Please note: The notes are originally typed from the prescribed books as

cited. This is not a copy and paster work

TOPIC 1: Nature and Development of International Law

Definition of International Law1

I.L.Oppenheim-Professor Oppenheim has defined international law in the

following words:

“Law of nations or international Law is the name for the body of customary and
conventional rules which are considered legally binding by civilised states in
their intercourse with each other.”

This definition was given by Oppenheim in 1905. A critical discussion of

Oppenheim’s definition is made below with a view to show and highlight the
changes that have taken place in the concept and definition of Public
International law during the last decades.

Criticism-

Professor Oppenheim’s definition suffers from several serious defects. It might

have been good and adequate when it was given but now it has outlived its
utility and has become obsolete and inadequate. “Indeed every important
element in it can now be challenged.”

The definition of Oppenheim has been subjected to following criticism:-

(i) In the first place….”it is now generally recognised that, not only
“states’ but public international organisations, have rights and duties
under International Law, even though they may not have all the rights
and duties that states have”. In fact the future of International law is
one with the future of international organisation.”
(ii) The use of the term ‘civilised states’ by Oppenheim is also severely
criticised. The criterion of distinguishing so-called ‘uncivilised states’
was neither long history nor culture. Even though China had 5,000
1
S,K.Kapoor, International Law and Human Rights, book.page 25-27.
 years of old culture, she was not included in the group of civilised
states. So was the case of oriental states. In not too distant past, the
western states regarded only the ‘Christian states’ as ‘civilised states’.
That is why, in later editions of Oppenheim’s book the term ‘civilised
states’ have been deleted. For example in eighth edition of
Oppenheim’s book, International law has been defined in the
following words:
“Law of Nations or International Law is the name for the body of
customary and treaty rules which are considered legally binding by
states in their intercourse with each other.”
(iii) Thirdly, “More controversial but no longer untenable is the view that
even individuals and other private persons may have some such rights
and duties.”
Of all the changes that have taken place in the international law since
the Second World War, the most important change has been the
addition of new subjects. The main change that has taken place is that
from the formal structure of relation of states it is moving towards the
interests and welfare of citizens of member states.

As Jenks has rightly remarked: “Contemporary International Law can

no longer be reasonably presented within the framework of the
classical exposition of International Law as the law governing the
relations between states but must be regarded as the common law of
mankind in an early stage of development.”
 It is no longer possible to regard International Law as governing
relations solely between states. At present, it also governs
relations between states and international organisations,
between states and private persons, and between International
Organisations and private persons. This has been conceded even
in later editions of Oppenheim’s book. For example in eighth
edition of his book following passage deserves mention: “It
must be noted that although the rules of international law are
primarily those which govern the relation of states, the latter are
not the only subjects of international law. International
organisations and, to some extent, also individuals may be
subjects of rights conferred and duties imposed by international
law.”
  In this connection the, the example of the advisory opinion of
the international court of justice on Effects of Awards of
Compensation made by the U.N. Administrative Tribunals may
also be cited. Besides this, the 1965 Convention of Settlement
of Investment Disputes between States and Nationals of other
States deserves a special mention.
 Reference may also be made to the Universal Declaration of
Human Rights, 1948, which enumerates a number of rights of
the individuals and now “constitutes authoritative interpretation
of the human rights provisions of the Charter. International
Covenant on Human Rights and the Optional protocol to the
Covenants on Civil and Political Rights further confirm that the
individuals have become not only the subjects of International
law but can also directly claim rights and remedies provided
under International law. Individuals can also send petition to the
UN Human Rights Council. Individuals can also send petitions
or make complaints to the Human Rights Committee
established under the International Covenant on Civil and
Political Rights, 1966.
 Above all, the charter of the UN begins with the words “we the
people of the United Nations.” The developments since the
inception of the UN particularly the international protection of
human rights, have confirmed that these words have not crept
into the Charter incidentally but were deliberately used and
were pregnant with meaning.
 It may therefore, be observed that the present International Law
cannot be regarded as the law governing the relation between
states, but must be regarded “ as the common law of mankind in
an early stage of its development.” European Convention on
Human Rights, 1950, American Convention on Human Rights,
Convention on Suppression and Punishment of Apartheid, 1973,
Convention on the Elimination of All Forms of Racial
Discrimination, etc. also deserves a special mention in this
connection.
(iv) Fourthly, “ it is now widely recognised that International Law consists
not only of customary and conventional rules but also of ‘General
Principles of Law’. Article 38 of the Statute of the International Court
 of Justice mentions ‘General Principles of Law Recognised by
Civilised states’ as the third source in order under which the source of
of International law are to be used while deciding on international
dispute. That is to say, if the court does not find any International
treaty or International custom on a particular point under dispute, the
Court may take the help of ‘General Principles of Law Recognised by
Civilised states.
(v) Fifthly, “ the very conception that international law as a “body of
rules” now stands changed as static and inadequate.” Further, “ Like
all living law, international law does not stand still but is continuously
reinterpreted and reshaped in the very process of its application by
authoritative decision makers, national and international. International
law, or any law for that matter is a dynamic concept. Law changes
with the change of time and circumstances. A law to be living, must
be flexible, adaptable and changeable.

New Definition of International Law in Ninth edition of Oppenheim’s

Book

“International law is the body of rules which are legally binding on

states in their intercourse with each other. These rules are primarily
those which govern the relation of states, but states are not the only
subjects of international law. International organisations and, to some
extent, also individuals may be subjects of rights conferred and duties
imposed by international law.”

Basis of International Law-Jurisprudential theories

The controversy whether international law is a law or not revolves on
the divergent definitions of the word ‘law’ given by the jurists. If we
subscribe to the view of Hobbes, Austin and Pufendorf that law is a
command of sovereign, enforced by a superior political authority, then
international law cannot be included in the category of law. On the
other hand if we subscribe to the view that the term ‘law’ cannot be
limited to the rules enacted by superior political authority, then
international law can be included in the category of law. Thus the
jurists are divided into two main groups in regard to the legal
character of the norms of international law.
 Hobbes, pufendorf and Austin subscribe to the view that law
“properly so called” is a command of the sovereign and is enforced by
a superior political authority. Since law is the command of a
determinate superior, no law can exist where there is no supreme law
giver and no coercive enforcement agency.
 According to Austin , law is given by determinate superior
political authority to political inferiors and is backed by a
coercive enforcement agency. Thus in view of Austin sanction
occupies an important place in the enforcement of law. People
follow law because they fear that if they do not do so, they
might be compelled and even punished. According to Hobbes,
man is by nature nasty, brutish and violent and fear or sanction
which is inherent in law is necessary to maintain order in
society.
 Thus we see that those jurists who deny the legal character of
international law regard law as the command of the sovereign
and having a coercive enforcement agency. In view of these
writers, the rules commonly called international law, are in fact
the rules of ‘postive morality’. Holland,Jeremy Bentham etc,
are other prominent jurists who deny the legal character of
international law.
 In support of their view-point these jurists put forward the
following arguments:
 (1) In munincipal law, there is a determinate superior political
authority which does not exists in international law.(2) As
compared to municipal law, international law lacks an effective
legislative machinery .(3) International law lacks sanction
which, according to the writers of this pursuasion, is an
essential element of law.(4) There is no such executive power in
International Law as may enforce the decisions of the
International Court of Justice and ensure the observance of the
provisions of the treaties.(5) International law lacks a potent
judiciary(6) Some writers call international law a quasi law.

International Law is Really Law

Most of the jurists now subscribe to the view that International law is really law.
So far as the sanction or coercive force behind the law is concerned, it may be
said that it is not an essential element of law and even if sanction is regarded as
an essential element of law there are sanctions in international law.

The arguments of the jurists who regard international law as really law, may be
summed up as follows:

(1) The term law cannot be limited to rules of conduct enacted by a sovereign
authority. Sir Henry Maine, one of chief exponents of historical school of
jurisprudence, carried on research on historical jurisprudence and firmly
established that in primitive society there was no sovereign political
authority yet there were laws.
(2) The Austinian concept of law fails to account for the customary rules of
international law. If we accept the Austinian definition of law common
law of England will lost its legal validity.
(3) Customary rules of international law are diminishing and are being
replaced by law making treaties and conventions. Today, the bulk of
international law comprises of rules laid down by various law-making
treaties, such as Geneva and Hague conventions. The rules laid down by
these treaties are binding although they do not emanate from sovereign
political authority.
(4) When international questions arise, States do not rely upon moral
arguments but rely upon treaties, precedents and opinions of specialists.
(5) States do not deny the existence of international law. On the contrary,
they interpret international law so as to justify their conduct.
(6) In some State (e.g.USA and U.K.), international law is treated as part of
their own law. A leading case on the point is the Paquete v. Habanna,
wherein Justice Gray observed, “ International law is a part of our law,
and must be ascertained and administered by courts of justice of
appropriate jurisdiction, as often as questions of right depending upon it
are duly presented to their determination.
(7) As per the statute of ICJ, the ICJ has to decide disputes as are submitted
to it in accordance with international law.
(8) International conference and conventions also treat international law as
law in its true sense.
(9) The United Nations is based on the true legality of international law.
(10) So far as sanction is concerned, international law does not
completely lack it.
 (11) It is true that International law is frequently violated but it does not
mean that international law is not law. Even state or municipal law is
violated. Frequent violations of law indicate the weakness of enforcement
machinery and have nothing to do with the legality of the rules. Legality
of rules and enforcement of rules of law are two different things.
(12) The decisions of the International court of justice are binding upon
the parties to a dispute and only in respect of that dispute. The powers
and jurisdiction of international court of justice are not equivalent to the
Municipal Court bu under certain conditions, its decisions can be
enforced. Article 94 of the U.N.Charter provides that each member of the
U.N. undertakes to comply with the decision of the International court of
justice. It further provides that if any party to a case fails to perform the
obligations incumbent upon it under a judgment rendered by the court,
the other party may have recourse to the security council,which may, if it
deems necessary, make recommendations or decide upon measures to be
taken to give effect to the judgment.

On the basis of the above arguments, it may be concluded that international law
is really law. However, it has to be admitted that international law is not
equivalent to municipal law. “It is obvious that international law unlike
municipal law, operates in a decentralised political system. There is not world
legislature, not international policies, and no international court with
compulsory jurisdiction. Starke has expressed the view that international law
is a weak law.

Is International Law a mere Positive Morality?

In order to know whether international law is a mere positive morality, it is

necessary first to know what is a rule of morality and then, what is the
difference between a rule of morality and a rule of law. As pointed out by
Oppenheim: “A rule is a rule of morality if by common consent of the
community it applies to conscience and conscience only: whereas on the other
hand, a rule is a rule of law, if by common consent of the community it will
eventually be enforced by external power. Thus rule of morality is a rule which
applies to conscience only and cannot be enforced by external power. A rule of
law on the other hand can be enforced by external power.

Basis of International Law: Jurisprudential Theories2

2
S,K,KAPOOR, PAGE 52-53.
After having arrived at the conclusion that International Law is Law in the true
sense of the term, it is necessary to see as to what is the true basis of
international law. There are two main theories in this connection. They are: (1)
Theories as to Law of Nature; and (2) Positivism.

(1) Theories as to Law of Nature- The jurists who adhere to this theory, are
of the view that International Law is a part of the Law of nature. In their
view, States follow international law, because it is a part of the Law of
nature. In order to understand this theory, it is necessary to understand the
meaning of ‘Law of nature’. In the beginning, Law of Nature was
connected with religion. It was regarded as the divine law. The jurists of
16th and 17th centuries secularised the concept of Law of Nature. He
expounded the secularised concept of the Law of Nature. According
to him, natural law was ‘the dictate of right reason’. His followers
applied the law of nature as an ideal which was founded on the
nature of man as a reasonable being. International law was
considered binding because it was in fact, natural law applied in
special circumstances. Vattel, a famous jurist of 18th century also
expressed the view that natural law was the basis of international law.
(2) Positivism:
Positivism is based on law positivisum i.e. law which is in fact as
contrasted with law which ought to be. According to the positivists, law
enacted appropriate legislative authority is binding. The positivists base
their views on the actual practice of the States. In their view, treaties
and customs are the main sources of International law.
 In the view of the positivists, in the ultimate analysis, will of the
States is the main source of International Law.

Sanctions of International Law3

In the view of Kelsen, the distinguishing feature of law is that it is a ‘coercive

order’; the rules of law be connected with a sanction. From the viewpoint even
of the legal system, force must be either a sanction or delinquency. In the
international field, sanctions exist in the form of war and reprisal. The
difference between the municipal law of States and international law would
consist in the degree of centralisation as regards the use of force; within the
3
S.K.KAPOOR, INTERNATIONAL LAW AND HUMAN RIGHTS, PAGE NO.48-50
state, force is monopolised by the community, but in the society of State a
legitimate use of force may be made by the subjects of law, the individual
States. As a matter of fact, it would be wrong to say that there are no sanctions
at all behind international law although it is true that as compared to municipal
law the sanctions of international law are far less effective.

Starke has pointed out the following sanctions behind the international
law:
(1) Under chapter VII of the United Nations Charter, if there is threat to the
international peace and security or an aggression has taken place, the Security
Council can take necessary action to maintain or restore international peace and
security. In this way, to some extent, the violation of international law can be
checked and necessary action can be taken for maintenance of peace and
security.

(2) The decision of the International Court of Justice are binding upon the
parties to the dispute. Article 94 of the United Nations also provides that if a
party to the dispute does not follow the decision of the Court, the other party
may approach the Security Council which can take necessary measures to
ensure the implementation of the decision. However, it cannot be admitted that
the UN Charter does not contain any provision to maintain international law
generally.

(3) Under Article 2(4) of the Charter, the members of the UN have undertaken
that they shall respect the territorial integrity and political independence of each
other and shall not use force against each other. There is only one example in
the Charter where members may use force. That is contained under Article 51 of
the Charter which confers on the members the right of individual and collective
self-defence. But even this right can be exercised only when an armed attack
has taken place and is subject to overall supervision and control of the Security
Council.

Thus International Law is not without sanctions although these sanctions are not
generally for the enforcement of international law in general. These sanctions
are to maintain or restore international peace and security which is only a part of
international law.
  Apart from the above sanctions, other factors such as adverse public
opinion, expediency, possibility of imposition of economic sanctions, fear
of suspension or breaking of diplomatic relations, possibility of referring
the matter of dispute to the UN or specialised agencies of the UN., fear or
suspension or expulsion from the Membership of the UN or other
international organisations, fear of punishment of war crimes, fear of
payment of reparation etc. also operate as sanction behind international
law. Indeed the most important of these sanctions is public opinion which
is the ultimate sanction behind international law, and for that matter being
any law.

Subjects of International Law

A subject of international law is considered to be an entity capable of

possessing international rights and duties and endowed with the capacity to take
certain types of action on the international plane. The terms ‘international legal
person’ or ‘legal personality’ are commonly used in referring to such entities.4

Ordinarily international law deals with the rights and duties of the States.
Ordinarily its rules are for States. Generally, it is the States who enter into
treaties with each other and are thus bound by its provisions. This does not
however, mean that other entities or individuals are outside the scope of
international law. International Law applies upon individuals and certain non-
state entities in addition to states.

Various theories regarding subjects of International Law5

Following are the three main theories prevalent in regard to the subjects of
International law:

(1) States alone are subjects of International law

(2) Individuals alone are the subjects of International Law
(3) States are the main subjects of international law, but to a lesser extent
individuals and certain non-state entities have certain rights and duties
under International Law.

4
GURDIP SINGH, INTERNATIONAL LAW, PAGE 91.
5
S,K,Kapoor, International law and human rights, page 119-120.
1. Only states are subjects of International Law: Some jurists are of the
view that International Law regulates the conduct of States and only
States alone are the subjects of international law.
2. Only individuals are the subjects of international law
The chief exponent of this theory is Prof. Kelsen. Kelsen has analysed the
concept of State and expressed the view that it is a technical legal concept
and includes the rules of law applicable on the persons living in a definite
territory. Hence, under International law the duties of the States are
ultimately the duties if the individuals. Truly speaking there is no
difference between international law and State law, In his view, both laws
apply on the individuals and they are for the individuals.
3. States, individual and certain non-state Entities are subjects:-
This view undoubtedly appears to be far better than the first two views.
(i) In the present time, several treaties have conferred upon
individuals certain rights and duties. International Covenants on
Human rights and 1965 Convention on the Settlement of
Investment disputes between States and Nationals of other States
deserves a special mention in this connection.

With best regards

Dr. Stanzin Chostak, New Delhi, Dated: 24/04/2020

Please note that the texts are typed from original prescribed
books except those which are cited otherwise. This is not a copy
and paste work. Happy reading!

TOPIC NO.2: SOURCES OF INTERNATIONAL LAW

Formal and Material Sources
The term source refers to methods or procedure by which
international law is created. A distinction is made between the formal
sources and material sources of law. The distinction between “formal”
and “material” sources to which Schwarzenberger refers was
explained by Salmond in the following terms:1
“ A formal source is that from which a rule of law derives its force
and validity…The material sources, on the other hand, are those from
which is derived the matter, not the validity of the law. The material
source supplies the substance of the rule to which the formal source
gives the force and nature of law.”
For example, a rule will be legally binding if it meets the
requirements of a custom, which is a formal source of international
law, and its substance will be indicated by state practice, which is the
material source of custom. The term evidence is then used in the sense
that diplomatic correspondence, for example, is evidence of state
practice.
Article 38 (1) of the Statute of the International Court of Justice is
widely recognised as the most authoritative and complete statement as
to the sources of international law. It provides that :2
“ the court whose function is to decide in accordance with
international law such dispute as are submitted to it, shall apply:

1
David Harris and Sandesh Sivakumaran, Cases and materials on international law, page.16.
2
Malcolm N Shaw, International Law, page 52.
(a) international conventions, whether general or particular,
establishing rules expressly recognised by the contesting states;
(b) international custom, as evidence of a general practice accepted as
law:
(c) the general principles of law recognised by civilised nations;
(d) subject to the provision of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of the rules of
law.”
(a) International Conventions
In the modern period, international treaties are the most important
source of international law. This is because the reason, inter alia that
states have found in this source a deliberate method by which to
create binding international law. The term Conventions is used in a
general and inclusive sense. It would seem to apply to any treaty,
convention, protocol or agreement, regardless of its title or form.

 A convention may be general, either because of the number of

parties to it, or because of the character of its contents; it may be
particular because of the limited number of parties to it, or
because of the limited character of its subject-matter. Whenever,
an international tribunal decides an international dispute then its
first endeavour is to find out whether there is an international
treaty on the point. In case there is an international treaty, the
decision of the court is based upon the provisions of that treaty.
 International treaties may be of the two types:
 (A) Law making treaties and Treaty Contracts:
 Law making treaties may again be divided into following two
types:-
 (a)Treaties enunciating rules of universal international law-
United Nations Charter is the best example of such type of
treaty.
(b) International treaties which lay down general principles-
These treaties are entered into by a large number of countries.
1958 Geneva Conventions on the law of the Sea and Vienna
Convention on the law of the treaties, 1969 are good
examples of such types of treaties.
(B) Treaty Contracts- As compared to law-making treaties,
treaty contracts are entered into by two or more States.
2. INTERNATIONAL CUSTOM:
International custom have been regarded as one of the prominent
sources of international law for a long time. It is the “oldest and the
original source’ of international as well as law in general. Customary
rules of international law are the rules which have been developed in a
long process of historical development.
Article 38(b) of the Statute of the International Court of Justice
recognises ‘ International Custom, as evidence of general practice
accepted as law’ as one of the sources of international law. In order to
understand the meaning of ‘custom’, it is necessary to know the
meaning of the word ‘usage’. The words ‘custom’ and ‘usage’ are
often used as synonymous. In fact, there is difference between the
usage and custom, and they are not synonymous. Usage is in fact the
early stage of custom. By usage we mean those habits which are often
repeated by the States. As pointed out by Starke, where a custom
begins, usage ends. Usage is an international habit which has yet not
received the force of law.
In the words of Starke, “Usage represents the twilight stage of
custom, custom begins where usage ends.”
  When a usage is combined with opinio juris sine necessitates, a
rule of customary law exists, and it is probably justifiable to say
that a usage reflects a customary rule if it is connected with a
practically universal opinion juris.3
 What is opinio juris?
 Opinio juris is a shortened form of the Latin
phrase opinio juris sive necessitatis, which means "an opinion of
law or necessity.
 In customary international law, opinio juris is the second
element necessary to establish a legally binding custom. Opinio
juris denotes a subjective obligation, a sense on behalf of a state
that it is bound to the law in question. The International Court of
Justice reflects this standard in ICJ Statute, Article 38(1) (b) by
reflecting that the custom to be applied must be "accepted as
law".4
 As pointed out by the ICJ in North Sea Continental Shelf cases
(ICJ Repo.1969), for a state practice to constitute opinio juris
not only must the acts concerned amount to a settled practice,
but they must also be such, or be carried in such a way, as to be
the evidence of a belief that this practice is rendered obligatory
by the existence of a rule of law requiring it.”
 Generation by treaty of customary rules of international
law- A provision of a treaty may also generate a rule of
customary International law. In North Sea Continental Shelf
case, the ICJ observed that provisions in treaties can generate
customary law and may be, in the words of the Court; of a
“norm creating character”

Opinio juris : Once one has established the existence of a specified

usage, it becomes necessary to consider how the state view its own

3
S.K.Kapoor, International law and human rights, page 65.
4
Available at https://www.law.cornell.edu/wex/opinio_juris_(international_law), last visited on 1St May 2020.
behaviour. Is it to be regarded as a moral or political or legal act or
statement? The opinio juris, or belief that a state activity is legally
obligatory, is the factor which turns the usage into a custom and
renders it part of the rules of international law. To put it slightly
differently, states will behave in a certain way because they are
convinced it is binding upon them to do so.5
Case Law: Lotus case (France v Turkey) PCIJ (1927)
The Permanent Court of International Justice expressed this point of
view when it dealt with the Lotus case. The issue at hand concerned a
collision on the high seas (where international law applies) between
the Lotus , a French ship, and the Boz-Kourt, a Turkish ship. Several
people aboard the latter ship were drowned and Turkey alleged
negligence by the French officer of the watch. When the Lotus
reached Istanbul , the French officer was arrested on a charge of
manslaughter and the case turned on whether Turkey had jurisdiction
to try him. Among the various arguments adduced, the French
maintained that there existed a rule of customary law to the effect that
the flag state of the accused (France) had exclusive jurisdiction in
such cases and that accordingly the national state of the victim
(Turkey) was barred from trying him. To justify this France, referred
to the absence of previous criminal prosecutions by such states in
similar situations and from this deduced tacit consent in the practice
which therefore became a legal custom.6
The Court rejected this and declared that even if such a practice of
abstention from instituting criminal proceedings could be proved in
fact, it would not amount to a custom. It held that ‘only if such
abstention were based on their (the states) being conscious of a duty
to abstain would it be possible to speak of an international custom.
Thus the essential ingredient of obligation was lacking and the
practice remained a practice, nothing more.
5
Malcolm N Shaw, International law, page 62.
6
Malcolm shaw ,page 63.
 Case Law:
Right of passage over Indian territory case (Portugal v India)
In this case the International Court of Justice pointed out that when in
regard to any matter or practice, two States follow it repeatedly for a
long time, it becomes a binding customary rule.7
3. General Principles of Law recognised by civilised states
Para(1) (C) of Article 38 of the Statute of International Court of
Justice lists General Principles of Law Recognised by Civilised States
as the third source of International law.

 By general principles of law recognised by civilised States we

mean those principles which have been recognised by almost all
the States.
 By general principles of law we mean ‘those rules or standards
which we find repeated in much the same form in the developed
systems of law, either because they have a common origin, as in
Roman law, or because they express a necessary response to
certain basic needs of human association. Examples are: the rule
of pacta sunt servanda,(agreements must be kept); that contracts
must be kept; the principle that reparation must be made for
damage causes by fault; the right of self defence for the
individual against attack on his person or family and the
community against clear and present danger; and the principle
that no man may be a judge in his own cause, and that he who
has to judge must hear both the sides.”
 Res judicata, estoppel, etc are examples of the general principles
of law recognised by civilised states. These principles are such
as have received recognition by almost all the States. They have
7
S.K.Kapoor , Page 70.
 therefore, been included as the general principles of
international law. General principles of law recognised by
civilised states include procedural as well as substantive
principles provided that they have received general recognition
of civilised States.
 Following are some of the important cases relating to the
general principles of law recognised by civilised states:-
(a)R.v.Keyn.-In this case the Court ruled that international law
is based on justice, equality and conscience which has been
accepted by long practice of States.
(b) United States v. Schooner.- In this case Justice Storey of
United States of America ruled that International law should
be based on the general principles of law recognised by
civilised States. He was giving decision relating to abolition
of system of slavery.
(c)In the case of diversion of water from Muese.-The
Permanent Court of International Justice applied the
principles of res judiciata and also held that one who violates
a rule is liable to make reparation.
(d) Chorzow Factory (Indemnity) Case.- In this case, the
Permanent Court of International Justice applied the
principles of res judicata and also held that one who violates
a rule is liable to make reparation.
(e)Mavrommatis Palestine Concessions Case. In this case the
court applied the general principle of subrogation.
(f) Case concerning the temple of Preah Vihear.- In this case,
the ICJ recognised and applied the principle of estoppel.
(g) Barcelona Traction case, preliminary Obligation.-In this
case International Court of Justice applied the principle of
estoppel.
 1

Pleas note : The notes are typed from original prescribed books of
S.K.Kapoor and Gurdip Singh. This is not a copy and paste work. Happy
reading!

TOPIC 3: Relationship between International Law and Municipal Law

Certain theories have been propounded to explain the relationship between

International Law and Municipal Law. Following are some of the prominent
theories in this connection: (1) Monism; (2) Dualism; (3) Specific adoption
theory; (4) Transformation theory; and (5) Delegation theory. These theories
have been put forward to explain the relationship between International Law
and State Law. Of all these theories the most popular are ‘Monism’ and
‘Dualism’ and they are diametrically opposed to each other.

Main theories:-

(1) Monism.- The exponents of this theory emphasise the scientific

analysis of the internal structure of the law. According to them law is
a unified branch of knowledge, no matter whether it applies to persons
or other entities. “According to monist belief, international obligation
and municipal rules are facets of same phenomenon, the two deriving
ultimately from one basic norm and belonging to the unitary order
comprised by the conception of law.” “ In their (i.e.monists) view the
science of law is a unified field of knowledge, and the decisive point
is, therefore whether or not international law is true law. Once it is
accepted as hypothesis that international law is a system of rules of
truly legal character, it is impossible, according to Kelsen (1881-1973)
and other monistic writers to deny that the two systems constitute part
of that unity corresponding to unity of legal science. Thus any
construction other than monism, and in particular dualism, is bound to
amount to a denial of the true legal character of international law. It
has already been pointed out that international law is a law in the true
sense of the term and keeping this view in mind, monism seems to be
reasonable and correct theory. Wright, Kelsen and Duguit, etc. are
some of the prominent exponents of monism.
 2

 According to the exponents of Monism International Law and

Municipal Law are intimately connected with each other.
International Law and Municipal Law are the two branches of
unified knowledge of law which are applicable to human
community in some or the other way. In view of the monistic
writers, in the ultimate analysis of the law we find that man is at
the root of all laws. All laws are made for men and men only in
the ultimate analysis.

Criticism-Monism is a very sound theory. It is very difficult to disprove the

view of Kelsen that man lies at the root of all laws. But in actual practice states
do not follow this theory. They contend that Municipal Law and International
Law are two separate systems of law. Further, each state is sovereign and as
such is not bound by international law. States follow international law simply
because they give their consent to be bound and on account of other reasons.

(2) Dualism- In the view of the dualistic writers, international law and State
law are two separate laws. “ The Monist view of law is part of philosophy
according to which totality is a single structure. But within the framework
of the unitary universe is diversity of phenomenon….Differences are
significant and the dualist considers that Municipal Law differs markedly
from international precepts.” Monism remained in vogue for a long time.
Monism exercise a great influence upon international law, because it had
close association with natural law. In the 19th century however, the
existence of State-will and complete sovereignty of the State were
emphasised. The conception of State will was taken from Hegel, a
German scholar and was further developed. Dualism is based on the
complete sovereignty of states. The chief exponents of this theory are
Triepel and Anzilloti. Triepel has pointed out the following differences
between International Law and State Law.
(a) Regarding subject;- Individual is the subject of State law, whereas State
is the subject of International law.
(b)Regarding origin: Origin of State law is the will of the State whereas
origin of the international law is the common will of the States.

Criticism- It is not correct to contend that international law is binding only

on states, In the modern period, International law is applicable on states,
 3

individuals and certain other non state entities. Besides this, the conception
of State-will as the source of State law is incorrect. In fact state will is
nothing but the will of the people who compose it. Similarly, it is not correct
to say that the origin or source of international law is common will of the
States. There are certain fundamental principles of international law which
are binding upon the State, even against their will. “ Furthermore, it may be
objected to Triepel’s theory that it does not explain the existence of a general
international law. Even international customary law becomes particular law
for Triepel, its rules apply only to the State which by conclusive acts have
declared adherence to the ‘tacit’ agreements upon which they rest-a view
that is at variance with reality.”

 Anzilloti has tried to explain the difference between

international law and State law in a different way. According to
him there is a fundamental difference between the fundamental
principles of international law and State law. The fundamental
principle of State law is that laws enacted by appropriate
legislative authorities are to be obeyed. The fundamental
principle of international law is pacta sunt servanda , namely
agreement between States are to be respected. On this basis
Anzilloti contends that the legal systems of international law
and States law are different. It cannot be denied that pacta sunt
servanda is an important fundamental principle of international
law. But to assert that it is the only basis of international law
seems to be far from truth. In fact, it is an important illustration
of all the fundamental principles of international law. It fails to
explain the binding force of customary rules of International
Law in regard to which the States have not given their consent.

STATE PRACTICES REGARDING THE RELATIONSHIP BETWEEN

INTERNATIONAL LAW AND STATE LAW
(1) British practice-For the application of international law in Britian,
distinction is maintained in regard to the customary rules of international
law and the rules laid down by treaties. It will therefore be desirable to
discuss them separately.
(A) British practice in regard to customary rules of international law-In
Britian, customary rules of international law are treated as a part of
British laws. British courts treat customary rules of international law as a
 4

part of their own law subject however to the following conditions. (a)
Rules of international law should not be inconsistent with the British
statutes; and (b) if the highest court once determines the scope of a
customary rule of international law, then all the court in Britian are
bound by it.

Influence of the above practice-Following is the influence of the British

practice in regard to the customary rules of international law:-
(a) Rules of Construction- The British Courts interpret the Parliamentary
Statutes in such a way that they should not go against international law.
In this connection the presumption is that Parliament never intends to
violate international law. This rule is applicable only when the provisions
of the Statutes are ambiguous. In case the provisions of the Statutes are
clear and unambiguous, they prevail over the rules of international law.
(b) Rules of evidence- In Britian, the rules of international law need not be
proved through evidence.

Following are the exceptions of the British practice in regard to customary rules
of international law:

(i) Acts of State do not come within the purview of the British Courts,
irrespective of the violation of international law.
(ii) Prerogative powers of Crown- In some matters the British Courts are
bound to obey the prerogative powers of Crown. For example, if the
Crown grants recognition to any state, the British courts are bound to
accept it. They cannot question the matters coming within prerogative
powers of the Crown.
(iii) British Practice as to Treaties- In Britian the practice regarding the
rule laid down by treaties is different from the practice in regard to the
customary rule of international law. In regard to treaties, the British
practice is based on the constitutional principle governing the
relationship between Executive or crown and Parliament. In regard to
treaties, the matters, relating to negotiations, signatures, etc. are within
the prerogative powers of the Crown. In Britian it is necessary that
some type of treaties should receive the consent of Parliament. Either
the Parliament accords its consent or adopts it in State law through the
help of statute.
 5

American practice regarding rules laid down by Treaties- American

practice regarding rules laid down by treaties is different from British
practice. In case of international treaties, the American practice is not based
on the constitutional rules governing the relationship of the executive and
Congress. In America, everything depends on the provisions of the
constitution. Article VI of the American Constitution provides that the
constitution of the United States, all laws made in pursuance thereof and the
international treaties entered into under the authority of the United States
shall be the supreme law of the land. Thus international treaties have been
placed in the same category as State law in America. It may, however be
noted that in America the practice is that if there is a conflict between
American Constitution and an International Treaty, the former (i.e. the
Constitution )will prevail.

Indian Practice: Before the adoption of the Constitution of Indian

Constitution the Indian practice in respect of relation of international law to
internal law was similar to the British practice. After the adoption of the
Constitution of India everything depended upon the provisions of the
Constitution. In order to know the position of international Law in the post
constitution period, it is necessary to examine the relevant provisions of the
Constitution of India. The most relevant provision is contained in Article 51
which runs as follows:

“ The State shall endeavour to-(a) promote international peace and security;
(b) maintain just and honourable relations between nations; (c) foster respect
for international law and treaty obligations in the dealings of organised
peoples with one another; (d) encourage settlement of international disputes
by arbitration.

For the purposes of the present discussion, the most important provision is
contained in Article 51 (c) noted above. It is however, significant to note that
this Article specifically mentions “ International law” and treaty
obligations.” It seems somewhat paradoxical that separate mention should be
made of ‘treaty obligations’ as they undoubtedly constitute integral part of
International Law. No explanation is to be found in the constituent assembly
debates either as to the intent of Article 51 or the meaning and scope of the
term ‘international law’ and treaty obligations. Prof.C.H.Alexandrowicz says
that the expression “ international law” in this paragraph connotes customary
international law and that ‘treaty obligations’ stand for treaties. This
 6

interpretation would seem to be the most logical in the context of the article
as well as the attitude of the Indian courts to questions of International law.

 Article 253: Reference may also be made here to Article 253 of

the Constitution which provides: ‘Notwithstanding in the
foregoing provisions of this chapter i.e. Chapter XI of Part XI,
Parliament has power to make any law for whole or any part of
the territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision
made at an international conference, association or other body.”

CASE LAWS:

1. Gramophone Company of India Ltd. v. Birendera Bahadur Pandey,

Chinnapa Reddy. J.of the Supreme court observed that if in respect of any
principle of international law the Parliament says ‘no’, the national court
cannot say ‘yes’. National court shall approve international law only
when it does not conflict with national law. In case however the conflict
is inevitable the national law shall prevail.
2. Present legal position: But the position will be different when there is
no conflict between International Conventions and the domestic law. As
pointed out by the supreme court in Vishaka v State of Rajasthan, in
the absence of domestic law occupying the field to formulate effective
measures to check the evil of sexual harassment of working women at all
workplaces, the contents of International Conventions and norms are
significant for the purpose of interpretation of the guarantee of gender
equality and right to work with human dignity in Articles 14, 15, 19(1)
(g) and 21 of the Constitution and the safeguards of sexual harassment
implicit therein. Any International Convention not inconsistent with the
fundamental rights and in harmony with its spirit must be read into these
provisions to enlarge meaning and content thereof, to promote the object
of constitutional guarantee. This is implicit from Article 51(c) and the
enabling power of Parliament to enact laws for implementing
International Conventions and norms by virtue of Article 253 read with
Entry 14 of the Union list in the Seventh Schedule of the Constitution.
3. In Vellore Citizens Welfare Forum v. Union of India, the Supreme
Court held that precautionary principle and polluter pays principle
acquired the character of international custom and accordingly , constitute
part of law of the land in India as there is no conflict between these
 7

principles and law of the land in India. Thus the Supreme Court treats
international custom as part of Indian law in case there is no conflict
between international custom and Indian law.
4. In Jolly George Varghese v. Bank of Cochin, the main issue before the
Supreme Court was whether judgment debtor could be arrested and
detained in civil prison in execution of money decree. For the purpose,
Supreme Court had to interpret Section 51 CPC relating to the powers of
the courts to enforce the execution of decrees. Krishna Iyer J who
delivered the judgment, referred to Article II of the International
Covenant on Civil and Political Rights. The Article reads, “no one shall
be imprisoned merely on the ground of inability to fulfil a contractual
obligation”.
While interpreting Section 51 CPC, Krishan Iyer J invoked Article II of
the International Covenant on Civil and Political Rights. It was held that
civil imprisonment of and honest and bonafide judgment debtor in
execution of money decree is violative of Article II of the ICCPR and
Article 21 of the Constitution.

Thanks. Stay safe and Study well. Best regards Stanzin Chostak . Dated,
15th May, 2020, New Delhi.
TOPIC 4: STATE RESPONSIBILITY: SUMMARY OF THE WHOLE
TOPIC

STATE RESPONSIBILITY1

 Since formerly, States alone were recognised as subjects of international

law, the general topic of international responsibility for wrong used to be
discussed under the heading “State Responsibility”. Though international
responsibility now also involves consideration of position of international
organisations and individuals, for the sake of convenience, the topic of
international responsibility is still studied under the heading “State
responsibility”.
 Often it is said that the sovereign has no obligation under law. This
statement is true only in respect of the subjects of the sovereign because a
state may change its law at its will and may thus bring about changes in
its obligations. The position is however different in respect of the
obligations towards other nations. In that respect, obligations of the State
are that of an international person. A state has a certain obligations under
International Law. The State responsibility concerning international
duties is, therefore, a legal responsibility, for a state cannot abolish or
create international law in the same way that it can abolish or create
municipal law.
 Thus the rules of international law as to State responsibility concern the
circumstances in which and the principles whereby the injured State
becomes entitled to redress for the damage suffered.
 In the Chorzow factory case (indemnity) case, Germany v Poland, the
PCIJ said, “ it is a principle of international law, and even a general
conception of law that any breach of an engagement involves an
obligation to make reparation”.

STATE REPONSIBILITY2:

MEANING

State responsibility is a fundamental principle of international law, arising out

of the nature of the international legal system and the doctrines of state

1
S.k.kapoor, International law and human rights.
2
Malcolm Shaw,International law, page 589.
sovereignty and equality of states. It provides that whenever one state commits
an internationally unlawful act against another state, international responsibility
is established between the two. A breach of international obligation gives rise to
a requirement of reparation.

THE NATURE OF STATE RESPONSIBILITY

The essential characteristics of responsibility hinge upon certain basic factors:

(1) First, the existence of an international legal obligation in force as between

two particular states;
(2) Secondly, that there has occurred an act or omission which violates that
obligation and which is imputable to the state responsible; and finally,
that loss or damage has resulted from the unlawful act or omission.

Article 1 of the International Law Commission’s Articles on State

Responsibility reiterates the general rule, widely supported by practice, that
every internationally wrongful act of a state entails responsibility. Article 2
provides that there is an internationally wrongful act of a state when conduct
consisting of an action or omission is attributable to the state under
international law and constitutes a breach of an international obligation of
the state.

STATE RESPONSBILITIES IN DIFFERENT FIELDS 3

International delinquency: An international delinquency is any injury to

another state committed by the Head of a Government of a state in
violation of an international legal duty. Equivalent to act of the Head and
Government are acts of officials or other individuals commanded or
authorised by the Head of Government.

 International delinquencies is a term applying both to wrongs

consisting of breaches of treaties and to wrongs independent of
treaty may be committed in regard to different objects.
(3) State responsibility for injury to aliens-Under International Law it is
generally agreed that aliens living in a state should also be conferred upon
the same rights which are given to the citizens. It is the responsibility of

3
S.K.KAPOOR, P.132.
 the State to protect the rights of the aliens in the same way as they protect
the rights of the citizens.
(4) State responsibility for breach of treaty: In chorzow factory indemnity
case, the PCIJ held: It is a principle of international law that the
reparation of wrong may consist in an indemnity corresponding to the
damage which the national of the injured state have suffered as a result of
of the act which is contrary to international law.
(5) State responsibility for Environment: Transboundary pollution

CONSTITUENT ELEMENTS OF INTERNATIONAL

RESPONSIBILITY4

1. Damage Theory: A certain conduct is forbidden because it is likely to

cause damage to other subjects; however, state A only becomes
responsible towards state B if as a result of forbidden acts of State A,
state B suffers damage. Thus the failure to fulfil an international
obligation is a necessary, but not a sufficient element in the case of
international delicts.
 Inorder to create the automatic link of responsibility between the
acting and the claiming state, the fulfilment of an additional
condition namely, damage suffered by the claiming state is
required.
2. Fault Theory5: There are contending theories as to whether
responsibility of the state for unlawful acts or omissions is strict or
whether it is necessary to show some fault or intention on the part of the
officials concerned. The principle of Objective responsibility ( the so
called risk theory) maintains that the liability of the state is strict. Once an
unlawful act has taken place, which has caused injury and which has been
committed by the agent of the state, that state will be responsible in
international law to the state suffering the damage irrespective of good or
bad faith.

 To be contrasted with this approach is the subjective responsibility

concept (the fault theory) which emphasises that an element of
intentional ( dolus) or negligent(culpa) conduct on the part of the

4
Gurdip singh, p.137.
5
Maclom Shaw, International law p.593.
 person concerned is necessary before his state can be rendered
liable for any injury caused.

2.1. Fault theory further explained6: One view is that a State is not
responsible to another state for unlawful acts committed by its agents
unless such acts are committed wilfully and maliciously or with
culpable negligence. This view holds that the presence of malice or
culpable negligence is a condition precedent.

 The above view is, however, not correct. It introduces subjectivity

in the field of State Responsibility. What is relevant for the
existence of State responsibility is the objective conduct of the
State and not the psychological attitude of the individuals acting as
organs of state.

 A state is liable for the errors of judgment of its agents, even if they
made such error in good faith and without motivation by any
element of malice or culpable negligence.

In the Corfu Channel Case, (Great Britian v Albania) The ICJ determined the
international responsibility of Albania without resorting to the concept of fault,
which was invoked instead by the dissenting judges in their individual opinions.
The court reached its conclusion by holding that there had been a violation of a
pre-existing obligation: A state which knows or should know that a minefield
has been laid in its territorial waters is obliged to notify other states of its
existence.

 It did not reach that conclusion by an enquiry into the mental state of any
individual organ or agent of the Albanian Government.

 Undoubtedly in general, rules of international law do not contain “a

general floating requirement of malice or culpable negligence as a
condition of responsibility”. Particularly in cases involving nuclear
activities, there has to be some form of strict or absolute liability.

3. ABSOLUTE LIABILITY AND RISK THEORY:

6
Gurdip Singh, p.138
 The theory of “absolute liability” or “risk” establishes the liability of
States arising out of the performance of certain activities which are lawful
but create serious risks, such as nuclear activities. However, the principle
of risk is applied, not as a general principle of responsibility, but in
circumstances and conditions which are clearly defined in international
conventions.

THE ACT OF STATE: Rules of Attribution7

The term “attribution” means imputation. For example, if an agency of

State A has caused injury to a citizen of State B in breach of international
law, State A will be responsible to state B for the injury done. The
wrongful Act of the organ or official of a state is imputed to the State.

 Imposing upon state absolute liability wherever an official is

involved encourages that state to exercise greater control over its
various departments and representatives. It also stimulates moves
towards complying with objectives standards of conduct in
international relations.8

LaGrand Case (Germany v. United States)

Held. A state that breaches its obligations to another under the Vienna
Convention on Consular Relations by failing to inform an arrested alien of the
right to consular notification and to provide judicial review of the alien’s
conviction and sentence also violate individual rights held by the alien under
international law. The meaning adduced to the phrase “authorities shall inform
the person concerned without delay of his rights under this subparagraph” of
Article 36 suggests that the rights to be informed of their rights under the
Convention is an individual right of every national of a state that is party to the
Convention.

CASE LAWS IN THE TOPIC DISCUSSED

1. CORFU CHANNEL CASE:

8
Malcolm Shaw,p.549.
The facts of the Corfu Channel case (1949) are as follows9:

North Corfu Channel is between Albania and Greece. A part of it is within the
maritime belt of Albania. Before May 1946, the British ships had removed the
mines from the channel and had ensured that it was safe for the passage of the
ships. That very month some British Ships were fired at from the territory of
Albania resulting in damage to the ships. In addition to this, after sometime the
British ships suffered loss and damage due to mines which were laid in the
territorial waters of Albania. This also resulted in the loss of life of some
persons. Consequently the British ships removed mines and explosives
substance from the said portion without seeking permission of the Albanian
Government in this connection. Albania protested against this and contended
that it was a clear violation of Albania’s sovereignty.

 Albania and Britian referred the following two questions for

adjudication before the ICJ:

(1) Was Albania liable under International Law for explosions in its
maritime belt and if the answer is yes whether, Albania is liable
to pay damage for the same?

(2) Whether Britian violated Sovereignty of Albania by removing

explosive substance,mines etc., from the territorial waters of
Albania?

The ICJ answered the first question in favour of Britian. The court answered the
second question infavour of Albania.

In the Corfu Channel case, the International Court appeared to lean towards the
fault theory by saying that Albania is responsible for the explosions that
occurred and observed: “ These grave omissions involve the international
responsibility of Albania…..and there is a duty upon Albania to pay
compensation to the United Kingdom.”

2. CASE CONCERNING UNITED STATES DIPLOMATIC AND

CONSULAR STAFF IN TEHRAN ( USA V IRAN) ICJ REP.198010

9
S,K.KAPOOR,PAGE 188.
10
KAPOOR page 140.
This case involved the acts of rioters and other militants who attached and
occupied U.S. diplomatic and consular premises in Iran. The rioters and
militants also seized the occupants and held them as hostages. Since the rioters
and militants were persons without official status in the initial stages their acts
could not be imputed to the state, the ICJ held Iran not responsible for the
initial stages of their acts. But subsequently the situation changed when the
militants became agents of the State and hence Iran was held responsible for
their acts. The World court also held Iran responsible for breach of its
international responsibility to take steps to protect American diplomatic
premises and restore status quo.

3.NICARAGUA CASE: NICARAGUA V USA, ICJ REPORT 1986:11

FACTS: It was claimed by Nicaragua that US has been engaging itself, since
March 1981, in the use of force against Nicaragua through the instrumentality
of a mercenary army recruited, paid, equipped, supplied, trained and directed by
the US. As a result, Nicaragua suffered grievous consequences consisting of
huge loss of life and damage to property.

 Nicaragua argues that the US has violated and is violating its

express charter and treaty obligations by recruiting , training,
arming, equipping, financing, supplying and otherwise encouraging
, supporting, aiding and directing military and paramilitary actions
in and against Nicaragua.

 It further requested the court to direct US to cease and desist from

such use of force immediately and declare that US has an
obligation to pay Nicaragua reparations for damages to person,
property and Nicaraguan economy caused by the foregoing
violations of international law in a sum to be determined by the
Court.

 The ICJ Passed judgment on merits holding US liable for acting in

breach of its obligation under customary international law by
training, arming, equipping, financing and supplying the contra
forces or otherwise encouraging , supporting and aiding military
and paramilitary activities in and against Nicaragua.

11
Gurdip singh.page 146.
  The court called upon US to immediately cease and refrain from
such activities and make reparation to Nicaragua for all injury
caused to Nicaragua.

FORMS OF REPARATION FOR THE BREACH OF AN

INTERNATIONAL OBLIGATION:12

A state discharges the responsibility incumbent upon it for breach of an

international obligation by making reparation for the injuries caused.

Arechaga points out that the forms of reparation may consist in restitution,
indemnity and satisfaction

1.Restitution: Restitution in kind is designed to re-establish the situation

which would have existed if the wrongful act or omission had not taken
place, by performance of the obligation which the state failed to discharge:
revocation of the unlawful act, return of a property wrongfully removed or
abstention from further wrongfully removed or abstention from further
wrongful conduct.

 The PCIJ held that restitution is the normal form of reparation and
indemnity could only take its place if restitution in kind is not
possible.

2.Indemnity: This is the most usual form of reparation since money is the
common measure of valuable things. Since monetary compensation must, as far
as possible, wipe out all the consequences of the illegal act and correspond to
the value which a restitution in kind would bear, loss of profits are included and
the value of a confiscated property must be determined at the time of payment
and not at that of confiscation.

3.Satisfaction: This third form of reparation is appropriate for non material

damage, or moral injury to the dignity or personality of the state.
12
Same as above IBID
  The Illustration of satisfaction are: presentation of official regrets and
apologies, the punishment of the guilty officials and particularly the
formal acknowledgement or judicial declaration of the unlawful
character of the act.

4.Guarantee against repetition: Article 30 of the Draft code of ILC on

Responsibility of States for Internationally Wrongful Acts, 2001 imposes an
obligation on responsible state to cease the wrongful act and give guarantee of
non repetition.

5. Rule of exhaustion of local remedies

The rule of exhaustion of local remedies is well established in international law.

It was evolved in context of State responsibility for injuries to aliens in the
second half of the 19th century. The rule has its root in the general proposition
that an alien entering a country submits himself voluntarily to the legal regime
prevailing in that state.

 The principle of exhaustion of local remedies is a creative process

involving the marriage of its two components- the provision of legal
facilities by receiving state and the activity of the claimant in using
them.

Note : These notes are typed from original source(BOOKS as prescribed)

Dr.Stanzin Chostak, New Delhi, Dated: 1st April 2020.

Best wishes and Stay safe!

SUMMARY OF TOPIC 5: LAW OF THE SEA

The law of the sea1

The seas have historically performed two important functions: first, as a

medium of communication; and secondly, as a vast reservoir of resources, both
living and non-living. Both of these functions have stimulated the development
of legal rules. The fundamental principle of governing the law of the sea is that :
“the land dominates the sea” and so that land territorial situation constitutes the
starting point for the determination of the maritime rights of a coastal state.

The seas were at one time thought capable of subjection to national

sovereignties. The Portuguese in particular in the seventeenth century
proclaimed huge tracts of the high seas as part of their territorial domain, but
these claims stimulated a response by Grotius who elaborated the doctrine of
open seas, whereby the oceans as res communis (a thing of the entire
community) international law were to be accessible to all nations but incapable
of appropriation. This view prevailed, partly because it accorded with the
interests of the North European States, which demanded freedom of the seas for
the purposes of exploration and expanding commercial intercourse with the
East.
1
Malcolm N Shaw ,International Law, page 410.
DEFINITION OF SOME IMPORTANT TERMS IN THE LAW OF THE
SEA TOPIC

Internal Waters
Internal waters are all the waters that fall landward of the baseline, such as
lakes, rivers, and tidewaters. States have the same sovereign jurisdiction over
internal waters as they do over other territory. There is no right of innocent
passage through internal waters.2

Territorial Sea3
 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.
 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
2
Available on https://sites.tufts.edu/lawofthesea/chapter-two/, last visited on 3rd April, 2020.
3
Ibid, same as above
 transit passage through international straits. This is the primary
distinction between internal waters and territorial seas.
 There is no right of innocent passage for aircraft flying through the
airspace above the coastal state’s territorial sea.

CASE LAW ON TERRITORIAL SEA: ANGLO-NORWEGIAN

FISHERIES CASE, ICJ REPO.1951.
Case Law on Territorial Sea: Anglo-Norwegian Fisheries case, ICJ
Repo.1951. (U.K. V NORWAY)

• Issue was the straight baselines used by Norway along its deeply indented
coast
• ICJ upheld legality of Norway’s baselines
• Much of language from the case was codified in the Article 4 of the 1958
Convention on the Territorial Sea and Contiguous Zone
• Almost the same language is in Article 7 of UNCLOS on straight baselines.

 In this case the court held,” A Norwegian decree of 1935 delimiting an

exclusive Norwegian fishing zone by reference to a straight base line
drawn through 48 selected points on the main line or island or rock at a
considerable distance from the coast, from which base line of the breadth
of the territorial sea was to be measured was not contrary to international
law. Thus the court clarified the law relating to the determination of
fisheries zone by the states. In this case the court also made it clear that is
 is not bound by the past decisions and precedents and is free to make the
progressive development of the international law.4

Contiguous Zone5
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)6

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 of UNCLOS 1982, also allows States to establish and use
artificial islands, installations and structures, conduct marine scientific research,
4
S,K,KAPOOR PAGE 593.
5
Ibid
6
Ibid
and protect and preserve the marine environment through Marine Protected
Areas.5

Continental Shelf7
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 UNCLOS 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.

Case Law on Continental Shelf: North Sea Continental Shelf Cases (1969)

7
Ibid
Germany v Denmark & Netherlands, 1969

 Issues was what principles governed the delimitation of maritime

boundaries
• ICJ held that equidistance-special circumstances rule in 1985 Convention not
binding on Germany because Germany was not party .
• Court emphasized “equitable principles” and natural prolongation of land
territory
• Result was two “camps” and great difficulty reaching agreement on language
in Article 74(1) & 83(1) in UNCLOS
In this case, the court interpreted Article 6 of the Geneva Convention on
Continental Shelf and held that the principle of equidistance was not obligatory
in all cases of delimitation of continental shelf. The court also clarified the
general concept of continental shelf which made a great impact on state practice
and development of International Law in this respect.

2ND CASE LAW: Libya v Tunisia, ICJ Report 1982.

1.Libya v Tunisia Continental Shelf Cases, ICJ Rep.1982
In this case, unlike most previous cases, where any one party to the litigation
argued for equitable principles and the other party for equidistance, in the
present cases, both parties strongly endorsed the use of equitable principles, and
both denied the mandatory applicability of the 1958 Convention’s equidistance
rule. The parties also took the same task in trying to utilise the principle of
natural prolongation and in attempting to list all relevant circumstances.8

High Seas and Deep Ocean Floor

The ocean surface and the water column beyond the EEZ are referred to as the
high seas .Seabed beyond a coastal State’s EEZs and Continental Shelf claims is
known under the UNCLOS as the Area. The UNCLOS states that the Area is
considered “the common heritage of all mankind” and is beyond any national
12

jurisdiction.
States can conduct activities in the Area so long as they are for peaceful
purposes, such as transit, marine science, and undersea exploration.

Some more Important Terms Explained

8
Gurdip Singh, International law, page 354.
Innocent Passage: The doctrine of innocent Passage
The 1958 Convention on the Territorial Waters and Contigous zones made
it clear that the coastal state exercises sovereignty over the territorial
water. But this is subject to certain exceptions. For example, the ships of
other states are entitled to get passage through this part of the sea. In other
words, we may say that although the coastal state exercises sovereignty
over this part of the sea, yet it is the duty of the coastal state to provide
innocent passage to the ships of other states. Moreover, it has also to
provide facilities for laying cables, etc. In short we may say that the coastal
state exercises sovereignty over this part of the area and exercises general
control over this area, but for international transport and communication
some facilities are provided to other states.9
What is the Meaning of Innocent?

 The word “innocent” finds elucidation in Article 19 of the UN

Convention on Law of the Sea which states that passage is innocent so
long as it is not prejudicial to the peace, good order or security of the
coastal state.10
 In corfu Channel Case, the ICJ ruled that during peace time the warships
of the other states may pass through the territorial waters of a state. In this
case the court held that Albania was guilty of causing loss to the British
ships by firing at them or otherwise by laying mines in that part of the sea
and it was, therefore, a clear violation of international law and the court
gave the verdict that Albania should pay appropriate compensation to
Britian for this violation.11
 Thus it is a well recognised principle of customary international law that
foreign merchant vessels have a right of ‘innocent passage’ through the
territorial waters.12

Delimitation of Adjacent and Opposite Maritime boundaries:

2. Republic of Italy v Union of India, 2013,SCC13
9
S.K.Kapoor, International Law and Human Rights, page 260.
10
Gurdip singh, International law page 322.
11
S.K.Kapoor, International Law and Human Rights, page 260.

12
Ibid
13
Gurdip Singh, page 340.
 This case is concerned with the killing of two Indian Fisherman who were
mistook by the Italian submarine as a private vessel. The supreme court
discussed India’s entitlement to claim sovereignty. The court observed:
 “ Undoubtedly, the incident took place within the contiguous zone over
which, bother under the provisions of the Maritime Act, 1976 and
UNCLOS, 1982, India is entitled to exercise rights of sovereignty.
However, as decided by this court in Aban Loyd Chiles Offshore LtD
v.Union of India,2008,….sub section(4) of section 7 only provides for the
Union of India to have sovereign rights limited to exploration,
exploitation, conservation and management of the natural resources, both
living and non-living, as well as for producing energy from tides, winds
and currents, which cannot be equated with rights of sovereignty over the
said areas in the exclusive economic zone.
 The court further observed:
…while India is entitled both under its domestic law and the public
international law to exercise rights of sovereignty upto 24 nautical miles
from the baseline on the basis of which the width of the territorial waters
is measured, it can exercise only sovereign rights within the exclusive
zone for certain purposes. The incident of firing from the Italian vessel on
the Indian shipping vessel having occurred within the contiguous zone,
the Union of India is entitled to prosecute the two Italian marines under
the criminal justice system prevalent in the country. However, the same is
subject to the provisons of Article 100 of the UNCLOS,
1982….’Declaration on Principles of International Law Concerning
Family Relations and Cooperation between states in accordance with
Charter of the United Nations has to be conducted only at the level of the
federal or central government and cannot be the subject matter of a
proceeding initiated by a Provincial/State Government.

Common Heritage of Mankind

 The “common heritage of mankind” (CHM), sometimes also called the

common heritage of humankind or humanity, compared with age-old
concepts such as res nullius and res communis, is of relatively recent
origin. It represents the notion that certain global commons or elements
regarded as beneficial to humanity as a whole should not be unilaterally
exploited by individual states or their nationals, nor by corporations or
other entities, but rather should be exploited under some sort of
 international arrangement or regime for the benefit of mankind as a
whole. 14
 COMMON HERITAGE OF MANKIND: GENERAL ASSEMBLY
RESOLUTION OF 1970
 In 1970, General Assembly Unanimously adopted a resolution
concerning declaration of Principles governing the Sea-bed and Ocean
floor. The assembly, inter alia, declared that the sea bed beyond national
jurisdiction was not subject to national appropriation or sovereignty but
was the common heritage of mankind and must be exploited for the
benefit of mankind as a whole, and taking into particular consideration
the interests and needs of the developing countries.15
RIGHT OF HOT PURSUIT:

 The right of a state to chase and arrest a vessel which has committed an
offense within its waters.16
 International law recognises the right of hot pursuit on the basis that a
coastal state cannot be expected to allow a foreign ship to evade its
jurisdiction by escaping in the high seas. Under customary international
law, pursuit must commence in internal waters or territorial waters of the
pursuing state.17
 Article 23 of the 1958 Geneva convention on the High Seas states that the
hot pursuit can commence in the contiguous zone of the pursuing state in
case of the violation of the rights for the protection of which the zone is
established.
 Article 3 of the UNCLOS also deals with the right to hot pursuit.
Thank you.
Best regards. Stay safe and take care. Dr.Stanzin Chostak, Dated 4 th April
2020.New DELHI

14
Avialiable at https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-
9780199796953-0109.xml last visited 4th april 2020.

15
Gurdip Singh, International law, page 314.
16
Available at http://www.duhaime.org/LegalDictionary/R/RightofHotPursuit.aspx visited on 4th april 2020.
17
Gurdip singh page 399.
TOPIC 6 : STATE JURISDICTION

Introduction:

Jurisdiction concerns the power of the state under International law to regulate
or otherwise impact upon people, property and circumstances and reflects the
basic principles of state sovereignty, equality of states and non-interference in
domestic affairs.1

 Jurisdiction is a central feature of state sovereignty, for it is an exercise of

authority which may alter or create or terminate legal relationships and
obligations. It may be achieved by means of legislative, executive or
judicial action.

As pointed by D.J Harris, “State jurisdiction is the power of a state under

international law to govern persons and property by its municipal law. It
includes both the power to prescribe rules (prescriptive jurisdiction and
the power to enforce them (enforcement jurisdiction).

 In India for instance the Parliament passes binding statutes, the courts
make binding decisions and the administrative machinery of government
has the power and jurisdiction (or legal authority) to enforce the rules of
law.
 It is particularly necessary to distinguish between the capacity to make
law, whether by legislative or executive or judicial action (prescriptive
jurisdiction or the jurisdiction to prescribe) and the capacity to ensure
compliance with such law whether by executive action or through the
courts(enforcement jurisdiction or the jurisdiction to enforce).
 Jurisdiction although primarily territorial, may be based on other grounds
for example nationality, while enforcement is restricted by territorial
factors.

To give an instance, if a man kills somebody in India and then manages to reach
Dubai, the Indian Courts have jurisdiction to try him, but they cannot enforce it
by sending officers to Dubai to apprehend him. They must apply to Dubai
authorities for his arrest and dispatch to India. If, on the other hand, the
murderer remains in India then he be arrested and tried there, even if it becomes
apparent that he is a Chinese national.

1
Malcolm Shaw, International law page 483.
  Thus while prescriptive jurisdiction (or the competence to make law) may
be exercised as regards events happening within the territorial limits
irrespective of whether or not the actors are nationals, and may be
founded on nationality as in the case of an Indian subject suspected of
murder committed abroad who may be tried for the offence in India(If he
is found in India, of course), enforcement jurisdiction is another matter
entirely and is essentially restricted to the presence of the suspect in the
territorial limits.
 Thus while jurisdiction is closely linked with territory it is not exclusively
so tied. Many states have jurisdiction to try offences that have taken place
outside their territory, and in addition certain persons, property and
situations are immune from territorial jurisdiction in spite of being
situated or taking place there.
 Diplomats for example, have extensive immunity from the laws of the
country in which they are working and various sovereign acts by states
may not be questioned or overturned in the courts of a foreign country.

Criminal Jurisdiction

International law permits states to exercise jurisdiction (whether by way of

legislation, judicial activity or enforcement) upon a number of grounds. There is
no obligation to exercise jurisdiction on all or any particular one, of these
grounds. This would be a matter for the domestic system to decide.

 The importance of these jurisdictional principles is that they are accepted

by the international community as being consistent with international
law.

Territorial Jurisdiction

The territorial basis for the exercise of jurisdiction reflects one aspect of the
sovereignty exercisable by a state in its territorial home, and is the indispensable
foundation for the application of the series of legal rights that a state possesses.

 Thus all crimes alleged to have been committed within the territorial
jurisdiction of a state may come before the municipal courts and the
accused if convicted may be sentenced and punished.
 The principal ground for the exercise of criminal jurisdiction is, therefore,
territoriality.
 1. The Nationality Principle:

Since every state possesses sovereignty and jurisdictional powers and since
every state must consist of a collection of individual human beings, it is
essential that a link between the two be legally established.

 The link connecting the state and its people in its territory is provided by
the concept of nationality.
 Common law countries however, tend to restrict the crimes over which
they will exercise jurisdiction over national abroad to a very serious
crimes.
2. The protective principle
 This principle provides that states may exercise jurisdiction over
aliens who have committed an act abroad which is deemed prejudicial
to the security of the particular state concerned.
 The term ‘protective principle’ is generally used to denote the
principle of international criminal jurisdiction permitting a State to
grant extraterritorial effect to legislation criminalizing conduct
damaging to national security or other central State interests (Criminal
Jurisdiction of States under International Law; Extraterritoriality)2

3. The Universality Principle: Under this principle, each and

every state has jurisdiction to try particular offences. The basis
for this is that the crimes involved are regarded as particularly
offensive to the international community as a whole.
 There are two categories that clearly belong to the sphere of
universal jurisdiction, which has been defined as the
competence of the state to prosecute alleged offenders and to
punish them if convicted, irrespective of the place of
commission of the crime and regardless of any link of active
or passive nationality or other grounds of jurisdiction
recognised by international law. These are piracy and war
crimes.
2
Available at https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1902?
prd=EPIL last visited on 6th April 2020.
4.Extra territorial Jurisdiction of State3
Meaning: It is the situation when a state extends its legal power beyond its
territorial boundaries.

 The law relating to extra-territorial operation of laws has

been discussed and clarified in K.T.M.S. Abdul Cader and
others v UOI, AIR 1977 by the Madras High Court.
 The High court observed that it is well established that the
power of parliament to make a law in relation to the topic
entrusted to it is plenary, that a law passed by Parliament
under Article 245 cannot be invalidated merely on the ground
that it has extra-territorial operation and that such a law
cannot be questioned on the ground that it may not be found
capable of enforcement outside its territories.
 The H.C. further observed that the word, extra-territorial
operation are used normally in two different senses as
connoting firstly, laws in respect of acts and events which
take place inside the state but have operation outside, and
secondly, laws with reference to the national of a state in
respect of their acts outside.
5 Extradition, Deportation and Asylum
(i) Extradition: The practice of extradition enables one state
to hand over to another state suspected or convicted
criminals4
(ii) The practice of extradition enables one state to hand over
to another state suspected or convicted criminals who have
fled to the territory of former. It is based upon bilateral
treaty law and does not exist as an obligation upon states
in customary law.
3
S.K.KAPOOR, PAGE 215.
4
Malcolm Shaw, page 514.
 (iii) It is usual to derive from existing treaties on the subject
certain general principles, for example that of double
criminality, i.e. that the crime involved should be a crime
in both states concerned, and that of speciality i.e. a
person surrendered may be tried and punished only for the
offence for which extradition had been sought and granted.
Case law: Abu Salem V State of Maharastra, 2011 SCC 2145
The appellant was one of the accused in the serial bomb blasts in
Bombay in 1993. He was subsequently extradited from Portugal on
the ground that he was involved in crimes under the International
Convention for the Suppression of Terrorist bombing. Although
India had no extradition treaty with Portugal, it issued a
notification under Section 3(i) Extradition Act 1962 for the
appellant’s extradition.

 It was further assured that the appellant would not be tried for
any offence other than those for which extradition was
sought, that the appellant would not be further extradited and
that he would not be awarded death penalty or life
imprisonment.
 Finally he was extradited owing to India’s request based on
the principle of reciprocity.
 However, he was also tried for the offences under the TADA
act, the explosives substance act and the Arms act,
punishment for which was life imprisonment or for 20 years
or less. Subsequently he objected that his extradition was
illegal.
 The supreme court, however dismissed the appeal and held
that the appellant’s assumption that he had been extradited
under the International Convention for suppression of
Terrorist bombing, cannot be sustained.
5
Gurdip singh page 205.
 CASE LAW:
The Savarkar case: FRANCE/BRITIAN 19116

 This case involved extradition proceedings between

France and Britian.
 Savarkar was an Indian revolutionary. On 8 july 1910 he
was being transported to India for the purpose of his trial
on a charge of his treason and abetment of murder.
 During his voyage, he dramatically escaped by jumping
into the sea. Although the guards noticed him and opened
fire, he dived and swimmed under a shower of bullets until
he reached the port.
 He was however, apprehended by the French police.
 French police wrongly handed him over to captain of the
British ship
 Thereafter, French government requested British
government to return Savarkar on the ground that the rules
concerning extradition were not observed as French police
handed over Savarkar to Britain without extradition
proceedings.
 In fact, France demanded that Great Britain should ask for
his extradition in a formal way in conformity with
international law.
 Great Britian refused.
 The matter was referred to PERMANENT COURT of
arbitration at the Hague.
 In its award the court admitted that an irregularity had
been committed by handing over Savarkar to Britian.
 However, the court decided in favour of GREAT Britain
by holding that international law does not impose any
6
Gurdip singh page 203.
 obligation upon the state whereby on the above ground the
criminal may be returned.

7. ASYLUM7
Asylum means the protection or refuge granted by a State on its
territory or premises under its control to a person who comes to seek
such protection or refuge.

 Obviously Asylum is linked with extradition in as much as

asylum stops where extradition or rendition begins
 The purpose of Asylum is to accord protection to a person and
to bring him under the jurisdiction of the granting state whereas
extradition aims at surrendering or returning the offender to the
state where he is alleged to have committed the offence.
 Therefore Asylum stops when the granting state decides to
extradite the offender.
 Therefore the concept of asylum and extradition are opposite to
each other.
Right of Asylum

 The offender has no right of asylum. However, on this issue,

certain international instruments are worth examining. Article
14 of the UDHR recognises the right of everyone to seek and
enjoy in other countries asylum from prosecution.
 It being a declaration and not a treaty does not bind the states.
 In 1967 UNGA adopted a declaration on territorial asylum.

Kinds of Asylum
Territorial ASYLUM:
7
Gurdip singh page 206.
1.Territorial asylum is granted by a state on its territory. Territorial
asylum is an attribute of the territorial sovereignty of the granting
state.
2.Extra territorial or diplomatic asylum: It is the refuge granted
to offenders by a state within the precincts of its embassies or
legations abroad. In the Asylum case involving Colombia and
Peru,icj report 1950 ICJ has drawn a distinction between
territorial asylum and diplomatic asylum.

*****
THANKS: BEST REGARDS. Take care!
Yours sincerely
Dr.STANZIN , DATED 6TH APRIL 2020, NEW DELHI.
Please Note: The notes are typed from original prescribed books. Its not a
copy and paste work.

TOPIC 7: INTERNATIONAL HUMAN RIGHTS LAW1

Introduction: What are Human Rights?

 Broadly speaking human rights may be regarded as those fundamental

and inalienable rights which are essential for life as human being. Human
rights are the right which are possessed by every human being,
irrespective of his or her nationality, race, religion, sex etc., simply
because he or she is a human being.
 Human Rights are thus those rights which are inherent in our nature and
without which we cannot live as human beings. Human rights and
fundamental freedom allow us to fully develop and use our human
qualities, our intelligence, our talents, and our conscience and to satisfy
our physical, spiritual and other needs.
 They are based on mankind’s increasing demand for a life in which the
inherent dignity and worth of each human being will receive respect and
protection.
 “Human rights are sometimes called fundamental rights or basic or
natural rights. As fundamental or basic rights they are the rights which
cannot, rather, must not, be taken away by any legislature or any Act of
the government and which are often set out in a constitution.
 As natural rights they are seen as belonging to men and women by their
very nature.
 They may also be described as ‘common rights’ for they are rights which
all men and women in the world would share, just as the common law in
England, for example was the body of rules and customs which, unlike
local custom, governed the whole country.
 Since human rights are not created by any legislation, they resemble very
much the natural rights. Any civilized country or body like the united
nations must recognise them.
 They cannot be subjected to the process of amendment even. The legal
duty to protect human rights includes the legal duty to respect them.

1
S.K.Kapoor, International Law and Human Rights, page.806.
 Members of the U.N. have committed themselves to promote respect for
and observance of human rights and fundamental freedoms.

HUMAN RIGHTS AND DOMESTIC JURISDICTION

One of the problems that arises in the way of implementation of the
Human Rights programme is the question of domestic jurisdiction.
Article 2(7) of the UN Charter prohibits the UN. “to intervene in matters
which are essentially within the domestic jurisdiction of any state.
 Some authors have expressed the view that the prohibition contained in
Article 2(7) of the Charter reduces to a minimum the protection of human
rights on the part of the U.N. But this view does not seem to be correct
and the question of domestic jurisdiction does not arise in the case of
implementation of the provisions of Human Rights Covenants.
 Almost every problem that concerns international relation must come
within the domestic boundaries of one nation and may cross over into
another and create an international problem. Therefore a matter is not
essentially one of the domestic jurisdiction if it has become the subject of
international obligation undertaken by the state.
 Human rights and fundamental freedoms having become the subject of a
solemn international obligation and a fundamental purpose of the Charter,
are not any longer a matter which is essentially within the domestic
jurisdiction of the Members of the U.N.

Preamble of the Universal Declaration of Human Rights-

One of the main reasons for the inclusion of the provisions concerning
human rights in the UN charter was the bitter experience which the
mankind had undergone during the First and Second World wars when
large scale violations of human rights were made.
Scheme of the Enumeration of the Rights and the Rights
Enumerated in the Declaration
The Universal Declaration of Human Rights consists of a preamble as
noted above and 30 Articles covering both civil and political rights and
economic, social and cultural rights.
 Influence of UDHR on Human Rights:
The provisions of the UDHR on Human Rights were transformed into
international conventional law in the International Covenants on Human
Rights (ICCPR and ICESCR) which along with the UDHR are known as
the INTERNATIONAL BILL ON HUMAN RIGHTS.

COMPOSITION OF THE INTERNATIONAL BILL OF HUMAN

RIGHTS
The International Bill of the Human Rights comprises of the following:
(1) THE UDHR
(2) The International Covenant on civil and political rights(ICCPR)
(3) The International Covenant on Economic Social and Cultural Rights
(ICESCR)
(4) The Optional Protocol to the International Covenant on civil and
political rights, 1966.

THE INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS (ICCPR): 1966

The keystone of the Covenant on Civil and Political Rights, 1966 are
the charter provisions concerning the human rights and the Universal
Declaration of Human Rights, which is rightly reckoned as the mine
from which all instruments on human rights have quarried.

 The civil and political rights enumerated in the covenant include

the following:
1. Right to life, liberty and security of person
2. Prohibition of slavery and slavery trade
3. Prohibition of torture, cruel, inhuman or degrading treatment or
punishment…….

THE INTERNATIONAL COVENANT ON ECONOMIC

SOCIAL AND CULTURAL RIGHTS (ICESCR)2

Economic, Social and Cultural Rights enumerated in the covenant are :

1. Right to equal pay for equal work and so on

2
S.k.kapoor BOOK, PAGE.818
 2. Right to enjoyment of just and favourable conditions of work.
3. Right to education

The Generation of Human Rights3

1. The human rights may be classified into various generations or

dimensions.

First Generation of Human Rights (Traditional Human rights)

The states in the West emphasise that the civil and political rights of the first
generations, i.e. the liberal rights of non-interference and the democratic
participation rights inherent in the classical human rights concept are the
only human rights in the sense of individual rights enforceable by law
against the state.

2. The restricted point of view is reflected in several western constitutions as

well as in the liberal constitutional theory of fundamental rights and the
jurisprudence of many courts in Europe, the US and other countries.

3. It restricts human rights to the vertical relations between the state and the
individual and to claims of the individual against state interference.

Second Generation of Human Rights ( Traditional Human Rights)

1. The socialist concept of the second generation or dimension of human

rights is equally narrow and emphasises that civil and political rights would
only aid and abet the capitalist interests of separating state and the society.

2. The socialist states believe that the real human rights were those based on
harmonisation of individual and collective interests in socialist societies-the
economic, social and cultural rights. The economic, social and cultural rights
include right to work, social security, food, health, education etc.

Third Generation of Human Rights: Solidarity Rights

1. The third Generation of Human Rights i.e. Solidarity Rights favoured by

the South are based on concept of universalism. These evolve from
traditional first and second generation human rights as well as emerge
independently according to the needs of mankind.
3
GURDIP SINGH BOOK, PAGE 640.
 2. Third Generation Human rights include right to self-determination, peace,
development, common heritage of mankind, environment, sustainable
development etc.

Fourth Generation Human Rights

The fourth generation human rights refer to rights that relate to genetic
engineering, rights deriving from exploration and exploitation of cosmic
space and rights that can be said to belong to future generations as a
whole.

Vertical and Horizontal human rights

1. Vertical human rights are favoured by the states in the West and relate
to human rights but not human responsibilities. Accordingly vertical
human rights regime does not include private duties (duties of person
towards fellow individuals or community or society) and duties of
persons towards states but only duties of state to protect rights of
persons.
2. Horizontal human rights law favoured by the South relates to human
rights as well as human responsibilities, namely, private duties as well
as duties of individual towards states.

International Implementation of Human Rights4

1.The question whether the idea of international implementation of
human rights violates Article 2 para 7 of the Un Charter attracted the
attention of many for a long time. The USSR and its allies have always
maintained that the establishment of an international organ for the
implementation of human rights violated Article 2 para 7 of the Charter
and it is purely a domestic matter. The argument was advanced on many
occasions.
2. Kelsen seems to be of the opinion that the question of assuring or
protecting human rights is a matter which is essentially within the
domestic jurisdiction of a state and consequently within the Prohibition of
Article 2, para 2.
3. It has been earlier pointed out that the Civil and Political Rights
Covenants; the Economic, Social and Cultural Rights Covenant and the

4
Gurdip Singh, International law Book, page 646.
 optional protocol of the ICCPR are the crux of the international efforts
aimed at the protection of human rights.
4. The covenant on Civil and Political Rights establishes as the principal
international organ of its implementation, the ‘Human Rights
Committee”.
Measure for Impementation of Human Rights
It is proposed to discuss below the measures for implementation of
human rights under the following:
1. U.N Human Rights Council
2. International Covenant on Economic, Social and Cultural Rights, 1966
3. International Covenant on Civil and Political rights, 1966
4. Optional protocol to the International Covenant on Civil and Political
rights, 1966
5. Second optional protocol to the international covenant on civil and
political rights aiming at the Abolition of death penalty (1989).

1. Under the U.N Human Rights Council-

1. An individual of any member state of the United nations who feels to

be the victim of the violation of Human Rights can send a petition to the
UN Human Rights Council through the Secretary General of the UN.

2. The scope and competence of the Human Rights Council is very wide.
Indeed it is near universal because while individual’s communication
system provided under the optional protocol to ICCPR is available only
to the individuals of state parties of the civil covenant which are parties to
the optional protocol whereas individual communication system available
under the Human Rights Council is available to individual of all member
states of the UN.

2. Under the International Covenant on Economic, Social and Cultural

Rights, 1966

 Implementation of the Economic Covenant Consists of a system

of reporting.
 State parties to the Economic covenant have undertaken the
obligation to submit reports on measures adopted by them and
the progress made in achieving the general observance of the
rights recognised therein.
  The implementation of the human rights under the Economic
covenant through system of reporting is weak and has many
limitations. This is because of the general nature of obligation
undertaken by the state parties to the Covenant.
 Because of the very nature of economic, social and cultural
rights, binding obligations as contrasted to civil and political
rights could not be enacted.
 The implementation of economic, social and cultural rights
depends upon the state of development and economic progress
of the state concerned.

3. Under the International Covenant on Civil and Political rights, 1966

 The machinery for implementation under the Covenant on Civil and

Political Rights, 1966 is a Human Rights Committee to carry out the
functions provided in the Covenant .

METHODS OR WAYS OF IMPLEMENTATION:-

The 18 member Human Rights Committee implements the human rights
recognised under the Civil Covenant in following three ways:
(1) The system of reporting
(2) Inter-State Communication System
(3) Conciliation Procedure

(1) The system reporting or Reporting procedure- Article 40 of the

Civil Covenant which deals with the Reporting procedure provides
that State parties to the covenant undertake to submit reports on the
measures they have adopted which give effect to the rights recognised
in the Covenant and on the progress made in the enjoyment of these
rights.
(2) The 18 member Human Rights Committee is a watchdog body to
ensure that state parties apply the ICCPR.

Inter-State Communication System

 The civil covenant also provides for system of state to state or inter-
state communication. This system is based on the concern of all state
parties to the covenant that the rights recognised by the covenant are
implemented.

4. Under Optional protocol to the International Covenant on Civil and

Political rights, 1966-Individual’s communication system.

Article 1 of the Optional Protocol provides that a state party to the Covenant
that becomes a party to the present protocol recognises the competence of the
committee to receive and consider communication from individuals subject to
its jurisdiction who claim to be victims of a violation by that state party of any
rights set forth in the Covenant.

5. Under Second optional protocol to the international covenant on civil

and political aiming at the Abolition of death penalty (1989).
It is mainly and exclusively concerned with the abolition of death penalty.

6.Regional Convention on Human Rights

1.European Convention on Human Rights, 1950

2. The American Declaration of the Rights and Duties of man, 1948
3.The African charter on Human and People’s Rights, 1981.

NATIONAL IMPLEMENTATION OF HUMAN RIGHTS WITH

SPECIAL REFERENCE TO INDIA5

As far as India is concerned, the human rights and fundamental freedoms

contained in the international instruments have been incorporated in the
Constitution of India which also provides for their enforcement.

 Besides various steps have been taken for the abolition of bonded labour,
rural indebtedness and untouchability.
 Land reforms, review of minimum wages, protection of civil rights,
giving greater powers to states to deal with untouchability offences, equal
remuneration to men and women and other legislative measures to

5
GURDIP SINGH, BOOK PAGE 661.
 prevent discrimination in employment on ground of sex, are some of the
measures recently taken to promote the spirit of the international
instruments dealing with human rights.
 National Human Right Commission/State Human Rights
Commission
 Cases: ADM Jabalpur case, Kesavananda Bharti, George Varghese v
Bank of Cochin, Nilabati Behera v state of Orissa , D.K.Basu, PUCL,
UOI, Vishakha, Transgender community case: NALSA v UOI,LGTB
community case: Suresh Kumar Koushal v Naz Foundation.

Best Regards, Dr. Stanzin Chostak, New Delhi, Dated: 11.04.2020

Stay Healthy, Stay Safe!

Please note that the contents are typed from prescribed books and is not a
copy and paste work! Happy Reading!

TOPIC-8: SOVEREIGN, DIPLOMATIC AND CONSULAR

IMMUNITY/PRIVILEGES

DIPLOMATIC RELATION INTRODUCTION1

In its simplest sense diplomacy comprises any means by which states establish
or maintain mutual relations, communicate with each other, or carry out
political or legal transactions, in each case through their authorised agents.

 Diplomacy in this sense may exist between states in a state of war or

armed conflict with each other, but the concept relates to communication,
whether with friendly or hostile purpose, rather than the material forms of
economic and military conflict.
 The rules of international law governing diplomatic relations were the
product of long-established state practice reflected in the legislative
provisions and judicial decisions of national law. The law has now been
codified to a considerable extent in the Vienna Convention on Diplomatic
Relations. Parts of the Convention are based on existing practice and
other parts constitute a progressive development of the law.

Classification of Diplomatic Agents2

The diplomatic agents have been classified according to their status and
functions.

(1) Ambassador and Legates: Ambassadors and Legates are the diplomatic
agent of the first category. They are the representatives of the completely
sovereign states. They are either appointed as Ambassadors or Permanent
Representatives of the respective countries in the United Nations. The
representative appointed by the Pope are called Legates.
(2) Ministers Pleni-potentiary and Envoys Extraordinary: As compared
to the diplomatic agents of the first category, they enjoy less privilege and
immunities

1
Malcolm N.Shaw, Principles of public International law, page 349
2
S.K.KAPOOR,International law and human rights, page 440.
 (3) Charge-d’Affaires: They are not appointed by the head of the state but in
fact by the foreign minister.

The Basis of Immunities and Privileges of Diplomatic Agents

While discussing the rationale of privileges and immunities, Malcolm N Shaw 3,

says that the essence of diplomatic relations is the exercise by the sending
government of state functions on the territory of the receiving state by licence.
The process of giving ‘full faith and credit’ to the licence results in a body of
privileges and immunities.

Before discussing the immunities and privileges of the diplomatic agents it will
be necessary and desirable to know as to what is the basis of these immunities
and privileges. To put it more precisely, why diplomatic agents are given certain
immunities and privileges? There are two theories prevalent in this connection
(i) Theory of Extra-territoriality; and (ii) Functional Theory

(1)Theory of Extra-territoriality-According to this theory, the diplomatic

agents enjoy immunities and privileges because they are deemed to be outside
the jurisdiction of the State in which they are appointed.

(2) Functional Theory- In fact, the true basis of the immunities and privileges
enjoyed by the diplomatic agents is not the theory of extra-territoriality but the
special functions which these agents perform. That is to say, diplomatic agents
are given certain immunities and privileges because of the special functions
which they perform. It is thought necessary and expedient to grant these
immunities and privileges to them otherwise they would be greatly handicapped
in the performance of their functions. Thus Diplomatic missions are accorded
privileges and immunities for functional reasons as is clearly brought out in the
Vienna Convention on Diplomatic Relations.

Diplomatic Envoys4: Immunities and Privileges explained

The immunities accorded to a diplomatic agent personally as distinct from those

which belong to the mission, include personal inviolability and immunity from
criminal, civil and administrative jurisdiction.

1. Personal Inviolability
3
Shaw, book, page 351.
4
GURDIP SINGH, BOOK, INTERNATIONAL LAW, PAGE 289.
Personal inviolability of diplomats is one of the oldest and universally
recognised immunities. It is guaranteed under Article 29 of the Vienna
Convention on Diplomatic Relations. It provides:

The person of a diplomatic agent shall be inviolable. He shall not be

liable to any form of arrest and detention…..

2. Inviolability of residence and property

Article 30 of the Vienna Convention on Diplomatic Relations deals with

inviolability of residence and property.

In the case of the United States Consular Staff in Tehran, the International
Court of Justice reaffirmed the principle of the inviolability of the person of
diplomatic envoys and of the premises of diplomatic mission. This case was
brought before the world court by United States following the occupation of
its embassy in Tehran by Iranian militants On 4 November 1979, and the
capture and holding as hostages of its diplomatic and consular staff.

SOVEREIGN AND NON SOVEREIGN ACTS

Sovereign immunity, or state immunity, is a principle of customary

international law, by virtue of which one sovereign state cannot be
sued before the courts of another sovereign state without its consent.
Put in another way, a sovereign state is exempt from the jurisdiction
of foreign national courts. Thus, the question of immunity is at the
same time a question of jurisdiction: only when the court already has
jurisdiction will it become meaningful to speak of immunity or
exemption from it. For this reason, sovereign immunity is also
referred to as “jurisdictional immunity” or “immunity from
jurisdiction.”5

CONSULAR RELATIONS

The existence of fairly uniform practices evidenced by a large number

of bilateral treaties, encouraged the International Law Commission to

5
Available at https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-
9780199796953-0018.xml last visited on 13th April 2020.
 produce draft articles on consular relations, and subsequently the
Vienna Convention on Consular Relations was signed in 1963.6

 Consuls are in principle distinct in function and legal status

from diplomatic agents. Though agents of the sending state for
particular purposes, they are not accorded the type of immunity
from the laws and enforcement jurisdiction of the receiving
state enjoyed by diplomatic agents.7 Consuls are the
representatives of their states but they are not deemed to be
diplomatic agent.
 Consular functions are very varied indeed and include the
protection of the interests of the sending state and its nationals,
the development of economic and cultural relations, the issuing
of passports and visas, the administration of the property of
nationals of the sending state, the registration of births, deaths
and marriages, and supervision of vessels and aircraft attributed
to the sending state.

Consular Immunities and Privileges

Consuls do not ,like diplomatic envoys, enjoy complete immunity

from local jurisdiction. However, special privileges and exemptions
are commonly granted to them under bilateral treaties.

 In practice, consuls enjoy certain privileges for fulfilling their

duties and functions. These include consul’s exemption from
service on juries, his right of safe conduct, the right of free
communication with nationals of the sending state, the
inviolability of his official papers and archives, and his right if
accused of a crime to be released on bail or kept under
surveillance etc.
 Article 31 of the Convention, on the inviolability of consular
premises, provides that authorities of the receiving state shall
not enter that part of consular premises which is used
exclusively for the purpose of the work of the consular post

6
SHAW, INTERNATIONAL LAW BOOK, PAGE 365.
7
SHAW BOOK, PAGE NO.364.
 except by permission which may be assumed in the case of fire
or other disaster requiring prompt protective action.

CASE LAWS:
1. The classic case illustrating the relationship between
territorial jurisdiction and sovereign immunity is the The
Schooner Exchange v. McFaddon decided by the US
Supreme Court. Chief Justice Marshall declared that the
jurisdiction of a state within its own territory was exclusive
and absolute, but it did not encompass foreign sovereign.8

2. Case concerning US. Diplomatic and consular Staff in

Tehran(discussed above)

3. Kulbhushan Jadhav Case:

On 8 May 2017, India instituted proceedings before the

International Court of Justice (ICJ) against Pakistan, accusing
the latter of ‘egregious violations of the Vienna Convention on
Consular Relations’ (VCCR) (p. 4). The dispute concerns the
treatment of an Indian national, Mr. Kulbhushan Sudhir Jadhav,
who was detained, tried and sentenced to death by a military
court in Pakistan.

Provisional measures

 Together with its Application Instituting Proceedings, India also filed

a request for provisional measures on the ground that the alleged
violation of the VCCR by Pakistan ‘has prevented India from exercising
its rights under the Convention and has deprived the Indian national from
the protection accorded under the Convention’ (para. 18).

 Judgment on jurisdiction, admissibility and merits

 The ICJ held that Pakistan had deprived India of the right to communicate
with and have access to Mr. Jadhav, to visit him in detention and to
arrange for his legal representation, and thereby had breached its
obligations under Article 36(1)(a) and (c) of the VCCR.

8
Shaw book, page 524.
Best regards! Stanzin sir.