who take over it.
 Secession: This refers to a situation where a part of the State decides to withdraw from the
existing State.
 Annexation: This refers to a situation where a State takes possession of another State.
  Merger: This refers to the fusion of two or more free States into a single free State.

Types of State Succession

In each of these cases, a once-recognized entity disappears in whole or in part to be succeeded by some
other authority, thus precipitating problems of transmission of rights and obligations. There are two types
of State succession and they are discussed below:
Universal Succession
This is also referred to as Total Succession. When the entire identity of the parent State is destroyed and
the old territory takes up the identity of the successor State, it is known as Universal Succession. This can
happen in cases of:
 Merger
 Annexation
 Subjugation
In certain cases of universal succession, the old State gets divided into multiple States. The dissolution of
Czechoslovakia is an example of universal succession. The new States of the Czech Republic and Slovakia
are both successor States.
Partial Succession
Partial Succession occurs when a part of the territory of the State gets severed from the parent State. This
severed part now becomes an independent State. This can occur when there is a civil war or a liberalization
war.
There are two important examples of partial succession.

 One is the separation of Pakistan from India.

 The other is the separation of Bangladesh from Pakistan.
The existing States continued with their legal obligations and duties while the new States got their own
recognition and carried no rights or duties of the parent States.
Theories of State Succession
Universal Succession Theory
This is the oldest theory of succession propounded by Grotius, using the Roman analogy of succession on
the death of any natural person. According to this theory, the rights and duties of the old State i.e., the
predecessor State pass on to the new State i.e., the successor State upon succession without any
exceptions and modifications.
In fact, there are two justifications behind this theory.

1. First that the State and the Sovereign gain all their power from God and a mere change in
Government shouldn’t cause any change in the powers.
2. Second, it is permanent and nothing can cause it to secede.
The application of this theory can be seen in cases of fusion in the 20th century. The fusion of Syria and
Egypt, Somali Land and Somalia, Tanganyika and Zanzibar are examples of this. However, this theory failed
to get any attention from the majority of States from the world and has also been criticized by scholars
from the world due to its Roman law analogy, a poor distinction between succession and internal change
in governments, etc.
Popular Continuity Theory
The Popular Continuity Theory can be described as another version of the Universal Succession theory
that was propounded by Fiore and Fradier following the unification of the German and Italian nationals.
According to this theory, the State has a
  Political personality: It basically refers to the rights and obligations of the State towards the
government.
 Social personality: lt basically refers to the territory and the population of the State.
Hence, upon succession, the political personality gets changed whereas the social personality remains
intact. So, a State succession would not alter the rights and duties of the populace.
However, this theory has not found its application in any country outside Europe and also has been
criticised on the grounds that it functioned according to the municipal laws i.e, the local laws, which is
why it was difficult to understand the effect of State succession using this theory.
Organic Substitution Theory
According to this theory, the rights and duties of the State continue even after succession by another
State. Von Gierke had published a paper in 1882 regarding The execution of rights and obligations of a
social body after its dissolution. It was from here that Max Huber derived his organic substitution theory.
Huber drew the analogy that the problem of State succession was similar to that of dissolution of a social
institution.
Self Abnegation Theory
This theory was propounded in 1900 by Jellinek and is another version of the universal theory of
continuity. According to Jellinek, the successor State agrees to observe the rules of international law and
performs the obligations towards other States created under them. Although, this theory considers that
the performance of the international obligation, is merely ‘moral duty’ of the successor State, but at the
same time it gives the right to the other States, to insist upon the successor State to perform the existing
obligation. If the successor State refuses to accept, the other States may even withhold its recognition or
make the recognition conditional upon the acceptance of the predecessor’s commitment towards them.
Negative Theory
This theory was developed during the mid-19th and early 20th centuries. After World War II, the jurists of
the Soviet Nations started emphasizing on the right of self-determination and on giving complete freedom
to the States to maintain their international relations. According to this theory, the successor State doesn’t
absorb the personality of the predecessor State in its political and economic interests.
Communist Theory
According to the Communist Theory of State Succession, a successor State is burdened by the economic
and political commitments of the predecessor. Thus, this comes as something completely contrary to the
Negative Theory of State Succession and unlike the Negative Theory, it doesn’t free the successor State
from the obligations of the predecessor State.
6 Acquisition of Territory
If a second state occupies that territory peacefully and publicly over a long period of time, it may be said
to have acquired the territory. Accretion is when a state's territory increases by natural processes, such
as deposits from rivers or volcanic eruptions.
the acquisition of territory through force, especially by a victorious state in a war at the expense of a
defeated state. An effective conquest takes place when physical appropriation of territory (annexation) is
followed by “subjugation” (i.e., the legal process of transferring title).
7 Nationality, Protection of Aliens
nationality, in law, membership in a nation or sovereign state. It is to be distinguished
from citizenship (q.v.), a somewhat narrower term that is sometimes used to denote the status of those
nationals who have full political privileges. Before an act of the U.S. Congress made them citizens, for
example, American Indians were sometimes referred to as “noncitizen nationals.”
Individuals, companies (corporations), ships, and aircraft all have nationality for legal purposes. It is in
reference to natural persons, however, that the term finds most frequent use. Nationality is in fact
commonly regarded as an inalienable right of every human being. Thus, the UN Universal Declaration of
Human Rights (1948) states that “everyone has the right to a nationality” and that “no one shall be
arbitrarily deprived of his nationality.” Nationality is of cardinal importance because it is mainly through
nationality that the individual comes within the scope of international law and has access to the political
and economic rights and privileges conferred by modern states on their nationals.
Human Rights, Extradition and Refugees.
Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language,
religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture,
freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to
these rights, without discrimination.
International Human Rights Law
International human rights law lays down the obligations of Governments to act in certain ways or to refrain
from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or
groups. One of the great achievements of the United Nations is the creation of a comprehensive body of human
rights law—a universal and internationally protected code to which all nations can subscribe and all people
aspire. The United Nations has defined a broad range of internationally accepted rights, including civil, cultural,
economic, political and social rights. It has also established mechanisms to promote and protect these rights
and to assist states in carrying out their responsibilities.
Extradition and Refugees.
Extradition is a formal process involving the surrender of a person by one State (the “requested State”) to
the authorities of another State (the “requesting State”) for the purpose of criminal prosecution or the
enforcement of a sentence. As an instrument enabling States to ensure that persons responsible for
serious criminal offences can be held accountable, extradition is an important tool in the fight against
impunity, including in cases involving, for example, violations of international human rights and
humanitarian law, which are often a form of persecution and a cause of displacement. As such, extradition
is also a key instrument in States’ efforts to fight terrorism and other forms of transnational crime.
International refugee protection and criminal law enforcement are not mutually exclusive. The 1951
Convention relating to the Status of Refugees (the “1951 Convention”) and its 1967 Protocol do not shield
refugees or asylum-seekers who have engaged in criminal conduct from prosecution for their acts, nor
does international refugee law preclude their extradition in all circumstances.1 However, where the
person whose extradition is sought (the “wanted person”) is a refugee or asylum-seeker, his or her special
protection needs must be taken into consideration.
The interplay between extradition and questions related to international refugee protection must be
examined against the background of extradition law and practice as it evolves over time. Extradition
relations between States were traditionally governed primarily by bilateral and multilateral extradition
treaties as well as national legislation.2 As a body of rules which, for the most part, reflects consensus
among States, extradition law has over time changed substantially in response to new types of crimes and
security concerns, including, in recent decades, threats related to international terrorism. However, other
developments in international law since 1945 have had a significant impact on the legal framework for
extradition.
8 Humanitarian Intervention.
humanitarian intervention, actions undertaken by an organization or organizations (usually a state or
a coalition of states) that are intended to alleviate extensive human suffering within the borders of
a sovereign state. Such suffering tends to be the result of a government instigating, facilitating, or ignoring
the abuse of groups falling within its jurisdiction. This abuse often takes the form of deliberate and
systematic violations of human rights, including forced expulsions, ethnic cleansing, and, in the most
extreme cases, genocide. Humanitarian intervention can apply also in situations where there is no
effective government and civil order consequently has collapsed.
Humanitarian intervention constitutes a calculated and uninvited breach of sovereignty (state rights) in
the name of humanity (individual rights). Though humanitarian interventions do not necessarily require
the employment of military force—as they could include, for example, the imposition of sanctions—the
term refers normally to situations in which force (or the threat of force) is used. Humanitarian intervention
has become a major focus of debate within governments, international organizations, and think tanks and
across a variety of academic fields, including international and comparative law, international
relations, political science, and moral and political philosophy.

9 Law of Treaties
The concept of the treaty has undergone significant changes over time. In earlier periods, treaties used to
be oral and a ceremony would be held where the parties would conclude it and swear an oath to God,
which used to act as the binding force of the treaty. Now, treaties must be written and are legally binding
between its parties.
Drafted by the International Law Commission of the UN and taking force on 27 January 1980, the Vienna
Convention on the Law of Treaties set out some fundamental rules as to how treaties are to operate and
take form. More than half of the member states of the UN are a party to the Convention.
Concept of treaty
Treaty in common parlance may be defined as written agreements between parties, which may or may
not be stated, to identify and follow a set of rules. They may also be referred to as pacts, agreements,
charters, etc. Declarations and political statements are excluded from the scope of the definition of a
treaty.
Treaties have been classified on the basis of many principles. On the basis of the object, they have been
classified as political treaties (including alliances and disarmament treaties), constitutional and
administrative treaties (e.g. WHO’s constitution, which is responsible for setting up the international body
and to regulate it affairs), commercial treaties (trade and fishery agreements), criminal treaties (which
define certain international crimes and may require the offender to be extradited), treaties codifying
international law, and treaties for ensuring civil justice.
A country that hasn’t signed the treaty has no obligation to follow its norms. However, like the ICJ had
stated in the North Continental Shelf Cases, that some treaties may give rise to international
conduct, customs and be of a “fundamentally norm-creating character.” Article 26 of the Vienna
Convention on the Law of Treaties deals with the Latin maxim “pacta sunt servanda”, i.e. every signatory
is to follow the treaty in good faith and is binding upon them. This forms the basis of every international
agreement.
“Reservations” are the way in which a signatory may escape having to follow all the provisions of the
treaty and is a tactic used to become a party by agreeing to the basic principles of a treaty. However,
reservations can only be made in cases where such reservation is not contrary to the object of the treaty.
Interpretation of a treaty should be bona fide and the object and purpose of the treaty needs to be kept
in mind while doing so. In case the text is vague, “travaux preparatories” and other supplementary means
of interpretation might be used. One such method of interpretation of a treaty is adopting a broader-
purpose approach. Contrastingly, a purpose-oriented approach is adopted in cases where the treaty in
question to be interpreted is the constitutional document of an international organization.
10 Territorial Sea
Territorial Sea
Everything from the baseline to a limit not exceeding twelve miles is considered the State’s territorial sea.
Territorial seas are the most straightforward zone. Much like internal waters, coastal States have
sovereignty and jurisdiction over the territorial sea. These rights extend not only on the surface but also
to the seabed and subsoil, as well as vertically to airspace. The vast majority of States have established
territorial seas at the 12 nautical mile limit, but a handful have established shorter thresholds.
While territorial seas are subject to the exclusive jurisdiction of the coastal States, the coastal States’ rights
are limited by the passage rights of other States, including innocent passage through the territorial sea
and transit passage through international straits. This is the primary distinction between internal waters
and territorial seas. These rights are described in detail in Chapter Three: Freedom of Navigation.
There is no right of innocent passage for aircraft flying through the airspace above the coastal state’s
territorial sea.
Contiguous Zone
States may also establish a contiguous zone from the outer edge of the territorial seas to a maximum of
24 nautical miles from the baseline. This zone exists to bolster a State’s law enforcement capacity and
prevent criminals from fleeing the territorial sea. Within the contiguous zone, a State has the right to both
prevent and punish infringement of fiscal, immigration, sanitary, and customs laws within its territory and
territorial sea. Unlike the territorial sea, the contiguous zone only gives jurisdiction to a State on the
ocean’s surface and floor.3 It does not provide air and space rights.
Exclusive Economic Zone (EEZ)
Unlike other zones whose existence derived from earlier international law, the EEZ was a creation of the
LOSC. States may claim an EEZ that extends 200 nautical miles from the baseline. In this zone, a coastal
State has the exclusive right to exploit or conserve any resources found within the water, on the sea floor,
or under the sea floor’s subsoil. These resources encompass both living resources, such as fish, and non-
living resources, such as oil and natural gas.4 States also have exclusive rights to engage in offshore energy
generation from the waves, currents, and wind within their EEZ. Article 56 also allows States to establish
and use artificial islands, installations and structures, conduct marine scientific research, and protect and
preserve the marine environment through Marine Protected Areas.5 Article 58 declares that Articles 88 to
115 of the Convention relating to high seas rights apply to the EEZ “in so far as they are not incompatible
with this Part [V].”6
Due to the maritime features discussed later in this chapter, the U.S. has the largest EEZ in the world,
totaling 3.4 million square nautical miles. The EEZ’s size derives from the large coastlines on the Atlantic
Ocean, the Gulf of Mexico, the western continental U.S., Alaska, Hawaii and many small outlying Pacific
islands. Although not a signatory of LOSC, The U.S. established an EEZ by Presidential Proclamation in
1983. EEZs of States worldwide constitute 38% of the oceans of earth that were considered part of the
high seas prior to adoption of the LOSC.
The EEZ is the most misunderstood of all the maritime zones by policymakers in States around the world.
Unlike the territorial sea and the contiguous zone, the EEZ only allows for the previously mentioned
resource rights and the law enforcement capacity to protect those rights. It does not give a coastal State
the right to prohibit or limit freedom of navigation or overflight, subject to very limited exceptions.
Continental Shelf
The continental shelf is a natural seaward extension of a land boundary. This seaward extension is
geologically formed as the seabed slopes away from the coast, typically consisting of a gradual slope (the
continental shelf proper), followed by a steep slope (the continental slope), and then a more gradual slope
leading to the deep seabed floor. These three areas, collectively known as the continental margin, are rich
in natural resources, including oil, natural gas and certain minerals.
The LOSC allows a State to conduct economic activities for a distance of 200 nautical miles from the
baseline, or the continental margin where it extends beyond 200 nautical miles. There are two methods
to determine the extent of a continental margin under the LOSC. The first method is by measuring
geological features using what is called the Gardiner formula. By measuring the thickness of sedimentary
rocks, the edge of the shelf is drawn where sedimentary rocks become less than 1 percent of the thickness
of the soil. 7 The second method is to use fixed distances in what is called the Hedberg formula. This
method allows States to draw its boundary 60 miles from the foot of the shelf’s slope.8 This expanded
continental shelf cannot, however, exceed (i) 350 miles from the baseline or (ii) 100 miles from the 2,500-
meter isobath.
High Seas and Deep Ocean Floor
The ocean surface and the water column beyond the EEZ are referred to as the high seas in the LOSC.
Seabed beyond a coastal State’s EEZs and Continental Shelf claims is known under the LOSC as the Area.
The LOSC states that the Area is considered “the common heritage of all mankind”12 and is beyond any
national jurisdiction.
States can conduct activities in the Area so long as they are for peaceful purposes, such as transit, marine
science, and undersea exploration.
Resources are a more complicated matter. Living resources, such as fish, are available for exploitation by
any vessel from any State. Although the LOSC does not impose any limitations on fishing in the high seas,
it encourages regional cooperation to conserve those resources and ensure their sustainability for future
generations. The U.S. is party to separate conventions and regional fisheries management organizations
that govern international fishing activity.
Non-living resources from the Area, which the LOSC refers to as minerals, are handled differently from
fish, since mineral extraction projects are capital intensive to build and administer. To maintain such
projects without national control, LOSC created the International Seabed Authority, referred to as the
Authority in the LOSC document. This international body, headquartered in Jamaica, is responsible for
administering these resource projects through a business unit called the Enterprise. The Enterprise was
organized to be governed much like a public-traded corporation with a Council (functioning as an
Executive Committee) and a Secretariat (which handles day-to-day administration). As an international
body, the Authority also includes an Assembly of representatives from each nation which functions like a
large Board of Directors. Unlike a publicly traded corporation, the Assembly is the supreme body for
setting policy in the Authority. Since the ratification of the LOSC, there has been limited activity in relation
to these provisions.
11 What is international humanitarian law?
International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects
of armed conflict. It protects persons who are not or are no longer participating in the hostilities and
restricts the means and methods of warfare. International humanitarian law is also known as the law of
war or the law of armed conflict.
International humanitarian law is part of international law, which is the body of rules governing relations
between States. International law is contained in agreements between States – treaties or conventions –
, in customary rules, which consist of State practise considered by them as legally binding, and in general
principles.
International humanitarian law applies to armed conflicts. It does not regulate whether a State may
actually use force; this is governed by an important, but distinct, part of international law set out in the
United Nations Charter.