INTERNATIONAL LAW

 Give such a definition of International Law which could cover all the modern trends in it? 2010
 Explain in detail the object, purpose and basis of international law. 2001
 International law is a product of centuries - elaborate the statement in view of the scientific development
and codification of the law.2013
 Q2. Discuss the historical account of the origin of international law. What should be the focus of
any account as to how and why international law was initiated and to what extent it is relevant and
effective in modern times? 2022
 Why is it difficult to render accurately a historical account of the origin of International law? What
should be the focus of any account as to how and why International law began?
Introductory Topics
The term “international law” was first used by the English philosopher Jeremy Bentham in 1780 in his treatise entitled
“Introduction to the Principles of Morals and Legislation”. Since about 1840, this term replaced the older
terminology “law of nations” which can be traced back to the Roman concept of “ius gentium”.
International Law is divided into two branches: Private International Law (conflict of laws as it is called in the countries
of the Common Law System), and Public International Law (usually just termed International Law). Private International
Law deals with those cases, within a particular legal system, in which foreign elements involve, raising questions as to the
application of foreign law or the role of foreign courts. Public International Law deals, in general, with the external relations
of States.
What is Public International Law? How is it originated and developed? What is the aim it is trying to achieve?
The answers to all these raised questions are dealt with in the following sections.
I. Definition of Public International Law
Until the Second World War, legal scholars found no difficulty in defining “Public International Law”, in one formation or
another, as the law that governs the relations between States. This traditional definition is a reflection of the prevailing
doctrine of the nineteenth century and the first half of the twentieth century considering that only states could be
persons (subjects) of Public International Law, in the sense of enjoying international legal personality, i.e., being capable
of possessing international rights and duties.
However, since the mid-twentieth century, the traditional definition has become controversial due to both the expansion of
the scope of the Public International Law into new areas and the emergence of new actors, beside states, on the
international scene, such as international organizations, multinational corporations, individuals and groups, including
minorities and indigenous peoples. Some of these actors have acquired international legal personality, or, at least, certain
rights under International Law.
In the light of this development, the traditional definition has become incomprehensive description of this law, and the
change of the definition of the Public International Law has become inevitable. Public International Law has been defined as
a body of legal rules which regulates or governs relations between international persons (subjects). This contemporary
definition of Public International Law goes beyond the traditional one which defines this law as a body of rules governing
relations between states.
Thus, the contemporary Public International Law consists of the following:
(a) Legal rules of conduct which states feel themselves bound to observe in their relations with each others;
(b) Legal rules related to the functioning of international organizations, their relations with each other and their relations
with States and individuals; and
(c) Legal rules related to individuals and non-state entities as far as the rights and duties of these subjects are the concern
of the international community.
Public International Law now covers vast and complex areas of international concern, including traditional topics, such as
the State, peace and security, the laws of war, the laws of treaties, the law of the sea, the law of diplomatic and consular
relations, as well as new topics, such as international organizations, economy and development, air law and outer space
activities, communications, the environment, and last but not least, human rights.
Nature: The rules of Public International Law are general and universal in their nature, and are legally binding on all the
persons of International Law. These rules must be distinguished from what is called international comity and what is
known as international morality. A comity is a friendly gesture or courtesy exercised by one State toward another without
constituting a legal obligation; an example of a comity is the flag salute at the sea. A comity helps in promoting and
maintaining friendly relations among States. While not a legal rule, a comity can be widely observed and can evolve into a
customary international rule or be codified as a law; an example of an international comity which was codified as a law is
the exemption from customs duties of personal articles used by diplomats (codified in the Vienna Convention on Diplomatic
Relations of 1961).
Rules of International Law may meet at certain points with principles of international morality since they cannot be divorced
from their moral values. However, the former rules are legal in their contents and forms, while the principles of morality are
part of the discipline of ethics which is not legally binding.
INADEQUACIES OF TRADITIONAL DEFINITION
International organizations now subjects and not just objects "States and the principal subjects of international law":
Oppenheim 1992.
Third Restatement: international law concerned with "the conduct of States and of international organisations, and with their
relations inter se, as well as some of their relations with person, whether natural or juridical" §101 - possible
supplemented by noting international law also concerns relations between natural/juridical persons
Q.1:- Define International law and give its main kinds.
Answer: - The term international law has been defined in a variety of ways by different jurists. Some of the definitions may
be given as under:
1. By Oppenheim: - “Law of Nations or international law is the name for the body of customary law and conventional
rules which are considered binding by civilized states in their intercourse with each other.”
2. By Alf Ross: - Alf Rose defines the term international law as under: “International law is the body of legal rules binding
upon states in their relations with one another.”
3. By Lawrence: - According to him, “international law is the rules which determines the conduct of the general body
of civilized state in their mutual dealings.”
4. Modern Definition: - International law has always been in a continuous state of change. In modern period the term
International law may rightly be defined as under; “That body of legal rules which regulates the relationship of the Nation
States with each other, as well as, their relationship with other International actors.”
Beside the above definitions there are at least forty well definitions of international law.
Major Kinds of International Law: - There are following two major kinds of international law;
1. Private International Law, and
2. Public International Law.
1. Private International Law: - The term private International law may be defined as under:
“That branch of International law which determines that which law is to be applied to a specific case containing a foreign
element is called Private International law.”
Explanation: - From the above definition it is evident that private international law is to regulate those cases where a
foreign element involves in the matter and the difficulty arose that which law shall be applicable to the case, in other words
when it becomes difficult for a domestic court that the law of which state shall be applicable to a certain case because the
case contains an element of a foreign state/states law. In such a case private international law comes to help because it
determines that which law shall be applicable to a certain case.
2. Public International Law: - The term Public International Law may be defined as under:
“ A body of legal rules which regulates the relation of states inter se as well as their relations with other non-state entities is
said to be Public International law.” Explanation: - From the above definition it may be concluded that Public International
law is a set of legal rules which not only regulates the relations between the Nation States but also regulates their relations
with other non-state entities. In other words it is a body of rules which regulates the relationship of the international actors
with each other. These international actors may be given as under: States, individuals, NGO’s, IGO’s, Multi-National
Corporations and Movements.

Origin
- Modern international law generally recognized as having its genesis in the Middle Ages in Western Europe - where, at the
time, process of decentralization leading away from Roman Catholic Church and Holy Roman Empire towards the
Reformation and rise of Nation-States
- Thirty Years of War (1618-1948) came to an end with Treaty of Westphalia (significant event for international law) -
treaty based on recognition of community of independent and equal "sovereign" entities.
- "Natural law", given Universalist empire and Church, initially theological (including divine revelation as one of its sources) -
however by time of Hugo Grotius (1583-1645) natural law adopting a rationalist approach, being seen to derive from
universal reason
- Independence and equality of States translated into need for consent - clear tension between natural law and notion of
consent
- "Positivism" challenged natural law in 18-19C - means complete preoccupation with practice and thus consent of States
in law creation
(a) State only bound by rules it consents to
(b) If international law did not prohibit conduct, State free to act
- Majority judgment in Lotus was strongly positivist
FRANCE V TURKEY "THE LOTUS CASE" (PCIJ, 1927)
Facts:
- Collision between a French and a Turkish ship on the high seas - 8 Turks died
- French officer, Demons, was prosecuted and sentenced to 80 days in prison and fined $22
- France claimed Turkey had impermissibly exercised jurisdiction over Demons
Held:
- Turkey had not violated international law
- Unless a rule prohibited certain conduct, then Turkey was free to do so
"The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by
usages generally accepted as expressing principles of law and established in order to regulate the relations between these
co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the
independence of States cannot therefore be presumed"
FIRST WORLD WAR AND AFTERMATH
- Treaty of Westphalia did not outlaw use of force - commitment to co-existence was therefore qualified
- After WWI States created League of Nations in 1920 - renounced war as instrument of national policy in 1928: Kellogg-
Briand Pact, Art 1
- Treaty of Versailles established International Labour Organisation (ILO) and PCIJ
- League failed to censure Italy and Japan for acts of aggression against Ethiopia and China respectively
AFTER SECOND WORLD WAR
50 States signed UN Charter on 26 June 1945
Art 2(4) prohibits use of force; unless authorised by SC
Charter refers to human rights and fundamental freedoms: Arts 1, 55, 56, 62, 68 and 76
COLD WAR
Political and ideological rivalry between East and West had significant effect on content and application of international law
Sustained process of decolonisation - increased size and diversity of international community
Since end of cold war - seen rise of power of non-governmental entities and reduction of freedom of States to set national
policy
NATURE AND DEVELOPMENT OF INTERNATIONAL LAW
SOVEREIGNTY
Art 2(1) states UN "...is based on the principle of sovereign equality of all its members"
Art 2(7) - nothing in charter authorizes UN to intervene in "domestic jurisdiction" of a
State - subject to SC’s power under Chapter VII
"Sovereignty" can be "unpacked" (Prof. Henkin):
1. Independence
2. Equality - equal in status, person-hood, legal capacity, rights, duties and responsibilities (although
can agree to give some States preferred status, e.g. permanent SC members)
3. Autonomy
4. States as persons
5. Territorial integrity and authority
6. Impermeability
INTERNATIONAL LAW AS INTER-STATE LAW
Previously accepted that States were the sole and exclusive subjects of international law:
Oppenheim 1905
State to be distinguished from a government
"International law... is a construct of norms, standards, principles, institutions and procedures. The purposes of international
law, like those of. [municipal law], are to establish and maintain order and enhance reliable expectations, to protect
"persons", their property and other interests, to further other values": Prof. Louis Henkin
WHY DO WE NEED A SYSTEM OF INTERNATIONAL LAW?
regulates conduct acceptance by States (if law is codified it poses the fact that States will conform to "binding rules")
produces actions which are "unlawful/illegal" rather than "immoral" - more objective than subjective encourages co-
operation among States facilitates joint responses to illegal actions influences options taken by States for action allows for
imposition of "western value"? - certain standards in Human Rights that are universal norms.
II. Origin and Development of Public International Law.
The foundations of Public International Law as it is understood today lie firmly in the development of political relations
between the Western European States some 400 years ago. However, certain basic concepts of this Law can be traced back
thousands of years ago, in relations between ancient political entities, such as of the Near East, Greece and Persia.
The structure and development of Public International Law is connected with the era of sovereign national States
dealing with each other as independent entities. In this sense, therefore, the history of this Law can be regarded as
beginning in the 16th Century with the emergence of independent nation-states from the ruins of the medieval Holy Roman
Empire which was based on the claims to universal authority of the Pope as the spiritual, and the Emperor as the temporal,
head of Christian nations of Europe. As this Empire disintegrated, a growing number of independent and equal States filled the
gap.
The Emergence of independent and equal States subject to no temporal superior authority led to new political
theories. The most prominent among these theories was the theory of Sovereignty. This theory was explicitly formulated
by Jean Bodin (1530-1596) in his treatise entitled Six Livres de Republique (Six Books on the Republic) of 1576. According
to Bodin, in every State there exists in an individual monarch a power called sovereignty (majesties). Sovereignty is a
Republic absolute and perpetual power. It is absolute because it is indivisible; however, it is not without any limits. While
such a sovereign is not bound by the laws himself instituted, he remains bound by the divine law, the law of nature, and the
law of nations. Sovereignty is perpetual because it does not disappear with its holder (the sovereign). The concept of
sovereign as supreme legislator, as formulated by Bodine, was in the course of time evolved into the principle which gave
the State supreme power vis-à-vis other States.
The coexistence of independent sovereign States led to the development of the system of interstate relations. The need for
rules regulating the intercourse between the newly emerging States in Europe stimulated these States to draw mainly upon
the Roman Law and the Cannon Law (the Law of Roman-Catholic Church) for the sources of such rules. The
significance of the Roman Law and the Cannon Law contribution to “the law of nations” lies not only in the development of
a modern system of interstate legal relations, but also in the development of many principles of general equity and “natural
law” some of which are similar to certain general principles of law recognized by civilized nations.

In the few centuries that preceded the Thirty Years War (1618-1648), the intensification of international trade,
and the improvements in navigation and military techniques, and the discovery of many distant lands by the European
States stimulated further development of international practices and the emergence of new conceptions of the law of
nations. The intensification of trade led to the conclusion of many commercial treaties and the emergence of new practices
and principles related to the law of merchant and the maritime law. Notably, the growth of international trade had from the
8th Century onwards led to the development of international law of merchant and, in particular, to various compilations of
maritime law which gained increasing international recognition. The international customs and principles related to the law
of merchant and maritime constituted part of the practices and principles of “the law of nations.”
The discovery and subjugation of distant lands and peoples by European States produced numerous conflicting claims
of sovereignty, jurisdiction, rights of trade and rights of navigation as well as problems of relations. All these developments
urged the Europeans to resort to the Roman Law for helpful norms or analogies, and consequently led to new practices and
principles.
By the 17th Century, the growing complexity of international principles, customs and treaties had given rise to their
compilation and to the development of further rules governing the conduct of States in time of war and peace. The most
important treatise, dealing with States’ relations in time of war and peace, of this period was “De Jure Belli Ac Pacis” (On the
Law of War and Peace), published in 1625 by the Dutch jurist and diplomat Hugo Grotius (1583-1645).[13] Hugo Grotius
is recognized as the “Father of International Law”, and his treatise is generally regarded as providing the foundation of the
Public International Law.
Beside Grotius, there are many jurists who contributed extensively to “the law of nations” during the 17th and the 18th
centuries. Among these jurists are Francisco de Vitoria (1480-1546), Suarez (1548-1617), Alberico Gentili (1552-1608),
Samuel von Pufendorf (1632-1694), Richard Zouche (1590-1660), Johann Jacob Moser (1701-1785), Christian Wolff (1676-
1754), and Emerich de Vattel (1714-1769).
The International Law (the law of nations) further expanded in the 19th Century. This expansion was due to major events
such as the expansion of the European empires, the rise of powerful States both within and outside Europe, the spread
of the thought of democracy and nationalism, the Industrial Revolution, the modernization of world transport, and the
influence of new inventions. All these events urged the international community to develop the International Law in order to
accommodate such events. Consequently, International Law as a law regulating diplomatic and commercial relations
between States, and the conduct of war, multiplied and intensified during the 19th Century.
The establishment of the League of Nations in 1919, following the First World War, and the establishment of the
United Nations in 1945, following the Second World War, represented two significant turning points in the
development of the International Law. The development was characterized by a new departure in the evolution of this Law.
International Law began its evolution from being primarily a system of regulating relations between States towards
becoming also a system of international cooperation.
The League of Nations was the first international organization established primarily for the purpose of maintaining
international peace and security. The establishment of the International Labor Organization (ILO), affiliated with the League
of Nations, in 1919 signaled the end of an era in which International Law was, with few exceptions, confined to the
regulation of relations between States. The ILO was the first permanent international organization concerned with the
improvement of labor conditions and social welfare at the international level. In 1921, the Permanent Court of International
Justice (PCIJ) was established as the first permanent international judicial organ with an international judicial jurisdiction.
The establishment of the United Nations in 1945 led to a progressive development of International Law. During the post-
United Nations’ era, the development of International Law has been influenced by two major events effected the
international community. The first major event has been the expansion in the membership of the international community.
New States, mostly representing non-western civilization, have joined the club of family of nations, which was previously
exclusively limited to States belonging to Western Civilization. The concerns and priorities of these States have been
different from those of other States; they have been occupied with the development of their political, economic and social
systems. The second major event has been the massive expansion of international organizations for cooperation. Numerous
specialized agencies of the United Nations and other international organizations, universal as well as regional, have been
established. This event has confirmed the evolution International Law from its traditional nature to its contemporary nature
of being a system of organized collective efforts for cooperation.
Since the establishment of the United Nations, a great number of international treaties covering all aspects of international
affaires have been concluded. Law-making treaties have been contributing extensively to the rapid development of Public
International Law. They have led to may important new developments in Public International Law, and greatly increased
both its scope. Apart of the law-making treaties, international courts, the present International Court of Justice (ICJ), its
forerunner the Permanent Court of International Justice (PCIJ), and others, have been also contributing to the development
of Public International Law. Moreover, the International Law Commission created in 1947, the organs of the United Nations
and its specialized agencies have been playing a significant role in developing and expanding Public International Law.
In conclusion, Public International Law has evolved from being primarily a law of coexistence, which characterized it
from its birth in the early 16th century to the mid 20th century, to a law of international organization and cooperation.
Moreover, the most important characteristic of Contemporary Public International Law is the steady expansion of its scope
through the inclusion of new subject matters formerly outside its sphere, and the inclusion of new participants and subjects
such as international organizations and individuals.

III.Aims of Public International Law.

The initial aim of Public International Law has been to create an orderly system of international relations. However, the
modern developments of this law have added another aim to it. Since the beginning of the Twentieth Century, there has
been an evidence of a tendency to bring justice into the international community through ensuring justice in the relations
of States and securing justice for peoples and individuals.
The establishments of the Permanent Court of International Justice in 1921 and the International Court of Justice in 1945
have been a clear evidence of such a new aim of the Public International Law. The use of the term “justice” in the name of
these international courts where disputes among States are decided and where advisory opinions are given according to
Public International Law is evidence that justice has become the concern of this law, and has become one of its aims and
purposes.
To ensure and secure justice, and above all, to bring order to the international relations are the primary aims of the
contemporary Public International Law. This law, which regulates relations between international persons, aims to create a
system of order and justice for the international community. In the absence of such a system, it will be impossible for the
international persons to have steady and continuous relations, and to enjoy the benefits of such relations.
What are the main functions of International law?
Ans: - By functions of International law it is meant that to carry on the objects and aims of international law. As we know
that the performance of the functions of international law mainly depends upon the will of the sovereign states. Because
there is no political superior authority to administer the law. These are the states, the main subjects of international law,
which undertake to perform those intended functions. So, as the will of the states are conditioned with certain political
considerations, due to which the process of attaining its end is very slow. Beside this international law plays an important
 role in the international justice.

Some important functions of international law may be given as under:

Functions of International law: - Important functions which international law performs in the world justice and politics
may be given as under:

1. Maintenance of peace and security,

2. Development of friendly relationship among states and other International actors,

3. Achievement of International co-corporation to solve problems.

4. To solve economic, cultural and humanitarian problems

5. To guarantee political and sovereign integrity of states

Beside the above functions there are a number of other functions which international law performs.

1. Is International law a law in true sense or not?

 Define International Law. Do you agree with John Austin’s concept “International Law is not a true law, but a positive
international morality”? Elaborate your answer with appropriate arguments.2005
 John Austin says “International Law is not a real Law, but a positive International Morality.” Do you agree with him? Give
arguments in support of your answer.2008
 "The rules regarding the persistent and subsequent objector reveal a critical weakness at the heart of
international law. If a state can avoid being bound by any rule of customary international law, including a
rule that achieves jus cogens standing, then international law cannot really be described as `law'."
Critically examine the above statement, using examples from case law and state practice.
Ans: - The status of International law, that whether it is a law in true sense or not, is a long debate. Jurists have
different views to debate as a result of which different schools of thought have come to exist. The view of each of such
school may be given as under:
1. International law is not a law in true sense: - According to this school of thought International law is
not a law in true sense. They give following arguments in support of their view:
i. There is no superior political authority
ii. There is no legislature to enact the rules as in municipal law,
iii. There is no judicial machinery to interpret the laws,
iv. There is no executive authority to enforce international law
v. International law is frequently violated by states.
So, on the basis of the above arguments this school of thought has contended that international law is not a law in its
true sense.
2.International law is a law in true sense: - According to this school of thought international law is a law in true
sense. They give the following arguments in support of their view:
i. For the definition of law a political superior authority is not so necessary,
ii. In fact there is a legislative body in the shape of General Assembly and Security Council and the states enter into
treaties which also act as legislature,
iii. In fact there is a potent judicial machinery in the shape of International Court of Justice ( IJC ). Though its decisions
are binding on the parties when they by their mutual consent refer the case to it.
iv. It is wrong to say that there is no executive authority to enforce International law, because the adverse view of the
member states and fear of cessation of diplomatic and economic ties and fear of war act as sanction for its
implementation.
v. It is right to say that international law has frequently been violated but on this basis the status of international law as a
law shall not be denied because law is law and its obedience is totally another factor. And municipal law has also been
violated.
vi. Furthermore, states themselves consider it binding upon them.
3. International law is a law but a weak law: - This school of thought accepts the status of International law
as a law but according to them it is a weak law. They give following arguments in the support of their view:
i. There is no coercive agency to enforce it,
ii. It has frequently been violated,
iii. Big powers interpret it according to their wishes,
iv. Though there is an international court of justice, but it enjoys no compulsory jurisdiction. Its decisions are only binding
in circumstances where both the parties by their mutual consent refer the case to it,
v. There are some sanctions to enforce it but the same are to inadequate to attain the end of international justice.
Conclusion: - From the above discussion it may be concluded the international law is a law but a weak law due to
many technical defects in it.

 Considering the practice of leading states how far it is true to say that international Law and municipal law are two distinct but
coordinate legal systems. Re-Exam 2013
 Distinguish between Monism and Dualism. To what extent both Monism and Dualism explain how States relate to
International Law? Critically discuss, ‘Incorporation and Transformation are two modalities for adopting international law into
the municipal legal system.
 ‘The way in which a State approaches international law will depend on whether it adheres to the monistic or dualistic school
of thought.’ Examine this quotation with examples.2020
Q. 6: - What is the relationship between International and Municipal Law?
Ans:- Apparently there seems no relationship btw international law and municipal law. But if examined with
philosophical eve then it would be seemed that there is a relationship between both the legal orders. The test as to
observe the relationship between the two systems may be conducted in case of a conflict between the two legal orders.
The situation would arise that what law shall be applicable to the case in question.
Relationship between Municipal Law and International Law
As to relationship between municipal law and international law there are many theories the most prominent one of which
may be discussed as under:
I. Dualistic Theory: - According to the followers of this theory Municipal law and International law are two
separate, distinct and self-contained legal orders, independent from each other. Both the orders enjoy its own spheres
and each one is the supreme in its own sphere. They accepts the separate and independent existence because,
according to them, there are following points of distinctions between both the orders:
1. Sources: - The sources of both the systems are quite different. Municipal law has its source in the land legislature,
while International law has its sources in treaties, entered into by different sovereign states, international customs and
general principals of law etc.
2. Subject: - The subjects of both the systems are different. As for as, Municipal is concerned that is an order of the
sovereign of the state addressed to the individuals, while at the other hand the subjects of the international law are the
states, and to thelesser extent other actors including individuals. In other words Municipal law is between the individuals
and international law is between the sovereign states.
3. Principles: - Municipal law is the aggregate of the principles of state legislature, while International law is obeyed
because of principle “Pacta sunt servanda.” At the other hand, municipal law has a legal sanctity while International is
obeyed because states are morally bound to observe.
4. Dynamism: - It is a unique characteristic of International law that it continuously changes and expands while
municipal law remains limited. So, on the basis of the following points of distinction between the two legal systems the
supporters of Dualistic Theory contend that they both are separate and distinct orders having separate spheres of
application.
II. Monistic Theory: - According to the followers of this theory International law is not distinct and
autonomous body of law, rather there exists only one sets of legal system i.e. the domestic legal order. They have
criticized the view adopted by Dualists, and also rejected the alleged distinction between Municipal law and International
law as pointed out by the dualists. According to them both the international law and municipal law are related with the
same legal system. And it is not possible to treat them severely.
i. Harmonization Theory: - Dualistic and Monistic both are the extreme views. They both are opposite to each other.
But the Harmonization theory impliedly accepts the distinction between the two legal orders but they contend that the
differences or conflicts between them may be harmonized. They are of the view that both the systems have been framed
ultimately for the conduct of human behavior, so both of them are supreme in that sense. As for as the conflicts are
concerned they may be harmonized and should be harmonized. The areas where both the systems are contradicted
should be brought to test of harmonization. But such contradiction shall not mean that one of them is void. They exerts a
duty on the judges of both municipal courts as well as international courts, to point out those points at which the two
systems are collide with each other. According to them the two systems are not like a gear, but like two wheels
revolving upon the same axis. According to this theory, neither Municipal law nor International law has supremacy over
each other.
Conclusion: - It may be concluded that as far as, the Dualistic and Monistic Theories are concerned they are primitive
and traditional, due to which they are most popular. However, the Harmonization Theory is comparatively modern.
Although no theory can be said to be appropriate, but Harmonization Theory appears to be better because it has
regarded that International law, as well as, Municipal law have been so framed for the conduct of the human being, so
there should be no contradiction between them, and if any contradiction exist, that should be harmonized, either by
courts or the legislature of the concerned state.
 What are the sources of International Law? Discuss any two of them in detail.2005
 While customs form the major part of International law it is conventions that make it more authentic and applicable.
Discuss. 2013
 "When all has been said it will be found that consent remains firmly the basis of international law, and there are as many, and
only as many, sources of international law as there are ways whereby the consent of states can be expressed"? Discuss2014
“From the theoretical stand point, the provision for applying the ‘general principles’ sounding the death ― knell
of positivism”. Discuss.2018
Sources of International Law (CTGJJW)
International law devotes a great deal of attention to its sources. Scholars have produced a large body of work about
both the conditions under which treaties, customs, or general principles of law bind actors and the hierarchy among the
various doctrinal forms which might apply in a given instance.
International law is made largely on a decentralized basis by the actions of the 193 States which make up the
international community. Article 38 of the Statute of the International Court of Justice lists sources of
international law on which the court may rely in its decisions. They are: treaties, customary international law, general
principles of law that exist in most domestic legal systems and, as a subsidiary means, also judicial decisions and
scholarly writings.
1. Customary International Law
- As evidence of general practice accepted as law
- Unwritten law, binding, and can be legally imposed
- When treaty provisions are ambiguous, customs help decide the case; useful as a contingent source
- Treaty provisions become a customary law only if recognized by the parties to the treaty as that of a norm
creating nature and express or imply that the provision is binding
- As per ICJ, a custom requires following characteristics to be considered as law : Duration, Uniformity,
Generality of Practice, and Opinio Juris et Necessitates
Customary law is both the oldest source and the one which generates rules binding on all states. Customary law refers
to the established practices of states that are supported by a subjective belief to be required by law. If a customary
rule exists, it is binding on all states except where a state has persistently objected to this rule. Customary law is not a
written source. A rule of customary law, e.g. requiring states to grant immunity to a visiting Head of State, is said to have
two elements. First, there must be widespread and consistent state practice, i.e. States must, in general, have a practice
of according immunity to a visiting Head of State. Secondly, there has to be what is called “opinio juris,” usually
translated as “a belief in legal obligation, i.e. States must accord immunity because they believe they have a legal duty to
do so. A new rule of customary international law cannot be created unless both of these elements are present. Practice
alone is not enough nor can a rule be created by opinio juris without actual practice.
2. Treaties/Conventions
- Article 2 of the Vienna Convention on the Law of Treaties 1969: “a treaty is an agreement whereby two or more
States establish or seek to establish a relationship between them governed by International Law”
- Two types of treaties: Law Making Treaties and Treaty Contracts
- Treaty Contracts: specific, time bound, bind only parties of the treaty, one time contract. Series of similar treaty
contracts tend to become customary law though.
- Law Making Treaties: the provisions of the treaty form international law, consented by P5+1 States. Lays down
the rules of general application. Perform the same function in international field as legislation does in the state
field. Intended for future or continuing observance. An example of such treaty is UN Charter itself.
Treaties (sometimes called agreements, conventions, exchanges of notes or protocols) between states – or sometimes
between states and international organizations – are the other main source of international law. Shaw observes that as a
major source of international law, “treaties (or international conventions) are a modern and more deliberate method of
creating international norms.” Hence, the most important and most concrete sources of international law are bilateral and
multilateral treaties. Multilateral treaties are usually prepared during long negotiations at diplomatic state conferences
where a final treaty text is adopted and then opened for signature and ratification by states. When an agreed number of
states have ratified the treaty, it enters into force and becomes binding on the member states. However, a treaty is not a
source of law so much as a source of obligation under law. Treaties are binding only on states which become parties to
them and the choice of whether or not to become party to a treaty is entirely one for the state – there is no requirement
to sign up to a treaty. A treaty which is freely negotiated between a large number of states is often regarded as writing
down what were previously unwritten rules of customary law. A good example is the Vienna Convention on the Law of
Treaties, 1969. Less than half the states in the world are parties to it but every court, which has considered the matter,
has treated its main provisions as codifying customary law and has, therefore, treated them as applying to all states
whether they are parties to the Convention or not.
Kinds of Treaties!
(a) Law making treaties: Law provisions of law making treaties are directly a source of international law. law making
treaties perform the same functions in the international field as legislation dose in
the state field. there are the means through which international law can be adapted to in accordance with the changing
time and circumstance and the rule of law among the states can be strengthened.
(b) Treaty contracts: Treaty contracts are entered into by two or more states. the provisions of such treaties are
binding on the parties to the treaty. the treaty contracts are indirect source of the international law.
3. General Principles recognized by civilized States
- Mentioned as a source of law in Article 38(1)(c) of the Statute of ICJ
- Colonial/Imperial powers usually regarded as the Civilized States
- Recognized almost by all States. Only becomes law when recognized as one by the World Court
- ICJ resorts to this source only when the treaty and customs are non-liquet (not clear)
- Examples of general principles are ‘good faith’, ‘the principle of humanity’, ‘the principle that breach of an
obligation entails an obligation to make reparation’
(iii) General principles of law: General principles of law recognized by the civilized states are also an important source
of the international law. General principles of law are those rules which have been recognized by almost all the states.
Subsidiary (English)/Auxiliary (French):
The third source of international law listed in Article 38(1) is ‘the general principles of law recognized by civilized
nations’.
• The phrase ‘general principles of law’ refers to either general principles of international law or general principles
of national law, or both.
• It can be difficult to determine what general principles of law are, given that not all principles applied in
international law derive from domestic legal systems.
General principles of law recognized by civilized nations – the third source – are seldom mentioned in judgements. They
are most often employed where the ICJ or another international tribunal wants to adopt a concept such as the legal
personality of corporations which is widely accepted in national legal
systems. But, international law seldom adopts in its entirety a legal concept from a particular national legal system;
instead the search is for a principle which in one form or another is recognized in a wide range of national legal systems.
6. Equity
- Under Article 38(2) of the Statute of ICJ, Case to be decided ex aequo et bono
- Case decision not under legal consideration but solely on what is fair and reasonable in the circumstance of the case
- Though it has never been used by ICJ as of yet
-Ex aequo et bono and equity: Ex aequo et bono is a Latin phrase that loosely translates as ‘according to what is right and
good’, or ‘according to equity and good conscience’. It implies the principles of fairness in the same way as equity is used in
some domestic systems.
● India v. Pakistan (1968) 50 ILR 2 (The Rann of Kutch Arbitration)
in this case, the ad hoc tribunal stated that (at 18):
equity forms part of international law; therefore the Parties are free to present and develop their cases with reliance on
principles of equity [although an] International tribunal will have the wider power to adjudicate a case ex aequo et bono, and
thus go outside the bounds of law, only if such power has been conferred on it by mutual agreement between the Parties.
-Other commonly applied general principles of law: reparation, res judicata , and pacta sunt servanda
Aside from equity, the ICJ (as well as other international tribunals) has applied other general principles of law to disputes
among States.
● Germany v. Poland (1928) PCIJ SER. A, NO. 17 (The Chorzów Factory Case))
In this case, the Court said (at 29) that:
It is a principle of international law, and even a general conception of law, that any breach of an engagement involves an
obligation to make reparation.
When will the ICJ not apply general principles of law?
• The fact that a principle is common to most domestic systems does not mean that the Court will always apply it.
• The Courts are not bound to apply general principles of law just because such principles have been raised by one of the parties
to the case.
4. Judicial Decisions
- Mentioned as a source of law in Article 38(1)(d) of the Statute of ICJ
- According to Article 59 of the Statute of ICJ, “a subsidiary means of determination of rules of law” not a primary
source of law
- The main International tribunal is International Court of Justice
- The decisions of ICJ not binding except on the parties to the case
- The prior decisions not even binding on the court itself: decisions of ICJ do not set a precedent
- However, the court mostly upholds its decisions and does not deviate from its earlier decisions
Article 38(1)(d) refers to judicial decisions as a subsidiary means for the determination of rules of law. In contrast to the
position in common law countries, there is no doctrine of binding precedent in international law.
Indeed, the Statute of the ICJ expressly provides that a decision of the Court is not binding on anyone except the partiers
to the case in which that decision is given and even then only in respect of that particular case (Article 59).
Nevertheless, the ICJ refers frequently to its own past decisions and most international tribunals make use of past cases
as a guide to the content of international law, so it would be wrong to assume that “subsidiary” indicated a lack of
importance.
Article 38(1)(d) does not distinguish between decisions of international and national courts. The former are generally
considered the more authoritative evidence of international law on most topics (though not those which are more
commonly handled by national courts, such as the law on sovereign immunity). But, decisions of a state’s courts are a
part of the practice of that state and can, therefore, contribute directly to the formation of customary international law.
Lawrence’s views: “A writer an international law in a sense himself legislates for he creates the opinion that is really
supreme.”
5. Juristic Works
- Mentioned as a source of law in Article 38(1)(d) of the Statute of ICJ
- Cannot be determined as an independent source of law but the view of jurists may help in development of
international law
- Internationally reputed scholars: Oppenheim, Grotius, Vattel
- In the case of Paquete Habana (1900), US Supreme Court Judge Gary J said that the juristic works are a
“trustworthy evidence of what the law really is”
5. Writings
The writings of international lawyers may also be a persuasive guide to the content of international law but they are not
themselves creative of law and there is a danger in taking an isolated passage from a book or article and assuming
without more that it accurately reflects the content of international
law. According to Article 38 of the Statute of the ICJ, “the teachings of the most highly qualified publicists of the various
nations” do constitute a “subsidiary means for the determination of the rules of law”.
6. Other Sources
The list of sources in Article 38 of the Statute is frequently criticized for being incomplete. In particular, it makes no
mention of the acts of the different organs of the United Nations. Today, there can be no doubting the importance of
those acts in shaping international law, although they perhaps fit within the system of Article 38 better than is sometimes
imagined. The United Nations General Assembly has no power to legislate for the international community; its resolutions
are not legally binding. However, many of those resolutions have an important effect on the law-making process. Some
resolutions are part of the treaty-making process, attaching a treaty text negotiated in the framework of the United
Nations and recommended to the Member States by the Assembly. In addition, the positions which states take in the
United Nations is part of their practice and a resolution (or sequence of resolutions) which commands a sufficiently
widespread acceptance and which is regarded by the states as embodying a rule of international law can have an
important effect on the development of customary international law, so long as it is not contradicted by what states
actually do elsewhere.
2.10.1 International organizations
International organizations constitute a distinct potential source of international law, especially in light of the explicit reference
by the ICJ to the resolutions of the UN General Assembly in the Nicaragua Case (see section 2.5.2). However, it is extremely
doubtful that the ICJ intended to refer to those General Assembly resolutions in the technical sense of a source of law. If it did,
the extensive criticism that the Court’s ruling received in that case surely undermined the campaign for elevating the General
Assembly to the level of a law-creating institution.
That is not to say, however, that international organizations do not have some effect on the development of international legal
norms. As the ICJ said in its 1996 Advisory Opinion on (p. 63) the Legality of the Threat or Use of Nuclear Weapons, with
regards to the various General Assembly resolutions adopted in 1961, condemning the use of such weapons The approach of
States regarding the impact of UN General Assembly resolutions on the formation of law has already been noted earlier. What
is left to observe is that there is a strong probability that the resolutions of the Assembly will continue to play a considerable
role in the development of international law.
2.10.2 Soft law
The ‘sources of international law’ is one of the most important topics of public international law with which a student,
especially one new to the discipline, must immediately grapple.
The various themes and sub-themes covered in this chapter—treaties, customs, general principles of law, judicial decisions,
writings, and international organizations—form the bulk of the substance in the topics to be discussed in several of the
subsequent chapters.
‘Sources of international law’ provides international law with validity. It answers such questions as: from where is international
law derived, and through which processes? It shows, to a reasonable extent, how States behave towards one another in relation
to new and emerging norms, as well as in relation to settled conduct.
However, deciding which source is to apply in a case and tracking the relationship between some of the sources, such as treaty
and customs, are as tricky as indeed it is to determine whether there is a hierarchy among the sources and, if there is, what the
practical importance of this is.
Article 38(1) of the ICJ Statute provides an invaluable list of sources of international law. However, as we have seen, it is
difficult to regard the list as exhaustive. The evolution of ‘soft (p. 65) laws’, as well as the practice of international
organizations, continues to enrich and expand the sources of international law.
Soft Law
- Resolutions and Declarations of UNGA
- Codes of conduct
- Some resolutions tend to become customary laws if consented by most States (e.g., resolution against Apartheid);
these resolutions become binding on States after becoming a customary law
- No legal importance but political significance
- Some resolutions embody a clear consensus of international community
- Helps in development of International Law and practice

Article 38 of statute of International Court of Justice: The court whose function is to decide in accordance with
international law such disputes as are submitted to it shall apply.
(a) International conventions whether general or particular establishing rules expressly recognized by the contesting states.
(b) International custom as evidence of a general practice accepted as law.
(c) The general principles of law recognized by civilized nations.
(d) Judicial decisions and teaching of the most highly qualified publicists of the various nation as subsidiary means for the
determination of rules of law.
Hierarchy of sources: are all sources equal—or are some more equal than others?
Conclusion
Unlike sources of law in the municipal or domestic legal systems, sources of international law cannot be ascertained with
the same degree of specificity, clarity and precision. This is attributable to a major deficiency in the international legal
system – namely the lack of a centralized legislative authority as exists in municipal law systems. Nonetheless, it is
important to note that accessibility to, and systematization of, international law sources have been greatly enhanced by
technological advancement and sophistication.
TREATY
 Define a ‘Treaty’. State how are they concluded and terminated? Explain it in the light of Vienna Convention on the
Law of Treaties 1969. 2000
 Coercion against a state renders a treaty invalid. Discuss main features of the principle. Also elaborate two other methods of
rendering invalid the consent of a state to be bound by a treaty.2002
 State and discuss in brief the various steps mentioned by starke in the creation of legal obligation by a treaty. 2003
  How far do you think that International Law is based on common consent of States? Evaluate importance of
customary law and treaty law as binding in this regard 2009
 What are the various kinds of treaties in international law? Explain the laws about formation, interpretation and
termination of treaties. 2012
 What is STATE SUCCESSION ? What is the scope of treaty continuity or treaty obligations in case of
extinction of a state?Re-Exam 2013
Law and Practice as to Treaties
VIENNA CONVENTION ON THE LAW OF TREATIES, 1969
- Treaties are the first and foremost source of International law
- Decision of a court regarding any case is taken based on the provisions of a treaty, if exists
- An international treaty occupies the same position in International Law as legislation occupies in the municipal law
- Professor Oppenheim: “international treaties are agreements of a contractual character between States or
organizations of States creating legal rights and duties”
- Professor Shwarzenberger: “Treaties are agreements between subjects of international law creating a binding
obligation in international law”
"Treaty is an agreement concluded between states in written form and governed by international law-Vienna
convention article-2, 1969
-Starke: “in nearly all cases, the object of treaty is to impose binding obligations on the States which are party to it.”
Basis of Binding Force of International Treaties
- Pacta Sunt Servanda: States bound to fulfill treaty obligations in good faith
- Oppenheim gives religious, moral principles, self-restraint as the bases of binding force of international treaties
- Some contend that it is the will of the contracting parties at foundations of a treaty that keeps them bound to its
provisions
- Most agreed upon answer to this enigma is that because it is a customary rule of international law to fulfill treaty
obligations, the international treaties are considered inviolable (Oppenheim)
- Professor Hans Wehberg, in his book ‘Pacta Sunt Servanda’, has expressed that the sanctity of contracts given
religious importance and moral significance holds the treaty sacrosanct
- He also remarked: “no economic relations between States and foreign corporations can exist without the principle of
pacta sunt servanda.”
- Pacta sunt servanda, however, embraces only lawfully concluded treaties
Classification of Treaties
- Professor Oppenheim has classified treaties into two categories:
1. Law-making Treaties
2. Treaties for other purposes
Parties Competent to Make a Treaty
- Generally, only sovereign States competent to make a treaty
- However, in the changing view of the world, International institutions may also make treaties
- States or entities that enjoy the position of an international person may conclude international treaties
Free Consent in Treaties
- Consent procured by coercion or fraud cannot make the contract binding
- Article 51 of the Convention: “expression of a State’s consent to be bound by a treaty which has been
procured by the coercion of its representatives through acts or threats against him shall be without any legal
effect”
- Article 52 of the Convention: “A treaty is void if its conclusion has been procured by the threat or use of
force in violation of the principles of International Law embodied in the Charter of the United Nations.”
Formation of Treaties
1. Accrediting of persons on behalf of contracting parties
2. Negotiation and adoption
3. Signatures: by the authorized representative
4. Ratification: head of State confirms or approves the signature
5. Accession and Adhesion: States who do not sign the treaty may accept it later on (accession). States other
than those who are party to a treaty may also accept or adhere to that treaty (adhesion)
6. Entry into force: binds only the parties who have ratified it (pacta treaties nec nocent nec prosunt)
7. Registration and Publication: as per Article 102 of UN Charter, registration and publication of every
International treaty is essential. It prevents the practice of secret agreements between States.
8. Application and Enforcement
Ratification of a Treaty
- Head of State or the State Government approves the signatures of its authorized representative
- Article 2 of the Convention: “Ratification is the international act whereby a State establishes on the international
plain its consent to be bound by a treaty”
- Ratification has no retroactive effect
- Without ratification, a treaty has no value in law
- Article 14 of the Convention on necessity of ratification when:
i. There is a provision for the same in a treaty
ii. Parties express the view that the ratification is necessary
iii. Treaty is signed under the condition that ratification is necessary
iv. Intention of ratification is evident from circumstances and talks during negotiations
- Reasons for ratification of a treaty:
i. Opportunity to consider in detail the treaties
ii. Basis of the principle of sovereignty
 iii. Sometimes, treaties require some change in State law; allows time
iv. Basis of democratic principles; consent of the Parliament taken
- It must be noted that the signature of an authorized representative on a treaty does not bind a State Government or a
Head of State in an obligation to ratify such treaty
- Ratification is not a must before a treaty could be concluded. In case of non-ratification, it depends upon the parties as
to what happens to the treaty
Reservation
- Article 2(1) of the Convention: “Reservation means a unilateral statement made by a State when signing, ratifying,
accepting, approving, or acceding to a treaty, whereby, it purports to exclude or modify the legal effects of certain
provisions of the treaty in their application to the State.”
- In bilateral treaties, if either party refuses to accept the reservation, the treaty comes to an end
- Multilateral treaties, however, present conflicting legal problems
Interpretation of Treaties
1. Grammatical Interpretation
2. Object and Context of the Treaty
3. Reasonable and Consistent
4. Principle of Effectiveness
5. Recourse to Extrinsic Material
The famous jurist Bynkershoek wrote: “The Civil law protects the contracts of individuals; good faith the contracts of
princes. If you destroy good faith, you destroy the mutual intercourse of princes and destroy even international law
itself.”
Termination of Treaties
1. By Operation of Law
a. Extinction of either party to a bilateral treaty
b. Outbreak of war
c. A material breach of bilateral treaty
d. Impossibility of performance
e. Rebus sic stantibus: change of fundamental circumstances under which treaty was entered into
f. Expiration of fixed term
g. Successive Denunciation
h. Jus Cogens
2. By act of the State parties
Pacta Terties Nec Nocent Nec Prosunt
- Only parties to a contract are bound by the contract
- Exception to this principle is given in Article 34 to 38 of the Convention, whereby other States may also be bound
by a treaty:
i. Treaties concerning the rights of third parties
ii. Multilateral treaties which declare international customary law
iii. Treaties which make new rules of International Law
iv. Treaties having universal application
v. Treaties imposing obligations on third parties, and the third party accepts the obligation
Conclusion
- The revision of treaties is neither exception nor in contradiction with the norm of pacta sunt servanda
- Rebus sic stantibus must be clearly defined
- Article 62)1) of the Convention allows invocation of rebus sic stantibus only when changed circumstances constitute
an essential basis and if the effect of change is radically to transform the extent of obligations still to be performed under
the treaty
Unequal Treaties
- According to the Soviet view, unequal treaties are those which are entered into between imperialist powers and
colonial and dependent nations; a treaty which provides that one State has a power to exercise control over another
State, permitting establishment of foreign military bases, collective security agreements between capitalist States and
economic assistance agreements
- Western States and jurists oppose the concept of unequal treaties
- The Vienna Convention on the Law of Treaties does not contain any provision relating to unequal treaties
Jus Cogens
- Article 53 of the Convention incorporates: “A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law.”
- A norm from which no derogation is permitted
- Article 2 of the UN Charter possess the character of jus cogens
- Article 64 of the Convention: “if a new peremptory norm of general international law emerges, any existing treaty which
is in conflict with that norm becomes void and terminates.”
- By codifying the doctrines of jus cogens and rebus sic stantibus, the Convention provides a framework for dealing with
change in an orderly fashion. By reasserting the principles of pacta sunt servanda, it strengthens
International treaties are first and foremost source of international law , treaties are the most important of these
sources. For many reasons, treaties are the most widely used international instruments through which States and other
international law subjects conduct relations with one another
Definition:
International treaties are agreement of contractual character between states or organization of states creating legal
rights and duties-Oppenheim
"Treaties are agreement between subject of international law creating a binding obligation in international law."-
Scharzen Berge
"Treaty is an agreement concluded between states in written form and governed by international law-Vienna
convention article-2, 1969
Type:
13. Kinds of treaties: Following are kinds of treaties.
I. Bilateral treaties: These are such treaties in which participation and rights and obligations arising from the treaty are
limited only to two parties.
II. Pluriteral treaties: In such treaties participation is open to a restricted number of states. the minimum number should
be three.
III. Multilateral treaties: Multilateral treaties are those treaties where participation open to all the states
Distinction between bilateral and multilateral treaties: I. As to number of parties: In bilateral treaties there are two
parties. In multilateral there is no limit of number of parties. II. As to nature: Bilateral treaties are referred to as treaty
contract. Multilateral treaties are called law making treaties. III. As to scope: Bilateral treaties have less scope.
Multilateral treaties have wider scope
Functions of treaties in international law:
The functions of treaties in international law are as under: (a) A source of law. (b) A source of international
constitutional law. (c) An instrument for imposing binding obligation
Different names of treaties: Following are some alternative name used for the term treaty.
(i) Protocoal (ii) Pact (iii) Agreement (iv) Memoire (v) code (vi) Contract (vii) Additional articles (viii) Charter (ix)
Convention (x) Compact (xi) Exchange of notes (xii) Process verbal (xiii) Statue (xiv) Declaration (xv) General act
Treaties concluded between or among States (Articles 1–3)
Article 1 VCLT states that ‘the present Convention applies only to treaties between States’. This restriction is further
confirmed by the explicit reference to ‘agreement concluded between States’ in Article 2. While Articles 1 and 2 limit the
VCLT to ‘States’, it does not mean that treaties concluded by States with other subjects of international law have no legal
effect. Article 3 states that:
the fact that the present Convention does not apply to international agreements concluded between States and other
subjects of international law or between such other subjects of international law, or to international agreements not in
written form, shall not affect the legal force of such agreements

The Law of Treaties

A treaty is a written international agreement concluded between States or other persons of International
Law and designation. In English, the term ‘treaty” is used as a generic term embracing all kinds of
international agreements “convention”, “declaration”, “general act”, “pact”, “protocol”, “statute”, as well
as the term “agreement” itself. Whatever Treaties can be traced back as far as the early-recorded history
of Mankind. Evidence for their existence has treaties in every conceivable subject. Ten of thousands
treaties have been registered with the United Nations since signed, codifying and developing existing
customary rules; it came into force in 1980.
The 1969 Vienna Convention on the Law of Treaties defines “treaty” as “an international agreement
concluded between and whatever its particular designation.”It further provides that it “does not apply to
international agreements agreements not in written form”. These provisions exclude agreements between
states which are governed by agreements. The reason for the exclusion of these types of international
agreements is to avoid complication and complexity aspects from the rules governing written agreements
between States. A special convention applicable to agreements between States and International
Organizations or between International Organizations”, was signed in 1986. However, The following
sections are devoted to the rules applicable to the written agreements between States as provided under
customary international law continue to govern questions not regulated by the Convention.

Section 1: Conclusion of Treaties

Treaties may be concluded by States in any manner they wish. There are no obligatory prescribed forms
or procedures States. However, the 1969 Convention on the Law of Treaties provides general rules
applicable to the conclusion and the adoption of treaties.

A. The Capacity to Conclude Treaties

Under the Convention, every State possesses capacity to conclude treaties. Since States are represented
by persons, express the consent of the State bound by a treaty. Such persons must produce what is
known as “full powers”. requirement is necessary to ensure the States parties to the treaty that they are
dealing with the competent persons.

(1) Heads of States, heads of governments and the ministers for foreign affairs, for the purpose of
performing.

(2) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between their States;

(3) Representatives accredited by States to an international conference or to international organization or

B. Adoption and Authentication of the Text of Treaties.
Once a draft of a treaty has been agreed upon by the competent persons, several stages need to be
followed before content of the text of the proposed treaty are settled. It takes place by the consent of all
the States participating in unless by the same majority they decide to apply a different rule. The adoption
of the text of a treaty does not mean Second, the text of a treaty has to be authenticated. Authentication
is a procedural step whereby the text of the definitively its content so that there will be no confusion as to
its exact terms. The authentication of the text of a procedure, authentication may take place by the
signature, signature ad referendum or initiating by the representatives.

C. The Adoption of Treaties

A treaty has to be adopted by the participating States to become binding upon them. States adopt a
treaty by giving consent may be expressed by signature, exchange of instruments constituting a treaty,
ratification, acceptance, approval .

(1) Consent by signature

A State may be regarded as consented to a treaty by signature when the treaty provides that signature
shall have State to give that effect to the signature appears from the full powers of its representatives or
was expressed during The act of signature is usually a formal event. Often in important treaties, heads of
States formally affix their closing session held for that reason.

(2) Consent by exchange of instruments constituting a treaty

A State may be regarded as consented to a treaty by an exchange of instruments constituting a treaty
when the the instrument should have that effect. Nowadays, often each State signs an instrument
constituting a treaty and sends.

(3) Consent by ratification, acceptance or approval

The signing of the treaty by the representative of a State is either a means of expressing the final consent
of the depends upon the terms of the treaty, the agreement of the negotiating States or their intention. If
the treaty is subject namely the head of the State. Ratification by the competent authority of the
contracting State is a step well established treaty. It allows a State to examine the provisions of a treaty
before undertaking formal obligations. Moreover, it enables of how a state ratifies treaties is a matter for
its internal law alone. The rules related to ratification vary from State The consent of a state to be bound
by a treaty is expressed by ratification (acceptance or approval) when the ratification should be required,
when the representatives of the State has signed the treaty subject to ratification, or during the
negotiation. Ratification occurs when instruments of ratification are exchanged between the contracting
States, or are deposited the State or the international organization that is appointed by the treaty to act
as the depositary.

(4) Consent by accession

In addition to signature and ratification, a State may become a party bound by a treaty by accession.
Accession consent to it may be expressed by accession, if it is established that the negotiating States were
agreed that consent accession. Accession has the same effects as signature and ratification combined. It is
the practice in the modern D. Reservation to a Treaty.

It is well established in the practice of States that a State has a capacity, when becoming a party to a
treaty, to accept Vienna Convention on the Law of Treaties which states that a State may, when signing,
ratifying, accepting, approving purpose, or the treaty permits only specified reservations. A reservation is
defined by this Convention as “a unilateral to exclude or modify the legal effects of State”.

The effect of a reservation depends on whether it is accepted or rejected by the other parties to a treaty,
and this counteroffer which may reopen the negotiation between the two parties concerning the terms of
the treaty; and unless because it may be accepted by some parties and rejected by others. In such a
case, the Convention on the Law States unless the treaty so provides, and that when it appears from the
limited number of the negotiating States and of each one to be bound by the treaty, a reservation requires
acceptance by all the parties.

The Convention requires that a reservation, an express acceptance of a reservation and an objection to a
treaty acceptance of a reservation by a State may be implied if it has raised no objection to the
reservation by the end of whichever is later. An objection by another contracting State to a reservation
does not preclude the entry into force Unless the treaty provides otherwise, a reservation or an objection
to a reservation may be withdrawn at any time. required that the withdrawal of a reservation or of an
objection to a reservation be formulated in writing. Unless only when notice of it has been received by the
concerned State.

A reservation established with regard to another party modifies for the reserving State in its relations with
that same extent for that other party in its relations with the reserving State. However, the reservation
does not modify Section 2: Entry into Force, Registration and Depositary of Treaties
The Convention provides rules applicable to the entry into force of treaties as well as rules applicable to
registration.

A. Entry into Force of Treaties

According to the Vienna Convention on the Law of Treaties, a treaty enters into force in such a manner
and upon force as soon as consent to be bound by that treaty has been established for all the negotiating
States. When the consent on that date, unless the treaty provides otherwise.

Normally, treaties specify that they will enter into force upon a certain fixed date or after a determined
period States. However, even when the minimum required number of ratifications is reached, the treaty
enters into force only on the Law of Treaties, for example, provides that it will come into force on the
thirtieth day following the date of Convention after the deposit of the thirty-fifth instrument of ratification
or accession, the Convention shall enter into. Nevertheless, a treaty or a part of it may be applied
provisionally pending its entry into force if the treaty itself so have agreed otherwise, the provisional
application of a treaty or a part of it with respect to a State shall be terminated treaty.

B. Registration and Depositary of Treaties

After the entry of a treaty into force, the Vienna Convention requires that the treaty to be transmitted to
the Secretariat one provided for by the Charter of the United Nations. Article 102 of the Charter provides
that every treaty and every and published by it. Under this article, non-registered treaty or agreement
remains valid but the parties to it may not from entering into secret treaties and in general to ensure
publicity for treaties.
Treaties, nowadays, are registered with the Secretariat of the United Nations which then publishes them in
the United In addition, the Vienna Convention on the Law of Treaties requires the designation of
depositary of a treaty. This more States, an international organization or the chief administrative officer of
the organization. The depositary communications related to the treaty; giving certified copies of the treaty
and transmitting them to the concerned treaty about the entry into force of the treaty. Notably, the United
Nations Secretariat plays a significant role as Section 3: Observance and Application of Treaties.

Once treaties enter into force, they must be observed and applied by the parties. Observance and
application of A. Observance of Treaties
The Latin principle “Pacta Sunt Servanda”, which means that treaties shall be observed, is the
fundamental principle of the 1969 Vienna Convention on the Law of Treaties, which states that “[e]very
treaty in force is binding upon Article 27 of the Convention is that “[a] party may not invoke the provisions
of its internal law as justification for According to these two principles, the parties to a treaty are under a
duty to observe the treaty in good faith, and

B. Application of Treaties
Under the Vienna Convention on the Law of Treaties, the application of treaties is subject to the following
rules:

(1) Non-Retroactivity of Treaties

The Vienna Convention provides that the provisions of a treaty, unless a different intention appears from
the treaty before the date of the entry into force of the treaty with regard to that party. The general rule
here is that a treaty does the provisions of the subsequent treaty, unless a contrary agreement so
provides.

(2) Territorial Scope of Treaties

The Vienna Convention provides that unless a different intention appears from the treaty or is otherwise
established, the treaty will apply only to part of its territory.

(3)Application of Successive Treaties Related to the Same Subject Matter

Sometimes, it happens that a party to a treaty subsequently enters into another treaty related to the
same subject not also be parties to the first treaty. These situations raise certain problems which need to
be resolved. Article 30 however, for the parties themselves to resolve the raised problems by their mutual
agreement.
Under Article 30, the rights and obligations of States parties to successive treaties related to the same
subject-matter a. When a treaty specifies that it is subject to, or that it is not to be considered as
incompatible with, an earlier

b. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not
terminated c. When the parties to the later treaty do not include all the parties to the earlier one:

i. as between States parties to both treaties, the earlier treaty applies only to the extent ii. as between a
State party to both treaties and a State party to only one of the treaties, In case of treaties concerning the
same subject-matter and having incompatible provisions, the presumption is this is the case of Article 103
of the Charter of the United Nations which stipulates that “[i]n the event of a conflict agreement, their
obligations under the present Charter shall prevail.” Furthermore, a particular treaty prevails over
community of States as a whole as norms from which no derogation is permitted and which can be
modified only by (4) Treaties and Third States.
The Latin principle “pacta tertiis nec nocent nec prosunt”, which means that a treaty creates neither right
nor international law. The reasons for this principle can be found in the fundamental principles of the
sovereignty in article 34 of the 1969 Vienna Convention on the Law of Treaties as a general rule corollary
of the principle of consent. First, the Convention provides that an obligation may arise for a third State
from a provision of a treaty if the parties obligation in writing. In such a case, the obligation may be
revoked or modified only with the consent of the parties Second, the Convention provides that a right may
arise for a third State from the provision of a treaty if the parties the third State assents thereto, unless
the treaty provides otherwise. In such a case, the right may not be revoked or the third State. In
exercising such a right the third State is required to comply with the conditions for its exercise provided
upon a third State if it becomes a part of customary international law.

An example of a treaty imposes obligation upon non-party State is the 1815 agreement concerning the
neutralization 1899 and 1907 Hague Conventions concerning land warfare, and the principles stated in
Article 2 of the Charter of far as rights conferred upon third States by a treaty are concerned, there are
many treaties containing provisions in of Denmark and Switzerland, and the 1888 Constantinople
Convention which contains provisions guaranteeing freedom.

Section 4: Interpretation of Treaties

Interpretation of treaties is the most frequent focus of disputes arising with regard to treaties. Because
language of treaties has been a major task in International Law. Obviously the parties to a treaty have
competence to interpret or the International Court of Justice (ICJ). The Charter of the United Nations is
interpreted by the organs of the United Interpretation of treaties is a rational process of clarifying and
elucidating the meaning of unclear and ambiguous developed by international tribunals, publicists, organs
of international organizations and diplomatic practice. Though, The 1969 Vienna Convention on the Law of
Treaties, however, lays down certain fundamental rules and guidelines interpretation, and interpretation of
treaties authenticated in two or more languages.

A. General Rules of Treaty Interpretation

The first general rule for treaty interpretation provided by the Vienna Convention is that “[a] treaty shall
be interpreted and purpose.”This rule is the textual approach of treaty interpretation. The context of a
treaty for the purpose of interpretation comprises, in addition to its text, including its preamble should be
taken into account any subsequent agreement between the parties regarding the interpretation of the
treaty regarding its interpretation, and any relevant rules of International Law applicable in relations
between the parties. The second general rule for treaty interpretation provided by the Convention is that
“[a] special meaning shall be However, there are other established approaches of treaty interpretation not
provided for in the Vienna Convention treaty in a way that will render the treaty most effective and useful.

B. Supplementary Means of Interpretation

The Vienna Convention provides that “[r]ecourse may be had to supplementary means of interpretation,
including above general rules needs to be confirmed, or when the interpretation according to the said
general rules leaves the C. Interpretation of Treaties Authenticated in Two or More Languages.
In case of a treaty authenticated in two or more languages, as often happens with multilateral treaties,
the Vienna general rules and supplementary means of interpretation does not remove, “the meaning
which best reconciles the provide or the parties may agree that, in such a case, a particular text shall
prevail.

Section 5: Amendment and Modification of Treaties

Although amendment and modification of treaties are two processes share a common aim which is an
alteration conditions. Amendment relates to a formal alteration or revision of certain treaty provisions or
the treaty as a whole, parties only. Thus the 1969 Vienna Convention on the Law of Treaties deals with
these two processes in separate.

A. Amendment of Treaties
The Vienna Convention refers to three manners to accomplish amendments to treaties. The first manner is
that to the conclusion and entry into force of a treaty will be applied.
The second manner is that a treaty may be amended in accordance with the procedure laid down in the
treaty itself. Charter of the United Nations, for example, lays down in Articles 108 and 109 the procedure
for its amendments the United Nations, including all the permanent members of the Security Council.
The third manner is that a treaty may be amended in accordance with the basic rules of procedure
described by contracting States shall have the right to participate in the decision as to the action to be
taken in regard to such proposal, treaty is also entitled to become a party to the treaty as amended. The
amendment will not bind any State already a force of the amending agreement, unless it intends
otherwise, is considered as a party to the treaty as amended in relation the amending agreement.

B. Modification of Treaties
The Vienna Convention provides that two or more of the parties to a multilateral treaty may conclude an
agreement modification is provided for by the treaty.”[36] The second condition, if “the modification in
question is not prohibited their obligation, and “does not relate to a provision, derogation from which is
incompatible with the effective execution case or if the treaty provides otherwise, the parties in question
must notify the other parties of their intention to conclude Section 6: Termination and Suspension of the
Operation of Treaties. Despite the general rule that “[e]very treaty in force is binding upon the parties to it
and must be performed by Convention provides that the termination of a treaty, its denunciation, the
withdrawal of a party or the suspension applicable rules to such instances, provided by the Convention are
as such:

A. Termination of a Treaty
Termination of a treaty means the end of the operation of a treaty, resulting in depriving all the parties of
all the the withdrawal of a party may take place either in conformity with the provisions of the treaty, or
at any time by consent termination or for the withdrawal of a party. A treaty may provide that it shall
come to an end automatically after notice.
Where a treaty does not contain any provision regarding its termination and does not provide for
denunciation or or such a right is implied by the nature of the treaty. In such cases, however, a party
must give at least twelve months’ The Convention specifies the reasons for terminating a treaty. First, a
treaty may be terminated by the conclusion treaty are so far incompatible with those of the earlier one
that the two treaties are not capable of being applied at repudiation of the treaty not permitted by the
Vienna Convention or the violation of a provision essential to the accomplishment impossibility of
performance resulting from the permanent disappearance or destruction of an object indispensable
existing at the time of the conclusion of that treaty. Fifth, a treaty may be terminated by reason of the
severance of parties except in so far as the existence of diplomatic or consular relations is indispensable
for the application of terminates.
As regard the consequences of termination of a treaty, the Convention provides that unless the treaty
provides however, it does not affect any right, obligation or legal situation of the parties created through
the execution.

B. Suspension of the Operation of a Treaty

Suspension of the operation of a treaty means the making of a treaty temporary inoperative in regard to
either all to the provisions of the treaty or at any time by consent of all the parties. Two or more parties to
a multilateral possibility of such a suspension is provided for by the treaty,” or “the suspension in question
is not prohibited by obligation,” and “is not incompatible with the object and purposes of the treaty.
However, unless the treaty provides the treaty the operation of which they intend to suspend. Treaties
sometimes provide for the possibility of suspension Under the Convention, a treaty may be suspended by
the following circumstances: 1) the conclusion of a later treaty a material breach of a treaty which
consists in either a repudiation of the treaty not permitted by the Vienna Convention performing a treaty;
or 4) a fundamental change of circumstances occurs with regard to those existing at the time of
Suspension of the operation of a treaty releases the parties from any further obligation to perform the
treaty during the treaty prior to its suspension.

Section 7: Invalidity of Treaties

Invalidity of a treaty means nullity of a treaty or its particular provisions because of the existence or
absence of certain validity or invalidity of treaties. The 1969 Vienna Convention on the Law of Treaties,
however, provides some general consequences of the invalidity of treaties.

A. General Rules on Invalidity of Treaties

The Vienna Convention on the Law of Treaties provides that “[t]he validity of a treaty or the consent of a
State invalidating (as well as for terminating, withdrawal from or suspending the operation of a treaty)
may be invoked only to a material breach of a treaty by one of the parties. A State cannot invoke a
ground for invalidating (as well as for is valid or remains in force, or it, by reason of its conduct, may be
considered as having acquiesced in the validity B. Grounds for Invalidating Treaties
The Vienna Convention specifies the following grounds for invalidating treaties:

1) Manifest violation of a provision of fundamental importance of State’s internal law regarding

competence accordance with normal practice and in good faith.”[46]

2) Lack of the State’s representative appropriate full powers.[47]3) Excess of authority by the
representative:[48] Such an excess will be a ground to invalidate a treaty if negotiating States prior to his
expressing such consent.4) Error: A State may invoke an error in a treaty as invalidating its consent to be
bound by the treaty situation forms an essential basis of its consent to be bound by the treaty. If the
State in question contributed invalidating its consent. An error relating only to the wording of the text of a
treaty does not affect its validity.

5) Fraud: A State may invoke the fraud as invalidating its consent to be bound by the treaty if it has 6)
Corruption of a representative of a State: A State may invoke the corruption of its representative as
directly or indirectly by another negotiating State.

7) Coercion of a representative of a State: Acts or threats directed personally against a representative

without any legal effect.

8) Coercion of a State by the threat or use of force: A treaty is void if its conclusion has been procured.

9) Conflict of the treaty with an existing and emerging peremptory norm of general International Law
(peremptory norm of general International Law emerges, any existing treaty conflicting with that norm
becomes C.

Consequences of Invalidity of Treaties.

The consequences of invalidity of treaties vary according to the nature of the ground of invalidity. The
Vienna State and conflict with an existing and emerging of peremptory norm of general international law,
the treaty is void, cases of violation of the internal law of the State, excess authority by the
representative, error, fraud, and corruption may invoke the ground to invalidate the treaty. However, this
 right may be lost for the following reasons: (a) if after may be considered as having acquiesced in the
validity of the treaty or in its continuance in force or in operation; or The Convention provides that an
invalid treaty is void and without any legal effect. If acts have nevertheless position that would have
existed if the acts had not been performed. Acts performed in good faith before the invalidity Section 8:
Procedures to be Followed with Respect to Invalidity, Termination, Withdrawal from, or Suspension
Operation of a Treaty.

The Vienna Convention provides that a party invoking a ground to invalidate a treaty, terminate it,
withdraw from action. If after the expiry of a period which shall not be less than three months from the
receipt of the notification, no has been raised by any party, the parties must seek a solution through the
peaceful means indicated in Article 33 of If no solution is reached within twelve months, the dispute is to
be submitted to a special conciliation commission to the International Court of Justice (ICJ).

SUBJECT OF INTERNATIONAL LAW

 What does Subjects of international law mean? Discuss individuals as subjects of International Law. Elaborate your
answer with the appropriate examples.2005
 Briefly and precisely define SUBJECTS International Law. Do you agree that INDIVIDUALS can be considered as
subjects of International Law? Give appropriate examples in this regard.2008
 What is meant by 'Subjects of International Law'? Justify Individuals as the subject of International Law by giving
appropriate examples. 2010
 States continue to be the principal subjects of international legal relations but non-state entities too exert a great deal
of influence on the legal system. Examine the statement with reference to rights and duties of international
organizations under law.2013
 What do you understand by international institutions? Discuss their status and functions as subject of international law. 2002
 Q3. Explain the term “Subjects of International Law”. Whether States continues to be the principal subjects of
international legal relations and also justify individuals as subject of international Law by giving appropriate
examples? 2022
 What do you mean by subject of law? Discuss individuals as subjects of International law with special reference
to Reparation for injuries suffered in the service of United Nations Organization case 1949.2018
 “International Law is a Law regulating the rights and duties of states and creating no rights and
imposing no duties on individuals”. Do u agree with this statement? Why or why not? Argue.2006
 "International Law is primarily concerned with the rights, duties and interests of states." Examine this
statement with reference to the place of individuals and non-state entities is International Law. 2011
 As a law based on common consent of states, international law should have more binding authority and
less moral considerations . Discuss. Re-Exam 2013
What are the SUBJECTS of international law? Discuss.
Ans: -Traditionally, international law applied only to States. This was mainly because States create international law,
either through treaties or customs. It is not surprising, then, that during the early stages of its development
international law regarded only States as its subjects. However, just as contemporary developments widened the
scope of international law, so also have they expanded the category of its subjects to include international
organizations and, in some cases, human beings. Nonetheless it is still possible to differentiate between various
subjects of international law. In the Case concerning Reparation for Injuries Suffered in the Service of the United
Nations (1949) ICJ Rep 178, the ICJ said that ‘the subjects of law in any legal system are not necessarily identical
in their nature or in the extent of their rights, and their nature depends upon the needs of the community’.
By subjects of international law it is meant that those entities which possess international personality. In other
words subjects of international law are those entities that have rights duties and obligations under international law and
which have capacity to possess such right, duties and obligations by bringing international claims. In past the matter
was not much debatable because according to the contemporary circumstances and scope of international law only the
states were qualified for international personality, but in near past along with the increasing scope of international law
many other entities have been given international personality. Now, the question arises; whether they may be treated as
subjects of international law or not? And also if they were given the international personality then what shall be the
criteria for ascertaining the qualification of their being the subjects of international law.
There are various debates on the matter of who exactly is subject to international law. Among others, three main theories
answering this question are as follows:
1. Realist Theory (States alone are the subjects of International Law) : - According to the followers of this theory the
only subject of the international law are the Nation States. They rely that Nation States are the only entities for whose
conduct the international law came into existence. The Nation States, irrespective to the individuals composing them, are
distinct and separate entity capable to have rights, duties and obligations and can possess the capacity to maintain their
right under international law. So, the Nation States are the ultimate subjects of International law.
- Oppenheim is a chief exponent of this theory
- P. E. Corbett: “the triumph of positivism in the late eighteenth century made the individual an object, not a subject of
international law.”
- This theory fails to take pirates and the case of slaves into account
- The exponents of this theory consider slaves and pirates as the objects of international law, rather than the subjects
- Individuals are the basis of society and they collectively form a State. In that case they become direct subjects also if
States are considered as subjects of International law.
2. Fictional Theory: (Individuals alone are the subjects of International Law ) - According to the supporters of this
theory the only subjects of international law are the individuals. For the reason, that both the legal orders are for the
conduct of human being and for their good well. And the Nation States are nothing except the aggregate of the
individuals. Though the rules of international law relate expressly to the Nation States but actually the States are the
fiction for the individuals composing them. Due to this reason individuals are the ultimate subjects of International law.
- The ultimate analysis of international law yields the result that individuals are basically the only subjects of international
law
- Professor Kelsen is one of the chief proponents of this theory
- Westlake had remarked: “The duties and rights of the States are only the duties and rights of men who compose
them.”
- However, the primary concern of international law is the rights and duties of States, although there is nothing in
international law that prevents individuals from acquiring directly rights under a treaty provided that this is the intention
of the contracting parties
- Moreover, a State is entitled to protect its subjects when injured by acts contrary to international law committed by
another State
- Individuals are now recognized as subjects of International law but their procedural capacity to enforce their rights is
deficient
3. Functional Theory (. States are the main subjects of International Law but, to a lesser extent, individuals and
other non-state actors have certain rights and duties too ): - Both the Realist and Fictional theories adopted the
extreme course of opinions. But Functional theory tends to meet both the extremist theories at a road of new approach.
According this theory neither states nor individuals are the only subjects. They both are the subjects of modern
international law. Because for states being primary and active subject of international law have recognized rights, duties
and obligations under international law and are capable to maintain the same by bringing international claim. At the other
hand in the modern international law individuals have also granted certain rights, duties and obligation under
international law and maintain the same by bringing direct international claims. Even, not only states and individuals are
the subjects of international law but several other entities have been granted international personality and became the
subjects of the international law. This is because of the increasing scope of international law.
- This view not only combines the first two theories, but also extends the scope of international law to other non-state actors
- Following examples support the extended scope of international law:
I. Danzing Railway Official Case (PCIJ): “if the intention of parties [to a treaty] is to confer certain rights upon
individual’s then international law will not only recognize such rights of the individual but may also enforce them”
II. 1949 Geneva Convention on the Prisoners of War: confers rights upon the prisoners of war
III. Nuremberg Tribunals: “Crimes against International Law are committed by men, not by abstract entities and only
by punishing individuals who commit such crimes can the provisions of international law be enforced.”
IV. The Genocide Convention of 1948: person guilty of genocide may be punished, regardless of the person’s stature
V. European Convention on Human Rights: under this convention, European Commissions and European Courts
were established
Conclusion
- International organizations are also the subjects of international law now. International Court of Justice has granted
United Nations a status of an International Person under international law.
- Certain law making treaties have imposed certain obligations upon the individuals and the States have consented to it
- Treaty of Versailles confer upon minorities certain rights
- Universal Declaration of Human Rights 1948 and International Covenants on Human Rights 1966 empower
individuals to such an extent that under certain conditions they can even send petitions against their own States
- Percy E. Corbett: “[international law] is applicable on a footing of equality to individuals, corporations, international
organizations and States.”
Conclusion: - If all the above theories are to be analyzed philosophically then it may be concluded that Functional
Theory seems to be more accurate because due to modern scope of the international law and world trend. It is obvious
that there are many actors in international law, which have been granted rights, duties and obligations, and also to
secure their rights and have been provided with capacity to bring international claims. So along with states and
individuals neither, certain other entities which have been given international personality shall be treated as subjects of
international law but also all those new entities which with due course of time are going to be given international
personality.
  What is the duty of other states in case of internal revolt in an independent state? Can they help the rebels? Under what
circumstances recognition may be accorded to the rebels?2006
 What is the general principle governing imputability of conduct of insurrectional groups to a state? To
what extent can the unlawful acts of a rebel movement that is successful in controlling parts of a state be
imputed to the state?
 In the contemporary conflicts, the role of the non-State armed groups has increased as a physical force
as well as a political negotiator. Is the current International Law of Armed conflicts equipped enough to
deal with the threats posed by the non-State armed groups to the states. Discuss with reference to the
right of self defence against these non-State armed groups.
 Define International personality and discuss various entities as International Legal person.2009

‘Legal personality’ per se refers to the substance of a juristic person; it connotes someone who can act legally, one
who can sue or be sued in law. Thus, an ‘international legal person’ is ‘someone’ who is capable of being a subject and
object of international law; that is to say, someone who can apply international law, and against whom international law
can be applied. This definition applies to all subjects of international law, although, as already noted, the rights, duties,
and obligations attaching to subjects vary considerably according to different subjects.
it is clear that the word ‘person’ is used to refer to one who is a legal actor, but that is of no assistance in ascertaining
who or what is competent to act. Only the rules of law can determine this, (p. 114) and they may select different entities
and endow them with different legal functions, so that it is a mistake to suppose that by merely describing an entity as a
legal ‘person’ one is formulating its capacities in law...
The status of international legal persons
In exercising their competencies, international legal persons are often protected against interferences such as the arrest and
prosecution of their representatives, to ensure that, as subjects of international law, they are able to execute their mandate
without fear or favour. (See Chapter 8 on immunity.)
● Reparation for Injuries Suffered in the Service of the United Nations Advisory Opinion (1949) ICJ REP
174 (The Reparation for Injuries Case)
In this case, the ICJ said (at 183) that:
In order that the agent may perform his duties satisfactorily, he must feel that this protection is assured to him by the
Organization, and that he may count on it. To ensure the independence of the agent, and, consequently, the independent action
of the Organization itself, it is essential that in performing his duties he need not have to rely on any other protection than that
of the Organization...
Thus international legal persons enjoy diplomatic immunity, which is conferred on their official Representatives—that is,
exemption from any form of prosecution when performing their official duties. Also, such officials are often exempted
from paying taxes to the States within which they operate.
International persons are also entitled to express their views and opinions on any matter in the course of their duties
without being liable to the libelous laws of any country.

 An international legal person is an entity who can apply international law and to which international law can be
applied.
 International law subjects enjoy several rights and privileges, and possess certain powers, such as the capacity
to enter into relations with other subjects of international law.
 The rights, powers, and privileges of a subject of international law vary according to the subject and the rights,
duties, and obligations in question.

Statehood
 Examine whether article 1 of the 1933 Montevideo Convention on the Rights and Duties of States is an
accurate statement of the criteria of statehood in the modern context of International Law. ?
Professor Oppenheim writes: “the existence of a State is possible only when people of State have settled under
highest Governmental authority and habitually follow its orders.”
 Professor Hart extends this definition by mentioning the role and function of legislature and courts in a State.
Montevideo criteria
States are the primary and, as stated earlier, the most important subjects of international law. However, while
understanding what an entity requires in order to become a State is not as straightforward, determining the
criteria of statehood is of particular importance. First, there may be many entities within a single territory claiming
to be autonomous States. For example
Following a violent conflict in Somalia in the 1990s, the Somali State collapsed. The rule of law broke down; the legitimate
government was sacked by the rebel insurgency. The physical entity called ‘Somalia’ splintered into various parts.
The same example can be given of the former Socialist Federal Republic of Yugoslavia (SFRY). Following a civil war in the
1990s, SFRY broke into as many as six States, with each claiming autonomy and the competence to represent the old State. The
remains of the old SFRY, the Federal Republic of Yugoslavia (FRY), also known as Serbia and Montenegro, claimed that it had
succeeded the old SFRY.
Due to a severe civil war that broke out in Liberia in 1989, the then legitimate government of the country was restricted to the
capital city, Monrovia, while the rebel groups controlled the remaining parts (constituting 98 per cent of the country).
In cases such as these, it is necessary to be able to recognize and distinguish a State, as a subject of international law, from the
several other entities that may exist within the same territory alongside the State.
The criteria, or the required conditions, that an entity must meet before it can be regarded as a State in international law are
listed in an international treaty. Article 1(1) of the 1933 Montevideo Convention on Rights and Duties of States provides
that:
According to Article 1(2) of the (p. 118) Montevideo Convention, for example, ‘the federal state shall constitute a sole person
in the eyes of international law’.
The Montevideo Convention does not apply to component or federating units, such as New York or Abuja, which make up a
country. Countries are represented on the international plane by the central or federal unit, not their individual component units,
which may also be called States.
How many people may form a State?
There is no requirement in the Montevideo Convention for any given number as the absolute minimum for the purpose of
forming a State. Thus, in theory, any number of people can form a State, insofar as all other requisite conditions of the
Convention are met by the entity claiming statehood.
In 1974, the UN Committee 24 conducted an inquiry into the issue of self-determination.
The Committee Report (UN Doc. A/9623/Add 5, 1974, Part III, pp. 6–7) revealed that the United Nations was concerned about
the small size of the populations of the non-self-governing States when it considered their quest for self-determination.
However, it seems that the UN is not as concerned today about the size of populations seeking to form States as it was before.
Self-determination
The ability of a people to govern themselves, a process that must be preceded by the people being able to form an independent
State. The Montevideo Convention also requires a defined territory for the existence of a State, recognizable as such under
international law. Therefore, in speaking about a ‘defined territory’ as a requirement of statehood, we mean the land, sea, and
airspace of a State, over which the State possesses and exercises control.
● Re Duchy of Sealand (1978) 80 ILR 683
In this case, an island, the Duchy of Sealand, was originally erected as an anti-aircraft platform used by the UK. The platform
was erected eight miles outside the UK territorial waters, but was attached to the seabed by concrete pillars. The UK abandoned
the platform after the Second World War, but it became occupied in 1967 by a former British Army officer, who proclaimed the
establishment of the Duchy. The plaintiff, who held the title of Foreign Secretary and President of the State Council of the so-
called Duchy of Sealand, brought an action for a declaration that, as one of 106 persons who had acquired the citizenship of the
‘Duchy’, he had lost his citizenship of the Federal Republic of Germany.
The German Bundesverwaltungsgericht (Federal Administrative Court) found that the case was admissible, but unfounded. The
court said (at 685) that: international law required three essential attributes for Statehood. The State must have a territory, a
people and a government. At least two of these requirements were absent in the case of the ‘Duchy’. Territory must consist in a
natural segment of the earth’s surface. An artificial island, albeit connected to the earth’s surface, did not satisfy this criterion.
Whilst size was irrelevant, in order to constitute a people the group of persons in question must form a cohesive vibrant
community. An association whose common purpose covered merely commercial and tax affairs was insufficient.
• A defined territory does not imply that the frontiers of an entity aspiring to become a State should be free from dispute or
controversy. All that matters is that there is an ascertainable territory. (p. 122)
• For the purpose of statehood, the size of a territory is irrelevant.
• An artificial creation will not suffice to satisfy the requirement of a ‘defined territory’ under the Montevideo Convention (see
Duchy of Sealand).
Government
An aspiring State must also have a sovereign government. This is a very important requirement because it is only when a people are self-governing
that they can be said to constitute a State under international law.
However, the Montevideo Convention does not specify any particular type of government for the purpose of statehood. While most
States today desire to have democratic governments, ‘democracy’ is not a requirement of statehood under international law. Thus, the
Kingdom of Saudi Arabia is considered a State, despite the fact that its leaders are not chosen in a popular election and are not subject
to periodic elections as common in democracies. Also, States ruled by military juntas are nonetheless States in international law. What
is critical is that the States have fully functional governments.
• There are no prescribed forms of government for the purpose of the Montevideo Convention.
• The fact that a State is subject to frequent revolutions does not make it a lesser State under international law.
● Italy v. Venezuela (1903) RIAA Vol. X 499 (The Sambaggio Claim)
In a dispute between Italy and Venez uela over the rights of Italian nationals resident in the latter, Italy asked the arbitrator to
regard Venez uela as a lesser State in international law, given the fact that it has suffered many revolutions and that it was
generally characteriz ed by ill governance.
The arbitrator rejected the Italian argument (at 523–524).
• Dependence on other States for financial or other support does not necessarily affect statehood.
In 1990, the government of the Kuwaiti State fled into exile in Saudi Arabia and ruled from there, following the Iraqi attack on
Kuwait. Similarly, the Tejan Kabbah-led government in Sierra Leone fled into exile in Guinea in 1997 after its overthrow by a
military junta.
4.3.2 Are the Montevideo criteria exhaustive (complete)?
It is doubtful that the criteria listed in this Article are meant to be exhaustive. From the ordinary reading of Article 1, that the
State as a person ‘should possess the following qualifications...’, it is highly unlikely that the intention here was to set these
criteria in stone. Drafters of international legal treaties have customarily adopted the imperative ‘shall’ whenever they intend a
set of conditions to be final and exhaustive.
It seems more appropriate to view the Montevideo criteria of statehood as mere benchmarks, or common denominators.
Therefore it is possible that, in practice, other criteria may be required by international law before an entity can attain statehood,
even if it meets all of the Montevideo criteria.
 Badinter Arbitration Committee , and the Montevideo Convention: an
4.3.3 The European Union, the
example of the flexible interpretation of statehood criteria
Following the collapse of the Socialist Federal Republic of Yugoslavia (SFRY) in the 1990s, the then European Community
(EC) set up an Arbitration Commission of the Conference on Yugoslavia, on 27 August 1991, headed by Robert Badinter, then
President of the French Constitutional Council, to advise the EC on legal issues arising from the break-up of the SFRY.
On 16 December 1991, EC members adopted a set of guidelines that would apply to entities wishing to be recognized as
States by the Community.
In its Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union of 16
December 1991, the EC listed the following new conditions that must be fulfilled by new States from Eastern Europe and the
former Soviet Republic:
• respect for the provisions of the UN Charter and the commitments subscribed to in the Final Act of Helsinki and in the Charter
of Paris, especially with regard to the rule of law, democracy, and human rights;
• guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the
framework of the Commission on Security and Cooperation in Europe (the Helsinki Commission, or the CSCE);
• respect for the inviolability of all frontiers, which can only be changed by peaceful means and by common agreement;
• acceptance of all relevant commitments with regard to disarmament and nuclear nonproliferation, as well as to security and
regional stability; and
• commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State
succession and regional disputes.
Several members of the collapsed SFRY applied for their statehood to be recognized by the Community. In its Opinions 4, 5,
and 6 on the applications by Bosnia and Herzegovina, Croatia, and Macedonia, respectively, the Commission:
• decided that Bosnia and Herzegovina should not be recognized at the time, because it had not yet held a referendum on
independence;
• decided that Croatia’s independence should not be recognized, because the new Croatian Constitution did not incorporate the
protections for minorities required, which
prompted (p. 126) the Croatian President to write to Robert Badinter, giving assurances that this deficit would be remedied,
after which Croatia was accordingly recognized; and
• recommended that the EC accept the request of Macedonia, because it had given the necessary guarantees that it would respect
human rights, and international peace and security.
The above example is particularly interesting, because none of the new conditions adopted are provided for in the Montevideo
Convention. Also, some of the concerned States had already been recognized by other States at the time: Germany unilaterally
recognized Croatiain 1991, for example, whereas the EC did not do so until January 1992. (Note that there are theories
governing the relationship between recognition and statehood, which will be discussed later.)
Essential Elements of a State
 - Article 1 of the Montevideo Convention, 1933: “The State as a person of international law should
possess the following qualifications:
o a) A permanent population
o b) A definite territory
o c) A Government
o d) A capacity to enter into relations with other States
o - Oppenheim replaces the last element pointed out in the convention with ‘sovereignty’
o - A renowned jurist, Holland, adds a fifth element to this definition: ‘civilization’
 Functions of a State
o - Earlier, there was a concept of ‘police state’ whereby the function of a state was to maintain
internal peace and defense against external aggression. Modern times have seen the functions of a
state span much more than mere policing.
o - In today’s era, the concept of a ‘welfare state’ is common
o - For the benefit of its people, the State has to perform various social, economic, and educational
and cultural functions
 Equality of States
o - United Nations allows one vote to each State in any decision regarding any international matter.
Legally, the power of this vote is equal between both the strong and the weak nations.
o - No state can exercise jurisdiction over another State
o - However, this concept of equality has been diluted in the composition of the Security Council
(UNSC). P5+1 members of the Security Council alone enjoy the veto power in an decision taken by
the UNSC
 Rights and Duties of States
 - Naturalist writers hold that the fundamental rights and duties of States owe their existence to the law
of nature
 - Oppenheim pointed out that certain rights are inherent in States, which are enumerated as follows:
o a) Right of existence of self-preservation
o b) Right of equality
o c) Right of independence of territorial supremacy of holding and acquiring territory
o d) Right of intercourse
 o e) Right of good name and reputation
o - These are the rights that do not arise out of treaties or customs, but enjoyed by States only
because of States being international persons
 - Positivists, however, contend that only those which arise out of treaties and customs are actually the
rights and duties of a State; in that case consent is the basis of International law
o - They list the fundamental rights as follows:
o a) Sovereignty and independence of States
o b) Equality of States
o c) Territorial jurisdiction
o d) Rights to self-defense and self-preservation
o - Likewise, there are a certain number of duties too:
o a) A duty not to resort to war
o b) To fulfill treaty obligations in good faith
o c) The duty of non-intervention
o - Rights associated with a State’s independence are:
o a) Power exclusively to control its domestic affairs
o b) Power to admit or expel aliens
o c) Privileges and immunities of diplomatic envoys in other states
o d) Exclusive jurisdiction over crimes committed within its territory
o - Duties associated with a State’s independence are:
o a) Not to perform acts of sovereignty on territory of another State
o b) Not to allow preparations in its territory which are prejudicial to security of another state
o c) Not to intervene in the affairs of another State
 Kinds of States and Non-State Entities
1. Confederation: formed by independent states, no international personality
2. Federal State: formed by two or more sovereign States submitting to a central authority
3. Condominium: a particular territory over which a joint dominion is exercised by two or more external
powers
4. Vassal State: a State which is under the suzerainty of another State
Muhammad Minhaj Mahdi
5. Protectorate State
6. Trust Territories
7. Holy See or Vatican City: where the religious head of Christians (the Pope) resides
RECOGNITION OF STATES
 What do you understand by 'Recognition of States' and 'Recognition of Governments’? Explain fully the distinction between
‘Recognition Dejure’ and ‘Recognition Defacto’. 2000
 Short Notes: De facto recognition 2003
 Describe the legal nature of recognition of states, with particular reference to difference between defacto and Dejure
recognition. 2003
 "What is meant by RECOGNITION of STATES as a mamber of FAMILY of NATIONS? State the different modes of such
recognition. 2007
 Discuss Recognition. Differentiate between de-jure and de-facto recognition. What are the disabilities of an unrecognized
state? 2008
 Define Recognition. Differentiate between Defacto and Dejure Recognition. 2010
 "The Subject of Recognition is one of the most difficult branches of international law, not merely from the points of view of
exposition of principles, but also intrinsically by reason of many difficulties which arise in practice." Discuss 2011
 “Non-recognition of a government can be amounted to denying the recognition of the state itself as it is the governments that
do international business on behalf of the states.” Argue in affirmative this statement with particular reference to Constitutive
Theory of Recognition. 2012
 Define Recognition and explain its kinds. Also point out the difference between recognition of states and governments.2013
 According to Starke, the subject of recognition can be presented, “Less as a body of clearly defined rules or
principles than as a body of fluid, inconsistent and unsystematic state practice”. Discuss. 2018
 Q5. Discuss in detail Recognition in International law and its various kinds as well as argue with particular reference to the
Constitutive theory of Recognition and the consequences of non-recognition of government. 2022
Define Recognition and write a detailed note on it.
Ans: -
A State may exist legally because it meets all of the criteria of the Montevideo Convention, but that does not mean other
States accept its existence or want to have any relationship with it. A State may physically exist but if other States do
not recognize its government, certain fundamental consequences will follow as regards its relations with other States.
Recognition applies not only to States, but also to governments, so that a new State would have to be recognized by
other States in order for them to deal with it, and a new government— particularly one that comes into power by
unconstitutional means—would have to be Recognized by other States for it to deal with them. Even democratically
elected governments may be refused recognition, as was the case with the popular election of Hamas in the
parliamentary elections of the Palestinian territories, which the US government refused to recognize.
Main addressors of the international law are the sovereign states. For an entity of being called a state and to
enjoy rights, duties and obligations under international law, it is necessary that the existing state have given
awareness of its capability of being a state. Such awareness by existing states is called recognition.
Recognition: - The term recognition as an international legal term may be defined as under:
“The acknowledgement or acceptance by the members of international community, that a new state has acquired
international personality, is said to be recognition.”
Essentials: - The main essentials of recognition may be given as under:
1. That the community (of new state) must be politically organized,
2. That it should have control over a definite territory,
3. That the control should tend towards permanency,
4. That such community must be independent.
In other words, the attributes of statehood are people, territory, Government, and sovereignty.
Theories of Recognition: - There are mainly two theories of recognition which may discussed as under:
1. Constitutive Theory.
2. Declarative Theory or Evidentiary Theory.
1. Constitutive Theory: -Oppenheim, Hegal and Anziloti are the chief exponents of this theory. (OHA)
According to this theory the new entity shall only be called a state when the existing states acknowledges about its
statehood. So, the independence of a new entity shall not amount it to be called a state unless it has not recognized by
the existing states.
According to ‘constitutive’ theory, a State is a State only if it is recognized as such by existing States. This is a positivist view
of international law. the basis of positivism is that international law is founded upon State consent; hence international law
becomes or ceases only with State consent. The creation of new States creates new obligations for already existing States, such
as whether or not they should deal with it.
Consequently, those States for which these new obligations are created must decide whether they recognize the new State or
not. Hence it is only when existing States recognize the new State that the latter exists. The fact that the new State has all of the
attributes required by international law and fulfils all of the Montevideo criteria is irrelevant.
- Recognition is a process through which a political community acquires international personality by becoming a
member of family of nations
- Until and unless a State is recognized, it cannot acquire rights under international law
- However, States are not under an obligation to recognize new States; they do not consent to law norms that obligate
them to recognize new States
- Chief exponents of this theory are Hegel, Anziloti, and Oppenheim
- EXAMPLE: China remained unrecognized by America and other Western countries for a number of years, although it
possessed all essential attributes of statehood, but it acquired all rights and duties under international law nevertheless
 While several States recogniz ed the Republic of Korea (South Korea) before it joined the United Nations, only
Communist countries first recogniz ed North Korea and this did not change for a long time until after other
(non)Communist States also recogniz ed it, despite the fact that it met all of the Montevideo criteria.
 Similarly, most Western nations did not recogniz e the German Democratic Republic (GDR), created in 1949 by the
Soviet Union following the creation of the Federal Republic of Germany (FRG) by Britain, France, and the USA.
Although the latter States recogniz ed the FRG in 1955, it was not until 1973 that Britain recogniz ed the GDR—and
that took place only following the signing of the 1972 General Relations Treaty between the FRG and the GDR. Most
Western powers regarded the GDR as a dependant of the (then) Soviet Republic and therefore lacking in
sovereignty, which is the foremost criterion of the Montevideo Convention .
Criticism: - The theory has severely been criticized by a number of jurists. Because, at first instance that states do not
seem to accept recognition as a legal duty. And at the second instance, it creates many difficulties when a community
claims of being a new state and its non-recognition will, according to this theory, imply that it has no rights, duties and
obligations under international law. The theory is not correct in any sense so shall be rejected.
2. Declaratory Theory: - The chief exponents of this theory are Hall, Wagner, Fisher and Brierly.
According to this theory, the statehood or the authority of new Government is not dependent on the consent of the
existing state but is based on some prior or existing fact. According the followers of this theory, the recognition by the
existing states is merely a formal acknowledgement of the statehood and not the condition. In fact the statehood is
dependent on the some prior conditions necessary for an entity to be called as a state.

- Statehood or the authority of the new government exists prior to and independent of recognition. Recognition is
merely a formal acknowledgment through which established facts are accepted
- The act of recognition is merely declaratory
- Chief exponents of this theory are Hall, Wagner, Brierly, Pitt Cobbet, and Fisher
- Professor Hall: “A state enters into the family of nations as of right when it has acquired the essential attributes of
statehood”
- However, as soon as a State is recognized, there ensue some legal effects of recognition which may be said to be of
constitutive nature
- Professor Oppenheim has admitted that recognition is both constitutive and declaratory in nature: “Recognition is
declaratory of an existing fact but constitutive in nature”
• The declaratory theory proposes that recognition is merely a political act and that a State is a State once it fulfils the
criteria for statehood, hence recognition only declares this state of affairs.
• The act of recognition is different from the fulfillment of criteria for statehood.
Exponents of Constitutive theory hold that the act of recognition is clearly a legal act as it ensues political and legal
duties. Exponents of Declaratory theory contend that because it is no legal duty of a State to recognize a new one, it is
merely a declaration; it depends on the discretion and sweet will of the States to recognize a new State or Government.
There are two modes of recognition: De Jure, and De Facto recognition.
Criticism: - This theory has also been criticized, because it is not correct that in all cases the existing fact shall imply the
statehood, rather some time the statehood may be constitutive.
Conclusion: - From the above discussion it may be concluded that both the theories are insufficient to reflect the real
explanation of recognition. In fact there shall be intermediate course of approach etween the two theories to understand
recognition. Briefly, speaking, the definition of recognition depends upon the mode, scope and nature of each case. In
other words, recognition may be sometimes constitutive and sometimes declaratory.
Modes of Recognition: - There are two modes of recognition, which may be given;
1. De facto Recognition.
2. De jure Recognition.
1. De facto Recognition: - The provisionally grant; that is subject to fulfillment of all the attributes of statehood, of
recognition to a new state which has acquired sufficient territory and control over the same, but the recognizing states
considers it not stable more, is said to be De facto Recognition.
- This recognition is given when the new State seems to be unstable and might fail to uphold the essential
attributes of statehood
- It is provisional recognition, and may be withdrawn at a future date
- Also, under recognition de facto, diplomatic relations may not be established between the recognizing and the
recognized state
- Oppenheim: “the new authority … has not acquired sufficient stability or does not yet offer prospects of
complying with other requirements of recognition, such as, willingness or ability to fulfill international obligations.”
- Judge Lauterpacht: “de facto recognition shows that the recognizing state wants to establish its relations with the
recognized state without establishing diplomatic relations.”
2. De jure Recognition: - The grant of recognition to a new born state by an existing state, when it considers that such
new born state has attained all the attributes of statehood with stability and permanency, is called De jure Recognition.
- Oppenheim: “Recognition de jure results from an expressed declaration or from a positive act indicating clearly
the intention to grant this recognition such as the establishment of diplomatic relations.”
- Recognition de jure is final and, once given, cannot be withdrawn
Recognition De Jure has a retroactive effect: with recognition of a State, its acts done prior to recognition are also
recognized.
Differences Between De facto and De jure Recognition.
De facto and De jure recognition may differentiate on the basis of following points ofdistinction.
1.It is provisional recognition subject to fulfillment all 1. it is absolute recognition granted to a state which have
attributes of statehood. attained all the attributes of statehood, possesses sufficient
control with permanency.
2. It creates few essential rights and duties for 2. It creates absolute rights for the parties thereto.
recognized and recognizing states.
3. It does not create full diplomatic intercourse 3. It creates full diplomatic intercourse between the parties.
between the parties.
4. The full diplomatic immunities are not granted in this 4. Here full diplomatic relations are granted to the
case. recognized state.
5. In this case the recognized state cannot claim or the 5. In this case, the claim can be made.
property situate in the recognizing state’s territory
6. In such a case the official visits and dealings may be 6. In such a case limitations are not necessary.
subjected to limitations.
Majority of the jurists are of the view that there is hardly any distinction between recognition de jure and recognition de facto so
far as the legal effects are concerned. If at all there is a difference between the two modes of recognition, it is chiefly
political rather than legal. An example of such an instance is establishment of diplomatic ties.
Recognition of a Government
- P. E. Corbett: “the recognition of Governments is a different matter, but one clouded with similar ambiguities. What
is involved is not the acknowledgment of statehood but the decision as to who is entitled to act for a given state.”
- If a government is formed after revolution or any such rebellious acts, it may face difficulty in attaining recognition
- If a government is formed through peaceful means as per the respective constitution, it may be recognized swiftly
by other States
- P. E. Corbett suggests that the act of recognition of a government should be vested with an international
organization such as the UN
Criticisms of Recognition
- Awarded prematurely to sympathetic regimes, and is protectively withheld from the unsympathetic ones
- There are no methods to ascertain the statehood of a new territory, hence it is left in entirety to the recognizing
states to decide whether to accord recognition or not
- Recognition constitutes the weakest link in international law
- Recognition is a political function not a legal function
- Soviet view, British practice and China’s view also look at recognition as a political act
Legal Effects of Recognition
- Grants the status of an International personality to a State
- A recognized State becomes evidential before an international tribunal
- Allows for establishment of formal, optional and bilateral relations, including diplomatic relations and conclusion
of treaties between the States
- Entitles a State to sovereign immunity for itself and its property
- Entitles a State to succession and possession of the property situated in the territory of the recognizing state
Implied Recognition
- Entering into a bilateral treaty
- Beginning of formal diplomatic relations
- Participation in a multilateral treaty
- Participation in an international conference
Forms of Recognition: - There are following two forms for the declaration of recognition.
1. Express Recognition.
2. Implied Recognition.
1. Express Recognition: - The declaration or notification by an existing state which purports the intention to recognize a
newly born state, the recognition is said to be express recognition. In other words, when a formal and express declaration
or statement is made and published or sent to the opposite party, the recognition is said to be express recognition.
2. Implied Recognition: - When the existing state shows its intention of recognition of a newly born state by some
acts, the recognition is said to be implied recognition. In other words, in case of implied recognition no formal statement
or declaration is to be made, rather the intention of recognition is to be collected by the acts or transactions of the
existing state. So, if such acts purport intention of recognition, it is said to be implied recognition.
Conditional Recognition: - The grant of recognition by an existing state to a newly born state stipulated on
fulfillment some conditions in addition to the requirements of statehood is said to be conditional recognition. As for
as, the recognition is concerned it is itself conditioned with the fulfillment of the essentials of statehood, that is to say,
the new state must occupy some territory, has some population, government and sovereignty. If these requirements have
been complied with by the new state, then that should be recognized by existing states. But as far as, the recognition is
concerned it is usually based on some political considerations. So, in the pursuance of these considerations the existing
states sometimes declare recognition but stipulated with certain other conditions for the recognized state to be fulfilled.
Criticism: - Many jurists have criticized conditional recognition. According to them recognition is a legal matter and it
should not be accompanied with conditions other than required by law. It is due to this reason that when in case of
conditional recognition the recognized state if didn’t fulfill the prescribed condition the recognition shall be valid and not
extinguished. Rather it will effect the relations between the recognized and recognizing states.
Withdrawal of Recognition: - Withdrawal of recognition may be explained as under:
1. Withdrawal of de facto Recognition: - Withdrawal of de facto recognition is possible under international law only
on the ground that if the recognized state has been failed to fulfill the pre requisite condition for statehood. In such a
case the recognizing state may withdrawn from the recognition by communicating a declaration to the authorities of
recognized stated or by a public statement.
3. Withdrawal of de jure Recognition: - There are different views about the withdrawal of de jure recognition. But
according to the strict letters of international law and by the virtue of some conventions in this behalf, it is evident that
the withdrawal of de jure recognition is not valid in any case. Though recognition is a political act but de jure but it by
nature and status it is a legal oriented. But some jurists think that de jure recognition may be withdrawn, because it is a
political act. But in fact it is not so. Only those de jure recognitions may be withdrawn where a state subsequently loses
any essential of statehood. In such a case the state withdrawing from recognition shall send his express intention to the
concerned authority issue a public statement to that extent.
 What is the duty of other states in case of internal revolt in an independent state? Can they help the rebels? Under what
circumstances recognition may be accorded to the rebels? 2006
Write note on the following
1. Recognition of Government.
2. Recognition of Belligerency.
3. Recognition of Insurgency.
Ans: -1. Recognition of Government: - As we know that government is an essential of statehood. By government it is
meant the administrative and controlling tool of a state. Once a state comes into being, its government may
change from time to time. If the change of government takes place in ordinary political life it the existing states are not
required to recognize the new government. But sometimes the change of a government takes place as a result of a
revolution. In such a case, it becomes necessary to ascertain that whether this new revolutionary government is;
 capable of having sufficient control over the people of the territory or not, and
 ii. Willing to maintain international responsibilities and duties or not. So, if the existing states consider that
this new government is capable of fulfilling the above conditions then the new government may be recognized.
The recognition of new regime means that the existing states are satisfied that the new government has a
capacity to control and is willing to perform international duties and obligation. The recognition may be either de
facto or de jure. And the intention may be expressed either by sending a message to the authority of the new
government or to declare the same in a public statement.
The modern practice is seemed to reject the doctrine of recognition of new government. Now, the some states as USA
and U.k. and others have adopted a course to give assent to the above pre conditions for a government merely by
extending relation or cessation of relations with such government. Non-recognition of government doesn’t affect the
recognition of a state. A state remains recognized the only consequence of the non-recognition of the new
revolutionary government is the suspension of the bilateral relations between the existing state and the new government.
And as soon as the said government is to be replaced by any other government, if recognized the relations shall be re-
continued on the same pattern as were with the previous government of the revolutionary one. The consequences of the
recognition of a new government means to keep the relations in the same manner as were with the previous
government.
2. Recognition of Belligerency: - Belligerency is the treatment to consider a civil war as a real war between two rival
powers by other existing states The recognition by the existing states of the rebels in case of civil war in a
belligerent state is said to be recognition of belligerency. In other words when a state goes in a state of belligerency
where the rebels have a considerable control over a substantial territory of nation, the rebels may be recognized by the
existing state. Such recognition is said to be recognition of belligerency.
Conditions: - There are following conditions by the movement of rebels to recognized by other states:
a. That the movement shall be of a general character.
b. That rebels shall have in possession a substantial part of the national territory.
c. That they are giving respect and bind themselves for the warfare laws and other international duties.
d. That they have a proper force.
If the above conditions have been fulfilled by rebels then they may recognized by other existing states, and shall enjoy
the international rights.
3. Recognition of Insurgency: - The recognition by existing states the de facto authority over a large territory of the
rebels is said to be insurgency.
In case of insurgency the rebels or the insurgents occupy a large part of the national territory which was formerly
governed by the parent government. And if they are capable to control over that occupied part then the existing states
may recognize it.
Conditions: Prior to recognize the insurgency it is necessary for the recognizing state to satisfy the following conditions;
Firstly, when insurgents occupies a considerable parent state’s territory,
Secondly, they have a support from the majority of the citizens of the parent state,
Thirdly, they are acting under a proper command and,
Fourthly, they have good control over the occupied territory.
When the in case of an insurgency the above requirements have been complied with then it is on the discretion of the
existing state weather to recognize or not. The recognition of an insurgency is the first step towards the diplomatic
relations with their government. But if the insurgency did not succeed in their attempt after recognition bythe any existing
state, the recognition shall be deemed to have been extinguished..
STATE JURISDICTION
 Discuss the term “State jurisdiction“ with reference to
1. Maritime belt
2. Port
3. Foreigners
4. Floating island 2003
 Define State jurisdiction and explain how domestic jurisdiction can be limited by and reduced by principles of International Law?2009
State Jurisdiction
1. The term jurisdiction refers to the legal competence of State officials to prescribe and enforce rules with regard to
persons, things and events
2. Subjective Territorial Principle: State may claim jurisdiction over crimes commenced within its territory but
completed or consummated outside its territory
3. Objective Territorial Principle: State gets jurisdiction over the crime, if any, of the constituent elements of the
crime is consummated in its territory
4. The objective territorial principle is generally accepted and often applied. An example may be cited of the case of S.
S. Lotus and its decision by the PCIJ in 1927
5. Subjective territorial principle is accepted under only a few circumstances such as under Geneva Convention for the
Suppression of Counterfeiting of Currency, 1929, and the Convention for the Suppression of Illicit Drug
Traffic, 1936
Some Exceptions to the Exercise of Jurisdiction
1. Diplomatic Agents: by virtue of functions performed by them
2. Foreign Embassies: by virtue of functions performed within them
3. Foreign Sovereigns: absolute independence of every sovereign authority
4. Immunity in Respect of Public Property of Foreign Sovereign: however, distinction is made between
sovereign and commercial acts (Ohio v. Helvering)
5. International Organizations: Convention on the Privileges and Immunities of the United Nations
6. Extradition Treaties
7. Foreign Troops: grant of free passage implies a waiver of all jurisdiction over the troops during their passage
Criminal Jurisdiction in International Law
There are three main theories of criminal jurisdiction of States under international law:
1. Theory of Territoriality of Criminal Jurisdiction
- Supported by Great Britain, America and some other States
- State is entitled to exercise criminal jurisdiction only within its territory
2. Theory of Territoriality with Exceptions
- France and Germany are the chief exponents of this theory
- State may exercise criminal jurisdiction even outside its territory on the basis of the national security and on
economic ground
3. Theory of Extraterritoriality
- Turkey and Italy are the chief exponents
- Theory states that crime is a social evil and it is in the interest of whole International community to ensure that
the criminals get due punishment
- States exercise jurisdiction even outside their territory
State Jurisdiction According to the Universal Principle
- All States are entitled to apprehend and punish the offenders
- Today, only two clear-cut cases of Universal jurisdiction: the crime of piracy jure gentium (piracy according to the law of
nations) and war crimes
- Any State could apprehend, try and punish pirates; codified in the Geneva Conference on the law of the Sea,
1958
- Article 19 of the Geneva Convention on the High Seas: “every State may seize pirate ship or aircraft, or a ship
taken by piracy and under the control of pirates, and arrest the persons and seize the property on board”
- Article 15 of the Convention includes illegal acts of violence, detention or any act of deprecation, etc. in the definition
of piracy
- A case may be made that the universal jurisdiction principle should apply to the crime of hijacking also
- Hague Convention on Hijacking, 1971 has brought the offence of hijacking very close to that of piracy under
International customary law
- Also, generally the State agree that States have universal jurisdiction to apprehend, arrest and try the person accused of
war crimes
CHAPTER 10: JURISDICTION
‘A state may exercise its Territorial Jurisdiction once a crime is committed on its territory, regardless of where
the crime starts or ends’. Discuss. 2019
 Territory is undoubtedly the basic character of a state as well as widely accepted elaborate with reference to exclusive rights
of states on Land and Air territory.2009

Jurisdiction is the authority exercised by the state over persons and things within or sometimes outside its territory,
subject to certain exceptions.
GENERAL CLASSIFICATIONS OF JURISDICTION
Personal Jurisdiction
Territorial Jurisdiction
SUBJECTS OF STATE JURISDICTION
its nationals
the terrestrial domain
the maritime and fluvial domain
the continental shelf
the open seas
the aerial domain
outer space
other territories
PERSONAL JURISDICTION. is the power exercised by the state over its nationals. It is based on the theory that a
national is entitled to the protection of his state wherever he may be and is, therefore, bound to it by a duty of obedience
and allegiance.
Article 15 of the Civil Code: .laws relating to family rights and duties, or to the status, condition and legal capacity of
persons, are binding upon citizens of the Philippines, even though living abroad..
Under Article 16 of the Civil Code: .intestate and testamentary succession, both with respect to the other of
succession and to the amount of succession rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the
property and regardless of the country wherein said property may be found..
Jurisdiction to tax our citizens, even if not residing in the Philippines, is also provided for in our Internal Revenue
Code for income received by them .from all sources.. Indeed, even an alien may be held subject to the laws of a state
whose national interest he has violated, and notwithstanding that the offense was committed outside its territory.
Article 2 of the Revised Penal Code, for instance, punishes any person who, whether in or outside our territory,
should forge or counterfeit Philippine currency, utter such spurious securities or commit any crime against our national
security or the law of the nations.
TERRITORIAL JURISDICTION
General rule: A state has jurisdiction over all persons and property within its territory. The jurisdiction of the nation
within its own territory is necessary, exclusive and absolute. It is susceptible of no limitation not imposed by itself. (The
Schooner Exchange v McFaddon).
Exceptions:
Foreign states, heads of states, diplomatic representatives, and consuls to a certain degree;
Foreign states and their heads are exempt because of the sovereign equality of states and on the theory that a
contrary rule would disturb the peace of nations. Diplomats and consuls enjoy the exemption in order that they may have
full freedom in the discharge of their official functions.
Foreign state property engaged in non-commercial activities;
By fiction of law, public vessels are regarded as extensions of the territory of the foreign state.
Acts of state;
Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one
country will not sit in judgment on the acts of the government of another, done within its own territory.
Foreign merchant vessels exercising the rights of innocent passage or arrival under stress;
Innocent passage . navigation through the territorial sea of the state for the purpose of traversing that sea without
entering internal waters, or of proceeding to internal waters, as long as it is not prejudicial to the peace, good order or
security of the coastal state.
Arrival under stress . entrance to another state due to lack of provisions, unseawothiness of the vessel, inclement
weather, or other force majeure, like pursuit by pirates.
Foreign armies passing through or stationed in its territory with its permission;
Such other persons or property over which it may, by agreement, waive jurisdiction.
LAND JURISDICTION
Everything found within the territorial domain of the state is under its jurisdiction. Nationals and aliens, including non-
residents, are bound by its laws, and no process from a foreign government can take effect for or against them within the
territory of the local state without its permission. Also, as against all other states, the local state has exclusive title to all
property within its territory which it may own in its own corporate capacity or regulate when under private ownership
through its police power for forcibly acquire through the power of eminent domain. Such property is also subject to its
taxing power.
MARITIME AND FLUVIAL JURISDICTION
General rule: the internal waters of a state are assimilated to the land mass and subjected to the same degree of
jurisdiction exercised over the terrestrial domain.
Civil, criminal and administrative jurisdiction is exercised by the flag state over its public vessels wherever they may
be, provided they are not engaged in commerce.
Foreign merchant vessels docked in a local port or bay, jurisdiction is exercised over them by the coastal state in civil
matters.
Criminal jurisdiction is determined according to either the English rule or the French Rule.
1. English rule . the coastal state shall have jurisdiction over all offenses committed on board, except only where they
do not compromise the peace of the port.
2. French rule . the flag state shall have jurisdiction over all offenses committed on board such vessel, except only
where they compromise the peace of the port.
THE CONTIGUOUS ZONE. a protective jurisdiction extending beyond the territorial sea, but not more than 12
miles from the coast of the state. It is necessary to:
prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea;
and,
punish infringement of the above regulations within its territory or territorial sea.
THE CONTINENTAL SHELF. refers to a) the seabed and subsoil of the submarine areas adjacent to the coast but
outside the area of the territorial sea, to a depth of 200 meters, or beyond that limit, to where the depth of superjacent
waters admits the of the exploitation of the natural resources of the said areas; and, b) to the seabed and subsoil of
similar areas adjacent to the coasts of islands.
The coastal state has the sovereign right to explore the continental shelf and to exploit its natural resources and for this
purpose it may erect on it such installations and equipment as may be necessary.
But this right shall not affect the legal nature of the superjacent waters as open seas or of the airspace above such
waters and their use as such by other states shall not be impaired or disturbed.
THE PATRIMONIAL SEA
The Exclusive Economic Zone (EEZ) or Patrimonial Sea . extends 200 nautical miles from the coast or the
baselines. All living and non-living resources found therein are claimed to belong exclusively to the coastal state.
However, it has not yet been recognized as a rule of international law.
THE OPEN SEAS
General rule: The open seas or the high seas are res communis and available to the use of all states for purposes of
navigation, flying over them, laying submarine cables or fishing.
Exceptions:
Over its vessels. The flag state has jurisdiction over its public vessels at all times, whether they may be in its own
territory, in the territory of other states or on the open seas. Merchant vessels, on the other hand, are under its
jurisdiction when they are within its territory, when jurisdiction is waived or cannot be exercised by the territorial
sovereign, or when such vessels are on the open seas.
Over pirates. Pirates are enemies of all mankind and may be captured on the open seas by the vessels of any state,
to whose territory they may be brought for trial and punishment. Where a pirate vessel attempts to escape into territorial
waters of another state, the pursuing vessel may continue the chase but is under the obligation of turning over the
pirates, when captured, to the authorities of the coastal state.
In the exercise of the right of visit and search. Under the laws of neutrality, the public vessels or aircraft of a
belligerent state may visit and search any neutral merchant vessel on the open seas and capture it or its cargo if it is
found or suspected to be engaged or to have engaged in activities favorable to the other belligerent.
Under the doctrine of hot pursuit. If an offense is committed by a foreign merchant vessel within the territorial
waters of the coastal state, its own vessels may pursue the offending vessel into the open seas and upon capture bring it
back to its territory. The pursuit must be continuous or unabated; otherwise, it will be deemed to have .cooled. and can
no longer be resumed.
AERIAL JURISDICTION
There are no traditional rules in international law regarding the rights of the subjacent state to its aerial domain.
Nonetheless, it may be said that the consensus appears to be that the local state has jurisdiction over the airspace above
it to an unlimited height, or at the most up to where outer space begins. Accordingly, and as a corollary to this rule, no
foreign aircraft, civil or military, may pass through the aerial domain of a state without its consent.
General rule: Under the Convention on Offenses and Certain Other Acts Committed on Board Aircraft, it is the state of
registration of the aircraft that has jurisdiction over offenses and acts committed on board while it is in flight or over the
high seas or any other area outside the territory of any state.
Exceptions: Other state may exercise jurisdiction when---
The offense has effect on the territory of such state;
The offense has been committed by or against a national or permanent resident of such state;
The offense is against the security of such state;
The offense consists of a breach of any rules or regulations relating to the flight or maneuver of aircraft in force in
such state; and,
The exercise of jurisdiction is necessary to ensure the observance of any obligation of such state under a multilateral
international agreement.
SOVEREIGN STATE
 Fully explain the duties of a Sovereign State with special reference to:2004
1. Not to interfere in the domestic affairs of another state
2. To refrain from use of threat of use force against another state
 Discuss various modes of Acquisition of Territorial Sovereignty by the states acknowledged in International Law. 2010
 Lord Curzon once said, “Frontiers are indeed the razor’s edge on which hang suspended the modern issues of war or peace, of life
or death to nations.” Explain in this light the various modes of acquisition of territory by a state. 2012
State Territorial Sovereignty
- Sovereignty in the relation between States signifies independence
- Independence in regard to a portion of the globe is the right to exercise therein to the exclusion of any other State, the
functions of a State
- Law making power of the sovereign
- Sovereign itself inbound by the Divine law
- State entitled to enact binding laws for the inhabitants
- Within their territorial domain, jurisdiction is exercised by States over persons and property to the exclusion of other
States
- Sovereignty may be explained through the ‘Theory of Auto-Limitation’
- Theory: States could only be obliged to comply with international legal rules if they had first agreed to be obliged. The
rules of international law are adapted to the extent when the states have voluntarily restricted their sovereignty. The
sovereignty is absolute in so far as a State agrees to its limitation. Thus a state has freedom of action, except in so far as
it has agreed to the rules restricting that freedom.
- Anziloti and Triepel are the chief exponents of Theory of auto-limitation
- In the present time, States have accepted many restrictions in International treaties and in turn have implied a
surrender of a part of their sovereignty
- For example, adhering to the United Nations Charter, the party States are not absolutely independent in taking decisions
regarding certain issues like laws against Intervention, and hence have had their sovereignty allayed.
- Keyword: Pacta Sunt Servanda
CHAPTER 9: TERRITORY
Territory. The fixed portion of the surface of the earth inhabited by the people of the state.
As previously observed, the territory must be big enough to provide for the needs of the population but should not be so extensive as
to be difficult to administer or defend from external aggression.
 Territory is essential part of a state - examine the statement in view of modes of acquisition and loss of state territory.Re-
Exam 2013
 ‘A state that first physically occupies a territory retains sovereignty over it forever’. To what extent is this statement true of the
acquisition of territory in International Law? 2019
ACQUISITION AND LOSS OF TERRITORY
Mode in the Acquisition of Territory
by discovery and occupation
by prescription
by cession
by subjugation and
by accretion
Mode of Losing Territory
by abandonment or dereliction
by cession
by subjugation
by revolution and
by natural causes
DISCOVERY AND OCCUPATION: Discovery and occupation is an original mode of acquisition by which territory not belonging to any
state, or terra nullius, is placed under the sovereignty of the discovering state. The territory need not be uninhabited provided it can be
established that the natives are not sufficiently civilized and can be considered as possessing not rights of sovereignty but only rights of
habitation. Like the open seas, outer space is re scommunis and not susceptible to discovery and occupation.
REQUISITES OF VALID DISCOVERY AND OCCUPATION
Possession, and
Administration
Mere possession will not suffice, as only an inchoate title of discovery is acquired by the claimant state pending compliance with the
second requirement, which is the administration of the territory. Otherwise, the title will lapse and the territory will become res nullius
again.
.Discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty over the Island of
Palmas..... (Island of Palmas Case)
.Besides the animus occupandi, the actual and not the nominal taking of possession is necessary
condition of occupation. This taking of possession consists... steps to exercise exclusive authority there.. (Clipperton Island Case)
DERELICTION
Requisites of Valid Dereliction
act of withdrawal, and
the intention to abandon
Hence, where the forces of the state are driven away from the territory by the natives, title is not thereby necessarily forfeited, as it
may be that they intend to to return with the necessary reinforcements to suppress the resistance.
If such intention is not present, the territory itself becomes res nullius or terra nullius, becoming open once again to the territorial
ambitions of other states.
PRESCRIPTION: There is as yet no rule in international law fixing the period of possession necessary to transfer title to the territory
from the former to the subsequent sovereign.
CESSION. is a method by which territory is transferred by one state to another by voluntary agreement between them. Cession may
be in the form of sale, donation, barter or exchange, and even by testamentary disposition.
SUBJUGATION. is when, having been previously conquered or occupied in the course of war by the enemy, it is formally annexed to
it at the end of the war.
Requisites of Valid Subjugation
conquest
annexation
ACCRETION. is a mode of acquiring territory based on the principle of accessio cedat principali. It is accomplished through both or
natural or artificial processes.
COMPONENTS OF TERRITORY
Territory of the State Consists of the Following:

Terrestrial Domain
Maritime and Fluvial Domain
Aerial Domain
A. THE TERRESTRIAL DOMAIN
Terrestrial Domain . refers to the land mass which may integrate, or dismembered, or partly bounded by water, or consists of one
whole island. It may also be composed of several islands, like the Philippines and Indonesia, which are known as mid-ocean
archipelagoes, as distinguished from the coastal archipelagoes like Greece.
B. THE MARITIME AND FLUVIAL DOMAIN
Maritime and Fluvial Domain . consists off the bodies of water within the land mass and the waters adjacent to the coasts of the
state up to a specified limit.
Rivers may be classified into:
National . situated completely in the territory of one state,
Multi-national . that flow through the territories of several states,
International . that is navigable from the open sea and is open to the use of vessels from all states, and Boundary . divides
the territories of riparian states.
Thalweg Doctrine . the boundary line is laid on the river, that is, on the center, not of the river itself, but of its main
channel. Where the boundary river changes its course by a gradual and normal process, such as accretion or erosion, the
dividing line follows the new course; but if the deviation is violent is abrupt, as by avulsion, the boundary line will continue to
be laid on the old bed of the river, in the absence of contrary agreement.
As for the dividing line on a bridge across a boundary river, the same is laid on the middle of the bridge regardless of the location of
the channel underneath, unless otherwise provided by the riparian state.
Bays. is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked
waters and constitute more than a curvature of the coasts. An indentation shall not, however, be regarded as a bay unless its area is
as large as or larger than that of a semi-circle whose diameter is a line drawn across the mouth of that indentation.
The above rules do not apply to the so-called historic bays.
The Territorial Sea. described as the belt of waters adjacent to the coasts of the state, excluding the internal waters in bays and
gulfs, over which the state claims sovereignty and jurisdiction. Traditionally, the breadth of the territorial sea is reckoned at three
nautical miles, or a marineleague, from the low-water mark. However, many states have since extended their territorial seas, so that
no uniform rule can be regarded as established at present in this regard.
The UN Conferences of the Law of the Sea: Three international conferences had been called so far to formulate a new law of
the sea. The first was held in 1958 at Geneva, Switzerland, and resulted in the adoption of the Convention on the Territorial Sea and
the Contiguous Zone, the Convention of the High Seas, and the Convention on Fishing and the Living Resources of the High Seas, and
the Convention on the Continental Shelf. It failed however to define the breadth of the territorial sea. The Philippines did not ratify it
because of the absence of provisions recognizing the archipelago doctrine it was advocating. The second conference, which was held
in 1960, also at Geneva, likewise left unresolved the question on the breadth of the territorial sea. The third conference, called in 1970
by the United Nations is still in progress.
The Philippine Territorial Sea
The claim of the Philippines to its territorial sea is based on historic right or title or as it is often called the treaty limits theory.
The Archipelago Doctrine
The Philippine position on the definition of its internal waters is commonly known as the archipelago doctrine. This is articulated in the
second sentence of Article I of the 1987 Constitution, which follows:
.The national territory comprises the Philippine archipelago, with all the islands and waters embraced
therein, and all the other territories belonging to the Philippines by historic right or legal title.... Our position is that all these islands
should be considered one integrated whole instead of being fragmented into separate units each with its own territorial sea. Otherwise,
the water outside each of these territorial seas will be regarded as high seas and thus be open to all foreign vessels to the prejudice of
our economy and national security.
An archipelago is a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely
interrelated that such islands, waters and other natural features form an intrinsic geographical, economic, and political entity, or which
historically have been regarded as such.
Hence, in defining the internal waters of the archipelago, straight baselines should be drawn to connect appropriate points of
the outermost islands without departing radically from the general direction of the coast so that the entire archipelago
shall be encompassed as one whole territory. The waters inside these baselines shall be considered internal and thus not subject
to entry by foreign vessels without the consent of the local state.
 Basis of the Article I of the 1987 Constitution
Article I of the 1987 Constitution was based on R.A. 3046 as amended by R.A. No. 5446 declaring the Philippine territorial sea.
Methods of defining the Territorial Sea
Normal baseline method . the territorial sea is simply drawn from the low-water mark of the coast, to the breadth claimed, following
its sinusitis and curvatures but excluding the internal waters in bays and gulfs.
Straight baseline method . straight lines are made to connect appropriate points on the coast without departing radically from its
general direction.
C. THE AERIAL DOMAIN .
The aerial domain . the airspace above the terrestrial domain and the maritime and fluvial domain of the state, to an unlimited
altitude but not including the outer space.

 "What ever be the generally accepted rules governing the outer limit of the territorial limit of the territorial sea this issue, and
others like it, will be settled in many cases on the basis of the principles of acquiescence and opposability". Discuss 2014
 The assumption that the "genuine link" formula, invented for dealing with people, is capable of immediate application to
ships..........smacks of a disappointing naivete 2014

LAW OF SEA
 Write short notes on any three of the following in the light of convention on the law of sea 1982 and our maritime zone act of
1976. You must discuss the nature of jurisdiction, right and duties.
1. Internal Waters
2. Continental Shelf
3. Territorial Waters
4. Land-locked State
5. EEZ 2001
 Short Notes: Territorial waters 2002
 Short Notes: Continental Shelf 2005, 2012
 Why is the third UN convention on the law of sea (UNCLOS-III) considered a vast diplomatic and legal undertaking and what has
made it different to the earlier efforts on the subject ?2013
THE LAW OF SEA
The Law of the Sea is that part of Public International Law that regulates the rights and duties of States, and possibly other subjects of
International Law, with regard to the use and utilization of the seas in time of peace. In this sense, the Law of the Sea is
distinguished from the private maritime law, which regulates the rights and obligations of private persons with regard to maritime
matters, such as the carriage of goods and maritime insurance.
Although some rules of the Law of the Sea can be traced to medieval private compilations governing primarily maritime rights and
obligations of merchants and ship-owners in the Mediterranean, the Law of the Sea developed as part of the Law of Nations in the
Seventeenth Century with the emergence of the modern national State system. The classical publicists drew on Roman Law and
dealt with the matters of this subject in the natural law tradition. The best known publication, among the early writings on this subject,
is the 1609 Hugo Grotius. Pamphlet .Mar Liberum. (Freedom of the Sea).
By the Nineteenth Century, as customary rules gradually produced a body of law based on State practice and consensus, the Law of the
Sea, like other areas of Public International Law, developed into a system of customary principles and rules governing the rights and
duties of States, mostly in the territorial sea and the high seas.
During the Nineteenth Century and the period before the Second World War, several unsuccessful attempts were made to codify the
customary law of the sea. After the Second World War, several conferences were held for the objective of codifying the various aspects
of the Law of the Sea. The first conference was the First United Nations Conference on the Law of the Sea (UNCLOS I), known as the
1958 Geneva Conference on the Law of the Sea, which led to the conclusion of four conventions: (Tc, H, C, F)
(1) The Convention on the Territorial Sea and Contiguous Zone;
(2) The Convention on the High Seas;
(3) The Convention on the Continental Shelf; and
(4) The Convention on Fishing and Conservation of the Living Resources of the High Seas.] An Optional Protocol on the
Compulsory Settlement of Dispute was signed.
The 1958 Geneva Conference on the Law of the Sea constitutes the first major codification of the Law of the Sea. Most of the
provisions of the first two conventions, and some of the provisions of the Convention on the Continental Shelf, are a codification of
customary law; while the others are a mixture of codification and progressive development of International Law as understood by the
International Law Commission. Thus, although the conventions are binding only on States parties to them, many of their provisions can
be used as evidence of customary law against States not parties to them. All these four conventions are still in force, but for a limited
number of States; the United States of America is among those States since it has not yet ratified the 1982 Convention on the Law of
the Sea.
The 1958 Geneva Conference failed to reach agreement on some questions, particularly on the width of the territorial sea and rights of
coastal States in the areas of the high sea adjacent to their territorial seas. To deal with such questions, the Second United Nations
Conference on the Law of the Sea (UNCLOS II), which is known as the 1960 Geneva Convention on the Law of the Sea, was convened;
but this Conference failed to achieve its objectives. This reason, in addition to the dissatisfaction of some States with various rules laid
down in the 1958 Convention and the technological, economic and political developments since its conclusion, led to the convene of the
Third United Nations Conference on the Law of the Sea, 1973-1982 (UNCLOS III). This Conference led to the conclusion of the
United Nations Convention of the Law of the Sea on December, 1982, which entered into force on November 16, 1994.
The 1982 Convention on the Law of the Sea constitutes a comprehensive codification and development of contemporary
international law governing the Sea in time of peace. Some of the provisions of the 1982 Convention codify the existing customary
international law of the sea; this is particularly true of those provisions which repeat those of the four 1958 Conventions which codified
customary law. Almost all the provisions of the four 1958 Conventions are repeated, modified or replaced by the 1982 Convention. But
many of the provisions of the 1982 Convention depart from the existing customary law; and those provisions do not represent existing
law on the Sea for States not parties to the 1982 Convention; they, however, indicate the directions in which the law may develop in the
future. All States are prima facie bound by the customary rules, while only the parties to a particular convention will be bound by the
new rules contained therein.
The 1982 Convention prevails over the four 1958 Conventions as among the States parties to it. It deals with most of the issues
related to the Sea. Among these issues are: (TSAECHIELA PeMrDt S)
(1) Territorial Sea and Contiguous Zone;
 (2) Straits Used for International Navigation;
(3) Archipelagic States;
(4) Exclusive Economic Zone;
(5) Continental Shelf;
(6) High Seas;
(7) Regime of Islands;
(8) Enclosed or Semi-Enclosed Seas;
(9) Rights of Access of Land-Locked States to and from the Sea and Freedom of Transit;
(10) The Area;
(11) Protection and Preservation of the Marine Environment;
(12) Marine Scientific Research;
(13) Development and Transfer of Marine Technology; and
(14) Settlement of Disputes.
In the following sections, most of the questions related to the above issues as provided by the 1982 Convention are discussed.
TERRITORIAL SEA (aka Territorial waters) The 1982 Convention on the Law of the Sea declares the sovereignty extends also to
the air space over the territorial sea as well as to its bed and subsoil. However, the exercise by a coastal State of such
sovereignty over its territorial sea is subject to the rules and limitations provided for in the said Convention and in the International Law.
A. Limits of the Territorial Sea
The Convention adopts the twelve-mile limit as a breadth of the territorial sea. It provides that every State has the right to establish
the breadth (extensiveness) of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined by a
normal baseline or/and straight baselines method; the coastal State may determine baselines in turn by any of these two methods to
suit different conditions. The baseline is the line from which the breadth of the territorial sea and other coastal State zone, such as
contiguous zone, exclusive economic zone or exclusive fishing zone, is measured. The baseline forms the boundary between the
internal waters on the landward side of the coastal State and its territorial sea on its seaward side . Waters on the landward side of the
baseline of the territorial sea form part of the internal waters of the State, over which the State has an absolute sovereignty. The outer
limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of
the territorial sea.
The normal baseline for measuring the breadth of the territorial sea is the low-water line (the line on the shore reached by the sea at
low tide) along the coast as marked on larger-scale charts officially recognized by the coastal State. The method of straight baselines
joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured if the
coastline is deeply indented and cut into. However, this method may not be applied by a State in such a manner as to cut off the
territorial sea of another State from the high seas or an exclusive economic zone. This method is also employed in a case of a river
flowing directly into the sea or of a bay. In a case of a river, the baseline shall be a straight line across the mouth of the river between
points on the low-water line of its banks.
In a case of a bay, if the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical
miles, a closing line may be drawn between these two low-marks, and the waters enclosed thereby shall be considered as internal
waters. Where the distance between the low-water marks of the natural entrance points of a bay exceeds 24 nautical miles, a straight
baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible
with a line of that length, and the enclosed waters shall be considered as internal water; however, this rule does not apply to so-
called .historic bay..
For the purpose of delimiting the territorial sea, the outermost permanent harbor works which form an integral part of the harbor
system are regarded as forming part of the coast; but off-shore installations and artificial islands shall are not considered as permanent
harbor works. Roadsteads which are normally used for loading, unloading and anchoring of ships, and which are situated wholly or
partly outside the outer limit of the territorial sea, are included in the territorial sea.
Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between
them to the contrary, 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 the two States is measured. This rule, however, does not apply where it is
necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a different way.
B. Rights of the Coastal State over the Territorial Sea
As the 1982 Convention provides, the sovereignty of the coastal State extends to its territorial sea as well as to the air-space over its
territorial sea, its bed and subsoil. In this regard the coastal State enjoys the following:
(1) The exclusive right to fish, and to exploit the resources of the seabed and subsoil of its territorial sea.
(2) The exclusive right in the air-space over its territorial sea to the exclusion of other States.
Foreign aircrafts, unlike ships, have no right of innocent fly in the air-space over the territorial sea of a State.
C. The Right of Innocent Passage in the Territorial Sea
Under the 1982, the sovereignty of a coastal State over its territorial is subject to an important limitation, which is the right of innocent
passage enjoyed by ships (merchant ships, governmental ships and warships) of all States, whether coastal or landlocked, over the
territorial sea of the coastal State. Passage means navigation through the territorial sea for the purpose of traversing that sea without
entering internal waters or calling at a roadstead or port facility outside internal waters, or proceeding to or from internal waters or a
call at such roadstead or port facility.
Passage must be continuous and expeditious; however, it may include stopping and anchoring in so far as they are incidental to
ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships
or aircraft in danger or distress. Passage must take place in conformity with the 1982 Convention and with other rules of International
Law. Passage must be innocent; it is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.
The right of innocent passage is also exists in internal waters where the establishment of a baseline in accordance with the straight
baselines method provided by the 1982 Convention has the effect of enclosing as internal water areas which had not previously been
considered as such. The right of innocent passage is also enjoyed by submarines and other underwater vehicles. However, it is required
that they navigate on the surface and show their flag.
The 1982 Conventions provides that the coastal State must not hamper the innocent passage of foreign ships through its territorial seas
except in accordance with the Convention. The Coastal State, in the application of the Convention or of any laws or regulations adopted
in conformity with it, must not impose requirements aiming at denying or impairing the right of innocent passage, or discriminate on
form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State. It must give
appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea. It must not levy any charges upon
foreign ships by reason only of their passage through its territorial sea; charges may be levied as payment only for specific services
rendered to the ship.
The coastal State is under a duty not to exercise its criminal jurisdiction on foreign ship passing through it territorial sea, except in the
cases specified by the Convention (mentioned above). It is also under a duty not to exercise civil jurisdiction in relation to a foreign ship
or a person on its board, except in the cases specified by the Convention (mentioned above). Notably, the warships and other
government ships operated for non-commercial purposes are immune from any
jurisdiction; however the coastal State, in a case of failure of any of these ships from complying with its laws and regulations, may order
it to leave its territorial Sea immediately. Against these duties, the coastal State entitled to certain rights in respect of the right of
innocent passage granted to foreign ships. The coastal State may adopt laws and regulations, in conformity with the provisions of the
Convention and other rules of International Law,related to innocent
passage through its territorial sea, with which the foreign ships must comply. It may suspend temporarily in specified areas of its
territorial sea the innocent passage of foreign ships for security reasons.
CONTIGUOUS ZONE
Contiguous zone is a maritime zone adjacent to the territorial sea of the coastal State over which that State, as provided by the 1982
Convention, may exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea and to punish infringement of these laws and regulations committed within its territory
and territorial sea. According to the said Convention, the contiguous zone may not extend
beyond 24 nautical miles from the baseline from which the breadth of the territorial sea is measured. It follows from the provision of the
1982 Convention related to the contiguous zone that the rights of the coastal State over the contiguous zone do not amount to
sovereignty. The coastal State may only exercise jurisdictional powers for the reasons specified by the Convention. Still other States
have rights over these zones similar to those exercisable over the high seas except as they are qualified by the existence of jurisdictional
zones. Moreover, these zones are not automatically belonging to coastal States as in the case of territorial sea; they must be specifically
claimed by the State.
THE EXCLUSIVE ECONOMIC ZONE: The 1982 Convention provides that the exclusive economic zone is an area beyond and adjacent
to the territorial sea, subject to the specific legal regime established by the Convention. The
exclusive economic zone, as the Convention provides, should not extend beyond 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured. In this zone, the Convention establishes sovereign rights and jurisdiction for the coastal
States, as well as, rights and freedoms for other States. Under the Convention, the coastal State has, in the exclusive economic zone,
sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-
living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic
exploitation and exploration of the zone, such as the
production of energy from the water, current and winds. The coastal State also has the jurisdiction with regard to: the establishment
and use of artificial islands, installations and structures; marine scientific research; and the protection and preservation of the marine
environment. In exercising its rights and performing its duties under the Convention in the exclusive economic zone, the coastal State
should have due regard to the rights and duties of other States and should act in a manner compatible with the provisions of the
Convention.
All States, whether coastal or land-locked States, enjoy, subject to the relevant provisions of the Convention, the high seas freedom of
navigation, over-flight and of laying of submarine cables and pipelines in the exclusive economic zone. In exercising their rights and
performing their duties under the Convention in the exclusive economic zone, States should have due regard to the rights and duties of
the coastal State and should comply with the laws and regulations adopted by the coastal State in accordance with the provisions of the
Convention and other compatible rules of International Law.
The Conventions provides that in cases of conflict over rights or jurisdiction of the coastal State or of other States within the exclusive
economic zone, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances. As regarding the
delimitation of the exclusive economic zone between States with opposite or adjacent coasts, the Convention provides that it should be
effected by agreement on the basis of International Law; if no agreement can be reached within a reasonable period of time, the States
concerned should resort to the procedures of settlement of disputes provided for in the Convention.
THE CONTINENTAL SHELF The 1982 Convention defines the continental shelf of the coastal State as .the sea-bed and subsoil of the
submarine area that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the
continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured
where the outer edge of the continental margin does not extend to that distance..] Where the continental margin extends beyond 200
miles, the Convention provides that the continental shelf should not extend more than 350 nautical miles from the baselines or 100
nautical miles from the 2500 meter depth. The continental margin, as the Convention provides, comprises the submerged prolongation
of land mass of the coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the rise; it, however, does not
include the deep ocean floor with its oceanic ridges or the subsoil thereof.
As regarding the delimitation of the continental shelf between States with opposite or adjacent coasts, the Convention provides that it
should be effected by agreement on the basis of International Law; if no agreement can be reached within a reasonable period of time,
the States concerned should resort to the procedures of settlement of disputes provided for in the Convention.
In the continental shelf, the Convention establishes sovereign rights for the coastal States and rights and freedoms for other States, as
well as, imposes duties on them. The coastal State may exercise over the continental shelf sovereign rights for the purpose of exploring
it and exploiting its natural resources. Such rights are exclusive in the sense that if the coastal State does not explore the continental
shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State. The
coastal State has the exclusive right to construct and to
authorize and regulate the construction, operating and use of artificial islands, installations and structures on the continental shelf, as
well as, to authorize and regulate drilling on the continental shelf for all purposes. It has the right to establish reasonable safety zones
around its installations to a limit of 500 meters, which must be respected by ships of all States.
The Convention provides that the rights of the Coastal State over the continental shelf do not depend on occupation or any express
proclamation, and do not affect the legal status of the superjacent waters or of the air above those waters. In exercising its rights over
the continental shelf, the convention requires from the coastal State not to infringe or result in any unjustifiable
interference with navigation and other rights and freedoms of other States as provided for in the Convention (such as the laying or
maintenance of cables or pipelines). Moreover, the Convention imposes upon the coastal State to pay to the International Sea-Bed
Authority annual payments or contributions in kind in respect of the exploitation of the nonliving resources of the continental shelf
beyond 200 miles; such payments or contributions shall be distributed by the Authority to the States parties to the Convention, on the
basis of equitable sharing criteria, taking into account the interests and needs of developing States, particularly the least developed and
the land-locked among them.
Under the Convention, all States are entitled to lay cables and pipelines on the continental shelf, in accordance with the relevant
provisions of the Convention.
STRAITS USED FOR INTERNATIONAL NAVIGATION A strait is a narrow natural sea passage connecting two large areas of the
sea. The 1982 Convention defines international straits as straits used for international navigation either between one part of the high
seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone, or between a part of the high
seas or an exclusive economic zone and the territorial sea of a foreign State; and it specifies a special regime of passage applicable
to these international straits. This regime of passage, however does not apply to a strait used for international navigation if there exists
through the strait a route through the high seas or through an exclusive economic zone of similar convenience with respect to
navigational and hydrographical characteristics; in such routes, others provisions of the 1982 Convention, including those related to the
freedom of navigation and over-flight, apply.
The regime of passage specified by the Convention, as the Convention provides, does not affect the legal status of the waters forming
such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and their air space,
bed and subsoil; however, such sovereignty or jurisdiction of the bordering State is exercised subject to this regime and other rules of
International Law. Moreover, this regime does not affect: any area of internal waters within a strait, except where the establishment of
a baseline in accordance with the straight baselines method has the effect of enclosing as internal waters which had not previously
considered as such; the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or
high seas; or the legal regime of straits in which passage is regulated in whole or in part by longstanding international convention in
force specifically related to such straits (For example, the Turkish Straits of the Bosphorus and the Dardanelles which are
regulated by the Montreux Convention of 1936).
The regime of passage in international straits specified in the Convention includes the right of transit passage and the right of
innocent passage.
A. The Right of Transit Passage in International Straits
The right of transit passage is granted to all ships and aircrafts with respect of international straits used for international navigation
between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. This
right means the exercise of the freedom of navigation and over-flight solely for the purpose of continuous and expeditious transit of the
international straits defined above. However, the requirement of continuous and expeditious transit does not preclude passage
through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry
to that State. Moreover, any activity which is not an exercise of the right of transit passage through a strait remains subject to the
other applicable provisions of the Convention.
The Convention lists an exception to the right of transit passage through international straits defined above. It provides that if the strait
is formed by an island of a State bordering the strait and its mainland and if there exists seaward of the island a route through the high
seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics,
transit passage shall not apply; in such a strait, the right of innocent passage applies. In exercising the right of transit passage,
ships and aircraft must, mainly: observe the relevant provisions of the Convention, the relevant international regulations; comply with
the laws and regulations adopted by the States bordering the straits in conformity with the Convention; refrain from any threat or use of
force against the sovereignty, territorial integrity or political independence of States bordering the strait; and refrain any activities other
than those incidental to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by
distress. During transit passage, foreign ships, including marine scientific research and hydrographic survey ships must not carry out any
research or survey activities without the prior authorization of the States bordering straits.
The Convention entitles the States bordering straits the right to adopt laws and regulations related to transit passage through straits in
respect of safety of navigation and marine traffic, pollution, fishing, and loading or unloading of commodity, currency or persons.
However, such laws and regulations must not discriminate in form or in fact among foreign ships, or hamper or impair the right of
transit passage, and must be given due publicity.
The States bordering straits are under a duty not to hamper transit passage and to give appropriate publicity to any danger to
navigation or over-flight within or over the strait of which they have knowledge. Moreover, they must not suspend transit passage for
whatever reason.
B. The Right of Innocent Passage
According to the Convention, the regime of innocent passage applies to straits used for international navigation, particularly those
excluded from the application of the regime of transit passage (a strait formed by an island of a State bordering the strait and its
mainland where there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar
convenience with respect to navigational and hydrographical characteristics), or those connect a part of the high seas or an exclusive
economic zone and the territorial sea of a foreign State.
The right of innocent passage granted to ships and aircraft in these straits are governed by the provisions of the Convention related to
the right of innocent passage in the territorial sea, except that no suspension of innocent passage through such straits is permitted, for
whatever reason.
 HIGH SEAS
 Short Notes: High Seas 2000
 Discuss the extent to which a state can claim jurisdiction over the high seas in war and peace. Is an appropriation by a state of
the underwater soil allowed in International Law?2006
 Define High Seas. Explain the concept of Freedom of High Seas along-with restrictions over it.2008
SECTION 6: THE HIGH SEAS
The 1982 Convention defines the high seas as .all parts of the sea that are not included in the exclusive economic zone, in the
territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.. Under the Convention the high
seas are open to all States, whether coastal or landlocked, and that the freedom of the high seas is exercised under the conditions laid
down by the Convention and other rules of International Law. Such a freedom comprises inter alia the freedom of navigation, over-
flight, the laying of submarine cables and pipelines, the construction of artificial islands and other installation permitted under
International Law, fishing, and the conduct of scientific research. These freedoms must be exercised by all States with due regard for
the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under the
Convention concerning activities in the International Sea- Bed Area.
Moreover, the high seas shall be reserved for peaceful purposes. No State may purport to subject
any part of the high seas to its sovereignty. Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the
high sea, to exercise its jurisdiction in civil and penal matters, and to exercise control in administrative, technical and social matters
over them.
Section 7: Land-locked States
“Land-locked State” means a State which has no sea-coast. The 1982 Convention provides that land-
locked States have the right of access to and from the sea for the purpose of exercising the rights
provided for in the Convention including those related to the freedom of the high seas and the common
heritage of mankind, the right of innocent passage in the territorial sea of coastal States, the right of
transit and innocent passage in international straits, and the right of laying submarine cables and
pipelines in the continental shelf. To this end, the land-lock States enjoy freedom of transit through the
territory of transit States by all means of transport. “Transit State” means a State, with or without a sea-
coast, situated between a land-locked State and the sea, through whose territory traffic in transit passes.
The Convention provides that terms and modalities for exercising freedom of transit shall be agreed
between the land-locked States and transit States through bilateral, sub-regional or regional agreements.
For the convenience of traffic in transit, free zones or other customs facilities may be provided at the ports
of entry and exit in the transit States, by agreement between those States and the land-locked States.
Traffic in transit shall not be subject to any customs duties, taxes or other charges except charges levied
for specific services rendered in connection with such traffic. Transit States shall take all appropriate
measures to avoid delays or other difficulties of a technical nature in traffic in transit. In the exercise of
their full sovereignty over their territory, transit States shall have the right to take all measures necessary
to ensure that the rights and facilities provided for in the Convention for land-locked States shall in no
way infringe their legitimate interests.

Section 8: The Area and the Authority

The “Area” as defined by the 1982 Convention means the sea-bed and ocean floor and subsoil thereof,
beyond the limits of national jurisdiction.[26] Under the Convention, the Area and its resources (solid,
liquid or gaseous mineral) are deemed to be the common heritage of mankind and no sovereign or other
rights may be recognized. However, minerals recovered from the Area only in accordance with the
Convention are alienable. Activities in the Area are to be carried out for the benefit of mankind as a whole
by or on behalf of “the International Seabed Authority” established under the Convention.[27] The
Authority is to provide for the equitable sharing of such benefits.
The Area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-
locked, without discrimination and without prejudice to the provisions of the Convention. Marine scientific
research in the Area shall be carried out, by or on behave of the Authority, exclusively for peaceful
purposes and for the benefits of mankind as a whole in accordance with the Convention.
The International Seabed Authority (the Authority) is the autonomous organization which the States
parties to the 1982 Convention have agreed to establish in order to organize and control activities in the
Area, particularly to administer the resources of the Area. All States parties to the Convention are ipso
facto members of the Authority. The Authority became fully operational in June 1996. The seat of the
Authority is in Jamaica; it may establish such regional centers or offices as it deems necessary for the
exercise of its functions.
The Authority may exercise the powers and functions which are expressly conferred upon it by the
Convention, and such incidental powers, consistent with the Convention, as are implicit in and necessary
for the exercise of those powers and functions with respect to activities in the Area. It consists of the
principal organs, which are the Assembly, the Council and the Secretariat, the Enterprise, and certain
subsidiary organs.
Section 9: Enclosed or Semi-Enclosed Seas
Enclosed and semi-enclosed seas as defined by the 1982 Convention means a gulf, basin or sea
surrounded by two or more States and connected to another sea or the ocean by narrow outlet or
consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal
States. The Convention requires the States bordering an enclosed or semi-enclosed sea to co-operate with
each other in the exercise of their rights and in the performance of their duties under the Convention. To
this end these States are required to endeavor, directly or through an appropriate regional organization to
co-ordinate: the management, conservation, exploration and exploitation of living resources of the sea;
the implementation of their rights and duties with respect to the protection and preservation of the marine
 environment; their scientific research policies and undertake where appropriate joint programmes of
scientific research in the area. These States are also required to invite, as appropriate, other interested
States or international organizations to co-operate with them.
Actually, there are more than twenty marine areas which can be regarded as enclosed or semi-enclosed
seas according to the criteria specified by the 1982 Convention. Among these areas are the Baltic Sea, the
Black Sea, the Caribbean Sea, the East China Sea, the Mediterranean Sea, the Red Sea, the South China
Sea, the Gulf of Mexico, the Gulf of Oman, and the Arabian Gulf. In international practice, co-operation
among the States bordering enclosed or semi-enclosed seas has been taken in matters such as
conservation of the living resources and marine pollution prevention and control.
INTERNATIONAL RIVERS
 Write a comprehensive note on international rivers and international canal. 2001
 Describe international rivers. State the principles of law, regulating the use of water and navigation in international rivers. 2003

NATIONALITY
 Short Notes: Nationality 2000
 Define nationality. What are neutral and neutralized states? 2001
 Explain the various modes of acquiring and losing nationality. What is double Nationality and Statelessness? 2002
 Short Notes: Double nationality 2003, 2012
 Explain the various modes of acquiring and losing NATIONALITY. What is DOUBLE NATIONALITY and
STATELESSNESS? 2007
What is nationality? How it differs from domicile? Explain both.
Ans : - Nationality: - The term nationality may be defined as under: -
Definition: - “ The legal relation of the sovereign state and the citizen is said to be nationality.”
Explanation: - Nationality refers to a relationship between a person and their nation, or in legal terms, a country i.e. a
place to whom a person has (or is claimed to "owe") their origin, culture, familiarity, association, affiliation, fidelity, and
loyalty. The nationals of a country generally possess the right of abode in the territory of the country whose nationality
they hold. Nationality of an individual is the quality of bieng a subject of a certain state and therefore its citizens.
Nationality forms a continuiting state of things and not a physical fact which occurs at a prticular moment. Nationality is
regulated by municipal laws. But in conflict of municipal and international laws always been happen, creating a lot of
problems, due to ununiformity of municipals laws of the nations. So, to overcome these problems some international
rule have also been recognizes and others are attempted to be recognized in this behalf. As for example, double
nationality, statelessness etc.
Modes of Acquisition of Nationality: - Different states have different rules regarding nationality, so there are different
rules in each state has for acquisition of nationality. There may be any of the following modes in different states of
acquisition of nationality.
1. By Birth: - The first important and chief mode of acquisition of nationality is by birth. Every person acquires
nationality by birth. The principle of acquisition of nationality by birth is known as jus soli
2. By Descent: - Nationality may also be acquired by a person on the basis of the nationality of either parents. The
principle is called jus sanguinis.
3. By Naturalization: - Nationality may also be acquired by naturalization. Nationality by naturalization means that the
acquisition of nationality when a person becomes citizen of a state for a specified course of time
4. By Resumption: - Acquisition of nationality by resumption means to resume the previous nationality. Sometimes it
may happen that a person loss his nationality due to several reason, so subsequently he may acquire the nationality of
the previous state.
5. By Subjugation: - In case of conquest of a state by another state all the citizens of the defeated state become the
nationals of the conquering state, the mode of acquisition is said to be acquisition of nationality by subjugation.
6. Be Cession: - When a state or a part of a state is ceded to another state, all thenationals of the former state acquire
the nationality of the state in which their territory has been so merged.
7. By Option: - Nationality may also be acquired by option, in case where a parent state has been partitioned into two
or more states. In such a case the inhabitants have an option to acquire the nationality of any of the successor states.
8. By Registration: - Nationality of a state may be acquired by registration in that state. The laws as to acquisition of
nationality by registration are different in different states.
Modes of Loss of Nationality: - A person may loss his nationality of a state due to any of the following modes:
1. By Release: - In some states the citizens have been given a right to release their nationality. The loss of nationality
by release shall only take place when an application is made by the applicant to that effect, and when such application
has been accepted. In such a case the concerned person is deemed to be released from the state concerned.
2. By Deprivation: - Nationality may also be lost by deprivation. In other words when the authority of a state deprive a
person from being its national due some reason, the person concerned is deemed to loss nationality by deprivation. To
deprive a person from his nationality any of the following reasons may be invoked by the authority doing so;
If registration or certificate of naturalization has been obtained by means of fraud, false representation or by
concealing any material fact or;
If he has been disloyal or disaffected to the integrity of the concerned sovereign state,
If he has done by prejudicial act or traded with enemy while the state, in which he has the nationality, is at war with
that state,
If he has been continuously resided in a foreign country for a length of years.
3. By Renunciation: - A person may also has a right to renounce his nationality in a case where he obtains nationalities
of more than one state. In such a case he has to make a choice as to retain one of the nationality in which he want to be
a national.
4. By Residence Abroad: - Nationality may be lost by reason of expiration. In other words when a person resides
abroad for a length of time. In such a case by the operation of municipal law of that state, he may loss his nationality.
5. By Substitution: - Loss of nationality by substitution means the loss of nationality of one state in place of attaining of
nationality of another state. That is to say, when a person acquires a nationality of one state in place of nationality of
another state, he losses the nationality of the other state.
Differentiate between;
1). Nationality and Domicile.
2). Domicile and Citizenship.
3). Nationality and citizenship.
Ans: -
1. Distinction Between Nationality and Domicile.
As we know that nationality is the relation of the person with the state which provides him protection and all rights
annexed thereto. While at the other hand domicile is place of residence of person. In other words due to nationality a
person becomes the member of that community while domicile is merely the land where he has residence. Nationality
may be acquired due to domicile. For such acquisition of nationality different states have different laws.
3. Distinction Between Domicile and Citizenship.
The most unique distinction between domicile and citizenship is that domicile connotes the civil rights of a person while
citizen ship is a political status of a person. In other words a person having domicile may not be called citizen of a state,
because he only enjoys certain general civil rights in the consequence of his domicile. While a citizen of a state enjoys all
civil as will as political rights of that state. The reason is that in case of domicile the person is merely affiliated with the
state by tie of his residence in that state, but in case of citizenship the person has a political tie with the state and the
state, that is to say, the state’s policy will affect his political life.
4. Distinction between Nationality and Citizenship.
As it obvious that nationality is a relation of a person with the nation of which he has nationality while at the other hand
citizenship is the relation of a national with the law of the state. In other words national enjoys certain legal rights while
citizen enjoys absolute rights in the state. So, nationality may be the subject of international law as well as, municipal
law, while at the other hand citizenship is the exclusive subject of municipal law.
NEUTRALIZATION
 Short Notes: Neutrality 2003
 Differentiate between Neutralized and Neutral States. Discuss the rights and duties of a neutral state.2005
 Discuss the concept of Neutralization. How is it done? Explain the Rights, Duties and Guarantees given to a Neutralized
state.2010
 Define the term NEUTRALITY and explain the rights and duties of a neutral state.Re-Exam 2013
Neutrality
Concept of Neutrality
- States who do not support either party during war
- Maintain friendly relations with both the belligerents
- Keep themselves aloof from war
- The attitude of impartiality by a State adopted during war
- Keeping away from all blocks and pacts
- Duties of neutral states are:
1. Abstention: abstain from rendering direct or indirect help to belligerents
2. Prevention: prevent preparation of war in favour of either belligerent within their territory
3. Acquiescence: acquiesce in certain matters
4. Restoration: restore any violations occurring to their status of neutrality
5. Reparation: compensate for any contraventions to the status of neutrality
- Rights of neutral states are:
1. No war-like act may be committed in their territory
2. Their cable lines in sea must not be damaged
3. Belligerents may not use their territory for war preparations
4. Entitled to make certain rules to protect their territory and make belligerents observe those rules
5. If their neutrality is violated, they may be compensated for the same
End of Neutrality
- At the end of war;
- When the neutral State starts war with one of the belligerent State; or
- When any belligerent State starts war with the neutral State.
Types of Neutrality
I. Perpetual or Permanent Neutrality: State neutralized through an International treaty
II. General and Partial Neutrality: when a part of State is neutral (partial) or the whole state is neutral (general)
III. Voluntary Neutrality: declared by a State voluntarily
IV. Armed Neutrality: State uses arms to defend its neutrality
V. Benevolent Neutrality: while remaining neutral, a State favours a belligerent state
VI. Perfect and Qualified Neutrality: perfectly neutral and if according to some treaty before neutrality helps a
belligerent (qualified neutrality)
Neutral State
- A stance taken at the discretion of the State itself
- Neutrality by will of the State
- Keeping away from war as a personal choice of State
- Neutrality is a temporary status and may be changed upon the discretion of the neutral State
Neutralized State
- A State made to keep neutral during a war through some treaty
- A neutralized state would not resort to war except in self-defense
- The State will not enter into a treaty which may affect its impartiality and may compel it to resort to war
- Objective of neutralization is to maintain balance of power and protect smaller States
- Neutralized States have following duties:
1. Not resorting to war except for self-defense
2. Not entering any military pact or agreement
3. Taking a position of neutrality during any war
- Neutralization is a permanent status, ensured by a treaty
- Switzerland was a classic example of a neutralized State until it joined UN in 2001
INTERNATIONAL COURT OF JUSTICE
 Write a detailed note on the International-court of Justice with particular reference to its powers to exercise jurisdiction over
disputant states. 2000
 The jurisdiction of international court of justice depends on the consent of the parties concerned. Discuss. 2001
 How far has the United Nation succeeded in developing a comprehensive system of Human Rights protection? Can emphasis
on social justice and Human rights lead to a stable International Order? 2009
 Explain the structure and powers of the International Court of Justice and assess the importance of the principles laid down in
judicial decisions of leading cases as precedents for states.2013
 Do you think that the International Court of Justice (ICJ) is rightly called the world court? How is the
Jurisdiction of the ICJ established? Do you believe that the ICJ should have a more stringent
“compulsory jurisdiction” rather than the procedure mentioned in article 36(2) of the ICJ statute? 2021
Discuss composition as well as jurisdictions of International Court of Justice.
Ans: - International Court of Justice (ICJ) is the successor of the Permanent Court of International Justice. The statute of
Permanent Court of Justice has been adopted for the International Court of Justice (hereinafter referred as ‘Court’). The
establishment of the Court became necessary because to attain the end of International law there must be a judicial
organ. So, the Court is the ‘Principle Judicial Organ’ of the International Organization.
Composition: - The composition of the Court may be explained as under:
1. Strength: - The Court is consisted of fifteen judges. And not more that one judge shall be elected from one state, for
the Court at a given time.
2. Qualifications: - The candidate for the office of judge in the Court shall possess the following qualifications:
a). He should be independent.
b). He should be a person of high moral character.
c). He must be qualified for the appointment of the highest judicial offices in his country.
Nature of the office: - The nature of the office of judge for the Court is elective. In other words the judges for the
Court shall be elected in General Assembly and Security Council.
4. Election: - General Assembly and Security Council shall conduct the election of the judges of the Court independently,
but simultaneously. These two organs shall elect the judges from the list of nominees prepared by the national groups in
the Permanent Court of Arbitration.
5. Term of office: - The term of the office for the judge of the Court is nine years, however, five of them shall be retired
after each three years and so, for such vacancies election shall also be conducted after each five years as to maintain the
strength to fifteen.
6. Obligations of Judges: - Any person who has so been elected as a judge of the Court is bound to;
a). refrain from all political and administrative functions,
b). refrain from being council, agent or advocate in any case, and
c). not participate in any case in which he has previously has taken part as agent, counsel or advocate for one of the
parties.
7. Quorum of the Court: - The quorum of the Court is fixed at nine judges.
8. President of the Court: - After each period of three years the Court shall elect its president. The president shall
preside the cases of the Court. But if in a case any party is his national he shall not be entitled to as act as president.
9. Voice-President of the Court: - Along with the election of the president the shall also elect its voice-president. Voice
president shall act as president in a case where president is not present or where president is not entitle for presidency
due to one of the parties to the case is being his national.
10. Chamber: - The Court is entitled to form a chamber, composed of not less than three members or which the Court
may thinks fit. Different chamber may be declared by the Court to deal with different cases. The Court may constitute a
chamber to deal with a particular case. The Court shall itself along with the approval of the parties to the case determine
the chamber.
11. Ad hoc Judges: - The statute of the Court reveals that ad hoc judges may be appointed in those cases where there
is no national judge of the party to a case. That party can appoint a national judge in that particular case.
Jurisdiction: - Broadly speaking there are two kinds of jurisdiction of the Court as follows;
I. Contentious Jurisdiction, and
II. Advisory Jurisdiction.
I. Contentious Jurisdiction: - That jurisdiction of the Court on the basis of which the Court decides any case with the
consent of the parties to the case, is called ‘Contentious Jurisdiction.’ It is fundamental principle of international law that
without the consent of any party to a case, the same shall not be referred to mediation or arbitration. The same rule is,
with some restriction, is applicable to the jurisdiction of the Court. In other words, the Court is not entitled to initiate any
proceeding merely because one party files a case, rather the consent of both the parties are necessary that dependent is
also required to give consent to the case. Contentious Jurisdiction is of three kinds which may be given as under:
i. Voluntary Jurisdiction.
ii. Ad hoc Jurisdiction.
iii. Compulsory Jurisdiction.
i). Voluntary Jurisdiction: - That jurisdiction which the parties by virtue of an agreement or treaty confer on Court is
called Voluntary Jurisdiction. In other words, when the parties to a treaty or a contract stipulate that if any dispute arise
in respect of such treaty or contract the dispute shall be referred to the Court for settlement, this type of jurisdiction of
the Court is said to voluntary jurisdiction. So, in voluntary jurisdiction the parties to a dispute give their assent for the
jurisdiction of the Court in advance.
ii). Ad hoc Jurisdiction: - That jurisdiction of the Court when the parties, after the occurrence of the dispute, confers
on Court and in which the Court has no right to take up the case, is said to be Ad hoc Jurisdiction.
iii). Compulsory Jurisdiction: -Compulsory Jurisdiction means that type of jurisdiction which the Court enjoys without
the consent of the parties. In classic international law there is no concept of the Compulsory Jurisdiction of the Court, but
recently it has been contended that no the time has reached to confide the Court with compulsory jurisdiction.
In case of Compulsory Jurisdiction, the Court is to be empowered to take up a case with out the consent of the parties
like municipal Courts. But once again, the application of the Compulsory Jurisdiction at universal level, depends on the
approval of the Nation States.
The procedure for the Compulsory Jurisdiction of the Court has also been laid down.
II. Advisory Jurisdiction: - Advisory Jurisdiction means that the jurisdiction of the Court by which it may only gives an
advisory opinion on a question of law. This does not require the consent of the parties to a case but when any
International Institute ( General Assembly or Security Council) ask the Court to give an advisory opinion on the
question. This opinion is not binding on the parties. So, the case may be referred by an international organization or by
any organs within the scope of their activities
What is the difference between International Court of Justice and Permanent Court of Arbitration?
Ans: - International Court of Justice and Permanent Court of Arbitration have been recognized by the International law to
settle the disputes among the Nation States. The difference between the Courts may be given as under:
Distinction Between ICJ and Permanent Court of Arbitration.
International Court of Justice. Permanent Court of Arbitration.
1. It is a permanent Court 1. It is nether a court nor permanent. The title given is
totally opposite to its nature and function.
2. It is governed by a statute, enacted for its predecessor 2. It has no procedural law, rather the procedure of the
namely, the Court International Justice. proceedings is to be determined by the parties to the case.
3. Its judgment is called the legal Decisions 3. Its judgment is called the Award by the Court.
4. Its judges are elected by the General Assembly and 4. Its judges are to be appointed by the parties to the
Security Council dispute.
5. Its judges are to be elected by General Assembly and 5. Its judges are to be appointed by the disputant parties
Security Council. themselves.
6.Judges represents the main forms of civilization and the 6. Its members shall never be the representatives of the
world legal system. world community.
7. It shall decide the case in accordance with treaties, 7. The rules making the award are to be decided by the
customs and general principles of law and other sources. parties to the disputes. It may apply the general principles
of law and equity.
8. It being of a permanent, performs a number of functions 7. It being a temporary tribunal does not perform other
as annexed with its nature. functions.
9. It is open to all the states 9. It is not open to all the states.
10. Its proceedings are open to the public, and its 10. Its proceeding are not open to public. Its awards shall
proceeding are published and recorded. not be published if the parties are not agree thereto.
11. It is a principal organ of United Nations. 11. It is not a principal organ of the United Nations.
INTERNATIONAL DISPUTES
 Discuss Kashmir dispute in the light of
1. Right of self determination 2001
2. UN Security Council resolution 2001
3. Non interference in internal affairs 2001
4. legal status of election in Kashmir 2001
5. Simla agreement 2001

 appraise the position of international law relating to self-determination and secession in the light
Critically
of the International Court of Justice’s advisory opinion concerning the status of Kosovo.
 What are amicable means of settlement of international disputes? 2002
 Describe various methods of peaceful and amicable settlement of international disputes. 2004
 Discuss amicable means for the settlement of international disputes.2005,2008,2010
Critically analyze the powers of the General Assembly and Security Council in the settlement of International
Disputes.2018
“Although Security Council has resolved most of the issues relating to threat to international peace and security
but the real problem today is about its composition”. Discuss.
What are the amicable means for the settlement of the International Disputes?
UN Charter: “We the people of the United Nations determined to save succeeding generations from the scourge of
war, which twice in our lifetime has brought untold sorrow to mankind”
In order to be considered an international dispute, Professor Lawrence holds view that it must have the following
characteristics:
- The dispute must be between states
- The dispute must relate to reasonable and well defined subject matter
- The dispute must lead to some action by the aggrieved State
Ans: - For the settlement of an international dispute there are following amicable means:
Negotiation: - The settlement of the international disputes by the disputant states themselves by negotiation is said to
be settlement of the disputes by negotiation. In other words when there a dispute arises between two or more states
then to avoid the chances of war or violence they tends to conduct negotiation for the matters to be settled. The
negotiation is to be taken by the political representatives of the disputant countries, without involving any third or non-
concerned country.
-Discussions between representatives of parties to a dispute
- Only sovereign States are parties to disputes
- The only universally accepted means of dispute settlement peacefully
- However, proves futile when either of the parties refuse to conduct meaningful negotiations
- Example, Indus Water Treaty (1960) between Pakistan and India was reached through negotiation
Good-offices: - The act or arrangements taken by a third party to bring disputant parties for negotiation or to settle
dispute between them by any peaceful means is said to be Good-offices. In case of Good-offices the third merely renders
services to bring the disputant parties to peace full means of settlement of disputes. Here the third party does not give
any suggestions or take part in the meetings as to be held between the disputant parties. Shortly speaking, in case of
good offices whenever the parties to dispute come to peace full of settlement of dispute the duty of the third party
finishes.
- When the parties to a dispute fail to negotiate or so, third party usually steps in to offer assistance with the settlement
while not becoming a full-fledged party to the case
- Help/assistance is provided to the parties in forms like offering channels of communication, services like courts, etc.
- An example is role played by Russian Prime Minister in Tashkent between India and Pakistan (1966)
3. Mediation: - The act of participating and in the discussions and giving suggestions to settle a dispute between two
parties by a third party is said to Mediation. In other words, mediation is the method to settle a dispute where any third
party actively takes part in the sessions of dialogues or negotiations held between disputant party as to
resolve the dispute. In case of mediation the mediator should consider the matter of compromise between the parties
rather to encourage the strict letter of law.
- Negotiation between two parties to a dispute through agency of a third party
- The third party actively participates in the process and proposes terms of settlement; these terms may be accepted or
rejected by either party
- Example, UN Secretary General successfully mediated the termination of war between Iran and Iraq in 1988
4. Inquiry: - The process to ascertain the facts of disputes by a commission of imperial investigators is said to inquiry.
This mean is intended to find out the questions of law and mixed questions of law and fact involved in a dispute. The only
function of the commission is to bring in light those facts, which are the root cause for the alleged
dispute, and to investigate the question of law and mixed questions of law and fact.
- Facts surrounding the dispute are first investigated
- Not an independent method, but used with other methods
- Hague Convention 1907 refers to the establishment of an international commission of enquiry in order to
“elucidate through an impartial and conscientious examinations the question of facts”
- Example, enquiry was carried out in the North Sea Incident; North Sea Continental Shelf Cases
5. Conciliation: - The process of referring a dispute to a commission; for the purpose of finding out facts and to prepare
a report containing proposals for the settlement of that dispute, is called conciliation. In case of conciliation the
commission is to take two tasks, at first, it shall ascertain the facts of the dispute and secondly, it shall prepare a
report which shall reveal that the possible measures to settle the dispute. But the proposals prepared by the commission
have no binding force upon the parties. The parties can disagree with the proposals.
- Refers to various steps taken by a third party to solve a dispute between two parties
- May include enquiry, mediation and provision of good offices as well
- An Example is UN making efforts to resolve Palestine issue
6. Arbitration: - The process of referring the dispute; by the mutual consent of the parties to a body of persons or to a
tribunal for a legal decision is called as arbitration. The essential ingredient of arbitration is the consent of disputant
parties to the dispute. In other words, the referring of the dispute to a Court of Arbitration is dependent on the sweet-
well of the parties. International law recognizes a court for arbitration known as Permanent Court of Arbitration. But in
fact it is neither permanent nor a court.
- Dispute is referred to certain persons called arbitrators, selected by the parties to the dispute
- The arbitrators give their decision, which is called the award
- This award becomes binding on the parties to the dispute
- Useful in technical disputes, less expensive than settling a case at ICJ, and can be conducted without publicity
- A flexible means of dispute resolution that can be combined with other diplomatic channels
- The Hague Convention of 1899 codified the law of arbitration, which eventually led to establishment of Permanent
Court of Arbitration (PCA) in 1990
7. Judicial Settlement: - The process of settling a dispute; by the International Tribunal in the light of the provisions of
International Law, is said to be Judicial Settlement. For Judicial Settlement there is a judicial organ in international law,
known as International Court of Justice. Both the award given by the arbitration tribunal and decision given by the
International Court of Justice are comes in the ambit of Judicial Settlement. Like in arbitration, in case of referring the
dispute to the International Court of Justice the consent of both the parties are necessary to be given. International Court
of Justice shall take its proceeding in the light of the rules of International law, and its procedure is governed by the a
statute known as the Statute of International Court of Justice. International Court of Justice plays a very important rule in
the settlement of international disputes.
- International Court of Justice holds the most important position in judicially settling international cases
- Under article 93 of the UN Charter, all members of the UN are parties to the Statute of ICJ also
- Parties have to comply with the decision given by the ICJ, but if they fail to do so, UN may intervene and force the
decision upon the parties through various channels
7. Security Council: - A dispute may be settled by a principal organ of the United Nations, known as Security Council.
The Council is consisted of fifteen members. Five members are permanent while the remaining ten members are non-
permanent members. Wide powers have been entrusted to the Council for the settlement of the disputes, which tend to
endanger world peace and security. There is a number of measures to be taken by the Council for the settlement of the
disputes.
8. General Assembly: - General Assembly is another principal organ of the United Nations. The Assembly has no
specific means to settle the dispute, rather it has general powers to settle the international dispute. It has the power to
discuss and to suggest better means for the peaceful settlement of the disputes.
Conclusion: - Briefly speaking, International Law intends to overcome the chances of war and violence, and believe to
solve the disputes on the merits of political, diplomatic and judicial bases. To avoid the chances of breaking out of wars it
provides certain measures and means. Among which above are the amicable means to settle the disputes. But
international law also recognizes certain coercive or compulsive means to settle the disputes in extra-ordinary cases
where the International peace and security has been endangered.

Coercive means of settlement

1. Retorsion (Retaliation)
- Measures include severance of diplomatic ties, withdrawal of privileges of diplomatic agents
- Economic facilities may be withdrawn
2. Reprisals
- A deliberate and limited violation to international law to punish another sovereign State that has already broken the
law
- Only legitimate when they have been preceded by an unsuccessful demand for redress
- Used as a defense to criminal conduct
- While Retorsion is legally allowed, reprisals are illegitimate, used only under certain strict conditions
- The leading case of a reprisal is Naulila Incident (Germany v Portugal)
3. Embargo
- A trade barrier imposed upon a State that has violated international law
- An embargo may also be imposed between two parties amongst themselves due to any dispute
4. Pacific Blockade
- Ingress and egress of the ports of a State are blockaded
- Less violent than war, but effective if implemented thoroughly
- Difficult to impose as other States also affected by a blockade on one State’s ports
- Example, US blockaded the ports of Cuba in 1962
5. Intervention
- Intervention of one State into the affairs of another State is strictly prohibited under international law
- But under special circumstances, UN may empower or authorize certain States to intervene with a law violating State
as damage control or loss mitigation
- Intervention is discussed in a later chapter in detail
6. War and Non-Armed Action
BLOCKADE
 Short Notes: Blockade 2000
 Define Blockade. What are the essentials of real and binding Blockade? What does it terminate? Refer to leading cases 2004
 Blockade of the Ports or Coasts of a State by the Armed Forces of another State is an example of Aggressive
Act. Explain the Laws relating to Blockade under International Humanitarian Law.
INTERVENTIONS
 Short Notes: Intervention 2000
 The frequent ‘Interventions’ have challenged the validity of some of fundamental principles of International Law. What are those
principles? Discuss in the light of interventions in Afghanistan and Iraq by the super-powers.2004
 “Whatever the morality of intervention, states have no right under International Law to intervene on the territory of other states in
order to prevent alleged crimes against humanity or to uphold human rights norms.” Discuss. 2006
 Explain with reference to the relevant articles of the UN Charter that whether the world body is authorized to intervene in the
domestic jurisdiction of its member states. 2012
INTERVENTION
- Oppenheim: “Intervention is a dictatorial interference by a State in the affairs of another State for the purpose of maintaining or
offering the actual condition of things.”
- There are two types of interventions: Diplomatic Intervention and Military Intervention
Principles of Non-Intervention
- Article 2(4) of the UN Charter: “All members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any State or in any other manner inconsistent with the purpose of UN.”
- Article 2(7) of the UN Charter: Under this article, one State or all the member States can attack on any State by the suggestion of
SC and by the approval of UN
Grounds of Intervention
Following are a few grounds of intervention, with their current status and status before the formation of UN Charter:
1. Self Defense
- Oppenheim: “Use of force in self-defense is justified where it is necessary for self-preservation”
- Article 51 of the UN Charter gives the right of self-defense subject to following conditions:
i. There should be an armed attack
ii. Right exists until Security Council has taken any action
iii. It should be reported to Security Council
iv. It is subject to the review by Security Council
v. This right shall not affect Security Council’s responsibility for peace and security
vi. Right is not available against non-members of the UN
- Caroline Case 1841 may be taken an example of necessity of self-defense
- Nuremberg Tribunal endorsed and ratified the Caroline test
2. Humanitarian Grounds
- It has been used as a justification for intervention even before the Charter
- After UN Charter, however, it has been established that intervention on humanitarian grounds only allowed to the UN itself, or to
the States that UN sanctions to intervene. A State, on its own, is prohibited to intervene in another State
3. Enforce Treaty Rights
- In past, interventions were made as compliance of respective treaty provisions
- Germany attacked Belgium in 1831 and 1839, England intervened as it had a treaty with Belgium whereby it had to maintain the
neutrality of Belgium
- Article 2(7) of the UN Charter, however, strictly prohibits intervention on this ground
4. Prevent Illegal Intervention
- In 1926, England helped Portugal in this regard
- Again, UN Charter prohibits intervention on this ground also
5. Maintain Balance of Power
- There have been several interventions on this ground
- Even before World War I, States have intervened in other States to maintain a balance of power
- Article 24 of the Charter confer upon Security Council the primary responsibility of maintenance of international peace and
security; While carrying out its duties under this responsibility, the Security Council acts on behalf of all the members of the UN.
Thus, the system of balance of power has been replaced by a system of collective security
6. Protection of Persons and Property
- Prior to the Charter, interventions were made on this ground
- After UN, individual States are not allowed to intervene on this ground
- UN itself intervenes if any instance of exploitation of persons or property is reported
- In Indo-Pak War of 1971, UN intervened and imposed ceasefire between the belligerents when atrocities began by both sides
7. Collective Intervention
- UNSC is empowered to take collective action if there exists a threat or a breach of international peace and security or an aggression
has taken place
1. Introduction:
Intervention is right of every state. when one state intervenes in the affairs of another state through force then as a
reaction against this violation, international law, permits intervention. it is forcible and without the consent of the state
where in the intervention is done. general assembly of the unite 1 nation has made non- intervention a duty of all the
states. intervention may effect internal or external affairs of another state.
2. Meaning of intervention:
The term "intervention" is used by some writers in the expression "subversive intervention" to denote propaganda or
other activity by one state into the
affairs of another state.
3. Definition:
According to Oppenheim:
"Intervention is dictorial interference by a state in the affairs of another state for the purpose of maintaining or altering
the actual conditions of things."
4. Form of intervention:
Intervention may be diplomatic or military.
5. Kinds of intervention:
Intervention has kinds following.
(a) Internal.
(b) External.
(c) Punitive.
6. Principle of non- intervention:
Principle of non- invention has been stated under article 2(4) of the united nations. this principle has also been re-
affirmed by the general assembly through its resolution 2131 9xx) of December 1965.
Exception:
Individual and collective self defence as contained in article 51.
7. Elements of intervention:
Elements of the intervention are as under.
 (a) Forcibility or use of force.
(b) By a state.
(c) By a state.
(d) Against a state.
8. Object of intervention:
Object of intervention is to make the conditions according to the wishes of intervention state.
9. Grounds for intervention under international law:
Following are grounds for intervention which are permitted under international law.
I. Self defence:
According to oppenhiem use of force in self defence is justified where it is necessary for self preservation.
(a) Conditions:
The right of self defence is available subject to the conditions as under.
(i) There should be an arm attack.
(ii) Report should be made to security council.
(iii) There shall be no effect on security council responsibility for keeping peace.
(iv) Right is subject to the review of security council.
(v) Right of self defence exits until security council has taken any action.
(vi) This right is not available against non- member of united nation.
The Coroline case 1841:
Following principle was laid down in this case.
"Necessity of self defence should be instant, overwhelming and leaving no
choice or means and no moment for deliberation."
II. Collective intervention:
Under the charter of united nation collective intervention can be made to check an aggression on the breach of
international peace and security. In chapter (vii) security council has been empowered to take collective action if there
exist a threat or breach of the international peace and security or an aggression has taken place.
(iii) Intervention on humanitarian ground:
Humanity is also justification for intervention by a state. when human rights are openly violated, other states can interfere
to check violation of human rights. it is controversial question as to whether after the enforcement of charter of united
nation, intervention is lawful or not. now this type of intervention is not permissible under international law.
(iv) Intervention to protect persons and property:
State can interfere on the ground to protect the persons and property.
(v) Intervention for balance of power:
It was permitted in the past but after the establishment of united nation no state can intervene in the internal and
external affairs of other state.
(vi) Intervention to maintain international law:
It was permitted before the establishment of united nation. now intervention of international law is not permissible.
(vii) Intervention for enforcement of treaty rights:
A state is justified to interfered the external or internal affairs of other state for the enforcement of rights of treaty. united
nation does not recognise this intervention.
10. Present position under U. N Charter:
Now under U. N charter intervention can not be justified on any ground. The charter has prohibited the use of force by a
state in the affairs of another state by virtue of article 2 para 4 i. e. all members states shall refrain in their international
relations from the threat or use of force, against the territorial integrity or political independence of any state or in any
other manner in consistent with the purposes of the united nation.
11. Conclusion:
To conclude it can be said that intervention is a dictatorial interference by a state in the affairs of other state. when
principle of non interference is violated, it is referred to intervention. it may be diplomatic or military. intervention is a rule
forbidden by international law but there are exceptional cases where a state can intervene in the affairs of other state.
DIPLOMACY
 State the various kinds and classes of diplomatic agents and mention their privileges and immunities.2003
 A Pakistani citizen working in the embassy of a foreign country in Islamabad, has committed an offence against another
Pakistani citizen. The Pakistani police want to arrest such person. However, the ambassador is refusing to handover the
accused to the police with the plea that the accused has a diplomatic immunity. Do you agree with the pleas of the
ambassador? Why or why not?2006
 Describe Importance of diplomacy in interstate relations and discuss the concept of diplomacy and immunity?2009
 Define Diplomatic Envoy. Give a short account of the functions, privileges and immunities of the diplomatic envoys
accredited to other states. 2011
 "The office of the Secretary General of the United Nations is certainly the most important and visible post in intentional
multilateral diplomacy but it has been called the most impossible job in the world because the faces complex and
contradictory pressures in the performance of his duties" Discuss 2014
Classify diplomatic agents and give their functions. Also give composition staff of diplomatic mission.
Ans: - Diplomatic agents are those persons who abide in foreign state as representatives of their own states.
Classification of Diplomatic Agents: - Article 14 of the Vienna Convention on Diplomatic Relations, 1961
recognizes three categories of diplomatic agents:
1. Ambassadors: - The personal representatives of the Head of the state are said to be ambassadors.
And in the common wealth countries the representatives are said to be the High Commissioners. As for example, the
representative of Pakistan in India is called High Commissioner.
The appointment of the ambassador is subjected to the assent of receiving state. In other words the person who is going
to be appointed as a diplomatic envoy in a country it is necessary that he must porsona grata, for the receiving state.
Otherwise he should be refused. So, it is a duty of the sending state to send a report regarding the person to be
appointed as diplomatic envoy to the receiving state.
Once a person has been accepted as envoy he should be given certain rights and immunities. As for example, he has a
right to claim the title of ‘Excellency’.
2. Ministers: - Ministers are other diplomatic officials accredited to the other countries, but ministers are not the
personal representatives of the Head of the state. So, they receive less honour as compared to ambassadors. And they
are not entitled to claim the title of ‘Excellency’. But if they were given this title it would be a matter of courtesy but not
as a matter of their right. in other respects they are almost equal with ambassadors.
3. Charge d’ Affairs: - The officials accredited to foreign state by the foreign office to the foreign office. They are less
important as compare to ambassadors and ministers. They do not enjoy honour and title as are available to ambassadors
and ministers. They may either be appointed permanently or temporarily. But usually they are appointed temporarily.
- Apart from the etiquette and precedence, there is no difference between the above mentioned categories of the
diplomatic agents
Functions of Diplomatic Agents: - Article 3 of the Vienna Convention on Diplomatic Relations enumerates the
following functions of diplomatic agents:
The functions of diplomatic agents may be derived from international law and municipal law of the concerned countries.
The chief functions of the diplomatic agents may be given as under;
1. Representation of their (sending) State in the receiving State : - The most important function of the
diplomatic agents is to represent the state from where they have been sent in the state to whom they have been sent.
They are actually the mouthpiece of the Head of the home state because they communicate with the host state the
affairs of the home state.
2. Negotiating with the government of the receiving State: - The other most important function which the
diplomatic agents have to perform is the negotiation. They negotiate on various aspects on behalf of he sending state
with the state to which they are accredited in order to maintain friendly relationship between the two. They are required
to communicate the outcome of the negotiations to the sending state from time to time.
3. Protection of interests of their State : - Diplomatic agents protect the interests of the sending state and also of its
nationals and their property within the limits permitted by International Law but by the municipal law and regulations of
the sending state within which an envoy affords protection.
4. Observation, Ascertainment of conditions and developments in the receiving States by lawful means : -
Diplomatic agents are required to observe those happenings and events which may take place in the state where they are
accredited, especially those which may have effecting the state by which they are sent. After making observations they
are required to make periodical reports as well as special reports thereon to the government of the sending state.
5. Promoting friendly relations between the sending and the receiving States: - Diplomatic agents are required
to promote friendly relations between the sending state and the receiving state. They also have a function to develop the
economic, cultural and social relations between the two states.
Composition of Staff of Diplomatic Mission: - The composition of the staff of the diplomatic mission may be given as
under:
There are following three categories of the diplomatic mission’s staff;
a). Diplomatic Staff: - The diplomatic staff is consisted on:
The Head of the Mission,
All mission personnels, possessing diplomatic ranks. These ranks holder personnals may be given as under;
Military, naval and air attaches of their deputies.
First, second and third secretaries.
Attaches
Secretaries in charge of archives.
b). Administrative and Technical Staff: - It is consisted on:
Administrative assistants,
Typists, and
Other staff members performing administrative and technical functions.
And also includes: -
Heads of offices of clerical services, accountants,
translators.
c). Services Staff: - Services staff is consisted and includes: -
Drivers, couriers, doorman, elevator operators, janitors, and
Other persons performing domestic service functions in the mission.
Private Servants: - This category of the staff of the diplomatic mission are not the employees of the mission, rather
they are the servants in the domestic service or personal service of the members of the mission.
Nationality of the Employees: - The members or the employees of the staff of Diplomatic Mission shall be: -
In case of diplomatic staff: -
The nationals of the sending state, or
The national of the receiving state or a third state only with the assent of the receiving state.
In case of other categories of mission and private servants the employees or the members may be the nationals of:
Sending state,
Receiving state, or
Any third state.

When a diplomatic missions is to be terminated?

Ans: - The termination of mission may discussed as under:
Termination of Diplomatic Mission: - There are following two meanings of the termination of the diplomatic mission:
1. Termination of the Head of the Mission.
2. Termination of the Mission as a whole.
1). Termination of the Head of the Mission: - The Head of the Mission may terminated in any of the following ways:
i. Expiration of time: - When the time specified for the termination in the letter of the credence reaches, the Head of the
mission shall be deemed to be terminated.
ii. Recall of Diplomatic Agent: - The mission shall also be deemed to come to an end when due to unfriendly relationship
between receiving and sending states, the receiving state recalls the envoy. The diplomatic agent may also be recalled on his
misconduct or misbehavior.
iii. On request of the Receiving State: The head of the diplomatic mission may be terminated when a request is made by the
receiving state in this regard. It also takes place when the relations between the two become unfriendly or because of misconduct
on the part of the envoy.
iv. Persona-non-gratia (no acceptable): - Every receiving state has a right to declare an envoy no acceptable. The envoy then
called as persona-non-gratia. If any head of the mission has been declared as persona-non-gratia he shall be deemed to be
terminated.
2. Termination of the Mission as a whole: - A state has a right to terminate the diplomatic mission as a whole, such a
situation may arise when war breaks out between the sending state and the receiving state. In cases of armed conflict not
amounting to war, diplomatic mission may not be terminated. The diplomatic mission terminates ipso facto when the sending or
receiving state is extinguished by voluntary merger into another state or through annexation. Upon the
termination of a mission the functions of the persons concerned come to an end. Members of the mission and their families
nevertheless continue, even in case of armed conflict, to be entitled to their privileges and immunities until they leave the country or
on the expiry of a reasonable time to do so. It is to be noted that armed conflict between the two states does not terminate the
mission in all the cases. As for example, in case of armed conflict with India in 1965, diplomatic relations didn’t come to and end.
Termination of Diplomatic Mission
1. Recall of Envoy
2. Notification in regard to the end of Envoy’s functions
3. On the request of the receiving State
4. By delivery of passport
5. Declaration of Persona non grata
6. End of the object of mission
7. Expiration of letter of Credence
Other than these, a diplomatic mission may come to an end due to any of following reasons:
1. By death
2. Removal from post
3. Breaking of diplomatic relations
4. Constitutional changes
5. Revolutionary change of government
6. End of the work of mission by some conference
7. War
8. Change in the post of diplomatic agent
Special Missions of Permanent Nature
- Always appointed after consent given by the receiving state
- Convention on Special Missions, 1961
- Agents on these missions enjoy almost the same immunities and privileges as other diplomatic agents do, except the following changes:
i. The functions of agents have to be in common interest of both States
ii. Prior consent of the receiving States is necessary
iii. Freedom to travel in only those areas which their functions warrant, not the whole State
iv. Not deemed to be outside the civil or criminal jurisdiction of the local courts
v. Police rules also apply on agents of special missions
IMMUNITY
 “State immunity has become a mere fiction which the law can do with out. The principle is gradually withering away, a
process already under way and constantly gaining momentum. Do you agree? Give reasons in support of your answer.2002
 Describe Importance of diplomacy in interstate relations and discuss the concept of diplomacy and immunity?2009
 Does current international law concerning immunity suggest that heads of state and former heads of state responsible for
serious human rights violations would be well advised to remain at home?
 Explain the laws related with diplomatic immunities under international law. Who is immune and what is the extent of
diplomatic immunity? How is Pakistan complying with its responsibilities with regard to the immunity of diplomatic
personnel present within its territory?
 Write short notes on following (10 each)
o (a) Belligerent occupation in public international law
o (b) Difference between state immunity and diplomatic immunity
What are the theories as to Diplomatic Immunities and what Immunities are available to Diplomatic
agents? Explain.
Ans: -
Theories of Diplomatic Immunities: - There are following three theories regarding immunities of diplomatic agents:
Extra-territorial Theory: - This theory reveals that the diplomatic agents are not under the jurisdiction of the receiving
state, rather they are under the sending state. And their physical presence shall not entitle the receiving country to have
jurisdiction on them.
1. - Diplomats enjoy immunity and privileges because they are outside the jurisdiction of the receiving State
2. - Archaic theory
3. - Severely criticized by Prof. Oppenheim and Fenwick
This theory is also called as fictional theory, because the extra-territoriality is based merely on a fiction.
2. Representational Theory: - According to this theory immunities are given to the diplomatic agents because they are
the representatives of the sovereign, so just as the immunities are given to the prince of a sovereign in the same way the
immunities are to be given to the diplomatic agents.
3. Functional Theory: - According to this theory the immunities and the privileges are given to the diplomatic agents
because they have given so special duties to be performed and the nature of the task given to them requires them to be
free in all respects. Other wise the local administration may by abuse of powers interrupt them and their function may be
affected scrupulously. So, to avoid such situation they should be given certain immunities and privileges
1. - The true basis of immunity and privileges enjoyed by the diplomats is the nature of functions which these
agents perform
2. - Absence of these privileges would hinder the performance of these functions
3. - All the privileges are for functional reasons
Conclusion: - From the above discussion it is evident that the extra-territorial theory is
not maintainable at all. But both representational theory and functional theory provide
basis for the diplomatic immunities and privileges.
Immunities And Privileges of Diplomatic Agents: - According to the provisions of the Veinna Convention following
immunities and privileges are available for diplomatic agents:
1. Inviolability of Diplomatic Agents: - The person, freedom and dignity of a diplomatic agent is inviolable. The
receiving state shall guarantee his person and shall give him respect. In other words, diplomatic agents cannot be
detained or arrested. But the immunity of inviolability of diplomatic agent is not absolute. They may be arrested in
special cases. As for example, if a diplomatic agent is found drunken having a gun, so due to avoid violence he may be
arrested by the receiving states.
2. Inviolability of Mission’s Staff: - The Veinna Convention also lays down certain immunities and privileges to the
administrative and technical staff of the diplomatic mission and for their family members which are also inviolable subject
to certain limitations.
3. Inviolability of Premises: - The permanent diplomatic mission has premises in the receiving state where it is to
operate its mission. So, the premises and the private residence of the diplomatic agents are also inviolable.
4. Immunity from Local Jurisdiction/ Immunity from Civil Jurisdiction:-
The diplomatic agents are immune from local jurisdiction. In other words diplomatic agents cannot be tried by the Courts
of the receiving state. Immunity extends to civil, criminal and administrative jurisdictions.
5. Immunity from Taxes and Customs Duties: - The diplomatic agents are also immune from all sorts of taxes
subject to certain exceptions.
6. Immunity from Local and Military Obligations: - The diplomatic agents are also immune from certain local and
military obligations of the receiving state. As for example, the diplomatic agents are exempted from military contributions,
etc.
7. Freedom of Communication for official purpose : - The diplomatic agents have also been entitled to communicate
any information for official purpose to the sending state. Such communications includes the use of couriers and code
messages. The diplomatic bag is also inviolable.
9. Freedom of Movement (. Right to travel freely in the territory of the receiving State ): - The diplomatic agents
are free to move and travel in the territory of the receiving state. But this is subject to the laws and regulations, and laws
made by the receiving state concerning the prohibited security zone.
10. Right to Worship: - The diplomatic agents have a right to worship any religion they like within the premises. They
cannot invite the nationals of the receiving state to take part to the worship. In other words, they have no right to preach
their religion in the receiving state.

4. Immunity regarding residence

5. Immunity from being presented as a witness
7. Immunity from Police Rules
9. Right to exercise control and jurisdiction over their officers and families
13. Immunity from inspection of Personal baggage
14. Immunity from Social Security Provisions
Immunities of the Servants of Diplomatic Agents
- Certain immunities to those associated directly with the office of the ambassador
- Not as vast as that of the envoys but still extend to immunity from civil and criminal jurisdiction
- The privileges and immunities are of the diplomatic representatives and if they waive them, the immunities of their servants also
come to an end
Waiving or Loss of Immunity
- If a diplomatic agent presents himself before a court of the receiving State, the immunity is thereby waived and the agent can be
tried
- Likewise, if a diplomatic agent makes himself available as a witness to some case, he loses immunity then and there
- Also, same would be the case if an agent files a case in the court of the receiving State
- Article 32 of the Vienna Convention on Diplomatic Relations requires that waiver must always be expressed
- A diplomatic agent may also be declared ‘persona non grata’ by the receiving State if caught conspiring against the State or
involved in any misconduct under international law
Consuls
- Also representatives of their States, but not deemed diplomatic agents
- Treated to be far below the diplomatic envoys and ambassadors
- Look after the commercial and trade interests of their countries
- Classified under four categories:
i. Consul General
ii. Consuls
 iii. Vice-Consuls
iv. Consul Agents
Functions of Consuls
- Protect commercial interests of the States
- Supervise and look after the shipping
- Look after the interests of their citizens
- Other functions such as testifying signatures, marriage registration, birth and death certification
Rights and Immunities of Consuls
- Conferred upon special immunities and privileges by bilateral treaties which allow them immunity from jurisdiction of local courts
- Although they are way below diplomatic agents in status, through reciprocal treaties, they enjoy almost the same privileges and
immunities as diplomatic agents do

 Discuss the liability of the following: 2006

1. The ambassador of the Republic of Brondasia in Islamabad murders a Pakistani out of sudden provocation.
2. The wife of the Brondasian ambassador bought cosmetics worth Rs.1000,000 from a local departmental store, refused to pay
and went away to her embassy.
3. A Pakistani friend of the Brondasian ambassador has murdered a Brondasian employee of the embassy.

EXTRADITION
 Short Notes: Extradition 2003, 2012
 Discuss the concept of extradition. Explain main principles of extradition. Discuss also the crimes exempted from
extradition.2005
 Give precise definition of Extradition. Write a comprehensive essay on extradition by covering all its aspects.2008
 How Extradition has been defined in International Law? What is meant by non-extradition of ‘political offenders’? What are the
conditions necessary for extradition?
Write down a short note on extradition.
Ans: - Extradition: - The extradition may be defined as under:
Definition: - “The delivery of a person; suspected or convicted of a crime, by the state where he has
taken refuge or taken asylum, to the state that asserts jurisdiction over him.”
Explanation: -Generally each state has full jurisdiction over all its subjects within its territory. But
sometimes a state becomes helpless to punish a guilty person. It is so because such guilty person
after committing crimes fled away to another country. So if there is no co-operation between
nation states in handing over the criminals to the affected states, the end of justice with its real
sprite cannot be attained. Due to this fact the nation-states adopt the doctrine of extradition. In
other words, the nation states hand over the criminals to the affected states in the administration
of justice.
BASES: -International law neither recognizes the rules regarding extradition, nor it recognizes any
general duty on the nation-states in this connection. Rather the doctrine of extradition is based on
some general universal principles. And it arises from the provisions of treaties between the
nation-states. If there is no treaty between nationstates for extradition, the country asserts
jurisdiction over the criminal is not bound to extradite him to the affected country. In other words
extradition is the product of the treaties between the nation states, but it may not be said that
without any treaty there
would be no extradition. Rather the nation states in pursuance of mutual co-operation sometimes
extradite the criminals to the other country although in the absence of any treaty.
Restriction: - As for as Extradition is concerned, it mostly depends upon treaties. But before, the
conclusions of a treaty the nation-states usually consider the following restrictions established by
Courts in this behalf;
1. Existence of a Formal Treaty: - The existence of a formal treaty is also sometimes becomes much
necessary. Because, it is generally a matter of bilateral treaty. So, mere agreement or notification
is not sufficient to bind the state to extradite a criminal. The existence of a formal treaty is
necessary because the state may refuse to extradite the criminals in the absence of any treaty in
this behalf.
2. Honour of Treaty: - In case of a treaty for extradition it is important to fulfill all the conditions and
terms of the said treaty.
3. Political Criminal: - There is an important principle in international law that the political criminal
shall not be extradited. It is also a restriction on the scope of extradition.
3. Military Criminals: - Military criminals shall also not be extradited who have not been charged of
war crimes.
4. Religious Criminals: - Religious persons shall also not be extradited.
5. The Rule of Speciality: - The extradition of a criminal for a particular crime entitles the requesting
state only to prosecute him for that crime and not otherwise, the rule is said to be rule of
speciality. It is also a bar on the soul extradition.
6. Double Criminality: - Another bar on the extradition is the principle of double criminality. According
to this principle the crime for which the extradition of a person is requested shall be of a nature
be incorporated in the domestic laws of both the states.
7. Prima facie Evidence: - Prima facie evidence is another restriction on the scope of extradition. It
means that there should be sufficient evidence for crimes relating to extradition.
8. Fulfillment of Formalities: - It is also equally important to fulfill all other formalities as are necessary
for extradition.
Conclusion: - So, in the light of the above discussion it may be concluded, that extradition is
subjected to many restrictions. And an attempt should be made to overcome such restriction.
Because, it is inevitable to punish a person for the crime committed by him in the administration.
ASYLUM
Differentiate between Territorial and Extra-Territorial Asylum. Under which circumstances an Embassy or Consulate can
offer asylum to a fugitive/offender of the territorial State?2008
Define and explain briefly the term asylum.
Note: Territorial and Extra-Territorial asylum 2022
Ans:- Asylum: - The term asylum may be defined as under:
Definition: - “To provide shelter and protection by a host state to a citizen of another state, is called asylum.”
Explanation: - The grant of asylum is an old international doctrine. But lacking general rules for its regulation in the
premises of international law. Asylum is the extension of shelter and protection to an alien by a sovereign in case where
there is a danger to the life of the alien or he is in fear of being prosecution in his state by the his opponent government
due to the divergent political, social or religious views as between him and his government.
The philosophy behind asylum is the generally accepted international rule that each state is sovereign in its territorial
jurisdiction. No other state has a right of jurisdiction on the territory of any state.
Asylum is granted in consideration of national security because the rebel of today may be the ruler of future. So, if he is
not given the asylum the relations may become adverse if the person, seeking asylum, comes in power in future. Asylum
is opposite to another legal doctrine namely, extradition. In which case the person is not granted the asylum but is
handed over to the requesting state.
As pointed out hereinbefore, that there is no generality of rules on the subject of asylum in international law, even
though, there are certain declarations and customs which stress on fact that every person should be given asylum. But as
such declarations are not binding in nature so the grant of asylum is dependent totally on the discretion of the granting
state.
Kinds of Asylum: - There are following two kinds of asylum;
Territorial Asylum, and
Extra-territorial Asylum
1. Territorial Asylum: - The grant of asylum by a state on its own territory is said to territorial asylum. As for as, every
state has exclusive right of control and jurisdiction on its territory, so it the discretion of that state weather to extradite
the person or to grant asylum to him. Because every state has territorial sovereignty over all persons, on its territory,
whether they are its subject or aliens.
2. Extra-territorial Asylum: - The grant of asylum by a state outside its own territory is said to be extra-territorial
asylum. In other words the grant of asylum on places not forming its physical territory, is said to be extra-territorial
asylum. Extra-territorial asylum may be given at any of the following places:
i. Asylum in legation or Diplomatic Asylum: - The grant of asylum by a state in its embassy premises situated in
foreign state, is said to be asylum in legation or diplomatic asylum. It is so because the embassy premises are considered
to be excluded from the territorial jurisdiction of the state where it is situated.
iii. Asylum in Consulates: - In consulates also the asylum may be granted to any person in the same way as in the
case of asylum in legation premises.
ii. Asylum in Warships: - Asylum may also be granted in warships, because men of war and public vessels of a foreign
are exempted from the jurisdiction of the state in whose ports or waters may be found. Rather, they are under the
jurisdiction of the flag state.
iii. Asylum in Merchant Vessels: - In merchant vessels the asylum cannot be given except where there is a treaty
between the states. The reason that merchant vessels cannot grant asylum is that, they are not excluded from the
jurisdiction of the state in whose waters or ports it is found.
iv. Asylum in the Premises of International Institutions: - Asylum may also be granted in extreme danger to life in
the premises of international institutions.

 Short Notes: Human Rights 2000

 Short Notes: Universal Declaration of Human Rights 2012
 PRISONERS OF WAR
 How are ‘Prisoners of war’ to be treated under International Law? Explain with reference to various conventions. 2004
 Short Notes: Rights of Prisoners of War 2005
International Humanitarian Law
Combatants
- The Hague Convention of 1907 distinguishes the combatants as persons in regular army having specific regiment
number
- It also categorizes guerillas, volunteers and corps as combatants if they satisfy the following conditions:
Serve under a definite and specific authority
Have specified emblem which may be recognized from distance
Conduct war in accordance with the rule and customs of war
Prohibited Means in Land Warfare
- The Hague Convention of 1907 prohibits use of poisonous weapons , projectiles which cause unnecessary
sufferings, and poisonous gas
- It also prohibits pollution or poisoning of water and other food materials
- Undefended cities and villages cannot be attacked or otherwise destroyed
- Killing of wounded and sick persons of the armed forces has also been prohibited
- The objective of these rules is to minimize the sufferings and pain of the persons involved in war
Ruses of War/Stratagem
- Involves intelligence and spying
- Ruses of war are permitted under Article 24 of the Hague Convention
- Meant only to be used when militarily necessary
- Also, it does not allow for violation of good faith, nor does it allow for any breach of any agreement
- Deceit is contrary to International Law
- Espionage has a peculiar place in international law. On one hand, States are entitled to send spies in other States to get
information, while on the other, States are also entitled to punish any spy caught in their territory
Geneva Convention relating to the Treatment of Prisoners of War, 1949
This convention applies to all cases of declared war or any other armed conflict which may arise between two States who
are party to this Convention, even if the State of war is not recognized by one of them.
1. Prisoners to be humanly treated
2. Unlawful act or omission causing death or injury to prisoner prohibited
3. No physical mutilation or scientific experiments allowed on prisoners
4. Prisoners to be protected against acts of violence, insults and intimidation
5. Reprisal against prisoners prohibited
6. Prisoners entitled to respect of their persons and their honour
7. Prisoners shall retain the full civil capacity
8. Medical attention to be provided to prisoners free of charge
9. All prisoners to be treated alike without any adverse distinction based on race, nationality, religious belief, or political
opinions
10. Prisoners may not be threatened, coerced, physically or mentally tortured, insulted or exposed to unpleasant or
disadvantageous treatment of any kind
11. All articles of personal use except arms shall remain in their possession
12. Prisoners shall be evacuated to camps far enough from connected zone as soon as their capture
13. Detainers to supply identity documents to the prisoners, badges of rank and nationality, decorations and articles of
sentimental value may not be taken from the prisoner
Geneva Convention relating to the treatment of the Dead and Injured Members of the Armed Forces, 1949
1. Cannot be attacked during war. Need to be looked after. Dead bodies to be saved from insults, mutilation, etc.
2. Be provided medical facilities. Mobile hospitals cannot be attacked
3. Doctors and other persons serving the hospitals be provided certain protection and be given proper respect
4. Plunder or looting of dead bodies declared illegal
5. Means of transportation for the wounded and sick members of armed forces provided certain protection; cannot be
attacked or otherwise destroyed
6. Dead bodies to be cremated with due respect
7. The belligerent States allowed to carry away the dead bodies of members of their armed forces
Geneva Convention on Protection of Civilian Persons in Times of War, 1949
1. Civilians cannot be detained, arrested or even made to pay collective fines
2. Cannot be transferred to other territories
3. Cannot be compelled to perform works for the armed forces
4. In case of occupation of a territory, due consideration should be paid to the needs of the local inhabitants
5. The old courts remain established and status of judges remains unchanged. Old penal laws should also not be
disturbed. Undue pressure on judges or officials should not be exerted.
Geneva Convention on Wounded, Ship-wrecked Members of the Armed Forces at Sea, 1949
1. Prisoners of sea to be treated same as prisoners of land warfare
2. Hospital ships cannot be attacked
3. Enemy ships may be sunk, but only after ensuring safety and security of the crew of that ship
4. If crew members of a sunk enemy ship escape on life boats, it is prohibited to fire on those boats (PELEUS TRIAL)
Laws of Aerial Warfare
1. Brussels Conference of 1874
2. Hague Convention, 1899
3. First World War, 1914-1918
4. Washington Conference, 1922
- Arming of private aircraft prohibited
- Bombardment for the realization of money illegal
- Bombardment to frighten civilians illegal
- Only factories of military importance could be destroyed
- Villages and towns unconnected with war area should not be destroyed
- Civilian areas cannot be bombarded
- Buildings connected with religion, culture or philanthropic works cannot be destroyed
- Hospitals cannot be destroyed
- Violation by belligerents would make them liable to pay compensation for the same
5. The Hague Rules of Aerial Warfare, 1923
6. Geneva Protocol, 1925
7. Disarmament Conference
8. Second World War, 1939-1945
9. International Convention for Protection of Cultural Property, 1954
10. Legality of Atomic or Nuclear Warfare
- Nuclear Test Ban Treaty, 1963
- Treaty on Non-Proliferation of Nuclear Weapons, 1968
- Treaty on Prohibition of Emplacement of Nuclear Weapons in sea-bed and ocean floor, also called Sea-Bed Treaty, 1971
Sanction of the Laws of War
1. Reprisal
- USA justified the Atomic bombing on Nagasaki and Hiroshima as a reprisal
2. Punishment of War Criminals
- Nuremberg and Tokyo Trials
3. Compensation
- Germany was asked to pay compensation (reparation) for the damages brought about in World War I through the
Treaty of Versailles
VETO
 What is veto? How, when and by whom is used? 2003
 What is Veto? How, when and by whom it is used? What consequences Pakistan had to face in the past because of its use by a
former superpower? 2012
UNITED NATIONS ORGANIZATION
 Critically examine the powers and the voting procedure of the U.N. Security Council . 2000
 How far has the United Nation succeeded in developing a comprehensive system of Human Rights protection? Can emphasis
on social justice and Human rights lead to a stable International Order?2009
 keeping in view the objectives of the charter seeking to establish a mechanism of peace and security how far has United
Nations succeeded in confronting changes in Global society? 2009
 "The Practice of United Nations Organization Show that while the principle of Self-Determination is agreed upon, neither the
scope of its application nor the method of decolonization has been settled." Discuss 2011
 "All the major issues on voting in the Secretary Council are now satisfactorily resolved. The real problem today is about the
composition of the Security Council." Discuss 2011, 2014
 Elucidate and justify: "The United Nations inspite of its imperfections, is the only organizations that can save humanity from
disaster and complete annihilation." 2011
  Does the customary international law grant the right to use force to a state in response to a terrorist attack on it? Substantiate
your answer by arguing from Article 51 and Paragraph 4 of the Article 2 of the UN Charter and other recent examples in this
regard. 2012
 Keeping in view the UN Millennium Development Goals (MDGs). What can be a reform agenda in your opinion for making
the UN more effective ?2013
 Keeping in view the powers of the security council what suggestions can you give for improving its structure as a dominant
body within UN.Re-Exam 2013
Elucidate and Justify: “The United Nations, inspite of its imperfections, is the only organization that can save
humanity from disaster and complete annihilation”.02018
To what extant, if at all, are the powers of the Security Council confined to the contents of Chapters VI and VII
of the United Nations Charter?2018
What is International Criminal Law? Describe the composition, basis and jurisdiction of the International
Criminal Court (ICC), especially with reference to non-State parties. List all the conditions for the exercise of
jurisdiction by the ICC?
Discuss in detail the structure of the United Nations. Do you believe that the United Nations have the capacity
to fulfil the goals of promoting a more united, peaceful and free world? Explain your answer with logical
analysis and examples supporting your arguments.
SHORT NOTES
 Short Notes: Exclusive Economic Zone 2000
 Short Notes: Calvo Clause 2000
 Short Notes: Kellogg Briand Pact 1928 2002
 Short Notes: The Geneva Convention 1929 2002
 Short Notes: Pacta Sunt Servanda 2002
 Short Notes: Protectorate 2002, 2012
 Short Notes: State servitude 2002
 Short Notes: Monroe’s doctrine 2002
 Short Notes: Equality of states 2002
 Short Notes: Doctrine of Postliminium 2002
 Short Notes: Continuous voyage 2002
 Short Notes: International boundaries 200
COURTS AND CASES
 Enamurate the principles of International Law involved in the decision of Corfu Channel Case. Assess the impact that
decision on the growth and development of International Law.2004
 Short Notes: Corfu Channel Case, U.K.V. Albania(1948), I.C.J. Rep. 1949. 2000
The ICJ has pronounced on what constitutes the ‘territorial integrity and political
independence’of a State, and what actions violate them.
● Albania v. United Kingdom (Merits) (1949) ICJ REP 4 (The Corfu Channel Case)(case of State responsibility)
This case arose from the explosion of certain British ships caused by mines in the Corfu Channel inside Albanian
waters, on 22 October 1946. Britain argued that Albania failed in its obligation to notify all ships coming through the
Corfu Channel, and that, as a result, it was responsible for the act. The International Court of Justice (ICJ) found
that Albania did nothing to notify Britain of the mines and declared (at 23) that ‘these grave omissions involve the
international responsibility of Albania’.
Albania brought a claim before the ICJ that the UK had violated its sovereignty by mining its waters without its authority. The
action complained about by Albania became necessary following the destruction of certain UK ships on 22 October 1946, in
Albanian waters that had (p. 346) been mined either by Albania or with its knowledge. The UK argued before
the Court that its subsequent act of sweeping Albania waters—code-named ‘Operation Retail’—was necessary as an act of
self-protection or self-help.
The Court held (at [35]) that:
The Court cannot accept this defence either. Between independent States, respect for territorial sovereignty is an essential
foundation of international relations. The Court recogniz es that the Albanian Governments’ complete failure to carry out its
duties after the explosions, and the dilatory nature of its diplomatic notes, are extenuating circumstances for the action of the
United Kingdom Government. But to ensure respect for international law, of which it is the organ, the Court must declare that
the action of the British Navy constituted a violation of Albanian sovereignty.
Clearly, the Court was of the view that no amount of wrongdoing by one State can justify the use of force on its territory by
another, except, of course, as permitted by the Charter.
Practice shows that whenever States use force against other States, they tend to prefer to seek political, rather than legal,
explanations for their acts. This perhaps demonstrates that, despite their posturing, States do not always believe that the use
of force on the territory of other States outside the Charter rule is legal or consistent with the purposes of the UN.

 Short Notes: Chorzow Factory case, Germany V. Poland (1928) , P.C.I.J. Rep. Ser. A, No.17 2000
Germany v. Poland (Jurisdiction) (1927) PCIJ SER. A, NO. 9 (The Chorzów FactoryCase)
The Court declared (at 21) that ‘it is a principle of international law that the breach of an engagement involved an
obligation to make reparation’.
(Reparation for injury: When a State causes an injury to another State, the responsible State is liable to make full reparation
to the injured State. Under Article 34 ARSIWA, reparation may take the form of restitution, compensation, and satisfaction. )
It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate
 form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity
for this to be stated in the convention itself.

 Explain the rules which govern the application of International Law by Municipal Courts. Give your answer in the light of
the court practice with special reference to the British and American Courts. 2000
 Short Notes: Prize courts 2002, 2012
 Describe the functions of a Prize Court. What law does it administer?2006
 Short Notes: Scotia Case 2005
 Enumerates with short explanation the main principles discussed in any two of the following cases.
1. Lotus case 2001
● France v. Turkey(1927) PCIJ SER. A, No. 10 (The SS Lotus Case) A French merchant ship collided with a Turkish
merchant ship on the high seas, leading to the death of several people on the Turkish ship. Turkey claimed that the collision
occurred through the negligence of a French officer, Lieutenant Demons. Both Turkey and France claimed that they had
jurisdiction to try the offender. Although the jurisdiction of France over its accused national was not in question, the main
issue before the Court was whether Turkey had the right to try the French officer. Turkey claimed that there was a
Permissive rule of general international law entitling it to try the culprit, whereas France claimed that Turkey was under a duty
not to try the French officer.
Held: Turkey had jurisdiction to try the French national. The Permanent Court of
International Justice (PCIJ) stated (at 18) that:
In that case, the Permanent Court of International Justice (PCIJ) stated (at 23) that:
offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be
regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more
especially its effects, have taken place there.
2. Clarence Thomas and Anita hill case 2001
3. American diplomat case 2001
HIJACKING
 Short Notes: High jacking 2000
 Explain how the problem of Hijacking has been dealt with under the International Law?2004
TERRORISM
 TERRORISM has become an international phenomenon - how far are you satisfied with international legal controls of such
criminal conduct.Re-Exam 2013
STATE RESPONSIBILITY
- Obligation of a State as an international person
- Obligations due under international law
- State responsibility is a legal responsibility as a State cannot abolish or create international law in the same way as municipal law
- PCIJ, in Chorzow Case, said: “it is a principle of International Law and even a general conception of law, that any breach of an
engagement involves an obligation to make reparation
- International Law Commission on State Responsibility: “There is an internationally wrongful act of State when:
Conduct consisting of an action or omission is attributable to the State under International Law, and
That conduct constitutes a breach of an international obligation of the State”
- Article 19 of a draft prepared by this Commission:
A breach of an international obligation is an internationally wrongful act
Breach is recognized as a crime by that community as a whole
International crime may result from:
 Breach of an obligation such as that prohibiting aggression
 Breach of an obligation safeguarding the right of determination of peoples, such as that prohibiting the establishment or
maintenance by force of colonial domination
 Breach of an international obligation such as those prohibiting slavery, apartheid and genocide
 Breach of an obligation safeguarding the preservation of human environment, such as those prohibiting massive pollution of the
atmosphere or of the seas
Any internationally wrongful act not mentioned in the draft as a crime constitutes an international delict
Original and Vicarious Responsibility
- The duty of a State concerned to punish the guilty or accused and compel him to pay compensation
- Oppenheim: “Original responsibility is borne by a State for its own - that is for its Government’s actions and such actions of the
lower agents or private individuals as are performed at the Government’s command or with its authorization”
- Because law of nations is primarily a law between States only, it makes every State in a sense responsible for certain internationally
injurious acts committed by its officials, subjects, and such aliens as are temporarily residents of its territory
State Responsibility in Different Fields
1. International Delinquency
- Any injury to another State committed by the Head or Government of a State in violation of an international legal duty
- Ranges from ordinary breaches of treaty obligations to violations of international law amounting to a criminal act
- Includes unjustified intervention, an act of violating a treaty, or any act that violates the person or the property of one of its citizens
abroad
- Delinquency is breach of an international obligation independent of any contractual obligation and its remedy is pecuniary
compensation
- Crimes are violations of customary or treaty rules of international law and their remedy is punishment or reparation
- The Nuremberg Trial, 1947: “Crimes against International Law are committed by men, not by abstract entities and only by
punishing individuals who commit such crimes can the provisions of international law be enforced.”
- Imputability: attribution of delinquency to a State that has conducted it is called Imputability
- It is sometimes said that a State is not responsible to another State for unlawful acts committed by its agents unless such acts are
committed willfully and maliciously or with culpable negligence
- The fact that an ultra vires act of an official is accompanied by malice on his part without regard to whether or not the law permits
the act, does not affect the responsibility of his State
2. State Responsibility for Injury to Aliens
- Aliens living in a State should also be conferred upon the same rights which are given to the citizens
- State responsibilities towards aliens may be of following types:
State responsibility for acts of individuals
State responsibility for acts of mob-violence: State responsible for mob-violence only when it has not made due diligence to
prevent it
State responsibility for acts of insurgents: it is a responsibility of the States to try to prevent the violent acts of the
revolutionaries
- Garcia Amador, rapporteur for the International Law Commission on State Responsibility writes: “The State is responsible for
injuries caused to an alien in consequence of riots or civil strife or other internal disturbances if the constituted authority was
manifestly negligent in taking measures which, in such circumstances, are normally taken to prevent or punish the acts in question.”
- Granting of amnesty to the rebels constitutes a failure of duty and an acceptance of responsibility for their acts on the basis of a
form of estoppel
Reparations for Injuries suffered in the Services of the UN
The ICJ has decided that UN is an international person and under international law it has rights and duties, and that it can claim
damages and compensation for the injuries or loss suffered by the persons working under its service or auspices
Calvo Doctrine
It states that during civil war, the State is not responsible for the losses suffered by the alien persons because if this responsibility is
accepted then big nations will get an excuse to intervene in the independence of weaker States.
MISCELLANEOUS
 Give an account of the efforts of international community to protect the civilian population from the effects of war.2010
 "As the basis of the Law of Nations is the common consent of the member states of the Family of Nations, it is evident there
must exist as many sources of international law as there are facts through which such common consent can possibly come
into existence." (Oppenheim). Discuss 2011
 "The case law of the international court of justice and the practice of United Nations show that while the principle of self-
determination is agreed upon, neither the scope of its application nor the method of decolonisation has been settled" Discuss
2014
 Article 2(4) of the UN charter is an absolute prohibition of the use or threat of force.Analyse the validity
of this statement in light of writers’ and states’ approaches tointerpreting the article. 2019
LEGAL REGULATION OF THE USE OF FORCE BY STATES
The League Covenant in the year 1919, standing against the customary law, appeared to provide qualifications on the right to resort to
war which were exceptional. The general presumption was that war was still a right of sovereign states although signatories to the
Covenant were bound by that instrument to submit to certain procedures of peaceful settlement. Resort to war in violation of the
Covenant was illegal but the content of the illegality was prima facie the violation of a treaty obligation. Moreover, the Covenant was
a legal instrument with a special character: it was concerned with the machinery of and procedures for peaceful settlement of disputes.
Use of Force
General Treaty for the Renunciation of War 1928
Art1 parties condemn recourse to war for the solution of international controversies, andrenounce it as an instrument of national policy
in their relations with one another.
Art 2 settlement or solution of all disputes of any nature or of any origin, which may arise,shall never be sought except by pacific
means.
UN Charter
Art 2(4) All members shall refrain in their international relations from the threat or use offorce against the territorial integrity or
political independence of any state or in any othermanner inconsistent with the purpose of the UN.
Although "members" - customary rule applying to all states Nicaragua (Merits) case (ICJ,1986)
Prohibits armed force, not political pressure
Nicaragua (merits) Case (ICJ, 1986)
Held: the concept of an armed attack includes the dispatch by one State of armed bands into the territory of another State, the supply
of arms and other support to such bands cannot be equated with armed attack. Nevertheless, such activities may well constitute a
breach of the principle of the non-use of force and intervention in the internal affairs of a State, that is, a form of conduct which is
certainly wrongful, but is of lesser gravity than an armed attack.
Assisting, with supply of arms and training is direct violation of CIL, but funding is not.
Intervention
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their independence and
Sovereignty 1965
No state has a right to intervene directly or indirectly, in the internal or external affairs of any other state. Art 1
No State may use or encourage the use of economic, political or any other type of measures to coerce another state. Art 2
The use of force to deprive national identity is a violation of inalienable rights and of the principle of non-intervention. Art 3
Every state has an inalienable right to choose its political, economic and cultural systems without interference. Art 5
RIGHT TO SELF-DEFENCE
The Caroline Case: Anticipatory self-defence: must be shown that admonition or remonstrance to the person was impracticable, or
would have been unavailing that day-light could not be waited for there could be no attempt at discrimination between the innocent
and guilty it would not have been enough to seize and detain the vessel but there was necessity, present and inevitable, for attacking in
the darkness of the night.
Proportionality:
Legitimate defence implies the adoption of measures proportionate to the seriousness of the attack and justified by the seriousness of
the danger - League of Nations 1927
Art 51 UN Charter - right to self-defence
Armed Attack
Not every such use of force is "armed force" and does not include "assistance to rebels in the form of provision of weapons or
logistical or other support" - Nicaragua (Merits) Case
Collective self-defence
Before collective self-defence is allowed, one State must declare itself a victim of an armed attack and ask for assistance from another
State, but the second state does not need a threat to its national security for it to act - Nicaragua (Merits) Case
Security Council
Self-defence is temporary - until the Security Council acts.
Collective Mechanisms of the UN
Security Council
Under chapter 7 of the UN Charter - actual threat SC may act for maintaining international peace and security Art 34
Recommends appropriate procedures or methods Art 36 in Art 33 Make own recommendations for the settlement of disputes in
accordance with Arts 37 , 38
use of Art 43 forces measures not involving the use of force Art 41 provisional measures measure to maintain/restore peace and
security (no IL breach needed) General Assembly Secondary responsibility of peace and security
Regional organisations (eg NATO) Peace keeping forces
What are the ‘Sanctions’ in international law?
Ans: - The term sanction may be defined in accordance with legal business as under:
“ Those tools which are being used to compel the disregarders of law to obey the law, are said to be sanctions.”
Sanctions are the coercive agency, which intends to get obedience of law from its subjects. In case of Municipal law there
are well-defined sanctions in the shape of government or executive of that particular state. While in international law
there are no adequate sanctions to get obedience from its subjects i.e. specially from states. The reason is that
international law exists between sovereign states and is dependent on their sweet-will. Beside this fact, there are certain
sanctions in international law to compel its subjects to follow it.
Sanctions In International Law: - There is two kinds of sanctions in international law, which may be given as under:
1. Sanctions by States, and
2. Collective Sanctions.
1. Sanctions By States: - Under international law, a state; whose right has been so infringed or violated by an wrong-
doer state, the aggrieved state has a right to depend its rights and to avoid the aggressor from violating such right. There
are usually following defenses for an aggrieved state in case of its violation of rights by other state;
a). To sever economic or diplomatic relations etc with aggressor state,
b). To wage war against the aggressor state, etc.
2. Collective Sanctions: - In case of violation of an international right or nonperformance of an international legal duty
by state, collective measures may also be taken by other member States of United Organization. International law
recognizes following sanctions against a wrong-doer subject of international law:
a). Economic Sanctions.
b). Financial Sanctions, and
c). Military Sanctions.

: CSS International Law Paper 2022

Q4. Discuss in detail in the light of relevant Articles of the UN Charter and practice whether the world
organizations are authorized to intervene in the domestic jurisdiction of its member states? 2022
Q6. Explain the structure and powers of the International Court of Justice and assess the importance of the
principles laid down in judicial decisions of leading cases as precedents for states. 2022
Q7. Frequent interventions have challenged the validity of some of the fundamental principles of international
law. Discuss those principles in light of recent interventions.
Q8. Write short notes on any TWO of the following: 2022
1. Nature of relationship of a state with an individual
2. Territorial and Extra-Territorial asylum
3. The Nottebohm Case
Liechtenstein v. Guatemala (Second Phase) (Judgment)(1955) ICJ REP 4 (TheNottebohm Case)
In this case, the principle was laid down (at 20–23) that:
Nationality is within the domestic jurisdiction of the State, which entitles, by its own legislation, the rules relating to the
acquisition of its nationality...But on the other hand, a State cannot claim that the rules it has laid down are entitled to
recognition by another State unless it has acted in conformity with the general aim of making the nationality granted accord
with an effective link between the State and the individual.

Nottebohm, who was a German national, had lived in Guatemala since 1905, where he had the centre of his business,
until 1943. However, in 1939, he applied for naturalization in Liechtenstein, a place where one of his brothers lived and
which he had always visited prior to the application. His application was successful. Liechtenstein brought the present
claim on behalf of Nottebohm, whose property had been nationalized by Guatemala. Liechtenstein claimed that since it
had duly granted its citizenship to Nottebohm, it had every right to represent him in the case against Guatemala. The
principal question before the Court was whether Guatemala was obligated to recognize Nottebohm’s citizenship as
conferred by Liechtenstein.
Nationality is within the domestic jurisdiction of the State, which entitles, by its own legislation, the rules relating to
the acquisition of its nationality. But the issue which the Court must decide is not one which pertains to the legal
system of Liechtenstein; to exercise protection is to place oneself on the plane of international law...when two
States have conferred their nationality upon the same individual, on the same person and this situation is no longer
confined within the limits of the domestic jurisdiction of one of these States but extends to the international field,
international arbitrators or Courts of third States which are called upon to deal with this situation would allow the
contradiction to subsist if they confine themselves to the view that nationality is exclusively within the domestic
jurisdiction of the State. In order to resolve the conflict they have, on the contrary, sought to ascertain whether
nationality has been conferred in circumstances such as to give rise to an obligation on the part of the respondent
State to recognize the effect of nationality...
...the character thus recognized on the international level as pertaining to nationality is in no way inconsistent with
the fact that international law leaves it to each State to lay down the rules governing the grant of its own
nationality...[b] ut on the other hand, a State cannot claim that the rules it has laid down are entitled to recognition
by another State unless it has acted in conformity with the general aim of making the nationality granted accord
with an effective link between the State and the individual.

The above quote from the decision of the Court in the Nottebohm Case clearly shows that matters of municipal
jurisdiction may become relevant upon the international plane, in which case they do not remain
exclusively within the domestic or municipal realm but become matters involving international persons and
institutions. Where a question of international law (such as the link between a person and a State in a case in which
the latter brings an international action to protect the former) arises from questions of municipal law (such as the
grant of citizenship), such matters cease to be exclusively municipal.

Describe the role of the states in the enforcement of Public International Law in general. Should the states be
entitled to protect their interests directly or should it influence and strengthen the relevant international organs
and treaty bodies for this purpose? 2021
Consider the role of International Law from the perspective of developing states. A common critique about
International Law by the economically weaker states is that it is a product of the practises of the economically
developed states, hence protecting the rights of only those states. How do you think the developing states may
play a more vibrant role in the development of International Law for the protection of their own interests? 2021