KAM

MKUS CO OLLEGE E OF LA
AW
PUBLIIC INTE
ERNATIO ONAL LAW
LL.B. IIIRD SEEM
CODEE [K -30002]
UNIT-1

LONG QUESTIONS
Q S
Q.1 Defin ne Internatiional Law? What is the nature and basis of Intternational Law? L Definee and
suggest a few affectiive measuress to make in nternational law even strronger in tooday’s contexxt.
Ans. Intternational LawL is compposed of the laws, rules and a principles of generaal applicationn that
deal withh the conducct of nation states and innternational organizationns among thhemselves ass well
as the relationships between
b nation-states annd internatioonal organizzations with persons, whhether
natural or juridical.
Austin inn his definitiion of law has given moore importannce to sanctioon and fear in compliannce of
law. In case
c of Interrnational law
w there is neeither sanctioon nor fear forf its compliance hencee it is
not law in
i proper sen nse of the teerm. But now w the conceept has changged and Inteernational Laaw is
considereed as law. There
T is no consideration
c n of fear or sanction as essential paart of law. Iff fear
and sancction are con nsidered neccessary thenn there are sufficient
s proovisions in UNO charteer for
compliannce of the Intternational LawL as Law..
Accordin ng to Benth ham’s classic definition internationaal law is a collection
c off rules governing
relations between staates. Two of the most dynamicd andd vital elements of moddern internattional
law.
1. In itss broadest seense, International law provides noormative guiidelines as well w as methhods,
mechanissms, and a common
c connceptual langguage to inteernational acctors i.e. priimarily soveereign
states butt also increaasingly internnational orgaanizations annd some indiividuals.
2. Althoough internaational law is a legal order and noot an ethicall one it has been influeenced
significanntly by ethiical principlles and conncerns, particularly in the t sphere of o human riights.
Internatioonal is distinnct from inteernational coomity, whichh comprises legally nonbbinding pracctices
adopted byb states forr reasons of courtesy.
c E.gg. the salutinng of the flaggs of foreignn warships att sea.

IS INTE ERNATIONA NAL LAW REALLY

R A LAW-
L
Accordin ng to Oppen nheim, Interrnational Laww is law in proper
p sense because:-
· In prractice Interrnational Law
w is consideered as law, therefore thhe states are bound to foollow
them not only from moral
m point of
o view but from
f legal point of vieww also.
· Wheen states vio olate internattional law thhen they do deny the exxistence of internationaal law
but they interpret theem in such a way so thaat they can prove
p their coonduct is as per internattional
law.
· Starrke while accepting Interrnational Laaw as Law haas said, “thaat in various communities law
is in exiistence without any sannction and legal force or o fear and such law has h got the same
acceptance as the law w framed andd enacted byy state Legisllative Assem mblies.
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· Withh the result of
o internationnal treaties and
a conventiions Internattional Law iss in existencce.
· U.N.O. is based d on the legaality of Internnational Law w. Accordingg to Prof. Brierly,
B “To deny
the existeence and leg gal characterr of Internatiional Law iss not only innconvenient in practice but b it
is also aggainst legal thoughts
t andd principles.””
· The states who area maintainning the interrnational rellations not only
o accept International
I l Law
as code of conduct but has alsoo accepted its i legal sannction and foorce. Prof. Hart,
H “Therre are
many rulles in practice which arre honoured by states annd they are also bund by b them, now w the
State Goovernment accepta the existence of o Internatioonal Law.” According
A to Jus Coojens,
“Internattional Law may
m now prooperly be reggarded as a complete
c system.”
It is perttinent to men ntion here thhat from thee above noteed contents it is clear thhat the folloowing
grounds are supportiive for acceppting the Inteernational Law as law:-
· Noww so many disputes
d are settled not ono the basis of moral arrguments buut on the bassis of
Internatioonal Treatiess, precedentss, opinions ofo specialistss and convenntions.
· Statees do not deny
d the exxistence of Internationaal Law. On the contrarry they inteerpret
Internatioonal Law so to justify thheir conduct.
· In soome states like
l USA annd UK internnational Law w is treated as part of their
t own laaw. A
leading case
c on the point is thee, Paqueta v/s v Habann na-1900. Jusstice Gray observed
o thaat the
internatioonal law is a part of our law and musst be adminiistered by coourts of justicce.”
· As per
p statutes ofo the Internnational Couurt of Justicee, the internaational courtt of Justice has
h to
decide diisputes as aree submitted to it in accordance with Internationaal Law.
· Interrnational conventions annd conferennces also treeat internatioonal Law ass Law in itss true
sense.
· The United Natiions is basedd on the true legality of Internationall Law.
· Thatt according to article 944 of UNO charter,
c thee decisions ofo the Internnational Couurt of
Justice arre binding on n all Parties (States).
· Custtomary ruless of Internattional Law are a now beiing replacedd by law maaking treatiess and
conventioons. The bu ulk of Internaational Law comprises of o rules laid down
d by varrious law-maaking
treaties such as, Gen neva and Haague conven ntions.
On the basis of abov ve mentionedd facts and arguments,
a thhe Internatioonal Law is law in true sense
s
of the terrm. United States and U.K.,U treat International
I l Law as paart of their laaw. In a caase of
West Rand Centra al Gold Mining
M Commpany Ltd.., v/s Kind d- 1905, thee court heldd the
Internatioonal Law haas consideredd it as a partt of their law w. From the above analyysis it is revealed
that the International
I l Law is law. The Internnational Law w is law but the
t question arises as to what
are the baasis of Intern
national Law w. There aree two theoriees which suppport it as reaal law:-

1. Naturralist Theory:- The Juriists who adhhere to this theory

t are of
o the view that
t Internattional
Law is a part of the Law of thee Nature. Sttarke has wrritten, “Statees submittedd to Internattional
Law beccause their relations were
w regulatted by highher law, thee law of Nature
N of which
w
Internatioonal Law waas but a partt.” Law of nature was connected
c w religionn. It was regaarded
with
as the divvine Law. Natural
N Lawss are originaal and fundammental. Theey incorporaate the will of
o the
Governorr and govern ned and advvance their consent or wiill. That is why
w internattional law iss also
based onn natural VatttelFurfendoorf, Christiaan, Thamassius, Vitona are the maain supporteers of
this theoory. It was viewed thatt natural law w is uncertaain and douubtful but it is acceptedd that

2
Natural Law
L has greatly influencced the grow wth and has given the biirth to Internnational Law
w and
its develoopment. Mo
ost of its law
ws are framedd from Naturral Law.

2. Positivvist Theory y: - This theeory is baseed on Posittivism i.e. lawl which isi in the faact as
contrasteed with law which
w oughtt to be. The positivists base
b their views on the actual
a practiice of
the statees. In theiir view cuustoms and treaties arre the main sources of Internattional
Law. Acccording to German ecconomist, Heagal, H “Inteernational Law
L is the natural conseent of
states. Without
W the consent
c of sttates, no law
w can bind thhe states. Thhis consent may
m be expreess or
implied.”” As pointeed out by Staarke, “ Interrnational Laaw can in loggic be reduced to a systeem of
rules deppending for their validityy only on thhe fact that state have consented
c to them.” Ass also
pointed by
b Brierly, “The doctriine of positiivism teachees that Interrnational Laaw is the suum of
rules by which statees have connsented to be bound.” As said by Bynkeshockk, “The bassis of
Internatioonal Law is the natural consent of thet states. Without
W the consent of states
s no law
w can
bind the states.”
The critics of the abbove views says that conssent is not always
a necesssary for all laws. Therre are
some law ws which aree binding onn states irresspective of their
t consennt e.g. Viennna Conventioon on
the Law of Treaties. Article 366 of the Treeaty says thhat the proviisions of thee Treaty maay be
binding on
o third partiies even if thhey have nott consented to
t it.

CONCL LUSION:- Gossil

G Hurstt says, “Thaat Internatioonal Law iss in fact biinding on states,
because they
t are stattes.” This is very much correct
c becauuse every staate in the woorld wants peace,
p
Law and order and th hat is possible only throuugh existencce of Internaational Law. Therefore itt is in
natural innterest of Staates to acceppt the existennce of Internnational Law
w.

SUGGESTIONS FO OR IMPRO OVING INT TERNATION NAL LAW

Despite the
t above mentioned
m weeaknesses, itt has to be noted
n that Intternational Law
L is consttantly
developinng and its sccope is expaanding. It is a dynamic concept for it always enndeavors to adopt a
itself to the
t needs of the day. Ass compared to t Municipall Law the Intternational Law
L is workks in a
decentrallized systemm. This is because of the facts that the International
I l policies, Inter-
I
dependennce of statees and the continuous growth of the conceppt of Internaational or world w
communiity. Howev ver the weakknesses of thhe Internatioonal Law maay be improoved in folloowing
ways:-
1. The Innternational Court
C of Justice should beb given commpulsory jurrisdiction, inn the true sennse of
term overall internatiional disputees.
2. An Innternational Criminal Court should be estabblished to adjudicate a c
cases relatinng to
internatioonal crimes.
3. Internaational Lawss should be properly
p coddified.
4. The machinery
m to
t enforce the t decisionns of the Innternational Court of Juustice shoulld be
strengtheened.
5. An Innternational Police systeem should be b establisheed to checkk international crimes annd to
enforce the
t rules & principles
p off Internationaal Law.
6. An international
i l Bureau of o Investigaation and prosecution
p should be establishedd for
investigaation of mattters relatingg to Internaational crimees and the prosecution of Internattional
criminalss.
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7. The U.N.O. should d be authorissed to intervvene in the innternal matteers of states.
8. For setttlement of international
i l disputes thee use of judicial precedeents must be encouraged.
9. There must be con nstant review
w of Internatiional Law.
10. Last but not the least therre must be basic recoggnition of thhe interest which w the whole
w
internatioonal society has in the obbservance off its laws.

CONCL LUSION: - It is pertineent to mentiooned here thaat the Generral Assemblyy of UNO shhould
made fruuitful effortss in this diirection. The above suggestions will w make Innternational Law
equivalennt to a Mun nicipal Law to some exxtent. With the growth of Internatiionalism andd the
feeling of universal brotherhood
b internationaal aw will alsso become effective and powerful.

Q2. Illusstrate the sou urces of inteernational laaw. Custom is the main source of in nternationall law.
Ans. Artiicle 38(1) off the statutess of ICJ provvides a refleection of the sources of international
i l law,
though not
n accurate and Article 38 did not expressly
e meention ‘sourcces’ but it iss usually invvoked
as sourcees of internattional law. Sources
S of innternational law can be characterized
c d as ‘formall’ and
‘materiall’ sources, thhough the chharacterizatioon is not by hierarchy buut for clarifiication, thereefore,
Article 38(1)(a-c),th
3 hat is, conveentions or treaties
t ,cusstom and geeneral princciples are foormal
sources whereas
w Artticle 38(1)(dd) that is, juudicial decisions and jurristic teachinngs are ‘maaterial
sources’. Formal sou urces conferr upon rules an ‘obligaatory characcter’, while material sources
comprisee the ‘actual content of the rules’. This T essay will
w considerr the accuraccy of the sources
and otherr law making g means.
Article 38
3 (1) Intern national Con nventions
Internatioonal conventions can alsso be referreed to as bilatteral and muultilateral treeaties, that iss, UN
charter, as
a well as other
o conventions and covenants thhereafter. TreatyT is as ‘an internattional
agreemennt concluded d between sttates in writtten form andd governed by b internatioonal law whhether
embodiedd in a singlee instrumentss or in two or o more relatted instrumeents and wheether in partiicular
designatiion’.
Treaties are governed by some rules r under international
i l law; First, Treaties aree voluntary in i the
sense thaat states cannnot be boundd by agreem ment without its consent. States are bound only iff they
are partiies to a treeaty, thoughh there are exceptions to this, i.ee., delimitatiion of territorial
boundariies bind all states,
s they are
a ‘ergo om mnes' (againsst the whole world) Secoondly, agreeement
and conssent is by raatification of states, signnature, and expression of consent to be boundd and
states aree bound only y by reasonn of their connsents Thirddly, when paarties consennt to treatiess that
codified existing cusstomary law, two thingss happen; Thhe states thaat are partiess to the treatty are
bound inn the normal way and staates that aree not parties to the treatyy originally are bound by b the
treaty beecause they area ‘rooted in i customaryy law’ and states
s that arre not partiees to a treatyy that
codified existing cusstomary law into code of o conduct too order statee future activvities will sttill be
bound byy the treaty .This
. indicattes that custoomary law canc become treaty and vice v versa if there
is no suffficient ratiffication for such
s treaty, even after ratification,
r they can still overtake each
other in term of sup perseding preeferences noo matter whhich one is older. o The fourth
fo rule iss that
treaties must
m be depo osited at the secretariat of
o UN and published
p if ratified by states
s pursuaant to
Article 80
8 of Vienn na conventioon on the laaw of treatiies and Artiicle 102 of the UN charter;
whereas, unregistereed treaty rem main bindingg between parties
p but itt may not bee invoked before
b

4
court of Justice or an ny of the UN N organs. Trreaty is a means
m of creaating obligattions and binnding
law for sttates and wh hen state violates the treaaty, it has vioolated the laaw.
Is Treatyy therefore a law or obligation? The T questionn whether treaty t createe law or im mpose
obligation generates debate streeamlined bettween ‘contrract treaties’ and ‘law making treaaties’,
that is, whether treeaties are contracts
c thaat impose obligation
o o ‘law makking’ leadinng to
or
internatioonal law. In consideratioon of treaty as a contracct, Lord Tem mpleman in Maclaine
M Watson
v. Dept. of Trade an nd Industry said a ‘treatty is a contrract betweenn the governnments of tw wo or
more sovvereign statees’ .Treaty is a productt of negotiaations betweeen ‘legal eqquals’ whichh has
contractuual obligatioon between consenting
c p
parties. The rule that prroposes obeddience to treeaties
and makee them bind ding is embedded in custtomary interrnational law w and this is expressed in i the
maxim ‘ppacta sunt servanda’.
s The only law w in this view w is custommary internattional law buut all
‘specific detailed’ inn the treaty obligation
o arre not law but
b ‘legal obligation’. Onn the other hand, h
consideriing treaty as a source off law is plaussible, trying to refer treatties as sourcce of obligatiion is
like conccealing the important
i roole they assuuage in interrnational law w. States cooming togethher to
ratify a trreaty is outrright means of creating law. l A statee has createdd law for itseelf the momment it
ratifies thhe treaty andd therefore legally
l bounnd. If it violaates the law, it has violaated internattional
law.
The two legal effectss are interwooven, the claassification innto ‘obligatiion’ and ‘leggal’ are similar in
operationn. If a state consent
c to trreaty, the staate is bound by the treatyy either calleed ‘obligatioon’ or
‘law’. Thhe distinctioon is therefoore theoreticaal for the puurpose of finnding answeer to the binnding
nature off international law. A treeaty of contrract otherwiise known ass ‘bilateral treaty’t may cease
c
when thee purpose fo or which it was w enteredd had been achieved
a or terminated. A ‘Law maaking
treaty’ orr ‘multilaterral treaty’, may
m be plannned for enduuring future purpose thaat will lead to an
importannt customary y law like law w of the sea convention of 1982 whhich was madde general for f all
states. It has been argued
a that treaties
t are binding on non-parties if they havve customaryy law
origin. Inn North Sea Continental Shelf case, ICJ ruled thaat for such too be bindingg, ‘it would in i the
first placce be necesssary that thee provision concerned should s at all events pottentially, be of a
fundamenntally norm m creating chharacter succh as could be regardedd as forminng the basis of a
general rule
r of law’.
The secoond procedu ure laid dow wn by ICJ iss that the provision
p in question ‘shhould have been
adopted in i the practice of a suffiiciently wideespread and representatiive number of o state incluuding
those thaat are not parrties to the treaty’.
t The third requireement is thatt opinio juris which form m the
basis of legal
l charactter of state practice
p be satisfied.
s Oppinio juris annd state Pracctice are elemments
of custoomary law. The sources are com mplementaryy and interrrelated but not necesssarily
hierarchiical in the orrder of Articlle38. This seeems to be thhe view of thhe court in Nicaragua
N v USA
and Dannube Dam case c where it i was held that ‘somee of the rulees laid dow wn in the Viienna
Conventiion on the law of Treaties T migght be connsidered as a codificattion of exiisting
contempoorary law’. Dixon
D and Mc
M Corquodale said ‘thee court confiirmed that inn general, thee law
applicablle to a treatty is the law w in force when
w the treeaty itself coomes into operation,
o evven if
customarry law has developed
d fuurther since then’.
t Howeever, the couurt did not recognise
r thaat the
‘treaty itself might permit
p evolvving customaary rule to be b relevant too its operation, this seem ms to
be an atttempt to intrroduce a cooherency to the law irreespective of the source of any partiicular
obligation’ Treaties canc be invallid on many grounds intter alia, if it is in conflicct with jus coogen.

5
Treaty caan as well bee withdrawnn, terminatedd, suspended and reserveed. The otherr formal sourrce is
custom:

Article 38 (1) B- Inteernational Custom:

C
The impoortant elemeents here aree state practtice, the tenaacity and accceptance off such practiice as
law, alsoo known as ‘opinio
‘ juris.’ Customarry law may notn be as ‘viisible’ as treeaty ‘it repreesents
the essenntial basis up
pon which modern
m humaan rights is grounded’.
g C
Custom is reegarded as a form
of ‘tacit agreement’,, the behavioours of statees to each other
o in an acceptable
a w leads to tacit
way
accent too the acceptaable behavioour. The prooblem of thiis view is thhat if agreem ment kicks it i on,
absence of agreemen nt can kick it off. Custoomary law emanates
e as law from practice
p of states.
s
Dixon refers to it as the
t ‘foundattion stones of o the moderrn law of nattions’ and thhis was backeed up
in the Guulf of Maine case that cuustom is the ideal right size
s for the general
g princciples and allways
on grounnd to fill the vacuum any a time obligation andd law of treeaties are noot gaining global g
acceptance. Can cu ustomary law w change? Customary law can change c on the principlle of
‘apprehennsion’ and ‘acquiescenc
‘ ce’ but that does
d not meean customarry law is not a strong ruule of
law, the process of customary
c laaw continuoously is a goood omen too international law becauuse it
can meett up with thee timely neeeds of international law as the worldd and law deevelop, thouugh, it
may have its own diisadvantagess of more reelaxed and sllow formatioon process, it lacks certtainty
and visibbility unlike treaty.
t It hass advantage as regards too its variety of wide scoppes in similaarities
with statte activities. Treaty has advantage where custoom has disadvantage, thhey are like twin
pillars reeady to workk together inn other to strrengthen the sources of international
i l law. Hugh said,
‘the way things havee always beenn done becoomes the wayy things musst be done ruules, internattional
law does not deviate from the pattern discernnible in municipal legal systems’.
s
State praactice as onee of the eleements of cuustomary law w, it is a coontinuous annd constant state
practice of internatio onal acts ovver a periodd of time, Governmenta
G al actions, ruule makingss and
executionn of policiess, governmeental declaraation and proonouncemennt, administrrative proceddures
and policcies within states
s constiitute good liinks and souurces of statte practice. In I Assylum case
(Colomb bia v Peru), to form cuustomary laaw, it must be ‘in accoordance withh a constantt and
uniform usage practtised by staates in quesstion’. This was stated in Fisheriies case (Un nited
Kingdom m V Norwa ay). The ‘unniformity’ annd ‘consistenncy’ test is ‘general praactice’ and not a
‘universaal practice’ and
a ‘practicee of most inffluential andd powerful sttates would carry c the greeatest
weight’, deducing fro om the abovve, it doesn’tt mean all staates participation in the practice. ‘Once a
practice is established as formiing part of customary Internationaal law’, all states are bound b
includingg states and the new stattes that failedd to contribuute to the practice initiallly. Nevertheeless,
we cannoot rule out thhe ‘opt out’ possibility
p f the ‘persiistent objectors’ at the foormative staage of
for
the law, as Third way y put it, ‘an attractive opption’ whichh will disalloow the impoosition of speecific
rule by the
t majority over the minority.,
m it has
h been deeeply criticizzed in internnational law,, as a
result off this, the practice
p is as
a stated earrlier, states are bound as a generral rule eithher as
‘objectorrs’ or not.
Consistenncy of statee practice ass another eleement is siggnificant to the alteratioon of an exiisting
custom. In Lotus case, the courrt said custooms must bee ‘constant and a uniform m’. It must not
n be
‘totally uniform
u and constant’; itt must at leaast be signifi
ficantly constant state prractice to beccome
customarry internatio onal law. Alsso, it is well stated in Anglo-Norw
A wegian Fisherries case thaat the
consistenncy required may vary inn degree baseed on circum mstance.
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Generalitty of Practiice as anothher element in customaary law is about a the knnowledge of o the
Custom, to significan nt number off states. It is a general addoption of practice by sttate, in Northh Sea
Continenntal Shelf Caases, it mayy be difficultt to determiine the num mber of state to participaate in
internatioonal law beffore a generral practice can c become law becausse it is not about a majoriity of
votes casst, the degreee depends onn the variouss subject mattters.
Opinio juuris is the seecond elemeent broadly considered
c n
necessary forr the formation of custoomary
internatioonal law witth state pracctice, Opinioo juris which constitute ‘subjective element' (vverbal
act) whille state practtice is the ‘oobjective element' (behavvioural act) and this was well articuulated
by Kamm merhofer in his article that verbal act can form m a practicee with their content forrming
‘expressiion of the suubjective elem ment’, a stattement of ann act and thaat ‘subjectivee element maay be
dominantt factor in th he behavioraal act itself’. Dixion however holdss that ‘state practice muust be
accompaanied by a beelief that thee practice is obligatory, the belief inn the obligattory nature of o the
practice is called thee opinio juriis’ but ICJ on o several occasion
o refeer to opinionn juris as haaving
equal footing with ‘state practiice’ in Con ntinental sh helf case (L Libyan Araab Jamahin nya v
Malta) and
a legality of o Nuclear Weapons
W Addvisory Opinnion. Also inn Lotus case,, opinio juriss was
seen as essential
e eleement of cuustomary inteernational laaw and this was affirm med in Northh Sea
Continenntal Shelf Caases but thee judges how wever held that
t opinio juris cannot be implied from
repeated activities, thhis made thee proof of opinio
o juris difficult
d butt the dissentiing judges ini the
case reallized the difficulty wheen they heldd otherwise in their minority m judggement, its proof
p
however depends on n the subjecct matter, thhus attainmeent of rule to t jus cogenn status reqquired
strong evvidence of op pinio juris appart from thee fact of connsistence statte practice. In
I Nicaraguaa case
where staate practice and opinio juris was elluded to arriive at a concclusion that use of forcee had
attained the
t status off customary rule of jus cogenc beforee the adventt of UN charrter of 1945. The
time elemment and durration of cusstomary law varies.
The com mparison of treaty with customary law is impportant becauuse they are the two major m
sources of internatiional law, the Nicaraagua case mentioned m b
briefly abovve affirmedd the
complem mentary relattionship betw ween treaty and internaational custoom. It also showss that treaty
t
may codiify Internatio onal custom and treaty may m also revvert to international custoom if the treaty is
abandoneed by states. They are interrelated
i t
though theree may be coonflict wheree the interreelated
part tendds toward different obliggations; ICJ may resolve the conflicct dependingg on the stroonger
obligation. In the Nicaragua
N caase, customaary law willl not cease to bind beccause it has been
codified by treaty. Parties
P to treeaty will be bound by it i and the non-parties
n w be bounnd by
will
custom. ifi treaty falls away, custtomary law will w take ovver but wheree there is coonflict, if treaaty is
latter thaan custom, it will prevaail, this is baased on com mmon principle of law and a more soo that
treaty is a deliberate ‘act of law creation’ where
w custom m is latter thhan treaty, thhe treaty will still
prevail on parties.

Article 38
3 (1) (C)-G General Prin nciple of Laww:
This is unclear
u and controversiial area of the
t source. Positivist earlier rejectted this prinnciple
because it did not conform
c to state will and
a consent like treaty and custom m, but they latter
accepted it; providedd it is acceppted as part of state leggal order. ‘T
The general principles
p of law
recogniseed by civiliized nationss’ as a sourrce tend tow wards excluusion of unccivilized nattions.
Naturalisst believes it tends to inncorporate natural
n law into internaational law, they believee law
exist beffore any law
w whether trreaty or custtom, this difffers from positive
p law. It is apparrently
7
conspicuuous that paraagraph 1(c) added nothiing to the soources whichh treaty and customc had taken
t
care of and
a due to th his ICJ barelly invoke it, it graduallyy went into oblivion
o andd remain dorrmant
until it appeared
a thaat new areass of internatiional law haad gap and the rule waas revitalizedd and
applied to area like international
i l criminal law
w and internnational admministrative law,
l recourse can
be made to the general principlee of law com mmon to all ‘major legaal systems off members of o the
communiity of nation ns’, if treatyy and customm had beenn exhausted with gap, thhat is, estopppels,
equity, annd so on. Juudge McNairr in the ‘Inteernational Status of Soutth West Afriica Case saidd that
national law can be a pointer to the type of rulesr that might
m be of asssistance in internationaal law
like ‘thee concept of o limited liability’ inn Barcelonaa Traction case. Wheether proceddural,
administrrative, or suubstantive ruules, they cann be importted to international law, it however need
no treatyy or custom for its validation. It iss well settledd that conceepts have ‘ppre-existing legal
validity’.. This principple tend morre to dualistiic doctrine.
Principlee of equity iss applicable to internatioonal Tribunaals that is genneral principples of equityy and
fairness within
w the scope
s of parragraph 1(c).it applies inn decisions according too law and not by
abstractnness outside law like exx aequo et bono in Articcle 38(2),exxample of eqquitable prinnciple
applied are
a acquiesccence and estoppels inn River Meeuse case. Paragraph P 1(c) may incclude
‘general principles ofo Internationnal law’ whiich are simillar to principple in Natioonal legal system.
In generaal, treaty and d custom groowth and inntensity havee reduced thee weight of general prinnciple
of law ass the source ofo internatioonal law.

Article 38
3 (1) (d) Ju udicial Decissions:
Article 38(1)
3 (d) ‘sh
hall apply suubject to thee provisions of Article 59,5 Judicial decisions…’ and
Article 59
5 of the IC CJ statutes states that the t court deecisions havve ‘no binding force exxcept
between the parties anda in respect of that paarticular casee’. Judicial decisions
d aree material arrea of
Sources ofo law. Thou ugh, there may
m be no sttare decisis as a stated in Article 59, recourse
r cann still
be made by court to its past deccisions res juudicata and advisory oppinion to subbstantiate cuurrent
case as authoritative
a e evidence of o legal posiition, For exxample, in Nauru
N case, the principple of
Nicaraguua case werre relied uppon to reachh the majority decisions. Also, juudicial deciisions
constitutee much of the
t source of ‘internatioonal maritim me law’ and ‘it is clear thatt the ICJ pays
great reggard to both the actual decisions
d it has reachedd in previouss cases and to the law it i has
declared therein’. Itt is submitteed that ICJ participatess in law maaking proceess and techhnical
impedim ment on this isi more in thheory than inn practice. Court
C particiipates in law
w making proocess
through case
c law, ju
udges’ rule and
a advisoryy opinion in breaking neew area of international
i l law.
Dixon coonfirmed th his by sayinng ‘The atteempt to prootect state sovereignty by limitingg the
functionss of the ICJ and ICC to one of simpple adjudicaation rather than t law creeation largelyy has
failed’. Antonio
A also said ‘ICJ haas gone so far
f as, in factt, to set new
w international rule in spite of
its aforemmentioned laack of form mal power too do so’ Wriiting of Pubblicists whichh paragraphh1 (d)
refers to as ‘subsidiaary means’. Arbitral
A tribuunals and naational courtts consult wrriting of pubblicist
while intternational court
c make little use of o ‘doctrine’ but wheree the writing of publicist is
productivve is the draft article, repports and seccretariat mem
morandum produced
p by the Internattional
Law Com mmission an nd Resolutioon of the Insstitute of Intternational Law
L Commission and thhat of
the Instittute of Intern
national Law w. Nowadayys the opinioon of writerrs has becom me less impoortant
since stattes.

8
Q3. Desccribe the relaation betweeen municipaal law and in nternationall law with th heories?
Ans. Cerrtain theoriees have beenn propoundeed to explainn the relatioonship between Internattional
Law and Municipal Law.L In genneral it is nottionally acceepted that thhe state muniicipal law coontrol
the condduct of indiv viduals withhin the statee while Inteernational Laaw controls the relationns of
nations. But now th h altogetheer been channged and thee scope of Innternational Law
his concept has
has increeased and it not
n only dettermines andd controls thee relations of o states but also the relaations
of membbers of Intern national com
mmunity. Booth the lawss have co-heesion with eaach other annd the
relations between th hese two are more prom minent. Thhese theoriess have beenn put forwaard to
explain the
t relationship betweenn Internationnal Law andd State Law. Of all thesse theories as a per
followingg details, th
he most poppular are thee Monism and a dualism m and they are a diametriically
opposed to each otheer:-

1. MO ONISTIC TH HEORY:-Itt is also know wn in the naame of Moniism theory. According to t the
exponentts of this thheory Internaational Law and Municcipal Law arre intimatelyy connected with
each otheer. Internatio
onal Law annd Municipaal Law are thhe two brancches of unifiied knowleddge of
law whicch are appliccable to humman communnity in some or the otherr way. All law are madde for
individuaals. The diffference is thhat municipal law is biinding on inndividual whhile Internattional
Law is biinding on staates. Concluusively it cann be said thatt the root of all laws is inndividual.
Accordin ng to Strakee, “International Law is part of statee Municipal Law and thherefore deciisions
can be giiven by Mun nicipal courtss according tot the rules of
o Internatioonal Law.”
Accordin ng to O. Kornell,
K “Thhe objectivee of all law ws is human welfare whhether it is state
municipaal law or Inteernational Laaw.”

2. DUA ALISTIC TH HEORY: - In view of the dualistiic theory wrriters, Internnational Law w and
state Laww are two seeparate laws and containned legal sysstems. The MonistM view of law is paart of
philosophhy according to which totality is a single struccture. But within w the framework
f o the
of
unitary universe
u is diversity
d off phenomenoon. Internattional Law cannot c becoome part of state
municipaal Law till thhe principles of Internatioonal Law aree applied unnder State Muunicipal Law w.
Accordin ng to Strakke, “The maiin foundatioon of the prooponents off dualistic thheory is that state
Municipaal Law and International Law are two differeent legal sysstems becauuse the natuure of
Internatioonal law is fundamentall
f ly different from
f State Municipal
M Laaw.”
Angilotti has also recognised booth the system ms as two diifferent legaal systems. According
A too him
the funddamental priinciple of StateS Municcipal Law inn compliancce of law enacted e by state
legislaturre while priinciple of International
I l Law is Paacta Sunt Servanda
S i.ee. to honouur the
agreemennts executed d between thee states.”
The mainn basis of sep paration of these
t two systems is as follows:-
f
Thee main source of International Law w is customs and treatiess while in case of Muniicipal
Law are an enactmen nt by sovereiign power.
Inteernational Law controls the relations between sttate while sttate law conttrols the relaations
between state and ind dividuals.
Thee main causee of compliaance of state law is fear of o sanction while
w the bassis of compliance
of Internaational Law is the morall liability andd vested inteerests of stattes.

9
 3. THE EORY OF SPECIFIC
S A
ADOPTION N: - Internatiional Law caannot be dirrectly enforcced in
the field of State Laaw. In orderr to enforcee it in the fieeld of Muniicipal Law it i is necessaary to
make its specific ado option. The theory
t of addoption is based on Hagu ue conventioon-1970, Viienna
Conventtion-1972 an nd Tokyo Coonvention-11975. In casse of Jolly George G v/s Bank
B of Cocchin-
1980: The court held h that anny agreemennt does noot become part of Inddian constittution
automatically, but thee positive coommitment of o state partiies inspires their
t legislatiive action.”
The use of onal Law in different couuntries like India, Britaiin, America and Russia. The
o Internatio
rules of International
I l Law and treeads have beeen based in a different ways w e.g.
INDIAN N ADOPTIO ON:- The Innternational Law L has beeen given impportant placee and mentioon the
customarry rules of Internationaal Law in Article 51(6) of the Indian I consttitution withh the
followingg strive:
I. To inncrease internnational peaace and securrity.
II. To maintain
m just and good rellations amonng states.
III. To inncrease faith h and honour for use of International Law trreaty, obligations in naatural
relatiions and con
nduct of orgaanised peoplee.
I
IV. To acct as mediato or to encouraage for settleement of inteernational diispute.
Some of the cases in n this regard are : i) Shrii Krishna Sharma v/s State S of Weest Bengal-11964 :
It was deecided that whenever
w thee court interpprets the dommestic Municipal Law, it should be taken t
into conssideration thaat it does not go against Internationaal Law.
ii) Magaan Bhai, Ishwar
I Bhaai Patel v/s v Union of India-11969:- Courrt acceptedd the
implemenntation of Kutch
K Agreem ment betweeen India and Pakistan onn the basis of corresponddence
between them. Simiilarly there are a two otheer case viz: Vishakha v/s v State of Rajasthan--1997
and App parel Exportt Promotion n Council v/s v A.K.Choopra-1999: In I both of thhe cases the court
held that the right off sex equalityy of women has assumedd the importtant rule of International
I l Law
and its convention, court
c said thhat in cases ofo violation of human rightr the couurt should allways
consider internationaal documentss and convenntions and shhould make them t bindinng.
British Adoption:
A In
n Britain Intternational customs
c are treated as part
p of domeestic law. BritishB
courts appply internattional custom ms subject too the conditiions (i) Internnational cusstomary rulees are
not inconnsistent withh British Law ws (ii) they are
a acceptedd by lower coourts when the t limit of these
customarry rules aree fixed by High Courtt. For use of treaties, the case of o International
Tin Council v/s Dep p’t. of Tradee and Indusstry-1900: thhe Lord Couuncil decidedd that in Enggland
treaties are
a not bindiing automatiically. It is binding
b onlyy when the Parliament
P m
makes it a paart of
English Law
L and inco orporates in Law by enaactment of laaw in this reggard.
Adoption n in Americca: In America the couurts interprett the state laaw in such a way that it does
not go aggainst International Law. The rules of customarry Internationnal Law are treated as part of
State Law. It has been b done ini the case of Paqueta Habana Case- 1900: It was heldd that
Internatioonal Law is part of our state Law and a when anny question or o case relatting Internattional
Law is filed
fi before courts
c of prooper powerss then the rights based on o these queestions shouuld be
determinned and enforrced.

4. THEO ORY OF TR RANSFORM MATION:- The exponeents of this theory

t conteented that foor the
applicatioon of Intern
national Law
w in the fieldd of Municiipal Law, thhe rules of international
i l law
have to undergo
u tran
nsformation.. Without trransformatioon they cannnot be applieed in the fieeld of
Municipaal Law.
10
 Accordinng to Strak ke: - “That the rules off Internationnal Law cann be appliedd when theyy are
transform
med in to dom
mestic law, is
i not necesssary in everyy case.”

5. THEO ORY OF DELIGATIO

D ON:- The thheory of traansformationn has been criticised byy the
Jurists with
w the resullt of this craaterisation it put forwardd a new theoory called Deelegation theeory.
The suppporters of thhis theory saay that accorrding to the statutory ruules of Internnational Law
w, the
powers have
h been delegated to the constituution of diffeerent states o ensure thaat how and what
extent acccording to Internationaal Law. Staates to deterrmine as to how International Law w will
become applicable
a inn the field of
o Municipall Law in acccordance wiith the proceedure and syystem
prevailinng in each staate in accorddance with itts constitutioon.

SHORT QUESTION NS
Q4.Diffeerence betweeen public in nternationall law and priivate internaational law??
Ans. Thee term privaate internatioonal law or conflict of laws regulattes those disputes wherre the
choice off which natio on's or state''s laws to appply could innfluence the outcome of a particular case.
In the Unnited States, the term connflict of law ws is more coommonly useed. “Private internationaal law
is adminiistered between private citizens
c of different
d counntries or is concerned
c wiith the definnition,
regulation, and enfo orcement of rights in siituations whhere both the person in whom the right
inheres and
a the perso on upon whoom the obliggation rests are a private ciitizens of diffferent natioons. It
is a set of rules and d regulationns that are established
e o agreed upon
or u by citizzens of diffferent
nations who
w privately y enter into a transactionn and that will
w govern inn the event of o a dispute..” On
the otherr hand, public internationnal law meanns the set off rules entereed into by thee governmennts of
various countries
c thaat determine the rights annd regulate thhe intercourrse of indepeendent nationns.
™ International Law w or Law of Nations
N deaals with ruless for the govvernance of Sovereign States
S
in theeir relations and Conduuct towards one anotherr It Comprisses of two parts Nameely 1)
Publicc Internationnal Law 2) Private
P Internnational Laww or Law of Conflict.
C
1) Publicc Internatio onal Law: Public
P Internnational law is the body of legal rulees, which appplied
between Sovereign States
S and othher Internatiional Personnalities.
2) Private Internatiional Law or o Law of Conflict:
C Priivate Internaational Law is also called as
'Conflict of Law' deeals with caases involvinng foreign element.e In case of Disspute betweeen an
individuaal citizen orr State and Foreign Eleement, wherre there is need n to conttact with fooreign
system of law, the Prrivate Internaational Law will apply.

™ Differen
nce Betweeen Public Internationa
I al Law and Private Intternational Law / Law
w of
Conflictts

Public innternational law is, mostt broadly speaking, a syystem of norrms that govverns relationnship
between legal entitiees recognizeed in the spphere of inteernational laaw - primarrily althoughh not
exclusiveely sovereignn states an innternational organizationns. It is furthher fragmentted into a nuumber
of branches, but it is generallyy consideredd to have overarching
o common prrinciples. Prrivate
internatioonal law hass a bit of decceiving nam
me. It is actuaally a branchh of nationaal laws that deals,
d
mostly, with
w determ mining what the applicabble law shouuld be (of which w state, e.g. domesttic or
some othher) when th here is a foreeign elementt in the relationship (foreeign nationaal involved, place
of event was abroad d etc.). It is actually callled in comm mon law staates 'conflictt of laws’ which
w
11
perhaps e
explains it b
better.

Q5. What are the relevant provisionsp of Indian Constitution

C in respectt of relatioon of
Internatiional law wiith Municipaal law?
Ans. Rellation betweeen Internatiional Law an nd Indian Law
L
A cursorry look at th he practice ofo India in reelation to innternational law
l would be
b pertinent here.
The appllication of in nternational law in the municipal
m spphere in Indiia can be unnderstood thrrough
the interppretations byy the courts in
i its variouss decisions. India’s apprroach to interrnational laww can
be lookeed at from two t perspecctives – Inddian law vis-a-vis treatiies and Indiian law vis--a-vis
internatioonal custom ms. India follows
f the dualist thheory of innternational law. Thereefore,
internatioonal law priinciples andd norms cannnot be invooked in munnicipal courrts without being b
expresslyy incorporatted into the domestic law. l The coourts have held
h that in the light of
o the
provisionns of Articlee 51 treaties to which Inndia is an asssenting partty should bee implementted in
good faitth, but at thee same time,, the executivve cannot bee directed too follow the treaty in abssence
of a dom mestic law. However,
H paaradoxically treaties aree consideredd self executting, that is, they
apply in the municiipal sphere automatically, except where w it reqquires an ammendment too the
Constituttion or an existing law,, or where a new law iss required too be enactedd. Thereforee, the
Courts can
c take aid d of the treaaty principlees not inconnsistent withh the provissions of law ws of
India. Cuustomary intternational law,l on the other handd, is not coonsidered to become paart of
municipaal law autom matically. Thherefore, whhere there iss a conflict between muunicipal law w and
customarry internatio onal law, thee former wiill prevail. Nevertheless
N s, the courtss have playeed an
active role in the imp plementationn of India’s internationaal obligationns and have taken
t cognizzance
of both trreaty as welll as customaary principless of internatiional law in cases involvving violatioons of
human rights
r or quuestions of environment
e tal law. Althhough Articcle 51 manddates respecct for
internatioonal law, it is not an ennforceable Article.
A Article 253 connfers exclusiive power on the
Parliament with resspect to intternational affairs.
a But the Constiitution conttains no exxpress
provisionn settling thee relation annd status of international
i l law in Indiian courts. This
T “silencee” has
given thee flexibility to courts to t implemennt international law in a progressivve and meassured
manner.
The Con nstitution of India
I and Innternationall Law
The ties of India’s Constitution
C with internaational law date
d back too the pre-inddependence days.
Even durring the Brittish rule, Inddia was the separate
s mem mber of the League of Nations.
N It iss also
the foundding-membeer of the Uniited Nationss. In this secction, I havee sketched geeneral schem me of
the Consstitution witth referencee to international law and further proceed too analyse ceertain
importannt provisions and aspectss.
The Preaamble
The Preaamble contaiins certain basic values and philosopphies that Inndia guaranteees to its cittizens
and strivves to achieve as a nattion. The Prreamble stattes inter alia that sociaal, economicc and
political justice will be secured for all citizzens and thaat liberty andd equality willw be prom moted.
These vaalues are thee cornerstonne of true deemocracy annd are univeersal in natuure. Every nation n
strives too achieve theem.

Fundamental Rightss and Directtive Principlles of State Policy

P

12
The Funndamental Rights
R in Paart III and the
t positive mandates to t the Statee in the forrm of
Directivee Principles in
i Part IV caan be compaared with thee Universal Declaration
D of Human Rights
R
(UDHR) and commonalities cann be traced.. Shri Subhaash C Kashhyap has preepared a dettailed
chart on the commo on principless in these tw
wo parts as well as certtain other laaws of Indiaa. The
developmments at the internationaal level throuugh the centturies had a great influeence on the rights
r
discoursee in the worlld. The Unitted Nations Organisation
O n (UNO) waas founded ass an internattional
agency too prevent the breaking ofo the third world
w war, maintain
m inteernational peeace and seccurity
and to prromote humaan rights. With this objecctive in mind, the nationns came togeether and adoopted
and proclaimed the Universal
U Declaration of Human Riights on 10thh Decemberr, 1948. It shhould
be noted that the Ind dian Constittution whichh was adopteed on 26th November,
N 1
1950 was grreatly
influencee by the histtory of the human
h race and the valuues the Univversal Declaaration of Huuman
Rights soought to prommote and preeserve.

Fundamental Dutiess
Article 51A
5 gives effect
e to thee declarationn in Article 29(1) of thhe Universaal Declaratioon of
Human Rights,
R whicch emphasisses the dutiees owed by individuals to the com mmunity at large.
l
These duuties benefit community and also hellp in the full flourishing of the indiviidual.

Internatiional Peace and Securitty, and Interrnational Reelations

Indian Constitution is i one of thee few constittutional textts in the worrld which exxpressly provides
for fosterring of intern national relaations. The teext of Articlee 51 reads ass follows:
“51. Prom motion of intternational peace
p and seecurity – Thee State shall endeavour too –
• Promote interrnational peaace and secuurity;
• Maintain
M justt and honorabble relationss between naations;
• Foster respecct for internnational law w and treatyy obligationns in dealinngs of organised
peoples with one another; and
• Encourage
E seettlement of international
i l disputes byy arbitration..”
Article 51
5 mandatess the State to endeavouur to promoote internatiional peace and securitty, to
maintain good relatio ons with othher nations, tot respect intternational law and to seettle internattional
dispute by
b peaceful means.
m Thiss Article is inspired
i fromm the Declarration of Haavana adopteed on
30th Noovember, 19 939. The Declaration proclaimed
p the ‘unshakken faith’ ofo the partiees in
internatioonal co-operration and prromoting inteernational peeace and seccurity.
Clause (cc) of this Artticle obligates India to respect
r internnational law
w. A combineed reading of o this
with Parrt III of thee Constitutiion facilitateed the judiciary in deeveloping huuman rightss and
environmmental jurisp prudence in India. Clauuse (d) of the t Article provides foor ‘settlemennt of
internatioonal disputess by arbitrattion’. The wisdom of usiing the term m arbitration is doubted. Most
countriess do not preffer arbitration to other means
m and in fact the praactice of variious States shows
that arbittration is not the first chhoice of diffferent nationns. India too has not preferred arbitrration
as the firrst means to o settle interrnational dissputes. The UN U Charter too suggestts various meansm
like neggotiation, en nquiry, meddiation, concciliation, arbbitration, juudicial settleement, resoort to
regional agencies or arrangemennts, or other peaceful
p means. In thesee circumstannces, it is obvvious
that the use
u of the terrm arbitratioon is misplacced.

13
It shouldd be remem mbered that Article 51 is part of the Directivve Principlees which aree not
enforceabble. Neverthheless, higheest importannce is givenn to internattional law and
a the courrts in
India havve done so.

Powers ofo the Execu utive in mattters of Intern

national Law w and Relattions
By virtuee of Article 73, the pow
wers of the Government
G of India exttends to mattters in respeect of
which the Parliamentt has the pow wer to make laws, subject to constituutional provvisions or anyy law
made byy the parliam ment on thatt behalf. Ass per Articlee 253, the Parliament
P can enact law ws to
implemennt internatioonal obligatiions, notwithhstanding thhe constitutiional distribution of pow wers.
So far, ini India, thhere is no legislation
l t
that limits the
t power the t executivve in matters of
internatioonal law and
d relations. Hence,
H we can
c state thaat the executtive has extensive poweers in
this regarrd.
The pow wer of the exxecutive is vested
v in thee President of India andd is exerciseed by directtly or
through officers
o subordinate to him. All conntracts enterred into by India shouldd be made in the
name of the Presiden nt. The President, in thee exercise off her powerss should act according to t the
advice off the Counciil of Ministeers. All execcutive actionns are taken in the namee of the Pressident
of India.

Treaty Making
M Poweer
As menttioned above, there is no law in India that restricts r the exercise off powers byy the
Governm ment of India under Artticle 73. This enables to executive to incur anny kind of treaty t
obligations. The legaal status of such
s internaational obligations in resspect of the Constitutionn can
be analyzzed by a stud dy of variouus judgmentss of the Suprreme Court. This peculiaar situation arises
a
due to the lack of cleear provisionns as to the status of interrnational treeaties in the Constitution
C n, that
is, regardding adoptio on of internnational law w into Indiann law. Articcle 51 obliggates respecct for
internatioonal treaties. Article 2533 confers poowers on thee Parliamentt to make laaws to impleement
internatioonal agreem ments. Here wew have to draw a distiinction betw ween formatiion of treatyy and
adoption of that intto domesticc legal systeem. Makingg laws is thhe exclusivee domain of the
legislaturre. Therefore, generally, ratificationn (approval) by the legiislature is neecessary to makem
the treatyy binding onn the State. Whereas,
W thee executive is the agenccy of the Staate, that can incur
legal oblligations on the State’s behalf. Butt, as alreadyy explained,, there are no n fetters onn the
executivee’s power in i respect ofo internatioonal law. Thherefore, thhe Supreme Court heldd that
internatioonal law fo orms part off municipall law exceppt when theey are inconnsistent withh the
provisionns of municipal law. Too sum up, the current positionp in India
I is thatt approval of
o the
Parliament is requireed only for treaties thatt affect the rights
r of thee citizens orr which requuire a
new, or change
c in an
n existing, muunicipal laww.

Capacityy to Maintain n Suits

Article 300 provides that the Govvernment off India can suue or be suedd in the nam me of the Union of
India.
Extra-terrritorial Jurissdiction
The Govvernment of India,
I as perr Article 2600, can enter into
i an agreeement with any
a other fooreign
State to undertake
u leggislative, executive or juudicial functiions in such territory.
The powers of the Paarliament:
14
The powwer of legislaating is dividded by territoorial extent and
a competeence over suubject matterr. The
Parliament can makee laws for thhe whole of IndiaI on subbjects specifiied in List I of Schedulee VII,
and the legislature
l of
o the any State can maake laws appplicable withhin the territtory of that State
over the subjects con ntained in List
L II. List III is designnated as Conncurrent Lisst over whicch the
Parliament as well ass the legislatture of the States
S can exxercise jurisddiction, subject to the ovverall
power off the Parliam
ment. Article 253 conferss exclusive powerp on thee Parliamentt to enact lawws to
implemennt internatio
onal agreemeents. The Artticle reads ass under:

“253. Legislation forr giving effect to internaational agreements – Nottwithstandinng anything in i the
foregoingg provisions of this Chappter, Parliamment has pow wer to make any law for the whole or o any
part of thhe territory of
o India for im
mplementingg any treaty,, agreement or conventioon with any other
country oro countries or any decission made at any confereence, associaation or other body.”
This pow wer overridess even the otther provisioons in Chaptter 1 of Part XI of the Coonstitution which
w
deals witth the distribbution of powwers betweeen the Unionn and the Staates, as explaained above. The
provisionns of Article 253, therefoore, gives poower to the Parliament
P too enact laws on matters listed
l
in List III of Schedule VII, in ordder to impleement international treatties, agreemeents, convenntions
or decisions taken in nternational conference, association or other boody. Hence, the power of o the
Parliament on matteers of international law can be stateed to be pleenary. Furthher, the residduary
power off legislating g is also witth the Parliaament. Thiss enables the Parliamennt to legislatte on
matters not
n listed in Schedule
S VIII.
The Parliiament also possesses thhe power to admit foreiggn territoriess into the Unnion by wayy of a
law (Article 2). But, if territoryy of India haas to be cedded, a constitutional am mendment wiill be
required,, as the Consstitution does not specifiically empowwer the Parliiament to do so.

VERY SH
HORT QUE
ESTIONS

Q.1Writee short note on:

(a) Pactaa sunt serven

nda
Ans. Paccta Sunt Serrvanda is a Doctrine boorrowed from m Roman law w and has been
b adoptedd as a
principlee growing trreaties in Innternational Law. Accorrding to Annzilloti, the binding forcce of
Internatioonal Law is based on thhe Fundamenntal principlees known ass Pacta Sunt Servanda Which
W
means thhat the agreeement entereed into by thet States must
m be folloowed by theem in good faith.
Accordinng to this do
octrine, the parties
p to a treaty
t are boound to obseerve its term
ms in good faaith.

The theory is one sid ded for manyy usages andd customary rules of law w. This theorry fails to exxplain
the bindiing force of customary rules
r of Interrnational Law w. Much of the code off rights and duties
d
are not prescribed but are followedf byy States inn their inttercourse with w each other.
o
Many em minent jurist classify the maxim Pactta Sunt Sevvanda as a general princiipal of law, but it
is any evvent not to bee doubted that the rule haas all the chaaracteristics of a Custom
mary rule.

(b) Jus cogens

c
Ans. A peremptory
p norm
n (also called
c jus coogens, Latin for "compelling law") is a fundam mental
principlee of internatiional law which
w is acceepted by thee internationnal communnity of states as a
15
norm froom which no n derogatioon is ever permitted.
p T
These normss rooted froom Natural Law
principlees, and any laaws conflictiing with it shhould be connsidered null and void. Examples
E incclude
various innternational crimes; a sttate violates customary international
i l law if it peermits or enggages
in slaveryy, torture, geenocide, warr of aggression, or crimees against huumanity.
Jus coggens and cusstomary intternational law are noot interchanngeable. Alll jus cogenns are
customarry international law throough their addoption by states, but noot all custom mary internattional
laws risee to the levell of perempttory norms. States can deviate
d fromm customary internationaal law
by enactiing treaties and
a conflictinng laws, butt jus cogens are non-deroogable.

(c )Rebus sic stantibus

Ans.Clau usula rebus sic stantibu us (Latin for "things thuus standing")), in public international
i l law,
is the leggal doctrinee allowing for
fo a treaty tot become inapplicable
i e because of o a fundam mental
change ofo circumstaances. The doctrine is essentially an "escape clause" to the generall rule
of pacta sunt servand da (promisess must be keept).
Because the doctrinee is a risk to the securityy of treaties, as its scopee is relativelyy unconfinedd, the
conditionns in which it
i may be invvoked must be b carefully noted.
The doctrine iss part of cuustomary innternational law but is also provided for inn the
1969 Vieenna Conven ntion on thee Law of Treaties,
T undder Article 626 (Fundam mental Changge of
Circumsttance). Altho ough the dooctrine is noot mentionedd by name, Article
A 62 provides
p the only
justifications for its invocation:
i t circumstaances that exxisted at the time of the conclusion of
the o the
treaty weere indeed objectively
o essential to the obligattions of treaaty, and the instance foor the
change ofo circumstan nces has hadd a radical efffect on the obligations
o o the treaty.
of
If the parrties to a treeaty had conntemplated forfo the occurrrence of thee changed ciircumstancess, the
doctrine does not app ply and the provision reemains in efffect. Clausuula rebus sicc stantibus reelates
to changeed circumstaances only iff they had neever been coontemplated by the partiees. That prinnciple
is clarifieed in the Fishheries Jurisddiction Case .
Althoughh it is clear that a funddamental chaange of circcumstances might justiffy terminatinng or
modifyinng a treaty, th he unilaterall denunciatioon of a treatyy is prohibiteed. A party does
d not havve the
right to denounce
d a trreaty unilateerally.

(d) Auto Limitation theory

t
Ans. Autto limitation is describedd as self conntrol achieved by manifestation of seelf will or geeneral
control. According to auto lim mitation theoory states were
w indepenndent, and free agents,, and
accordinggly they cou uld be boundd by their owwn consent. There was no n authority in existencee able
theoretically or pracctically to im mpose rules among thee various meember statess. This apprroach
found itss extreme ex xpression in the theory of auto limiitation, or seelf limitationn which decclared
that statees could onlyy be obligedd to comply with internaational legal rules if theyy had first aggreed
to be obbliged. The rules
r of inteernational laaw are adoppted to the extent whenn the states have
voluntariily restrictedd their sovereeignty. The sovereigntyy is absolutee in so far ass a state agreees to
its limitaation. Thus a state has freedom
f of action,
a exceppt in so far as it has aggreed to the rules
restrictinng that freedo
om.

16
(e)Conseent theory
Ans. Thee exponents of the doctrrine of conseent maintainn that the wiill of the Staate is the binnding
force of international
i l law, but thhey also put emphasis
e onn the way thee consent is expressed by b the
State. Thhe will of thee State is saiid to be exprressed in dommestic law through
t legisslation and in
i the
case of international
i l law througgh consent too internationnal rules. Thhe consent theory
t is divvided
into two forms, the actual conseent theory annd the theorry of hypothhetical conseent. According to
some theeorists internnational law is based on thet actual coonsent of thee States, it may
m be implieed by
way of cuustom or it might
m be exppressly showwn through trreaties or othher internatiional agreem ments.
The Statee’s will is manifested
m inn the form of
o conventioonal and cusstomary rulees and since they
have connsented to th hem, the rulees are bindinng upon them m, and nothiing can be laaw to whichh they
have not consented.

17
 U
UNIT-IV

LONG QUESTIONS
Q S

Q1. Whaat do you understand

u b “recogniition”? How
by w far do yoou agree wiith the view w that
recognitiion is merelyy declaration n of an existing fact?
Ans1. Foor an entity of being caalled a statee and to enjjoy rights, duties d and obligations
o u
under
internatioonal law, it is
i necessaryy that the exiisting state have
h given awareness
a off its capabiliity of
being a state. Such aw wareness byy existing staates is called recognitionn.
Recognittion: – The term recognnition as ann internationnal legal term m may be defined
d as under:
u
“The ackknowledgem ment or accepptance by thhe members of internatiional commuunity, that a new
state has acquired intternational personality,
p i said to be recognition.”
is
Essentiaals: – The maain essentials of recognittion may be given as undder:
1. That
T the comm munity ( of new
n state ) must
m be polittically organnized,
2. That
T it should d have controol over a deffinite territorry,
3. That
T the contrrol should teend towards permanencyy,
4. That
T such com mmunity muust be indepeendent. In otther words, the t attributess of statehoood are
people, territoory, Governm ment, and soovereignty.
Theoriess of Recogn nition: – Theere are mainnly two theorries of recoggnition whicch may discuussed
as under::
1. Constitutive
C Theory.
T
2. Declarative
D Theory
T or Evvidentiary Thheory.
3. Constitutive
C Theory: -O Oppenheim, Hegal and AnzilotiA aree the chief exponents
e off this
thheory. Accorrding to thiss theory the only
o certificcate to issue internationaal personalityy to a
new born statte is the connsent of the already exissting states. In other woords a new entity e
shhall only be called a statte when the existing stattes acknowleedges about its statehoodd. So,
thhe independeence of a neew entity shaall not amouunt it to be called a statee unless it haas not
reecognized by y the existinng states. Criiticism: – Thhe theory haas severely beenb criticizeed by
a number of jurists. Becauuse, at first instance
i thatt states do noot seem to acccept recognnition
ass a legal duty.
d And at a the second instancee, it createss many diffficulties whhen a
coommunity claims
c of beeing a new state
s and itss non-recognnition will, according
a too this
thheory, implyy that it hass no rights, duties and obligations
o u
under internnational law.. The
thheory is not correct
c in anny sense so shall
s be rejeccted.
4. Declaratory
D Theory: – TheT chief exxponents of this theory are a Hall, Waagner, Fisheer and
B
Brierly. Accoording to thiss theory, the statehood or o the authoriity of new Government
G i not
is
dependent on n the consentt of the existting state buut is based onn some priorr or existingg fact.
A
According th
he followers of this theorry, the recoggnition by thhe existing states
s is merrely a
foormal ackno owledgementt of the stateehood and not n the condiition. In factt the statehoood is
dependent on n the some prrior conditioons necessaryy for an entitty to be calleed as a state..

m: – This th
Criticism heory has alsso been critiicized, becauuse it is nott correct thaat in all casees the
existing fact shall im
mply the sttatehood, ratther some time the stattehood mayy be constituutive.
Conclusiion: – From m the abovee discussionn it may bee concludedd that both the theories are
18
insufficieent to reflecct the real explanation
e of recognition. In fact there shalll be intermeediate
course of approach between
b thee two theories to undersstand recognnition. Brieffly, speakingg, the
definitionn of recognition depends upon the mode,
m scope and nature of each casee. In other words,
w
recognitiion may be sometimes
s coonstitutive and
a sometimees declaratorry.

o Recognitiion: – Theree are two moodes of recoggnition, whicch may be giiven;

Modes of
1. De
D facto Reco ognition.
2. De
D jure Recognition.
3. De
D facto Recognition: – The provissionally grannt; that is suubject to fulffillment of all a the
atttributes of statehood, of recognittion to a neew state whhich has acquired suffiicient
teerritory and control oveer the same, but the reecognizing states s considders it not stable
s
m
more, is said to be De faccto Recognittion.
4. De
D jure Reccognition: – The grant off recognitionn to a new born state by an existing state,
w
when it consiiders that succh new bornn state has atttained all the attributes of
o statehoodd with
sttability and permanency
p , is called De jure Recoggnition.

De
D facto Recoognition De juure Recognittion

1. De factoo Recognitioon is provisional 1. It is absolute recognition

r granted to
recognitionn subject too fulfillmennt all a staate which have
h attaineed all the
attributes of
o statehood.. attribbutes of statehood, possesses
sufficient controll with permaanency.

2. De factto Recognittion creates few 2. Itt creates abbsolute rightts for the
essential rights annd duties for parties thereto.
recognized
d and recognnizing states.

3. De faacto Recognnition does not 3. It creates full diplomatic

d inntercourse
create fuull diplomaatic intercoourse betw
ween the parties.
between th
he parties.

4. The fulll diplomaticc immunities are 4. Heere in full diiplomatic relations are
not gran nted in this t De facto grantted to the reccognized staate.
Recognitio
on.

19
 5. Inn this case, thhe claim cann be made
5. In this case the recoggnized state. and cannot claaim for thee property
situaate in the recognizinng state’s
territtory

6. In such a case the official

o visitss and 6. Inn such a casse limitationns are not
dealings may be subjected to necessary.
limitationss.

Forms of Recognitio on: – There are followinng two formss for the declaration of reecognition.
1. Express
E Reco ognition.
2. Im mplied Reco ognition.
3. Express
E Reccognition: – The declaaration or notification
n by an existting state which
w
puurports the intention too recognize a newly boorn state, thhe recognition is said to t be
exxpress recog gnition. In other words, when a form mal and express declaraation or stateement
iss made and published
p orr sent to the opposite paarty, the recoognition is said to be exxpress
reecognition.
4. Im mplied Recognition: – When the existing e statee shows its intention off recognitionn of a
newly born sttate by somee acts, the reecognition iss said to be implied recoognition. In other
w
words, in casse of impliedd recognition no formall statement or o declaratioon is to be made,
m
raather the inttention of reecognition is to be colllected by thee acts or traansactions of o the
exxisting statee. So, if suchh acts purpoort intentionn of recognittion, it is saaid to be im mplied
reecognition.
Conditioonal Recogn nition: – Thee grant of reecognition by b an existinng state to a newly born state
stipulatedd on fulfillmment some coonditions inn addition to the requirem ments of staatehood is saaid to
be condittional recogn nition. As foor as, the reccognition is concerned
c it is itself connditioned witth the
fulfillmennt of the esssentials of staatehood, thaat is to say, thhe new statee must occuppy some terriitory,
has somee population n, governmeent and soveereignty. If these requirrements havve been com mplied
with by the new staate, then thaat should bee recognizedd by existinng states. But as for ass, the
recognitiion is concerrned it is usuually based on o some poliitical consideerations. So,, in the pursuuance
of these consideratio ons the exissting states sometimes declare recognition buut stipulated with
certain otther conditio ons for the reecognized sttate to be fullfilled.
Criticism m: – Many ju urists have criticized
c connditional reccognition. According
A to them recognnition
is a legall matter and it should noot be accomppanied with conditions other o than reequired by laaw. It
is due too this reason n that when in case of conditional
c r
recognition t recognizzed state if didn’t
the d
fulfill thee prescribed condition thhe recognitioon shall be validv and noot extinguishhed. Rather itt will
affect thee relations beetween the recognized
r and recogniziing states.
Withdraawal of Reco ognition: – Withdrawal
W of recognitioon may be explained
e as under:
1. Withdrawal
W l of de factoo Recognitioon: – Withddrawal of de facto recognnition is posssible
unnder internaational law only
o on the ground
g that if
i the recognnized state has
h been failled to
20
 fuulfill the pree requisite coondition for statehood. In I such a caase the recoggnizing statee may
w
withdraw om the recoognition by communicating a declaaration to thhe authorities of
fro
reecognized sttated or by a public statement.
2. Withdrawal
W l of de jure Recognition: – There are a differentt views abouut the withdrrawal
of de jure reccognition. ButB accordingg to the stricct letters of internationaal law and by b the
virtue of som me conventioons in this behalf,
b it is evident thaat the withddrawal of dee jure
reecognition iss not valid inn any case. Though
T recoognition is a political act but de jure but it
byy nature and d status it is a legal orieented. But soome jurists think
t that dee jure recognnition
m be withd
may drawn, becauuse it is a poolitical act. But
B in fact it is not so. Only
O those dee jure
reecognitions may be withdrawn
w w
where a statte subsequently loses any essential of
sttatehood. In such a casee the state withdrawing
w from recognition shall send his exxpress
inntention to thhe concernedd authority issue a publicc statement to t that extennt.
Recogniition of Gov vernment:
As we know
k that government
g is an essenntial of stateehood. By governmentt it is meannt the
administrrative and co ontrolling toool of a statee. Once a staate comes intto being, its governmentt may
change from
fr time to time. If the change of government takes t place in ordinary political
p life it the
existing states
s are nootrequired too recognize thet new govvernment. Buut sometimes the changee of a
governmment takes pllace as a reesult of a reevolution. Inn such a caase, it becom mes necessaary to
ascertainn that whetheer this new reevolutionaryy governmennt is;
1. caapable of haaving sufficieent control overo the peopple of the terrritory or nott, and
2. willing
w to maintain interrnational ressponsibilities and dutiess or not. Soo, if the exiisting
sttates consideer that this new
n governm ment is capabble of fulfilliing the abovve conditionss then
thhe new goveernment mayy be recognizzed.
The recoognition of new regim me means thhat the exissting states are satisfieed that the new
governmment has a capacity to control annd is willinng to perforrm internatiional dutiess and
obligation. The recog gnition may be either de facto or de jure.j And thhe intention may
m be expreessed
either byy sending a message
m to the
t authorityy of the new w governmennt or to declaare the samee in a
public sttatement. Th he modern practice
p is seemed to reeject the docctrine of reccognition off new
governmment. Now, th he some staates as USA A and UK annd others haave adopted a course to give
assent to the above prep conditionns for a goveernment merrely by extennding relatioon or cessation of
relations with such government.
g Non-recognnition of government doeesn’t affect the t recognition of
a state. A state rem mains recognnized the onnly consequeence of the non-recognnition of the new
revolutioonary govern nment is thee suspensionn of the bilatteral relationns between the t existing state
and the new
n governm ment. And as a soon as the t said govvernment is to be replacced by any other
governmment, if recog gnized the reelations shalll be re-conttinued on thhe same patttern as were with
the previious governm ment of the revolutionary
r y one. The consequence
c es of the recoognition of a new
governmment means to keep thhe relations in the sam me manner as were with w the prevvious
governmment.

Recognittion of Belliigerency: –
Belligereency is the trreatment to consider a civil
c war as a real war between
b twoo rival poweers by
other exiisting states. The recognnition by the existing staates of the reebels in casee of civil warr in a
belligerennt state is saaid to be reccognition off belligerencyy. In other words
w when a state goess in a
state of belligerency
b where the rebels
r have a considerabble control over
o a substaantial territoory of
21
nation, the
t rebels may m be recoognized by the existingg state. Succh recognitioon is said to t be
recognitiion of belligeerency.
Conditioons: – Theree are following conditionns by the moovement of rebels r to reccognized by other
states:
1. That
T the mov vement shall be of a geneeral characteer.
2. That
T rebels sh hall have in possession
p a substantial part of the national
n terriitory.
3. That
T they arre giving reespect and bind themsselves for the t warfare laws and other
innternational duties.
4. That
T they havve a proper force. If thee above condditions have been fulfilleed by rebelss then
thhey may reco ognized by other
o existing states, andd shall enjoy the international rights.
Recognittion of Insu urgency: –
The recognition by existing
e statees the de factto authority over a largee territory off the rebels iss said
to be inssurgency. In case of insurgency thee rebels or thhe insurgentts occupy a large part of o the
national territory wh hich was foormerly govverned by thhe parent goovernment. And if theyy are
capable to t control ov ver that occuupied part thhen the existting states may
m recognizze it. Condittions:
Prior to recognize
r the insurgencyy it is necesssary for the recognizing
r state to satisfy the folloowing
conditionns; Firstly, when
w insurggents occupies a consideerable parennt state’s terrritory, Secoondly,
they havee a support from
f the maajority of thee citizens off the parent state,
s Thirdlyy, they are acting
a
under a proper com mmand and, Fourthly, thhey have goood control over the occcupied territory.
When thee in case of an insurgenccy the abovee requiremennts have beeen complied with then it is on
the discreetion of the existing statte weather too recognize or not. The recognition of an insurggency
is the firsst step towarrds the diploomatic relations with theeir governmeent. But if thhe insurgenccy did
not succeeed in their attempt afteer recognitioon by the anny existing state, the reccognition shaall be
deemed to t have been n extinguisheed.

Q2.Whatt is interventtion under internationa

i al law? What are the groounds of Inttervention?

Ans2. Inntervention is dictatoriaal interferencce by a statte in the afffairs of anotther state foor the
purpose ofo maintainiing or alterinng the actuaal condition of o things. Thhe interventiion prohibiteed by
internatioonal law is actually
a definned as dictaatorial interfeerence by a state in the affairs
a of annother
state. A Dictatorial
D interference is an interfeerence by thhe threat or use
u of forcee...... it is evvident
that geneeral International Law does
d not proohibit interveention underr all circumstances: forrcible
interferennce in the sp
phere of interrest of anothher State is permitted
p as a reaction against a viollation
of Internaational law.

2) Provission in the United

U Nations Charterr- Article 2 of o the Unitedd Nations chharter impliccitly
prohibits intervention n on the partt of Individuual State wheen it ordains the memberrs to refrain in i
the Internnational relaations from thhe threat or useu of force against the territorial
t integrity or
political independencce of any Staate. Internattional Law, however,
h perrmits interveention as
dictatoriaal interferencce by one Sttate in the afffairs of anotther State, "oonly as reaction of formeer
against violation
v of itts right by thhe latter. Suuch a doctrinne is possiblee only if
thebellumm justum priinciple is reccognized.

22
3) Kindss of Interven
ntion

There aree three differrent kinds off intervention which are Internal, Exxternal and Punitive.
P

(I)Intern
nal -

t community in anotheer
It is the interference by one statee between thhe disputing sections of the
State eithher for protecction of legitimate Goveernment or thhe insurgentt. In the yearr 1936 number of
States inttervened in the
t civil warr of Spain.

(II)Exterrnal -

It is the intervention by one statee in the relatiions generallly of the hosstile relationss of other Sttates.
It is in otther words, an
a intervention in the Fooreign Affairrs of anotherr State such intervention
i
being dirrected againsst hostile relaations of succh State. Thhis kind of inntervention iss tantamounnt to
the declaaration of Waar. The entryy of Italy in the
t Second World
W War siding
s with Germany
G against
Great Briitain provideed an exampple of externaal interventioon.

(III) Punitive -

It is a punnitive measu
ure falling shhort of War and a is in the nature of a reprisal for an
a injury
suffered at the hands of another State.
S It is frrequently carrried out by stronger Nattions towardds
weaker nations.
n A Paacific blockeed to compell the observaance of Treatty engagemeents or to reddress
some breeach of the laaw of affords an illustrattion of this tyype of intervvention.

Groundss for Interveention:

1) Self-P
Preservation
n-

The Suppreme intereest of the Staate overrides the law. Thhe right of self-preservatiion is more
sacred thhan the duty of respectingg the indepeendence of otther State. A state has riight to interffere
in the afffairs of anoth
her State whhere the secuurity and immmediate interrests of the former
f are
comprom mised. Interv ventions, therrefore, in ordder to ward off
o imminennt danger to the t interveniing
State are justified by the force off Circumstannces. The dannger must bee direct and immediate, not n
contingennt and remotte.

2) Enforrcement of Treaty
T Righ
hts -

A State is justified in
n interfering in the affairrs of another State if the provisions of
o any treaty
oblige the former to preserve
p the independennce or neutraality of the laatter. Such inntervention does
d
not violaate any right of independdence becausse the State thhat suffers has
h concededd such libertyy of
interferennce by treaty
y.

3) Groun
nds of Hum
manity -
23
 Anotherr justification
n is based onn the ground of humanityy. Lawrence observes thhat in the opinion
of many writers such h interventionns are legal, but they cannnot be brouught within thhe ordinary rules
of Internaational Law,, which doess not imposee on States thhe obligationn of preventiing barbarityy on
the part of
o their neighhbors.

nce of Powerr -
4) Balan

The Docttrine of the necessity

n of a balance off power, observes Fenwiick, betweenn the leading
f-protection, dominated the
States as the basis off mutual self- t internatioonal relationns of the
nineteentth century. Most
M of the interventionss in the Balkkan Peninsulaa should be regarded
r as
o balance off power. Inteervention onn the ground of
interventtions in conssonance withh the policy of
preventioon of the balance of prevvention has been
b condemmned by jurissts of all agees.

5) Protecction of Perrsons and Prroperty -

Protectioon of the perssons, Properrty and intereest of its natiionals may provide
p justiification for
interventtion. The neccessity for prrotection maay arise due to t gross injuustice or due to injury caaused
by unfairr discriminattion.

6) Intervvention in Civil
C Wars -

With the establishmeent of the Unnited Nationss, there is noo justificationn for interveention by thee
Individuaal States in the
t civil wars of other staates. The Charter
C of Unnited Nations imposes ann
obligation upon Statees to refrain in the internnational relattions from thhe threat or use
u of force
against thhe territoriall integrity or political inddependence of any State.

7) Colleective Interv
vention -

Collectivve interventioon at the preesent time is in pursuance of the provvisions of thhe Charter off the
United Nations,
N viz the
t enforcem ment action under
u the autthority of thee United Nattions Securitty
Council ini accordancce with Chappter VII of thhe Charter.

8) Otherr Grounds -

a) If the State subjecct of the interrvention hass been guiltyy of a gross breach
b of Intternational Law
L
in regardd to the intervvening Statee, for examplle -If it has itself unlawfu
fully intervenned.
b) Self Defence,
D if in
ntervention iss necessary tot meet a daanger of an actual
a armed attack.
c) In the affairs of a protectorate
p under its doominion;
d) To prootect the righhts and intereests and the personal saffety of its cittizens abroadd;

SHORT QUESTION
N

24
Q1. Desccribe in brieef all the methods of acquiring an nd losing staate territory in internattional
law.
Ans1. Soovereignty in regard too a territoryy is knownn as territorrial sovereiggnty. Territorial
Sovereiggnty is the rig ght of a Statte to exercisee over its ow wn territory, to the excluusion of any other
States, thhe functions of a State. It I has a posittive and a negative aspeect. The firstt aspect relattes to
the excluusivity of thee right of the State withh regard to itts own territtory, while the t second aspect
a
refers to the obligatio on to protectt the rights of
o other Statees.
A State exercises
e itss territorial sovereignty
s within its boundary. Booundary is an a imaginaryy line
that delinneates the teerritorial lim mit of a State. Boundaries are of threee dimensionns. They incclude
the State land and th he maritime domain
d of itts internal waters
w and terrritorial sea,, the airspacee and
its subsooil. They aree either naturral topograpphical, havinng physical distinguishab
d ble features such
as mounttains, rivers or lakes, orr imaginary and a artificiaal such as linnes of attitudde and longiitude,
surveyor lines or posts. Both tyypes have eqqual legal efffects and ussually basedd upon treatiies or
historicall title.
The soveereignty of a coastal Statte extends, beyond b its booundaries, over its contiiguous zone,, over
its continnental shelf and over itss exclusive economic
e zoone. Moreover, the sovvereignty of State
whether coastal or land-locked
l extends oveer its nationnal vessels. The sovereeignty of a State
extends also
a to its naational aircraafts.
The rightt to territoriaal sovereigntty enables a State to exeercise the fulllest measures of sovereeignty
powers overo its land territory, larrge measuress over its terrritorial wateers and air sppace, and sm maller
measuress over its co ontinental shelf and adjaacent area. In I addition, it enables a State to exeercise
sovereignnty over vessels and airccrafts that flyy its flag or carry its nattionality, whhich are treatted as
its territoory.
Corollaryy to the righ hts generatedd from terriitorial sovereeignty, theree are duties imposed uppon a
State. Thhese duties involve
i the obligation
o too protect withhin its territoory the rightts of other States,
together with the righ hts that eachh State may claim
c for its nationals in foreign territory.
Many treeaties and co onventions have
h been cooncluded to regulate
r Statte sovereigntty over landd, sea,
airspace and outer space. s Overr airspace and
a outer sppace, there are a the 19444 Conventioon on
Internatioonal Civil Aviation (thhe Chicago Convention), the 19663 Treaty Banning B Nuuclear
Weapon Tests in the Atmospheere, in Outerr Space andd under Watter, and the 1967 Treatty on
Principlees Governing g the Activiities in the Explorationn and Use of Outer Spaace including the
Moon annd Other Celeestial Bodiess (the Outer Space Treatty).
Over thee sea, there is the 1982 Conventionn on the Laaw of the Seea, which reeplaced the 1956
Conventiions related d to the Teerritorial Sea and the Contiguous Zone, the High Seass, the
Continenntal Shelf, and a Fishing and Conserrvation of liiving Resouurces of the High Seas. In
Additionn, there is thee 1959 Antarrctica Treatyy.
Since thee rights generated from the concept of territoriial sovereignnty can onlyy be exercised in
relation tot a territoryy, it is necesssary to knoww how a territtory can be acquired.
a

Acquisittion of Terriitory-
The inteernational ruules related to
t territorial sovereignty are rooted in
i the Romann Law proviisions
governinng ownership p and possession. In adddition, the classificatioon of the different moddes of
acquiringg territory is a direct desccendant of thhe Roman ruules dealing with propertty.
25
Territoryy is the space within whhich the Statte exercises sovereign auuthority. Tiitle to territoory is
acquired either throu ugh the claim m of land noot previouslyy owned orr through the transfer off title
from onee State to another. Title acquired in the first cateegory is callled original title,
t while ini the
second category
c is called
c derivvative title. Modes of original acqquisition of territory incclude
occupatioon, prescripttion and accrretion. Derivative modees include ceession (volunntary or forcible),
and conqquest and ann nexation. All these moddes are dealt with in the following
f :
(1) Occcupation
Occupaation is an orriginal modee of acquisittion by a Staate of a title to a territorry. It impliees the
establishmment of sov vereignty oveer a territoryy not under the authorityy of any othher State whhether
newly disscovered or abandoned by b the State formerly in control .
For thhe title acquuired throughh occupationn to be finall and valid under
u Internnational Law w, the
presence and control of a State over the cooncerned terrritory must be effective. Effectiveeness
requires on the part ofo the Claim mant State tw wo elements:: an intention or will to act as soverreign,
and the adequate
a exeercise of sovvereignty. Inntention mayy be inferredd from all thhe facts, althhough
sometimees it may be b formally expressed in i official notifications
n to other States. Adeqquate
exercise of sovereig gnty must be b peaceful, real, and continuous.
c This elem ment of phyysical
assumptiion may be manifested by an expliicit or symbbolic act by legislative or o administrrative
measuress affecting the claimedd territory, or by treatties with other States recognizingg the
sovereignnty of the Cllaimant Statee over the paarticular terrritory or dem
marcating bouundaries.
Occuppation was often precedded by disccovery that is the realizzation of thhe existence of a
particularr piece of lan
nd. In the eaarly period ofo European discovery, in i the Fifteennth and Sixteeenth
Centuriess, the mere realization
r o sighting was
or w sufficiennt to constituute title to teerritory. As time
passed, something more m was required
r annd this tookk the form of symboliic act of taaking
possessioon, whether by raising of o flags or byb formal deeclarations. By the Eigghteenth Cenntury,
the effecttive control came to be required
r togeether with diiscovery to constitute
c tittle to territorry.
(2) Presccription
Prescripttion is a mo ode of estabblishing title to territoryy which is subject
s to thhe sovereignnty of
another State
S throughh peaceful exercise
e of de
d facto soveereignty oveer a long perriod of time. It is
the legitimization of a doubtful tiitle by the passage of tim me and the presumed
p acqquiescence of o the
former soovereignty. It differs froom occupatiion. It relatees to territorry which hass previously been
under thee sovereigntty of anotheer State. However,
H botth modes arre similar siince they reequire
evidencee of sovereign nty acts by a State over a period of time.
t
A titlee by prescriiption to be valid underr Internationnal Law, it is required thhat the lenggth of
time musst be adequaate, and thee public andd peaceful exxercise of de d facto soveereignty muust be
continuouus. The Po ossession of Claimant StateS must be public, in the sense that t all interrested
States caan be made aware
a of it. It
I must be peeaceful and uninterrupte
u ed in the sensse that the foormer
sovereignn must consent to the neew sovereignn. Such connsent may bee express or implied froom all
the relevant circumsttances. Thiss means that protests of whatever meeans by the former soveereign
may com mpletely blocck any claim of prescripttion.
As thhe requiremeent of adeqquate length of time foor possessionn is concerrned, there is i no
consensuus on this reg gard. Thus, the adequaccy of the lenggth of periodd would be decided
d on a case
by case basis.
b All the
t circumsttances of thee case, incluuding the naature of the territory annd the
absence oro presence ofo any comppeting claimss will be taken into conssideration.
(3) Accrretion
26
 Accretioon is a geogrraphical proccess by whicch new land is formed mainly m througgh natural caauses
and becoomes attacheed to existingg land. Exam mples of succh a process are the creaation of islannds in
a river mouth,
m the drrying up or the
t change in the coursee of a bounddary river, orr the emerginng of
island aft
fter the erupttion of an unnder-sea vollcano. Wheen the new land comes into i being within
w
the territory of a Staate, it forms part of its territory,
t andd this causess no problem m. However, in
case of a drying or sh hifting of a boundary
b rivver, the general rule of Innternational Law is that if the
change isi gradual an nd slight, thhe boundaryy may be shhifted, but if i the changge is violentt and
excessivee, the bounddary stays at the same point along thee original rivverbed.
Where a new territo ory is addedd, mainly thrrough naturaal causes, too territory already
a undeer the
sovereignnty of the accquiring Statte, the acquiisition and tiitle to this teerritory needd no formal act
a or
assertionn on part of thhe acquiringg State.

(4) Cesssion
Cessionn of territory y is a transfeer of sovereiignty from one o sovereiggn to anotherr. Its basis liies in
the intenttion of the concerned
c paarties to trannsfer sovereignty over thhe territory inn question, anda it
rests on the principlee that the right of transfferring its teerritory is a fundamentaal attribute of o the
sovereignnty of a State. It occurs by means of an agreemeent betweenn the ceding and a the acquuiring
States. TheT cession may compriise a portionn of the territtory of the ceding c State or the totaliity of
its territoory. In the laatter case, thhe ceding Staate disappearrs and mergees into the accquiring Statte.
Cessioon of territo ory may bee voluntary as a result of a purchhase, an excchange, a gift, g a
voluntaryy merger, or any other vooluntary mannner, or it may m be made under comppulsion as a result r
of a warr or any usee of force against a the ceding
c Statee. History provides a great numbber of
exampless of cession. Examples of voluntaryy cession arre the Unitedd States’ puurchase of Alaska A
from Russsia in 1867,, the exchannge of a portiion of Bessaarabia by Roomania to Ruussia in exchhange
for Dobrrudja in 1878 8, the Francce’s gift of Venice
V to Itaaly in 1866, and the voluntary mergger of
the Repuublic of Texaas into the UnitedU States in 1795. Examples
E off cession as a result of a war
are the ceession to Geermany by France F of thee region of Alsace-
A Lorrraine in 18711, and the merger
m
of Korea into Japan in i 1910.
(5) Conqquest and An nnexation
Conquuest is an acct of defeatiing an opponnent State and a occupyinng all or parrt of its territory.
Annexatiion is the ex xtension of sovereignty
s o
over a territoory by its innclusion into the State. Under
U
traditionaal International Law, coonquest did not n of itself constitute a basis of titlle to the lannd. It
was mereely a military y occupationn. If followeed by a form mal annexatioon of the connquered terriitory,
then it wasw called subjugation
s and could be considerred a valid derivative title to territory.
Accordinngly, conqueest followedd by annexaation constituuted a mode to transfer the title of o the
conquereed territory to the conqueeror. Like coompulsory cession, c conqquest followed by annexxation
would traansfer territo ory by comppulsion, but unlike
u cessioon, it involveed no agreem ment betweeen the
concerneed parties.
Whilee the acquisiition of terriitory throughh conquest followed
f by annexation was an acceepted
mode off acquiring tiitle to territoory under trraditional Innternational Law, L it is no
n longer leggal at
modern times.
t The acquisition
a o territory thhrough the use
of u of force is outlawed by b paragraphh 4 of
article 2 of the Chartter of the United Nationns, which obbliged the member m Statees to refrain from
the use ofo force again nst the territtorial integritty or politicaal independeence of any State. This same
principlee is reaffirmeed in the 19770 General Assembly
A “D
Declaration on o Principles of Internattional
27
Law Conncerning Friiendly Relattions and Co-operation
C n among Staates in Accoordance withh the
Charter of
o the United d Nations”. This Declaration adds thhat the territoory of a Statte shall not be b the
object off acquisitionn by anotheer State resuulting from the threat or o use of foorce, and thaat no
territorial acquisition
n resulting frrom such actt shall be reccognized as legal.
l
Although today conquest
c is not
n a legal mode
m of acqquiring title to territory,, it does givve the
victor certain rights under Internnational Law w as regards the occupieed territory, such as righhts of
belligerennt occupatio on. The terrritory remaains the leggal possessioon of the ousted o soveereign
because sovereignty does not paass by conquuest to the occupying
o Sttate, althouggh it may paass in
certain caases where the
t legal stattus of the terrritory occuppied is in disppute prior too the conquesst.

At preesent times, acquisition of territory following a war wouldd require furtther internattional
action inn addition to o internal leggislation to annex. Succh further innternational action would be
either a trreaty of cesssion by the former
f soverreign or interrnational reccognition.
Modeern examples of annexaation follow wing conquesst are Israell’s annexation of the GolanG
Heights and
a the Eastt Jerusalem, and Iraq’s annexation of Kuwait in 1990. In case of the Iraqi
annexatioon, the Seccurity Counncil adoptedd the resoluution 662 of o 1990 decclaring thatt this
annexatioon “has no legal validityy and is conssidered null and void”, and a called uppon all Statees not
to recognnize this ann nexation andd to refrain from actions which migght be interppreted as inddirect
recognitiion.
Correspoonding the modes
m of acqquiring territory, there are
a modes off losing it. Territory maay be
lost by express
e declaaration or coonduct suchh as a treaty of cession or acceptancce of cession, by
conquestt, by erosion or natural geographic
g acctivities, by prescriptionn or by abanddonment.

Q2. Defin ne the Sate succession??

Ans 2. Suuccession is merger or absorbtion
a off one state byy another staate or states.. State succeession
is distingguished fromm govt. succeession. Whenn successionn takes placee then a statee loses itselff fully
or a partt of its terriitory while ini case of govt.
g succession only thhe organizattion of a goovt or
constitutiional structuure changes.
The rule of statte successionn was incorpporated from m the Romann Law by Grrotius. In Rooman
law whenn a person diesd his righhts and dutiees are succeeeded by his successor. A state mayy lose
part of its territory, or
o it may losse all of it. Loss
L of territoory may resuult in the ennlargement of o one
or more states. When n a succession situationn arises, the point
p of chieef legal inteerest is the effect,
e
on the intternational rights
r and obbligations off the state or states conceerned.
Kinds off Succession n: State succcession aree of two typpes (1) Univversal Succeession (2) Partial P
Successioon
(1) Universal Successsion: If thee legal identtity of a com mmunity is completely
c d
destroyed theere is
said to beb universall successionn of states. Universal succession
s t
takes place when a staate is
completeely absorbed d by anothher, either through
t subbjugation orr through vooluntary meerger.
Universaal succession n takes place under the foollowing circcumstances
(a) Whenn the territory y of a state is
i forcibly annnexed by otther state.
(b) Whenn a state volu untary mergees into one or o several staates.
(c) Whenn one state iss divided intoo several staates and seveeral states are formed.

28
(2) Partiaal Successionn: When as a result of ciivil war or war
w of liberattion, a part of
o state breakks off
and takees up an in ndependent position. Paartial succession takes place undeer the folloowing
circumstaances
(a) Whenn a part of thhe state revolts and afterr achieving freedom
f becoomes a sepaarate internattional
person.
(b) Whenn a part of sttate is ceded to another state.
s
(c) Whenn a state acceepts the suzeerainty or becomes a prootectorate of another statee.
Rights an nd Duties arrising out off State succeession:
When a state
s takes th
he place of another
a state following riights and dutties arise.

(1) Political Rights and Duties:: No Successsion takes place in resspect of pollitical dutiess and
on state is noot bound by the treaties of
rights. Thhe successio o peace or neutrality
n enntered into by
b the
extinct sttate.
(2) Locaal rights an nd duties: Inn respect of o land, riveers, roads, railways etc., thereforee the
succeedinng state succceeds the rigghts and duties of the forrmer state.
(3) Debtss: It dependss on the discrretion of succceeding statte whether too pay or not to pay the public
p
debts of the
t former sttate.
(4) Natioonality: Thee nationals ofo the formeer state lose their nationnality at the extinction ofo the
state andd becomes the nationals ofo new state..
(5) Lawss: As far as the law of the former states are concerned,
c c
civil law conntinues untill it is
changed by the succeeeding state.
(6) Publiic funds and public propperty: The suuccessor statte takes overr the public funds and public
p
property of the predeecessor state.

Q3. Exp plain the meeaning and classificatioon of Diploomatic Agen nts. Discusss the immun nities
and privvileges of Diiplomatic Aggents?
ANS. A uniform claassification for f diplomatic represenntatives was introduced by the Treaaty of
Vienna of o 1815 and the supplem mentary protocol signedd in Aix-la -Chapelle
- (A
Aachen) in 1818.
1
The classification co omprised thee following classes: (1)) ambassadoors, legates, and nuncioss, (2)
envoys extraordinary y and other persons
p accreedited to thee head of statte, (3) minissters residentt, and
(4) charggés d’affairess. The privilleged positioon of diplommatic representatives of the first classs was
established at this timme. Initiallyy only the grreat powers, the membeers of the Hooly Alliancee, had
the right to appoint ambassadors
a .
During thet 19th and early 20thh centuries, the distincction betweeen ambassaddors and ennvoys
graduallyy was elimin nated and thhe class of ministers
m ressident disapppeared entirrely. The Viienna
Conferennce of 1961 on diplomaatic relationss and immunnities establiished a new class system m for
diplomattic representtatives. Acccording to article
a 14 off the Viennna Conventioon, the headds of
missions are divided d into three classes:
c (1) ambassadorss and nuncioos accreditedd to the heaads of
states, annd other headds of missioons of equivaalent rank, (2) envoys annd internunccios accreditted to
the headss of states, an
nd (3) charggés d’affairess accredited to the ministries of foreiign affairs.
As a rulee, states exchange diplomatic repressentatives off the same class;c the claass is determ
mined
by agreeement between the staates. In pracctice, accreditation of ambassadorrs predominnates.
Permanennt chargés d’affaires
d are usually apppointed whhen relationss between sttates are nott well
developeed or are deteriorating
d g. Contempporary internnational law w does nott recognize any
29
distinctioon between the
t heads off diplomatic missions off the same or o different classes
c otherr than
distinctioons of seniorrity and etiquuette.
The servvice rank of a diplomaticc representattive is technnically distinnct from the diplomatic class
of the mission;
m how
wever, as a ruler they cooincide in practice.
p Dipplomatic rannks are reguulated
accordingg to the dommestic law off each state.
Section 15(1) of thee Diplomaticc Immunitiess and Privileeges Act 37 of 2001 creaates an offennce if
anyone obtains
o or ex
xecutes any legal processs against diiplomats. It is noteworthhy that a parrty to
such procceedings, an n attorney annd the Sherifff are speciffically referred to thereinn. Should s 15(1)
be contraavened or if any other offfence is com mmitted resuulting in the infringemennt of a diplom mat’s
personal inviolability y or that of their
t propertty or residennce, the offennder could, on
o convictioon, be
fined andd/or imprison ned for up too three yearss.

The Viennna Conventtion on Dipllomatic Relaations of 19661 applies too all diplomaatic missions and
memberss of such miissions. Thee VCDR proovides a com mplete frameework for thhe establishm ment,
maintenaance and term mination of diplomatic relations.
r M
Moreover, it not
n only coddifies pre-exiisting
principlees of customaary internatiional law rellating to dipllomatic imm munity, but reesolves poinnts on
which diifferences am mong states had previouusly meant that there was w insufficiient consenssus to
create a rule of custtomary interrnational law w. The Preaamble of thee VCDR alsso states thaat the
purpose of diplomattic immunitty is to ‘enssure the effficient perfoormance of the functionns of
diplomattic missions as represennting States’’. Its main aim a is to shhield diplom mats from acctions
interferinng with the performance
p of their offiicial duties inn the receiviing state.
State imm munity
The docttrine of statte or sovereeign immuniity refers too the immunnity, which one state ennjoys
within thhe jurisdictio
on of anotherr state, whichh flows from m the public internationaal law principple of
the equallity of soverreign states or o par in parrem non habbet imperium m. This meanns that a sennding
state, whhich incurred d legal liabillity in the receiving statee, cannot unnder certain circumstanc
c es be
summoneed before thee receiving state’s
s courts to be judiccially forced to dischargee its liabilityy. The
majority of states nowadays
n a
apply the doctrine
d of restrictive sovereign im mmunity, which
w
distinguishes betweeen non-soverreign acts, such s as commmercial trannsactions (soo-called actaa iure
gestioness) and acts performed
p in the exercisee of sovereiggn authority – the so-called ‘acts of state’s
or acta iuure imperii.
Immunityy enjoyed by y diplomaticc agents, connsular officerrs and other mission perssonnel

Diplomattic immunity y is dealt wiith in art 22 and 29 to 40 of the VCDR. These provisions
p confer
different degrees of immunity
i onn persons connected withh a diplomattic mission according
a to their
status annd function. The VCDR R distinguishhes between diplomatic agents (ie, headsh of miission
and mem mbers of theirr diplomaticc staff) the addministrative and techniical staff of the
t mission, their
respectivve families annd service sttaff of the mission.
m
Diplomattic agents
The highhest degree of o protectionn is conferreed on diplommatic agents and is virtuually absolutte. In
the case of diplom matic agents, the VCDR substantiially reprodduces the prrevious rulees of
customarry internatio onal law, by which a dipplomatic ageent was imm mune from thhe jurisdictioon of
the receivving state, namely –
30
in respecct of things done
d in the course of theiir official funnctions for an
a unlimitedd period; andd
in respecct of things done
d outside their officiaal functions for
f the durattion of his mission
m only.
Thus, artt 31.1 conferrs immunity on currentlyy serving dipplomatic ageents in respect of both prrivate
and officcial acts, subjject to speciific exceptionns for three designated categories
c off private actss (see
art 31.1(aa) to (c)). Diiplomatic agents enjoy thhe followingg immunity –

personal inviolability y (art 29);

inviolabiility of their official residdence (art 222.1 and 30.1));
inviolabiility of their papers, correspondence and propertyy (art 30.2);
immunityy from the criminal, civiil and adminnistrative jurisdiction of the receiving state (art 31.1);
3
and
non-commpellable witn ness (art 31.2).
As a resuult, the reprresentatives of the receiving state cannot arrestt or detain diplomatic
d agents
and theirr residences, property or o persons area immune from searchh, requisitioon, attachmeent or
executionn due to theeir personal inviolabilityy. A summonns or warrannt cannot bee served on them
personallly, nor on th heir residencces, or the mission.
m Alsoo, they cannoot be chargeed in the crimminal
courts, nor
n sued in the civil or administrativ
a ve courts off the receivinng state. Thee reason: What
W a
diplomattic agent doees in the courrse of his offficial functioons is done ono behalf off the sendingg state
and is ann act of the sending statee, although itt may give rise
r to personnal liability ono the part of
o the
individuaal agent. Any y acts that a diplomatic agent perforrms in a perssonal or nonn-official cappacity
are, howeever, not actts of the state that emplooys them. Thhe right to asssert immuniity in this reespect
can only be justified d on the pracctical groundd that their exposure
e to civil
c or crim
minal proceeddings
in the recceiving statee, irrespectivve of the jusstice of the underlying allegation, could
c impedde the
functionss of the misssion.

Diplomattic agents’ family

fa membbers
Diplomattic agents’ family
f mem
mbers forminng part of thheir househoolds will in tterms of art 37.1
enjoy the same imm munity. Thee justificatioon for it is to protect diplomats from
f harasssment
particularrly by mean ns of frameed or politiccally motivaated legal prroceedings so that theyy can
perform their
t functio
ons whateverr the situation in the receeiving state.

Administtrative and teechnical stafff

Memberss of the adm ministrative and techniccal staff of the missionn, together with
w their faamily
memberss, enjoy theirr immunity ini terms of art
a 37.2 incluudes –

personal inviolability y (art 29);

inviolabiility of their private residdence (art 300.1);
inviolabiility of their papers and corresponden
c nce (art 30.22);
immunityy from the crriminal jurissdiction of thhe receiving state (art 31.1);
immunityy from the civil
c and admministrative jurisdiction
j of the receivving state with
w regard too acts
performeed in the cou urse of their official
o dutiees (art 31.1);; and
non-commpellable witn ness (art 31.2).
It is eviddent that theese memberrs enjoy thee same imm munities as diplomatic
d a
agents exceppt for
immunityy from the civil and addministrativee jurisdictionn regarding acts perform med ‘outsidde the
31
course off their dutiess’. They can never be tried on a crim
minal charge in any circuumstances (uunless
their imm
munity is exp pressly waivved), but theyy may be sueed on personnal matters.

Service staff
s
Memberss of the serv vice staff of the mission who are noot nationals of
o or permannently resideent in
the receivving state on nly enjoy im
mmunity in reespect of actts performedd in the courrse of their duties
d
(art 37.3)) – this is kn
nown as funcctional immuunity.

Consularr officers
The imm munity that consular
c offficers enjoy in terms off internationnal law are regulated byy the
Vienna Convention
C on Consulaar Relationss of 1963 (V VCCR). Thhese officerss are attacheed to
consular posts. Unlik
ke the almosst absolute immunity,
i w
which diplom
matic agents and their faamily
memberss enjoy in terrms of the VCCR,
V consuular officers only enjoy functional
f im
mmunity whiich is
limited too –

immunityy from arrest or detentioon pending trrial except inn case of a grave
g crime and pursuannt to a
court ordder (art 41);
immunityy from the ju urisdiction of
o the judiciaal or adminiistrative authhorities of thhe receiving state
in respecct of acts performed in thhe exercise of
o consular functions
fu (artt 43.1); and
although they may be b called on to attend as witnesses inn the coursee of judicial or administrrative
proceedinngs, no coerrcive measurre or penaltyy may be appplied to them m if they deccline to do soo (art
44.1).
It is worrth noting th hat the mem mbers of thee family of consular offficers form ming part of their
househollds do not en njoy any imm munity whatsoever.

Intergoveernmental orrganizations
The imm munities th hat officialss attached to represeentative off ffices of inntergovernm
mental
organizattions. With the
t exceptioon of the moost senior reppresentatives of such orrganizations,, who
usually enjoy
e full dip
plomatic immmunity, thesee officials onnly enjoy funnctional imm
munity.

Abuse off status by diiplomats

Despite their
t immun nity, diplomaats are undeer a duty to respect the laws and reegulations of
o the
receivingg state (art 41.1
4 of the VCDR
V and art
a 55.1 of thhe VCCR). Where
W any law
l or regullation
has been breached, th he receiving state has thee following remedies:
r

Request ana official ap

pology from
m the sendingg state by waay of note veerb ale.
Request the sending state to waive the offennding diplom mat’s immunnity (s 8 of thhe Act, readd with
art 32.1 and
a 32.2 of VCDR
V or artt 45 of VCCCR).
Request the
t sending state to recaall the offendding diplomaat.
Declare such
s diplomat undesirabble or personna non grata.
Deregisteer the diploomat from accreditationn and requeest their im mmediate deeparture from m its
territory.

32
Since all accredited diplomats
d arre registeredd with the Department of o Internationnal Relations and
Cooperattion (DIRCO O) (s 9(2) off the Act), itts Chief of State
S Protocool is empow
wered by s 9((3) to
issue a certificate
c on
n request to clarify wheether a person enjoys im mmunity. Before
B takingg any
measuress against a person
p who might enjoyy immunity or inviolabillity, attorneyys are advissed to
approachh the Directoorate: Diplommatic Immuunities and Privileges
P off DIRCO forr confirmatioon of
their statuus.

HORT QUE
VERY SH ESTION

Q1. Natioonality and domicile cittizenship.

Ans1.. Nationalitty: The term
m nationality in law signiifies the statuus of an indiividual belonnging
to a partiicular state.

Definnition;
Fenwick defines it as a bond which unitees a person to a given state whichh constitutees his
membersship in the particular
p staate, which gives
g him a claim to thee protection of that statee and
which suubjects him to o the obligattion created by the laws of that statee.
The basiss of nationallity is the meembership off a particularr communityy.

Internaational impo ortance of th he nationaliity;

Nationaliity is often determined by the statee laws. It is a link throuugh which an
a individuaal can
enjoy thee benefits of internationaal law.
Starke staate its imporrtance as undder;
1) Prootection of riights of diploomatic agentts
2) Preevention of offences
o
3) Loyyalty to particular state
4) Staate can refusee to extraditee its own nattionals
5) Eneemy charactter is determiined on the basis
b of natioonality
6) Jurrisdiction of state over thheir nationalss

Modes of
o acquisitio
on and loss of
o nationaliity;

Acquisittion of natioonality
1. By birth;
That is nationality
n iss conferred at birth by the
t fact eithher of birth within
w the sttate territoryy (jus
soli) or by
b the descen nt from, one of its nationnals (jus sangguinis).
Accordinng to jus solli the birth occurs
o is thee decisive faactor and acccording to thhe jus sanguuinins
and the parentage.
p
2. Byy naturalization;
It may taake place byb means off marriage, legitimizatio
l on, option, domicile,
d orr appointmeent as
governm ment officials and on the application.
a
Accordinng to the keeelson;
33
Naturalizzation is the administratiive fact of thhe state confe ferring citizennship upon alien.
a
3. By registration n of resump ption;
Those inndividuals who w were natural
n born subjects of the state but who loost their oriiginal
nationalitty on accoun nt of some caause may geet back it on fulfilling certain conditiions.
4. By descent;
It is on thhe basis of nationality
n off parents, thiis is also knoown as jus saanguinins.
UK and USA U also recognize this principle.
5. Byy subjugatio on;
A personn may acquirre nationalityy through suubjugation affter the conqquest. When the t part of a state
is subjuggated by anotther state thee inhabitantss of that statee become thee nationals of o the later sttate.
6. Byy cession;
When a partp of the state
s is cededd, all nationnals of the foormer state become
b nationals of the later
state.

b) Losss of nationa ality

1. By release;
y to submit ann applicationn for the losss of nationallity by releasse.
For it, it is necessary
2. By deprivation n;
Some law ws of the staate, provides that if a natiional of its state
s seeks em
mployment of o governmeent of
another state
s withoutt its permissiion, he will be
b deprived of his nationnality.
3. Lon ng residence abroad;
State lawws of many states
s containn provisionss in this connnection that if a person resides
r for a long
period abbroad, his naationality endds.
4. By renunciatio on;
When a person
p acquiires a nationnality of morre than one state,
s he havve to renounce his nationnality
of one staate.
5. Subbstitution;
As to thiis principle, a person may
m get natioonality of staate in place of the natioonality of annother
state, andd whereby hee loses his nationality
n off one state annd acquires the
t other staate.

2) Cittizenship:
The wordd citizenship p is often useed in municippal law.
Definitioon;
Generallyy the nationaal who enjoyys full politiccal and civil rights is callled a citizenn.
It also means
m the statte of being a native of a city and ennjoying the freedom
f andd privileges of
o the
city, in which
w he resiides.
It is intim
mately conneected with thhe civil rights.
Refer:
It refers to
t the politiccal status of a person.

3) Diffference bettween nation nality and citizenship:

c
There is a great diffeerence betweeen nationality and citizeenship.

34
· Byy nationalityy we mean thatt legal reelationship which
w exists between thhe nation and the
individuaal, on the otther hand, citizenship
c d
denotes the relationship
r between thee person and the
state law.
· Byy nationalityy the civil annd natural riights of a peerson may come
c under internationaal law
and by ciitizenship it is the sole concern of thhe state law.
· It is possible that
t all the citizens
c may possess the nationality of a particuular state, buut it is
not possiible that all the
t nationalss may be the citizens of thatt particulaar state.
· Citizens posseess full politiical rights in a state, but a national may
m not posseess such righhts.

4) Domicile:

Mean an nd Definition;
Domicilee is an attribuute of nationnality and deenotes a persson’s place of
o residence.
And,
It is the relationship
r between
b the individual and
a locality, where he haas his permaanent home.

5) Diffference bettween nation nality and domicile:

d
· Doomicile deno otes the resiidence of thhe person, while
w nationnality denotees relationshhip of
man withh his nation.
· Coonsequently a person maay acquire naationality thrrough domiccile.

6) Diffference bettween domiccile and citizenship:

· Citizenship haas reference to t the politiccal status of a person andd,
· Doomicile to hiis civil rightss.

7) Conclusion:
So, by thhrough the above menntioned writtings it is clearly
c undeerstandable the three teerms,
nationalitty, domicile and the citizzenship and not same ass often a laym
men consider these are same.

Q2. Stateelessness un nder Internaational Law

Ans2. Arrt 1 of the Co onvention reelating to thee Status of Stateless
S Perssons, 1954 defines
d a statteless
person ass one “who is not considdered as a national
n by any
a State undder the operration of its law.”
This defiinition is hellpfully conciise and to thhe point, but at the same time is also very limitedd and
somewhaat legalistic,, referring to t a specificc group of people know wn as de juure statelesss, not
encompaassing the dee facto stateleess persons whow have a nationality
n b don’t enjjoy the proteection
but
of any Government.
G It has beenn thought useful
u to appproach the notion
n of staatelessness in its
broader sense,
s to deenote all thoose people who
w lack whhat has becoome knownn as an ‘effeective
nationalitty’, and wh ho are conssequently unnable to enjjoy the righhts that are associated with
nationalitty. In fact, in
i 1949, the UN expandded the definnition of stattelessness too include de facto
stateless persons, or those who, “having
“ left the countryy of which thhey were nattionals, no loonger
enjoy thee protection and assistannce of their national autthorities, eithher because these authoorities
refuse too grant them m assistancce and protection, or because
b theey themselves renouncee the
assistancce and protecction of the countries
c of which
w they are
a nationalss.”
35
Q3. Doubble Nationality
Ans3. Multiple
M cittizenship, duual citizenshhip, multiplee nationalitty or dual nationality,
n is a
person's citizenship
c status,
s in whhich a personn is concurrrently regardded as a citizzen of moree than
one state under the laws of thoose states. Conceptually
C y, citizenshipp is focusedd on the intternal
political life of the sttate and natioonality is a matter
m of inteernational deealings.
There is no internatiional convenntion which determines the nationallity or citizeenship statuss of a
person. This
T is defin ned exclusiveely by natioonal laws, whhich can varry and can conflict.
c Muultiple
citizenshhip arises because
b diffferent counttries use diifferent, andd not neceessarily muttually
exclusivee, criteria forf citizenshhip. Colloqquial speechh refers to people "hoolding" muultiple
citizenshhip but, techn nically, eachh nation makkes a claim that a particcular person is considereed its
national.
Some coountries do not permit dual citizzenship. Thhis may be by requiring an appllicant
for naturaalization to renounce alll existing citizenship,
c or by withddrawing its citizenship from
someone who volunttarily acquirres another citizenship, or by otherr devices. Soome countriees do
not permmit a renunciaation of citizzenship. Som me countriess permit a general dual citizenship while
w
others peermit dual cittizenship buut only of a liimited numbber of countrries.
Most couuntries which permit dual citizenshiip may still not n recognizze the other citizenship of its
nationalss within its own territorry. For exam mple, in relaation to enttry into the country, nattional
service, duty
d to vote, etc. Similaarly, it may not permit consular
c acccess by anothher country for a
person who
w is also itts national. Some S countrries prohibit dual citizennship holderss from serviing in
their miliitaries or on police forcees or holdingg certain pubblic offices.

UNIIT-III, IV, V

LONG QUESTION
Q NS

Q2. Defiine Treaty? How a Treaaty is conclu uded? How does a Treaaty terminaates?
ANS. A treaty
t is an agreement
a unnder internaational law enntered into by
b actors in international
i l law,
namely sovereign
s sttates and innternational organizationns. A treatyy may also be known as a an
(internatiional) agreement, protocol, covenannt, convention, pact, orr exchange of o letters, ammong
other termms. Regardless of terminnology, all of o these formms of agreem ments are, unnder internattional
law, equaally considerred treaties and
a the ruless are the sam me.
Treaties can be loossely compareed to contraacts: both arre examples of willing parties assuuming
obligations among th hemselves, and
a any partyy that fails tot live up to their obligaations can bee held
liable undder internatiional law.
A treaty is an expresss agreementt under Interrnational Laaw entered innto by actors in Internattional
Law, nam mely sovereign states annd Internatioonal organizzations. A treatyt may also
a be know wn as
(Internatiional) agreement, protoccol, Covenaant, Conventtion, exchange of letterss, etc. Regarrdless

36
of the teerminology, all of thesee internationnal agreemennts under Innternational Law are eqqually
treaties and
a the rules are the same.

Trreaties can be compareed to contraacts: both are a means of o willing parties

p assuuming
obligations among th hemselves, and a party too either that fails to live up to their obligations
o can be
held liablle under Inteernational Laaw.

Oppenheeim:
Accordding to Opp penheim Inteernational Treaties
T are agreementss, of a conttractual charracter
between States or organizations
o s of States, creating leegal rights and
a obligations betweenn the
Parties. A treaty is an
n important Source of Innternational Law and ann Instrument for imposinng the
binding obligation.
o

Starke:
Accoording to Staarke, a treatyy is an agreem
ment wherebby two or more
m states esstablish or seeek to
establish a relationsh
hip under International Law.
L In shorrt Treaties arre Internationnal Agreemeents.
Formatioon of treatiess:

There is no specific forrm for the coonclusion off treaties. Ann oral agreemment betweeen the
representtatives of thee States charrged with thhe task of connducting neggotiations annd empowerred to
bind theiir respectivee countries is sufficient to have a binding effecct if it is thee intention of
o the
representtative to connclude a legally bindingg transactionn. The enorm mous importance of the issue
involved in such ag greements hoowever neceessities the compliance
c of formal requirements
r s and
reducing the agreemeents into a document.

Various Stages of fo
ormation of the
t treaties:

1) Accreediting of Reepresentativves:
E
Each of the State Conduucting negotiiation appoinnts a represeentative or pllenipotentiarry for
this purppose. He is provided with
w an instrument giveen by the Minister
M for Foreign Affairs
showing his authorityy to conductt such negotiiations, whicch is known as the full power

2) Negottiation
It is a bilaterall process, soometimes muultilateral. There
T are proposals as to t negotiatioon. In
our com mmercial tran nsaction, thhere is a baargain theree are proposals and coounter propoosals.
Ultimately leading to owards the concluded Contract.
C In respect of two
t or moree States, so as to
have the discussion with Pleni Potentials. These T negottiations are depended uppon the term ms of
credentiaals and pow wers of thee representaatives. In practices, beefore signing the text after
negotiation the deleg gates obtain fresh instrucction to sign the treaties with or withhout Reservaation.
If the prooposal is acccepted, then it is said to be a draft trreaty. In draaft treaties, thhe Conclusion of
discussioons is put to ogether in the precise statement
s annd reduced into writingg the Comm monly
agreed teerms in varioous proposals. It is a premmature stagee of the finall draft.
37
3) Signatture
Whhen the finaal draft of a treaty is drrawn up, thee instrumentt is ready foor signature. The
signaturee is affixed at
a a formal closing
c session. A treatyy generally comes
c into force
fo on signnature
by plenippotentiaries of
o the Contrracting Statees unless the States desirre to subjectt it to ratificaation.
Treaties and
a conventtions are gennerally alwayys sealed.

4) Ratification
It is an act of adopting ann internatioonal treaty by b the partiies thereto. In other words,
w
ratificatioon implies the
t confirmmation of thee treaty enttered into byy the repressentatives of
o the
different states. Statees may be bound
b by the treaties onnly when they have givven their connsent.
There aree number off ways in whhich a State may express its consentt to a treaty.. It may be given
g
either by signature, exchange
e of instruments,, ratificationn or accessionn.

Whenn there are no full poowers, confeerred on the representaatives whenn the parties are
representtatives in absence
a of Pleni Poteentials then such treatties are neegotiated byy the
representtatives by th heir signaturre subject too ratification. When thhey have lim mited power then
treaty cann be reserveed for ratification by thee state Pleni Potentials. It
I is the basiic term stipuulated
in the creedentials itseelf. Thus ratification in a sort of connfirmation byy Pleni Poteentials or Heead of
the statess. The Head of State maay ratify the Treaty contrract made byy their repressentative on their
behalf. Pleni
P Potentials may ratiify or refusee the treaty contract,
c butt generally, ratification
r i the
is
rule and refusal
r is an
n exception.

Ratificattion of a Treeaty may withhold

w on the
t followin
ng grounds

i) If the representativ
r ve or plenipootentiary has exceeded hiis powers;
ii) If any deceit as to matters of fact
f has beenn practiced upon
u him
iii) If thee performancce of treaty obligations
o b
becomes imppossible
iv) If theere has not been
b consenssus ad idem (meeting off mind) e.g. there has noot been agreed as
to the sam me thing.

5) Accession and Ad dhesion

A third
t state can
c become a party to an already existing treeaty by meaans of accesssion.
Accessioon and Adhesion is a connsequential partp of the treaty. Accesssion is a process when a non-
party statte joins the already
a conccluded treatiees. They aree not the origginal membeers of such trreaty.
Adhesionn is a process when a non-party
n Sttate accepts the terms annd conditionns of the alrready
concludeed treaty.
6) Entry into force:
T
There can bee a specific provision
p in a treaty as too the effectivve date or daate of appliccation
of the treeaty. It can be by signiing process or by ratifiication. If thhe treaties are a signed by the
Plenipoteentiary then it will com me into forcce. Multilateeral treaties come into operation onn the
deposit of
o a prescribeed member of o ratifications and accesssions.

38
7) Registtration and Publication n:
A
After the treeaty has beeen so ratified, it has to be registereed at the heaadquarters of o the
internatioonal organizzation. According to Artticle 18 of thhe Covenantt of the Leaague, every treatyt
or internnational eng gagement shhould be reegistered wiith the Seccretariat of the Leaguee and
publishedd by it as sooon as possibble. No suchh treaty or innternational engagemennt was bindinng on
any state until it was so registereed. This meaans that in caase of any diispute, the treaty could not
n be
relied uppon if it was not registerred. To the same
s effect are the provvisions in thee United Naations
Charter. Article
A 102 of the Charter reads: -----
Eveery treaty annd every inteernational aggreement enntered into byy any Membber of the United
U
Nations after
a the pressent Charterr comes into force shall as
a soon as poossible be reegistered witth the
Secretariiat and published by it.
No party to an ny such treatty or internaational agreement which has not been registerred in
accordannce with thee provisionss of paragrraph 1 of this t Article may invokke that treatty or
agreemennt before any y organ of thhe United Naations.
The seecond part of
o Article 1002 clearly proohibits Statee to bring before the bar of world oppinion
any secreet treaty. Th
he effect of non-registrat
n tion is, howeever, limitedd to this exteent that partiies to
the treatyy cannot invooke it beforee any organ of
o the Unitedd Nations.

8) Incorpporation of treaty into State Law:

Incorporation ofo the treatyy into Statte Law: Thhe final staage of the treaty is actual a
incorporaation in the multiple
m law
w of the Conntracting Statte where succh incorporaation is neceessary
in order to
t assume a binding charracter.
A trreaty is an agreement or
o contract entered betw ween two or more Stattes whereby they
undertake to carry out o obligatioons imposedd on each of o them. Thhere are eigght Stages inn the
formationn of treaties..

Terminaation of Treaties :

Treaties may
m terminaate on any off the followiing grounds:

1) Expiry of Specificc Period:

W
When a treaaty is concluuded for a particular
p perriod, which expressly provided
p in treaty
t
contract then
t after th
he expiry of that
t period, treaty
t ipso faacto comes to
t an end.

2) Where the main purpose/obj

p ject of the treaty is fulffilled:
In case of treaties impposing no continuing obbligations, they
t cease to
t operate on the
fulfillmennt of the object.

3) Termiination by Mutual
M Con
nsent:
It is an
a outcome of
o consensuss. Treaty com
mes into exiistence by thhe consent of
o the party State.
S
So it can come to an end by mutuual Consent.

4) One of
o the Party State Extin
nct:
39
 When the ex
W xistence of one
o of the partyp state coomes to an end,
e generallly in case of
o the
merger of
o one state in
nto another state,
s the treaty stand terrminated.

5) When n that oblig gation of th he treaty beecomes incoompatible with w the Chharter of Un nited
Nations::
Articlee 103 speciffically providdes that in thhe event of a conflict beetween the obligations
o o the
of
memberss of the United Nations and a their oblligations undder any otherr agreement,, their obligaations
under thee Charter shaall prevail.

6) War Between
B Parrty States:
I a War, if the Partyy States aree the enem
In my against each
e other, then contraactual
obligations come to an
a end and trreaty ipso faacto stand terrminated.

7) Dissollution by Withdrawal
W b Notice:
by
The treatties can be dissolved
d byy a notice byy either partty to the othher party. If no period of
o the
existencee of the treatty is prescribbed by the parties, then treaty
t can bee determinedd by the requuisite
period off the termin nation of treaties by a notice.
n Whenn a prescribbed period of o notice is given
g
expresslyy in the treatty then it is to be strictly complied with.
w

8) Termss of treaty becoming

b in
njurious to State:
S
By suchh treaty eitheer wholly orr partly the terms
t of treaaty become injurious to one of the party
state, theereby interesst of one parrty state, likkely to be addversely affeected. In succh circumstaances,
there is conflict
c as to
o term and sovereignty of the state, whereby sovereignty
s o that state is in
of
danger. Its
I survival isi more impportant than such obligattions. In suuch cases off conflict, thee law
makes it very clear an nd contractuual obligationn comes to ana end.

9) Non- Performanc
P ce of certain
n Essential Conditions:
C
If the Trreaty grants a unilaterall right of deenunciation to
t one or alll of the connsenting Stattes in
case of failure
f of ceertain essential conditionns, the treatyy comes to an end on thet happeninng of
such contingency.

10) Docttrine of Reb bus sic stantiibus:

The meanning of docttrine Rebus sics stantibuss is if by anyy unforeseenn change, or circumstancces an
obligation provided for in the trreaty should imperil thee existence of o one of thee State. and such
state has a right to deemand and too be releasedd from the coontractual obbligations. Itt means wheen the
terms of the agreemeent are injuriious to one of the party State, or thee purpose off treaty is ovver or
there are changes in the circumsstances, or thhere is confllict with the status of or existence of one
of the paarty State, orr when the object
o of treeaty is no more there, thhen in such cases doctrine of
Rebus Siic Stantibus is made appplicable and Treaty conccluded comees to an end. This is baseed on
the basicc principle ofo self Preseervation andd Developm ment in accordance withh the growthh and
requiremment of the naation.

11) Docttrine of Jus Cogens:

40
 Lastly, a treaty mayy be declareed void if it conflicts wiith a perempptory norm (it
( also calleed jus
cogens)oof general Intternational Law.
L

Terminaation of trea aties by Muttual Consen nt :

The partties to a treaty are itss master annd, thereforee, Internatioonal Law dooes not layy any
difficulties in their way
w if, by mutual
m conssent, they wish
w to termiinate the treeaty or the treaty
t
grants a unilateral
u rig
ght of denunnciation to anny or all of thhe parties thereto.

Three waays for Term

mination of Treaties
T

i) Recesssion
Thhe Parties to the treatyy or agreemment can exppressly decllare that thee treaty shaall be
dissolvedd, this mode of dissolutioon by mutuaal consent is known as Recession.
R

ii) Substitution
W
When the parrties to the trreaty, come to
t the concluusion that foor the interesst of the parties to
the agreeement a neww agreement must be subbstituted for the old one,, then the neew treaty beccome
enforceabble and old treaty
t stand terminated,
t and it becom
mes inoperative.

iii) Renu
unciation
I a treaty im
If mposes obligaations upon one of the contracting sttate only, thhe other partyy can
renouncee its right in such cases thhe state undeer an obligattion must accept the renuunciation.

Q3. Disccuss the purposes and Principles of U.N? Diiscuss the organisation o n, functionss and
role of itts principle organs?
ANS. Thhe United Naations Chartter lists basicc principles that the orgganization annd member states s
agree to respect.
r Somme of these are
a designedd to limit thee power of thhe organizatiion. One of these
is the priinciple of so
overeign equuality. This means
m that each
e membeer nation is equal.
e Anothher is
the princciple of non ninterventionn. This meaans that the United Nations will inntervene onnly in
internatioonal problem ms, not in thhe domestic problems of o a country.. Other principles emphhasize
the use of
o peaceful means
m for setttling disputtes. They reqquire that naations avoid threatening other
nations with
w force orr actually ussing force. Member
M nations are alsoo asked to suupport the United
U
Nations in peacekeeeping operattions. And they t are askked to do nothing
n to innterfere withh the
activitiess of the orgaanization. Thhe United Nations
N also tries
t to prevvent nonmem mbers from doing
d
anything to disturb th he peace.

The objectives of thee United Nattions as set forth

fo in the Charter
C are:

(i) to maintaain internatioonal peace and securityy based on respect for the principple of
equal hum
man rights annd self-deterrmination off peoples.

(ii) to develop
p friendly reelations amonng nations.

41
 (iii) to cooperrate in solviing internatiional probleems of an economic,
e soocial, culturral or
humanitarrian characteer.

(iv) to be a centre for harm

monizing thee actions of nations
n in acchieving thesse ends.

(v) to protectt environmennt & to justiffy use of nattural resource.

The Unitted Nations act

a in accorddance with thhe followingg Principals:

1. All
A member states
s are sovvereign and equal.

2. All
A are pledgeed to fulfill their
t obligattions under thhe Charter inn good faith.

3. A
All are pledgged to settle their interrnational diisputes by peaceful
p meeans and wiithout
enndangering international
i l peace, secuurity and justtice.

4. T
They are to refrain
r in theeir internatioonal relationns from the threat
t or usee of force aggainst
anny other statte.

5. T
They are to give
g the UN
N every assisstance in anny action it takes
t in accordance witth the
C
Charter.

6. T
The United Nations
N shalll not intervenne in matterrs which are essentially domestic onnes of
anny state exceept when it is
i acting to enforce
e internnational peaace.

Principaal Organs
The orgaanization op perates throuugh its six major
m organns. They aree the Generaal Assemblyy, the
Security Council, the Economicc and Social Council, thhe Trusteeshhip Council, the Internattional
Court off Justice, and i representeed by a delegation of noot more thann five
d the Secretaariat. Each is
representtatives.
The Geneeral Assemb bly
The Geneeral Assemb bly is compoosed of all thhe member nations. Its members
m meeet annually at
a UN
Headquaarters in New w York City. The Generaal Assemblyy can discusss and make recommenda
r ations
on any matter
m withinn the scope of
o the charterr. It has beenn called the "town
" meetiing of the woorld."
Its speciffic duties incclude the eleection of thee members ofo the Econoomic and Soocial Counciil, the
board off the UN Ind dustrial Devvelopment Organization,
O , and some members off the Trusteeship
Council. With the Seecurity Counncil, it electss the judges ofo the Internnational Couurt of Justice. The
General Assembly appoints thhe UN secreetary-generaal on recom mmendation of the Seccurity
Council. It adopts rules
r governning the adm ministration of the Secrretariat. It also approvees the
United Nations
N budgget. And it decides
d how much money each mem mber nation should
s pay to run
the organnization. Deccisions in thhe General Assembly
A maay be made byb a simple majority vote or,

42
on imporrtant question ns, by a twoo-thirds vote.. Smaller nattions have a great deal ofo influence in i the
General Assembly
A beecause each country castts one vote.
The Secuurity Council
The UN Charter estaablished a Security
S Couuncil made upu of the fivve nations thhat in 1945 were
considereed the mostt powerful in i the worldd. The counncil's primarry function was to maiintain
internatioonal peace and
a security.. The five peermanent memberm natioons are the United
U Statess, the
Russian Federation (in place off the formerr Soviet Unnion), the Unnited Kingddom, France, and
China. The UN Charrter requires that the perrmanent mem mbers agree on all decisiions made by b the
council, except for questions
q off procedure.. If even onne permanennt member vetoes v (rejeccts) a
council decision,
d thatt decision is defeated.
The Secuurity Counciil also has teen nonpermaanent membbers. They seerve 2-year terms. Eachh year
the Geneeral Assemblly elects fivee new nationns. These nations are choosen from alll over the world.w
This helpps ensure faiir representaation of all reegions. The Security Council is conssidered alwaays in
session. Each
E counciil nation musst have a perrmanent reprresentative at a headquarteers in New York,
Y
so the council can meeet on short notice.
The Interrnational Coourt of Justice
The International Co ourt of Justiice is the principal juddicial organ of the Unitted Nations. It is
composed of 15 jud dges. They area elected to 9-year teerms by thee General AssemblyA andd the
Security Council. The T judges are chosenn based onn their quallifications rather r than their
nationalitties. Howevver, no nationn may have more than one o judge onn the court at a any given time.
The Interrnational Coourt meets at The Hague in the Netheerlands.
The courrt has two major
m jobs. Itt settles dispputes submittted by natioons for finall decision. And
A it
gives advvice to otherr UN organss and agenciees. Its advisoory opinionss do not havve to be acceepted.
But theyy carry greaat weight. Inn disputes submitted
s too the court, however, itts judgmentts are
supposedd to be followwed by all thhe parties.

Q4. Wh hat measurees can be taken t by thhe UN for peaceful seettlement off disputes .Also
discuss in light of thhe compulsivve or coerciive means of o settlementt of dispute??
ANS. Peaceful Settleement of Dissputes
Historicaally, Internattional Law has
h been reggarded by thee internationnal community as a meaans to
ensure thhe establishm ment and prreservation of world peeace and seccurity. Thee maintenance of
internatioonal peace and
a security has h always been
b the majjor purpose of the Internnational Law w. It
was the basic objecttive behind the creationn of the Leaague of Natiions in 19199 and the United U
Nations ini 1945.
Since thhe direct cause of war annd violence is always a dispute betw ween States, it is therefoore in
the intereest of peace and securityy that disputees should be settled. Meethods and procedures
p foor the
peaceful (pacific) setttlement of disputes
d havee been madee available inn the Internaational Law.
States haave conclud ded a great number
n of multilateral
m trreaties aiminng at the peaceful settleement
of their disputes
d and differences. The most important
i treeaties are thee 1899 Haguue Conventioon for
the Paciffic Settlemen nt of Internaational Dispuutes which was
w revised by the Secoond Hague Peace P
Conferennce in 1907, and the 19228 General Act A for the Pacific
P Settleement of Dissputes whichh was
concludeed under th he auspices of the Leaague of Naations. Furthhermore, there are reggional
agreemennts, such ass the 1948 American Treaty on Pacific Setttlement the 1957 Euroopean
Conventiion for the Peaceful
P Setttlement of Disputes,
D andd the 1964 Prrotocol of thhe Commission of
43
Mediatioon and Arbittration of thee Organizatiion of Africaan Unity.[6] In additionn to such geeneral
treaties on
o dispute seettlement, theere are manyy bilateral annd multilaterral agreemennts which incclude
specific clauses
c related to disputee settlement..
The Charter
C of th
he United Naations devotees Chapter VIV to the meethods and procedures foor the
pacific seettlement of disputes. Paragraph 1 of o Article 333 of the Charrter states thee methods foor the
pacific settlement
s off disputes as
a the follow wing: negotiation, enquuiry, mediatiion, conciliaation,
arbitratioon, judicial settlement,
s a resort to regional aggencies or arrrangements.. This paraggraph
and
obliges States
S partiees to any dispute,
d the continuancce of whichh is likely to endanger the
maintenaance of interrnational peaace and secuurity, to seekk a solution by any of thhe listed metthods
or other peaceful
p meaans of their own
o choice.
The methods
m off peaceful settlement
s o disputes fall into thhree categories: diplom
of matic,
adjudicattive, and insstitutional methods.
m Dipplomatic meethods involvve attempts to settle dispputes
either byy the parties themselves or o with the help
h of otherr entities. Adjudicative
A methods invvolve
the settleement of dissputes by tribbunals, eitheer judicial or
o arbitral. Institutional
I methods invvolve
the resortt to either th
he United Naations or regiional organizzations for settlement
s off disputes.

Diplomaatic Methods of Disputee Settlementt

Diplomattic methods of dispute settlement
s a negotiatioon, enquiry, mediation, conciliationn, and
are
good offiices.

A. Negootiation
“Negotiiation” is the oldest, moost commonn, and the siimplest methhods of settlling internattional
disputes. It is recog gnized by thee great majoority of treatties of pacifi
fic settlemennt as the firstt step
towards thet settlemeent of international dispuutes. Most of the treatiies make a failure
f to seettle a
dispute by
b negotiatio on a conditioon precedentt to compulssory arbitrattion or judicial settlemennt. It
is, thereffore, not surp
prising that negotiation comes first in the list off means of pacific
p settleement
of disputtes stipulated
d in Article 33(1)
3 of the Charter
C of thhe United Naations.
Negotiiation consissts of discusssions betweeen the conccerned partiees with a vieew to underrstand
the oppoosing positio ons and opiinions and reconcile
r thhe differencees. It is veery suited too the
clarificattion and elucidation of the opposinng contentionns. It is thee most satisffactory meaans to
settle dissputes sincee it is a voluntary bilaateral and seelf-help meaans; the parrties are dirrectly
engaged in the process; interventtion by any third
t party inn the processs is not necessary.
Negottiations, howwever, do noot always succceed in reacching solutioons to disputtes or differeences
between the parties. Thus, third parties interrventions aree needed to help the parrties in reachhing a
settlemennt to their diisputes and differences; here comess the importtance of the other diplom matic
methods of dispute seettlement.

B. Enqu uiry
One of thhe common obstacles prreventing thee successful settlement of o a dispute by negotiatiion is
the difficculty of asccertaining thhe facts whiich have givven rise to the differennces betweenn the
disputantts. Most in nternational disputes
d invvolve an inaability or unnwillingness of the partiies to
agree on points of faacts. Hereinn lays the siggnificance of
o the proceddure of inquiiry as a meaans of
pacific seettlement of disputes.

44
 Manyy bilateral ag greements haave been conncluded undder which facct-finding coommissions have
been set up for the taask of reporrting to the parties
p conceerned on thee disputed faacts. In adddition,
the proceedure of inquuiry has founnd expressioon in treaties for the pacific settlemennt of disputees.
The twwo Hague Conventions of o 1899 andd 1907 established comm missions of inquiry
i as foormal
institutions for the paacific settlem
ment of interrnational dissputes. Theyy provided a permanent panelp
of namess from which h the partiess could selecct the commmissioners. The T task of a commissioon of
inquiry was
w to facilittate the soluttion of dispuutes by elucidating the faacts by meanns of an imppartial
and consscientious innvestigation. The reportt of a comm mission was to be limiteed to fact-finnding
and was not
n expected d to include any proposaal for the setttlement of thhe dispute inn question.
With the establisshment of the t League of Nations,, the meanss of inquiryy took on a new
significannce. Inquirry and concciliation werre viewed as a integral parts
p of a siingle processs for
bringing about a paccific settlem ment to a disspute. It is in the light of this background thaat the
Charter ofo the United Nations specificallyy lists “enquuiry” as onee of the meethods of paacific
settlemennt of internattional disputtes.
Enquiiry as a separate method of dispute settlement
s haas fallen out of favor. It has been ussed as
part of other
o method ds of disputee settlementt. Its purpose is to produce an imppartial findinng of
disputed facts and th hus to preparre the way for
f settlemennt of disputee by other peaceful
p methhods.
The partiies are not obliged to acccept the finddings of the enquiry; how wever, they always do accept
a
them.
The utilization
u off enquiry hass been evidennt in the praactice of inteernational orgganizations, such
as the United
U Nations and its specialized
s agencies. Enquiry
E has been used as part of other
methods of dispute seettlement in the context of general fact-finding.
fa

C. Med diation, Connciliation an nd Good Offfices

Mediatiion, conciliaation and good offices are a three meethods of peaaceful settleement of dispputes
by whichh third partiees seek to assist the partiies to a dispuute in reachiing a settlem
ment. All invvolve
the intervvention of a supposedlyy disinteresteed individuaal, State, com mmission, or o organization to
help the parties. When
W the parrties are unwwilling to neegotiate, or fail to negootiate effectiively,
assistancce by a third party througgh its mediaation, conciliiation, or goood offices may
m be neceessary
to help inn procuring a settlement. This assisttance may be requested by one or booth of the paarties,
or it mayy be voluntarrily offered by
b a third paarty.
Although there iss no distinctiion in the general featuures of mediaation, concilliation, and good
offices, a theoretical and practical distinction can be maade among them t according to the deegree
of third party particcipation, andd the extent to which the t disputannts are obligged to acceppt the
outcomess of the proccedures.
Mediattion is a pro ocess througgh which ann outside paarty (third paarty) endeavvors to bring the
disputantts together and assists them in reeaching a settlement.
s The third party offerrs his
assistancce to the parrties to a disspute. The consent
c of thhe disputantts is not neccessarily reqquired
initially, but no meddiation proceeedings can be b commencced without their consennt. The meddiator
actively and directly y participatees in the settlement itseelf. He does not content himself with
making negotiations
n possible annd undisturbeed. He is exxpected to offer
o concrette proposals for a
solution and a settleement of suubstantive issues relatedd to a dispuute. However, his propposals
representt nothing mo ore than recoommendatioons. They haave no bindiing force onn either dispuutant.
The partiies to a dispu
ute are free to
t accept or reject
r his prooposals.
45
 Conciiliation is a process of settling
s a disspute by refferring it to a specially constituted
c o
organ
whose taask is to ellucidate thee facts and suggest prooposals for a settlemennt to the paarties
concerneed. Howeveer, the propoosals of connciliation, like the propposals of meediators, havve no
binding force
f on the parties whoo are free to accept or reeject them. As in the caase of mediaation,
conciliatoors may meetm with thhe parties either
e jointlly or separrately. Thee procedurees of
conciliatiion are geneerally instituuted by the parties
p who agree
a to refeer their disppute to an alrready
established organ, co ommission or o a single coonciliator, which
w is set up
u on a perm manent basis or ad
hoc basiss; third parties cannot take the initiaative on theirr own. The conciliators are appointeed by
the partiees to a disp pute. They can be appoointed on thhe basis of their t official functions or as
individuaals in their personal capaacity.
Conciiliation is described by some as a com mbination of enquiry annd mediationn. The conciliator
investigaates the factss of the disppute and sugggests the teerms of the settlement. But conciliiation
differs frrom enquiry in that the mainm objectivve of the latter is the eluucidation of the facts in order
to enablee the parties through their own accorrd to settle their t disputee; whereas thhe main objeective
of concilliation is to propose a solution to a dispute andd to win the acceptance of the partiies to
such soluution. Also, conciliationn differs from m mediation in that it is more
m formall and less fleexible
than meddiation; if a mediator’s
m p
proposal is noot accepted, he can preseent new propposals, wherreas a
conciliatoor usually prresent a singgle report.
Whenn the parties to a disputee reach the point p of not being able to t solve it byb negotiatioon, or
the poinnt where theey have brooken off dipplomatic relations, but they are convinced c thhat a
settlemennt is importaant to them, the utilizatiion of the teechnique of good g officess may be helpful.
Good offfices may bee utilized onlly with the agreement
a or the consennt of both dissputants. A third
party atteempts to briing the dispuutants togethher in order to make it possible forr them to finnd an
appropriaate settlemen nt to their differences thrrough their negotiations
n . In this reggard, the funnction
of the thiird party is to
t act as a goo-between, transmitting
t messages annd suggestioons in an effo fort to
create or restore a su uitable atmossphere for thhe parties to agree to neggotiate or ressume negotiaation.
When thee negotiation ns start, the functions off the good offfices come to an end. The T proceduure of
good offfices, in con ntrast to meediation, hass a limited function which w is sim
mply bringingg the
disputantts together. In mediatioon, the mediaator takes ann active partt in the negootiations bettween
the dispuutants and maym even suuggest termss of settlem ment to the disputants.
d Method of good
offices coonsists of vaarious kindss of action aiiming to enccourage neggotiations bettween the paarties
to a disppute. Also, in contrast to the case of mediatioon or conciliiation, the proffered p of good
offices does
d not meeet with the disputants
d joointly but seeparately witth each of thhem. Seldoom, if
ever, the proffered atttends joint meetings
m between the paarties to a diispute. Norm mally, the roole of
the profffered of goo od offices terminates
t w
when the paarties agree to negotiatte, or to resume
negotiation. Howev ver, the profffered may be invited by b the partiies to be prresent duringg the
negotiations. As in casec of mediiation, an offfer of good offices may be rejected by either orr both
parties too a dispute.
The use of mediatio on, conciliatiion, and goood offices has h a long hiistory. These methods have
been the subject of many
m bilaterral and multiilateral treatiies. Howevver, with the establishmeent of
the League of Nation ns, permanennt organs weere set up too perform the functions of these metthods
of pacific settlementt of disputees. In this context, thee Charter off the Unitedd Nations lissts in
Article 33(1) mediattion and connciliation, buut not good offices,o as methods
m of pacific
p settleement
46
availablee to the partiies to any diispute. Notaably, in the practice
p of thhe United Nations,
N the terms
t
“mediatioon”, “concilliation”, andd “good offfices” have been b used with
w consideerable looseeness,
flexibilityy and little regard
r to the distinctionss which existt between them.
Mediaation and co onciliation have
h both addvantages and
a disadvanntages as coompared to other
methods of dispute settlement. They are more m flexiblee than arbitrration or juddicial settlem
ment.
They leavve more roo om for the wishes
w of the disputants and
a the initiaatives of the third party. The
disputantts remain in n control off the outcom me. Their proceedings
p can be conducted in seecret.
Howeverr, there are disadvantag
d es to mediation and connciliation. TheirT proceeedings cannnot be
started annd be effecttive without the consentt, cooperatioon, and gooddwill of the disputants. The
proposedd settlementt is no morre than a recommendaation with any a binding force uponn the
disputantts.

Adjudicaative Methods of Disputte Settlemennt

The majjor disadvan ntage of the diplomatic methods off dispute setttlement is thhat the partiies to
them aree under no legal obligaation to acceept the propposals of seettlement sugggested to them. t
Thus, thee adjudicativ ve methods of dispute settlement are a preferabble because they providde the
issuance of binding decisions, rather than mere recom mmendationns as in cases of diplom matic
methods.. It is this biinding force of the decissions rendereed at the endd of the adjuudicative metthods
that distinnguishes theese methods from other methods
m of dispute
d settleement.

Adjuddicative meth hods of disppute settlemeent consist of

o two typess of proceduures, “arbitraation”
and “juddicial settlemment”. Arbbitration andd judicial seettlement arre two methhods involvee the
determinnation of diffferences bettween Statess through leegal decisionns of tribunnals. Whereeas in
case of juudicial settleement the deecision is made
m by an established
e c
court, permannent (such as a the
Internatioonal Court of
o Justice) orr ad hoc, in case
c of arbittration it is made
m by a siingle arbitrattor or
arbitral trribunal. Thhe major chaaracteristic of these two methods is that a judiciial decision or an
award is binding on thet parties annd must be carried
c out inn good faith.
It is not
n until thee establishm ment of the League
L of Nations
N thatt the terms “arbitration”
“ ” and
“judicial settlement”” became distinguished
d d. Under the Covenaant of the League L “juddicial
settlemennt” meant seettlement byy the Permaanent Court of Justice (PCIJ), wherreas “arbitraation”
meant seettlement by other tribunnals. This saame distincttion is carrieed over by thhe Charter of o the
United Nations,
N but with the Intternational Court
C of Justtice (ICJ) suubstituting foor the Permaanent
Court of Internationaal Justice (PC CIJ).

Arbitrration was defined

d in thee 1899 Haguue Conventioon for the Pacific Settlem ment of Disputes
as “the settlement
s of differences between states
s by juddges of theirr choice andd on the bassis of
respect for
fo law”;[13]] this same definition
d i the 1907 Hague Convvention.[14] The
waas repeated in
procedurres of arbitraation grew too some extent out of thee processes of diplomatiic settlemennt and
representted an advan nce towards a developed internationaal legal orderr.
Arbitrration is con nsidered thee most effecctive and eqquitable meaans of dispuute settlemeent. It
combiness elements of both dipplomatic andd judicial prrocedures. However, it i is much more
flexible than
t judiciaal settlementt. It gives the parties to a disputee the choicees to appoinnt the
arbitratorrs, to designnate the seat of the tribunnal, and to sppecify the prrocedures too be followedd and

47
the law to be appliied by the tribunal. Moreover,M thhe arbitratioon proceedinngs can be kept
confidenttial.
Arbitrration canno ot be initiatedd without thee agreement of the partiees to a dispuute. An agreeement
of arbitraation may bee concluded for settling a particular dispute, or a series of disputes
d that have
arisen beetween the paarties. It maay be in the form
f of a genneral treaty of arbitrationn.
The usual
u pattern
n in arbitratiion agreemeent as regardds the appoiintment of arbitrators
a iss that
each of the
t two partiies has to apppoint one arbitrator
a or more,
m and thhe appointedd arbitrators have
to appoinnt the arbitraator, who is known as ann “umpire”. Usually, thhe arbitral triibunal consissts of
three arbitrators, who o can decide by majorityy vote. The parties
p may agree to refeer their dispuute to
a single arbitrator, who
w may bee a foreign head of a State S or govvernment, orr a distinguuished
individuaal.

Judiciial settlemen nt is a settleement of disspute betweeen States byy an internattional tribunnal in

accordannce with the rules of Inteernational Law.L The intternational character
c of the tribunall is in
both its organization n and its jurrisdiction. Internationaal tribunals include
i perm
manent tribuunals,
such as the
t Internatio onal Court ofo Justice (IC CJ), the International Trribunal for thhe law of thee Sea
(ITLOS), the Europeean Court of o Justice, thhe Europeann Court of HumanH Righhts and the Inter-
I
Americann Court of Human righhts, and incclude ad hocc tribunals, such as thee United Naations
Tribunal in Libya.
The ICJI is the most imporrtant internaational tribuunal, becausse of its booth prestigee and
jurisdictiion. It is thee principal juudicial organn of the Uniited Nations.. All membbers of the United
U
Nations area ipso factto parties to the Statute of o the Courtt. The judgess of the ICJ are appointeed by
the Uniteed Nations, notn by the paarties to a diispute. The ICJ has to applya the rulles and princciples
of International Law w, which are enumerated in Article 38 3 of the Staatute of the Court;
C the paarties
have no choice in sp pecifying thee rules to be applied by the Court. The jurisdicction of the Court C
includes all disputess between States concerrning the intterpretation of a treaty, any questioon of
Internatioonal Law, th he existence of any fact constitutingg breach of international
i l obligationss, and
the naturre or extent of
o the reparation to be made
m for the breach
b of an internationaal obligationn.
The Charter
C of th
he United Naations referss to “arbitrattion” and “juudicial settleement” in Article
A
33(1) as two method ds among otther methodss of pacific settlement that t States are
a encouragged to
utilize inn seeking a solution
s to thheir internattional disputtes. It is also provides in
i Article 366(3) a
guidancee to the Seccurity Counccil requiringg it “to takee into consiideration that legal disputes
should ass a general rule
r be referrred by the parties to the Internationaal Court of Justice”.
J Deespite
this provvision, the Charter does not impose on memberss of the United Nations the obligation to
submit anny dispute, even
e legal onne, to the Coourt. Moreoover, the Chaarter providees that nothiing in
it “shall prevent
p Mem mbers of thee United Nattions from enntrusting thee solution off their differeences
to other tribunals
t by virtue of aggreements alrready in exisstence or whhich may be concluded in i the
future”.

Institutioonal Methods of Dispute Settlemen nt

Institutioonal methodds of disputee settlement involve the resort to innternational organizationns for
settlemennt of internaational dispuutes. These methods havve come intoo existence with the creeation
of the intternational organization
o s. The most eminent orrganizations, which provvide mechannisms
for settliing dispute between thheir memberr States, aree the United Nations and a the reggional
48
organizattions, such as the Euroopean Unionn, the Orgaanization off American States, the Arab
league annd the Africaan Union.

(1) Peacceful Settlem ment of Disp pute by the United Natiions:

The Setttlement of internationaal disputes is i one of thhe most im mportant rolees of the United
U
Nations. The Charteer of the United Nations stipulates thhat it is the taask of the United
U Nationns “to
bring aboout by peaceeful means, and a in confoormity with the t principlees of justice and internattional
law, adjuustment or seettlement of internationaal disputes or situations which
w mightt lead to a brreach
of the peace.” To thiis end, the Charter
C proviides a systemm for the paccific settlemeent or adjusttment
of internaational dispuutes or situattions under which
w the wide
w competeence of the United U Natioons in
this mattter is establlished, and the correspponding obliigations of the memberrs of the United U
Nations are
a imposed. This system m is delineaated mainly in Chapter VIV of the Chaarter.
Chapterr VI of the Charter
C contaains the Uniited Nations mechanism m for the pacific settlemeent of
disputes. Article 33 3 obliges thhe parties too a dispute,, the continuuance of which w is likeely to
endangerr the mainten nance of intternational peace
p and security, to seettle such a dispute
d by anny of
the enummerated peacceful means therein, or by any peaaceful meanss of their chhoice. When the
parties faail to observe their obliggations or theeir efforts arre not successsful, the Unnited Nationss will
intervenee to consideer the disputte and give its recommeendations onn the matterrs. The Seccurity
Council isi given the primary ressponsibility in i this regard. It is entittled to intervvene either ono its
own initiiative, upon n invitation of any mem mber of the United Nations, upon invitation byy the
General Assembly,
A or
o upon a com mplaint of a party to a dispute.
d The Security Council may foollow
three couurses of actio on. First, itt may call uppon the partties to a disppute to settlee their dispuute by
any of thhe peaceful means listeed in Articlee 33(1). Seccond, it maay recommennd to the paarties
appropriaate procedurres or method of settlemeent. Third, itt may recom mmend termss of settlement, as
it may coonsider appro opriate.
Although under the t Charter the Securityy Council is given the primary p rolee for maintaaining
internatioonal peace and
a securityy, the Generaal assembly is not excluuded from doing d so. Under
U
Articles 11, 12 and 14, the Geeneral Assem mbly may discuss
d and make recom mmendationns for
procedurres or metho ods of adjusttment, or for terms of settlement,
s w regard to
with t any dispuute or
situation brought beefore it. Thhe disputes or situationns may be brought beffore the Geeneral
Assemblyy by the Seccurity Counccil, any mem mber of the United
U Nationns, or any Sttate party to such
dispute.

(2) Peacceful Settlem ment of Disp pute by Reggional Organ nizations:

Article 33(1)
3 of thee Charter off the Unitedd Nations requires
r the parties to any disputee, the
continuannce of which h is likely too endanger the
t maintenaance of interrnational peeace and secuurity,
to seek, first
f of all, a solution byy any of the peaceful
p meethods enumerated thereiin. Among these
enumeratted methods is the “resort to regionaal arrangemeents or agenccies”.
Article 52 of the Chaarter recognnizes the righht of the mem mbers of thee United Naations to estaablish
regional arrangemen nts or agenciies “for dealling with succh matters related
r to thee maintenannce of
internatioonal peace and
a security””. Paragrapph 2 of this Article requuires the meember Statess that
are memmbers of reg gional arranggements or agencies too “make eveery effort too achieve paacific
settlemennt of local disputes
d throough such regional
r arraangements oro by such regional
r ageencies
before reeferring them m to the Secuurity Councill.
49
 It seem ms that the obligation imposed
i upoon the membber States by b Article 522(2) is consiistent
with theiir obligation n under Artiicle 33(1). However, paragraph
p 1 of Article 52 imposess two
explicit limitations
l with
w regard to the utilizaation of regioonal arrangements and agencies.
a First, it
requires that
t the mattters dealt wiith must be “appropriate
“ for regionall action”. Seecond, it reqquires
that the “arrangements or agenncies and their activities are consisstent with thhe Purposess and
Principlees of the Uniited Nations””. Moreoveer, a third expplicit limitattion is impossed by Articcle 54
which requires that the t Security Council shoould “at all times
t be keppt fully inforrmed of activvities
undertaken or in co ontemplationn under regional arrangements or by b regional agencies foor the
maintenaance of interrnational peace and seccurity”. No similar expplicit limitatiions are impposed
with regaard to the utiilization of other
o proceduures for paciific settlement.
Article 525 is not onlly confined to legitimiziing regionall arrangemennts or agencies and impoosing
an obligaation upon the t member States, but goes beyonnd such legittimization and a obligatioon by
pacing a duty on thee Security Council
C itself. Paragrapph 3 of this Article requuires the Seccurity
Council to “encouraage the deveelopment off pacific setttlement of local disputtes through such
regional arrangementts or by suchh regional aggencies eitheer on the inittiative of thee states conceerned
or by refeference from the Securityy Council”.
This provision is in harmony with w the genneral approaach of the CharterC relateed to the paacific
settlemennt of disputees which requuires the parrties themsellves to seek a solution too their dispuute by
any peacceful means of their ownn choice, annd that the Council
C shouuld give everry opportuniity to
the partiees to do so. If the partiees have referrred their loccal dispute too the Securitty Council before
b
making any a effort to o achieve a settlement through
t the regional arrrangements or o agencies, then
the Counncil is under a duty to rem mind them of o their obliggation, or to refer such dispute
d at itss own
initiativee to such arraangements orr agencies.

SHORT QUESTIONS

Q1. Whaat do you mean

m by extrradition? Diifferentiate between exttradition from asylum??
ANS. In Black’s Law w Dictionaryy, extraditionn has been defined
d as “T
The surrendeer by one staate or
Country to another ofo an individdual accusedd or convicteed of an offeense outside its own terrritory
and within the territo
orial jurisdicction of the other,
o whichh, being comppetent to tryy and punishh him,
demands the surrend der.” Hence it can be summarized
s that Extradition is the act of sending a
person frrom one jurisdiction to another where he/she is accused of committinng a crime and a is
being demanded to get g them trieed as per thhe legal proccedure in thee sovereign demanding such
person.
The purppose of extraadition is too make sure that criminaals are surreendered from m one counttry to
another which
w leads to
t mutual coooperation between statees in control,, prevention,, and suppreession
of international and domestic crriminality. At A present inn this era off globalizatioon, where ceertain
groups annd individuaals are condducting tradee and busineess by variouus means annd channels at an
unpreceddented mann ner, most off the crimes have becoome cross-bborder in naature & thuus the
obligation on part off the states to extradite has gained enough signnificance annd value oveer the
years.
In the Suupreme Cou urt case of Abu
A Salem Abdul Qayyoom Ansarri vs. State of Maharasshtra
[(2011) 11
1 SCC 214 4], Justice Saathasivam was
w of the viiew that withh the tremenndous increaase in

50
the interrnational traansport and communicaation, extraddition has taken
t promiinence sincee the
emergencce of the 21sst century.

LEGAL STATUS OF EXTR RADITION: FROM IN NDIAN & INTERNA ATIONAL LAW L
PERSPE ECTIVE
As per thhe Indian Laaw, the extraadition of ann escapee orr fugitive froom India to another
a natioon or
vice verssa is dealt byb the ruless laid down in the Extrradition Actt, 1962. Thiis law form ms the
legislativve basis for extradition in
i India. Thhe Extraditioon act deals with two scchedules andd five
chapters. The Govern nment of Inddia till date has
h entered into
i Bilateraal Extraditionn treaties wiith 42
countriess to make thee extraditionn process effificient and haassle-free.
The termm Extradition n Treaty is defined
d as peer Section 2((d) of the Exxtradition Acct which expplains
it as, “a treaty, agreement or arrrangement with w a foreiggn state in the t relation of extraditioon of
fugitive criminals”.
c
Apart froom this, our country hass entered intto extraditioon arrangemeent with 9 countries
c as well.
Extradition request can
c be madee by India too any countrry. The counntries with which w India has a
treaty havve the obligaation to conssider the reqquest due to the
t treaty between the tw wo countries.
In other cases
c where there is nonn-existence of o a treaty, thhe foreign coountry may oro may not accept
a
the requeest and may subject it as per their doomestic proceedure and laaw.
Hence thhe obligation n for extraditting is due tot the treatiees and arranggement enteered into by India
with otheer nations. It needs to be understood that an Exxtradition is a sovereignn act and in cases
where there is no treeaty and abseence of interrnational dutty between the t two soveereign statess, any
sort of exxtradition acctivity is deppendent upoon the ideas of reciprocity and com mity which area an
essential part of the International
I l principles of
o amicable cooperation
c between staates or nationns.
As per Section
S 3 of the Extradittion Act, the government can issuee a notificatiion to extennd the
notificatiions of the act to the notified couuntries. The act furtherr defines thee ambit of what
Extradition offensess are and who w can bee extradited as per Secction 2(c) and a Sectionn 2(f)
respectivvely.
As per thhe International Law connventions, a state is not underu a bindding obligatiion to surrennder a
fugitive to
t another so overeign statte. There is no duty as such
s imposedd by the Inteernational laaw on
the states to extradiite. Althouggh there are certain bassic principlees governingg the extraddition
process which
w are accepted and followed
f by several natioons.

The prinnciple of Duual Criminallity:

Also knoown as the Principle off Dual Crim minality, it iss one of thee most signiificant princciples
governinng the law ofo extraditionn. It states that extradittion processs can only happen
h whenn the
criminal act under sccrutiny is an offense in both the jurisdiction of thhe sovereign states.

Rule of Speciality:
S
The ideaa behind this rule is to prrevent blankket extraditioon demand made
m by the requesting state.
The rule says that thhe fugitive who
w is extraddited for a ceertain crime should be trried for thatt very
crime annd not some other. In the judgment given by thhe Apex couurt in the casse of Daya Singh S
Lahoria vs.
v Union off India [(20001) 4 SCC 516],
5 it was stated that a fugitive criiminal brougght in
India undder extraditio
on treaty cann only be triied for the offense
o proviided in the extradition
e d
decree

51
and not for
f any otheer offense. The T Criminaal courts in IndiaI cannott try such fuugitive underr any
offense other
o than thee one alloweed for trial.
The princciple of Prop portional Punnishment:
Extradition may be refused
r in caases where there
t is a poossibility forr the extradiited individuual to
receive a punishmen nt out of prroportion orr severe in form when compared to t the degreee of
offense. This princip ple is specifiically invokeed in order to avoid vioolation of Huuman right norm
accepted globally. Where
W there is a possibility of the deaath of the fuugitive in thee requesting state,
such requuest is denieed as per thiss principle too protect andd avoid violation of Hum man rights norms
n
internatioonally.
Opportu unity for Fair trial:
Before thhe Extraditioon process iss initiated byy the requesteed state it is ensured thatt the fugitivee will
be given a chance to represent hiimself underr a proceduree of fair trial in the requuesting state. This
principlee is read wiith the prinnciple of noon-inquiry, where w the requesting
r sttate is undeer no
obligation to subjecct its judiciaal procedurees as per thhe punctiliouus evaluatioon criteria of o the
requestedd state. Thiss principle isn’t absoluute and rigidd in nature but the reqquested statee can
question the judicial procedure inn the requestting state if thet same is on o the face of
o it is against the
principlee of law and justice.
j

ASYLUM M
Asylum is i a Latin wo ord and it deerives its oriigin from a Greek
G word “Asylia” meeaning invioolable
place. Thhe term asylu um in comm mon parlancee means giviing protectioon and immuunity by a staate to
an indiviidual from their
t native country. Inn day to dayy conversatioon, the term m asylum is used
interchanngeably with h the term reefugee, theree is differencce between the
t two proccedurally whhere a
person who
w is still overseas seekks protectionn from a nation when giiven patronaage after reacching
there is given
g the tittle of a refuugee whereaas in asylum m the person seeks the protection
p frrom a
nation affter reaching there and heence is know wn as asylee or asylum seeker.
Asylum is interpreteed as a placce of protecttion or refuge for a fuggitive wheree he/she is given g
protection from triall and pursuitt from their home counntry or to proovide protecction to a fooreign
citizen byy a state agaainst his ownn government. The mainn purpose off asylum is to give sheltter to
those whho have weell-rounded fear in theeir home coountries of persecutionn. The Univversal
Declaratiion of Humaan Rights unnder article 14 1 (1), proviides that “Evveryone has the right to seek
and to ennjoy in other countries assylum from persecution”
p ”.
The ideaa of Asylum m remains thhat of personnal immunityy from authhoritative steeps of a deccision
maker thhan that of jurisdictiona
j al authority under whosse power it falls. Theree are mainlyy two
forms of Asylum:

(1) Terriitorial Asylu um:

It is grannted in the teerritorial bouundary of a state
s providinng asylum. Every
E sovereeign state haas the
right to control
c and maintain
m juriisdiction on its territory,, hence the decision
d to extradite sommeone
or give thhem asylum is totally unnder its discrretion. Thus a state has teerritorial sovvereignty ovver all
its subjeccts and alienns. This form m of asylum is mainly giiven to people who havee been accussed of
political offenses lik ke sedition, treason, and espionage inn their homee country. Territorial
T assylum
is based mainly
m on thhe national laaw of the sovvereign.

52
(2) Extraa-territoriall Asylum:
This form m of asylumm is usually granted
g by a state beyonnd its state teerritory and usually at places
p
which aree not a part of
o its physiccal territory. In such casee, a state providing asyluum in its embbassy
established in a foreiign state is called Diplom matic Asylum m. Asylum may m also be granted to asylee
a
in Warshhips because they are exxempted from m the jurisdiiction of the foreign statte in whose water
w
it is operrating. Such warships aree under the patronage
p off the Flag sttate. The sam
me is not thee case
with merrchant’s vessels as they are not imm mune to thee provisions of internatioonal law. Hence,
H
Extra-terrritorial Asyllum is basedd on the frammework of Innternational LawL Convenntions.
The conntemporary reasoning or rationnale behindd asylum must be understood via
RationaeeMateriae (Ju urisdiction over
o subject matter) andd Rationae Personae
P (Juurisdiction over
o a
person). A sovereign n state has the
t right to exclude the involvemennt or interferrence by annother
sovereignn
over its territory.
t Thiis principle ofo sovereignnty forms thee basis for Territorial
T Assylum and byb the
very natuure of this principle,
p it finds its exxtension to consulates, embassies, vessels, airccrafts
belonging to the soveereign state.
In recentt times, we have
h seen high profile inndividuals likke Julian Asssange and Edward
E Snow wden
seeking asylum
a undeer Ecuador and
a Russia reespectively. In case if Juulian Assangge, the foundder of
WikiLeakks organizattion, he souught extraterrritorial asyluum under Ecuadorian Embassy E afteer his
extraditioon was appro oved by the UK to Swedden. Whereaas, Edward Snowden S afteer exposing NSA
illegal sppying progrram sought refuge undeer territoriall asylum affter enteringg the territorry of
Russia.
Rationaee Personae ex xplains that certain indivviduals due tot immunityy granted to them due to their
position or capacity,, are not under the jurissdictional coontrol of a states which would otherrwise
have exeercised jurissdiction oveer them due to territorial sovereiignty. This form of sppecial
immunityy is applicab ble to Diplom mats, Headss of State, goovernment officials
o on a certain miission
etc.
In the Innternational sphere, the body of law ws governinng Asylum are a the 19511 United Naations
Refugee Convention n signed in Geneva
G and supplemented by its 19967 New Yoork Protocol. The
Geneva Convention
C along with the New Yoork Protocoll is considerred as the Coornerstone of o the
Internatioonal legal regime
r towaards the prootection and security off Refugees. The Conveention
Relating to the Statu us of Refugeees, or 1951 Refugee Coonvention, iss a UN treatyy defining who w a
refugee is and sets ou ut rights for the asylum seekers
s and the duties off the nation’s granting it.
Overall this
t treaty governs
g how
w states alloowing asylum m seeker annd refugees in their terrritory
should trreat these peeople. India is not a signnatory to thee 1951 Refuggee Convention and its 1967
Protocol.. Asylum is considered an a Internatioonal practicee based on Human
H Rights which takke the
shape as a customary y law with tiime because once it is foound in som me of the pracctices of the state
without any legal basis,
b it creeates an intternational obligation
o o the statee to upholdd this
on
customarry practice.

CORRE ELATION BETWEEN

B EXTRADIT TION AND D ASYLUM
Extradition is mainlyy the surrendering of a fugitive by one state too another forr the intentioon of
criminal prosecution. This is a way
w of providding legal assistance betw ween two soovereign stattes on
the basiss of some bilateral
b treaaty or ad hooc agreemennt. Asylum, on the otheer hand, is about a
offering protection
p to
o those at rissk of the legaal frameworkk operating in their hom
me country. Itt is at
53
times saiid that asylu
um ends wheere extraditioon initiates. Both of them are not iddentical and have
procedurral and functional differeences which have evolveed with time..

Extradition aims at securing criiminal justicce and denyying safe haaven to fugittive leadingg to a
stable traansnational criminal
c cooperation bettween the sovereign statees. Whereas Asylum seeeks to
provide a safe and secure livingg for individuuals on the run from their home coountry in ordder to
avoid poolitical perseecution. Graanting asylum m is clearlyy distinguishhed from thee order to refuse
r
extraditioon even tho ough the tw wo can be intertwined at times because therre can arisee two
possibilitties where a person’s exxtradition miight be sougght when theey are an asyylee or theyy may
apply forr asylum at a time when they are beinng asked to extradite by their home country.
Any extrradition requ uest made too a state forr an asylum seeker musst be in com mpliance witth the
principlee of non-refooulement in Internationa
I al law enshrined under article
a 33 of the 1951 Geeneva
Conventiion. The deccision to extrradite is left with the juddicial authorrities and thee issue of assylum
is dealt by
b the execu utive decisioon on practiical and pollitical grounnds most of the times. TheseT
concepts are conflictting in naturre and are noot mirror image of one another
a whicch strive for their
different goals and ideals.
i A reqquest for asyylum cannott be consideered if there is an extraddition
case pendding and thee court of law w, would noot hear extraadition case against
a an inndividual graanted
asylum inn their counttry.

Q2. Com mpare the features

f of the U.N. Charter
C andd the Coven nant of League of Natiions?
Also givee the reason ns for the faailure of the League?
ANS. Coomparison Between
B the Two Organiizations
It is interesting to coompare and contrast theese two majjor organizaations of the world. Thee first
major diffference bettween the Leeague of Naations and thhe United Nations N is thhe years in which
w
these ageencies operaated. The Leeague of Nattions came into being at a the end off the First World
W
War in 1919. The Un nited Nationns came intoo being undeer similar cirrcumstances at the end of o the
Second World
W War inn 1945.
League ofo Nations had
h only 63 memberm couuntries wherreas the Unitted Nations has 192 meember
states.
League ofo Nations did
d not succeeed in prevennting the woorld war whereas the Unnited Nationns has
preventedd the war so far. In terms t of faailures and successes, the t League of Nations was
considereed a failure, because, deespite its exiistence, the Second
S Worrld War wass still fought. The
League ofo Nations was
w set up ass an internattional regulaatory body to prevent fuuture conflicct and
resolve issues betweeen countriess. It was unaable to do thhis. The resuult was Worrd War II, which w
saw the killing
k of solldiers and civvilians in eppic proportions.
United States
S was no ot a part of the League of Nations which meanns less poweer whereas in i the
UN, Uniited States is i forming one of the most imporrtant membeer state. So the Leaguee has
emerged more powerrful organizaation.
Nations could
c leave the League of Nations when w they diid not agree but there iss no provisioon for
the membber states in the UN to leeave the orgganization.
h no armeed force wheereas the meember states of the UN can send sooldiers for sppecial
League had
tasks. Thhe United Nations,
N has been largelly successfuul in maintaiining the innternational order
from the time it was created. Thee main area of difference between thhe two, whicch turns out to be
a major advantage
a th
hat the Uniteed Nations has h over the League, is thatt memberr countries of o the
54
UN can deploy theirr armed forcces as a partt of a peacee keeping foorce in areass of conflict. The
League of
o Nations diid not have this
t advantagge.
Many immportant countries did jooin the Leaguue of Nationns. Every im mportant state is a membber of
the Uniteed Nations.
The Leaggue of Natio ons collapseed while thee UN is stilll existent. The
T U.N.O. is a much widerw
organizattion. Betweeen the two world
w wars {1919-1939}, the Leaguee of Nationss became a forum
f
of imperiialist powerss, an instrum
ment to mainntain their ow
wn interests and resolvee their imperrialist
conflicts..

Q3. Whoo are the persons

p of enemy
e character? Whaat are the rules r laid down
d by Geeneva
Conventtion of 1947 for treatmeent of Prisoners of Warr ?
ANS. Thhe rules prottecting prisooners of warr (POWs) arre specific and a were first detailed in i the
1929 Geneva Conveention. Theyy were refineed in the thiird 1949 Geeneva Conveention, folloowing
the lessonns of World War II, as well
w as in Addditional Prootocol I of 19977.
The statuus of POW only
o appliess in internatiional armed conflict. PO OWs are usuually membeers of
the armed forces of one of the parties
p to a conflict
c who fall into thee hands of thhe adverse party.
p
The thirdd 1949 Geneeva Conventiion also classsifies other categories of o persons whow have the right
to POW status or maay be treated as POWs.
POWs caannot be prosecuted for taking
t a direect part in hoostilities. Thheir detentionn is not a forrm of
punishmeent, but only y aims to preevent furtherr participatioon in the connflict. They must be releeased
and repaatriated withhout delay affter the endd of hostilities. The detaaining poweer may prosecute
them for possible waar crimes, buut not for actss of violencee that are law wful under IH HL.
POWs must
m be treatted humanely in all cirrcumstances. They are protected p aggainst any act
a of
violence,, as well as against
a intim
midation, insuults, and pubblic curiosityy. IHL also defines
d miniimum
conditionns of detenttion covering such issuues as accom mmodation, food, clothiing, hygienee and
medical care.
c

The fourtth 1949 Gen neva Convenntion and Addditional Prootocol I also provide extensive proteection
for civiliian interneess during inteernational arrmed confliccts. If justifiied by impeerative reasoons of
security, a party to the conflictt may subjecct civilians to assigned residence or o to internm ment.
Therefore, internmen nt is a securrity measure, and cannott be used ass a form of punishment.
p This
means thhat each inteerned personn must be released
r as soon as thee reasons whhich necessiitated
his/her innternment noo longer exisst.
Rules gooverning the treatment and a conditioons of detenttion of civillian interneees under IHL L are
very simiilar to those applicable to
t prisoners ofo war.
In non-innternational armed confflicts, Article 3 commonn to the 19449 Geneva Conventionss and
Additionnal Protocol III provide thhat persons deprived
d of liberty for reasons
r related to the conflict
must also be treated d humanely in all circuumstances. In I particularr, they are protected
p aggainst
murder, torture, as well as crruel, humiliaating or deegrading treatment. Thoose detainedd for
participattion in hostilities are not immunee from crim minal proseccution undeer the applicable
domesticc law for hav ving done so.

VERY SHORT
S QU
UESTIONS
55
Write a short note on:
o

Q1.Doctrrine of Doub ble Criminality?

ANS. Doouble crimin nality is a crrime punisheed in both thhe country where
w a susppect is beingg held
and a coountry asking g for the suuspect to be handed oveer or transfeerred to stannd trial. It iss also
known asa dual crim minality. Douuble criminaality is a reequirement in i extraditioon procedurres as
extraditioon is allowed only for offenses
o allegged as crimees in both juurisdictions. “For purposses of
determinning double criminality in an interrnational exxtradition caase, the couurt must loook to
proscripttion by simillar criminal provisions of o federal laww or, if nonee, the law off the place where
w
the petittioner is fou und or, if none, the law l of the preponderannce of the states. A broad b
interpretaation of the requirementt of dual criiminality is followed: The T law doess not requiree that
the namee by which the crime iss described in i the two countries
c shaall be the saame, nor thaat the
scope of the liability
y shall be coeextensive, or, in other reespects, the same in the two countriies. It
is enoughh if the partiicular act chharged is crim minal in botth jurisdictioons. The factt that a partiicular
act is claassified diffferently or that
t differennt requiremeents of prooof are appliccable in thee two
countriess does not defeat
d extraddition.” Heillbronn v. Keendall, 775 F. Supp. 10020 (W.D. Mich. M
1991)

In an innternational extradition case, it iss not essenttial that thee two statuutes be perffectly
harmonioous for the purpose of double crim minality. Doouble criminnality exists if the neceessary
characterr of the crim
minal acts of each
e countryy is same andd if the lawss are substanntially similarr.

2. Blockaade
ANS. Bloockade mean ns the isolattion of a natiion, area, citty, or harborr by hostile ships
s or forcces in
order to prevent
p the entrance
e andd exit of trafffic and commmerce.
Blockadee as used in Internationaal law refers to a belligerent's prevenntion of entrry to or depaarture
from an enemy's
e portts by stationning ships to intercept veessels trying to enter or leave
l those ports.
p
In order to be bindin ng a blockadde must be effective. The T governm ment of the United
U Statees has
uniformlyy insisted thhat the blockkade shouldd be effective by the preesence of a competent force, f
stationedd and presen nt, at or neaar the entrannce of the port.
p It musst be maintaained by a force
sufficientt to prevent access to ports.
p Blockaades are reggulated by innternational law and cusstom,
which reqquire advancce warning to t neutral staates and imppartial appliccation. Penallties for breaach of
blockadee are seizure of ship and cargo and thheir possiblee condemnatiion as lawfuul prizes. Usuually,
neutral shhips may not be destroyeed for blockade running.

3. Prize Courts
C
ANS. Priize Courts are a “Nationaal Courts”. They
T acquiree validity froom the statee- laws. Theey are
not Int- courts
c but decide
d the caases in accorrdance with the rules annd principless of Internattional
law. These courts aree open for thhe people of all nations.
The prizze courts deerive jurisddiction from m the belligeerent state which estabblish them. The
blishes thesee courts to get or acquiree the validityy of the goodds or ships seized
belligerennt state estab
by them.. Since prize courts aree national coourts, state laws and notification are a binding upon
them.
56
Prize couurts decide thhe cases in accordance
a w the rules and principples of Interrnational law
with w. But
since theey are estab blished by thhe state law w and derive jurisdictioon from nattional orderss and
notificatiions, in fact they apply the
t state law w or it can bee said that thhey apply Intternational laaw as
followedd or applied ini that particcular state.
Accordinng to Professsor Oppenheeim, “Prize courts
c are in fact not Inteernational coourts, but nattional
courts annd under Intternational laaw each statte has a dutyy to make such s rules annd laws for prize
courts in accordance with the rules and princciples of Inteernational law w.”

4. Belligeerent Occupation
ANS. Beelligerent or Military occcupation occcurs when a belligerent state invadees the territoory of
another state
s with thhe intention of holding the territorry at least teemporarily. While hostiilities
continue,, the occupy ying state is prohibited by
b Internatioonal Law from annexinng the territoory or
creating another statte out of it, but the occcupying statte may estabblish some form of military
administrration over the territoryy and the poopulation. Under
U the Martial
M Law imposed byy this
regime, residents
r aree required too obey the occupying
o a
authorities a may be punished foor not
and
doing soo. Civilians may also bee compelledd to perform m a variety of nonmilitaary tasks foor the
occupyinng authoritiees, such as the
t repair off roads and buildings, provided
p succh work doees not
contributte directly to
o the enemy war
w effort.
Althoughh the power of the occuppying army is broad, thee military auuthorities aree obligated under
u
internatioonal law to o maintain public ordeer, respect private
p propperty, and honor
h indivvidual
liberties. Civilians may
m not be deported
d to the occupannt's territory to perform forced laboor nor
impressed into milittary service on behalf of o the occuppying army. Although measures
m maay be
imposed to protect an nd maintain the occupyiing forces, existing
e lawss and adminiistrative rulees are
not to bee changed. Regulations
R of the Haguue Conventiions of 19077 and, more importantlyy, the
1949 Genneva conven ntion for the Protection of
o Civilian Persons
P in Time of War have
h attemptted to
codify and
a expand the protection affordedd the local population during perriods of military
occupatioon.

5. personna non greta

ANS. A Latin term indicating
i thhat a diplommatic agent of a state is unacceptable
u e to the receeiving
state. This can take place
p either before the individual
i iss accredited, indicating that
t the propposed
appointeee is unaccep ptable to thee host state and will noot be receiveed, or after the accredittation
process in response tot some real or alleged im mpropriety byb the diplom matic agent.
Proclaimming a diplom mat persona non grata usually resultts from an unfriendly
u atttitude towarrd the
(prospecttive) receivinng state, vioolation of its laws or of international
i l law, or impproper diplom matic
behavior or indiscrettions, althouugh the host state may prroclaim a dipplomat persoona non gratta for
any or noo reason. Thhe sending state must theen recall its agent
a or, shoould not recaall occur, thee host
state mayy ignore the presence of the diplomaatic agent or expel the dipplomat from m its territoryy.
The receeiving State may at anyy time and without havving to expplain its deccision, notify fy the
sending State
S that thee head of thee mission or any membeer of the dipllomatic stafff of the missiion is
persona non
n grata orr that any othher memberr of the stafff of the misssion is not accceptable. Inn any
such casee, the sendinng State shalll, as approppriate, either recall the peerson concerrned or term minate
his functtions with thhe mission. A person may m be declaared non grrata or not acceptable
a b
before
arriving in the territtory of the receiving State.
S If the sending Staate refuses or fails withhin a
57
reasonable period to carry out itts obligationns ... the receeiving State may refuse to recognizze the
person cooncerned as a member of the missionn.

58