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Public Interna.
onal Law
LLB 4 th SEMESTER
PUBLIC INTERNATIONAL LAW
PUBLIC INTERNATIONAL LAW
Harinath J, Radhakrishna ANV and Aravinda Reddy 1

Public Interna.onal Law
IMPORTANT SHORT QUESTIONS

SL
NO
1 MONISM
2 "A STATE IS AND BECOMES AN INTERNATIONAL PERSON THROUGH RECOGNITION ONLY
AND EXCLUSIVELY" by Oppenheim
3 NATIONALITY
4 EXTRADITION (IMP - DOUBLE CRIMINALITY)
5 FREEDOM OF HIGH SEAS
6 OUTERSPACE TREATY, 1967
7 GIVE AN ACCOUNT OF THE SECURITY COUNCIL AND VETO AND DOUBLE VETO
IMPORTANT LONG QUESTIONS
8 WHAT ARE THE SOURCES OF INTERNATIONAL LAW (CUSTOM IS VERY IMPORTANT)

9 INTERNATIONAL LAW IS NOT LAW IN THE STRICT SENSE (INTERNATIONAL LAW IS THE
VANISHING POINT OF JURISPRUDENCE)
10 RELATION BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW
11 WHAT IS STATE SUCCESSION? EXPLAIN DIFFERENT KINDS OF STATE SUCCESSION
12 MODES OF ACQUIRING STATE TERRITORY
13 EXPLAIN THE PRIVILEGES AND IMMUNITIES OF DIPLOMATIC ENVOYS (IMMUNITY FROM
THE LOCAL JURISDICTION IMPORTANT)
14 DIFFERENTIATE BETWEEN HIGH SEAS, TERRITORIAL WATERS, CONTIGUOUS ZONE AND
CONTINENTAL SHELF
15 EXPLAIN THE PURPOSE AND PRINCIPLES OF UNITED NATIONS
IMPORTANT CASES
16 DE FACTO AND DE-JURE RECOGNITION - BANK OF ETHIOPIA v. NATIONAL BANK OF

EGYPT AND LIGUORI
17 MOB VIOLENCE - INDIRECT STATE RESPONSIBILITY
18 EXTRADITION
19 DIPLOMATIC ASYLUM - COLOMBIA V PERU
20 EXPLAIN THE PRIVILEGES AND IMMUNITIES OF DIPLOMATIC ENVOYS
21 THE INTERNATIONAL LIABILITY FOR DAMAGE CAUSED BY SPACE OBJECTS, 1971
PAPER-II: PUBLIC INTERNATIONAL LAW SYLLABUS

Unit-I: De+ni,on, Nature, Scope and Importance of Interna,onal Law — Rela,on of

Interna,onal Law to Municipal Law — Sources of Interna,onal Law — Codi+ca,on.
Unit-II: State Recogni,on — State Succession — Responsibility of States for Interna,onal

delinquencies — State Territory — Modes of acquiring State Territory
Unit-III: Posi,on of Individual in Interna,onal Law — Na,onality — Extradi,on — Asylum

— Privileges and Immuni,es of Diploma,c Envoys — Trea,es – Forma,on of Trea,es -
Modes of Consent, Reserva,on and termina,on.
Unit-IV: The Legal Regime of the Seas – Evolu,on of the Law of the Sea – Freedoms of the
High Seas – Common Heritage of Mankind – United Na,ons Conven,on on the Law of the
Seas – Legal Regime of Airspace – Important Conven,ons rela,ng to Airspace – Paris,
Havana, Warsaw and Chicago Conven,ons – Five Freedoms of Air – Legal Regime of Outer
space – Important Conven,ons such as Outer space Treaty, Agreement on Rescue and
Return of Astronauts, Liability Conven,on, and Agreement on Registra,on of Space
objects, Moon Treaty - Uni space.
Unit-V: Interna,onal Organiza,ons — League of Na,ons and United Na,ons —

Interna,onal Court of Jus,ce —Interna,onal Criminal Court - Specialized agencies of the
UN — WHO, UNESCO, ILO, IMF and WTO.
Suggested Readings: 1. J.G. Starke: Introduc,on to Interna,onal Law, Aditya Books, 10th
Edi,on, 1989. 2. J.I. Brierly: The Law of Na,ons, Oxford Publishers, London. 3. Ian
Brownlie: Principles of Public Interna,onal Law, Oxford Publishers, London. 4. S.K.
Kapoor, Public Interna,onal Law, Central Law Agencies, Allahabad. 5. H.O. Agarwal,
Interna,onal Law and Human Rights, Central Law Publica,ons, Allahabad. 6 .S.K. Verma,
An Introduc,on to Public Interna,onal Law, Pren,ce Hall of India.

SHORT ANSWERS
1. MONISM.
ANSWER: Monis4c theory was pronounced in the Eighteenth Century. It was put forward by two
German scholars Moser and Martens. However, it was not un4l the nineteenth century that their
concepts were elaborated into a full-Jedged doctrine. According to this doctrine, there exists only
one set of the legal system, i.e., the domes4c legal order. It has been denied by the exponents of
this theory that Interna4onal Law is a dis4nct and autonomous body of law. It followed that there
was obviously no need for interna4onal rules to be incorporated into municipal legisla4on; since
they have been made by the States themselves. The monis4c doctrine was later developed in the
early twen4eth century by the Austrian jurist Hans Kelsen.
According to monis4c theory, municipal law, as well as Interna4onal Law, are parts of one
universal legal system serving the needs of the human community in one way or the other. In the
opinion of its theorists, the two together form a single legal order. Interna4onal Law is therefore
indis4nguishable from the internal law of States and is of signiPcance only as part of the universal
legal order.
In a pure monist state, interna4onal law does not need to be translated into na4onal law. It is
simply incorporated and aQects automa4cally in na4onal or domes4c laws. The act of ra4fying an
interna4onal treaty immediately incorporates the law into na4onal law, and customary
interna4onal law is treated as part of na4onal law as well. Interna4onal law can be directly
applied by a na4onal judge and can be directly invoked by ci4zens, just as if it were na4onal law. A
judge can declare a na4onal rule invalid if it contradicts interna4onal rules because, in some
states, interna4onal rules have priority. In other states, like in Germany, trea4es have the same
eQect as legisla4on, and by the principle of Lex posterior derogat priori ("Later law removes the
earlier"), only take precedence over na4onal legisla4on enacted before their ra4Pca4on.
Features of Monism:
1. The monis4c theory was pronounced in the Eighteenth century,
2. Austrian jurist Hans Kelsen has developed this theory in the early twen4eth century.
3. According to Monism, there exists only one set of the legal system i.e., the domes4c legal
order.
4. Interna4onal law and Municipal law are the same.
5. Once the Interna4onal Rule is passed, the na4on follows it without any municipal law.
6. In case of contradic4on between municipal law and interna4onal law, interna4onal law will
prevail over municipal law.
2. "A STATE IS AND BECOMES AN INTERNATIONAL PERSON THROUGH RECOGNITION ONLY AND
EXCLUSIVELY" by Oppenheim.
Answer: What is the recognition of State?
1) Introduction:
In the world number of states is not Pxed and it is ever-changing. Due to passage of 4me,
old State disappears or unites with other states to form a new state or disintegrate and split into
several new states; or former colonial or vassal territories may, by a process of emancipa4on
(free) themselves and acain statehood. It is the process by which a poli4cal community acquires
personality in Interna4onal Law by becoming a member of the family of Na4ons. Only by
Recogni4on State becomes a par4cipant.
2) Requirements of Statehood
There is no Pxed or commonly agreed that what is the minimum requirement of Statehood

for the existence of State. According to Ar3cle 1 of the Montevideo Conven3on, the minimum
requirements of Statehood are as follows:
(1) Permanent Popula3on
(2) Well Organised Government
(3) DeInite or Fixed Territory
(4) Capacity to enter into a rela3onship or an agreement with other States.
According to Kelsen, a community to be recognised as an interna3onal person must fulIl

some condi3ons such as the community must be a poli3cal organiza3on, it should have control
over a deInite territory, this control tends towards permanence and community thus cons3tuted
must be independent. But Interna3onal Law does not provide as to how those essen3al condi3ons
are to be determined.
3) Definitions of Recognition:
Recogni3on can be deIned as a formal acknowledgement by an exis3ng member of the

interna3onal community of the interna3onal personality of a State or poli3cal group not hitherto
maintaining oVcial rela3ons with it
a) J. Jessup:
According to J. Jessup, it is a poli3cal community acquiring or sa3sfying the requirements of
statehood, qualifying itself to be the member of the interna3onal community.
b) Professor Oppenheim:
"In recognising state as a member of the Interna3onal community the exis3ng state declares
that in their opinion the new state fulIls the condi3ons of statehood as required by interna3onal
law.
Oppenheim, who is known as the Father of Interna3onal Law, gave the famous theory of
recogni3on in interna3onal law. The given statement by him has given rise to two theories of
recogni3on in interna3onal law-cons3tu3ve theory and declaratory theory. Recogni3on in his
terms refers to the acknowledgement of one State by another State. However, interna3onal law is
so[ law and thus does not impose obliga3ons on the States. The cons3tu3ve theory has been
adopted by Oppenheim himself and states that a State can come into existence and becomes an
interna3onal person only through recogni3on by other States. This theory was applied widely
during the nineteenth century for coming to a consensus on acceptance of States and was used
last in 1973 to recognize East Germany by the Western powers. The declaratory theory, on the
other hand, states that any State that fulIlls the criteria of statehood as per the poli3cal deIni3on
is a State. The need for recogni3on is only an aVrma3on of exis3ng poli3cal territory. It is debated
to remove the element of discre3on present in the cons3tu3ve theory. But there exists a
substan3al debate on the two theories of recogni3on given the ambiguity in their deIni3ons.
There are two main Theories of Recogni3on. Viz Cons3tu3ve theory and Declaratory Theory
or Eviden3ary theory.
1) Cons3tu3ve Theory:
Recogni3on is a process whereby a State is cons3tuted; hence it is called as a cons3tu3ve

theory. Hegel is a pioneer of this theory. Which is supported and propounded by Anzilo9,
Holland and Oppenheim.
According to Anzilo9, since the rules of Interna>onal law have grown up by the common
consent of the States, is a subject of interna>onal law comes into being with the conclusion of the
Crst agreement as expressed by the Treaty of recogni>on. Such recogni>on is reciprocal and
cons>tu>ve, crea>ng rights and obliga>ons which did not exist before.
According to Holland, a State cannot be said to have aFained maturity unless it is stamped
with the seal of recogni>on, which is indispensable to the full enjoyment of rights which it
connotes.
According to Oppenheim, a State is and becomes an interna>onal person through recogni>on

only and exclusively. According to the Cons>tu>ve theory, statehood and par>cipa>on in the
interna>onal legal order are aFained by poli>cal group only in so far as they are recognised by
established State. According to this theory, recogni>on gives the rights and du>es to recognized
States under interna>onal law. The recogni>on of Poland and Czechoslovakia through the
instrumentality of the Treaty and Versailles lends support to the cons>tu>ve theory of
recogni>on.
Cri>cism -Jurists have cri>cized the Cons>tu>ve theory. The view of Judge Lauterpacht that there
is a legal duty on the part of the exis>ng States to recognize any community that has in fact
acquired the characteris>cs of statehood, does not seem to be correct. In prac>ce, the State does
not accept any such obliga>on. "The prac>ce indicates, however, that although established States
normally recognize new States and new governments that in fact exist, they have not consented
to law norms that obligate them to do so. ”Besides this, the Cons>tu>ve theory presents several
other serious diRcul>es. According to this theory, if a State is not recognized it can have neither
duty nor rights under interna>onal law. This is a very absurd sugges>on. If we accept this
proposi>on, it will create diRcul>es in the case of a new State which is recognized by some States
but not recognized by others. The examples of China and Bangladesh can be cited in this
connec>on. China was not recognized by America and other Western countries for a number of
years although China possessed all the essen>al aFributes of the State. But to assert that China,
therefore, did not have rights and du>es under interna>onal law would be an absurd proposi>on.
Similarly, Bangladesh was not recognised for some >me by China, Pakistan, Albania, etc.
However, in support of the cons>tu>ve theory, it must be admiFed that once a state is recognized
it acquires status and is recognized as such by the municipal courts of the recognising state.
2) Declaratory theory or Eviden>ary Theory:

The declaratory theory is also called as an eviden>ary theory. The chief exponents of this
theory are Professor Hall, Wagner, PiF CobbeF, and Brierly. This theory requires evidence/
declara>on. It is some sort of conCrma>on on the already exis>ng State. It is exactly the reverse
process of cons>tu>ve theory for example Crst statehood then recogni>on.
According to Professor Hall "the State, which is theore>cally a poli>cal is organized

Community, enters as of right into the family of States and must be treated according to the law as
soon as it can show the marks of statehood no state has a right to withhold recogni>on when it
was being earned.
According to Brierly the gran>ng of recogni>on to a new state it is not a 'cons>tu>ve' but a
'declaratory' act it does not bring into legal existence a State which did not exist before. A State
may exist without being recognized, and if it does exist in fact then, whether or not it has been
formally recognized by other states, It has a right to be treated by them as a State.

Conclusion
Recogni)on is the status of Poli)cal Community. Cons)tu)ve and declara)ve are the two
main theories of recogni)on but none of them is perfect. Each theory has its merits and demerits.
There are certain legal e>ects of recogni)on and also the consequences of non-recogni)on.
3. NATIONALITY.
Answer: Definition:
Individuals of a par)cular na)on are supposed to owe allegiance to their States. Such
individuals who owe permanent allegiance to a State are known as na)onals of a State.
Na)onality may, therefore, be deLned as the ‘status of a natural person who is aNached to a State
by the )e of allegiance’. Thus, the term ‘na)onality’ signiLes the legal )e between individuals and
the State. Oppenheim has very rightly stated that the na)onality of an individual is his quality of
being a subject of a certain State.
Na)onality is the medium through which an individual can enjoy the beneLts of Interna)onal
Law. A State exercises jurisdic)on over its na)onals, travelling or residing abroad, remain under
its personal supremacy. Interna)onal Law permits the exercise of such jurisdic)on and sets the
limits within which it can be exercised. In Mavromma)s case, the Permanent Court of
Interna)onal Jus)ce observed that ‘It is an elementary principle of Interna)onal Law that a State
is en)tled to protect its subjects when injured by acts contrary to Interna)onal Law commiNed by
another State, from whom they have been unable to obtain sa)sfac)on through ordinary
channels. The right of protec)on extends to the property of the na)onals as well. Further, if a
na)onal of a State is expelled from a foreign State, it becomes the duty of the former to receive
back its na)onals. The refusal to receive and the expulsion of a State’s own na)onals are
inconsistent with Interna)onal Law as they may involve a burden on other States which they are
not bound to undertake. Thus, in dealing with any interna)onal legal problems involving an
individual, it is always essen)al to know his na)onality, the legal bond which )es him personally
to a given State for many purposes.
The international importance of Nationality

The laws rela)ng to na)onality have the following importance under Interna)onal law:
(1) The protec)on of the rights of diploma)c agents is the consequence of na)onality.
(2) If a State does not prevent o>ences of its na)onals or allows them to commit such harmful acts
as might a>ect other States, then that State shall be responsible for the acts commiNed by such a
person.
(3) Ordinarily, States do not refuse to take the persons of their na)onality. By na)onality, we may
mean loyalty towards a par)cular State.
(4) Na)onality may also mean that the na)onal of a State may be compelled to do military service
for the State.
(5) Yet another e>ect of na)onality is that the State can refuse to extradite its own na)onals.
(6) According to the prac)ce of a large number of States during the war, enemy character is
determined on the basis of na)onality.
(7) States frequently exercise jurisdic)on over criminal and other maNers over the persons of their
na)onality.
Modes of Acquisi.on of Na.onality
A person may acquire the na)onality of a State in accordance with the rules of municipal law. It
implies that municipal law determines as to who may be a na)onal of a par)cular State. Modes of
acquisi)on of na)onality are therefore not uniform. They di>er from State to State. Following are
the modes by which na)onality may be acquired:-

1. By Birth: Na-onality is conferred to a person by many States on the basis of birth. All
those persons whose birth takes place within territorial limits of a State acquire the
na-onality of that State. The above principle is called jus soli. The Indian Ci-zenship Act
of 1955 under Sec-on 3 had provided na-onality on the basis of birth. Merely birth in the
territory of India, even though both the parents are foreigners, would make a person an
Indian ci-zen.
2. By Descent: Na-onality of a State may also be acquired by a person on the basis of the
na-onality of either parent. Thus a child may become a na-onal of that State of which his
parents are na-onals. This principle is known as jus sanguinis. Sec-on 4 of the Indian
Ci-zenship Act of 1955 provides that a person may be an Indian na-onal on the basis of
the principle of jus sanguinis.
3. By Naturaliza-on: A person may acquire na-onality through naturaliza-on in diNerent
ways. They are: through marriage, legi-ma-on, op-on, acquisi-on of domicile,
appointment as Government oPcial and grant of applica-on. Adop-on of children by
parents who are na-onals of the other States also en-tles the children to acquire the
na-onality of his parents.
4. By Resump-on: A person, who has lost his na-onality by naturaliza-on or by any other
reasons, may acquire the na-onality of the same State again. The acquisi-on of this kind
is called reintegra-on or resump-on.
5. By Subjuga-on (the act of defea-ng country and ruling them): A person may acquire
na-onality through subjuga-on aTer the conquest. When a part of the territory of a State
or a State itself is subjugated by another State, all the inhabitants of the territory become
the na-onals of the laVer State.
6. By Cession: when a part of the territory of a State is ceded to another State, all the
na-onals of the former acquire the na-onality of the laVer State.
7. By Op-on: When a State is par--oned into two or more States, the na-onals of the
former State have an op-on to become the na-onals of any of the successor States. The
same principle applies in the case of an exchange of territory.
8. By Registra-on: A person may acquire the na-onality of a State through registra-on. The
process of registra-on may be diNerent from one state to another depending upon the
laws of that State.
Modes of Loss of Na-onality: A person may lose the na-onality of a State in many ways. They are
as follows:
1. By Release: Some States give their ci-zens the right to ask to be released from their
na-onality. Release occurs only when an applica-on is made to that eNect, and if it has
been accepted by the State concerned.
2. By Depriva-on: A na-onal of a State may be deprived of na-onality in case of certain
happenings. Legisla-on of many States recognizes numerous grounds of depriva-on of
na-onality. For instance, if a ci-zen enters into foreign civil or military service without
permission, he may be deprived of his na-onality.
3. By Renuncia-on: A person may renounce his na-onality of a State. The ques-on of
renuncia-on of na-onality arises when a person acquires it of more than one State.
4. By Subs-tu-on: A person may lose the na-onality of a State when he acquires na-onality
in some other State by naturaliza-on.
5. By Expira-on: A person may lose the na-onality of a State by expira-on. For instance,
some State has provided by legisla-on that ci-zenship expires in the case of such of their
subjects as having leT the country and stayed abroad for a certain length of -me.
6. By subjuga-on: A person may lose his na-onality through subjuga-on aTer the conquest.
When a part of the territory of a State or a State itself is subjugated by another State, all
the inhabitants of the defeated State lose their na-onality i.e. crea-on of Bangladesh.

7. By Cession: when a part of the territory of a State is ceded to another State, all the
na9onals of the former lose the na9onality.
4. EXTRADITION (DOUBLE CRIMINALITY IS IMPORTANT)

Answer:
De$ni'on
It is quite possible for a person to escape to another State aOer commiPng a crime in his own
State. Such cases have started occurring more frequently with the result of the development of
air traSc. A ques9on arises as to whether fugi9ve shall be tried in the country where he has Ted
away or in the State where the crime has been commiUed. Normally, a State Vnds itself in a
diScult situa9on to punish a person who has commiUed a crime elsewhere primarily because of
the lack of jurisdic9on, and therefore, such persons are some9mes surrendered to the state where
the crime has been commiUed. Surrender of an accused or of a convict is referred to extradi9on.
Purpose of Extradi'on
A criminal is extradited to the reques9ng State because of the following reasons:

1. Extradi9on is a process towards the suppression of Crime: Normally a person cannot be
punished or prosecuted in a State where he has Ted away because of lack of jurisdic9on or
because of some technical rules of criminal law. Criminals are therefore extradited so that
their crimes may not go unpunished.
2. Extradi9on acts as a warning to the criminals that they cannot escape punishment by
Teeing to another State. Extradi9on, therefore, has a deterrent e\ect.
3. Criminals are surrendered as it safeguards the interest of the territorial State. If a
par9cular state adopts a policy of non-extradi9on of criminals they would like to Tee to
that state only. The State, therefore, would become a place for interna9onal criminals.
4. Extradi9on is based on reciprocity. A State which is requested to surrender the criminal
today may have to request for extradi9on of a criminal on some future date.
5. Extradi9on is done because it is a step towards the achievement of interna9onal co-
opera9on in solving interna9onal problems of a social character. Thus, it fulVls one of the
purposes of the United Na9ons as provided under Para 3 of Ar9cle 1 of the Charter.
6. The State on whose territory the crime has been commiUed is in a beUer posi9on to try
the o\ender because the evidence is more freely available in that State only.
Is Extradi'on a Legal Duty of a State?
Gro9us was of the view that a State of refuge has a duty either to punish the o\ender or to
surrender him to the State seeking his return. The principle of ‘prosecu9on or extradi9on’ was
recognized by him as a legal duty of the State where the o\ender is found.
A legal duty to surrender a criminal, therefore, arises only when trea9es are concluded by the
States and aOer the formali9es have taken place which is s9pulated in the extradi9on trea9es.
Only in excep9onal cases, a State may extradite a person on the basis of reciprocity. However,
this is done not because of any legal duty on their part, but because of reciprocity or courtesy.
Law of Extradi'on
In Interna9onal Law, rules regarding extradi9on are not well established mainly because
extradi9on is a topic which does not come exclusively under the domain of Interna9onal law. Law
of extradi9on is dual law. It has opera9on – na9onal and interna9onal. Extradi9on or non-
extradi9on of a person is determined by the municipal courts of a State, but at the same 9me, it is
also a part of Interna9onal law because it governs the rela9ons between two States over the
ques9on of whether or not a given person should be handed over by one State to another State.

Presently, in the absence of any mul4lateral treaty or Conven4on, extradi4on is done by States
on the basis of bilateral trea4es. Bilateral trea4es, na4onal laws of several States, and the judicial
decisions of municipal courts led to developing certain principles regarding extradi4on which are
deemed as general rules of Interna4onal Law. Important amongst them are as follows:
1. Extradi4on Trea4es: The Frst and the foremost important condi4on of extradi4on is the
existence of an extradi4on treaty between the territorial State and the reques4ng State.
Some states, such as the United States, Belgium and the Netherlands, require a treaty as
an absolute pre-condi4on. The strict requirement of an extradi4on treaty may be
regarded as the most obvious obstacle to interna4onal coopera4on in the suppression of
crimes.
2. Non-extradi4on of Poli4cal OMenders: It is a customary rule of Interna4onal Law that
poli4cal oMenders are not extradited. In other words, they are granted asylum by the
territorial State.
3. The doctrine of Double Criminality: The doctrine of double criminality, also known as dual
criminality, denotes that a crime must be an oMence recognized in the territorial as well as
in the reques4ng State. No person is extradited unless this condi4on is fulFlled. The
doctrine appears to be based on the considera4on that it would oMend that conscience of
the territorial State if it has to extradite a person when its own law does not regard him a
criminal. The reques4ng State would also not ask for the surrender of a person for those
crimes which are not recognized in its State. The doctrine thus sa4sFes double purpose. It
helps the reques4ng State to enforce its criminal law, and to the territorial State in the
sense that the rule protects it from fugi4ve criminals.
The rule of double criminality has put a State into a diRcult situa4on when it has to
request another State for extradi4on in respect of those oMences which do not Fnd a place
in the list of crimes embodied in a treaty. In order to overcome the above diRculty it is
desirable that instead of laying down the names of various crimes speciFcally in the
trea4es, some general criterion should be adopted. For instance, any oMence punishable
with a deFnite minimum penalty under the laws of both the States should eligible a
person for extradi4on appears to be more appropriate.
4. Rule of Speciality: According to this principle, a fugi4ve may be tried by the reques4ng
State only for that oMence for which he has been extradited. In other words, the
reques4ng State is under a duty not to try or punish the fugi4ve criminal for any other
oMence than that for which he has been extradited unless he has given an opportunity to
return to the territorial State. The rule has been made to provide safeguard to the
fugi4ves against fraudulent extradi4on. The rule of speciality is an established principle of
interna4onal law rela4ng to extradi4on.
5. Prima Facie Evidence: There should be a prima facie evidence of the guilt of the accused.
Before a person is extradited, the territorial State must sa4sfy itself that there is a prima
facie evidence against the accused for which extradi4on is demanded. The purpose of
laying down the rule of prima facie evidence is to check the fraudulent extradi4on.
6. Time-barred Crimes: A fugi4ve criminal shall not be surrendered, if he has been tried and
has served sentence for the oMence commiYed in the territorial State. Thus, extradi4on is
not granted if the oMence for which extradi4on has to be made has become 4me-barred.
7. Extradi4on of Own Na4onals: In many cases, a person a[er commi\ng a crime in a
foreign country ]ees back to his own country. Whether a State would extradite such
persons, i.e., its own na4onals, to a State where crime has been commiYed is a
controversial point and prac4ce of States considerably diMers on it. Na4onals may be
extradited if there is no bar in the na4onal extradi4on law or the treaty.
8. Military OMenders: Extradi4on trea4es generally exclude military oMences. Broadly,
military oMences fall into two categories, i.e., those which cons4tute oMences under
ordinary criminal law and those which relate speciFcally to military maYers. Only the

second category quali1es as military o3ences in respect of which extradi9on will not
apply.
9. For religious crimes also persons are not extradited.
10. For extradi9on, it is also necessary that certain other prescribed formali9es should be
ful1lled.
Cases:
Veer Savarkar case (1911): Savarkar was an Indian revolu9onary who was being brought to India
to be prosecuted on the ground of crimes which he was alleged to have commiJed. When the
ship was in the port of Marcelese, Savarkar escaped, but later on, he was apprehended by French
police. But the Captain of the French ship returned Savarkar to the Captain of the Bri9sh ship.
Sucha Singh’s case: Sucha Singh was accused of murdering Pratap Singh Kairon, the former
Chief Minister of Punjab and had Red away to Nepal and on the request of the Government of
India, the Government of Nepal aUer star9ng proceedings against him in accordance with the law
of Nepal, extradited him.
5. FREEDOMS OF HIGH SEAS.

Answer: High Seas: By the term, ‘high seas’ is meant under the customary rule of Interna9onal
Law that part of the sea which is not included in the territorial waters. The rule was formulated in
1609 by Gro9us in his trea9se Mare Liberum by arguing that the sea cannot be owned. According
to him ‘the sea is one of those things which is not an ar9cle of merchandise, and which cannot
become private property’. Hence, it follows to speak strictly, that no part of the sea can be
considered as the territory of any people whatsoever. However, the regime of the high seas has
been considerably changed under the Conven9on on the law of the Sea of 1982 which lays down
under Ar9cle 86 that all parts of the sea that are not included in the
 Exclusive economic zone
 Territorial sea
 Internal waters of a state
 Archipelagic waters of an archipelagic State (a group of islands).
Thus, the area of the high seas has been substan9ally reduced under the Conven9on of 1982.
Freedoms of the High Seas: Under the customary rule of Interna9onal Law, high seas were free
and open to all States both for coastal and non-coastal States. ‘Freedom of the high sea’ was a
well-recognized principle which means that the high seas being common to all States, no State
may purport to subject any part of them to its territorial sovereignty. Since the open sea is not the
territory of any State, no State, as a rule, has a right to exercise its legisla9on, administra9on,
jurisdic9on or police over parts of the high seas. Further, since the high seas can never be under
the sovereignty of any State, no State has a right to acquire parts of the high seas through
occupa9on.
Although the open sea is not the territory of any State, it is nevertheless an object of the law of
na9ons. Legal order was created through the co-opera9on of the law of na9ons and the municipal
laws of such States as possess a mari9me Rag. The following rules of the law of na9ons were
universally recognised.
Firstly: That every state which has a mari9me Rag must lay down rules according to which vessels
can claim to sail under its Rags, and must furnish such vessels with some ofcial voucher
authorising them to make use of its Rag;
Secondly: Every state has a right to punish all such foreign vessels as sail under its Rag without
being authorised to do so;
Thirdly: All vessels with their persons and goods are, whilst on the open sea, considered under the
sway of the Rag state;
Fourthly: Every state has a right to punish piracy on the open sea even if commiJed by foreigners,
and that, with a view to the ex9nc9on of piracy, warships of all na9ons can acquire all subject
vessels to show their Rag.

States had freedoms of high seas as to:
1. Naviga4on,
2. Fisheries,
3. Conduc4ng scien4=c research,
4. Laying submarine cables and pipelines,
5. Freedom of overEight.
It was established that all vessels, public or private, on the high seas were subject to the
jurisdic4on of the State under the Eag of which they might sail. The Conven4on on the Law of the
Sea of 1982 under Ar4cle 87 has reaNrmed that the high seas are open to all States, whether
coastal or land-locked. However, its freedom shall be exercised under the condi4ons laid down by
this Conven4on and by other rules of Interna4onal Law.
6. OUTER SPACE TREATY, 1967

Answer:
Outer Space
Outer space may be de=ned as that area of the universe where the atmosphere of the earth
ends. In other words, where aerial sovereignty of the States ends, outer space begins. It includes
all space above the lowest perigee (the point in the orbit of a satellite at which it is nearest to the
earth) achieved by any satellite put into orbit. Celes4al bodies and the moon also form parts of
the space.
Law on Outer Space
The topic of outer space acquired importance in Interna4onal law when the =rst Sputnik was
launched in the orbit by the U.S.S.R. on October 4, 1957. Since then a number of manned and
unmanned satellites and probes into outer space and celes4al bodies have been launched by some
other States as well. The acts of di\erent States in the outer space led to the United Na4ons to
make rules and regula4ons in this part of the universe. The law which has been made to regulate
the rela4ons amongst the States and their rela4onship with interna4onal organiza4ons in the
sphere of outer space, celes4al bodies and Moon is called ‘Space Law’.
Outer Space Treaty of 1967:
On December 19, 1966, the General Assembly through a resolu4on adopted the test of the
Treaty on Principles Governing the Ac4vi4es of States in the Explora4on and Use of Outer Space,
including the Moon and Celes4al Bodies. The resolu4on was adopted unanimously. It is to be
noted that most of the principles included in the Declara4on adopted in 1963 were incorporated
in the Treaty. The Treaty was opened for signature on January 27, 1967, and came into force on
October 20, 1967. As of May 2017, 106 States are par4es to the Treaty. However, the Treaty is
binding not only to those States which are par4es to it but all the States in view of the fact that
the rules regarding the outer space had cropped up as a customary rule of Interna4onal Law.
The Treaty was a landmark on the road towards the establishment of a legal regime of outer
space. The above Treaty, commonly known as Outer Space Treaty laid down many principles
rela4ng to the ac4vi4es on outer space, celes4al bodies and the Moon. Notable amongst them
are the following:-
1. Freedom of Explora>on of Outer Space:
Ar4cle 1 of the Treaty provided that Outer Space, including the Moon and other celes4al
bodies, shall be free for explora4on and use by all States without discrimina4on of any kind, on
the basis of equality and, in accordance with Interna4onal Law, and there shall be free access to

all areas of celes*al bodies. Ar*cle I also provided that the explora*on and use of outer space
including the Moon and other celes*al bodies shall be carried out for the bene:t and in the
interests of all countries, irrespec*ve of their degree of economic or social development, and shall
be the province of all mankind.
2. Non-Appropria-on of Outer Space:
While out space is free for the explora*on and use for all the States, Ar*cle II provided that the
area cannot be appropriated by any State. No State can claim sovereignty over them by means of
use or occupa*on or by any other means.
3. Peaceful uses of Outer Space:
Part II of Ar*cle IV of the Treaty provides that outer space, the moon and other celes*al bodies
shall be used by the States exclusively for peaceful purposes. Thus, the establishment of military
bases, installa*ons and for*:ca*ons, the tes*ng of any type of weapons and the conduct of
military manoeuvres on celes*al bodies shall be forbidden.
4. Jurisdic-on of States over Objects Launched:
The Treaty under Ar*cle VIII down that a State Party to the treaty on whose registry an object
launched into outer space is carried shall retain jurisdic*on and control over them, and over any
personnel thereof while in outer space or on a celes*al body.
5. Interna-onal Responsibili-es for Na-onal Ac-vi-es:
The Treaty established the States interna*onal responsibility for all na*onal ac*vi*es in outer
space carried out by both Government and non-governmental agencies. When the ac*vi*es are
carried on in outer space, by an interna*onal organisa*on, responsibility for compliance with this
Treaty shall be borne by the interna*onal organisa*on and by the State par*es to the Treaty
par*cipa*ng in such organisa*on.
6. Assistance to Personnel of SpacecraF:
Ar*cle V of the Treaty provided that State par*es to the Treaty shall regard astronauts, as an
envoy of mankind in outer space. They shall render them all possible assistance in the event of
accident, distress or emergency landing on the territory of another State Party. When astronauts
make such a landing, they shall be safely and promptly returned to the State of registry of their
space vehicle.
7. Promo-on of Interna-onal Co-opera-on in the Use of Outer Space:
Ar*cle X of the Treaty provided to the State Par*es to the Treaty to consider on a basis of
equality any requests by other State Par*es to the Treaty to be aKorded an opportunity to
observe the Light of space objects launched by other States.
7. GIVE AN ACCOUNT OF THE SECURITY COUNCIL AND VETO AND DOUBLE VETO.
Answer: Security Council is a principal organ of the United Na*ons. Chapter V of the Charter
consis*ng of Ar*cles 23 to 27 lays down the provisions rela*ng to the Security Council.
Composi-on:
The Council originally consisted of eleven members, but it was enlarged to :\een members in
1965 in accordance with an amendment to the Charter. Out of :\een members, :ve are
permanent members. Their names are men*oned under Ar*cle 23, Para 1 of the Charter. They
are China, France, Russia, the United Kingdom and the United States of America.

The other ten members of the Security Council are called non-permanent members. They are
elected by the General Assembly for a term of two years, but each year elec=on of >ve members
take place when the equal number of members re=res aBer comple=ng the term of two years.
The above system was adopted so that there may not be complete renewal of all the non-
permanent members. According to the last sentence of Ar=cle 23, Para 2, a re=ring member is not
eligible for immediate re-elec=on, and therefore many States are eligible for the membership of
the Council. Each member of the Security Council shall have one representa=ve in the Council at
all its mee=ngs.
Func&ons of the Security Council:
Func=ons of the Security Council may be divided into three broad categories. They are as
follows:-
1. Maintenance of Interna=onal Peace and Security:
The Maintenance of interna=onal peace and security is the primary responsibility of the
Security Council. The power has been conferred to it under Ar=cle 24, Para 1 of the Charter.
The Council performs the func=ons rela=ng to the maintenance of interna=onal peace and
security in two ways, i.e., by peaceful means and by taking enforcement ac=on.
A. By Peaceful Means: Chapter VI of the Charter provides the various modes by which the
Council sePles the disputes which are likely to endanger interna=onal peace and security.
If the Security Council determines that a dispute might endanger interna=onal peace and
security, it may take the following measures to sePle the dispute:
(i). To call upon the par=es to sePle the dispute peacefully,
(ii). Inves=ga=on of the Dispute,
(iii). Recommenda=on for the ‘Appropriate Procedures or methods of Adjustment,
(iv). Recommenda=on for the terms of the sePlement,
B. By taking Enforcement Ac=on: Once the Council has determined that there is a threat to
peace or breach of the peace or an act of aggression has been commiPed, it is empowered
to take enforcement ac=on under Chapter VII of the Charter.
When the Security Council has determined that the threat to the peace, breach of the
peace or any act of aggression exists, it decides as to what measures are to be taken in
accordance with Ar=cles 41 and 42, to maintain or restore interna=onal peace and
security. These measures are as follows:
(i). Measures involving non-use of force,
(iii). Measures involving the use of armed force,
2. Miscellaneous Func=ons:
Besides performing its main responsibility for maintaining interna=onal peace and security, the
Council performs a number of other func=ons which have been conferred to it under the Charter.
Such func=ons are as follows:
A. Recommending the assembly for admission of a new member,
B. Suspending or expel a member,
C. Control the strategic area of the trust territories,
D. Amendment of Trusteeship agreements,
E. Appointment of Secretary-General of the United Na=ons,
F. Conveying a special session or an emergency special session of the General Assembly,
G. Establishing subsidiary organs.
3. Func=ons in Rela=on to Interna=onal Court of Jus=ce:
The Interna=onal Court of Jus=ce is the ‘principal judicial organ’ of the United Na=ons. The
Court performs its func=ons in accordance with the provisions of the Statute which is an integral
part of the Charter.

Veto
The United Na,ons Security Council "veto power" refers to the power of the ;ve permanent
members of the UN Security Council to veto any "substan,ve" resolu,on. However, a permanent
member's absten,on or absence does not prevent a draB resolu,on from being adopted. This
veto power does not apply to "procedural" votes, as determined by the permanent members
themselves. A permanent member can also block the selec,on of a Secretary-General, although a
formal veto is unnecessary since the vote is taken behind closed doors.
Veto Power, Ar,cle 27, Para 3 s,pulates that the decisions on non-procedural maMers shall be
taken on a vote of nine members of the Council including the concurring votes of the permanent
members. It means that no decision can be taken by the Council on such maMers if a dissen,ng
vote is given by any permanent member. It implies that if a permanent member wishes that no
decision should be taken by the Council on any par,cular issue, it has a power to do so by giving
dissen,ng vote. Thus, by giving a dissen,ng vote a permanent member has a power to block the
issue in the Council. In other words, if the concurring vote is withheld by any permanent member
the proposal shall be deemed vetoed, i.e., it could not be validly adopted. This power of the
permanent members is known as the veto power. However, the term 'veto' does not ;nd a place
in the Charter of the United Na,ons.
The veto power is controversial. Supporters regard it as a promoter of interna,onal stability, a
check against military interven,ons and a cri,cal safeguard against US domina,on. Cri,cs say
that the veto is the most undemocra,c element of the UN, as well as the main cause of inac,on
on war crimes and crimes against humanity, and is rendered mostly useless against notable
human rights abuses of larger powers like the United States, China and Russia.
Double Veto
The right of veto may be exercised by the permanent members of the Security Council on two
diQerent occasions.
Firstly, at the ,me of deciding the nature of maMer, i.e., whether the maMer is procedural or non-
procedural. If the President of the Council decides that a par,cular maMer is procedural, it
becomes non-procedural if the veto power is exercised on the decision of the President. And
secondly, when the Council is deciding on any non-procedural maMer. Thus, a permanent member
;rst asserts that the maMer is not a procedural but a non-procedural maMer. It, therefore, makes
a maMer non-procedural from procedural by exercising the veto power. When a maMer becomes
non-procedural, it may again exercise the veto power at the ,me of deciding on that very maMer.
The combined eQect of the above is that the Council cannot take a decision even on procedural
maMers if the same has been made non-procedural by the exercise of the right of veto by any
permanent member. The exercise of veto power on two diQerent occasions has been referred to
as ‘double veto’. The right of double veto was exercised by Russia in the Spanish case,
Czechoslovak case, and in the Greek case. In the Formosa case and the Laos case it was aMempted
but not actually exercised.
LONG ANSWERS
8. WHAT ARE THE SOURCES OF INTERNATIONAL LAW (CUSTOM IS VERY IMPORTANT)

Answer: it is an obliga0on on the subjects of Interna0onal Law to observe the rules of

Interna0onal Law. A ques0on arises as to from where such rules have come into existence in
Interna0onal Law? Methods by which these rules have been discovered or created are known as
the sources of Interna0onal Law. In the absence of any codiBed law on the sources of
Interna0onal Law, Ar0cle 38 of the Statute of the Interna0onal Court of Jus0ce has shed some
light on this.
Following are the sources of Interna3onal Law:
1. Custom: Custom is the original and the oldest source of Interna0onal Law and at a 0me it
was the most important amongst the sources. Custom is the founda0on stone of the
modern Interna0onal Law. It was so because a large part of Interna0onal Law consisted of
customary rules. Oppenheim deBnes custom as a clear and con0nuous habit of doing
certain ac0ons which have grown up under the aegis of the convic0on that these ac0ons
are, according to Interna0onal Law, obligatory or right. They evolve through the prac0ces
of and usages of na0ons and their recogni0on by the community of na0ons. Customary
rules are referred to those rules which are prac0sed by most of the States, if not by all,
through ages by way of habit.
Forma0on of a Customary Rule: Customary Interna0onal Law results from a general and
consistent prac0ce of States which is followed by them from a sense of legal obliga0on. A
ques0on arises as to when a general prac0ce or usage is regarded as to have transformed
into a customary rule? Since custom is not a law crea0ng fact customary rules do not grow
up by themselves. It is a necessary condi0on for the crea0on of a customary rule that at
least some States should ini0ate that a par0cular rule exists.
In order to establish the existence of an interna0onal custom, primarily three elements
are required to be present which are dura0on, con0nuity and generality.
A. Dura0on: when a par0cular usage is prac0sed by the States for a long dura0on, it has
a tendency to become custom.
B. Uniformity or Consistency: A prac0ce is required to be followed consistently by the
States. In the words of the Permanent Court of Interna0onal Jus0ce in the Lotus case,
the prac0ce should be ‘constant and uniform’.
C. Generality: It is essen0al that usage should be prac0sed by most of the States in order
to transform into a custom. The above implies that there is no rule which prescribes
that the consent of all States is a necessary condi0on for the forma0on of a customary
rule.
It is an important maVer to see as to how interna0onal custom will be applied in
interna0onal law. There are two leading cases on the point:
(a). West Rand Central Gold Mining Company Ltd. V. R (1905) – In this case, a test
regarding the general recogni0on of custom was laid down. The Court ruled that for a
valid interna0onal custom it is necessary that it should be proved by sa0sfactory evidence
that the custom is of such nature that it has received general consent of the States and no
civilized State shall oppose it.
In a case concerning Military and Para-military Ac0vi0es in and against Nicaragua, the
World Court observed:
“If a state acts in a way prima facie incompa0ble with a recognized rule, but defends its
conduct by appealing to excep0ons or jus0Bca0ons contained within the rule itself, then,
whether or not the state’s conduct is, in fact, jus0Bable on that basis, the signiBcance of
that actude is to conBrm rather than to weaken the rule”.
(b). Right of Passage over Indian Territory case [Portugal v. India]. In this case, the
Interna0onal Court of Jus0ce pointed out that when in regard to any maVer or prac0se,
two States follow it repeatedly for a long 0me, and it becomes a binding customary rule.

2. Trea'es: At present, interna'onal trea'es are the most important source of Interna'onal
Law. Ar'cle 38(1)(a) of the Statute of the Interna'onal Court of Jus'ce lays down that the
Court while deciding any dispute shall apply internal conven'ons, whether general or
par'cular, establishing rules expressly recognised by the contes'ng States, in preference
to other sources of Interna'onal Law. Trea'es, therefore, have acquired dominant
importance in Interna'onal Law.
3. General Principles of Law Recognised by the Civilized Na'ons: Although custom and
trea'es are in prac'ce the principal sources of Interna'onal Law, they cannot be regarded
as its only sources. General principles of law recognised by civilized na'ons were inserted
under Ar'cle 38(3) of the Statute of the Permanent Court of Interna'onal Jus'ce. The
same text has been included under Ar'cle 38(1)(C) of the Statute of the Interna'onal
Court of Jus'ce.
Examples of principles which have been recognised are good faith, reciprocity,
presump'on, estoppel and res judicata.
4. Judicial Decisions: Judicial decisions are the subsidiary means for the determina'on of
rules of law and they, therefore, are the subsidiary and indirect source of Interna'onal
law. It is so because the decisions of the courts do not create any precedent. They have
no binding force except to the par'es to a par'cular case. However, ‘subsidiary’ does not
mean secondary. In many areas of interna'onal law judicial decisions cons'tute the best
means of ascertainment of what the law is.
5. Wri'ngs of Jurists: The Statute of the Interna'onal Court of Jus'ce lays down that the
teachings of the most highly qualiXed publicists of the various na'ons are a subsidiary
means for the determina'on of rules of law.
6. Equity: The term, as a source of Interna'onal Law, is used in the sense of considera'ons
of fairness, reasonableness and policy oZen necessary for the sensible applica'on of the
more se[led rules of law.
7. Resolu'ons of the General Assembly: Resolu'ons of the General Assembly of the United
Na'ons do not possess legal character, and as such are not binding on the States. They do
not create any legal obliga'ons on its members irrespec've of the fact that they have
been adopted unanimously or by overwhelming votes or even if their contents are ma[ers
of common interest to all the States.
9. INTERNATIONAL LAW IS NOT LAW IN THE STRICT SENSE (INTERNATIONAL LAW IS THE
VANISHING POINT OF JURISPRUDENCE).
Answer: There is a controversy as to the true nature of Interna'onal law. Some jurists regard it as
a law while some other jurists argue in nega've and hold that Interna'onal law is not a true law.
Meaning: The expression ‘Interna'onal Law’ was coined for the Xrst 'me by Jeremy Bentham in
1780. The term Interna'onal Law is synonymous with the term law of na'ons. It is a body of rules
and principles which regulate the conduct and rela'ons of the members of the interna'onal
community. Interna'onal law is the set of rules generally regarded and accepted as binding in
rela'ons between states and na'ons. It serves as the indispensable framework for the prac'ce of
stable and organized interna'onal rela'ons. Interna'onal law dieers from na'onal legal systems
in that it primarily concerns na'ons rather than private ci'zens.
Aim of Interna0onal Law: Interna'onal law aims to achieve:-

 Interna'onal peace and security and

 Promo%on of friendly rela%ons among the member states (the members of the
Interna%onal Community i.e. United Na%ons).
De$ni'on: It is very di=cult to de?ne Interna%onal Law. There are many de?ni%ons given by the
scholars, subject experts and interna%onal jurists. Prominent among them are given below:
 Prof. L. Oppenheim- Law of Na%ons or Interna%onal Law is the name for the body of
customary and conven%onal rules which are considered legally binding by the civilized
states in their intercourse with each other.
 J.L. Brierly- The Law of Na%ons or Interna%onal Law may be de?ned as the body of rules
and principles of ac%on, which are binding upon civilized states in their rela%ons with one
another.
 Torsten Gihl- The term Interna%onal Law means the body of rules of law, which apply
within the Interna%onal Community or society of Sates.
 In Queen v. Keyn, 2 Ex. D. 63, 153, 154 (1876). LORD COLERIDGE, C.J., de?ned Interna%onal
law in the following words: “The law of na%ons is that collec%on of usages which civilized
States have agreed to observe in their dealings with one another.”
 Gray says Interna%onal law or the Law of Na%ons is the name of a body of rules which
according to their usual de?ni%ons regulate the conduct of states in their intercourse with
each other.
Public and Private Interna'onal Law: Interna%onal law may further be broken down as
public or private. Public Interna%onal law covers the rules, laws and customs that govern and
monitor the conduct and dealings between na%ons and/or their ci%zens. The UN deals largely with
public interna%onal law. Private Interna%onal law (Conìct of laws) handles disputes between
private ci%zens of diaerent na%ons.
Public interna'onal law concerns the treaty rela%onships between the na%ons and persons
which are considered the subjects of interna%onal law. Norms of interna%onal law have their
source in either:
 Custom, or customary interna%onal law (consistent provincial prac%ce accompanied by
opinio Juris),
 Globally accepted standards of behaviour (peremptory norms known as jus cogens or ius
cogens), or
 Codi?ca%ons contained in conven%onal agreements, generally termed trea%es.
Ar%cle 13 of the United Na%ons Charter obligates the UN General Assembly to ini%ate studies and
make recommenda%ons which encourage the progressive development of interna%onal law and
its codi?ca%on. Evidence of consensus or state prac%ce can some%mes be derived from
intergovernmental resolu%ons or academic and expert legal opinions (some%mes collec%vely
termed soc law). Public Interna%onal Law is commonly known as Interna%onal Law or Law of
Na%ons. As discussed earlier, it regulates the rela%ons among the members of the interna%onal
community which includes individuals also.
Private Interna'onal Law , on the other hand, is that branch of Interna%onal Law, which
determines or decides law applicable to the disputes or issues involving more than one na%on and
determines the court having jurisdic%on to decide the issue. Private Interna%onal Law is
essen%ally a part of municipal law. Dicey calls it ‘Conìct of Laws’ since it deals with rules
regula%ng cases in which municipal laws of diaerent states or na%ons come into conìct. Such

con$icts may arise with regard to domicile, marriage, divorce, wills, contracts etc. Hence, its also
called as inter-municipal law.
Is Interna)onal Law a True Law….? There had been a great controversy as to the ques=on,
whether interna=onal law is a law or not. Some answered the ques=on in a?rma=ve while others
in nega=ve. These two views can be explained as under-
Not a Law- Supporters of this view are-
 John Aus=n- a leading English writer on Jurisprudence answered the ques=on in nega=ve.
According to him, Interna=onal Law is not a true law, but a code of rules and conduct of
moral force only. He holds that Interna=onal Law is no law as it does not emanate from a
law giving authority and has no sanc=on behind it. Aus=n described Interna=onal Law as
posi=ve interna=onal morality consis=ng of opinion or sen=ments current among na=ons
generally.
 Hobbes and Pufendorf- also answered the ques=on in nega=ve by saying that there is no
posi=ve law of na=ons properly invested with true legal force and binding as the
command of a superior.
 Holland- observed that Interna=onal Law diHered from ordinary law and not supported by
the authority of a state. According to him, the law of na=ons is but private law ‘writ large’.
In this view of the maKer, he called “Interna=onal Law as the vanishing point of
Jurisprudence”. According to him, rules of Interna=onal Law cannot be kept into the
category of law because it lacks sanc=on, which is an essen=al element of municipal law.
 Jeremy Bentham and Jethro Brown are the other prominent jurists who also deny the legal
character Interna=onal Law.
Interna)onal Law Is a Law- supporters of this view are-
 Hall and Lawrence, on the other hand, answered the ques=on in a?rma=ve. According to
them, Interna=onal Law is habitually treated and enforced as law, like certain kind of
posi=ve law; it is derived from custom and precedent which form a source of Interna=onal
Law.
 PiK CobbeK observed that Interna=onal Law must rank with the law and not with
morality.
 Sir Frederick Pollock writes the only essen=al condi=ons for the existence of law are the
existence of poli=cal community and the recogni=on by its members of seKled rules
binding upon them in that capacity. Interna=onal Law seems on the whole to sa=sfy these
condi=ons.
Thus it is clear from the above discussion that the solu=on for the above ques=on depends
upon the deTni=on of law, which one may choose to adopt.
10. RELATION BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW.

Answer:
Introduc)on:

Apparently, there seems no rela0onship between interna0onal law and municipal law. But if
examined with philosophical eve then it would seem that there is a rela0onship between both the
legal orders. The test to observe the rela0onship between the two systems may be conducted in
case of a con>ict between the two legal orders. The situa0on would arise that what law shall be
applicable to the case in ques0on.
Rela&onship between Municipal Law and Interna&onal Law :
As to the rela0onship between Municipal Law and Interna0onal Law, there are many theories the
most prominent ones of which may be discussed as under:
1. Dualis.c theory:
Dualists emphasize the diFerence between na0onal and interna0onal law and require the
transla0on of the laGer into the former. Without this transla0on, interna0onal law does not exist
as law. Interna0onal law has to be na0onal law as well, or it is no law at all. If a state accepts a
treaty but does not adapt its na0onal law in order to conform to the treaty or does not create a
na0onal law explicitly incorpora0ng the treaty, then it violates interna0onal law. But one cannot
claim that the treaty has become part of na0onal law. Ci0zens cannot rely on it and judges cannot
apply it. Na0onal laws that contradict it remain in force. According to dualists, na0onal judges
never apply interna0onal law; only interna0onal law that has been translated into na0onal law
will be applied.
According to the dualist view, the systems of Interna0onal Law and Municipal Law are separate
and self-contained to the extent to which rules of the one are not expressly or tacitly received into
the other system. In the Nrst place, they diFer as regards their sources. The sources of Municipal
Law are customs grown up within the boundaries of the State concerned and statutes enacted
therein while the sources of Interna0onal Law are customs grown up within the Family of Na0ons
and law-making trea0es concluded by its members. In the second place, Municipal Laws regulate
rela0ons between the individuals under the sway of a State or between the individuals and the
State while Interna0onal Law regulates rela0ons between the member States of the Family of
Na0ons.
Lastly, there is a diFerence with regard to the substance of the law in as much as Municipal Law
is a law of the sovereign over individuals while Interna0onal Law is a law between sovereign
States which is arrived at an agreement among them. The laGer is, therefore, a weak law
2. Monis.c theory:
Monists assume that the internal and interna0onal legal systems form a unity.
Both na0onal legal rules and interna0onal rules that a state has accepted, for example by way of
a treaty, determine whether ac0ons are legal or illegal. In most monist states, a dis0nc0on
between interna0onal law in the form of trea0es, and other interna0onal law, e.g. jus cogens is
made. Interna0onal law does not need to be translated into na0onal law. The act of ra0fying
interna0onal law immediately incorporates the law into na0onal law.
A judge can declare a na0onal rule invalid if it contradicts interna0onal rules because, in some
states, the laGer has priority. In other states, like in Germany, trea0es have the same eFect as
legisla0on, and by the principle of lex posterior, only take precedence over na0onal legisla0on
enacted before their ra0Nca0on.

In its most pure form, monism dictates that na3onal law that contradicts interna3onal law is
null and void, even if it predates interna3onal law, and even if it is the cons3tu3on. It maintains
that the subject of the two systems of law namely, Interna3onal Law and Municipal Law are
essen3ally one in as much as the former regulates the conduct of States, while the la?er of
individuals.
According to this view, the law is essen3ally a command binding upon the subjects of the law
independent of their will which is one case in the States and the other individuals.
According to it Interna3onal Law and Municipal Law are two phases of one and the same thing.
The former although directly addressed to the States as corporate bodies are as well applicable to
individuals for States are only groups of individuals.
3. Transforma.on Theory:
According to this theory, it is the transforma3on of the treaty into na3onal legisla3on which
alone validates the extension to individuals of the rules set out in interna3onal agreements. The
transforma3on is not merely a formal but substan3al requirement. Interna3onal Law according to
this theory cannot Dnd a place in the na3onal or Municipal Law unless the la?er allows its
machinery to be used for that purpose.
This theory is fallacious (based on a false idea, in-correct or wrong) in several respects.
1. In the Drst place, its premise that Interna3onal Law and Municipal Law are two dis3nct
systems is incorrect.
2. In the second place the second premise that Interna3onal Law binds States only whereas
municipal law applies to individuals is also incorrect for Interna3onal Law is the sum of the
rules which have been accepted by civilized states as determining their conduct towards
each other and towards each other’s subjects.
3. In the third place, the theory regards the transforma3on of trea3es into na3onal law for
their enforcement. This is not true in all cases for the prac3ce of transforming trea3es into
na3onal legisla3on is not uniform in all the countries. And this is certainly not true in the
case of law-making trea3es.
4. Delega.on Theory:
According to this theory, there is the delega3on of a right to every State to decide for itself
when the provisions of a treaty or conven3on are to come into eLect and in what manner they are
to be incorporated in the law of the land or municipal law. There is no need for transforma3on of
a treaty into na3onal law but the act is merely an extension of one single act. The delega3on
theory is incomplete for it does not sa3sfactorily meet the main argument of the transforma3on
theory. It assumes the primacy of interna3onal legal order but fails to explain the rela3ons
exis3ng between municipal and interna3onal laws.
It is se?led by the leading English and American decisions that Interna3onal Law forms part of
the municipal law of those countries. The United States has unambiguously applied the doctrine
that Interna3onal Law is part of the law of the land.
All interna3onal conven3ons ra3Ded by the USA and such customary Interna3onal Law as has
received the assent of the United States are binding upon American Courts even if they may be

contrary to the statutory provisions. There is a presump3on in cases of con5ict that the United
States Congress did not intend to overrule Interna3onal Law.
11. WHAT IS STATE SUCCESSION? EXPLAIN DIFFERENT KINDS OF STATE SUCCESSION.
Answer: ‘State succession’ is meant the subs3tu3on of one State by another over territory. It
signiQes the transfer of rights and du3es from one interna3onal person to another in consequence
of a territorial change. Oppenheim lays down that ‘a succession of interna3onal persons occurs
when one or more interna3onal persons take the place of another interna3onal person, in
consequence of certain changes in the laUer’s condi3on. The Vienna Conven3on on Succession of
States in Respect of Trea3es of 1978 deQnes State succession likewise by sta3ng under Ar3cle 2(1)
(a) as the replacement of one State by another in the responsibility for the interna3onal rela3ons
of territory. Thus, a case of succession arises only when one subject of Interna3onal Law enters
into rights of another.
The deQni3on applies to all the cases of State succession except to that of mandate or trust
territory when it is not sovereignty but a special type of legal competence is replaced. A State
which has replaced another is called the ‘Successor State’, or in some case ‘new State’. However,
the expressions ‘Successor State’ and ‘new State’ are not synonymous. The former is wider in the
applica3on. The term ‘new State’ signiQes a State which has arisen from succession were a
territory, which previously formed part of an exis3ng State, has become an independent State.
The State which has been replaced is known as the ‘parent’ of ‘Predecessor State’.
Kinds of State Succession:

State succession may occur in a number of ways, for instance, dismemberment of an exis3ng
State, secession, annexa3on, cession, merger and decoloniza3on of all or parts of an exis3ng
State. The above may be divided broadly into universal succession and par3al succession.
1. Universal Succession:
In cases where the personality of the Predecessor State is completely destroyed and is
absorbed by another interna3onal person, the succession is termed ‘universal’ or total. It may
take place either through a voluntary merger or through annexa3on or subjuga3on. Thus, it was
total succession when Prussia annexed Hanover in 1866 or the South African Republic was
annexed by Great Britain in 1901, Korea by Japan in 1910, Austria by Germany in 1938. Universal
succession also takes place when a State voluntarily merges with another State. UniQca3on of
Germany with the result of the merger of German Democra3c Republic with the Federal Republic
of Germany in 1990 is an instance of universal succession.
2. Par.al Succession:
When a part of the territory is severed from the parent State and personality is afected only to
the extent by which the territory is transferred, what results is par3al succession. Par3al
succession takes place, for instance, either by succession, i.e., separa3on from the parent State, or
by cession, or by conquest and annexa3on of a part, or by dismemberment i.e., when a State is
replaced by two or more States. The secession of Estonia, Latvia and Lithuania in 1991 from the
U.S.S.R. of Slovenia and Croa3a from Yugoslavia in 1992, crea3on of Bangladesh by severing part
of Pakistan and South Sudan from Sudan in 2011 are the examples of par3al succession. Further,
replacement of the Soviet Union by 12 sovereign States in December 1991 and the replacement of
Czechoslovakia by the Czech Republic and the Slovak Republic on January 1, 1993, are the
examples of the par3al succession.
It is to be noted that in both types of State succession there is a common factor, i.e., one or
more sovereigns subs3tute for another, and therefore, the dis3nc3on is merely an abbreviated
way of deQning the extent of the change and the transmission of the rights and obliga3ons of the
old State to the new State.

12. MODES OF ACQUIRING STATE TERRITORY

Answer: Acquisi?on of a territory by a State means the acquisi?on of sovereignty over such
territory. An exis?ng State may acquire the territory which may already be under the sovereignty
of another State or which may not belong to any State, i.e., res nullius. While the former is called
the deriva?ve mode of acquisi?on wherein acquisi?on enlarges the territory of one State and
which inversely is the loss of another State, the laOer is called original mode of acquisi?on
wherein territory of one State is enlarged without the loss of the territory by another State.
Following are the di6erent modes by which a State may acquire territory:-
1. Occupa.on:
The term ‘occupa?on’ has been derived from the Roman term occupa?on which means the
acquisi?on of res nullius, i.e., a territory capable of being brought under territorial sovereignty but
not yet so brought. In the same way, occupa?on in Interna?onal Law means an act of
appropria?on by a State over a territory which does not belong to any other State. Such territory
may be uninhabited such as an island, or maybe inhabited by persons whose community is not
considered as a State.
Possession and Administra?on are the two essen?al factors required to cons?tute an eUec?ve
occupa?on. For possession, the territory must be taken under the state’s sway (corpus) and with
the inten?on of acquiring sovereignty over it (animus). Possession generally involves a seOlement
and some sort of formal act which announces and shows the inten?on of the occupying state.
AYer taking possession, the state has to establish an administra?ve system within a reasonable
period of ?me. Administra?ve func?on is necessary because only then is the possessor state
exercising sovereignty over the territory.
2. Annexa.on:
By the term, ‘annexa?on’ is meant the forcible acquisi?on of territory by one State at the
expense of another. When a State annexes the territory-either en?re territory or a part of it, it
establishes its sovereignty over the annexed territory. In contrast to other methods of acquiring
territorial sovereignty or acquisi?on by an interna?onal legal transac?on, the element of force
plays a decisive role. An annexa?on can only be said to have taken place when not only the
territory in ques?on has been occupied but also the inten?on to appropriate it permanently has
been shown. The inten?on may be indicated by making some no?\ca?on to annex the territory
and the same must be recognized by several other powers.
3. Accre.on:
Accre?on is the name for the increase of land through new forma?ons. Such new forma?ons
may be only a modi\ca?on of the exis?ng state territory, for instance, where an island rises within
a river or a part of a river, which is totally within the territory of one and the same State; and in
such case, there is no increase of territory to correspond with the increase of land. New forma?on
through accre?on may be ar?\cial or natural. They are ar?\cial if they are the outcome of human
work. They are natural if they occur through the opera?on of nature, and within the sphere of
natural forma?ons diUerent kind must again be dis?nguished –namely, alluvions (adding to the
area of land by deposi?on), deltas, new-born islands and abandoned river-beds.
4. Prescrip.on:
Prescrip?on is the acquisi?on of territory by an adverse holding con?nued for a certain length
of ?me peacefully. If a State exercises control over a territory con?nuously for a long ?me
without any interrup?on and possess it de facto, the concerned territory becomes a part of that
State. The mode is known as a prescrip?on. Before the acquisi?on of a territory could be made

through prescrip-on, three condi-ons are required to be sa-s4ed. Firstly, possession of territory
should be peaceful and without any interrup-on. Secondly, it should be con-nuous, and thirdly,
possession should be held fairly for a long -me.
5. Cession:
Cession is the transfer of sovereignty over a de4nite territory by one State to another State.
Oppenheim de4nes cession of State territory as the transfer of sovereignty over State territory by
the Owner State to another State. The State to whom the territory is transferred is called
acquiring State, and the State which allows transferring its territory is referred to as ceding state.
6. Award:
Territory may be acquired by a state through adjudica-on by judicial organs such as
Interna-onal Court of Jus-ce, ad hoc arbitral tribunals or concilia-on commissions. If a given
territory, which is a part of one State, and later, aDer an objec-on is raised by another State, is
submiEed to the judicial organ for seElement which gives the award in favour of the laEer, the
-tle is regarded as to have passed through the award.
7. Plebiscite:
A State may also acquire territory if the inhabitants of a given territory wish to merge it with
another State. It may be noted that the ques-on of ascertaining the wishes of the people arises
where there is a dispute as to the status of a given territory.
8. Lease:
The territory may also be acquired through a lease. A State may give its territory to another
State under lease for a certain period. In the Panama Canal’s case, a lease was granted to the
United States in perpetuity. The United States was given the occupa-on and control of the area
concerned over and below the surface for the construc-on and protec-on of the canal.
9. Pledge:
Some-mes there arise certain circumstances under which a State becomes compelled to pledge
a part of its territory in return of some amount of money for which it is in dire need. In this case,
also, a part of sovereignty over the territory concerned is transferred. For example, in 1768, the
Republic of Geneo had pledged the island of Corsica to France.
10. Acquisi.on of territorial sovereignty by newly emerged State:

Yet another method of acquiring territorial sovereignty is that of a newly emerged State. This is
par-cularly true of those States who were previously the colonies of some States and later on
were liberated.
Modes of loss of state territory:

Acquisi-on of a State territory by one State, except in the case of occupa-on, is a loss of State
territory for another State. Thus, a State may lose territory by:
1. Secession,
2. Grant of Independence by the Metropolitan State,
3. Derelic-on (or Abandonment or Relinquishment),
4. Vanishment (or Disappearance).
5. Prescrip-on.
6. Revolt.
7. Subjuga-on.

13. EXPLAIN THE PRIVILEGES AND IMMUNITIES OF DIPLOMATIC ENVOYS (IMMUNITY FROM THE
LOCAL JURISDICTION IS IMPORTANT)
Answer:
The system of appointment of an agent to act as representaMve of king or ruler, for the purpose
of doing work in other countries or to perform some funcMon has been in vogue from Mme
immemorial.
This is the system in the internaMonal world, this type of person is known as 'DIPLOMATIC
REPRESENTATIVE' or 'DIPLOMATIC AGENT'. Special importance is given to such person in
internaMonal law. Such type of person has many immuniMes and privileges. And having some
duMes which are understood by a brief explanaMon as following as under-
CLASSIFICATION OF DIPLOMATIC AGENT-The diplomaMc agent has been classiXed according to
their status and funcMons, it was again dropped by 1961 convenMon on DiplomaMc relaMons.
The classification of diplomatic envoys is as follows:

1)-AMBASSADORS AND LEGATES- Ambassador and legates are the diplomaMc agents of the Xrst
category. They are the representaMves of the completely sovereign states. They are either
appointed as ambassador or permanent representaMve of their respecMve countries in the United
NaMons. The representaMves appointed by the pope are called legates.
2)-MINISTERS PLENI-POTENTIARY AND ENVOYS EXTRAORDINARY-Minister - pleni-potenMary and
envoys extraordinary are the diplomaMc agents of the second category and as compared to the
diplomaMc-agents of the Xrst category, they enjoy less privilege and immuniMes.
3)-CHARGE D’AFFAIRES-Charge-d-a_airs are the diplomaMc agents of the last category. The main
reason for this is that they are not appointed by the head of the state. They are appointed by the
foreign ministers of states. In right and status, they are considered below the minister resident.
It was made clear in ArMcle-14(2) of the Vienna ConvenMon on diplomaMc relaMon that apart
from precedent and eMquebe, there is hardly any di_erence between the diplomaMc agents of the
above-menMoned categories. Obviously, there is no di_erence so for as their privilege and
immunity are concerned.
Basis of Diploma.c immunity and privileges

Di_erent internaMonal jurists have divergent views as to the basis for giving immuniMes to
diplomaMc agents. Their views led to the emergence of three important theories which are as
follows:
 Extra-territorial Theory: This theory is also known as the XcMonal theory. According to this
theory, diplomaMc agents are considered not be within the territorial jurisdicMon of the
State to which they are accredited, but to all Mmes within that of the sending State. Extra-
territorially of diplomaMc agents means that though diplomats physically present upon the
soil of the country to which they are accredited but they remain for all purposes on the
soil to which they represent.
 Representa.onal Theory: According to this theory, diplomaMc agents are regarded as
personal representaMve of the sovereign of the sending State. Therefore, they are given
the same degree of privileges and rights which are given to the head of the sending State.
 Func.onal Theory: According to this theory, diplomaMc agents are given immuniMes
because of the nature of their funcMons. The duMes which the diplomats perform are far
from easy. In other words, their acMons of duMes are of typical or some special nature.
They are allowed immuniMes from the legal and other limitaMons of the State to which
they are accredited to e_ecMvely perform the tasks they are allobed.
IMMUNITIES AND PRIVILEGES OF DIPLOMATIC AGENTS-Several immuniMes and privileges have

been given to diploma/c agent under interna/onal law. S.S.DHAWAN has considered these
immuni/es and privileges the main base of interna/onal law. These immuni/es and privileges are
as follows-
1) – INVIOLABILITY (incapable of being violated) – It is a well-recognised principle of interna/onal

law that the person of Envoys in regarded inviolable. In interna/onal law, diploma/c agents have
been given suEcient personal security. This immunity is recognised under Vienna conven/on
1961. In Ar/cle 29 of the said conven/on, it has been said that "Diploma/c agents will enjoy
physical inviolability. He will not be liable to any form of arrest or deten/on. Honourable
treatment will be given to him by taking or keeping state and every eNort shall be made to
maintain his freedom and reputa/on as intact."
But if the behaviour and conduct of diploma/c agent are found to be objec/onable and if a charge
is imposed upon him of interference in internal aNairs of keeping state, then he may be declared
as PERSONA NON GRATA and may be asked to leave the country (Ar/cle- 9 and 43 of Vienna
conven/on 1961), Indian diploma/c agent in Pakistan RAJESH MITTAL was tortured by oEcers of
an intelligence agency of Pakistan on 25th may 1992 and with the result, India declared two
Pakistani diploma/c agents in India as PERSONA NON GRATA and was asked to leave India is a
good example of this.
2)-IMMUNITY FROM CIVIL ADMINISTRATIVE JURISDICTION- It is a well-established principle of

interna/onal law that the diploma/c agents enjoy immune from civil and administra/ve
jurisdic/on.
Under this immunity:-
1)- no suit can be _led against the diploma/c agent for recovery of debt.
2)- he cannot be arrested in ac/on for debt recovery.
3)- his property cannot be ceased and sold.
3)-IMMUNITY FROM CRIMINAL JURISDICTION -Diploma/c agents have also been given immunity
from criminal jurisdic/on. Under Ar/cle 31 of Vienna conven/on 1961, it has been provided that
"diploma/c agents shall be immune from the criminal jurisdic/on of the state". It means that the
keeping state shall not prosecute and penalise any diploma/c agent under any circumstance. Even
he cannot be arrested. But it does not mean that he can behave as he likes in keeping state. It is
his duty that he should obey all rules and laws of keeping state and should not do such an act
which is inconsistent with the internal system of keeping state. If any misconduct is done by him,
the keeping state may suspend him and ask him to leave the country.
For example- in 1995 the _rst secretary sultan Mahmood Dehadar in Afghan embassy was
suspended by government of India in Delhi in consequence of criminal charge and misconduct and
was sent back to Afghanistan. This immunity is not available to children and rela/ves of diploma/c
agents who are not residing with them.
4)-IMMUNITY REGARDING RESIDENCE-There is the inviolability of residence of a diploma/c agent.

Entry in house and even his house cannot be searched. If there is any person hidden in his house
to whom the police want to arrest, normally the diploma/c agent surrenders such person to the
police.
5)-IMMUNITY FROM GIVING EVIDENCE IN THE COURT-Diploma/c agent is immune from
presen/ng himself for giving evidence in the courts. He cannot be made bound for giving evidence
in the court. In Ar/cle-31(2) of Vienna conven/on, it has been said: "NO DIPLOMATIC AGENT WILL
BE MADE BOUND FOR GIVING evidence IN A COURT AS WITNESS". But if any diploma/c agent
wants to give evidence at his own then he will be allowed to present himself in a court for giving

evidence.
6)-IMMUNITY FROM PAYMENT OF TAXES-In interna.onal law, the diploma.c agent is immune
from payment of taxes and customs du.es. According to Ar.cle 34 and 36 of Vienna conven.on
"A DIPLOMATIC AGENT SHALL BE IMMUNE FROM PAYMENT OF ALL TYPES OF TAXES AND DUTIES".
But if any diploma.c agent wants to pay taxes in exchange for enjoyment of facili.es of water and
electricity he will be allowed to pay. But if he does not pay any tax, no legal ac.on will be taken
against him.
7) - IMMUNITY FROM POLICE RULES AND REGULATIONS-Diploma.c agents are immune from
police rules and regula.ons. If he obeys these rules: it will be treated as his good manners towards
the state for maintenance of good rela.ons.
8)-RIGHT OF WORSHIP AND DEVOTION TO GOD- Diploma.c agent have the right to worship
according to his own consciousness is his embassy. But he does not enjoy the right to preach his
own religion and to make the ci.zens of keeping states bound to par.cipate in his worship and
devolu.on.
9)-IMMUNITY FROM LOCAL AND MILITARY OBLIGATIONS- According to Ar.cle-35 of Vienna
conven.on 1961, the diploma.c agent has been immune from local and military obliga.ons.
10)-RIGHT TO EXERCISE CONTROL AND JURISDICTION OVER THEIR OFFICERS AND FAMILIES.
11)-FREEDOM OF COMMUNICATION FOR OFFICIAL PURPOSE-This freedom has been conferred
upon by Ar.cle-27 of Vienna conven.on on the diploma.c rela.ons, 1961. This Ar.cle provides
that they have the freedom to communicate with their home-state in connec.on with their
func.ons and du.es.
12)-RIGHT TO TRAVEL FREELY IN TERRITORY OF THE RECEIVING STATE- This new right has, for the
^rst .me been introduced in Ar.cle-26 of the Vienna Conven.on on Diploma.c rela.ons, 1961.
Ar.cle 26 provides that diploma.c agents can travel in the territory of the receiving state subject,
of course, to the condi.on that they cannot go to the prohibited places or the places which are
important from the point of view of the security of the receiving state.
13)-IMMUNITY FROM SOCIAL SECURITY PROVISIONS-According to Ar.cle 33, a diploma.c agent
shall with respect to services rendered for the sending State be exempt from social security
provisions which may be in force in the receiving state.
14)-IMMUNITY FROM INSPECTION OF PERSONAL BAGGAGE-Ar.cle 36(2) of Vienna conven.on
1961 provides that the personal baggage of a diploma.c agent be exempt from inspec.on.
14. DIFFERENTIATE BETWEEN TERRITORIAL WATERS, CONTIGUOUS ZONE, CONTINENTAL SHELF

AND HIGH SEAS.
Answer:

Territorial Sea (formerly called as the Territorial Waters/Mari.me Belt)

The sovereignty of the State is con2ned not only to the waters and land lying within its
boundaries. It also extends to a part of the sea which is adjacent to the coastal State. These
waters are contained in a certain zone or belt called ‘Marginal Zone’ or Marginal Belt’ and the
rights which the coastal states enjoy are called the mariDme rights. Territorial sea, therefore, may
be de2ned as that part of the sea which is adjacent to the coast and over which InternaDonal Law
permits the coastal States to exercise sovereignty subject only to a general right of innocent
passage on the part of foreign shipping. The possession of this territory is neither opDonal, nor
dependent upon the will of the State, but compulsory. It is diGerent from the internal waters in
the sense that internal water lies within the boundaries of the State, and they are used exclusively
by the States themselves. Right of innocent passage is not available with respect to internal
waters. It is also diGerent from the high seas which are free to the commerce and navigaDon of all
the States. The ConvenDon on the Law of the Sea of 1982 has laid down that ‘the sovereignty of a
coastal State extends’ beyond its land territory and internal waters to an adjacent belt of the sea is
described as the territorial sea’.
Two important aspects are involved in the concept of the territorial sea. They are the breadth
of the territorial sea and the rights of States over the territorial sea.
1. The breadth of Territorial Sea: Although it has been generally accepted that the State
exercises sovereignty over territorial waters, controversy arises as to its breadth.
Customary internaDonal law does not prescribe any de2nite rule in this regard. The extent

of the territorial jurisdic0on was based on the ‘Cannon shot’ rule. Since a cannonball
could travel three miles, this became the accepted territorial waters limit.
However, Conven0on of 1982 has seBled the controversy by providing under Ar0cle 3,
that every State has the right to establish the breadth of its territorial sea up to a limit not
exceeding twelve nau0cal miles measured from baselines. The breadth of the territorial
sea as provided under the Conven0on on the Law of the Sea of 1982 is acceptable to most
of the States. About 90 States including India have adopted legisla0on extending the
maximum breadth of the territorial sea to twelve nau0cal miles. Ar0cle 15 of the 1982
Conven0on lays down that in those cases where the coasts of two States are opposite or
adjacent to each other, neither of the two States is en0tled, failing agreement between
them to the contrary, to extend its territorial sea beyond the median line every point of
which is equidistant from the nearest points on the baselines from which the breadth of
the territorial seas of each of the two States is measured. The above rule is subject to the
excep0on of cases of historic 0tle or other special circumstances to delimit the territorial
seas of the two States in a way which is at variance therewith.
2. Rights of States over Territorial Sea: although the coastal State exercises sovereignty over
the territorial sea, certain rights are also exercised by other States.
A. Rights of Coastal States: the sovereignty of the coastal States extends to the territorial
sea. Consequently, they have complete dominion over this part of the sea except that
of the right of innocent passage and transit by vessels of all na0ons.
B. Rights of Other States: It is a customary rule of Interna0onal law that territorial sea is
open to merchant vessels of all the States for naviga0on. Such vessels have a right of
innocent passage through the territorial sea of a State. Thus, every State has the right
to demand that in 0me of peace its merchantmen may inoRensively pass through the
territorial sea of every other State. This is a corollary of the freedom of the open sea.
Con.guous Zone
The con0guous zone is that part of the sea which is beyond and adjacent to the territorial
waters of the coastal State. The coastal State does not exercise sovereignty over this part of the
sea, however, it may take appropriate ac0on to protect its revenue and like maBers. In other
words, police and revenue jurisdic0on of the coastal States extend to the con0guous zone.
Geneva Conven0on on Con0guous Zone of 1958 recognized the right of the coastal States under
Ar0cle 24, para I which says that ‘the coastal States may exercise the control necessary to
(a) Prevent infringement of its customs, [scal, immigra0on or sanitary regula0ons within its
territory or territorial sea;
(b) Punish infringement of the above regula0ons commiBed within the territory or territorial sea.’
The Conven0on of 1982 made similar provisions under Ar0cle 33.
The limit of a con0guous zone has been extended by the Conven0on of 1982 which provided
under Para 2 of Ar0cle 33 that it may not extend beyond twenty-four nau0cal miles from the
baselines from which the breadth of the territorial sea is measured. Thus, the area of the
con0guous zone would be 12 miles beyond the territorial sea.
Con.nental Shelf
The concept of the con0nental shelf is mainly co-related with the exploita0on of the natural
resources from the sea adjacent to a territorial sea. It was therefore of liBle importance un0l the
exploita0on of natural resources become technically possible. The concept acquired signi[cance
when it was propounded by the U.S. President Truman on September 28, 1945, through two
proclama0ons. Proclama0ons, a_er stressing the need for the recourse of petroleum and other
materials, laid down that such resources underlie in many parts of the con0nental shelf of the
coasts of the United States and with the modern technological progress their u0liza0on is
possible.

De#ni&on and outer Limit of Con&nental Shelf: The 1982 Conven&on has de#ned the term
con&nental shelf under Para I of Ar&cle 76 by sta&ng that the con&nental shelf of a coastal State
comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea
throughout the natural prolonga&on of its land territory to the outer edge of the con&nental
margin, or to a distance of 200 nau&cal miles from the baselines from which the breadth of the
territorial sea is measured where the outer edge of the con&nental margin does not extend up to
that distance.
High Seas (refer 5th ques.on for more elabora.on)

By the term, ‘high seas’ is meant under the customary rule of Interna&onal Law that part of the
sea which is not included in the territorial waters. The rule was formulated in 1609 by Gro&us in
his trea&se Mare Liberum by arguing that the sea cannot be owned. According to him ‘the sea is
one of those things which is not an ar&cle of merchandise, and which cannot become private
property’. Hence, it follows to speak strictly, that no part of the sea can be considered as the
territory of any people whatsoever. However, the regime of the high seas has been considerably
changed under the Conven&on on the law of the Sea of 1982 which lays down under Ar&cle 86
that all parts of the sea that are not included in the
 Exclusive economic zone
 Territorial sea
 Con&guous Zone
 Con&nental Shelf
 Internal waters of a state
 Archipelagic waters of an archipelagic State.
Thus, the area of the high seas has been substan&ally reduced under the Conven&on of 1982.
15. EXPLAIN THE PURPOSE AND PRINCIPLES OF UNITED NATIONS.

Answer: The failure of the League of Na&ons on the one hand and the horror and ruthless
destruc&on caused by the Second World War, on the other hand, disturbed many minds,
especially in Allied countries. They expressed the desire to establish peace even when the War
was in progress. In order to achieve it, fran&c e_orts to create an interna&onal organisa&on had
begun as early as in 1941. Delibera&ons became intense aaer the termina&on of the war which
resulted in the crea&on of the United Na&ons Organisa&on on October 24, 1945.
Purposes of the United Na.ons

The purposes for which the United Na&ons was established are laid down in Ar&cle I of the
Charter. They are as follows:-
1. To maintain Interna&onal Peace and Security:
The urgent and fundamental need at the &me of the crea&on of the United Na&ons was the
freedom from war and fear of war, and therefore, Ar&cle I, Para 1 of the Charter provided that the
primary purpose of the UN shall be ‘to maintain interna&onal peace and security’.
2. To Develop Friendly Rela&ons among Na&ons:
In order to prevent clashes between na&ons, it was thought essen&al to develop friendship
among na&ons, i.e., friendship based on respect for the principles of the equal rights and the equal
rights of self-determina&on of peoples.
3. To Achieve Interna&onal Co-opera&on:
Ar&cle 1, Para 3 of the Charter lays down two purposes of the UN which are closely related to
each other. Firstly, to achieve ‘interna&onal co-opera&on’ in solving interna&onal problems of an
economic, social, cultural or humanitarian character, and secondly, ‘interna&onal co-opera&on’ in
promo&ng and encouraging respect for human rights, and fundamental freedoms for all without
dis&nc&on to race, sex, language or religion.

4. To make the United Na1ons an Interna1onal Forum for Harmonisa1on:

The fourth purpose of the UN was laid down under Ar1cle 1, Para 4 of the Charter which states
that the UN, being the principal World Organisa1on shall serve as a ‘centre for harmonizing the
ac1ons of na1ons in order to achieve these common ends’. Thus, the UN is an interna1onal forum
where World problems – bilateral, regional or global are discussed and it oLen evolves global
policies for States to implement. The greatest advantage of this forum is that it represents the
en1re interna1onal community.
Principles of the United Na.ons

Having set forth for the agreed purposes, the Charter laid down the basic principles under
Ar1cle 2 on which the Organisa1on is founded. These principles are the general obliga1ons which
bind each Member State and the Organisa1on as a whole. They are as follows:-
1. The Principle of Sovereign Equality: Ar1cle 2, Para 1 of the Charter lays down that the UN is
based on the ‘sovereign equality of all its members’. It implies that all the members of the
United Na1ons are equal irrespec1ve of their size and resources. It may be noted that the
principle of sovereign equality is a principle of Interna1onal Law which the Charter has simply
reaUrmed.
2. The Principle of the FulVlment of Obliga1ons: Ar1cle 2, Para 2 of the Charter lays down that
all members of the UN shall fulVl in good faith the obliga1ons assumed by them in accordance
with the Charter. This is also a basic principle of Interna1onal Law which is known as pacta
sunt servanda.
3. The Principle of Peaceful SeXlement of Interna1onal Disputes: Ar1cle 2, Para 3 of the Charter
provides that ‘all Members shall seXle their interna1onal disputes by peaceful means and in
such a manner that interna1onal peace and security, are not endangered’.
4. The Principle of Non-use of Force: The Charter under Ar1cle 2, Para 4 s1pulates that all
members shall refrain in their interna1onal rela1ons from the use of force or threat of force
against the territorial integrity or poli1cal independence of any State, or any other manner not
consistent with the independence of any State, or in any other manner not consistent with the
purposes of the UN.
5. The Principle of Assistance to the United Na1ons: Ar1cle 2, Para 5 of the Charter lays down
two ways by which a State against which the UN is taking ‘preven1ve and enforcement
ac1on’, and secondly, all the members shall support the Organisa1on ‘in any ac1on’ that it
takes in accordance with the ‘Charter’.
6. The Principle for the Non-Member States: Ar1cle 2, Para 6 of the Charter lays down that the
obliga1ons which are to be carried on by the non-members of the UN by sta1ng that ‘the
Organisa1on shall ensure that States which are not Members of the UN act in accordance with
these Principles so far as may be necessary to maintain interna1onal peace and security.
7. Principle of Non-interven1on in Domes1c MaXers of a State: Ar1cle 2, Para 7 of the Charter
lays down that the UN shall not intervene in maXers which are essen1ally within the domes1c
jurisdic1on of any State, or compel any member to submit such maXers to seXlement by the
UN.
CASES
16. Immuni1es and Privileges of Diploma1c Agents.
A. A diplomat of State ‘X’ was arrested in state ‘Y’ on the charge of spying. State ‘X’ request for
return of the Diplomat. Discuss (Aug-18).
B. The diplomat of state ‘A’ was supplying weapons to a banned oudit in viola1on of local laws,
in-state ‘B’. When he was in court, he claims diploma1c immunity. Can he succeed? (May-17).
C. ‘A’ a foreign diplomat causes injury to ‘B’ in a road accident. ‘B’ wants to claim damages from
‘A’. Can he do so? (May-15).

D. A diploma,c agent commi2ed a tra4c o5ence. Can the local court try him in the state where
he is func,oning? (Aug-13).
E. ‘X’ a diploma,c agent takes a house rent and refused to pay the rent, can the house owner Ile
a civil suit against the diploma,c agent? (May-15).
F. A diploma,c envoy represen,ng state X in state Z. While shopping purchases a pair of shoes
in a store but refuses to pay the sales tax on the shoes. Examine the legal posi,on. (July-
2012).
ISSUE:
Is the diplomat immune from local (Civil and Criminal) Jurisdic,on? Yes.
Can the diplomat be arrested? No.
RULE:
Vienna Conven,on of 1961 lays down the di5erent immuni,es and privileges which are granted
to the diploma,c agents, one of the immunity is “immunity from the local jurisdic,on”.
Ar,cle 31, paragraph 1 of the Vienna Conven,on provides immunity from the local jurisdic,on.
Diploma,c agents enjoy immunity from the jurisdic,on of the local Courts. The immunity
extends to criminal jurisdic,on as well as to civil and administra,ve jurisdic,on.
A. Criminal Jurisdic,on: Ar,cle 31, paragraph 1 of the Vienna Conven,on provides that ‘a
diploma,c agent shall enjoy immunity from the criminal jurisdic,on of the receiving
State’. The above provisions conform to the customary rules of Interna,onal Law. Thus,
receiving states have no right, in any circumstances whatever, to prosecute and punish
diploma,c agents.
B. Immunity from Civil and Administra,ve Jurisdic,on: Diploma,c agents are immune from
civil and administra,ve jurisdic,on is a well-recognized principle of Interna,onal Law. No
civil ac,on of any kind as regards debts and the like can be brought against them in the
civil court of the receiving State. They cannot be arrested for debts, nor can their
furniture, their cars, and the like, be seized for debts. They cannot be prevented from
leaving the country for not having paid their debts, nor can their passports be refused to
them on this account.
APPLICATION:
The example of George Gyllenborg, 1712 may be cited in this connec,on. He was an
Ambassador of Sweden in England and he was arrested on the charge of conspiracy against
George I, the King of England, if a case is Iled in a court against a diploma,c agent, then it is not
necessary for him to present himself personally in the court. It is su4cient for him to send the
message that he is a representa,ve of a sovereign State and is outside the jurisdic,on of the
court. But if he does not take this ground and presents himself personally and uncondi,onally in
the court then it will be deemed that he has waived his immunity and he will then be deemed to
be within the jurisdic,on of the court.
CONCLUSION:
In the above-stated cases, the diplomats are immune from the civil and criminal jurisdic,on of
the receiving state. They cannot be arrested and prosecuted. However, the Vienna Conven,on
provides some excep,ons to the Civil and Administra,ve immunity, when the diplomat entering
into a contract for his personal use e.g. buying a property for his personal use, the immunity is not
available.
17. THE INTERNATIONAL LIABILITY FOR DAMAGE CAUSED BY SPACE OBJECTS, 1971.
A. State ‘A’ launches on earth satellite which falls on the territory of State ‘B’. State ‘A’ asks for
its return while State ‘B’ counter-claims for damage caused to its property.

B. A satellite launched by ‘X’ state falls on the territory of state ‘Y’ and caused damage, is ‘X’
state interna<onally liable for the damages caused to state? (May-2015).
C. State ‘A’ launches a satellite in outer space and the satellite while falling on the earth causes
damage to state ‘B’. Discuss the liability of state ‘A’. (July-2012).
ISSUE:
Is the launching state responsible for the damage caused by the satellite? Yes.
RULE:
The Conven<on on Interna<onal Liability for Damage Caused by Space Objects (1971): The
Conven<on provided interna<onal rules and procedures concerning the liability of launching
States for damage caused by their space objects. The Conven<on under Ar<cle 2 ensures prompt
and full compensa<on for any damage caused by the space object on the surface of the earth or to
aircraX or aircraX in Yight. The expression damage has been de[ned under Ar<cle 1 which says
that damages mean loss of life, personal injury, impairment of health, loss or damage to property
of States or of persons, or property of inter-governmental organisa<ons. If a space object has
been launched by more than one State they shall be jointly and severally liable for any damage
caused.
APPLICATION:
The falling of “Skylab” in July 1978 raised the ques<on of applicability of Liability Conven<on of
1971. Put in orbit in 1973 by NASA of America, it was expected to re-enter earth’s atmosphere in
1980. It fell well in advance in July 1979. Though causing panic in India and abroad, it, in fact, fell
in the sea causing no damage to any country. Moreover, irrespec<ve of the fact whether a state
was a party to the conven<on or not, every state is responsible for the damage caused by its space
objects. American President had odered well in advance to pay compensa<on for any damage
caused by the falling of ‘Skylab’. Even the absence of such an oder America would have been
interna<onally liable under the customary interna<onal law for any damage caused.
CONCLUSION:
In the above case, the launching State is responsible and should compensate for the loss caused
by its space objects, the payment of compensa<on should be prompt and full.
18. INDIRECT STATE RESPONSIBILITY.

A. ‘X’, who is a ci<zen of State ‘A’ while on a tour on the territory of State ‘B’ was killed by a mob
during the local riots. Examine the liability of State ‘B’. (May-2016).
B. A, a foreign ci<zen is injured in an unan<cipated mob agack, in the country X. Can the Y, the
country to which A belongs claim damages from X? (May-2014).
ISSUE:
Is State ‘B’ responsible for the death of ‘X’? Yes.
Under which rule State ‘B’ is responsible? Under indirect state responsibility.
RULE: (AS PER INTERNATIONAL LAW COMMISSION, ARTICLE 2)

Under indirect State responsibility, it is an obliga<on of a State to prevent its own subjects as
well as foreign subjects living within its territory from commijng such acts which may cause
injury to other States.
A State is responsible for the damage caused by a group of individuals or by a mob.
Responsibility of a State for mob violence may arise in two ways.
Firstly, a State shall be responsible if foreign public or private property is damaged by the mob
violence due to substan<al neglect to take reasonable precau<onary or preven<ve ac<on. In

other words, the responsibility of a State arises where a State has not taken due diligence to
prevent the mob-violence.
Secondly, State is also responsible where mob violence takes place due to the indi<erent a=tude
of its organs, i.e., if the wrongful act is done with the connivance of its organs.
APPLICATION:
The case concerning the United States DiplomaIc and Consular Sta< in Tehran which involved the
acts of rioters and other militants who aJacked and occupied U.S. diplomaIc and consular
premises in Iran. The rioters and militants also seized the occupants and held them as hostages.
The InternaIonal Court of JusIce held Iran responsible for the acts of the militants on the U.S
Embassy.
CONCLUSION:
In the given case the State ‘B’ is responsible for the death of ‘X’ under indirect responsibility
and should compensate for the death of ‘X’.
19. EXTRADITION.
A. ‘X’ sought the extradiIon of ‘A’ who is accused of an o<ence in state ‘X’ but is not an o<ence
in state ‘Y’ to which ‘A’ escaped. Is extradiIon allowed? (May-2014).
B. A person commits an o<ence on the territory on state B and êes to state A. Examine the
legal possibiliIes for extradiIon. (July-2012).
C. State ‘A’ obtains the custody of an accused person who took refuge in state ‘B’, and by
extradiIon but by means involving a violaIon of the law of the laJer state. Can he plead that
this circumstance consItutes a bar to his trail in the farmer state? (July-2019).
ISSUE:
Can State ‘X’ succeeds in extradiIng accused ‘A’? No
Why State ‘X’ cannot extradite ‘A’? Because of the lack of ‘double criminality’.
RULE:
Presently, in the absence of any mulIlateral treaty or ConvenIon, extradiIon is done by States
on the basis of bilateral treaIes. Bilateral treaIes, naIonal laws of several States, and the judicial
decisions of municipal courts led to developing certain principles regarding extradiIon which are
deemed as general rules of InternaIonal Law. Important amongst them are as follows:
1. ExtradiIon TreaIes: The arst and the foremost important condiIon of extradiIon is the
existence of an extradiIon treaty between the territorial State and the requesIng State.
Some states, such as the United States, Belgium and the Netherlands, require a treaty as
an absolute pre-condiIon. The strict requirement of an extradiIon treaty may be
regarded as the most obvious obstacle to internaIonal cooperaIon in the suppression of
crimes.
2. ExtradiIon of PoliIcal O<enders: It is a customary rule of InternaIonal Law that poliIcal
o<enders are not extradited. In other words, they are granted asylum by the territorial
State.
3. The Doctrine of Double Criminality: The doctrine of double criminality, also known as dual
criminality, denotes that a crime must be an o<ence recognized in the territorial as well as
in the requesIng State. No person is extradited unless this condiIon is fulalled. The
doctrine appears to be based on the consideraIon that it would o<end that conscience of
the territorial State if it has to extradite a person when its own law does not regard him a
criminal. The requesIng State would also not ask for the surrender of a person for those
crimes which are not recognized in its State. The doctrine thus saIsaes double purpose. It

helps the reques+ng State to enforce its criminal law, and to the territorial State in the
sense that the rule protects it from fugi+ve criminals.
The rule of double criminality has put a State into a di=cult situa+on when it has to
request another State for extradi+on in respect of those o?ences which do not @nd a place
in the list of crimes embodied in a treaty. In order to overcome the above di=culty it is
desirable that instead of laying down the names of various crimes speci@cally in the
trea+es, some general criterion should be adopted. For instance, any o?ence punishable
with a de@nite minimum penalty under the laws of both the States should eligible a
person for extradi+on appears to be more appropriate.
4. Rule of Speciality: According to this principle, a fugi+ve may be tried by the reques+ng
State only for that o?ence for which he has been extradited. In other words, the
reques+ng State is under a duty not to try or punish the fugi+ve criminal for any other
o?ence than that for which he has been extradited unless he has given an opportunity to
return to the territorial State. The rule has been made to provide safeguard to the
fugi+ves against fraudulent extradi+on. The rule of speciality is an established principle of
interna+onal law rela+ng to extradi+on.
5. Prima Facie Evidence: There should be a prima facie evidence of the guilt of the accused.
Before a person is extradited, the territorial State must sa+sfy itself that there is a prima
facie evidence against the accused for which extradi+on is demanded. The purpose of
laying down the rule of prima facie evidence is to check the fraudulent extradi+on.
6. Time-barred Crimes: A fugi+ve criminal shall not be surrendered, if he has been tried and
has served sentence for the o?ence commiOed in the territorial State. Thus, extradi+on is
not granted if the o?ence for which extradi+on has to be made has become +me-barred.
7. Extradi+on of Own Na+onals: In many cases, a person aSer commiTng a crime in a
foreign country Uees back to his own country. Whether a State would extradite such
persons, i.e., its own na+onals, to a State where crime has been commiOed is a
controversial point and prac+ce of States considerably di?ers on it. Na+onals may be
extradited if there is no bar in the na+onal extradi+on law or the treaty.
8. Military O?enders: Extradi+on trea+es generally exclude military o?ences. Broadly,
military o?ences fall into two categories, i.e., those which cons+tute o?ences under
ordinary criminal law and those which relate speci@cally to military maOers. Only the
second category quali@es as military o?ences in respect of which extradi+on will not
apply.
9. For religious crimes also persons are not extradited.
10. For extradi+on, it is also necessary that certain other prescribed formali+es should be
ful@lled.
APPLICATION:
Veer Savarkar case (1911): Savarkar was an Indian revolu+onary who was being brought to
India to be prosecuted on the ground of crimes which he was alleged to have commiOed. When
the ship was in the port of Marcelese, Savarkar escaped, but later on, he was apprehended by
French police. But the Captain of the French ship returned Savarkar to the Captain of the Bri+sh
ship.
Sucha Singh’s case: Sucha Singh was accused of murdering Pratap Singh Kairon, the former
Chief Minister of Punjab and had Ued away to Nepal and on the request of the Government of
India, the Government of Nepal aSer star+ng proceedings against him in accordance with the law
of Nepal, extradited him.
CONCLUSION:
Case A: In this case, the essen+al rule of ‘double criminality’ is missing and extradi+on is not
possible.

Case B: In this case, for extradi4on, the essen4als what we have discussed under ‘Rules” should
be followed, like extradi4on treaty, double criminality etc.
20. DIPLOMATIC ASYLUM.

A. ‘X’ a poli4cal rebel of state ‘A’. The ambassador refused to hand over ‘X’ to state ‘A’ can
asylum be granted to ‘X’. (Aug-2018).
B. ‘X’ a na4onal of country ‘Y’ aVer commiWng a criminal oXence take shelter in ‘A’s diploma4c
oYce, which is in ‘Y’ country. Can A’s country diplomat give asylum to ‘X’? (May-15).
ISSUE:
Can an ambassador provide asylum? Yes.
Can asylum be provided in embassy premises? Yes, can be provided.
What kind of asylum it is called? It is called as an extra-territorial asylum.
RULE:
 Universal Declara4on of Human Rights under Ar4cle 14 (Para 1) lays down that ‘everyone
has a right to seek and to enjoy in other countries asylum from persecu4on’.
 General Assembly of United Na4ons unanimously adopted a resolu4on in 1967 en4tled a
Declara4on on Territorial Asylum which states that ‘no one shall be subjected to measures
such as rejec4on at the fron4er, expulsion, or compulsory return to any State where he
may be subjected to persecu4on.
APPLICATION:
When asylum is granted by a State on its territory, it is called territorial asylum and when
asylum is granted by a State at places outside its own territory, it is called extra-territorial asylum.
Thus, asylum given at lega4ons, consular premises, and warships are instances of extra-territorial
asylum.
When asylum is granted by a State within its embassy premises situated in foreign countries, it
is known as an asylum in lega4on or diploma4c asylum. Diploma4c asylum is based on the
considera4on that embassy premises are regarded to be outside the jurisdic4on of the territorial
State, and therefore it is inviolable. The Head of the mission may grant asylum to a person on the
premises. However, asylum may be granted to individuals in lega4on premises in the following
cases:
Firstly, as a temporary measure, to individuals physically in danger from a mob or the fear of the
government. It implies that asylum is given to a person whose life has become unsecured. But it
is granted as a temporary measure.
Secondly, it is granted by those States where there is a binding local custom in this regard, and
Thirdly, when there is a treaty between the territorial State and the State which is represented by
the lega4on concerned.
CASE: Over summer 2012, tensions accumulated in the rela4ons between Ecuador and the United
Kingdom, and almost lead to a diploma4c disaster. But this is not a dispute between just two
States, it may well be seen as a clash between ideologies and two fronts, i.e. between States
which recognise or reject the right to grant diploma4c asylum. The centrepiece of this quarrel is
Julian Assange, an Australian best known as the founder, spokesman and editor-in-chief of
WikiLeaks.
Since November 2010, Assange is wanted by the Swedish authori4es in rela4on to a rape and
sexual assault inves4ga4on. Because he was living in the United Kingdom when the European
Arrest Warrant was issued, they applied for the extrac4on of Assange to Sweden. He decided to
jght against the extradi4on, but his steps were unsuccessful on all levels. Finally, on 14 June 2012,
Assange had exhausted all remedies available in the United Kingdom, but the decision to extradite
him to Sweden remained in force. He was given 14 days to appeal to the European Court of

Human Rights, but he decided to pursue an unusual alterna6ve. On 19 June, Assange entered the
Ecuadorian embassy where he asked for the protec6on of the Ecuadorian government. The laDer
informed, on the same day, the Bri6sh government that it was considering Assange’s request. On
16 August, Ecuador informed the world that they have decided to grant Assange diploma6c
asylum.
CONCLUSION:
In the above case, the diplomat can give asylum to ‘X’ in his Embassy premises under extra-
territorial jurisdic6on and he can refuse to handover ‘X’ to State ‘A’.
21. DE FACTO AND DE-JURE RECOGNITION.

A. The Government of State ‘A’ is overthrown and the rebels establish a new Government. State
‘B’ con6nues to recognize the old Government as de-jure Government but accords de facto
recogni6on to the new Government. The new Government Zles a suit in State ‘B’ against a
bank for recoveries certain money belongs to it as the lawful representa6on of the State. How
would you decide? (July-2019).
B. A newly formed de facto government claimed that its rights and status would prevail over a
displaced de-jure government. The de-jure government opposed the claim of de facto
government, decide? (Aug-2018).
ISSUE:
Are both the de facto and de-jure recogni6on similar regarding economic, poli6cal and trade
maDers? Yes.
RULE:
It is to be noted that by gran6ng de facto recogni6on to a State, the recognizing State secures
certain advantages especially economic. It enables it to protect the interests of its ci6zens in the
de facto recognized State. Further, it also enables the recognizing State to acknowledge the
external facts of poli6cal power, and protect its interest and trade in the de facto recognized
State.
APPLICATION:
In Luther v. Sagor, it was laid down that there is no dis6nc6on between de facto and de-jure
recogni6on for the purpose of giving ebect to the internal acts of the recognised authority. This
rule has been applied in numerous cases.
The above case is similar to the case of Bank of Ethiopia v. Na6onal Bank of Egypt and Liguori,
the Court held that in view of the fact that the Bri6sh Government recognised the Italian
Government as being the de facto government of the area of Abyssinia then under Italian Control,
an ebect must be given to an Italian decree in Abyssinia dissolving the plain6b bank and
appoin6ng a liquidator. Further, immunity in the Courts of recognising State, and a State’s
interna6onal responsibility for wrongful acts remain the same whether it is ruled by a de facto or a
de-jure Government.
CONCLUSION:
In the given case State ‘A’ will recover the due amounts, for Znancial transac6ons there is no
diberence between de-facto and de-jure recogni6on.

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Public Interna.

PUBLIC INTERNATIONAL LAW

PUBLIC INTERNATIONAL LAW

Harinath J, Radhakrishna ANV and Aravinda Reddy 1

IMPORTANT SHORT QUESTIONS

IMPORTANT LONG QUESTIONS

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16 DE FACTO AND DE-JURE RECOGNITION - BANK OF ETHIOPIA v. NATIONAL BANK OF

PAPER-II: PUBLIC INTERNATIONAL LAW SYLLABUS

Harinath J, Radhakrishna ANV and Aravinda Reddy 2

Unit-I: De+ni,on, Nature, Scope and Importance of Interna,onal Law — Rela,on of

Unit-II: State Recogni,on — State Succession — Responsibility of States for Interna,onal

Unit-III: Posi,on of Individual in Interna,onal Law — Na,onality — Extradi,on — Asylum

Unit-V: Interna,onal Organiza,ons — League of Na,ons and United Na,ons —

Harinath J, Radhakrishna ANV and Aravinda Reddy 3

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(1) Permanent Popula3on

(2) Well Organised Government

(3) DeInite or Fixed Territory

(4) Capacity to enter into a rela3onship or an agreement with other States.

According to Kelsen, a community to be recognised as an interna3onal person must fulIl

Recogni3on can be deIned as a formal acknowledgement by an exis3ng member of the

Recogni3on is a process whereby a State is cons3tuted; hence it is called as a cons3tu3ve

Harinath J, Radhakrishna ANV and Aravinda Reddy 5

According to Oppenheim, a State is and becomes an interna>onal person through recogni>on

2) Declaratory theory or Eviden>ary Theory:

According to Professor Hall "the State, which is theore>cally a poli>cal is organized

Harinath J, Radhakrishna ANV and Aravinda Reddy 6

The international importance of Nationality

Modes of Acquisi.on of Na.onality

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4. EXTRADITION (DOUBLE CRIMINALITY IS IMPORTANT)

A criminal is extradited to the reques9ng State because of the following reasons:

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5. FREEDOMS OF HIGH SEAS.

Harinath J, Radhakrishna ANV and Aravinda Reddy 11

States had freedoms of high seas as to:

6. OUTER SPACE TREATY, 1967

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2. Non-Appropria-on of Outer Space:

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8. WHAT ARE THE SOURCES OF INTERNATIONAL LAW (CUSTOM IS VERY IMPORTANT)

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Answer: it is an obliga0on on the subjects of Interna0onal Law to observe the rules of

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Aim of Interna0onal Law: Interna'onal law aims to achieve:-

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Not a Law- Supporters of this view are-

Interna)onal Law Is a Law- supporters of this view are-

10. RELATION BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW.

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Rela&onship between Municipal Law and Interna&onal Law :

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Kinds of State Succession:

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12. MODES OF ACQUIRING STATE TERRITORY

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10. Acquisi.on of territorial sovereignty by newly emerged State:

Modes of loss of state territory: