UNIT I - INTRODUCTION (15 Hours)

International Law – Definition, Basis and Nature – Codification – International Law Commission –
Sources of International Law – Relationship between International Law &Municipal Law – Theories
and State Practice.
INTRODUCTORY TOPICS
International Law is divided into two branches: Private International Law (conflict of laws as it is
called in the countries of the Common Law System), and Public International Law (usually just
termed International Law). Private International Law deals with those cases, within a particular legal
system, in which foreign elements involve, raising questions as to the application of foreign law or the
role of foreign courts. Public International Law deals, in general, with the external relations of States.
It is this latter branch of International Law is the subject of this present book.
What is Public International Law? How is it originated and developed? What is the aim it is trying to
achieve?
The answers to all these raised questions are dealt with in the following sections.

Definition of Public International Law

Until the Second World War, legal scholars found no difficulty in defining “Public International Law”,
in one formation or another, as the law that governs the relations between States. This traditional
definition is a reflection of the prevailing doctrine of the nineteenth century and the first half of the
twentieth century considering that only states could be persons (subjects) of Public International Law,
in the sense of enjoying international legal personality, i.e., being capable of possessing international
rights and duties.
However, since the mid-twentieth century, the traditional definition has become controversial due to
both the expansion of the scope of the Public International Law into new areas and the emergence of
new actors, beside states, on the international scene, such as international organizations, multinational
corporations, individuals and groups, including minorities and indigenous peoples. Some of these
actors have acquired international legal personality, or, at least, certain rights under International Law.
In the light of this development, the traditional definition has become incomprehensive description of
this law, and the change of the definition of the Public International Law has become inevitable.
Public International Law has been defined as a body of legal rules which regulates or governs
relations between international persons (subjects). This contemporary definition of Public
International Law goes beyond the traditional one which defines this law as a body of rules governing
relations between states.
Thus, the contemporary Public International Law consists of the following:
(a) Legal rules of conduct which states feel themselves bound to observe in their relations with each
other’s;
(b) Legal rules related to the functioning of international organizations, their relations with each other
and their relations with States and individuals; and
(c) Legal rules related to individuals and non-state entities as far as the rights and duties of these
subjects are the concern of the international community.
Public International Law now covers vast and complex areas of international concern, including
traditional topics, such as the State, peace and security, the laws of war, the laws of treaties, the
law of the sea, the law of diplomatic and consular relations, as well as new topics, such as
international organizations, economy and development, air law and outer space activities,
communications, the environment, and last but not least, human rights.
The rules of Public International Law are general and universal in their nature, and are legally binding
on all the persons of International Law. These rules must be distinguished from what is called
international comity and what is known as international morality. A comity is a friendly gesture or
courtesy exercised by one State toward another without constituting a legal obligation; an example of
a comity is the flag salute at the sea. A comity helps in promoting and maintaining friendly relations
among States. While not a legal rule, a comity can be widely observed and can evolve into a
customary international rule or be codified as a law; an example of an international comity which was
codified as a law is the exemption from customs duties of personal articles used by diplomats
(codified in the Vienna Convention on Diplomatic Relations of 1961).
Rules of International Law may meet at certain points with principles of international morality since
they cannot be divorced from their moral values. However, the former rules are legal in their contents
and forms, while the principles of morality are part of the discipline of ethics which is not legally
binding.

Aims of Public International Law

The initial aim of Public International Law has been to create an orderly system of international
relations. However, the modern developments of this law have added another aim to it. Since the
beginning of the Twentieth Century, there has been an evidence of a tendency to bring justice into the
international community through ensuring justice in the relations of States and securing justice for
peoples and individuals.
The establishments of the Permanent Court of International Justice in 1921 and the International
Court of Justice in 1945 have been a clear evidence of such a new aim of the Public International
Law. The use of the term “justice” in the name of these international courts where disputes among
States are decided and where advisory opinions are given according to Public International Law is
evidence that justice has become the concern of this law, and has become one of its aims and
purposes.
To ensure and secure justice, and above all, to bring order to the international relations are the primary
aims of the contemporary Public International Law. This law, which regulates relations between
international persons, aims to create a system of order and justice for the international community. In
the absence of such a system, it will be impossible for the international persons to have steady and
continuous relations, and to enjoy the benefits of such relations.

Theories relating to International Law

Realist Theory
According to this theory, only the Nation/States are considered to be the subject of international laws.
It relies on the principle that it is for the nation/state that the concept of international law came into
existence. These nations/states are distinct and separate entities, capable enough to have their own
rights, obligations and duties, possessing the capability to maintain their rights under international
law.
Prof. L. Oppenheim being the strong supporter of this theory believes that as the law of nations is
primarily a law between the states, to that extent, subjects of the law should be nations only.
However, the theory has been criticized on the fact that it fails to explain the case of slaves and pirates
as under international law, slaves have been conferred with some rights, while the pirates are treated
as enemies of mankind.
Fictional Theory
Supporters of this theory suggest that the subjects of international law are the individuals only and
that legal order is for the well-being of the individuals. They firmly believe that the Nation/state are
nothing but aggregate of individuals as subjects.
Prof. Kelsen is the supporter of the theory and believes that the duties of the states are ultimately the
duty of the individuals of the states and there is no difference between the international law and
municipal law and have been made to be applicable on the individuals only.
Even if the theory of Kelsen appears logically sound, it is seen that the international law’s primary
concern is with the rights and duties of the states.
Functional Theory
Both the Realist and the Fictional Theory take on an extreme course of opinion, but, according to
Functional Theory, neither state nor individuals are the only subjects. They both are considered to be
the subjects of modern International law as they both have recognized rights, duties and obligations.
Along with them, several other entities, like African Union, have been accepted as subjects of
international law.
In the present times, individuals have been conferred with certain rights and duties, for example,
International Covenant on human rights. Moreover, it is agreed that international organisations are
also the subjects of international law. The International Court of Justice held that the United Nation is
an international person and is a subject of international law, capable of having rights and duties.

Nature of International Law (Legality of International Law)

There are two views as to the nature of International Law. The first view is that
‘International Law is not a true law.’ The chief exponents of this view are John Austin, Hobbes,
Holland, Pufendorf, and Bentham. The second view is that ‘International law is a true law.’ And the
chief exponents of this view are from Natural school of Law.
‘International Law is not a true law.’
Austin’s Views - According to Austin, Law is a Command of Sovereign given by political
superior to political inferiors. International law is not true law, but a code of rules of conduct of
moral force only. Law in strict sense is the result of edicts issuing from a determinate sovereign
legislative authority this authority is politically superior if rules are not issued by a sovereign authority
or if there is no sovereign authority then rules are not legal rules. Such rules are moral or ethical rules
only, therefore international law is not a true law but positive international morality.
International laws are opinions or sentiments current among nations generally.
‘International law is a true law.’
The chief exponents of the second view that International law is a true law are Luis Henkin
and Sir, Henry Maine: According to Luis Henkin generally all the nations observe the
principles of International Law and their obligations. According to him Objective of any law
ands its implementation is most important and not the means and methods.
Sir Henry Maine considers that in primitive societies there was no sovereign political authority yet
there were laws. Austin’s concept of law denied customary rules of international law, the status of
law. Treaty and conventions are like legislation of international law. States do not deny the existence
of international law. Some states like U.K. and USA treat International Law as part of their laws.
International law does not completely lack sanctions. Decisions of International Court of Justice
are binding upon parties to the dispute.
SOURCES OF INTERNATIONAL LAW
International law has no Parliament and nothing that can really be described as legislation. While
there is an International Court of Justice and a range of specialised international courts and tribunals,
their jurisdiction is critically dependent upon the consent of States and they lack what can properly be
described as a compulsory jurisdiction of the kind possessed by national courts.
The result is that international law is made largely on a decentralised basis by the actions of the 192
States which make up the international community. The Statute of the ICJ, Art. 38 identifies five
sources:-
(a) Treaties between States;
(b) Customary international law derived from the practice of States;
(c) General principles of law recognized by civilised nations; and, as subsidiary means for the
determination of rules of international law:
(d) Judicial decisions and the writings of “the most highly qualified publicists”.

1. Custom
It is convenient to start with customary law as this is both the oldest source and the one which
generates rules binding on all States. Customary law is not a written source. A rule of customary law,
e.g., requiring States to grant immunity to a visiting Head of State, is said to have two elements. First,
there must be widespread and consistent State practice – ie States must, in general, have a practice
of according immunity to a visiting Head of State. Secondly, there has to be what is called “opinio
juris”, usually translated as “a belief in legal obligation; ie States must accord immunity because
they believe they have a legal duty to do so. As the ICJ has put it:-
‘Not only must the acts concerned be a settled practice, but they must also be such, or be carried out
in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of
a rule requiring it. … The States concerned must feel that they are conforming to what amounts to a
legal obligation.’ (North Sea Continental Shelf cases, ICJ Reps, 1969, p. 3 at 44)
But these elements require closer examination. So far as practice is concerned, this includes not
just the practice of the government of a State but also of its courts and parliament. It includes
what States say as well as what they do. Also practice needs to be carefully examined for what it
actually says about law. The fact that some (perhaps many) States practise torture does not mean that
there is not a sufficient practice outlawing it. To quote from the ICJ’s decision in the Nicaragua case:
‘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 a rule; and that instances of State conduct inconsistent
with a given rule should generally have been treated as breaches of that rule, not as indications of the
recognition of a new rule.’ (ICJ in Nicaragua ICJ Reps, 1986, p. 3 at 98.)

2. Treaties
Treaties (sometimes called agreements, conventions, exchanges of notes or protocols) between States
– or sometimes between States and international organizations – are the other main source of law.
Strictly speaking a treaty is not a source of law so much as a source of obligation under law.
Treaties are binding only on States which become parties to them and the choice of whether or
not to become party to a treaty is entirely one for the State – there is no requirement to sign up to a
treaty.
Why is a treaty binding on those States which have become parties to it ? The answer is that there is a
rule of customary international law – pacta sunt servanda –“agreements must be
kept” or “promises must be kept”----- which requires all States to honour their treaties.
That is why treaties are more accurately described as sources of obligation under law. Article 2(2) of
the UN Charter

Kinds of Treaties
Law-making treaties: These kinds of agreements have a large number of parties. Thus, they are also
called multilateral treaties. They can be used directly as a source of international law. Further, these
treaties have a general legal standing, rather than being specific to the parties in a contract. They may
lay down general rules or enunciate universal rules. Some examples of multilateral treaties are the
United Nations Charter , Vienna Convention on the Law of Treaties, 1969 (VCLT), etc.
Treaty contracts: Treaty contracts or bilateral treaties are generally contracted between two
parties. They are drafted in a way that they only suit the object, and establish the rights and
obligations against the parties in the contract. Further, a treaty which is originally between two
States can later be converted into a multilateral treaty by adding more parties that will be
universally accepted by all. The Simla Agreement of 1972 between India and Pakistan is an example
of a bilateral agreement.

Formation and Termination of Treaties

There is no codified procedure regarding the formation or conclusion of an international
treaty. Nonetheless, there are a few steps given under Vienna Convention on Law of Treaties,
(1969) that are to be followed while forming any convention.
1) Accrediting of representatives
Each State appoints a representative with the necessary authority to conduct
negotiations and conclude treaties. They are given formal instruments by the head of
the State or by the Ministry of Foreign Affairs namely, ‘full powers.’ It provides the
person the authority to negotiate and adopt the covenant. Article 7 of the Vienna
Convention regulates this procedure.
2) Negotiation and adoption
Negotiation is conducted in a multilateral treaty through, ‘diplomatic conference’, and
in a bilateral agreement through ‘discussions. All the accredited persons shall present
their proposals in the conferences, which are either accepted or rejected, and counter
proposals are made. The final proposals approved by all the parties is called a draft
treaty. According to Article 9 of the Vienna Convention, the draft treaty shall be
adopted with the consent of all the participating parties and by the vote of two-thirds
of the States present at the conference or by any other rule decided by the parties.
3) Expression of consent
The VCLT provides several modes of expressing consent to become a party to a
treaty. The agreement might expressly state the method of granting a consent or, it
might be silent. When it is silent, either of the modes can be adopted by the parties.
4) Entry into force
A treaty will have a binding effect on a State when it enters into force according to the
provision of the contract. A multilateral covenant normally comes into force when a
stipulated number of ratifications or accessions is received.
5) Registration and publication
 According to Article 102 of the UN Charter, every international agreement has to be
registered with the Secretary-General of the United Nations.
Reservation, declarations, and derogations
A State often ratifies an agreement with the condition that it shall not be bound to specific provisions,
which it expressly states in the treaty itself, or by an agreement between the contracting parties,
or by a reservation made regarding those provisions.
Reservation is defined under Article 2(1) of the Vienna Conventions. For example, reservation to the
Genocide Convention was made by various countries. The reservations or unilateral declarations are
binding, however whether they are a part of treaty, custom, or an independent source of international,
is still debatable.
Declaration slightly differs from reservations, as it does not affect any legal obligations mentioned in
the treaty. It merely clarifies the State’s position regarding a provision. It is given at the time of
signature, which then is annexed to the treaty.
Lastly, derogations are applied to the International Human Rights Law, which allows a State to
temporarily suspend the exercise of certain treaties or conventions during armed conflict or
national emergency.

Scope of pacta sunt servanda

According to Article 18 of the VLCT, states are asked to refrain from doing any acts which
would hamper the outcome of the treaty. This is under the prerequisites that it has signed the treaty
that has been subsequently ratified. This is until it has made its intentions clear that it does not want to
be a party to the treaty.
According to Article 27 of the Vienna Convention, one cannot use the defence that their domestic
laws prevent them to act out a treaty which they consented to. But in certain cases where the
treaty violates a ‘fundamental internal law’ of the country who has consented, then the treaty will be
deemed invalid. (Section 46 of the Vienna Convention).
Article 25 of the Vienna Convention allows for certain clauses of the treaty to be changed in the
future. This is subject to the fact that the treaty explicitly states that such clauses can be
changed in the future and that such changes should not defeat the purpose of the treaty itself.

3.General principles of international law

The general principles of international law is the third source of international law recognised under
Article 38(1)(c). This provision comes into picture when other traditional sources, such as the
treaties or customary law does not provide a rule of decision. However, the term ‘general
principles of international law as applied to the civil nations’ is vague, and many scholars have
tried to interpret it. It has been debated for long whether or not they constitute a valid source of
international law.
Example:
Reparation means the damages paid to the injured party caused by an unlawful act of the other party.
The purpose of reparation is to re-establish the situation that existed before such harm occurred.
International courts in various judicial decisions have recognised reparation as a part of general
principles.
AMCO Asia Corporation & Ors. v. The Republic of Indonesia, the Permanent Court of Arbitration
while awarding damnum emergens or reparations to the injured party, held that it is a common
principle of municipal law and, hence it is also considered as a source of international law through
general principles.
Prescription refers to the acquisition of territory by an adverse holding, peacefully without protest
continuously for a long time. It is recognised both in domestic and international law cases.
The principle of Res Judicata is encompassed in municipal as well as international law. It is a Latin
maxim which means, ‘a matter decided’, or ‘the thing has been judged’.

4. Judicial decisions and juristic writings

These are the subsidiary or secondary sources of international law that are regarded as the
interpretations of the primary sources. They are recognised under Article 38(1)(d) of the Statute of the
International Court of Justice. Also, Article 38(1)(d) does not distinguish between decisions of
international and national courts.
However, according to Article 59, the decisions of the ICJ are not binding, except on the parties
involved and in respect of that particular case only. Thus, the doctrine of precedent that is
applicable in the national courts, is not applicable in the international courts.
Moreover, every juristic writing is not accepted as a source of law. The teachings of most highly
qualified publicists are regarded as the subsidiary source of international law. They are generally
accepted as evidence of the law, rather than the source of law.

Doctrine of Jus Cogens under International Law

Jus cogens, also known as the peremptory norm, is a fundamental and overriding principle of
international law. It is a Latin phrase that translates to ‘compelling law’. It is absolute in nature
which means that there can be no defense for the commission of any act that is prohibited by jus
cogens. These norms, though limited, are not codified. They are derived from changing social,
political attitudes and major case laws and are not defined by any authoritative body.
It is basically a compilation of norms that lays down the international obligations which are essential
for the protection of the fundamental interest of the international community and any violation of
these norms is thereby recognized as a crime against the community as a whole. Jus cogens imply
absolute restrictions on genocide, slavery or slave trade, torture or other inhuman treatment,
prolonged arbitrary detention, and racial discrimination.
Any activity or treaty carried out by the states or international organizations that contradict
human dignity and rights will offend the concept of jus cogens and thus, be void. It can be said
that jus cogens exist to protect and uphold human dignity and rights.

Article 53 of the Vienna convention is the origin of the principle of jus cogens. It states that a
treaty is void if, at the time of its conclusion, it conflicts with the peremptory norm of general
international law. The norm should be accepted and recognized by the international community of
states as a norm from which no derogation is permitted and which can be modified only by a
subsequent norm of international law having the same character.
Article 64 of the Vienna convention deals with the emergence of a new peremptory norm of
international law. It states that if a new peremptory norm of the international law emerges, any
existing treaty which is in conflict with that norm becomes void and is terminated.
In Bosnia and Herzegovina v. Serbia and Montenegro[2], Serbia was accused of attempting to
exterminate Bosnia and Herzegovina’s Muslim population, resulting in violations of the Convention
on the Prevention and Punishment of the Crime of Genocide, so invoking an article of the genocide
convention.
In this case, it was unanimously decided that Serbia was not directly involved nor complicit in the
genocide, but rather breached the genocide convention by failing to prevent it, the genocide
convention being a part of jus cogens.

Relationship International and Municipal Law

Difference between International Law and Municipal Law
Municipal Law is the law specific to a particular city or county (known legally as a "municipality"),
and the government bodies within those cities or counties. This can cover a wide range of issues,
including everything from police power, zoning, education policies, and property taxes.
Municipal law governs the domestic aspects of government and deals with issues between individuals,
and between individuals and the administrative apparatus, while international law focuses primarily
upon the relations between states.
Theories on the relationship between International law and Municipal law
The two principal theories of the relationship between International law and Municipal law are known
as Monism and dualism. It’s critical to comprehend how international law concepts are incorporated
into domestic law, as well as what happens when the laws clash.
1. Monistic Theory: According to this theory, the domestic civil order is the only legal structure that
exists. The proponents of this theory deny that international law is a separate and self-contained body
of law. Kelson, an Austrian jurist, founded the monistic theory. Monists believe that both municipal
and international law are members of a single universal legal framework that serves the interests of
the human race in some way. As a result, the law of nations is indistinguishable from state internal or
municipal law, and it is only relevant as part of the universal legal order. As a result, they are both
genus-law organisms. Monistic theorists refuted Dualists’ claims that the two structures differed in
terms of origins, substance, concepts, and subject matter.

2. Dualistic theory: The law of nations and the municipal laws of the various states, according to
Dualistic theory, are two different, distinct, and self-contained legal structures. International Law does
not form part of a state’s domestic law since it is a separate framework. Since they have no common
grounds or subjects of application, such a view eliminates any debate over which form of law is
superior to the other. Each is supreme in its own domain. The dualists argue that since international
law can only address States and not persons, States are free to govern their internal affairs as they see
fit and that international law has little or no influence over municipal law.
Triepel, a well-known German scholar, proposed this idea in 1899. Later on, Italian jurists
Anzilotti and Starke adopted the idea. The two systems of law, according to the writers, differ in
terms of sources, subjects, law substance, principles, and subject-matter.
Specific Adoption Theory: It is based on the dualist philosophy. According to this principle, no laws
of international law can claim to be enforced by municipal courts on their own force unless they are
transformed and implemented directly by municipal courts and systems. Only if they are expressly
adopted, international law laws become part of national law.
Transformation Theory: The laws of international law are transformed, according to proponents of
this theory, for the application of international law in the field of municipal law. When international
law becomes more widely accepted, it undergoes changes. It cannot be extended to local law until it is
converted. States use a special “transformational” device to integrate treaties and norms into their
municipal rules.

UNIT II- SUBJECTS

State and Individual as a subject – Rights and Duties -State Responsibility – State Recognition –
Theories –Nationality – Acquisition and loss– Extradition- Asylum - Territorial Sovereignty – Modes of
acquisition and loss of territory – State Jurisdiction – State Succession and liability.

Essentials for recognition as a state:

Under the International Law, Article 1 of the Montevideo Conference, 1933 defines the state as a
person and lays down following essentials that an entity should possess in order to acquire
recognition as a state:
1. It should have a permanent population.
The existence of a permanent population is naturally required as an initial evidence of the
existence of a State. This requirement suggests a stable community. Evidentially it is
important, since in the absence of the physical basis for an organized community, it will be
difficult to establish the existence of a State. The size of the population, however, is not
relevant since International Law does not specify the minimum number of inhabitants as a
requirement of statehood. Nevertheless, an acceptable minimum number of inhabitants is
required with regard to self-determination criterion.
2. A definite territory should be controlled by it.
The requirement of a permanent population is intended to be used in association with that
of territory. What is required by a defined territory is that there must be a certain portion of
land inhabited by a stable community. A defined territory does not suggests that the
territory must be fixed and the boundaries be settled since these are not essential to the
existence of a State, although in fact all modern States are contained within territorial limits
or boundaries.
3. There should be a government of that particular territory.
For a stable community to function reasonably effectively, it needs some sort of political
organization. It is required that an effective government be created, and this political
authority must be strong enough to assert itself throughout the territory of the State
without a foreign assistance. The existence of an effective government, with some sort of
centralized administrative and legislative organs, assures the internal stability of the State,
and of its ability to fulfill its international obligations.
4. That entity should have the capacity to enter into relations with other states.
The capacity to enter into relations with other States is an attribute of the existence of an
international legal personality. A State must have recognized capacity to maintain external
relations with other States. Such capacity is essential for a sovereign State; lack of such
capacity will avert the entity from being an independent State. Capacity distinguishes States
from lesser entities such as members of federation or protectorates, which do not manage
their own foreign affairs, and are not recognized by other States as full-members of the
international community.

Rights and Duties of State

When a state acquires recognition, it gains certain rights, obligations and immunities such as.

 It acquires the capacity to enter into diplomatic relations with other states.
  It acquires the capacity to enter into treaties with other states.
 The state is able to enjoy the rights and privileges of international statehood.
 The state can undergo state succession.
 With the recognition of state comes the right to sue and to be sued.
 The state can become a member of the United Nations organisation.
 States are bound to create a friendly relations with other states.
 States have a duty to not use force against another state
 States cannot interfere in the affairs of another state

State Responsibility
State responsibility is incurred when one State commits an internationally wrongful act
against another. For instance, Article 2(4) of the UN Charter prohibits dictatorial non-
intervention by stating that every State is under a legal obligation not to use or threaten to
use force against others. However, non-intervention is not merely limited to the prohibition
of the usage of force. Any form of coercive interference in the internal affairs of a State
would invite State responsibility.
As Oppenheim’s international law puts it, “the interference must be forcible or dictatorial, or
otherwise coercive, in effect depriving the State intervened against of control over the
matter in question. Interference pure and simple is not intervention”.

A landmark case in this regard is Nicaragua v. United States; the case concerning military
and paramilitary activities in and around Nicaragua. It involved the United States supporting
rebellion groups against the Nicaraguan government. The Court found in its verdict that the
United States was “in breach of its obligations under customary international law not to use
force against another State” and “not to intervene in its affairs”.
United Kingdom v. Albania (The Corfu Channel Case)
On October 22, 1946, a few British warships, while passing through the North Corfu strait
within the territorial waters of Albania, were severely damaged due to mine explosions.
Most of the crew members were either killed or gravely injured. The Albanian waters had
previously been swept clean of mines. The United Kingdom, through an application filed on
22 May 1947 accused Albania of having laid or allowed a third State to lay the mines after
mine-clearing operations had been carried out by the Allied naval authorities.
The Court found that Albania was responsible under international law for the explosions that
had taken place in Albanian waters and for the damage and loss of life which had ensued.
Although it did not accept the view that Albania had itself laid the mines or granted
permission to another entity, it held that the mines could not have been laid without the
knowledge of the Albanian Government. Therefore, it was concluded that the Albanian
government had authorized the laying of mines, and therefore was ordered to make
reparation to the United Kingdom.

Basis and nature of State responsibility

There are three factors employed to determine the liability of a State.
 Firstly, the State must be under a legal duty not to commit the act.
 Secondly, the State must commit the act.
 And finally, the act must cause injury (loss or damage) to another entity. If these
factors are satisfied, the State is bound to make reparation to the injured parties.

Responsibility

Direct responsibility
The government, which includes the executive, the legislature, judiciary, and the central
authorities and local authorities, is what represents the State. Therefore, in the event of any
of these organs committing a breach of international law, the State shall be held directly
liable. For instance, by the representative theory, diplomatic ambassadors are considered to
be representatives of the head of the sending State. Therefore if they commit a wrongful act
in the capacity of their diplomatic status, the sending State shall be held liable. Similarly, a
State is held liable for the wrongful acts of its armed forces, if it had authorised the armed
forces to carry out those acts.

Indirect responsibility
A State could also be held responsible for the acts committed by other parties if those acts
were authorized by it. This rule depends on the link that exists between the State and the
person or persons committing the wrongful act or omission. Indirect responsibility/
vicarious responsibility is a condition when an entity is made liable to make reparation, for
the acts of another entity. This occurs when the latter has been authorized by the former to
commit the act. Therefore, in such cases, the authorizing State is held indirectly liable for
the acts of the authorised State. Even if the authorized entities exceed or disobey their
instructions, the State shall be held liable, if they are acting under ‘apparent authority’.
United States v. Iran (1980)
On November 4, 1979, a group of Iranian rebels invaded the US embassy in Tehran. They
damaged the embassy and destroyed embassy documents. The invasion lasted for hours,
but despite repeated requests, Iranian military forces did not arrive until later. More than
sixty American diplomats and citizens were held hostage until January 20, 1981. Some of the
hostages were released earlier, but 52 hostages were held hostage until the end. Once on
scene, the Iranian military did not attempt to free the hostages. On November 29, 1979, the
U.S. filed a claim against Iran in the International Court of Justice (ICJ). The ICJ found the
rebels to be ‘agents’ of the Iranian Government, because the latter had approved and
perpetuated their actions, translating occupation of the embassy and detention of the
hostages into official acts of the State, of which the perpetrators, while initially acting in
private capacities, were rendered agents of the Iranian State.

The question of ‘Fault’

There are two theories attributed to State responsibility. The ‘risk’ theory says that a State is
strictly liable if a State official or organ commits a wrongful act. Whereas the ‘fault’ theory
takes the element of ‘intention’ into account and says that a State shall be responsible only
if the act is committed intentionally or negligently.

Legal consequences of State responsibility

Where there is a right, there is a remedy. When a State commits a breach of
international law, it becomes liable to make good the losses faced by the injured
parties. The first consequence is the cessation of the wrongful act, and the second is
reparation.

Cessation of the wrongful act

International law requires the accused State to cease committing the wrongful act
and to offer appropriate assurances and guarantees on non- repetition.

Reparation
The accused party shall be responsible to make reparation to the injured parties for
its wrongful acts. The accused party is liable to make restitution, i.e., materially
revert the original party back to the same status before the wrongful act. If
restitution is not possible, the accused party shall be liable to make compensation.
Compensation involves the making of monetary reparation, with an aim of reverting
the injured party to its State prior to the occurring of the act.

Another form of reparation is satisfaction. Satisfaction is considered a more

appropriate remedy than compensation, in cases of moral damage. It may include any
reasonable act demanded by the injured State, such as the acknowledgement of the
wrongful character of the act, the punishment of guilty officials, nominal damage, an official
apology, etc.

Recognition
Recognition of state under the International Legal System can be defined as “the formal
acknowledgement or acceptance of a new state as an international personality by the
existing States of the International community”. It the acknowledgement by the existing
state that a political entity has the characteristics of statehood.

Theories of recognition
The recognition of a new entity as a sovereign state is based on two main theories:

Constructive / Consecutive Theory

Declaratory Theory

Consecutive Theory

The main exponents related to this theory are Oppenheim, Hegal and Anziloti.
According to this theory, for a State to be considered as an international person, its recognition by
the existing states as a sovereign required. This theory is of the view that only after recognition a
State gets the status of an International Person and becomes a subject to International Law. So, even
if an entity possesses all the characteristics of a state, it does not get the status of an international
person unless recognised by the existing States.

This theory does not mean that a State does not exist unless recognised, but according to this theory,
a state only gets the exclusive rights and obligations and becomes a subject to International Law after
its recognition by other existing States.

Criticism of the theory

This theory has been criticised by several jurists. Few of the criticisms of this theory are:

This theory is criticised because unless a state is recognised by other existing states, rights, duties
and obligations of statehood community under International Law is not applicable to it.

This theory also leads to confusion when a new state is acknowledged and recognised by some of the
existing states and not recognised by other states.

2. Declaratory Theory

The main exponents of the Declaratory Theory of Statehood are Wigner, Hall, Fisher and Brierly.
According to this theory, any new state is independent of the consent by existing states. This theory
has been laid down under Article 3 of the Montevideo Conference of 1933. This theory states that
the existence of a new state does not depend on being recognised by the existing state. Even before
recognition by other states, the new state has the right to defend its integrity and independence
under International law.

The followers of theory consider the process of recognition as merely a formal acknowledgement of
statehood by other states.

Criticism of the theory

The declaratory theory of statehood has also been criticised. This theory has been criticised on the
ground that this theory alone cannot be applicable for recognition of a state. When a state having
essential characteristics comes into existence as a state, it can exercise international rights and
obligations and here comes the application of declaratory theory, but when other states
acknowledge its existence and the state gets the legal rights of recognition, the consecutive theory
comes into play.,

Legal Effects of such recognition

When a state acquires recognition, it gains certain rights, obligations and immunities such as.

With the recognition of state comes the right to sue and to be sued.

The state can become a member of the United Nations organisation.

Modes of Recognition
There are two modes of recognition of State:

De facto Recognition

De Jure Recognition
1. De facto Recognition

De facto recognition is a provisional recognition of statehood. It is a primary step to de jure

recognition. It is a temporary and factual recognition as a state, and it can either be conditional or
without any condition.

This mode recognition is granted when a new state holds a sufficient territory and control over a
particular territory, but the other existing states consider that it does not have enough stability or
any other unsetting issues. So, we can consider it as a test of control for newly formed states. De
facto recognition is a process of acknowledging a new state by a non-committal act.

The state having de facto recognition are not eligible for being a member of the United Nations. e.g.,
Israel, Taiwan, Bangladesh.

2. De jure Recognition

De jure recognition is the recognition of a new state by the existing state when they consider that the
new state fulfils all the essential characteristics of a state. The de jure recognition can be granted
either with or without granting de facto recognition. This mode of recognition is granted when the
newly formed state acquires permanent stability and statehood The De jure mode of recognition
grants the permanent status of a newborn state as a sovereign state.

Example of de facto and de jure recognition:

Bangladesh was established in March 1971. India and Bhutan recognised it just after 9 months of
establishment but the United States gave it legal recognition after nearly 1 year in April 1972.

The distinction between De Facto and De Jure Recognition

S.No. De facto Recognition De jure Recognition

De facto recognition is a provisional and

1. De jure recognition is legal recognition.
factual recognition.

De facto recognition is granted when there is De jure recognition is granted when the state fulfils all the
2. the fulfilment of the essential conditions of essential condition of states along with sufficient control
statehood. and permanency.

De facto recognition is a primary step De jure recognition can be granted either with or without
3.
towards grant of de jure recognition. grant of de facto recognition.

De facto recognition can either be De jure recognition is a final and non-conditional

4.
conditional or non-conditional. recognition

5. De facto recognition is revocable in nature. De jure recognition is non-revocable.

The states recognised under this mode have

The state recognised under this mode have the absolute
6. only a few rights and obligations against
right and obligations against other states.
other states.

The state with de facto cannot undergo state The state with de jure recognition can under state
7.
succession. succession.
Nationality

In law, nationality refers to the membership of a nation or a sovereign state in addition to the
political rights and other privileges accompanied with it. E.g. American Indians were referred to as
non-citizen nationals before the Native American Citizenship of 1924 was passed. Often confused
with citizenship, nationality, is a different concept. Individual persons, corporations, ships and
aircrafts, all have a nationality, but for legal purposes only.

The UNs Universal Declaration of Human Rights (1948) stated that nationality is an inalienable right
of every human being and no one shall be deprived of his/her citizenship. It is nationality which
brings all the individuals under the purview of international laws.

1. Active Nationality Theory: This theory recognizes that a state may exercise criminal jurisdiction
over its nationals based on their active nationality and can prosecute and punish its sovereign
nationals for committing a crime outside its territory.

2. Passive Nationality Theory: This theory provides for a sovereign to adopt criminal laws that apply
to foreign nationals committing crimes against the sovereign’s nationals while the sovereign’s
nationals are outside of the sovereign’s territory.

Statelessness

The United Nations High Commissioner for Refugees (UNHCR) defines a stateless person as, “an
individual who is not considered a national by any state under the operation of its law”. In layman’s
terms, it refers to a person devoid of the nationality of any state.

Causes of statelessness

Visible Discrimination

States might discriminate amongst their people on the basis of their race, religion, ethnicity,
language or even gender. The states can amend their laws based on some discriminatory criteria,
capable of deeming the whole population stateless.

Carelessly drafted laws

All the countries have laws which set down the procedure and conditions of how individuals acquire
the nationality of the particular state. Many a time it is not well researched and not quite well
drafted thus excluding some sections of people as a whole, who are then labelled as stateless.

The advent of new states

The emergence of new states and change of frontiers, though provides a chance to attain the
nationality for all the ethnic, racial and religious minorities. It has certain potholes which leave space
for mistakes. The stateless individuals are unable to provide their linkage to the countries. This has
even bigger provisions, for states where nationality is passed on the basis of lineage. It deems an
entire generation of people to be stateless.

Being born in a foreign country

A child born in a foreign territory faces the potential risk of being stateless if the parent nation does
not provide nationality based on birth alone. In other cases, there might be laws barring the child
from attaining nationality because of being abroad.
Loss or deprivation

Living outside your homeland for a long duration of time can also make you lose your nationality.

Failing to prove their links to a state

If an individual is unable to prove their linkage to a state in terms of basic certificates like birth
certificates, land papers etc.

The Nottebohm Case (Liechtenstein v. Guatemala)

Friedrich Nottebohm was born in Hamburg Germany and was its citizen. In 1905, for the purpose of
starting his business in trade, banking, and plantations with his brothers, Friedrich Nottebohm
moved to Guatemala. He resided in Guatemala until 1943, however, he never acquired the
Guatemalan citizenship. Friedrich Nottebohm visited Germany for business and also paid a few visits
to Liechtenstein. In 1939, before World War II began, he applied for citizenship of Liechtenstein
through naturalization, and his application was approved. Friedrich Nottebohm became
Liechtenstein’s citizen and according to the German law, he lost his Germany’s citizenship.

In January 1940, when he returned to Guatemala, Friedrich Nottebohm informed the local
government about his change of nationality. On December 11, 1941, Germany supported Allies and
formally declared war on Guatemala. Thus, after the world war, despite of the Liechtenstein’s
citizenship, the Guatemala government rejected Friedrich Nottebohm’s citizenship and seized all his
property (still considered him as Germany’s citizen). Later he was arrested and handed over to the
United States. While the Guatemalan government had already confiscated all his property in the
country, the US government also seized his company’s assets in the US.

In 1951, the Liechtenstein government, on behalf of its citizen Nottebohm, brought a suit against
Guatemala in the International Court of Justice. The suit was against the unjust treatment and the
illegal confiscation of Nottebohm’s property.

The Nottebohm principle was followed, a supplementary and mandatory prerequisite for recognition
of nationality at international law – ‘the national must prove a meaningful connection to the state in
question