@the_lawgical_world

PUBLIC
INTERNATIONAL
LAW
By

@The_Lawgical_World

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TABLE OF CONTENTS
PUBLIC INTERNATIONAL LAW ..............................................................................................1

Syllabus ...................................................................................................................................... 5

Unit-I ...................................................................................................................................6

Introduction .............................................................................................................. 7

International law .......................................................................................................7

Definition ...................................................................................................................9

Public International Law ........................................................................................ 15

Sources of International Law ................................................................................ 17

Nature/Characteristics of International Law .......................................................21

Scope of International Law ................................................................................... 23

Relevance and Function of International Law .................................................... 32

Municipal law ..........................................................................................................36

Relation between International Law and Municipal Law .................................. 37

Codification of International Law .........................................................................50

Unit-II ................................................................................................................................60

Introduction ............................................................................................................ 61

Recognition of state .............................................................................................. 62

State succession ..................................................................................................... 74

Responsibility of States for International delinquencies .................................. 85

State Territory ......................................................................................................... 94

Scope, Extent and Types of State Jurisdiction: .................................................100

State and Extraterritorial Jurisdiction ................................................................ 101

Modes of Acquisition of State Territory ............................................................107

Unit-III ............................................................................................................................ 116

Individuals in International Law ......................................................................... 117

Nationality .............................................................................................................123

Dual Nationality ....................................................................................................132

The Hague Convention, 1930 .............................................................................135

Extradition ............................................................................................................. 137

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Asylum ................................................................................................................... 147

Difference between Asylum and Extradition ....................................................156

Diplomatic Envoys ................................................................................................159

Treaties .................................................................................................................. 164

Formation of a treaty ...........................................................................................170

Role of treaties in International Law ..................................................................170

Modes of Consent ................................................................................................172

Suspension & Termination of treaty ................................................................ 177

Unit-IV ............................................................................................................................ 181

Introduction .......................................................................................................... 182

Legal Regime of the seas .................................................................................... 183

Evolution of law of Seas ...................................................................................... 186

Freedom of the High Seas ...................................................................................... 187

Freedom of the high seas ................................................................................... 188

Common heritage of mankind ...........................................................................189

United Nations Conventions on the Law of the Sea ....................................... 194

Legal Regime of Airspace ................................................................................... 207

Important Convention relating to Airspace ......................................................209

1). Paris Convention of 1919 ...............................................................................210

2). Havana Convention 1928 .............................................................................. 213

3). Warsaw Convention ....................................................................................... 215

4). Chicago Convention ....................................................................................... 220

Five Freedoms of Air ............................................................................................224

International Civil Aviation Organization (ICAO) ............................................. 225

Legal Regime on outerspace .............................................................................. 227

Outer Space .......................................................................................................... 228

Outer space Treaty ...............................................................................................229

Agreement on Rescue and Return of Astronauts ............................................232

Liability Convention ............................................................................................. 233

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Agreement on Registration of Space objects .................................................. 235

Moon Treaty ......................................................................................................... 237

Unispace ................................................................................................................ 240

Unit-V ..............................................................................................................................246

International organizations .................................................................................247

The League of Nations, 1920 ..............................................................................248

United nations ...................................................................................................... 253

International Court of Justice ............................................................................. 256

International Criminal Court ............................................................................... 257

Specialized agencies of the UN ..........................................................................260

WHO (World Health Organization) ....................................................................262

UNESCO .................................................................................................................267

ILO (International Labour Organisation) ........................................................... 272

IMF (International Monetary Fund) ................................................................... 278

WTO (World Trade Organization) ......................................................................282

Other Specialised Agencies ................................................................................ 287

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Syllabus
Unit-I: Definition, Nature, Scope and Importance of International Law
— Relation of International Law to Municipal Law — Sources of
International Law — Codification.
Unit-II: State Recognition — State Succession — Responsibility of
States for International delinquencies — State Territory — Modes of
acquiring State Territory
Unit-III: Position of Individual in International Law — Nationality —
Extradition — Asylum — Privileges and Immunities of Diplomatic
Envoys — Treaties – Formation of Treaties - Modes of Consent,
Reservation and termination.
Unit-IV: The Legal Regime of the Seas – Evolution of the Law of the
Sea – Freedoms of the High Seas – Common Heritage of Mankind –
United Nations Convention on the Law of the Seas – Legal Regime of
Airspace – Important Conventions relating to Airspace – Paris, Havana,
Warsaw and Chicago Conventions – Five Freedoms of Air – Legal
Regime of Outer space – Important Conventions such as Outer space
Treaty, Agreement on Rescue and Return of Astronauts, Liability
Convention, and Agreement on Registration of Space objects, Moon
Treaty - Uni space
Unit-V: International Organizations — League of Nations and United
Nations — International Court of Justice —International Criminal
Court - Specialized agencies of the UN — WHO, UNESCO, ILO, IMF and
WTO.

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Unit-I
Definition, Nature, Scope and Importance of International Law —
Relation of International Law to Municipal Law — Sources of
International Law — Codification.

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Introduction

International law, also known as International Ethics, public

international law and law of nations, is the set of rules, norms, and

standards generally recognized as binding between nations. Public

international law is the body of rules that is legally binding on States

and international organizations in their interactions with other States,

international organizations, individuals, and other entities. It covers a

range of activities; such as, diplomatic relations, conduct of war, trade,

human rights and sharing of oceanic resources. Traditionally,

international law regulated interactions between States. For example, it

determined how a State treats foreign diplomats who are in its country

or how international agreements between States are to be regulated.

For example, international law sets out legal obligations,

responsibilities, and rights of one State against another. This aspect of

international law is based on sovereign equality. In other words, each

State is a sovereign and each State is equal to, and independent of, all

other States. This means that when international law regulates the

relations between States, it applies equally to all States.

International law

International Law has been defined as the system composed

solely of legal rules and principles binding upon the civilized nations

only in their mutual relations by various ancient standard works.

The term International Law or Law of Nations has been used in

contradistinction to the National Law or Municipal Law which means the

law of country. International Law is, generally, above and outside, the

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national laws of the various States and to some extent operates on the
territories of all the States.

The term ‘International law’, also referred to as Laws of Nations

was first coined by Jeramy Bentham in 1780. Every country is referred to

as ‘state’ in International Law.

International laws are a set of rules, agreements and treaties that

are binding between countries. Countries come together to make

binding rules that they believe will benefit the citizens. It is an

independent system of law existing outside the legal framework of a

particular state.

International law also regulates relations between States and non-

State actors; for example, individuals, international organizations, and

multinational companies. In the case of individuals, international law

gives each individual certain rights. For example, international human

rights law gives the individual a right not to be tortured. This means that

a government cannot torture someone they deem a terrorist to obtain

information.

International law also imposes on States certain obligations and

responsibilities to protect individuals. For example, when States are at

war, one State cannot target and kill civilians of the other State who did

not take part in hostilities.

It is important to remember that international law is not stagnant.

It is evolving. International law covers diverse subjects and has multiple

fields of application. For example, we find that international law applies,

inter alia, to: initiation of wars (laws relating to use of force); conduct of

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war (humanitarian law); diplomatic relations (diplomatic law); trade and

investment; treatment of people (human rights law); ocean resources

(law of the sea); protecting the environment (environmental law), space

law, and to certain crimes (international criminal law).

Definition

According to Oppenheim, International Law is a “Law of Nations

or it is the name for the body of customary law and conventional rules

which are considered to be binding by civilized States in their

intercourse with each other.”

International Law is the body of rules which are legally binding on

States in their intercourse with each other. These rules are primarily

those which govern the relations of States, but States are not the only

subjects of international law. International organisations and, to some

extent, also individuals may be subjects of rights conferred and duties

imposed by international law.

According to Brierly, “The law of nations or international law may

be defined as the body of rules and principles of action which are

binding upon civilized States in their relations with one another.”

Hackworth similarly defines: “International Law consists of a body

of rules governing the relations between States.”

In Queen v. Keyn, (2 Ex. D. 63 (1876)), Lord Coleridge, C.J. defined

international law as “The law of nations is the collection of usages which

civilized States have agreed to observe in their dealings with one

another.”

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According to Gray, “International Law or the law of nations is the

name of a body of rules which according to the usual definitions

regulate the conduct of States in their intercourse with each other.”

According to Cobbett, “International Law may be described as the

sum of the rules accepted by civilized States as determining their

conduct towards each other, and towards each other's subjects.”

Modern definitions

According to Fenwick, “International law may be defined in broad

terms as the body of general principles and specific rules which are

binding upon the members of the international community in their

mutual relations.”

The definition takes into account the changes that have taken

place after the Second World War. The words members of the

international community' include States, international institutions,

individuals and non-State entities. The term general principles' is also

incorporated in the definition.

According to Whiteman, “International law is the standard of

conduct, at a given time, for States and other entities subject thereto. A

brief but adequate definition; the words other entities subject thereto'

may include international organisations, individuals and non-State

entities.”

Whiteman has also emphasised dynamic aspect of international

law: International Law is, more or less, in a continual state of change and
development.

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According to Starke, “International law may be defined as that

body of law which is composed for its greater part of the principles and

rules of conduct which States feel themselves bound to observe, and,

therefore, do commonly observe in their relations with each other, and

which includes also:

 the rules of law relating to the functioning of international

institutions/organisations, their relations with each other, and

their relations with State and individuals; and

 certain rules of law relating to individuals and non-State entities

so far as the rights and duties of such individuals and non-State

entities are the concern of the international community.

The definition of Starke takes into account the changing character

of international law and truly reflects the present position of

international law. However, if an entity not enumerated by Starke ever

comes within the scope of international law with the passage of time;

the definition would again be subjected to criticism. Thus, the definition

does not stand correct for all times to come.

According to Schwarzenberger, “International law is the body of

legal rules which apply between sovereign States and such other entities

as have been granted international personality.”

Thus, unlike Starke, Schwarzenberger very rightly preferred not to

name the entities whose rights and duties are regulated by international

law. According to him, international law, if and when grants international

personality to any entity, or when international law would be capable of

regulating rights and duties of any entity, its rules shall apply to them. It

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is immaterial if only certain miles regulating the rights and duties are
framed for them.

Object

The existence of international law is the result of increased

interstate engagement. It mainly aims to maintain international peace

and security among different states. It also helps in:

 promotion of friendly relations among the member states (members

of the International community, for example, United Nations),

 providing for basic humanitarian rights,

 to solve International problems through international cooperation,

 to refrain the state from using threat or force over the territory of

any other state to provide for the right to self-determination to

people, and

 to use peaceful methods to settle international disputes are few of

its functions.

Types

International Law can be broadly divided into three types: Public

International law, Private International law and Supranational Law.

(i) Private International Law

It is also referred to as, ‘Conflict of laws’ and the phrase was first

used by Ulrich Huber in his book- ”De Conflictu Legum Diversarum in

Diversis Imperiis” in 1689.

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Private International Law establishes and deals with the

relationship between citizens/private entities of different countries.

People from different parts of the world are often interacting with each

other forming legal relations.

It regulates private conflicts between individuals rather than the

States. It seeks to resolve disputes in the domestic municipal body

which involves an issue revolving beyond its domestic jurisdiction.

For example, an American man and an Indian woman were

married in India and now live in Los Angeles. In case they ever want a

divorce, the rules of private international law will determine where they

will be required to go, either to the US or to an Indian court to get

divorced.

The same is applicable to business as well as. Globalization has

led to business activities between various countries. For example, if you

are defrauded by a foreign country’s personal/private entity or

organisation, then the rules of private international law will apply if you

want to sue.

(ii) Supranational Law

Supranational law is a form of international law, based on the

limitation of the rights of sovereign nations between one another. It is

distinguished from public international law, because in supranational

law, nations explicitly submit their right to make judicial decisions by

treaty to a set of common tribunal. The United Nations Security Council

and subordinate organizations, such as the International Court of Justice,

are the only globally accepted supranational tribunals.

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It refers to a situation in which a nation/state surrenders to a

court of their choice their right to make certain judicial decisions, which

will take priority over the decision made by the national courts. This

distinguishes it from the Public International Law. For example, the

supranational law is represented by the European Union (EU). All the

courts within the member states of the EU are overruled by the

European Court of Justice in accordance with EU laws.

(iii) Public International Law

It refers to rules and regulations governing international relations

between different states and international institutions. It sets rules

concerning all mankind: the environment, international business, the

ocean, human rights, etc.

Public international laws apply to international organizations like

the United Nation (UN) and the World Trade Organization (WTO).

Aspects of Public International Law:

 Custom – consistent state practices relying on opinio Juris, that is,

belief, that is to be carried out there is a legal obligation to do so.

 Standard behaviour globally accepted, jus cogens.

 Legal Codes referred to as treaties.

 The Sovereignty of states:

It’s the idea that the state is supreme and it can’t be a subject to

other states’ rules and regulations. No state can be forced to sign a

treaty. They are free to accept or decline to sign an international

treaty or agreement.

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Public International Law

Meaning and Definition

Public international law is the body of law created through the

interactions between nations, or as the Restatement of the Law, Third:

Foreign Relations Law of the United States (Restatement Third) explains,

" International law is the law of the international community of states. It

deals with the conduct of nation-states and their relations with other

states, and to some extent also with their relations with individuals,

business organizations, and other legal entities." Nations adhere to the

concepts of international law through treaties, custom, and

interpretations by both their own domestic judiciaries and international

tribunals.

Public international law does not have a conventional

enforcement framework, so no worldwide policing organization exists to

ensure that treaties are followed. Instead, nations subject themselves to

international law by adhering to treaties, and by accepting customary

laws and agreed-upon general principles of law. Mutual respect among

nations and the understanding that a breach in any concept could lead

to retaliation from other nations, through economic or even military

sanctions, generally causes nations to follow the accepted standards of

public international law.

Public International Law is regulated by the treaties and globally

accepted norms and customs which are included as State practice and

opinio Juris. It regulates the relationship between those nations and

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peoples that are prone to be affected by a particular law as they are

bound by these legal codes and rules.

Definition

The term Public ‘international law’ was first used by Jeremy

Bentham in 1780. Oppenheim defined it as, “the name for the body of

customary and conventional rules which are considered legally binding

by civilized states in their intercourse with each other.” This definition of

Oppenheim was criticized on various points due to which it needed

reform. This reform was made by Sir Robert Jennings and Sir Arthur

Watts. They defined “International law is the body of rules which are

legally binding on states in their intercourse with each other. These rules

are primarily those which govern the relations of states, but states are

not the only subjects of international law. International organizations

and to some extent, also individuals may be subject to rights conferred

and duties imposed by international law.”

The definition which is given by Robert and Arthur is wider than

the earlier definition as it postulates that international organizations and

individuals are also the subjects of international law. But this definition is

silent about the ‘General principle of law’ recognized by a civilized

nation.

The traditional definitions given by various authors are suffering

from basic defects as they are narrow in their scope. The most

acceptable definition is given by Professor Starke. He has taken into

account all the modern developments and changes in human thinking.

According to him, “International law is that body of law which is

composed for its greater part of the principles and rules of conduct

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which states feel themselves bound to observe, and therefore, do

commonly observe in their relations with each other, and which includes

also:

 The rules of law relating to the functioning of international

institutions/organizations, their relations with each other, and their

relations with states and individuals; and

 Certain rules of law relating to individuals and non state entities so

far as the rights or duties of such individuals and non state entities

are the concern of the international community.”

Starke clearly widened the scope of the definition when he included not

only the relations between states but also the rights and duties of

international institutions as organizations, individuals and other non

state entities.

Sources of International Law

The sources of International Law are treaties, custom, general principles

of law recognized by civilized nations, judicial decisions and teachings of

publicists.

(i) Treaties

The concept of treaty is based on pacta sunt servanda, which is a

customary law principle which means promises must be kept. In a treaty,

countries create their terms of rights and obligations out of their

volition, thus it is very similar to a contract. Therefore, a treaty is a

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written agreement between two or more States which lays down the
manner in which every State would act while doing dealings with other

participating States. Sometimes, in place of treaties other terms such as

charters, declarations, conventions and statutes are often used. However,

there is a slight difference in meaning of these terminologies.

(ii) Custom

Custom is one of the primary sources of International Law. In

International Law, it is considered to be of particular importance

because of its decentralized nature. Two conditions are essential for an

act of a State to constitute as custom:

 The first being the State practice itself, it is not necessary that the

act of a State necessarily needs to be positive in nature. State

practice should be extensive, uniform and consistent and prevail

for at least such a period of time as would establish it as a

recognized act of States.

 The second essential is opinio juris, which means, the

psychological belief of a State that its act is creating a legally

obligatory position for itself. But it should be noticed that not

every activity of a State would necessarily create binding rules of

customary law. For instance, if a particular pattern is used by the

State on a particular issue in the General Assembly, it is reflective

of the maxim opinio juris.

(iii) General Principles of Law

As in International Law there is no cohesive body for legislating

laws or any Court that has the power to set precedents, thus it is

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relatively undeveloped as compared to the Municipal Law. Article 38 of

the Statute of the ICJ provides for ‘general principles of law recognized

by civilized nations’ as a source of law.

In the Chorzow Factory Case, the general principle of

International Law, it is the duty of a State to make reparations upon

the breach of an international obligation, was recognized by the

Permanent Court of International Justice. In the Corfu Channel

Case, while referring to circumstantial evidence, the ICJ pointed out that
‘in all systems of law indirect evidence is admitted and its use is

recognized by International decisions’. The principle of res judicata is

too recognised by International Law.

(iv) Judicial Decisions

As per Article 38, judicial decisions are recognized as subsidiary

means of determination of law. Article 59 of the Statute of the ICJ states

that the decisions of the Court can only guide them but does not have

any binding value on the Court and the court is authorised to apply the

previous decisions of the court which are known as the evidence of

International Law. Thus, the doctrine of stare decisis is not followed in

International Law.

ICJ through its case laws, advisory opinions and judges role-play a

major role in the law-making process. One of the major examples of this

was laid down in the case of Nicaragua vs. USA where the principle of

the prohibition against the use of threat or use of force was recognised.

This principle is now considered to be a part of Customary International

Law. In another case, that is, Alabama Claims arbitration, ICJ gave

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recognition to the peaceful settlement of international disputes. In this,

judicial and arbitration methods were used in resolving conflict.

(v) Writings of the Publicists

As per Article 38, teachings of the highly qualified writers of

International Law such as Gentili, Grotius, and Vattel are considered as

the subsidiary means of determination of law. The role of the writers is

extremely significant in providing a structure and coherence in the field

of International Law. Textbooks are used as a method of discovering law

on any particular point and law cannot be created even by the writings

of the most respected International Lawyers. As they provide an

understanding and explanation of the principles of International Law

these are considered as an evidentiary source of law.

Basis of International Law (Jurisprudential Theories)

The difference of opinion among the jurists led to the emergence of the

following theories:

1. Naturalist Theory

In the view of Naturalist Jurists like Grotius, Pufendorf and Vattel

“Law of nature” is the foundation of all law including international law.

International law is binding on the states as it is a part of the law of

nature. Grotius (1583-1645) secularized the concept of natural law. He

lent legal basis to many areas of international relations and therefore, he

is popularly known as the father of the law of nations. The theory of

Fundamental rights is based on the naturalistic viewpoint.

2. Positivist Theory

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Positivists define law as a command of the sovereign to its

subjects and the sanction is its physical force. According to them, the

rules of international laws and municipal laws are equally binding, since

both are issued by the will of the state, which is the source of the

validity of the law. It is the will of the state that commands obedience

both in municipal law and international law.

Nature/Characteristics of International Law

Since the emergence of the positivists, there is a controversy

which is waged over the nature of International law.” One of the most

debatable questions concerning this controversy is “Whether

international law is true law.” Positivists maintain that international law is

no law; it comprises of only the rules of positive morality. They argued

that there can be no international law since there is no international

legislature to make it, no international executive to enforce it, and no

effective international judiciary to develop it or to resolve disputes

about it.

1. Austin: International law is not a true law: A number of jurists like

Hobbes, Bentham and Pufendorf have a view that there is no positive

law of nations properly invested with a true legal force. According to

leading English Jurist, John Austin, International law is not a true law,

but a code of rules of conduct of moral force only. Basis of Austin’s view

is that International law is having no command of the sovereign.

2. Holland: International law is the Vanishing point of

Jurisprudence

He observed that the rules of international law “are voluntary,

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though habitually, observed by every state in its dealings with the

rest.” Such rules can only be called the law “only by courtesy”. In

international law both parties are judges of their own cause, there is no

arbiter above the parties.

3. International law is real law (Oppenheim, Starke, Pollock,

Brierly): International law works in a decentralized system, while

Municipal law works in a centralized system. Once we accept this fact it

is obvious to understand that the comparison between the two systems

is not proper.

The comparison is not proper because municipal law and

international law are different for they operate under a different set of

circumstances. Modern jurists accept that international law is real law.

4. International Law is weak Law: International law is not equivalent

to municipal law. It is not only less explicit than state law, but it also

lacks the coercive force of state law. There is no sanction for violation of

international law.

Some of the weaknesses of International law are as follows:

a. No central Legislature: It lacks effective legislative machinery. There is

no world parliament.

b. No Universal Jurisdiction of courts: Though International Court of

Justice has been established, still it does not exercise universal

compulsory jurisdiction for setting legal disputes between States since

the court acts with the consent of other states only.

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c. No effective executive authority: It lacks an executive authority to

enforce its rules. The UNO cannot take appropriate executive action in

cases which call for an immediate solution.

d. No enforcement machinery: There is an absence of international

police or military force. This creates a vacuum in so far as the executive

role of the UNO is concerned.

Scope of International Law

The scope of international law has extended from the

preservation of peace to regulate the various activities of international

life, like space expeditions, ocean floor explorations, protection of

human rights and global environment, management of international

financial system, etc. All these factors and developments emphasize the

need for an international law in the modem scenario.

(1) Interstate relations and their regulation: The International Law

has state subjects. When civilized states came into existence then

interrelation was natural. A mutual understanding and natural

interrelation became necessary. They have framed their own rules,

regulations, and treaties for further transactions. The rules and

regulations are laid down categorically in these relations because it

facilitates the amicable working of the functions between the states. The

rules and regulations broadly provide opportunities for different

programs to be carried out by different states. The customs followed by

the countries have culminated into laws. The same path of evolution is

taken by the International Criminal Law that has been codified. The wide

variety of subject matter has been covered under International Criminal

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Law such as extradition treaty, refugees, human rights, and sustainable

development.

(2) International organizations: A major development in the 19th and

20th century in International Law is the prominent position of the

International Organisations. The operations of these organisations is on

the global, regional, and sub-regional level. These organizations seek to

achieve the objective of the welfare of people. These organizations are

funded majorly by the developed countries and they are actively

supporting the developing countries for the betterment of the lives of

the people. These organizations have multi-dimensional areas of

operations. These are the major International Organisations:

a) World Bank– The World Bank provides economic support to the

countries for different kinds of infrastructural development, and

also the availability of basic facilities in the developing countries.

b) International Monetary Fund– The IMF helps the countries to

manage their balance of payments. The Sovereign Debt

Restructuring Mechanism of IMF aims to preserve asset value

and preserve the creditor’s rights and also paves the way with

the “help agreement” for debtors to grow.

c) World Trade Organisation– The WTO supervise and regulate

International Trade. This is the largest economic organization in

the world. It deals with trade of goods, services and intellectual

property among the countries. It provides a framework for

negotiation and dispute resolution to countries for efficient trade.

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d) European Union– The objective of the European Union is to

promote scientific and technological development, promotion of

the internal trade among the European Countries, and solidarity

during the time of War.

e) SAARC– The South Asian Association of Regional Corporation is

created with the objective of securing peace, and regional

harmony among the South Asian Nations. It currently has 8

members. It aims to achieve scientific and technological

development.

f) ASEAN– The Association of Southeast Asian Nations is a regional

intergovernmental organization comprising 10 countries, which

facilitates the economic, social, political, military, educational,

and socio-cultural integration among its nation.

g) SCO– The Shanghai Cooperation Organisation is the

intergovernmental international organization that aims to

promote effective cooperation in politics, trade, economy,

technology, and culture. The joint efforts will be made to

maintain peace and security in the region.

(3) Issues of non-state entities and individuals: The non-state actors

have played a significant role in maneuvering different important tasks

that fall within the ambit of International Law. The non-state actor is a

newly emerged concept in the recent past. They are struggling to get

legal recognition under International Law. They are economically,

financially, and strategically capable of doing things on the ground level.

The traditional International Law has not allowed the activities of the

non-state actors and also not predicted their existence, but with the

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sharp rise in the number of people who faced discrimination and

oppression in the hands of sovereign governments or the ethnic

cleansing of a race from a country, these factors led to the rise of these

non-state actors.

According to one definition suggested by Andrew Caplan:

The non-state actors, generally understood as, including any entity that

is not a state, often referred to as a terrorist group, religious group, civil

society, and corporations.

One of the pivotal reasons for not endowing the NSA with legal powers

and giving them legal recognition was that the states in traditional

International Law were reluctant to share their powers. The second

reason being, when the International law will legitimize the actions of

the non-state actors then they also legitimize the unlawful actions of the

non-state actors.

The strength of this argument depends upon the nature of the non-

state actors it is concerned with. The Civil Society is one of those non-

state actors that complained against, President of Congo, for violating

human rights on the International Forum. The President was summoned

and enquired about the same and the appropriate action was taken

against him. The intent and objective of the non-state actors by their

activities becomes apparent, and it helps to figure out whether they are

helpful or not. There are instances where many multinational

corporations, non-governmental organizations, and non-state actors

have economic, financial and institutional power, and also can dominate

the politics of a country, or change the political symmetry of a country.

The regulation through checks and balances must be done to stop the

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arbitrary actions of these non-state actors. The non-state actors are

both a boon and a bane for the emerging economies.

(4) Negative role of the Non-State Actors:

 The state where authoritarianism prevails understood that on the

International Forum, the legal responsibility of the non-state actor is

not recognized and so they won’t be held liable for any of their

deeds. The state uses them as the fig leaves to evade any kind of

accountability.

 This relationship between state and non-state actors is evident when

the state turns callous of their acts. The state uses the non-state

actors with their contacts and agencies. The non-state actors having

the similar ideologies with the state help them in their elections and

remove any kind of hindrances in their campaigning.

 In some cases, the state may not be able to manipulate the non-

state actors, but the non-state actors have robust establishment,

with institutional and financial dominance in the state. They abuse

their position and there are incessant violations of human rights.

(5) Positive Roles of the Non-State Actors:

 In the present scenario, the non-state actors have played an active

role in the fields of human rights and the protection of the

environment. The organization with the sole objective of advocating

human rights has ensured and uplifted the condition of poor people

in many countries. The active role played by these organizations has

helped the people with disabilities too, as one of these organizations

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participated in the drafting process of the UN Convention on Rights

of Persons with Disabilities.

 The non-state actors are allowed to participate in the drafting of

conventions on special legal issues. The most effective change

brought by the non-state actors is in the field of environmental law.

The development of concepts like Sustainable Development and

environmental protection got prominence when the non-state

actors started campaigning against environmental degradation.

 The Non-State Actor is concerned with the enforcement of

International Law and its norms. The non-state actors and non-

government organizations have a positive impact on the national

legal systems as they are aware of the International Laws and the

non-state actors are also taking part in formulation of plans, and

also draft different types of rules and regulations for protection of

different entities in the world.

 The non-state actors play a vital role in supervising the states

following international norms and standards. They actively

participate in supervising tasks. They also monitor the conduct of

the state as to whether they follow the international norms and

standards or not.

Sanctions in International Law

The Sanctions in international law include measures and

procedures for exerting pressures upon a state to comply with its

international legal obligations. Sanctions under classical international

law comprised of war and reprisals. In modern International law, war

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and reprisals in most of the cases have become unlawful in most of the
cases.

1. Sanctions by States: A state may apply sanctions by means of

self-help. Self-help is a right of a state which is available to the victim of

a wrong. Under the present rules of the United Nations, there is a rule of

restraint on a state to take action in self help The action taken in self-

help is required to be in strict compliance with the provisions of the

Charter and within due limits of the powers vested in each of them.

2. Collective sanctions: International organizations which are set up

by the states are empowered to take collective sanctions against a state

which violates the rule. The UN charter postulates economic, financial

and military sanctions under Chapter 7. In addition to them, the UN may

also apply political sanctions. The decisions of ICJ are binding upon the

parties to the dispute. Article 94 of the United Nations also provides

that if a party to the dispute does not follow the decision of the court,

the other party may approach the Security Council which can take

necessary measures to ensure the implementation of the decision.

Origin of International Law

The process of development of International law was spread over

from the middle of the 9th Century to the end of the 15th Century. The

fall of the church lead to the secularization of the political force and with

the fall of the Roman Empire along with the rise of national sovereign

states led to the emergence of nation-states on the Continent of Europe.

 International Law in the 19th Century

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It is in the 19th century that the law started looking beyond the
Treaty and Customs. The law saw many international conferences taking

place. The Congress of Vienna of 1815 marks the starting point of what

may be called international legislation. This congress formulated various

rules regarding the principle of legitimacy, diplomatic representations

and navigation in international rivers. The Declaration of Paris (1856) on

the regulation of maritime warfare, Geneva Convention (1864) of Red

Cross aimed at the amelioration of the conditions of the sick and

wounded in armies in land warfare and the Declaration of ST.

Petersburg (1868) prohibiting the use of explosive bullets in the war

were some of the important achievements towards the treaty-making in

international law.

 International Law in the 20th Century

The League of Nations after the First World War was the first

international organization designed to maintain international peace and

promote cooperation among nations. Permanent Court of International

justice in 1921 was succeeded by the present International Court of

Justice in 1946. After the second world there were various developments

in the field:

1. The establishment of the United Nations Organization (UNO) in 1945.

2. PCIJ was succeeded by the ICJ in 1946.

3. A large number of permanent International institutions like the ILO,

WHO and International Civil Aviation organization etc.

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4. International Law Commission (ILC) was created in 1947 which played

a very significant role in the codification and progressive development

of international law.

 Modern International Law

International Jurisprudence has acquired the maturity to realize

that effective international cooperation and guaranteeing the sovereign

rights of states and peoples. The primary sources of International law

comprise of Treaties, customs, general principles of law. The resolutions

of the General assembly and Security Council have a tremendous

contribution as a secondary source of International law.

The codification of International law is been done by the

International Law Commission, created in 1947. In 1982, the United

Nations Conference on Law of seas (UNCLOS) was adopted after the

hard work of 20 years. The protection of Human rights movement led to

the formation of the Universal Declaration of Human rights (UDHR) of

1948. The most important measure for the implementation of Human

rights is International Covenant on Civil and Political Rights, Its Optional

Protocol and International Covenant on Economic, Social and Cultural

Rights.

There are various regional organizations are created for reasons

of Military security like NATO, others to promote regional and cultural

identity like the African Union and the Organization of the American

States and European Union (EU).

Role of the Individual in International Law

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The individual has been considered as an entity in international

law after many decades. The individual has the least participation in

international law during the inception stage. The term individual has a

wide legal connotation, it is not something limited to a person, it may

be an entity, an enterprise or big business conglomerate. The term

individual may be a legal person whose job is to secure the rights of

people across the globe. The individual is the basis on which the entire

international law works because the objective of international law is to

protect the interest of the individuals. All the treaties, regulations and

customs have benefitted the individual in many capacities. The objective

of the International Law is to achieve global justice and resolve the

dispute amicably, that ultimately helps individuals.

The development of many areas in the International Law such as

International Human Rights Law with the objective to protect the

interest of the individual. The end of World War II led to the

establishment of the United Nations Organisation, after which the

concept of International Law flourished and went on to cover many

areas. The International Law under the head of International Refugee

Laws, seeks to achieve the freedom and rights of the refugees from all

countries. The United Nations had signed various conventions for the

protection of the environment and sustainable development goals. The

individuals also play an important role in international law in various

capacities.

Importance

Relevance and Function of International Law

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International Law governs how nations must interact with other

nations. It is extremely useful in regulating the issue of jurisdiction which

arises when people trade among different States. The main purpose of

International Law is to promote justice, peace and common interest.

The earliest expressions of international law were the rules of war

and diplomatic relations. During the Age of Discovery, rules on

governing the acquisition of territory became more important and they

talked about the principle of freedom of seas because this was

necessary for the expansion of trade.

International law, therefore, grew out of necessity. As

international engagement increased, international law expanded. In the

present-day world, international law is the most convenient form of

regulating world order. Some important functions of international law

include:

 To maintain International Peace and Security.

 To provide fundamental freedom and human rights.

 To refrain from the threat or use of force by a state against the

territorial integrity or political independence of any State.

 To provide the right of self-determination to people.

 To achieve international co-operation in solving international

problems of an economic, social, cultural and humanitarian

character.

 To settle international disputes by peaceful means.

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There exists no such thing as the world legislature, however, there

is an international code of law whose pervasive presence might

eliminate violence and tries to maintain world peace.

Merits/Demerits of International Law

Merits

 State’s Interest Protection: It can be said without a doubt that

International laws have protected the interests of states, especially of

those, which have no power to protect their own interests. For

example, the World Food Programme, a part of the UN, which is a

subject of international law, is a large humanitarian agency which

fights hunger worldwide and delivers food assistance in case of

emergencies.

 Human Being Welfare: It has played a vital role in the welfare of

human beings. For example, there are various international treaties

for the promotion of fundamental human rights, justice and equality,

like the Universal Declaration of Human Rights.

 Unity and Strength: This law has brought unity among different

nations/states as no one state can be separated from the other.

Every state has become the need of the other one. For example, the

problem of global warming. Every country emits greenhouse gases

which is further contributing to global warming and the impact of

the same will be felt by all the countries. So, no country can combat

global warming alone and will need international laws and

cooperation to curb the problem.

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Demerits

 No Apparent Authority: There is no authority for the enforcement

of the law. Only the International Court of Justice is present but it

can’t settle certain matters. Moreover, once a decision is given by it,

there is no such power or authority which can get it enforced.

 No Legislative Machinery: As the international laws are based on

treaties and conventions, they are interpreted by states according to

their self-interests.

 Lack of Effective Sanctions: There is no fear of sanctions, which has

resulted in laws being violated frequently by the states.

 Inability to Intervene: According to Article 2(7) of UNO Charter,

UNO cannot interfere in the domestic matters of the states. It has

been seen in such situations, international laws are ineffective and

weak.

Conclusion

International law is a set of rules which are binding between

countries and aims to ensure security and peace among various nations.

The subject of question under international law isn’t only the

Nation/state but can be an individual also. Moreover, it has emerged

through a number of sources which are codified in Article 38 of the ICJ

statute, according to which, customs, treaties and general principles are

considered to be the source of International Law. International law is

there to maintain world order and peace, settle various disputes among

different nations/states and individuals and to provide fundamental

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rights. However, there are still various shortcomings due to which

international relations are suffering.

Municipal law

Municipal law is the national, domestic, or internal law of a

sovereign state and is defined in opposition to international law.

Municipal law includes many levels of law: not only national law but also

state, provincial, territorial, regional, or local law.

Municipal Law is the law specific to a particular city or county

(known legally as a "municipality"), and the government bodies within

those cities or counties. This can cover a wide range of issues, including

everything from police power, zoning, education policies, and property

taxes.

According to the Black’s Law Dictionary, “Municipal Law” is

defined as: “The ordinances and other laws applicable within a city, town

or other local government entity”.

Basically, Municipal law is the national, domestic, or internal law

of sovereign state defined in opposition to international law. Municipal

law includes not only law at the national level, but law at the state,

provincial, territorial, regional or local levels. While, as far as the law of

the state is concerned, these may be distinct categories of law,

international law is largely uninterested in this distinction and treats

them all as one. Similarly, international law makes no distinction

between the ordinary law of the state and its constitutional law.

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Article 27 of the Vienna Convention on the Law of

Treaties provides that, where a treaty conflicts with a state's municipal

law (including the state's constitution), the state is still obliged to meet

its obligations under the treaty. The only exception to this rule is

provided by Article 46 of the Vienna Convention, where a state's

expression of consent to be bound by a treaty was a manifest violation

of a "rule of its internal law of fundamental importance.”

Relation between International Law and Municipal Law

Nothing is more essential in International law than having a

comprehensive understanding of its relationship with the Municipal law

of a State. there are two governing principles of International law

relating to the Municipal application of treaties, and they are:

 Article 27 of the Vienna Convention on the Law of Treaties:

Prohibits the states from invoking its Municipal law as its justification

for non obligation towards the performance of treaty.

 Article 8 of the Universal Declaration of Human Rights and

Fundamental Freedoms: Every individual is vested with the right to

an effective remedy by the tribunal which is competent to hear, for

violations of fundamental rights granted by the constitution or by

any other law.

The significance of the theoretical aspect of this topic can never

be overrated as the question regarding the consideration of limits

between International law and a state’s Municipal law is usually argued

among those who practice International law. Apart from the theoretical

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aspect of the relation between International law and Municipal law there
exist a practical problem in a State’s Municipal courts that, as to what

extent the Municipal courts of a country give effect within its jurisdiction

to the rules and principles of International law, both where the rules and

principles are in conflict with Municipal law and not in conflict with

Municipal law.

Relevant Theories

The two principal theories of the relationship

between International law and Municipal law are known as Monism and

dualism. As per the beliefs of Monism, International law and state’s

Municipal law are two components but complementary aspects of one

single system. According to dualism, they are entirely distinct and

different legal systems on their own. International law has an intrinsically

different character from that of the state law, because in International

law a large number of the State’s legal system are involved, the dualist

theory is sometimes known as the pluralistic theory.

To know the relationship between International law and Municipal

law, it is crucial to understand what these two laws actually are. The

rules and regulations which deals with the conduct of states is known as
International law. In order to simplify we can say, set of principles which

the states can invoke or apply while dealing with other states or

international organizations. On similar grounds, it is also called as “the

law of the nations”. On the other hand, The Municipal law is known as

the internal law of the land.

(i) Monistic theory

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International law operates only at the International level and the

Municipal law operates only on its local jurisdictional limits. However,

the advocates of natural law believe that Municipal and International

law form a single legal system, this approach is commonly known

as Monism.

To have a better understanding of this topic it is crucial to

understand what natural law is; natural law is something that exists in

isolation with the positive law. As the name suggests, it is determined by

nature, the law of nature is objective and universal in nature. From the

time of inception, natural law is referred to analyze human nature to

deduce moral behaviour from nature.

The argument from the side of a Monist is pretty simple, they

believe Municipal law and International law if looked together is nothing

but a single system. Modern writers who favor the monistic approach

endeavors that a major portion of their views are based on a strictly

scientific analysis of the Municipal structure of legal systems.

In a true monist country, there is no need for the translation of

International law into Municipal law. Once the state gives assent to the

treaty, it automatically gets incorporated in its municipal law. This act of

giving assent to an International treaty or obligation will immediately

incorporate international principles into state’s Municipal law, (this is

inclusive of customary International law).

International law can be applied by a Municipal Court, and can be

invoked by citizens, contingent on the fact that the international law is

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translated into the state’s Municipal law. A municipal court can declare a
law as unconstitutional if it contradicts International principles.

In a true monist state, if a national law contradicts International

law then it becomes null and void, no matter whether it is of

constitutional nature or not. For example, a state gives assent to

the Convention on the Rights of Persons with Disabilities, however, a

few of its national laws are in contradiction with the conventions rights

of the individuals who suffer from a disability. Then, a citizen of that

country, who is not getting deprived of the rights conferred by the

treaty, can ask the national courts to apply the treaty.

In a Monist State, the International law gets automatically

accepted and the contradicting part automatically gets translated away

the moment the State ratifies the treaty.

(ii) Kelsen: Grundnorm theory

For Kelsen, International and Municipal law is nothing but

“manifestations of a single unit of law”. Kelsen’s belief in the supremacy

of International law is the result of his “basic norm”, which states that:

‘states should behave as they customarily have behaved’.

International law is supreme in nature as it represents a legal

order which is higher than Municipal laws, it is because the International

law is derived from the state’s practice on the other hand the Municipal

law gains its power from the state’s internal affairs.

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Once it is accepted that International law is a system of rules of a

legal character, it becomes impossible according to kelson to deny that

the two systems constitute as a single system.

The theory of International law and Monism doesn’t have any

halfway house. Kelson observed natural law and International law as a

single and coherent system. According to him, International law is

placed at the top of the pyramid (as per his grundnorm hypothesis).

(iii) Dualist theory

Unlike Monists, dualists have stressed on the difference between

International law and Municipal law and have argued for the adoption

of International treaties in the Municipal law of the State. According to

dualists, in absence of this adoption by the State the International law

will not exist as a law.

The reason why dualists have this view is because they believe

International law and Municipal law are two different aspects of law and

it would be unreasonable to take the two as a unity. As per their belief,

International law and Municipal law are two distinct and independent

systems in itself.

In a dualist State, it is of utmost importance that International law

has to be drafted in its Municipal law in order to give it an effect. Apart

from drafting it is the duty of the state to omit those laws which

contradicts the newly adopted International law.

If a dualist State ratifies a treaty or a convention, but does not

create a law explicitly incorporating the treaty, then their act of non

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incorporation violates the International law. If the State has not

incorporated the principles of a treaty as per its local laws which it has

ratified earlier in the International sphere then, neither the citizens of

that country can invoke the International laws nor the courts can give its

decisions based on the principles of that treaty.

The United Kingdom is a country in which a dualist approach is

dominant. International law becomes the national law in the UK only if it

is translated.

 Hersch Lauterpacht on Dualism

Judge Lauterpacht was an advocate of natural law, he accepted

that International law observes the precepts of natural law. For

Lauterpacht, International law is more superior than municipal law, the

rationale behind this view is because it offers the guarantee rights for

the individuals notwithstanding anything from which state he belongs

to. As per Lauterpacht the hierarchy of legal orders was:

1. Natural law

2. International law

3. Municipal law

For him whether it is International law or Municipal law, it is the

individual who is the definitive unit of all law. He answered a few

fundamental questions of international law philosophy regarding the

concept and origin of international law.

He Criticized the doctrine of Heinrich Triepel’s doctrine of

international legal obligation, meanwhile agreeing with Kelsen that the

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binding force of law cannot be derived from the individual or common

will of the states.

For Lauterpacht, the international law is for the states and not for

governments. For him, the international community was a community of

individuals, whose will is expressed by the states.

 Triepel on dualism

Triepel treated the two systems of State law and International law

as entirely distinct in nature. For him the International and Municipal law

exist as two separated, distinct sets.

Triepel made following contentions on the relationship between

International law and state law:

 Firstly he contended that, International law and Municipal law

differ in the particular social relations that they govern; State law

deals with the individuals and International law regulates the

relations between States.

 Secondly, he argues that their juridical origins are different; the

source of Municipal law is the will of the State itself, the source

of International law is the common will of States.

There exist differences in: subjects, sources and content, also, it

requires ‘transformation’ of International law into Municipal law to make

International law binding on Municipal authorities.

Triepel accepted that the basic will of the States was the premise

of the legitimacy of International law; he also pointed out that it is

heavily relied upon the agreements between States, which not only

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includes treaties but custom too and the common will was the most
important and inventive source of International law.

The problem of “lex posterior”

In a dualist country, International law must be translated into

Municipal law, and the existing Municipal law which contradicts

International law must be “translated away”. The international law must

be translated into municipal law in order to conform to International law.

However, the need for translation causes a problem with regard to

Municipal laws which are developed after translation.

In a monist country, a law emerges after the International law has

been accepted and if it contradicts the International law, it automatically

becomes null and void. The International rule will continue to prevail.

In a dualist system, when the international law which is translated

into a national law can be overridden by another national law on the

principle of “lex posterior derogat legi priori“, which means: the later law

replaces the earlier one.

This means that a dualist state willingly or unwillingly can violate

international law. A dualist system requires continuous screening of all

subsequent national law for possible incompatibility with earlier

international law.

Difference between Municipal Law and International Law

The basis of both laws is different in many ways.

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 Firstly, International Law is majorly concerned with the relation

among States. Whereas Municipal Law controls the relationship

between individuals and the State and between the individuals

within a State.

 Secondly, in the case of International Law, the law is not above the

individuals but between the sovereign States and the States

themselves create the law. In International Law, the States often

disobey the laws or create laws as per their interests. Whereas in the
case of Municipal Law, the law is deemed to be above the

individuals, as is the case with the laws of most of the countries, the

law is deemed to be above individuals.

 Thirdly, the sources of both laws differ. Article 38 of the Statute of

the ICJ is considered as the most authoritative statement of the

sources of law for the Public International Law. It states the sources

of law such as customs, conventions, treaties, general principles of

law recognized by civilized nations and judicial decisions and

teachings of highly qualified publicists. Whereas in the case of

Municipal Laws there is a hierarchy of laws which determines, which

legal commandment is more authoritative than others. For instance,

in many countries, a hierarchy of courts is established wherein the

judgments of higher courts are of more authoritative value and thus

are relied upon by the lower courts.

Difference Monism theory and Dualist theory

Monism

1) As per the advocates of natural law, Municipal law and International

Law forms a single legal system.

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2) Monism is supported by the advocates of natural law.

3) In Monism there exists no need for translation of International into

Municipal law in order to give it an effect.

4) In a true monisitc country if a national law contradicts International

Law then it becomes null and void.

5) If a monist state ratifies a treaty or a convention, and does not

create a law explicitly incorporating the treaty then their act of non

incorporation will not violate the International Law.

6) In a monistic State International Law automatically gets embedded

in the Municipal law and the contradicting part gets automatically

translated away.

7) Supporters of Monism: kelson.

8) State which follows Monistic approach: germany.

Dualism

1) Municipal law and International Law are two different and distinct

legal systems.

2) It is supported by the advocates of positive law.

3) In a dualist country there exists a need for translation of

International into Municipal law in order to give it an effect.

4) In a true dualistic country, if a national law contradicts International

law then it becomes doesn’t becomes null and void, unless it is

already translated in its municipal law

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5) If a dualist State ratifies a treaty or a convention, but does not create

a law explicitly incorporating the treaty, then their act of non

incorporation violates the International law.

6) International law does not get automatically embedded in the

Municipal law.

7) Contradicting parts of the Municipal law has to be amended by the

state, as it does not get automatically translated away in a dualist

country.

8) In the absence of translation of International law into Municipal law

the International law will not exist as a law.

9) Supporter: hersch lauterpatch, triepel.

10) Country which follows: United kingdom.

Position of International Law with the Constitution framework of

India

The drafters of the Indian Constitution have been extremely

vague in defining the status of international law in the municipal sphere.

Our Constitution provides little guidance as to the relationship between

international law and municipal law. This ambiguity looms large in the

absence of any debate in the Constitutional Assembly on the subject

and the studied silence of Constitutional pundits.

The primary issue is whether our Constitution makes a mere

textual disposition of the relationship of International Law and

Municipal Law. Apart from the express provisions of the Constitution, we

also need to rely on actual State practice. Article 51(C) (which falls within

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the realm of the Directive Principles that are non-justifiable in character)

of the Constitution specifically mentions International Law and imposes

a duty on the state to respect it. But the jurisdiction of the court to

enforce them in the domestic arena has been limited by virtue of Article

37. In this backdrop, it is interesting to take note of 'The Regulating Act

of 1873', which directed all Courts in India to act in accordance with

"equity, justice and good conscience". On the basis of this principle,

Common Law rules were transplanted into the Indian Municipal Law. It
seems that India has barely deviated from its preconstitutional position

in the matters of basic canons governing the principles of International

law and Municipal Law.

It is a well-established principle that constitutional conventions

may also breathe through legislative or constitutional enactments; So,

the common law rules automatically became unwritten Constitutional

law of a supplementary character. It is an important principle of

Constitutional interpretation that every provision of the Constitution

must be given effect to. Therefore, these rules continue to be in force in

the Indian legal setting by virtue of Article 225 and 37 of the

Constitution of India. These provisions are based on the universally

recognised principle that law once established, continues until changed

by some competent legislative power. The Indian Independence Act,

1947 also incorporated the same principles under section 18(3).

Therefore, such practices will be of binding nature in International Law

as well as in the Municipal sphere.

Hence under Article 372 of the Constitution such practices will

have the force of law and India will be bound to observe the same. A

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composite reading of the Articles 51(c), 253 and 372 suggest that India
has not deviated from the common law position. Therefore, India will

have the same legal practice of treating customary International Law as

part of the law of the land provided that it is not inconsistent with the

existing statutory provisions and the national charter.

Regarding treaties, they have to be transformed into enabling

legislation. In the Indian context, the ratification of a treaty doesn't ipso

facto transform it into domestic law. The non-obstante clause under

Article 253 of the Constitution bestows on the Parliament exclusive

competence to legislate upon the treaties entered into by the

Government of India.

However, Dr. P.C. Rao aptly cautions that by virtue of Article 73,

"The executive power extends to all transactions which bring the Union

into the relation with any foreign country or other international person".

Accordingly, when there is a controlling executive; recourse cannot be

had to principles of Customary International Law. Nor can such

principles override the case law.

Supreme Court has held in several cases such as Vishakha vs.

State of Rajasthan, Randhir vs. Union of India, Unnikrishnan vs. State of

Karnataka, that domestic laws of India, including the constitution are not

to be read as derogatory to International law. An effort must be made

to read the domestic law as being in harmony with the international law

in case of any ambiguity. At the same time, the constitution is still the
supreme law of the land and in case of any directly conflict the

constitution will prevail.

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The above inspection of the Constitutional provisions amply

clarifies the status of international law in the domestic field.

Codification of International Law

“Codification” means “the more precise formulation and

systematization of rules of International Law in fields where there

already has been extensive State practice, precedent and doctrine.”

The term “Codification ordinarily implies the process of reducing

the generally existing principles of a branch of law into a Code capable

of enactment and reference. It aims at putting together the rules of law

on a given subject in a systematic manner making its provisions clearer

by removing all lacunas, and also modifying the rules in accordance with

the changed conditions.

In the restricted sense, it denotes the creation of codes, which are

a collection of written statutes, rules and regulations that inform the

public of acceptable and unacceptable behaviour. Thus, codification

does not give birth to rules or principles of a branch of law but only

assists to consolidate, compile or give shape to the existing rules of a

particular branch of law or in general.

Sir H. Lauterpacht has opined for a narrow meaning to the term

“Codification”. “The task of Codifying International Law, if it is to mean

anything, must be primarily one of bringing about an agreed body of

rules already covered by customary or conventional agreement of

States”.

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Therefore, in accordance to this opinion, the ‘Codification of

International Law’ only denotes to providing a written form to the

unwritten principles/rules of International Law. It does not involve the

prospective thinking nor does it allow the invocation of any

modification or amendment to the existing/present rules and norms.

In other words, codification properly conceived is itself a method

of the progressive development of law.

History of Codification

 The attempts to codify International Law had been underway since

the late nineteenth century at different levels. The first idea of

Codification of International Law was conceived by the British

philosopher, jurist and social reformer Jeremy Bentham at the end of

the 18th Before him an unsuccessful attempt was made by the

French Convention to draw up a Declaration of the Rights of Nations

in 1792.

 The Declaration of Paris, 1852 was signed by countries such as

Britain, France, Austria, Russia, Turkey, Prussia, and Sardinia after the

end of the Cremean War in 1856 and marked as the first step in the

history. The declaration laid down the principles relating to Abolition

of privateering, Non- capture of neutral goods except illegal imports

of war, under enemy flags, Non capture of enemy goods under

neutral flag except smuggled goods of war.

The Hague Conferences

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The most notable achievement before the First World War was at
the Hague Conventions of 1889 and 1907 relating to the laws of was

and neutrality.

 The First Conference of 1899 resulted in the adoption of two

conventions in the form of a code.

 Convention on the Pacific Settlement of International Disputes

 Convention on the Laws of Customs of War on Land

 The Second Conference convened by Russian Emperor Nicholas II in

1907 was attended by 44 states and almost thirteen conventions

were related to:

 Warfare and neutrality in war on land and sea

 The status of enemy merchantman at the outbreak of war

 Bombardment by naval force, etc.

The London Declaration

The London Declaration held in 1909 was signed by most of the

great powers including Austria, Hungary, France, Germany, Italy, Japan,

Russia, the United Kingdom, and the United States. The declaration

largely reiterated present laws, but dealt with many controversial points

relating to:

 Blockades

 Contraband and prize

 Rights of neutral entities

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Though, no state ratified the declaration and subsequently it

never came into force, the event is considered to be of immense

importance and significance in the history of codification of

International Law.

The League of Nations

The League of Nations, formulated in the year 1930, convened a

Codification Conference at The Hague, Netherlands. The League Council

appointed a Committee of sixteen jurists in 1924 to report the Council,

subjects which were to be taken up for consideration which primarily

included:

 Nationality,
 Territorial Waters
 State Responsibility for damage done in their territory to the

persons or property of foreigners,

 Diplomatic immunities and privileges,

 Procedure of International Conference and Procedure for the

conclusion and drafting of treaties,

 Exploitation of the products of the sea, and

 Piracy

Subsequently, in 1928, the Committee reported two more

subjects for codification namely:

 The Law relating to functions and competence of Consuls, and

 The Competence of Courts regarding foreign states

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The Conference turned out to be a big disappointment.

Agreements were reached on only the Convention on certain questions

relating to the conflict of Nationality Laws, and even those were ratified

later only by very few States. On all the other matters, the Conference

brought out sharp disagreements amongst the States, even on those

matters which, till then were generally regarded as established rules of

International Law.

The failure of the Conference served the members of the new

commission as a reminder to proceed cautiously with the Codification of

International Law through a longer process and more gradual process.

Establishment of the United Nations

The attempts to Codify International Law got a fillip with the

establishment of the United Nations. The United Nations Charter

delegated this task to the General Assembly.

 “The General Assembly shall initiate studies and make

recommendations for the purpose of ‘promoting international

cooperation in the political field’ and encouraging the

progressive development of International Law and its

Codification’.

 Thus, it may be put into light that the aim to Codify International

Law was not only existing but also found its place in the

fundamental document establishing the United Nations, i.e. the

UN Charter itself.
 Taking into consideration the urgency of the situation and its

importance, the General Assembly acted quickly. Subsequently, a

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committee was appointed on the 11th of December, 1946 for the

Progressive Development of International Law and its

Codification.

 Further, following the mandate of Article 13, the General

Assembly established the International Law Commission (ILC) in

November, 1947. The International Law Commission (ILC) first

met on April 11, 1949 in Lake Success, New York, United States.

The agenda for the session consisted of six items:

 Making a general survey of topics of International Law that

required codification into treaties and conventions,

 The rights and duties of states,

 The Nuremberg Principles and the definition of crimes against the

peace of mankind,

 Possibility of establishing a Judicial body to prosecute leaders

guilty of genocide,

 Finding ways to make the rules and documents of International

Law more available to the public and scholars,

 Cooperation by the International Law Commission with other

United Nations agencies.

 During the session, disagreement arose between the members as

to whether the commission was entitled to include a topic on its

agenda without prior consent of the General Assembly. On this

issue, the commission decided that it was competent to do so,

by a vote of 10 to 3.

 Subsequently, the 2nd, 3rd, 4th, and 5th sessions were held in the

years 1950, 1951, 1952, and 1953 in Geneva, Switzerland.

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The establishment of the International Law Commission (ILC)

brought out a turning point in the ‘Codification Movement’, i.e., the

movement for the systematic presentation of International Law in the

form of written rules representing a restatement of existing rules of

International Customary Law or the formulation of new ones.

 In respect to the Codification of International Law, the

commission decided to give priority to broadly the three

concepts:

 Law of Treaties

 Arbitral Procedure

 Law relating to High Seas

 It also follows a set procedure for the adoption of international

rules through multilateral treaties or conventions, irrespective

whether it is codification or progressive development.

 It first prepares a set of draft articles on the basis of reports

prepared by its member appointed as special rapporteur. The

draft is then sent to the States for their comments.

 After receiving the comments, the final draft on the subject is

prepared and sent to the General Assembly, which then decides

to convene on international conference for the adoption of a

convention, based on the draft.

The importance of the commission can be summarised in the words of

Lauterpacht, who states, “the texts prepared by the Commission are, in

terms of the rules about sources of International Law in Article 38(10)(c)

as under the Statute of International Court of Justice (ICJ) are at least in

the category of writings of more qualified publicists”

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 The Commission is composed of 34 members elected by the

General Assembly, having the competence in International

Law, and representing the main forms of civilisation and the

principal legal systems of the world. The ILC’s membership

was raised from 25 to 34 in 1981. The membership is

distributed as follows: Africa- 8, Latin America- 6, Asia- 7,

Eastern Europe 3, Western Europe and other States- 8, 1

national by rotation from Africa or Eastern European States,

and 1 national by rotation from Asian or Latin American

States.

The International Law Commission has conducted a total of 71

seventy-one sessions as of 2019. In accordance with the General

Assembly Resolution 74/186 of December 18, 2019, the ILC is scheduled

to hold its seventy- second session at the United Nations office at

Geneva, Switzerland from April 27 to June 5 and from July 6 to August 7,

2020.

However, taking into consideration the Global Pandemic relating

to Covid-19, the situation as to the conduct of the seventy- second

session still remains uncertain and precarious.

Role

The role of Codification and Progressive Development assumes

profound significance because of the complex nature of growing

international relations, which call for particular formulation and

endorsement. The purpose of codification may have been confused as

having a progressive trend or merely codifying state practice but in

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reality the codification exercise has turned out to be of worthwhile

assistance to the Development of International Law.

Codification means the systematic arrangement of the rules of law

which are already in existence. It involves three basic processes: Firstly,

the grouping together of all the rules in an orderly and logical manner;

secondly, an attempt to correct defects in those rules, that is, the filling

of omissions; and thirdly, the enactment of new set of rules into binding

law by some agency having the power to do this act.

The UN General Assembly established the International Law

Commission (ILC) in 1946 to promote codification of international law.

The major works of ILC can be listed as follows:

1. Its major contribution has been in the fields of law of treaties, the law

of diplomatic and consular relations, and the law of the sea.

2. The commission helped in the adoption of multilateral conventions

like The Geneva Convention on the Law of Sea, 1958, Vienna Convention

on Diplomatic Relations, 1961, The Vienna Convention on Consular

Immunities, 1963.

3. Apart from ILC, United Nations body has led to the adoption of

Multilateral Convention like the 1982 Law of the Sea Convention was

based on the work of the 3rd United Nations Conference on the Law of

the Sea (UNCLOS).

Conclusion

International Law is a set of rules which are necessary in order to

regulate the behaviour of nation-States towards each other so as to

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ensure peace and welfare of the International community. It helps in

resolving disputes amongst States. International Law may influence

internal laws too and may become a part of domestic law.

It is not necessary for International Law to be codified into an

agreement. There have been a lot of developments in the Modern

International Law and the International Court of Justice is considered as

the principal body responsible for upholding the tenants of

International Law.

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Unit-II

State Recognition — State Succession — Responsibility of States for

International delinquencies — State Territory — Modes of acquiring
State Territory.

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Introduction

In modern international law the State is the stable legal

organisation of a territorial political community in a form which enables

it, along with other similarly organised communities, to form part of the
international community of States. States are the basic, primary

components of the international community. As that community

evolved two or three centuries ago it was, with only very rare exceptions

of a sui generis character, composed exclusively of States. Today, with in

particular the emergence of international organisations of many and

varied kinds, it can no longer be said that the international community is

composed exclusively of States, but they are still its dominant

component.

A state acknowledgment or acceptance as an international

personality by the existing State of the international community. The

declaration to fulfill certain essential conditions of Statehood as

required by International Law.

State recognition signifies the decision of a sovereign state to

treat another entity as also being a sovereign state. Recognition can be

either expressed or implied and is usually retroactive in its effects. It

does not necessarily signify a desire to establish or maintain diplomatic

relations.

No definition is binding on all the members of the community of

nations on the criteria for statehood. In actual practice, the criteria are

mainly political, not legal. L.C. Green cited the recognition of the

unborn Polish and Czechoslovak states in World War I and explained

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that "since recognition of statehood is a matter of discretion, it is open

to any existing State to accept as a state any entity it wishes, regardless

of the existence of territory or of an established government."

In international law, however, there are several theories of when a

state should be recognised as sovereign.

The international community is the community of sovereign states

at an international platform. For any state to enjoy the rights, duties and

obligations of international law and to be a member of the international

community, recognition of the entity as a state is very important. Only

after recognition of the entity as a state, it becomes acknowledged by

other states who are a member of the International Community.

International law considers the act of recognition as an independent act

of the existing statehood community.

Recognition of state

Recognition of state under the International Legal System can be

defined as “the formal acknowledgement or acceptance of a new state

as an international personality by the existing States of the International

community”. It is the acknowledgement by the existing state that a

political entity has the characteristics of statehood.

Essentials for recognition as a state:

Under the International Law, Article 1 of the Montevideo

Conference, 1933 defines the state as a person and lays down following

essentials that an entity should possess in order to acquire recognition

as a state:

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 It should have a permanent population.

 A definite territory should be controlled by it.

 There should be a government of that particular territory.

 That entity should have the capacity to enter into relations with

other states.

Kelson’s view on the recognition of states

For a state to be recognized the following conditions must be

fulfilled-

 Must be politically organised.

 Have control over definite territory.

 Must be permanent.

 Must be independent.

Process of Recognition

 State is not only an institution with international legal standing but

they are the primary subjects of International Law and possess the

greatest range of rights and obligations.

 Mixture of fact and law and the establishment of particular factual

conditions and compliance with relevant rules are the process of

creating new States.

 States are not bound to recognise new claimants of Statehood and

make it a positive duty to recognize a State.

 Recognition is mainly a matter of intention.

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Israel-Palestine Dispute

In this dispute, India did not recognize Israel till 1999 and also

South Africa till 1991 due to racism. Even though India got military

support from Israel, still it didn’t recognise Israel. Where both the
countries had all the parameters under Montevideo Convention.

But Palestine got limited recognition by countries because they

had large number of Zewish population.

China-Taiwan Dispute

In this dispute, 15 countries recognised Taiwan as a state all over

the world. Taiwan was officially known as the Republic of China and is

recognised by 19 member states of the UN. Other countries have

business relations with Taiwan but they don’t recognise it as a state.

Taiwan unofficially maintains diplomatic relations with 57 other

members of the UN.

Political Recognition of State

 Political act in recognition is used to support or to reject a state or a

government which is new in an international community.

 Mixture of fact and law and the establishment of particular factual

conditions and compliance with relevant rules are the process of

creating new States.

 Criteria of Statehood is laid down in the Montevideo Convention,

which provides that State must have a permanent population, a

defined territory and a government and the capacity to conduct

International relations.

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 Recognition of State is a political act based on interest and

assessment made by States individually, but legal arguments are

important.

Montevideo Convention

To consider a State as an international person, State should

adhere to following qualifications-

 Permanent Population;

 Definite Territory;

 Government;

 Capacity to enter into relations with other States.

Legal Effects of such recognition

 When a state acquires recognition, it gains certain rights, obligations

and immunities such as.

 It acquires the capacity to enter into diplomatic relations with other

states.

 It acquires the capacity to enter into treaties with other states.

 The state is able to enjoy the rights and privileges of international

statehood.

 The state can undergo state succession.

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

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

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Theories of recognition

The recognition of a new entity as a sovereign state is based on two

main theories:

 Consecutive Theory

 Declaratory Theory

1. Consecutive Theory

The main exponents related to this theory are Oppenheim, Hegal

and Anziloti. According to this theory, for a State to be considered as

an international person, its recognition by the existing states as a

sovereign required. This theory is of the view that only after recognition

a State gets the status of an International Person and becomes a subject

to International Law. So, even if an entity possesses all the

characteristics of a state, it does not get the status of an international

person unless recognised by the existing States.

This theory does not mean that a State does not exist unless

recognised, but according to this theory, a state only gets the exclusive

rights and obligations and becomes a subject to International Law after

its recognition by other existing States.

Criticism of the theory

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

this theory are:

 This theory is criticised because unless a state is recognised by other

existing states, rights, duties and obligations of statehood

community under International Law is not applicable to it.

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 This theory also leads to confusion when a new state is

acknowledged and recognised by some of the existing states and

not recognised by other states.

2. Declaratory Theory

The main exponents of the Declaratory Theory of Statehood

are Wigner, Hall, Fisher and Brierly. According to this theory, any new

state is independent of the consent by existing states. This theory has

been laid down under Article 3 of the Montevideo Conference of 1933.

This theory states that the existence of a new state does not depend on

being recognised by the existing state. Even before recognition by other

states, the new state has the right to defend its integrity and

independence under International law.

The followers of theory consider the process of recognition as

merely a formal acknowledgement of statehood by other states.

Criticism of the theory

The declaratory theory of statehood has also been criticised. This

theory has been criticised on the ground that this theory alone cannot

be applicable for recognition of a state.

When a state having essential characteristics comes into existence

as a state, it can exercise international rights and obligations and here

comes the application of declaratory theory, but when other states

acknowledge its existence and the state gets the legal rights of

recognition, the consecutive theory comes into play.,

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Modes of Recognition

There are two modes of recognition of State:

 De facto Recognition

 De Jure Recognition

1. De facto Recognition

De facto recognition is a provisional recognition of statehood. It is

a primary step to de jure recognition. It is a temporary and factual

recognition as a state, and it can either be conditional or without any

condition.

This mode recognition is granted when a new state holds a

sufficient territory and control over a particular territory, but the other

existing states consider that it does not have enough stability or any

other unsetting issues. So, we can consider it as a test of control for

newly formed states. De facto recognition is a process of acknowledging

a new state by a non-committal act.

The state having de facto recognition are not eligible for being a

member of the United Nations. e.g., Israel, Taiwan, Bangladesh.

2. De jure Recognition

De jure recognition is the recognition of a new state by the

existing state when they consider that the new state fulfils all the

essential characteristics of a state. The de jure recognition can be

granted either with or without granting de facto recognition. This mode

of recognition is granted when the newly formed state acquires

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permanent stability and statehood The De jure mode of recognition

grants the permanent status of a newborn state as a sovereign state.

In the case of Luther v. Sagar, it was held in this case that for the

purpose of giving effect to the internal acts of the recognised authority

there is no distinction between de facto and de jure.

Example of de facto and de jure recognition:

One of the examples of de facto and de jure recognition is the

recognition of the Soviet Union was established in 1917. It was de facto

recognised by the government of UK in 1921 but it was not given de

jure recognition until 1924.

Bangladesh was established in March 1971. India and Bhutan

recognised it just after 9 months of establishment but the United States

gave it legal recognition after nearly 1 year in April 1972.

The distinction between De Facto and De Jure Recognition

S.No. De facto Recognition De jure Recognition

De facto recognition is a
De jure recognition is legal
1. provisional and factual
recognition.
recognition.

De facto recognition is De jure recognition is granted when

granted when there is the the state fulfils all the essential
2.
fulfilment of the essential condition of states along with

conditions of statehood. sufficient control and permanency.

3. De facto recognition is a De jure recognition can be granted

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primary step towards grant either with or without grant of de

of de jure recognition. facto recognition.

De facto recognition can

De jure recognition is a final and
4. either be conditional or
non-conditional recognition
non-conditional.

De facto recognition is De jure recognition is non-

5.
revocable in nature. revocable.

The states recognised under

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

The state with de facto

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

The state with de facto

The state with de jure recognition
8. recognition cannot enjoy full
enjoys full diplomatic immunities.
diplomatic immunities.

Forms of Recognition

When a newly formed state is recognised, its declaration can be

made in two forms:

 Expressed Recognition

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 Implied Recognition

1. Expressed Recognition

When an existing state recognises a new state expressly through

official declaration or notification, it is considered to be the expressed

form of recognition. Express recognition can be made through any

express or formal means such as sending or publishing declaration or

statement to the opposite party. When a state is recognised by

expressed ways, it is a de jure recognition unless provided otherwise by

the recognising state in the declaration.

2. Implied Recognition

When the existing state recognises a newly formed state through

any implied act, then it is considered as an implied recognition. Implied

recognition can be granted through any implied means by which a

current state treats the newly formed state as an international person.

The implied credit not granted through any official notification or

declaration. The recognition through implied means varies from case to

case.

3. Conditional recognition

The recognition of state with which certain conditions are

attached in order to obtain its status as a sovereign state is conditional

recognition. The conditions attached varies from state to state such as

religious freedom, the rule of law, democracy, human rights etc. The

recognition of any state is already associated with the essential

conditions to be fulfilled for the status of a sovereign state but when

addition condition is attached it is conditional recognition.

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Criticism

Many jurists criticise conditional recognition. The conditional

recognition is criticised on the ground that recognition is a legal

procedure, and no additional conditions should be attached with it

other than the conditions recognised by law. Another reason for

criticism is that the recognised state if it does not fulfil the condition

attached for its recognition, recognition is not extinguished and it

should still be valid.

Withdrawal of Recognition

1. Withdrawal of De facto recognition

Under international law when a state having de facto

recognition fails to fulfil the essential conditions of statehood, its

recognition can be withdrawn. The recognition can be withdrawn by the

recognizing state through declaration or through communicating with

the authorities of the recognized states. The withdrawal can also be

done by issuing a public statement.

2. Withdrawal of De Jure recognition

Withdrawal of de jure recognition is a very debatable issue under

the International Law. Withdrawal of a de jure recognition is a very

exceptional event. If strictly interpreted, the de jure recognition can be

withdrawn.

Even though the process of recognition is a political act, de jure

recognition is of legal nature. Jurists who consider de jure recognition as

a political act considers it revocable. Such revocation of de jure

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recognised states can be withdrawn only when a state loses the

essential characteristics of statehood or any other exceptional

circumstances. This type of revocation can be done expressly by the

recognising state by issuing a public statement.

Recognition of government

For any statehood, the government is an important element.

When a state is formed, its government changes from time to time.

When the government changes as an ordinary course of political action,

the recognition of government by the existing state is not required but

when the government changes due to any revolution, then its

recognition by the existing state is required.

For recognising the new government established out of

revolution, the existing states need to consider that:

 The new government have sufficient control over the territory and its

people or not.

 The new government is willing to fulfil the international duties and

obligations or not.

When the existing states are satisfied that the new government

resulting out of the revolution is capable of fulfilling the conditions as

mentioned above, then the new government can be recognised by the

existing states.

Conclusion

The recognition of the state is an essential procedure so that it can

enjoy all the privileges of statehood community under international law.

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The recognition being either de facto or de jure, it provides rights,

privileges and obligations. When a state gets its de facto recognition,

the rights, privileges and obligations are less but when it is recognised

de jure, it gets absolute rights, liabilities and privileges

There have been many instances where the powerful states create

obstructions in recognition of a newly formed state. It can even be

withdrawal when the recognising state feels that the new state is not

fulfilling the prerequisites for being a sovereign state. The recognition

can be done either by express form or implied form and its mode, i.e.,

de facto and de jure recognition varies from case to case basis.

State succession

Succession of states is a theory and practice in international

relations regarding successor states. A successor state is a sovereign

state over a territory and populace that was previously under the

sovereignty of another state. The theory has its roots in 19th-century

diplomacy.

State succession refers to the merging of two or more States. It is

different from government succession in the sense that in government

succession there’s a change of government whereas in State succession

the State loses control over its partial or whole territory.

Definition

Art 2(1)(b) of the Vienna Convention on the succession of States

in respect of treaties in 1978 defines the term State succession as ‘the

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replacement of one State by another in the responsibility for the

international relations of territory’.

The nature of State succession must be considered when a State

claims to be identical with a former State. The definition of the Vienna

Conventions correctly reflects the general conviction that a State

identical with another one cannot be its successor.

In essence, it deals with the succession of one state with another

and the transfer of rights and obligations. This concept has assumed

greater importance since World War II owing to its effects on the legal

obligations of the States.

States and the concept of statehood lie at the heart of

international law. As Oppenheim notes, States are the principal subjects

of international law and thereby possess international personality of the

fullest kind.

Oppenheim has stated that a succession of international persons

occurs when one or more international persons takes the place of

another international person, in consequence of certain changes in the

latter’s condition. Such a succession may involve any category of

international persons, but it is convenient here to consider only

successions involving states, whether fully or partially sovereign. While

Feilchenfeld simply notes that the transfer of one State to another is

usually described as ‘State Succession’.

The issue of state succession can arise in a number of defined

circumstances, which mirror the ways in which political sovereignty may

be acquired by, for example, decolonization of all or part of an existing

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territorial unit, dismemberment of an existing state, secession,

annexation and merger. In each of these cases a once-recognized entity

disappears in whole or in part to be succeeded by some other authority,

thus precipitating problems of transmission of rights and obligations.

However, the question of state succession does not infringe upon

the normal rights and duties if states under international law. These exist

by virtue of the fundamental principles of international law and as a

consequence of sovereignty and not as a result of transference from the

previous sovereign. The issue of state succession should also be

distinguished from questions of succession of governments, particularly

revolutionary succession, and consequential patterns of recognition and

responsibility.

Obviously the problem is different in the case of total acquisition

from what it is the case of partial acquisition. In the former case there is

no surviving person to whom antecedent rights and obligations may still

be attributed, whereas in the latter case there is. The problem in the one

case is to ascertain what rights and obligations pass to the Successor

State and what lapse for want of a juridical entity in which they can be

invested. The problem in the other case is to distinguish those rights

and obligations, which are automatically transferred to the successor

state from those, which remain with the Predecessor State.

Circumstances of State Succession

State succession can arise in a number of defined circumstances,

which mirror the ways in which political sovereignty may be acquired.

They are:

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 Decolonization of all or part of an existing territorial unit: This refers

to situations where the nation partially or completely overcomes

itself from the holding of a superior nation.

 The dismemberment of an existing State: This refers to a situation

when the territory of the predecessor State becomes the territory of

two or more new States who take over it.

 Secession: This refers to a situation where a part of the State decides

to withdraw from the existing State.

 Annexation: This refers to a situation where a State takes possession

of another State.

 Merger: This refers to the fusion of two or more free States into a

single free State.

Types of State Succession

In each of these cases, a once-recognized entity disappears in whole or

in part to be succeeded by some other authority, thus precipitating

problems of transmission of rights and obligations. There are two types

of State succession and they are discussed below:

1. Universal Succession

This is also referred to as Total Succession. When the entire identity of

the parent State is destroyed and the old territory takes up the identity

of the successor State, it is known as Universal Succession. This can

happen in cases of:

 Merger

 Annexation

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 Subjugation

In certain cases of universal succession, the old State gets divided into

multiple States. The dissolution of Czechoslovakia is an example of

universal succession. The new States of the Czech Republic and Slovakia
are both successor States.

2. Partial Succession

Partial Succession occurs when a part of the territory of the State gets

severed from the parent State. This severed part now becomes an
independent State. This can occur when there is a civil war or a

liberalization war.

There are two important examples of partial succession.

 One is the separation of Pakistan from India.

 The other is the separation of Bangladesh from Pakistan.

The existing States continued with their legal obligations and duties

while the new States got their own recognition and carried no rights or

duties of the parent States.

Theories of State Succession

(1) Universal Succession Theory

This is the oldest theory of succession propounded by Grotius,

using the Roman analogy of succession on the death of any natural

person. According to this theory, the rights and duties of the old State

i.e., the predecessor State pass on to the new State i.e., the successor

State upon succession without any exceptions and modifications.

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In fact, there are two justifications behind this theory.

 First that the State and the Sovereign gain all their power from God

and a mere change in Government shouldn’t cause any change in

the powers.

 Second, it is permanent and nothing can cause it to secede.

The application of this theory can be seen in cases of fusion in the

20th century. The fusion of Syria and Egypt, Somali Land and Somalia,

Tanganyika and Zanzibar are examples of this. However, this theory

failed to get any attention from the majority of States from the world

and has also been criticized by scholars from the world due to its

Roman law analogy, a poor distinction between succession and internal

change in governments, etc.

(2) Popular Continuity Theory

The Popular Continuity Theory can be described as another

version of the Universal Succession theory that was propounded by

Fiore and Fradier following the unification of the German and Italian

nationals. According to this theory, the State has a

 Political personality: It basically refers to the rights and obligations

of the State towards the government.

 Social personality: lt basically refers to the territory and the

population of the State.

Hence, upon succession, the political personality gets changed

whereas the social personality remains intact. So, a State succession

would not alter the rights and duties of the populace.

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However, this theory has not found its application in any country
outside Europe and also has been criticised on the grounds that it

functioned according to the municipal laws i.e, the local laws, which is

why it was difficult to understand the effect of State succession using

this theory.

(3) Organic Substitution Theory

According to this theory, the rights and duties of the State

continue even after succession by another State. Von Gierke had

published a paper in 1882 regarding The execution of rights and

obligations of a social body after its dissolution. It was from here that

Max Huber derived his organic substitution theory. Huber drew the

analogy that the problem of State succession was similar to that of

dissolution of a social institution.

The factual element of the people and the territory have an

organic bond i.e., the bond between the people and elements of State

and upon succession by a new sovereign, the organic bond remains

intact and only the juridical element changes. It offers a new explanation

to the continuity of rights and duties i.e., the substitution of a successor

State in the personality of its predecessor State. But, just like the other

theories, this theory too has had no practical application and has been

criticized for the same.

(4) Self Abnegation Theory

This theory was propounded in 1900 by Jellinek and is another

version of the universal theory of continuity. According to Jellinek, the

successor State agrees to observe the rules of international law and

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performs the obligations towards other States created under them.

Although, this theory considers that the performance of the

international obligation, is merely ‘moral duty’ of the successor State,

but at the same time it gives the right to the other States, to insist upon

the successor State to perform the existing obligation. If the successor

State refuses to accept, the other States may even withhold its

recognition or make the recognition conditional upon the acceptance of

the predecessor’s commitment towards them.

(5) Negative Theory

This theory was developed during the mid-19th and early 20th

centuries. After World War II, the jurists of the Soviet Nations started

emphasizing on the right of self-determination and on giving complete

freedom to the States to maintain their international relations.

According to this theory, the successor State doesn’t absorb the

personality of the predecessor State in its political and economic

interests.

Upon succession, the new State is completely free of the

obligations of the predecessor State. The successor State does not

exercise its jurisdiction over the territory in virtue of a transfer of power

from its predecessor but it has acquired the possibility of expanding its

own sovereignty.

(6) Communist Theory

According to the Communist Theory of State Succession, a

successor State is burdened by the economic and political commitments

of the predecessor. Thus, this comes as something completely contrary

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to the Negative Theory of State Succession and unlike the Negative

Theory, it doesn’t free the successor State from the obligations of the

predecessor State.

The Successor State is bound to adhere to the commitments of

the predecessor State. Political commitments involve peace, war and

territorial treaties and agreements while economic commitments include

any amount of money borrowed or lent. All these have to be fulfilled by

the new State.

Rights and Duties arising out of State Succession

The laws regarding State succession are still in a very nascent

stage and keeps evolving with the changing times. As seen above, along

with the territorial and power transfers, there are transfers with regard

to duties too. This section gives a brief idea about the transfer and non-

transfer of political as well as non-political rights and duties.

(1) Political Rights and Duties:

 No succession takes place with regard to political rights and duties

of the States.

 The peace treaties or the treaties of neutrality entered into by the

previous State aren’t binding on the new State.

 But the only exception here is in case of human rights treaties since

it would be desirable for the new State to adhere to such terms.

 Other than this, the new State would have to enter into new political

treaties of its own.

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(2) Rights of Natives or Local Rights:

 Unlike the political rights and duties, the local rights of the people

do not secede with the succession of the States.

 These rights refer to the rights such as property rights, land rights or

rights relating to railways, roads, water etc.

 In cases like these, the succeeding States are bound by the duties,

obligations and rights of the extinct State.

(3) Fiscal Debts (State or Public Debts)

 These refer to the financial obligations or debts of the predecessor

State. The successor State is bound to pay back the debts of the

predecessor State.

 This is because if the new State is enjoying the benefits of the loans,

it becomes a moral obligation as well to pay back the money.

 Next, if there is a split in the State then the entire debt amount gets

divided between the predecessor and successor State in accordance

with the territory and population of each.

Effect of State Succession on Treaties

The law on State succession with regard to treaties has for a long

time been dominated by two principles in general:

 One is the alleged principle of universal succession and

 The other is the tabula rasa approach i.e., clean State doctrine not

granting State succession to treaties.

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While the former principal keeps in mind, the interests of third

States regarding upholding or not upholding treaties, the latter favours

a rather strict understanding of sovereignty i.e., functions only according

to the interests of the successor and predecessor State. Neither of the

two principles can, however, offer a practical solution for various

scenarios where State succession takes place. Accordingly, under

customary international law more nuanced solutions have been

developed in the past or, at the least, are in the process of being formed.

The Vienna Convention on State Succession provides that:

 In case of the border treaties, no such significant changes would be

observed and the treaties would pass to the successor State.

 This is done keeping in mind the greater interests of the

International Community. Similarly, other forms of local treaties

related to land, territory, etc. would also pass on to the successor

State upon succession.

Treaties relating to Human Rights are passed on to the successors

with all their rights, duties and obligations. In the case of treaties

relating to peace or neutrality, no succession takes place.

Effect of State Succession on UN Membership

For instance, When Pakistan was separated from India, it claimed

itself to be a member of the United States since India was a member of

the UN. The then Secretary-General of the UN had then brought up the

following:

 From the perspective of International Law, the circumstance is one in

which part of the State breaks off from the original State.

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 When Pakistan separated from India, there was no change in the

status of India. India continued with all its treaties, rights and

obligations.

 On the other hand, Pakistan didn’t have any of those rights or

obligations and of course, had lost the UN Membership.

In International Law, the situation is similar to the separation of

the Irish Free State from Britain, and Belgium from the Netherlands. In

these cases, the portion which separated was considered a new State,

and the remaining portion continued as an existing State with all the

rights and duties which it had before.

Thus, in the case of succession, the UN Membership doesn’t get

transferred.

Responsibility of States for International delinquencies

State responsibility is incurred when one State commits an

internationally wrongful act against another. For instance, Article 2(4) of

the UN Charter prohibits dictatorial non-intervention by stating that

every State is under a legal obligation not to use or threaten to use

force against others. However, non-intervention is not merely limited to

the prohibition of the usage of force. Any form of coercive interference

in the internal affairs of a State would invite State

responsibility. As Oppenheim’s international law puts it, “the

interference must be forcible or dictatorial, or otherwise coercive, in

effect depriving the State intervened against of control over the matter

in question. Interference pure and simple is not intervention”.

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State responsibility is defined as the circumstances in which and

principle were by, the injured state becomes entitled to redress for the

damage suffered.

International delinquencies is a wrongful act that is committed by

state in violation of international obligation. However international

crimes is an extension of international delinquencies which is created in

a way that, crime to termed as international crime has to be a

performance or series in most of the state, in protection of a

fundamental rights so essential then they have to take the root of

committing the crime themselves and then they are treated as

international crimes, the damage is not a pre condition here, any

international responsibility could arise after internationally wrongful act,

and wrongful act is essence itself is enough to held state responsible for

the acts, it means the injured state could not require to proof that the

injured state is not required to state that it require any particular harm,

before it can fix, so the violation obligation in itself in

enough responsible for the unlawful act committed.

Nicaragua v. United States:

A landmark case in this regard is Nicaragua v. United States; the

case concerning military and paramilitary activities in and around

Nicaragua. It involved the United States supporting rebellion groups

against the Nicaraguan government. The Court found in its verdict that

the United States was “in breach of its obligations under customary
international law not to use force against another State” and “not to

intervene in its affairs”.

United Kingdom v. Albania (The Corfu Channel Case):

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On October 22, 1946, a few British warships, while passing

through the North Corfu strait within the territorial waters of Albania,

were severely damaged due to mine explosions. Most of the crew

members were either killed or gravely injured. The Albanian waters had

previously been swept clean of mines. The United Kingdom, through an

application filed on 22 May 1947 accused Albania of having laid or

allowed a third State to lay the mines after mine-clearing operations had

been carried out by the Allied naval authorities.

The Court found that Albania was responsible under international

law for the explosions that had taken place in Albanian waters and for

the damage and loss of life which had ensued. Although it did not

accept the view that Albania had itself laid the mines or granted

permission to another entity, it held that the mines could not have been

laid without the knowledge of the Albanian Government. Therefore, it

was concluded that the Albanian government had authorized the laying

of mines, and therefore was ordered to make reparation to the United

Kingdom.

Basis and nature of State responsibility

There are basically three factors that determine state

responsibility

 All states are under legal duty, that no wrongful act has been

committed by them

 The act must commit injury to other entity either loss or either

damage

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 It is must that an act shall be committed by state

 If all the facture are satisfied state is responsible for that act.

There are three factors employed to determine the liability of a

State. Firstly, the State must be under a legal duty not to commit the act.

Secondly, the State must commit the act. And finally, the act must cause

injury (loss or damage) to another entity. If these factors are satisfied,

the State is bound to make reparation to the injured parties.

However, a State is considered responsible only for the wrongful

acts which constitute international delicts. State responsibility for

international crimes is not clear. In its 1996 draft on State responsibility,

the International Law Commission (ILC) distinguished between

international delicts and international crimes. The question of State

responsibility in cases of international crimes has been highly

controversial. While some state that criminal liability of States holds no

legal value, others are of the view that there has been a whirlwind

change in the attitude of States against international crimes since 1945,

and that States could be held responsible for such acts. Examples of

international crimes include apartheid, genocide, slavery, colonial

domination, aggression, and massive pollution of the atmosphere.

Direct responsibility

The government, which includes the executive, the legislature,

judiciary, and the central authorities and local authorities, is what

represents the State. Therefore, in the event of any of these organs

committing a breach of international law, the State shall be held directly

liable. For instance, by the representative theory, diplomatic

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ambassadors are considered to be representatives of the head of the

sending State. Therefore if they commit a wrongful act in the capacity of

their diplomatic status, the sending State shall be held liable. Similarly, a

State is held liable for the wrongful acts of its armed forces, if it had

authorised the armed forces to carry out those acts.

Indirect responsibility

A State could also be held responsible for the acts committed by

other parties if those acts were authorized by it. This rule depends on

the link that exists between the State and the person or persons

committing the wrongful act or omission. Indirect responsibility/

vicarious responsibility is a condition when an entity is made liable to

make reparation, for the acts of another entity. This occurs when the

latter has been authorized by the former to commit the act. Therefore,

in such cases, the authorizing State is held indirectly liable for the acts of

the authorised State. Even if the authorized entities exceed or disobey

their instructions, the State shall be held liable, if they are acting under

‘apparent authority’.

United States v. Iran (1980)

On November 4, 1979, a group of Iranian rebels invaded the US

embassy in Tehran. They damaged the embassy and destroyed embassy

documents. The invasion lasted for hours, but despite repeated requests,

Iranian military forces did not arrive until later. More than sixty American

diplomats and citizens were held hostage until January 20, 1981. Some

of the hostages were released earlier, but 52 hostages were held

hostage until the end. Once on scene, the Iranian military did not

attempt to free the hostages. On November 29, 1979, the U.S. filed a

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claim against Iran in the International Court of Justice (ICJ). The ICJ
found the rebels to be ‘agents’ of the Iranian Government, because the

latter had approved and perpetuated their actions, translating

occupation of the embassy and detention of the hostages into official

acts of the State, of which the perpetrators, while initially acting in

private capacities, were rendered agents of the Iranian State.

The question of ‘Fault’

There are two theories attributed to State responsibility. The ‘risk’

theory says that a State is strictly liable if a State official or organ

commits a wrongful act. Whereas the ‘fault’ theory takes the element of

‘intention’ into account and says that a State shall be responsible only if

the act is committed intentionally or negligently.

There have been a number of debates regarding the applicability

of each theory in international law. Most jurists have inclined themselves

towards the ‘risk theory’ of State responsibility.

Legal consequences of State responsibility

Where there is a right, there is a remedy. When a State commits a

breach of international law, it becomes liable to make good the losses

faced by the injured parties. The first consequence is the cessation of

the wrongful act, and the second is reparation.

 Cessation of the wrongful act: International law requires the

accused State to cease committing the wrongful act and to offer

appropriate assurances and guarantees on non- repetition.

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 Reparation: The accused party shall be responsible to make

reparation to the injured parties for its wrongful acts. The accused

party is liable to make restitution, i.e., materially revert the original

party back to the same status before the wrongful act. If restitution

is not possible, the accused party shall be liable to make

compensation. Compensation involves the making of monetary

reparation, with an aim of reverting the injured party to its State

prior to the occurring of the act.

Another form of reparation is satisfaction. Satisfaction is

considered a more appropriate remedy than compensation, in cases

of moral damage. It may include any reasonable act demanded by

the injured State, such as the acknowledgement of the wrongful

character of the act, the punishment of guilty officials, nominal

damage, an official apology, etc.

 Diplomatic protection and nationality of claims: Although

International Law is now tending to grant certain rights to

individuals, the basic rule remains that in a State-oriented world, it is

only through the State the individual could seek a remedy.

If a national of State A has been injured by an agent of State B,

the injured national cannot by himself sue State B under

international law. In order to do so, State A would have to adopt the

claim of its injured national, and thereby treat it as its own.

While a State is under a duty to protect its nationals, it is not

under a duty to provide them with diplomatic protection. However,

if a State provides diplomatic immunity to its nationals, a wrongful

act against them would directly mean a wrongful act against the

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State. By virtue of the representative theory, a diplomatic agent is

considered to be the representative of the head of the sending State.

Therefore, an act of aggression against them would be an act of

aggression against the sending State. Diplomatic protection is the

result of the historical reluctance to permit individuals the right in

International Law to bring claims against foreign States.

 The exhaustion of local remedies: International law requires that

before State responsibility could be invoked, all local remedies in the

defendant State must be exhausted.

For instance, if a national working under State A commits a

wrongful act against State B, the remedies in the national courts of

State A must first be exhausted. This rule is reaffirmed in the ILC

Articles which provides that before holding a State responsible, all of

the effective remedies in the defendant State must be exhausted.

However, in certain circumstances, State responsibility could

directly be invoked. For instance, when there is a direct breach of

international law by one State that causes injury to another, or when

the defendant State does not possess effective remedies.

 Unreasonable delay and improper activities of the injured

national: There are certain circumstances when State liability is

impermissible. If there is an unreasonable delay in filing a suit for

State responsibility, the accused State shall not be held responsible.

Similarly, if a State has incurred injuries as a result of its own

improper acts, State responsibility shall be excused. However, in the

latter case, the proportionality of the injury with the improper act

shall be assessed.

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 Countermeasures: International law does not hold the usage of

force unlawful at all times. Since there is no concept of a ‘higher

sovereign body’ in international law, States may sometimes not

abide by their legal obligations.

For instance, if a State, in spite of being ordered to cease the

wrongful act, continues it, the injured State may lawfully use force

against it. Such acts have been termed as ‘reprisals’.

Reprisals refer to acts that are illegal if taken alone but become
legal when adopted by one State in retaliation for the commission of

an earlier illegal act by another State. They are a type of ‘self-help’

employed by the injured State to induce the wrongdoing State to

discontinue the wrongful acts, or make reparation.

However, countermeasures are subject to legal restrictions. Article

2(4) of the UN Charter prohibits the use of force. The

countermeasures must strictly be proportionate to the wrongful act.

The Corfu Channel case

A few weeks before the explosions on October 22, 1946, the north

Corfu strait had been swept clear of mines. Shortly after the explosions,

the United Kingdom government sent a note to the Albanian

government declaring its intention to organize a sweeping operation of

the mines. The Albanian government sent its reply to the United

Kingdom government stating that unless the operation in question took

place outside Albanian territorial waters, it would not consent to this

operation. However, the United Kingdom government went forward

with the operation, and a sweep of the mines was made on November

13.

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While the Albanian government accused the United Kingdom

government of violating its sovereignty, the United Kingdom

government justified the operation as a means of self-protection or self-

help. The Court was of the view that the operation was a manifestation

of a policy of force that cannot find a place in international law. It

declared that “respect for territorial sovereignty is an essential

foundation of international relations”, and thereby held the United

Kingdom government liable to make reparation.

Conclusion

If a State breaches a treaty, and the breach causes injury to the other

parties, it shall be bound to make good the losses. Reparation is the

indispensable complement of a failure of a State to apply any of its

obligations. If restitutio ad integrum is not possible, the accused party

shall be liable to make compensation.

State Territory

International Law is based on the concept of the State. No State

can exist without territory. International disputes pertaining to land title

as well as the precise determination of State boundaries, are the subject

of international proceedings. International community comprises of

States, and the existence of the States are defined by their territory and

sovereignty. The sovereignty sits at heart of the International Law.

The area or surface on which a state leads to or tends to exercise

its own sovereign or supreme authority/power is termed as state

territory.

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A state territory basically comprises of its surface underneath

subsoil, land territory, national water space, national air space, territorial

waters over the territory.

According to Kelsen, “when international law allows the states to

act in a particularly defined space than that is to be considered as the

territory of state”. In that space the state can perform its acts legally

without any interference.

According to Oppenheim's definition of state territory, “it is a part

of globe which is devoted and subjected to the state's sovereignty”. A

strolling group of people whether it is totally organised or has a

government it will not be a state until it gets its own territory.

State territory is absolutely an object of international law, as it

tells and recognises that which supreme authority must be exercised

according to international law.

Objectives:

 To study the meaning of jurisdiction and state territory in public

international law.

 To study the concept of territorial jurisdiction and sovereignty.

 To study the meaning of extra territoriality.

 To study the relation between state and extra territorial jurisdiction.

 To study various principles and case laws related to this.

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Territorial Jurisdiction or Sovereignty of States

Territorial jurisdiction of states is derived from the sovereignty of

states and consists of many features. When a state performs the

authority over the land, population, property and primary events

happening in the state territory. State has the power and authority to

form and enforce the laws made by it.

Territory refers to a geographical concept. Territorial jurisdiction of

states comprises of:

 Land,

 Territory,

 Territorial sea,

 Internal water,

 National aircrafts, and

 National vessel.

Territorial jurisdiction with respect to laws and commission of

crime means that, it consists of not only the crimes that are committed

within its territory or boundary but, the crimes which are committed

outside its territory and have direct effect on the state itself.

Territory can be subject to one of four types of regimes, one of

which is territorial sovereignty. They are as follows:

 Res nullius: Territory may be acquired by the States, but it has not

yet been granted territorial sovereignty.

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 Res communis: Territory that cannot be governed by a state such as

the high seas and the exclusive economic zones.

 Terra nullius: Territory that has never belonged to any other State,

but these States have their own status.

Sovereignty in relation between the states signifies independence.

Independence in regard to portion of the globe is their right to exercise

therein, to the exclusion of any other state, the functions of a state.

Therefore, State exercises its supreme authority within its territory.

The territorial sovereignty enables a State to exercise its fullest measure

of sovereignty powers over its land territory. In order to function as

State, the State must possess territory.

UK vs. Norway (North Atlantic Fisheries Case):

In this case, Norway's claim for sea territory and interference in

fishing vessel was challenged by the UK and it was also requested by it

to ICJ to determine extension of Norway's territorial claim to sea and to

provide some compensation as it was against the International law.

The Court held that claim to the waters regard to the part of the

sea space by Norway is completely consistent with International law.

Territorial sovereignty is something where it is essential for a state

to have a defined territory and state can exercise its authority and make

its own laws without any foreign interference. Territorial sovereignty sets

a rule which says that there is a specific territory and state only have the

exclusive power to act over it and apply its jurisdiction on people and

land included in the territory without approaching other states.

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Thus, we can say that the jurisdiction of a state over the boundary
or territory is termed as territorial sovereignty. And this is the reason

why any state can't encroach the power of any other state by exercising

its functions there, two states are separated by these criteria.

Nature

The nature of jurisdiction of state over the territory tells us that

how independent or sovereign is actually the state. The more territorial

sovereignty the state has the more independent it would become.

 State must have complete and full legislation and legal control over

the territory without any external disturbances.

 State must have territorial integrity and political independence to

become complete sovereign state.

 State should also ensure that it must be rendering its services and

imposing its supreme power without harming the rights of other

states.

All this should not be mixed up with the term Extra Territorial

Jurisdiction of state because it is a very limited expression of authority

of state or, say a part of state authority which is described under

modern international law which we'll discuss later on.

Meaning of Extraterritoriality:

Extraterritoriality in public international law is also known as Ex-

territoriality. Both the modern and traditional international law accept

this concept. It is a diplomatic immunity which is basically enjoyed by

the states which are out of its territory and organisations or bodies

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which are established internationally. This immunity is enjoyed by

administrators as resident of the state.

Since the concept is widely hold forth to the entities which are

present abroad, like the passage troops, vessels, legation etc. it helps
these agencies to get rid of complex local process of judiciary which is

under the enclave of foreign states. It also exempts such bodies from

police intrusion, and other estimates which put check on them. This is a

kind of fiction according to this the above mentioned agencies are

considered to not present within the state enclave(territory) where they

are literally present.

The doctrine of Ex-territoriality was first propounded by French

scholar Pierre Ayraut which was later adopted by many classic writers

like Hugo, Grotius, Pufendorf etc.

State and Extraterritorial Jurisdiction:

There are several rules in international law which show that a state

can't possess the jurisdiction over the other states. If state is made a

party to proceedings of alien states than that will be considered as

invalid. There are many cases in which different contentions have been

given pertaining to it. It was observed in one of the instances that a

supreme state gets resilience from other sovereign states according to

the proposition of international law.

The basic idea and scope behind the doctrine of ex-territoriality is

to protect the administrators and certain bodies from the local laws of

alien state if that body visits that foreign state than no local civil or

criminal law of the state should be performed over that body.

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Scope, Extent and Types of State Jurisdiction:

Scope:

The main aim behind this concept is to give protection and

exclusive resilience to the person and the property which resides and

are established under the region of state itself.

Extent:

The authority of state extends to its whole territory but, it also

may extend beyond its recognized territory to those people and

property and the things which have some connection or link to it. The

state can apply or impose its jurisdiction within or beyond its territory

but it depends upon some grounds and principles.

Types:

There are mainly three types of state jurisdiction, which are

discussed below:

 Legislative jurisdiction:

In simple words this is the power of state to make and prescribe

laws for its territory and it pursue that sovereignty to bind each and

every one within its territory by such laws. Our constitution has

recognized such bodies which have power to make laws. We often read

and see that a legislation exercises within its territory however only to

some extent it also extends to area of alien state, like under

International law, state imposes tax on such person who don't reside

within a particular territory but somehow have some link with the state.

If state makes any law which is contrary to the international law than it

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can be challenged on that basis, and this would be considered as breach

of International law.

 Executive jurisdiction:

It is the power of a state through which laws are enforced in the

territory. As we know that each and every state is independent and have

their own supremacy over their territory hence, they don't possess any

authority to enforce their laws over other state's territory. There is no

any authority or power given to any state through which it can infringe

the sovereignty of any other territory. There is a law or say rule through

which any state can't make or impose law on other state's territory

without getting their consent and if it would be done by any other

means than would be considered as breach of International law.

 Judicial jurisdiction:

It means the courts of the particular state has power to try the

cases related to law. Every state has power to make and establish courts

and assign them their jurisdiction and also prescribe the procedure for

them which to be followed. And like any other form of jurisdiction the

state also can't create any court or assign jurisdiction to it which may

abridge the operation of foreign courts. There are several principles

based on which jurisdiction of any state can be claimed. E.g. In matters

related to crime, the jurisdiction ranges from territorial principle to

universality principle.

State and Extraterritorial Jurisdiction

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There are several rules in international law which show that a state
can't possess the jurisdiction over the other states. If state is made a

party to proceedings of alien states than that will be considered as

invalid. There are many cases in which different contentions have been

given pertaining to it. It was observed in one of the instances that a

supreme state gets resilience from other sovereign states according to

the proposition of international law.

This extraterritoriality of the states under international law possess

a deep connection with sovereign freedom and completely based on

this rule. We can see in cases like- Duff development company vs.

Kelantan government and Thai- Europe Tapioca Services Ltd. V.

Government of Pakistan in these cases it is clearly discussed that the

extra territorial aspect of sates is interlinked with the absolute sovereign

immunity and it extends to every aspect except when it is connected

with trade and property which are not dedicated to public use. So, by

this we can say that there must be some connection of extraterritoriality

of states with the public of both the states and must do some effect on

the elements of both states.

Principles of Territorial Jurisdiction:

There are mainly five principles on which the civil and criminal

matters of state jurisdiction depend upon:

(1) Territorial principle:

State sovereignty depends upon this principle, according to which

a state has an exclusive control over its territory, people, and property

included in its territory and all other foreign states must respect this

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sovereignty of a state. The primary jurisdiction over the territory is

exercised by the state only irrespective of the nationality of the person.

This principle is considered as the primary ground of dominion in

international law.

The internal affairs of a state must not be infringed by the

unnecessary intrusion of other foreign states. A state deals with matters

which are under the enclave of state and also the matters which are

somehow connected with the state in any condition. This condition

leads towards the operation of concurrent jurisdiction under which there

are two parts named as- Subjective and Objective Territorial Jurisdiction.

According to it the state in which crime takes place or the crime

has committed exercises the subjective territorial jurisdiction and, the

state to which this commission of crime affected exercises objective

territorial jurisdiction. Although there are some conventions and treaties

due to which the states get power to confer upon other states and

exercise jurisdiction in those other states to some extent. E.g. Israel-

Jordan Peace Treaty, France-UK Protocol.

(2) Nationality principle:

According to this principle a state can exercise its jurisdiction to

its people who are the nationals of the state and to the actions which

are carried out by these nationals beyond the state territory. This

relationship is completely free from the criteria of location. Criminal

jurisdiction is certainly based on this principle, civil law jurisdiction

extensively uses this and as we see the common law jurisdiction use this

principle for major crimes like murder.

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On the ground of active nationality principle any state can

prosecute and punish any such person who is the national of that state

and has committed the crime in any other state. On the ground of

passive nationality principle any state can claim jurisdiction for those

crimes which are committed against the nationals of that state by the

foreign nationals (aliens) abroad.

The passive nationality principle has been in controversy for so

many years and not as much acceptable as the prior one because it

somehow created a hate between the states but now it is being

considered by the cosmopolitan agencies for the crimes like terrorism

and other international crimes.

(3) Universality principle:

According to it a state can claim jurisdiction over the crimes which

are committed by any person in any country universally. State does not

need to have any special connection with the person for claiming

jurisdiction.

But the scenario was little different before the second world war,

at that time this principle was considered to be contrary to international

laws but after second world war this principle was recognized

completely in order to protect states from those crimes which were

intercontinental and which were committed against a whole community

by violating the international law, e.g. crimes against humanity, crimes

related to war, hijacking of aircrafts, terrorism etc. when all these kind of

crimes came into scenario the states are provided with this principle and

were made free to exercise power in the other states where crime takes

place.

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(4) Protective principle:

According to this principle a jurisdiction can be performed over

the prejudicial act of person (alien) by whom the crime is committed

outside the state's enclave but is completely against the interest and
security of a state. This particularly protects the vital interest of the

nation state in which the crime committed by alien is serious but no

punishment for that is prescribed in the nation state where he resides

and also the extradition is refused in that country.

Sometimes this principle is easily abused and undermined by the

people just because it is narrower and that is why it is treated as

secondary to the territorial and nationality principle. Use of this principle

takes place when something is done abroad and is against the

sovereign power of the state, e.g. forging of currency, violation of

immigration laws etc.

(5) Passive personality principle:

According to this principle, where the victim resides or the state

of which victim is a national than the accused will be punished and

prosecuted according to that state and according to their laws.

Important Case Laws:

SS Lotus Case:

In the present case France challenged the validity of arrest of

French representative of ship, by turkey, as he was representing that

ship when it got crashed with ship of turkey. This arrest was in violation

of International law according to France.

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Then the court held that, according to treaty (Treaty of Lausanne)

turkey is authorized to arrest that officer and since a supreme nation

state's jurisdiction was challenged then the load of proving it is over

plaintiff itself. This case is always seen as a high state of positivism. it

can be said after this that international law provides independence to

nation states to perform in any aspect.

Mubarak Ali Ahmad vs. State of Bombay:

In the present case the appellant Mubarak Ali was a resident of

Pakistan and he made a misrepresentation against the defendant in

Bombay with regard to some rice business in order to receive amount

by such misrepresentation keeping in mind that since he is a national of

Pakistan and doing all this from Pakistan without entering in India so

due to all this he can't be held liable for it under IPC. But court held him

liable U/S 420 of IPC even if he was not there in India personally at that

time but the whole crime was committed in Bombay itself hence his

conviction was not invalid according to the territorial jurisdiction.

Director of Public Prosecution vs. DOOT:

In this case the defendant was held liable for ship in harmful

drugs in UK. He contended that he must not be held liable as the crime

is committed in alien state. It was held by the court that no matter in

which nation state the crime was committed the defendant were

foreigners and were up to the task of importing the harmful drugs in UK.

Here international components were there because the crime was

carried out abroad and the criminals were aliens but as per one of the

provisions of nation state's jurisdiction under international law, they can

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be held liable in a state for a crime which is committed outside the state
by the aliens.

Critical Analysis:

After all this detailed discussion about the theory of International

law, state jurisdiction the various principles and extent of ex-territoriality

we can now say that it is a very major part for laws of any country. Every

country's laws must be depended on it and include some part of it. The

concept of territoriality helped us a lot in many ways till now, there are

so many states which apply and use this majorly and this concept

somehow helps them to minimize the crime rates happening worldwide.

The principle of ex-territoriality and territorial jurisdiction are very

important part of international law. However, there are some states

which have distinct laws on this very concept but overall, this only helps

in the welfare of states and also helps to create good correlation among

the states worldwide. All the five type of principle help the states to use

international law with great wisdom and keep check upon the crimes

that happen in their territory as well as worldwide.

This concept also helps us to understand that the ability of a

nation state is not extended to its own territory and people only but

also to the territories to which theses states has good relation with. The

public international laws and its concepts helps to maintain the integrity,

peace and harmony between the states worldwide.

Modes of Acquisition of State Territory

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Traditionally there are several distinct modes by which

sovereignty can be acquired over territory. It is now generally

acknowledged that these categories are deficient in many aspects. The

classification of these modes was originally borrowed from Roman law

rules relating to the acquisition of land by private parties. The modes of

acquisition are cession, effective occupation, accretion, conquest or

subjugation and prescription.

These modes of acquisition can be divided into categories:

 Original and

 Derivative.

Occupation and accretion are commonly described as original,

cession as derivative. Here, it is pertinent to note that there are still

differences of opinion in regard to conquest and prescription. The said

classification has no practical value and misleading in terms of modern

practice. However, these modes of acquisition of territory fully relevant

for two simple reasons.

These are:

 The Doctrine of inter-temporal demands that a State titles to

territory can be judged in the context of the law of time;

 The modern practice has evolved out of traditional practice, hence

'the old is necessary to an understanding of the new.

(1) Cession

Cession is transfer of territory from one State to another State.

The cession of territory means the renunciation made by one State in

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favor of the rights and title which the former may have to the territory in
question. It has often taken place within the framework of treaty either

in peaceful or postwar situations. In order to effect cession of territory, it

must be clear that transfer of actual sovereignty is intended. Cession

without intention cannot legally operate.

It is important to note that State receiving the territory may cede

any part of its land territory. By doing this, all its State territory will

completely merge with other State. In case of defects in the ceding

State's title, the title of the State to which the territory is ceded will be

vitiated by same defects.

It is expressed by the Latin maxim, Nemo Dat Quod Non Habet

i.e., nobody can give what he doesn't have. It means that acquiring State

cannot possess more rights over the territory than its predecessor State

had.

Case law

In the Island of Palmas case, the Spain had ceded Philippine Island

to the United States by Treaty of Paris concluded in 1898. The treaty

expressed the Island of Palmas as part of the Philippines. When the

United States proceeded to take possession of the Island, it found that it

was under the control of Dutch. The United States and Netherland

referred their dispute to arbitration by sole of arbitrator. The claim of

the United States was partly based on Treat of Paris 1898, which

transferred all rights over territory to the United States and therefore,

the United States had acquired it by way of cession.

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On other hand, the Netherlands Government argued that the fact

by the discovery of Spain was not proved, and the Netherland

possessed and exercised rights of sovereignty for more than 200 years.

The arbitrator, Max Huber, held that the treaty could not be regarded as

conclusive, the Netherland had administered it since early eighteenth

century, it is evident that Spain could not transfer more rights than it

itself possessed.

Sometime the cession is an outcome of peaceful negotiation or

war. It can also be accomplished by gift or voluntary merger of territory.

(2) Occupation

Occupation is the acquisition of terra nullius - that is when a State

intentionally acquired sovereignty over territory, belonged to no State.

According to Article 42 of The Hague Regulations of 1907,

occupation read as follows:

Territory is considered occupied when it is actually placed under

the authority of the hostile army. The occupation extends only to the

territory where such authority has been established and can be

exercised.

Robert Jennings defines occupation:

The appropriation by a State of territory which is not at time

subject to the sovereignty of other State.

The territory in question may have never belonged to any State

whether it is uninhabited or inhabited by natives living under tribal

organization is not considered to be State. In another scenario, the

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territory may have been abandoned by previous sovereign.

Abandonment of territory means intention to abandon the territory.

Case law:

(i) In Western Sahara Case, the court prepared an advisory opinion at

the request of United Nation on the Western Sahara. The question

before the court was whether the western was, at the time of its

colonization by Spain, a territory belonged to no one, or terra nullius. In

its opinion the Court clearly stated that territory inhabited by the people

with political or social structure is not terra nullius.

Therefore, it cannot be occupied.

Territory is occupied when it is placed under effective

administrative control. To constitute an effective occupation, the

acquiring State must take possession of territory with intention

acquiring sovereignty over it. After acquiring possession over territory,

the State has to be established an effective administrative system within

a reasonable period of time. If the State has failed to establish some

responsibility over it, it would not be considered as an effective

occupation.

(ii) In the Eastern Greenland case, the International Court of Justice

noted:

Another circumstance which must be taken into account is the

extent to which the sovereignty is also claimed by some other Power. In

the vast majority of instances involving territorial sovereignty claims

before an international tribunal, there have been two opposing claims to

sovereignty, and the tribunal must decide which is the stronger... in

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several situations, the tribunal has been comfortable with very little in
the way of genuine sovereign powers exercise, as long as the opposing

State could not establish a superior claim. This is particularly true in the

case of claim to sovereignty over areas in thinly populated or unsettled

countries.

In another case, the arbitrator held that in order to acquire

territory by occupation there must be:

 Intention and will to act as sovereign

 Adequate exercise or display of sovereignty.

Today, there are hardly any parts of the world that could be

considered as terra nullius because no terra nullius lands remain on this

planet.

(3) Prescription

Prescription is also based on effective control over territory. It

may be defined as:

The means by which, under international law, legal recognition is

given to the right of a state to exercise sovereignty over land or sea

territory in cases where that state has, in fact, exercised its authority in a

continuous, uninterrupted and peaceful manner over the area

concerned for a sufficient period of time.

No rules laid down that set out minimum times or requisite acts

of sovereignty to create such title by prescription. The matter depends

upon circumstances of each case. In order to establish title by

prescription, there must be effective control, and that control must be

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for longer period of time. When State acquires territorial sovereignty

over another state by way of prescription, it needs to be accompanied

by acquiescence on the part of losing State or if the protests, acts or

statements of other States demonstrate lack of acquiesce, it may

prevent acquisition of title by prescription.

Prescription is acquisition of territory belonged to another State,

whereas the occupation is acquisition of terra nullius. But the difference

is usually blurred in real life.

(4) Accretion

Accretion refers to the natural geographical processes that results

in an increase or decrease in the territory (physical expansion of territory)

due to natural formation of land. It results in new formation of land.

New formation may be natural or artificial i.e., outcome of the human

work. Artificial formations include man-made islands, embankments,

dikes, breakwaters and so on along the coast -line of the sea.

Natural Formations include lands formed due to volcanic actions,

the abandonment of a river channel and the formation of new channel,

the drying up and change in the course of boundary river or the gradual

deposits of materials in river deltas.

In case of a drying or shifting of a boundary river:

 If the change is gradual or slight, the boundary may be shifted;

 If the change is violent and excessive, the boundary remains at the

same position along the previous riverbed.

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No State is allowed to alter the natural conditions of its own

territory to the disadvantage of the natural conditions of a neighbouring

State territory without a previous agreement with the neighbouring

States.

(5) Subjugation

Subjugation is the mode of acquisition of territory by conquest

followed by annexation. In those days acquisition of territory by

conquest was not lawful until the defeated State entered into a peace

treaty which ceded territory to the victor or which recognized the

victor's title. In case of absence of peace treaty, it was necessary to show

that war had come an end by way of producing evidence. For Instance,

German annexation of Poland during Second world war was invalid due

to continued struggle against Germany by Poland allies.

Treaty by way of aggression or force is void under International

Law. It is illegal to wage war against another State for the purpose of

acquiring territory. It also casts duty upon the States to respect the

territorial integrity of their neighboring States as well as other States.

The territory of a State shall not be object of military occupation

resulting from the use of force. In contravention of the provisions of the

Charter. The territory of a State shall not be the object of acquisition by

another State resulting from the threat or use of force.

Loss Of State Territory

The modes are cession, dereliction, operation of nature,

subjugation, prescription and revolt. Revolt is one of the only modes of

loss of territory in which there is no corresponding mode of acquisition.

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However, it appears that revolt is more about political matter rather

than a legal mode of loss of territorial sovereignty.

On other hand operation of Nature as mode of losing territory

corresponds to Accretion. The difference between accretion and

operation of nature is that former results in extension of territory

whereas, latter results in disappearance of territory due to natural

calamities.

Dereliction corresponds to the occupation. It simple means

abandonment and relinquishment of territorial sovereignty. There must

be actual abandonment of territory and also an intention of giving up

sovereignty.

Conclusion

The mode of acquisition of territory in international is highly

difficult and impossible. In modern international law, the only legal way

to acquire the territorial sovereignty is by way of treaty. The legality or

illegality of such conduct should be evaluated on the basis of applicable

law. Peaceful resolution of territorial disputes results in international

peace.

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Unit-III
Position of Individual in International Law — Nationality — Extradition
— Asylum — Privileges and Immunities of Diplomatic Envoys —
Treaties – Formation of Treaties - Modes of Consent, Reservation and
termination.

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Introduction

Individual, in a legal sense, is a broader term and in international

law. Individuals include human beings, foundations, and legal

commercial enterprises. Though not all individuals have the same rights,
it is considered in a broader sense.

Individuals in International Law

Before 1945, international law could recognize individuals as a

subject but still didn’t provide rights and duties as a direct individual. In
an overview, International law did not consider Individuals other than in

an abstract sense for centuries and the reason was that international

laws are laws between states, and individuals are the citizens of states,

therefore, individuals were seen as objects rather than subjects. They

were not considered competent to have rights and duties under

international law.

However, after the first and second World wars, the international

community contemplated the need and possibility of recognizing an

individual’s legal responsibility under international law and to make

them subjects of international law in some respect. Even today,

individuals are seen as only partial subjects of international law as states

still remain the dominant subject of international law.

Legal Positivism and Individuals

For a long time, Legal positivism has provided the usual theory for

comprehending international law. The positivist definition of

international law is mainly grounded typically on a subject-based

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differentiation between international and municipal rules and

regulations. Positivism views international laws as a set of rules with the

states as its subjects.

Before positivism, there was no any sort of theoretical insistence

that the rules of the international laws applied only to states. William

Blackstone has reflected the common sentiment of the middle

eighteenth century.’ For Blackstone, both individuals and states were

proper subjects of international laws. He drew no dividing line which

later came to be called public and private international law.

Blackstone distinguished his law of nations from other sorts of law

because of its sources and not on the general basis of its subjects. He

saw the rules of the international laws or law of nations as universal,

sourcing either from natural justice or from the practice of states.

Municipal rules, however, emanated from a single state.

Legal positivism had transformed eighteenth-century law of

nations into public and private international law, a law common to

individuals and states with former being supposed to apply to states

while the latter to individuals. The positivist definition of international

laws had an enormous impact on the modern perceptions concerning

both the individual and international law. With so few exceptions, the

theory rejects the notion that individuals are proper subjects of public

international law.

Role of Individuals

Traditionally, individual responsibility was not recognized under

international law except in limited cases like piracy, which has very long

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been recognized under customary international law as an international

crime. International Law gives jurisdiction to states to prosecute pirates,

but it cannot be asserted that International law imposes an absolute

obligation on states to refrain from piracy. It was only in the Twentieth

century and especially after World War II, the evolutionary growth and

development of the International legal system has caused a significant

increase in the importance of Humanitarian values in the process of

development of International Laws.

An exception to the general traditional rule that individuals are

not subjects of International Law can subsist only where the intention of

parties was to only adopt a treaty which creates for rights and

obligations for the individuals which are capable enough of being

enforced by municipal courts. Such intention must have been expressed

and not inferred from the treaty as it is an exception to a general rule.

The General Assembly of the United Nations in 1946 allowed the

individuals to become part of the International Law. Bearing individual

responsibility, the Assembly also stated in 1946 that genocide was a

crime under International Law which was also reaffirmed in the

Genocide Convention, 1948. This position was also reiterated by article 3

of the Draft Code of Crimes against Peace and Security of Mankind

which grants individual responsibility for crimes and punishment

according to the gravity of the crime.

After the Second World War, International law became also

bothered with individuals in the field of human rights and the

fundamental freedoms. The Charter of the U.N started this trend in 1945

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by calling upon member states to observe human rights and

fundamental freedoms for individuals and peoples.

Although, as a general rule, individuals lack standing to assert

violations of the above treaties in the absence of the protest by the

national state, a wide range of other treaties have allowed the

individuals to have direct access to international courts and tribunals.

Direct Applicability of International Law to Individual:

The issue whether the rules of International Law can directly

govern the rights and duties of individuals has been one of the

important considerations for answering the question whether an

individual is the subject of International Law. The main points as

evidence of direct applicability of International Law to individuals have

been the primacy of International Law over domestic law as perceived

by monistic doctrine and language and structure of treaty obligations

established for protection of individual. The human rights treaties do

not aim to safeguard the interests of states. The main objects of the

treaties are to protect to protect human being not to create the

subjective rights of contracting parties themselves.

This principle has been discussed in many times in international

jurisprudence. Human rights treaties are distinct from other types of

treaties international agreements have many similarities. International

human rights instruments can be directly applicable to individuals only if

the constitutional legislation of the state concerned recognizes the

primacy of international treaties over domestic law and thus permits

their direct application within its domestic legal order by its national

courts.

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Individual Criminal Responsibility Under International Law:-

Although international law is not directly applicable to individuals,

it does as concluded in the previous section provide rights for individual.

International Law does directly apply to individuals in some limited

instances. The most common instance is when individuals are subjected

to international criminal responsibility for crimes against the peace and

security of mankind. When accused of crimes against humanity,

individuals may be tried directly under international law, regardless of

the will and domestic laws of the state of their nationality.

In every case when international criminal responsibility is imposed

on the individual it appears that acts that are committed by the

individual are not expected to be punished within one or another

national legal order. If the state concerned is able and willing to fulfill its

international obligations with respect to punishment of persons

committing crimes against peace and security of mankind, an individual

is not be punished through direct application of International Law.

Current status of the place of individuals in International Law

After the overview of these trends, some of the conclusions are.

First, it is normally accepted that the capacity of states and individuals

are of a different character and degree. Secondly, It is also conceded by

the majority even by them who consider individuals as international

persons that individual capacity is based on a treaty which requires the

consent of states and it only exists for some exceptional and special

cases. There are many instances which shows that individual legal

capacity is alleged to be the background of the individual’s international

personality such as:

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The international Law rules can be directly applied to the legal

relationships and conducts of the individual.

Rights and duties of individual under international law.

Along with private transnational corporations, individuals can

participate in international law-making. Individual being competent to

stand before judicial and quasi-judicial international institutions for

protection of his rights.

Under some conditions, in some breach cases of international law,

trail can be started against individuals by international law and they can

be held liable, by the international judicial Courts, irrespective of the

state’s will and its domestic law.

Conclusion

Individuals now have a sort of legal personality under

International Law; they are granted with certain rights and certain

obligations directly under International Law. International Law is now

applicable to relations of States with individuals and to certain

interrelations between individuals themselves where such relations

involve matters of international concern.

It is quite evident now that International law recognizes the rights

and obligation of individuals. It can be concluded that while states have

proper international legal personality, individuals possess a limited locus

standi in International law. However, it is also true that the individual has

over a number of decades evolved from an illegitimate child to a well-

accepted family member in International law which shows the extent of

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the transformation of the legal order. It has significantly helped in

raising concern and values of Humanitarian grounds.

Nationality

In law, nationality refers to the membership of a nation or a

sovereign state in addition to the political rights and other privileges

accompanied with it. Often confused with citizenship, nationality, is a

different concept. Individual persons, corporations, ships and aircrafts,

all have a nationality, but for legal purposes only.

The UNs Universal Declaration of Human Rights (1948) stated that

nationality is an inalienable right of every human being and no one shall

be deprived of his/her citizenship. It is nationality which brings all the

individuals under the purview of international laws.

Main theories related to Nationality

(1) Active Nationality Theory

Generally deemed non-controversial, it states that a state enjoys

the right to exercise its jurisdiction over its nationals, even when they

are in a foreign territory. When obeying private International laws, the

national laws always tend to follow an individual beyond the boundaries

as far as his personal status is concerned. Hence, the court must

compulsorily follow International laws, at the same time make sure that

they are not violating domestic police laws or any public order.

When referring to criminal laws, the principle refers to jurisdiction

to adjudicate, whether a state can adjudicate a crime committed abroad

or not. This becomes even a bigger issue when the convict changes

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his/her nationality. A criminal might escape charges by the change of

their nationality after they have committed the crime.

(2) Passive Nationality theory

A state at times assumes extraterritorial jurisdiction over foreign

nationals if the person who has suffered damages is it’s national. The

idea behind the exercise of passive nationality is to fulfil the duty of a

state to protect its nationals from the damage suffered by them in case

the alien state fails to punish the offender.

It is still a matter of dispute whether the nationality of the victim

and the jurisdiction purview should befall under the ambit of

international law. It is viewed as the most aggressive basis of

extraterritorial jurisdiction.

The biggest drawback of this theory is that the defendant is

unaware of what laws will be befalling upon him and it might be a

serious crime in some other state, thus deeming this theory quite unjust

for the defendant.

Statelessness

The United Nations High Commissioner for Refugees (UNHCR)

defines a stateless person as, “an individual who is not considered a

national by any state under the operation of its law”. In layman’s terms,

it refers to a person devoid of the nationality of any state.

Statelessness stands against the morale of Universal Human

Rights. It deprives the masses the early comfort of a cradle and the late

peace of the grave.

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Causes of Statelessness

 Visible Discrimination

 Carelessly drafted laws

 The advent of new states

 Being born in a foreign country

 Loss of deprivation

 Failing to prove their links to a state

Consequences of statelessness

 Leads to lack of education (even at a basic level).

 Lack of medical facilities.

 Unemployment.

 Unable to avail basic services like banking.

 Unable to buy houses, lands or any sort of estates.

 Ineligible for marriage.

Acquisition of Nationality

All the State’s and even the International Bodies have laid down

certain provisions on how someone can acquire the nationality of any

country.

Nationality is acquired most commonly on these grounds:

(1) Nationality by birth

(2) By descent from a state’s national

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(3) By naturalization

(4) Nationality by marriage

(5) Nationality by adoption

(6) Nationality by cessation, etc.

(1) Nationality by Birth: Being born in a country qualifies you to be a

national of the respective country. This is usually referred to as Jus Soli.

It is a Latin term, its literal translation is “right of soil”.

The states which follow the principle of jus soli, allow the

individual to acquire the citizenship of that particular state on the virtue

of being born on the state’s territory. This is provided despite the

citizenship or the immigration status of the respective individual’s

parents.

(2) By descent from a State’s National: This is known as the principle

of Jus Sanguinis. It is derived from a Latin term. It literally translates to

“Right of Blood”. It means that the citizenship of the parent is the pre-

determinant of the child’s citizenship.

The countries which follow this principle provide citizenship on

the basis of birth provided that the individual’s parents were legally

settled citizens of the respective country. This ensures that the

citizenship passes from the parent to the child.

(3) By Naturalization: The process by which a foreign citizen becomes

eligible to acquire the nationality or citizenship of any country. It usually

requires the individual seeking the same to fulfil certain requirements

and perform certain protocols to be eligible for the same.

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The rules and protocols for naturalization vary from country to

country. The most common element can be the requirement of a

promise to obey and uphold the country’s law and respect the

constitution.

(4) Nationality by Marriage: Individuals need not keep renewing their

visa and burning a hole into their pockets for the sake of love. Foreign

individuals have the opportunity to be a permanent citizen of the state

where your significant other might be. This is known as a citizenship

marriage.

(5) Nationality by Adoption: This is also referred to as intercountry or

transnational adoption. This is very similar to any normal adoption

procedure, just in an international context. By the virtue of this measure,

an individual or a couple can be deemed legal parents of a child

belonging to a foreign nation.

There are certain protocols to be followed before this can be

granted. The individual or couple will have to be eligible. The eligibility

criteria for the child are:

The parents (either Couple or individual) must be permanent

citizens of a state, either by birth or via naturalization.

 The child must be under 18 years of age.

 The child must be a permanent citizen of the state from where he is

being adopted.

 The child must be under the legal custody of some guardian in

his/her state.

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(6) Nationality by Cessation: The literal meaning of cessation is the

process of ending or bringing to an end. When we talk about nationality

by cessation, we refer to the cessation clauses which were expressed in

the conference of Plenipotentiaries held in 1951. This conference laid

that an individual must not be provided refugee status any longer than

it is absolutely required. This had to come to a halt in accordance with

the terms and conditions of the statues.

The cessation of refugee status thus comes into play when the

refugees have successfully availed the protection of their country of

origin or any other country of which they are nationals of now. Article

1F of the convention addresses these conditions in which an individual

is no longer eligible to enjoy the benefits of refugee protection.

Loss of Nationality

Also known as loss of citizenship, this refers to the situation

wherein a citizen stops or ceases to be a lawful citizen of the country.

This term is an umbrella shelter for both:

(1) Voluntary loss of citizenship: Means relinquishing one’s nationality.

The prime focus here is on the voluntary part. Almost all the countries

have set-up their own set of rules for the formal relinquishment of their

citizenship. There are countries which do not allow that as well, they

tend to trap their nationals in an endless loop of administrative red-

tapism.

(2) Involuntary loss of citizenship: States have certain provisions

regarding nationality. If a citizen fails to adhere to these then his/her

citizenship can be cancelled. It can happen due to a lot of things like

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someone failing to retain their citizenship. However involuntarily losing

one’s citizenship, is not immediate, it has to undergo a series of actions

to revoke someone’s citizenship.

(3) Indian Citizenship Act on the loss of Nationality: Section 10 of the

Citizenship Act, 1955 talks about the deprivation of citizenship.

This article states that any Indian citizen by naturalisation or by

the virtue of Article 5 of the Constitution or by registration under any

other circumstances other than clause (b).

Following the provisions laid down under this section, the Central

Government is authorised to deprive an Indian national of his citizenship,

if the following conditions apply:

 When the nationalisation or the registration certificates were

obtained by unlawful means- fraud, false representation, hiding any

piece of evidence related to these.

 That citizen by means of his expression is proven to be disloyal

towards the spirit of the Indian Constitution and the established laws

itself.

 If a citizen, during a war, tried or tries to or unlawfully communicate

with an enemy or was by any means related to them.

 Associated in any business or under his senses assisted an enemy.

 If within five years of the period after naturalisation, the individual

had been sentenced for a period of at least two years.

 The citizen has been a foreign Indian National, for a continuous

period of seven years. If during that period, he was not enrolled as a

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student with any educational institution or a part of Government

service in an International Organisation.

 The Centre shall not deprive any individual of citizenship until and

unless they are confirmed that this is conducive for the Public good.

 Before an order is passed under this section, it is mandatory for the

government to inform the person against whom the order is passed.

This must be in writing. If the order falls under the jurisdiction of

sub-section (2). Then this case has to be referred to a committee of

Inquiry under this section.

 The Central Government must refer this case to the Committee of

Inquiry, which must have a chairman (a person who has held a

judicial office for at least a decade) in collaboration with two other

members appointed by the Central Government.

 The Inquiry Committee must submit its report to the Central

Government. The further orders shall be guided by such reports as it

was ordered under this section.

(4) By Expatriation

An expatriate refers to a person who is residing in any other

country rather than his native country. Expatriation is a voluntary right

which a citizen of a country can exercise on the basis of his discretion if

required. It means renouncing the nationality and allegiance of a

country without any constitutional consequences.

Generally, this term refers to the professional and skilled working-

class (for private entities or government organisations) or even artisans

who work outside their homeland.

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The main theme here is that it is voluntary, and the decision rests
on the conscience of the citizen.

(5) Renunciation of Nationality

Renunciation refers to the voluntary act by virtue of which an

individual can relinquish one’s nationality. It simply means to give up.

Most countries do provide their citizens with this right.

There can be a lot of reasons for people to renounce their

citizenship.

The most common reasons are as follows:

 People might dislike their country’s laws. The field of law is

humongous and so is the world population. Although the jurists

try their best, there is still some gap, it is always not possible to

appease all the sections of society. Thus there can be sections of

people unhappy with some laws.

 There can be personal reasons as well as political ideology

clashes. The respective countries might be engaged in a war.

 Taxation laws of a country can be a big reason. If the taxation

system extracts too much from its people, the citizens might

want to renounce their citizenship.

(6) Loss of nationality by Substitution

Some states have the provision of providing and taking away the

nationality on the basis of substitution. This happens when an individual

loses the nationality of one state (his nation) and is able to attain the
citizenship of another state.

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Different states have different protocols. Some states will cancel

the citizenship if an individual acquire a job in a foreign nation without

following government sanctions.

Dual Nationality

The concept of Double Nationality or Dual Nationality

When more than one country regards an individual as its citizen, it

is called dual citizenship. Dual citizenship occurs because different

countries have set-up varied methods for granting citizenship. A person

who holds dual citizenship generally enjoys the rights of citizenship of

both countries. These rights can be:

 Right to hold passports.

 Right to vote.

 Right to residence.

 Right to work.

 Right to enter the country, etc.

The person is not just entitled to enjoy the rights, he is obliged to

conduct certain duties like:

 National civil service.

 Subject to the taxation system of the country, etc.

Pros and Cons of Dual Citizenship

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Dual citizenship is a complex concept and has many provisions. If

there are many rights and powers to be enjoyed, there can be many

setbacks as well.

The pros of dual nationality

 The benefits

 Multiple Passports

 Property Ownership

 Political Security

 Healthcare Benefits: Some countries have excellent medical facilities

in addition to insurance facilities being amongst the other perks.

The cons of dual nationality

 Taxation laws might be a problemScepticism issues

 It can be very expensive

 Security issues

 Might not be allowed: many countries support dual nationality,

many are against it.

 It is a time-taking process

The Nottebohm Case (Liechtenstein v. Guatemala)

After World War II broke, Nottebohn, a citizen of Guatemala, in

Germany for over three decades applied for Liechtenstein citizenship.

Facts: Nottebohn, a natural citizen of Guatemala, in Germany for 34

years, also had business ties with the state. After the outbreak of World

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War II applied for Liechtenstein citizenship, even though he had no ties

with it. The application was approved by Liechtenstein but it was to be

waived off after three years.

After this approval, Nottebohn travelled to Liechtenstein. Upon

his return, he was denied entry because he ceased being a German

citizen. His Liechtenstein was not honoured, collaterally causing

Liechtenstein to file a suit in the International Court to force Guatemala

to recognise Nottebohm as one of its nationals.

Guatemala challenged the validity of Nottebohm’s citizenship and

the right of Liechtenstein to file a suit on the accused grounds.

Issues: Can nationality be disregarded by other states in cases where it

is clear that it was a mere device. The nationality that is provided to an

individual has to be the concern of the conferring nation?

The judgement: It was held by the honourable Court that the issues

regarding citizenship are the sole concern of the nation which grants it.

This is supposed to be generally accepted. However, this also does not

imply that other states do have to unquestioningly accept the granting

state’s designations. As in this particular case, there exists no

relationship between Liechtenstein and Nottebohm, thus the change of

nationality here was merely an act guided by the fear of war. Thus,

under these circumstances, Guatemala was not obliged to recognize it.

The Effective Link principle

This is also known as the Nottebohm principle. This was observed

in the Liechtenstein v. Guatemala case. This principle requires the nation

to prove a meaningful connection to the state in question.

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This principle is usually applied in the cases involving dual

nationality, where the decision has to be made regarding which state’s

citizenship has to be provided. Thus as the Court ruled in the

Nottebohm’s case that there was no significant link between

Nottebohm and Liechtenstein.

The sole purpose of acquiring the nationality of Liechtenstein was

to escape the belligerent conditions of the state of Guatemala. Thus the

court ruled that Liechtenstein was not entitled to take up Nottebohm

claims on his behalf against Guatemala.

The Hague Convention, 1930

The Hague Convention of 1930 was themed around certain

questions relating to the conflict of nationality laws. Article 4 of the

Convention talks about this issue.

Article 4: a state is not entitled to provide diplomatic protection

to one of its citizens against another state, whose nationality such

persons also possesses.

The European Convention on the reduction of Cases of Multiple

Nationality, 1963. Article 6 of the convention talks about the same:

Article 6: Other than the cases where a special agreement exists,

the following provisions are applicable to a person who holds dual or

multiple nationalities of the contracting parties. Any such individual shall

be subject to military obligations in accordance with the country of

which he is a normal resident. Nevertheless, he should be allowed to

choose up to the age of 19 years whether to submit himself to military

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obligations as a volunteer in relation to any other party of which he is a

citizen of.

An ordinary resident residing in the territory of a contracting party

of which he is not a national is eligible to choose to perform his military

obligations in the territory of any contracting party of which he is a

national.

As laid down in paragraphs I and II, an individual is obliged to

perform his military obligations as the law prescribes for a party or the

parties. A person, before the entry into the convention of parties of

which he is a national or, is even related to must-have fulfilled military

obligations in accordance with the laws of the, prescribed party or

parties.

The Hague Convention on Conflict of Nationality Laws (1930) laid

down certain provisions regarding nationality by marriage. Chapter 3 of

the same talks about the Nationality of married women. The main

articles of these laws are:

 Article 8: On the occasion of marriage, if the wife’s national laws

cause her to lose her nationality, the consequence of the

responsibility completely befalls upon the wife to acquire the

nationality of the husband.

 Article 9: If the national laws require her to lose her nationality when

she acquires the nationality of her husband through marriage. The

consequence of the act shall be on the condition of her acquiring

her husband’s new nationality.

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 Article 10: If the situation where a husband is naturalized, the

change in the wife’s nationality is not possible until and unless

without her full consent.

 Article 11: In case of marriage dissolution, the wife shall be ineligible

to recover her previous nationality. She can only do so in accordance

with the respective country’s laws. If the wife is successful in

regaining her previous nationality, then the nationality acquired by

virtue of marriage shall be deemed void.

Extradition and Asylum

Introduction

Extradition is needed when an individual charged with a crime in

one state flees to another. In this case, the requesting state requests its

citizen to be sent back so that he/she can stand trial for their crimes.

Asylum is when a person, who is afraid of being prosecuted in his home

state, runs away to another state for protection.

In the case of Colombia vs Peru (1950), it was held by the court

that they are exclusive. There is either extradition or asylum

Extradition

Extradition is the process of bringing back a criminal to the state

where he has committed the crime when he has absconded for such a

country. Extradition is an act where one jurisdiction delivers a person

accused or convicted of committing a crime in another jurisdiction, over

to their law enforcement. It is a cooperative law enforcement process

between the two jurisdictions and depends on the arrangements made

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between them. Besides the legal aspects of the process, extradition also
involves the physical transfer of custody of the person being extradited

to the legal authority of the requesting jurisdiction.

Through the extradition process, one sovereign jurisdiction

typically makes a formal request to another sovereign jurisdiction ("the

requested state"). If the fugitive is found within the territory of the

requested state, then the requested state may arrest the fugitive and

subject him or her to its extradition process. The extradition procedures

to which the fugitive will be subjected are dependent on the law and

practice of the requested state.

Between countries, extradition is normally regulated by treaties.

Where extradition is compelled by laws, such as among sub-national

jurisdictions, the concept may be known more generally as rendition.

Extradition treaties or agreements

The consensus in international law is that a state does not have

any obligation to surrender an alleged criminal to a foreign state,

because one principle of sovereignty is that every state has legal

authority over the people within its borders. Such absence of

international obligation, and the desire for the right to demand such

criminals from other countries, have caused a web of extradition treaties

or agreements to evolve. When no applicable extradition agreement is

in place, a sovereign may still request the expulsion or lawful return of

an individual pursuant to the requested state's domestic law.

This can be accomplished through the immigration laws of the

requested state or other facets of the requested state's domestic law.

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Similarly, the codes of penal procedure in many countries contain

provisions allowing for extradition to take place in the absence of an

extradition agreement. Sovereigns may, therefore, still request the

expulsion or lawful return of a fugitive from the territory of a requested

state in the absence of an extradition treaty.

There may arise the question of why it is important to bring him

back to the country where he has committed the crime. Why can’t he

just be tried in the country he has been caught in? The reason, it is

important to bring him back is because there are different legal

proceedings in different countries. The country in which he has

committed the crime may try him differently. It may also be the case

that he had absconded or run away in the middle of legal proceedings.

Thus it is essential to bring him back in order to finish the trial. The

evidence and the witnesses are also present in that country.

This is also to prevent the trend of international criminals. Some

criminals hop from country to country committing crimes. Through

extraditions, justice can be brought by bringing them back to the

countries they have committed the crime and punishing them. It is also

imperative for that country to get rid of that certain individual for

security.

Difference between Expulsion and Extradition

Extradition Expulsion or Deportation

Happens when a country requests Happens when an individual

for a fugitive to be returned. violates immigration laws.

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Government is subject to certain

rules such as treaties, rule of The Government has the

speciality and double unrestricted right to expel. They

criminality. They also have the don’t need to serve a show-cause

right to reject a request of notice to the foreigner.

extradition.

In India, extradition is governed by In India, expulsion is governed by

the Extradition Act of 1962. the Foreigners Act of 1946.

It was the case of Hans Muller of Nuremberg vs. Superintendent

Presidency jail Calcutta and others (1955) that stated extradition and
expulsion are two different processes. The courts also held that the

government has the right to reject a request for extradition. If also have

the right to choose the less cumbrous process of expulsion to remove a

foreigner from the country.

 No extradition of a Political Criminal.

 The trend of no extradition of political criminals started during the

French revolution. After that, other countries followed suit.

 No commission or organization has defined what a political crime is.

In the case of Re Castioni case (1891), a prisoner was charged with

the murder of Luigi Rossi. The murderer escaped from Switzerland to

England. The government of England rejected Switzerland’s request for

extradition. The court held that the accused murdered in order to cause
political disturbance and is thus a crime of political nature. Due to the

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fact, he was a political criminal and England was not obliged to extradite
him.

But on the contrary, In Re Meunier 1894, a fugitive who blasted a

bomb in a public place in Paris, fled to England. Paris wanted him back
but England refuses their request to extradition. The court ruled his

intentions were not purely political and he had thus, not committed a

political crime.

D’attentat clause:

The d’attentat or the clause Belge states that murders of heads of

governments or states will not be considered as a political crime and

they can be extradited for such a crime.

Rule of Speciality

The doctrine of speciality is a doctrine under international law. It

states that a person who is extradited to a country to stand trial for

certain criminal offences may be tried only for those offences and not

for any other pre-extradition offences.

That is to say, when a fugitive is extradited for a particular crime,

he can be tried only for that crime. If the requesting state deems it

desirable to try the extradited fugitive for some other offence

committed before his extradition, the fugitive has to be brought to the

status quo ante, in the sense that he has to be returned first to the State

which granted the extradition and fresh extradition has to be requested

for the crime for which the fugitive is sought to be prosecuted.

This principle was restated in the case of U.S. vs Rauscher (1886),

which stated that he can only be tried for offences which have been

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criminalised by the treaty and/or the offence for which extradition has
been requested for.

Basic Principles Governing Extradition

 Principle of relative Seriousness of the offence

Extradition is usually permissible only for relatively more serious

offences, and not for trivial misdemeanours or petty offences.

For instance, the extradition treaty between US and India permits

extradition only for those offences which are punishable with more than

one year of imprisonment.

 Principle of Dual Criminality:

This is the most important principle governing Extradition Law.

This requires that the offence that the fugitive is alleged to have

committed, should be an offence both in the requesting as well as the

requested state. To satisfy oneself as to the requirement of dual

criminality, one has to examine the treaty between the two countries

and see if the offence in question finds mention there.

Existence of prima facie case against the fugitive: This is a safety

valve to ensure, at-least on broad probabilities, the existence of a triable

case against the fugitive. This is sought to be ensured by a magisterial

inquiry that is to precede the actual surrender/extradition. If the case

lacks merit on the face of it, extradition may be disallowed at the very

outset.

 Principle of proportionality between offence and sentence:

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Requesting state should respect the principle of proportionality

between offence and sentence and punishment for that particular crime

should not be excessively harsh or inhuman, in which case extradition

request may be declined.

Extradition Offence

Section 2(c) defines Extradition Offence as:-

Offence provided in the extradition treaty with the foreign states;

(w.r.to treaty states)

An offence punishable with imprisonment not less than one year

under India Law or law of a foreign state. (non treaty states)

Composite offence - offence committed wholly, or in part, in India and

Foreign State, which would constitute an extradition offence in India.

A fugitive criminal may be extradited. A fugitive criminal as Per S.2(f) is a

person who is accused or convicted of an extradition offence committed

within the jurisdiction of a foreign state;

If a person is participating in the commission of an offence in a foreign

state from within the shares of India then he is also liable to be

extradited and is included within the expansive definition of a 'fugitive

criminal'.

S.2(f) of the Extradition Act further applies to: a person who, while in

India:

 conspires,

 attempts to commit

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 incites

 Participates

as an accomplice in the commission of extradition offence in a foreign

state.

Therefore, a person in India, attempting/conspiring/abetting the

commission of the offence from within the shores of India, is also

covered in the definition of a 'fugitive criminal' and liable to be

extradited.

Process of Extradition

 Receipt of Information: The process of extradition is set into

motion by the receipt of Information/Requisition regarding fugitive

criminals wanted in foreign countries. This information may be

received :-

 Directly from diplomatic channels of the concerned country; or

 General Secretariat of ICPO-Interpol in the form of red notices;

 Other settled modes of communication.

 Magisterial Inquiry: Where a requisition is received, the Central

government may order an enquiry by a magistrate directing him to

enquire into the case. The initial inquiry by the Central Government

before ordering a magisterial inquiry need not be a detailed one.

No pre-decisional hearing is required to be given to the fugitive

before ordering magisterial enquiry. The function of the Magistrate

under this Section is quasi judicial in nature. The magistrate directed to

proceed with the enquiry need not have territorial jurisdiction.

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 On receipt of order, the Magistrate shall issue a warrant of arrest

of the fugitive criminal;

 Once the fugitive criminal appears, or is brought before

Magistrate pursuant to the warrants, the magistrate inquires into

the case.

 Double criminality: Double criminality is a principle that states that

a criminal can only be extradited to another country if the offence he

has committed is criminalized by the laws of both the countries

involved. For example, if a murderer has run away from Bangladesh

and is hiding in India, he can be extradited as the laws of both the

countries criminalize murder.

Position of the State in International Law

It must be noted that the state has no duty to extradite an

individual. But, there can be a treaty between that states that they will

extradite any criminals that run away to their country and vice versa.

They can also voluntarily extradite a person without any treaty. States

should keep in mind that during extradition, they should not violate

their own municipal laws i.e- the laws of their own countries and

international conventions.

However, countries do not have to give the fugitive back if proper

extradition procedure was not followed. The state can also not extradite

citizens of their own state. So, if a citizen of England comes to India and

commits a crime and then runs off to England then it is very difficult to

get the citizen back. They usually ensure that they will punish the

criminal according to their own laws.

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India

Usually, each country has its own laws regarding the process of

extradition. In India, The Extradition Act of 1962 governs the process of

extradition. It was amended in 1993 by Act 66. Section 2(d) of the

Act talks about treaties of extradition and allows foreign states to make

such arrangements with India. These treaties are usually bilateral in

nature i.e- they are between two countries, not more. These treaties

embody five principles-

 Extradition of a fugitive will happen for offences set down by the

treaty.

 The offence must be criminalized under the laws of both

countries, not just one.

 There must be a prima facie case made.

 The country should try the criminal for only the offence he was

extradited for.

 He must be tried under a fair trial.

Usually, requests for extradition on behalf of India can only be

made by the Ministry of External Affairs and not anyone in the public.

Countries who have a treaty with India can request for extradition of

someone from India. A non- treaty country must follow the procedures

set down by Section 3(4) of the Extradition Act of 1962.

The following are the bars or restrictions to extradition-

 India is not ‘obliged’ to extradite someone unless there is a treaty.

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 India is not ‘obliged’ to extradite someone unless that offence

constitutes a crime under the treaty.

 Extradition may be denied for purely political and military offences.

 The offence must constitute a crime in both India and the country

requesting extradition.

 Extradition may be denied when the procedure set down by Section

3(4) of the Extradition Act of 1962 is not followed.

Asylum

Asylum is when a country gives protection to individuals who are

being prosecuted by another sovereign authority. Most of the times, it is

their own government. While everyone has the right to seek asylum,

asylum seekers do not have the right to receive it.

The word Asylum has been derived from a Greek word whose

Latin counterpart is ‘Asylon’ and it means ‘freedom from seizure’. There

is no specific definition of Asylum but it can be understood as legal

protection granted to the people who have fled their home countries

due to warship, conflict, persecution, or fear of persecution. It is a

possibility to remain in a country either permanently or for a temporary

period. A person who seeks International asylum i.e. an asylum seeker is

known as an ‘Asylee’.

The process is that an individual has to apply for asylum in a

particular country, while their application is pending they are made to

stay in a detention camp. Once, the applications are accepted i.e. their

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claims are accepted, then these people get the status of a refugee and
the rights that come along with it.

Whether the right to asylum is a right of an individual or of the

state?

There are few declarations that provide the ‘Right to Asylum’ like

the Universal Declaration of Human Rights(UHDR), the Vienna

Declaration on Human Rights and Programme of Action and the

Convention on Political Asylum which was concluded by the Seventh

International Conference of American States in 1933.

It must be noted that asylum deals with refugees (individuals who

are being prosecuted by their own government).

 Article 14 of the Universal Declaration of Human Rights: Article

14 of the UDHR recognises the right of individuals to seek

protection from prosecutions of the sovereign authorities. Everyone

can go to another country and seek asylum. This right is also

available for fugitives who have committed political crimes.

Provided as per clause 2 of Article 14 that any individual who has

a criminal record of anything which is not acceptable as per the

principles of the United Nations, cannot seek asylum and in case of

non-political reasons, the asylum can be denied. It is considered as

the fundamental law. However, India is not a party to it.

 Article 33(1) 1951 Refugee Convention prohibits the expulsion or

return of refugees and asylum-seekers if their life or freedom is in

danger based on their race, religion, membership of a social group,

political opinion, or nationality.

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 Article 18 of the Charter of Fundamental Rights of the European

Union also provides that as per the rules of the Geneva

Convention(28 July 1951) and 1967’s protocol, the right to Asylum is

guaranteed.

 In 1993, the Vienna Declaration and Programme of Action also

reaffirmed the right to seek and enjoy asylum in other countries and

the right to return to their own country.

 However, the articulation of the law of the right to asylum signifies

that it is not the right of an individual, but rather is a right of the

state to grant asylum. It depends on the discretion of the State

whether it grants the asylum or not. The decision of the state must

be respected by all the other states. States have to take into account

their economic status before granting asylum as it is the duty of the

state to ensure its economic stability.

 Various countries have provided the right to asylum in their

Constitutions to the people who have fled from persecution, for

example- Constitution of France, Article 10 of the Italian

Constitution, Article 31 of Yugoslavia Constitution, etc.

 ‘Right to Asylum is a right to seek and not to receive.’

Types of asylum

(1) Territorial Asylum

Territorial asylum is granted within the territorial boundaries of

the country offering asylum. This is most commonly used for people

accused of offences of political nature such as treason and sedition. It

must be noted that murderers of heads of states, criminals accused of

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certain terrorist activities and people accused of war crimes are some
examples where one can not be offered asylum.

It is granted when the state provides asylum to asylee within its

territory. The exclusive control of every sovereign state over its territory
backs up the right of a state to grant territorial asylum. It is an exception

to the extradition.

Illustration:

 If an individual, ‘A’ from Syria comes to Turkey and applies for

asylum due to the horrifying condition in Syria and apprehension of

danger to his life.

 If the individual is granted by the Turkey government within the

country itself, it is an example of Territorial asylum.

In case of an extradition treaty between two countries, the

countries are bound to extradite the offender in terms of the other

country’s law. In Territorial Asylum, the state has the power to impose

restrictions on asylum-seekers’ movement, etc.

(2) Extra-Territorial or Diplomatic Asylum

Extraterritorial asylum refers to asylum granted in embassies,

legations, consulates, warships, and merchant vessels in foreign territory

and is thus granted within the territory of the state from which

protection is sought.

International law has not recognised diplomatic asylum as a right

as it can be areas for dispute. For example, the asylum was granted to

József Cardinal Mindszenty during the uprising against the communist

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government in 1956. He refused to Roman Catholic schools to be

secularized which prompted him to be arrested but he got protection

from the government of the United States for 15 years. This caused

great controversy.

It is granted when the state provides asylum outside the territory

of its state, such as in warships, legation consular premises, international

headquarters, or its Embassy situated in a different country i.e. one of its

public places situated/ lying in foreign territorial borders. The term

extra-territorial means beyond the jurisdiction of the authorities of the

state where such establishment is i.e. the local authorities. The immunity

is granted to the diplomats and other officials to protect their country’s

interests. The local authorities are not allowed to enter the Embassy of

any country situated in their country without having special orders.

Illustration:

 If ‘A’ from Syria approaches the US Embassy in Syria for grant of

Asylum due to imminent danger to his life.

 If the US Embassy grants the Asylum, it becomes an example of

Extra-Territorial Asylum.

The Convention on Asylum held in Havana in 1928 to which only

a very few countries have ratified, provides that it is not allowed for

states to grant asylum to people who are accused of common crimes or

deserters from the navy or army in their legations, military camps,

warships or military aircraft.

There are the following types of extra-territorial asylum:

(i) Asylum in Diplomatic Asylum

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It is granted when the state provides asylum in the Embassies,

foreign legations, and consular premises(premises of a consul-an

individual who heads a particular mission in that local country). It has

not been recognized as a right because it is often believed that it

interferes with the sovereign power of the host country over its territory.

Normally, the right to asylum, it is not recognized in International law

but asylum can be granted in the following exceptions:

 If individuals are in physical danger due to violence.

 In case of a binding local custom.

 In case of a special treaty between the State of Legation concern

and the territorial State.

The two reasons for not recognizing it are: firstly, it violates the

territorial sovereignty of the state; and secondly it is the violation of

diplomatic or consular immunity. The receiving party cannot enter the

foreign legations and consular premises without the consent of the

mission head.

(ii) Asylum in the premises of the International Institution

There is no general right to grant asylum in International

institutions. In terms of International law, there is no recognition of such

a rule. International institutions include the United Nations Organization

(UNO), the World Trade Organization (WTO), etc. The absence of any

agreements of the United Nations or other agencies in this regard has

kept the answer to this inconspicuous.

(iii) Asylum in Warship

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When a warship is in the territorial water body of another state

then the coastal state only has the power to require the ship to leave

their territorial waters and do nothing else.

The Havana Convention on Asylum’s Article 1 provides that

people who are accused of common crimes and not political crimes if

taking refuge under a warship, military camps, or aircraft or legations

shall be handed over to the local government on request.

Article 2 of the Convention provides that asylum at such places be

provided only in urgent cases. Once the asylum is granted the foreign

minister of the asylee’s country should be informed to ensure his/her

safety. The convention basically permits the grant of asylum to political

offenders.

Certain countries like the USA and UK accept the practice to grant

asylum on warships on humanitarian grounds for a temporary time.

A significant example of this was the conflict between Argentina

and Paraguay. In 1911, revolution broke out in Paraguay due to which

various revolutionaries sought refuge on the Argentine vessels. This led

to conflict between the two counties as Paraguay contended that the

asylum-seekers were not political refugees rather were common

criminals or deserters. The incident led to the breaking of ties between

the two countries.

(iv) Asylum in Merchant Vessels

Merchant vessels include the commercial ships, the territory in

which they are the law of that country is binding upon them. They do

not exercise or enjoy immunity similar to warships.

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To conclude, asylum is granted in consulates, embassies, legations,

warships, merchant vessels, and not just to political offenders but also in

certain cases to common criminals. The purpose behind it is to save

human beings from persecution, retribution.

(3) Neutral Asylum

This type of asylum is shown by neutral states during times of war.

These countries may be considered asylum places for prisoners of war. It

provides asylum to troops of countries who are a part of the war. This is

under the condition that they are subject to internment during the time.

It is important to note that while troops may be allowed, airforces of

such countries cannot land in these areas and will be subjected to

interrogation.

Asylum in India

Different countries have different laws about asylum-seeking.

India has laws regarding immigration and asylum-seeking. The most

recent law with asylum seeking that has caused the most controversy is

the Citizen Amendment Act with regards to refugees.

Organisations like the UNHCR, help individuals register for asylum.

People who wish to apply must come for registration with all of your

family members who are present in India. According to them, the

following documents are needed-

 Case numbers of immediate family members who have been

registered with UNHCR (in India or elsewhere),

 Passport/nationality document/identity document,

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 Birth certificates/vaccination cards for children,

 Marriage/divorce/death certificates,

 Any other documents you may have.

The candidate will be asked to explain why you left your country

and why you cannot go back on a form. They will be interviewed by a

Registration Officer.

Benefits of asylum

It provides protection to the people who had been forced to leave

their home countries. It provides freedom from torture or degrading

treatment. They are imbibed with the right to freedom of opinion and

expression.

It is basically granted to save the lives of people from the local

authorities’ jurisdiction when the person fears that he/she might not be

provided with a fair trial and if he/she stays any longer in that place will

have to face persecution either physical, mental or economic.

Despite some restrictions which may be imposed by the host

country, one can be allowed to work and earn. Once the asylum seekers

get the title of refugees, they are provided with the same rights subject

to exceptions like political rights and respect as that given to a citizen of

that country. Some might even obtain the citizenship of the country

where they have been granted asylum. Some can also opt for the

resettlement option in case of strong reasons.

To conclude it provides a new shot at life to the traumatized

group of people.

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Role of Nationality in the Asylum

The 1951 Refugee Convention contains the provision that no

individual can be discriminated against on the basis of race, religion, or

country of origin. However, when the State is deciding upon the

question of whether one should be granted asylum or not, various

factors are considered. The individual after submitting the application is

interviewed to gather all the information regarding his/her background,

the reason for pleading for asylum, etc. the state often considers the

nationality, background of an individual to decide whether the person is

in actual need or not.

For instance, a person who belongs from Syria or South Sudan

gives the reason that they fear persecution and imminent danger to

their lives due to the ongoing unsettlement among middle east

countries shows the genuineness of the reason for leaving their home

country.

It is not a sign of arbitrary discrimination rather it is seen whether

the people of a particular nationality or belonging to a linguistic group

are facing persecution in their home country, this question helps the

host state to conclude the application process.

Difference between Asylum and Extradition

These two terms are extreme poles of each other i.e. totally

opposite to each other. Asylum is providing protection and a safe place

by the host country to all those who have been exposed to risk and

persecution and therefore have left their home countries. On the other

hand, extradition is the process of sending back a fugitive by one

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country to another, the main purpose is to criminally prosecute the

fugitive. It is a process that takes place only when the two countries

involved have a certain ad hoc agreement or bilateral treaty regarding it.

Extradition is the process to make sure that the fugitives are

punished and justice is served and criminal cooperation is strengthened

between sovereign states. Whereas, asylum is to provide safety and

freedom from torture and a chance to live a peaceful life. If Asylum has

been granted to the person then the court of law will not hear the

expedition case and similarly, if a case of the expedition is pending

against an individual, he/she would not be granted asylum.

If a country wants to request the extradition of an individual, it

needs to ensure that the request made is in compliance with Article 33

of the 1951 Geneva Convention which deals with the International law’s

principle of non-refoulement. It is decided by the court whether the

person should be extradited or not. Whereas, the executive decides

whether an individual should be granted asylum in their country or not

based on factors like practical and political possibilities and grounds.

Famous cases of Asylum

(i) Assange v. The Swedish Prosecution Authority

The recent case that has captured a lot of media attention is of

Julian Assange. He is an Australian editor, publisher, and founder of

WikiLeaks who was accused of a rape case and a molestation case by

the Sweden government. The Sweden government had filed for the

extradition of Assange and the UK Supreme Court had ordered for his

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extradition to Sweden in May 2012. In June 2012, he was granted

asylum in England at the Embassy of Ecuador.

The reason was given that his human rights would be violated if

he is sent to Sweden. In 2015 Sweden dropped the charges against

Assange. In February 2012, the UN declared that he had been ‘arbitrarily

detained’ by the Ecuador embassy. In May 2019 he was sentenced for

50 weeks jail for breaching bail conditions.

He has also been accused of committing a crime against the

United States of America by releasing the confidential documents of the

United States of America on his website named ‘WikiLeaks’. The USA has

been trying to extradite him to their country.

(ii) Colombia v. Peru 1950

It is a landmark case that has described in detail the law on

diplomatic asylum. A national of Peru who was a political leader named

Victor Raul Haya de la Torre, he was accused of instigating a military

rebellion. He was granted asylum by the Colombian embassy at Limo.

However, he was not allowed to leave the country. The dispute arose

between Peru and Colombia and the matter was then referred to the

International Court of Justice. The main question raised was regarding

the right to grant diplomatic asylum.

The court carefully observed that: Diplomatic asylum is the

derogation of territorial sovereignty and it should not be recognized

unless in each case a legal basis is established.

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The state providing such a grant must prove that it has the right
to grant diplomatic asylum and it should be respected by the territorial

State.

The Court also observed that there is no international treaty

related to Diplomatic Asylum, only Latin American and Central American

countries have such rights. Diplomatic Asylum is defined as the asylum

provided to people who are political offenders and fear that if they are

prosecuted, they will have to face an unfair trial and therefore want to

escape the persecution. The Court held that it is a settled fact that

common criminals cannot be granted asylum.

In India, there is no specific law related to asylum-seekers. They

are categorized as ‘foreigners’ under various acts like Registration of

Foreigners Act,1939, Foreigners Order, 1948, Passport Act,1920 and The

Foreigners Act, 1946. India is not even a party to the Universal

Declaration of Human Rights(UDHR). Still, India has provided asylum in

certain cases, the main one being the asylum provided to Dalai Lama

and his followers in 1955 despite being highly criticized by the China

government. India had the power to do so by exercising its sovereign

power.

Diplomatic Envoys

Diplomats are the persons who reside in foreign countries as the

representative of the country by whom they are despatched. They act as

a link between the country who despatch them and by whom they are

accredited. Therefore, they perform the act of diplomacy, which in

International Law means by which the States maintain or establish

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mutual relations and carry out their legal or political transactions based
on their foreign policies.

Act of diplomacy may be performed by the head of State,

Government, Minister of Foreign Relations or by and by diplomatic

agents.

Diplomatic envoys enjoy freedom of movement and personal

inviolability. The latter entails a duty of the receiving state to abstain

from exercising enforcement rights and a special duty to protect the

diplomat from unwanted interference in the exercise of his or her

functions or privacy. The diplomatic agent also enjoys personal

immunity. He or she cannot be judged in the courts of the receiving

state, be the object of any act of investigation or prosecution, or be

required to give evidence as a witness. The sending state can waive the

aforementioned immunities if it deems that diplomatic confidentiality is

not at risk.

Immunities and Privileges

These immunities and privileges are as follows-

1). Inviolability: In international law, diplomatic agents have been given

sufficient personal security. This immunity is recognised under Vienna

convention 1961. In Article 29 0f the said convention it has been said

that "Diplomatic agents will enjoy physical inviolability. He will not be

liable to any form of arrest or detention. Honourable treatment will be

given to him by taking or keeping state and every efforts shall be made

to maintain his freedom and reputation as intact."

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But if the behaviour and conduct of diplomatic agent is found to

be objectionable and if charge is imposed upon him of interference in

internal affairs of keeping state, then he may be declared as persona

non grata and may be asked to leave the country (Article- 9 and 43 of
Vienna convention 1961), Indian diplomatic agent in Pakistan RAJESH

MITTAL was tortured by officers of intelligence agency of Pakistan on

25th may 1992 and with the result, India declared two Pakistani

diplomatic agents in India as persona non grata and was asked to leave
India is an good example of this.

2). Immunity from Civil Administrative Jurisdiction: It is well

established principle of international law that the diplomatic agents

enjoy immune from civil and administrative jurisdiction.

Under this immunity:-

(1). no suit can be filed against diplomatic agent for recovery of debt;

(2). he can not be arrested in action for debt recovery;

(3). his property can not be ceased and sold.

3). Immunity from Criminal Jurisdiction: Diplomatic agents have also

been given immunity from criminal jurisdiction. Under Article 31 of

Vienna convention 1961, it has been provided that "diplomatic agents

shall be immune from the criminal jurisdiction of the state". It means

that the keeping state shall not prosecute and penalise any diplomatic

agent under any circumstance. Even he can not be arrested. But it does

not mean that he can behave as he likes in keeping state. It is his duty
that he should obey all rules and laws of keeping state and should not

do such act which is inconsistent with the internal system of keeping

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state. If any misconduct is done by him, the keeping state may suspend
him and ask him to leave the country.

4). Immunity Regarding Residence: There is inviolability of residence

of diplomatic agent. Entry in house and even his house can not be
searched. if there is any person hidden in his house to whom the police

wants to arrest, normally the diplomatic agent surrenders such person

to the police.

5). Immunity from Giving Evidence in the Court: Diplomatic agent is

immured from presenting himself for giving evidence in the courts. He

can not be made bound for giving evidence in the court. In Article-31(2)

of Vienna convention, it has been said "no diplomatice agent will be

made bound for giving evidences in a court as witness". But if any

diplomatic agent wants to give evidence at his own then he will be

allowed to present himself in a court for giving evidence.

6). Immunity from Payment of Taxes: In international law, diplomatic

agent are immune from payment of taxes and customs duties.

According to Article 34 and 36 of Vienna convention "a diplomatic

agent shall be immune from payment of all types of taxes and duties".
But if any diplomatic agent wants to pay taxes in exchange for

enjoyment of facilities of water and electricity he will be allowed to pay.

But if does not pay any tax , no legal action will be taken against him.

7). Immunity from Police Rules and Regulations: Diplomatic agent

are immune from police rules and regulations. If he obeys these rules: it

will be treated as his good manners towards the state for maintenance

of good relations.

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8). Right of Worship and Devotion to God: Diplomatic agent have

right to worship according to his own consciousness is his embassy. But

he does not enjoy the right to preach his own religion and to make the

citizens of keeping states bound to participate in his worship and

devolution.

9). Immunity from Local and Military Obligations: According to

Article-35 of Vienna convention 1961,the diplomatic agent have been

immune from local and military obligations.

10). Right to Exercise Control and Jurisdiction over their Officers and

Families.

11). Freedom of Communication for Official Purpose: This freedom

has been conferred upon by Article-27 of Vienna convention on the

diplomatic relations, 1961. This Article provides that they have freedom

to communicate with their home-state in connection with their

functions and duties.

12). Right to Travel freely in Territory of the Receiving State: This

new right has, for the time, been introduced in Article-26 of the Vienna

convention on Diplomatic relations,1961. Article 26 provides that

diplomatic agents can travel in the territory of the receiving state

subject, of course, to the condition that they cannot go to the

prohibited places or the places which are important from the point of

view of the security of the receiving state.

13). Immunity from Social Security Provisions: According to Article

33, a diplomatic agent shall with respect to services rendered for the

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sending state be exempt from social security provisions which may be in

force in the receiving state.

14). Immunity from Inspection of Personal Baggage: Article 36(2) of

Vienna convention 1961 provides that the personal baggage of a

diplomatic agent be exempt from inspection.

Treaties

Article 38(1) of the International Court of Justice’s statute

identifies treaties as a source of law, along with general principles and

customs. Treaties occupy a very eminent position in international law.

They ensure friendly and peaceful relations of states with one another

and are a means by which international organizations take form,

regulate and monitor their affairs.

The concept of the treaty has undergone significant changes over

time. In earlier periods, treaties used to be oral and a ceremony would

be held where the parties would conclude it and swear an oath to God,

which used to act as the binding force of the treaty. Now, treaties must

be written and are legally binding between its parties.

Drafted by the International Law Commission of the UN and

taking force on 27 January 1980, the Vienna Convention on the Law of

Treaties set out some fundamental rules as to how treaties are to

operate and take form. More than half of the member states of the UN

are a party to the Convention.

Concept of treaty

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Treaty in common parlance may be defined as written

agreements between parties, which may or may not be stated, to

identify and follow a set of rules. They may also be referred to as pacts,

agreements, charters, etc. Declarations and political statements are

excluded from the scope of the definition of a treaty.

Treaties have been classified on the basis of many principles. On

the basis of the object, they have been classified as political treaties

(including alliances and disarmament treaties), constitutional and

administrative treaties (e.g. WHO’s constitution, which is responsible for

setting up the international body and to regulate it affairs), commercial

treaties (trade and fishery agreements), criminal treaties (which define

certain international crimes and may require the offender to be

extradited), treaties codifying international law, and treaties for ensuring

civil justice.

A country that hasn’t signed the treaty has no obligation to follow

its norms. However, like the ICJ had stated in the North Continental

Shelf Cases, that some treaties may give rise to international

conduct, customs and be of a “fundamentally norm-creating character.”

Article 26 of the Vienna Convention on the Law of Treaties deals

with the Latin maxim “pacta sunt servanda”, i.e. every signatory is to

follow the treaty in good faith and is binding upon them. This forms the

basis of every international agreement.

“Reservations” are the way in which a signatory may escape

having to follow all the provisions of the treaty and is a tactic used to

become a party by agreeing to the basic principles of a treaty. However,

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reservations can only be made in cases where such reservation is not

contrary to the object of the treaty.

Interpretation of a treaty should be bona fide and the object and

purpose of the treaty needs to be kept in mind while doing so. One
such method of interpretation of a treaty is adopting a broader-purpose

approach. Contrastingly, a purpose-oriented approach is adopted in

cases where the treaty in question to be interpreted is the constitutional

document of an international organization.

Kinds of treaty

(1) Law Making treaties

The term “law-making” treaty actually refers to the content and

the subject matter of a treaty, which instead of being contractual shall

be statutory.

In cases of law-making treaties, the obligations are independent;

they don’t require a subsequent fulfilment of rules by other parties to it.

These obligations have binding force and the parties to these treaties

must follow it. Unlike contracts, treaties have the power to make new

international tribunals, international waterways, mandates, etc.

These are multilateral treaties which stand for a common cause. In

the case of a multilateral treaty, this type of treaty can be broken down

and thought of as a number of bilateral treaties, each of which are

independent of one another and have to follow the obligations

inherently. As for bilateral treaties, they can simply be viewed as

dependent on each other as existence. Here, each party does not join to

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provide another party something it might require, but rather to stand

for a mutual cause or support a rule binding on all.

(2) Contractual treaties

They are usually applicable to treaties having a small number of

parties and are most commonly seen in bilateral treaties. These are

treaties where parties are mutually dependent on each other for specific

treatment to gain benefits, and have rights and obligations towards

each other.

In reality, treaties need to take care of both the statutory as well

as the contractual function. The scope of treaties is mostly perceived in

a contractual framework. Unlike law-making treaties, which sets out

rules for conduct, rights, and duties between parties which have to take

effect on the conclusion of the treaty, contractual treaties are usually

limited to, say, exchange of goods which one state might not possess

and require, or conveyances. Here, one party agrees to provide the

other party something it needs for something else in return, thereby

forming a system like barter.

Types of treaty

(1) Bilateral treaties

Treaties involving two entities are bilateral treaties. It is not

necessary that the treaty can only have 2 parties; there may be more

than two parties, however, there should be only two states involved.

(2) Multilateral treaties

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Treaties between three countries or more are multilateral treaties.

They might be international or domestic. They give rise to rights and

obligations among all the parties, i.e. each signatory has obligations

towards all the other signatories.

Treaties with a higher number of participating states gain more

international significance since it reflects the importance of the treaty.

All treaties have different purposes. Some set up international

organizations through the UN Charter of 1945, whereas others deal with

issues such as visa regulations.

Vienna Convention on the Law of Treaties,1969

The International Law Commission of the United Nations drafted

the Vienna Convention on the Law of Treaties, which was adopted on

May 23, 1969. Entering into force on January 27, 1980, it is an

international agreement between the states to govern and regulate

treaties.

The treaty is limited to and encompasses written treaties only.

Divided into many parts, the first part sets out the object, terms, and

scope of the agreement, and the second part lays down rules for

adoption, ratification, the conclusion of the treaties. The third part deals

with the interpretation of treaties. The fourth part talks about the

modification of treaties, and lastly, the fifth part delves into withdrawal,

suspension, termination, and invalidation of a treaty. It also includes

a necessary clause which gives the International Court of Justice

jurisdiction over any possible disputes. The final parts discuss rules for

ratification and effects on treaties due to change in government.

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As per the Latin maxim “pacta sunt servanda”, or as mentioned

under Article 26 of the Convention, all treaties are binding on its

signatories and shall be followed bona fide. The binding nature which

this treaty serves to all other treaties is a reason why the US isn’t a part

of it. There exists a tussle between Congress and the Executive branch,

over who has the authority to validate a withdrawal from treaties on

behalf of the country. Since treaties are binding, there is too much at

stake between the two organs of the US government.

GENERAL PRINCIPLES

Article 1 of the said Convention says that it is applicable to

treaties between the states. It is also applicable to treaties entered into

by international organizations. The Convention defines “treaty” as a

written agreement between states which may be embodied in one or

more than one instrument and is governed by International law.

Article 2 further defines “ratification”, “approval”, “reservation”, etc.

in the context of the treaty. It is important to note that none of the

provisions of the said Convention are applicable to written agreements

between an international body and a state, or between 2 subjects of

international law.

Article 3 thereby reiterates the scope of the Convention and

states that if such an agreement has been entered, its legality would not

be affected. The parties to such agreements do not have to follow the

rules of the Convention either, however, they should ensure that the

rules they follow to govern the treaty are acceptable in the eyes of

international law. Such agreements shall also not have any effect on the

relations between the States.

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Formation of a treaty

Every treaty begins by introducing its preamble, which states the

object of the treaties and the parties to it. It is then followed by what the

parties agreed upon. A statement of the period may or may not follow;
it depends on the time period for which the treaty shall exist.

Next up, reservations and then ratification clauses follow. Then, it

ends with the signatures of the parties involved along with the date and

venue of ratification.

The following steps form the essentials of formation of a treaty-

(i) Adoption of the text: Consent of all parties to a treaty is essential

for adopting a text. If the treaty is being adopted at an international

conference, a two-thirds majority shall be required for the adoption of

text unless agreed upon otherwise.

(ii) Authentication of the text: As per the procedure mentioned in the

text, a treaty shall be established to be authentic. On the failure of such

procedure, signatures or initials of representatives of the participating

states may be sufficient to deem the text to be definitive.

(iii) Expression of consent: This may be by way of signatures,

ratification, acceptance, approval or accession or by exchanging

instruments required for the treaty.

Role of treaties in International Law

Treaties form the basis of international law. They maintain stability

and diplomatic relations between the States. They are thus the most

important elements to guarantee international cooperation, peace, and

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security. This is one of the reasons why treaties are regarded as the
fundamental source of international law. The preamble of the Vienna

Convention on the Law of Treaties accords to treaties with the eminent

position they hold in ensuring international order and emphasizes their

existence as a continuum.

In earlier times, there was no concept of State and there was the

existence of many sovereigns. At that time, treaties weren’t only

between different states but also between officials of different ranks, or

between other authorities. Swearing to God was what acted as the

binding force at that time. As time passed by, the way in which treaties

were concluded gradually became more streamlined and sophisticated.

Treaties started taking the written form rather than being oral as

in the earlier times. Treaties that dealt with subjects of peace and

alliance began dominating and could now be given the force of a

statute. As the world started settling as states, treaties began gaining

prominence. The creation of the international organizations gave

treaties new-found importance. Then came the Law of Treaties which set

into permanence and recorded treaties as being a source of

international law.

Parties to a treaty

There are two types of parties to a treaty- state parties and third

States. A state party has ratified and signed the treaty and is legally

bound to follow it. “Third state” has been defined as a state which is not

a party to the treaty.

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Third States: Article 34 of the Convention says that a third State shall
be free from any rights or obligations to a treaty. In case of treaties

having a provision to extend obligations to a third State, such provision

must have obtained the express consent of that third State for it to

apply to them.

Provided that the third state gives its consent, if the parties to a

treaty wish to confer rights upon a third state/ group of states to which

it belongs/all states, a right shall arise for the third state.

This is mentioned in Article 36 of the Convention. A state which

shall exercise this right conferred on it by the treaty must follow the

directions and conditions as mentioned in it too.

Article 37 deals with revocation/alteration of rights and

obligations of third states and says that unless otherwise agreed, the

obligation on the third State by virtue of Article 35 may be

revoked/altered if express consent of parties to the treaty and the third

state has been obtained.

However, in case of a right conferred by Article 36, the same may

not be revoked/altered by the parties if it was pre-decided that such

right shall not be revocable/open to alteration without the consent of

the third State. Lastly, by virtue of the customary rule of international

law, rules of a treaty become binding even on third States.

Modes of Consent

Treaties are binding in nature which creates rights and obligations

for states in the international community, therefore consent is a very

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important step as it may bind the states to follow and uphold the said
treaty.

Article 9 of VCLT provides two ways by which a treaty is adopted

that is through consent which includes consent of all the parties

participating in its formation or adoption in international conferences

which takes place by a vote of two-thirds of the state’s present and

voting unless by the same majority it is decided to apply a different rule.

Treaties are a major document and there are various ways by

which states can give consent so that a treaty can come into existence,

as per Article 11 of VCLT it includes, consent by signature, exchange of

instruments constituting a treaty, ratification, acceptance, approval or

accession, or by any other means if so agreed.

(i) Consent by signature

Provided that the treaty explicitly states that signature by the

representative of a state shall be sufficient to be declared as a party, or

the negotiating states have mutually consented to signature be

sufficient, the representative’s signature expresses a state’s full intention

to enter into a treaty.

It is to be noted as per Article 12 of the VCLT, three conditions

have been laid out as to when the signature to the treaty leads to

consent which is as follows:

a) It is provided in the treaty itself that signature shall take effect.

b) It is agreed by the state during the negotiation that states

signature shall take effect.

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c) The intention of the State to give effect to the signature appears

from the full powers of its representation or during the

negotiation.

The act of signing a treaty is a very significant step which needs to

be conducted cautiously, the duty shall be given to a proper formal

authority like the head of the state or its representatives to sign the

same.

(ii) Consent by exchange of instruments required by the treaty

If the states agree that exchange shall be equivalent to the

expression of the consent to enter into the treaty, then so shall be the

case.

According to Article 13 of the VCLT, in case of treaties which are

expressed through any instrument that is exchanged between the

consenting parties, it may be expressed by a declaration made in the

instrument giving effect or otherwise establishing that those states had

agreed that the exchange of instruments should have that effect.

(iii) Consent by ratification, acceptance or approval

If the negotiating states are of the opinion that ratification shall

be equivalent to expressing consent, or the treaty provides for

ratification, then it shall be an acceptable way of obtaining consent to

the treaty. Similarly, the same condition applies to consent expressed by

approval or acceptance.

Once the consent is given to a treaty, the next step is its

ratification which officially declares that a treaty is in effect between the

concerned parties. Ratification of a treaty leads to the creation of formal

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obligations and rights. The signing of a treaty does not lead to its
automatic ratification, it should be acknowledged by proper authority.

The process of ratifying a treaty differs from state to state

however in Article 14 of the VCLT certain conditions are given which

leads ratification of a treaty which are as follows:

a) When the treaty provides for the expression of consent by

means of ratification.

b) During the negotiation, the states agree for ratification

c) The treaty is signed subject to ratification

d) There is an intention to ratify the treaty by the representative of

the state

It is mainly up to the provisions of the treaty which dictates the

status of the parties after its ratification.

(iv) Consent expressed by accession: Consent to the treaty shall be

obtained If the treaty provides for it or the negotiating states agree

upon accession.

(v) Formulation of reservations: A state may while concluding the

treaty expresses its reservations unless it’s prohibited by the treaty, or if

permitted shall violate with the object and intent of the treaty.

Invalidity of treaty

Part V of the Vienna Convention on The Law of Treaties, 1969,

particularly Section 2 deals with the invalidity of treaties. Articles 46-53

set out the ways to invalidate a treaty, i.e. make them void and

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unenforceable under international law. There are several reasons as to

why an internationally binding treaty may be declared as invalid.

(1) Ultra Vires treaties

Article 46 of The Law of Treaties talks about the willingness of a

state to invalidate and conclude the treaty on the ground that it goes

against its internal law. No State shall invoke such a fact. However,

exceptionally, such fact may be invoked if the violation was manifest

and of fundamental importance to the State’s internal law.

The Law of Treaties in its preamble clearly regards treaties as a

source of international law. This has two meanings- one, no matter if an

act is approved by the internal law, it will not assume legality if it is

condemned under international law, and two, in case of conflict

between internal and international law, international law shall prevail.

(2) Error

Article 48 talks about invalidation on grounds of the presence of

errors in a treaty. It is important to note that errors with respect to the

wording of the text do not invalidate the treaty. If the error is to a

substantial fact, i.e. one that was believed to be in existence at the time

of signing the treaty and formed the basis for which the treaty was

signed, such an error may be provoked by the state, provided that such

state has not, by its own conduct, contributed towards the error.

(3) Fraud and Corruption

If a state has become a signatory to a treaty due to fraudulent act

or conduct of another state who is also a signatory to the treaty, such a

state may invoke invalidating the treaty on grounds of consent being

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obtained by fraud. If a negotiating state, by corrupting the

representatives of another state directly or indirectly, has induced such a

state’s consent into entering a treaty, the state may invoke invalidating

its consent to be bound by the treaty.

(4) Coercion

Consent shall also be invalidated if it is obtained by coercing the

representative of a state, or by threatening the use of force against a

state.

(5) Conflict with Jus cogens

Treaties that are in conflict with jus cogens, or “peremptory norm

of general international law” such as piracy, genocide, apartheid, torture,

etc are void.

Suspension & Termination of treaty

VCLT Part V Section 3 deals with termination and suspension of

the operation of treaties. A treaty may specify the conditions of its

termination and may provide for denunciation by the parties. Where a

treaty contains no provisions regarding its termination, the existence of

a right of denunciation depends on the intention of the parties, which

can be inferred from the terms of the treaty and its subject-matter, but,

according to the VCLT, the presumption is that the treaty is not subject

to denunciation or withdrawal.

Following are the grounds of the termination and suspension of a treaty:

(1) Withdrawal of Treaties

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(2) Suspension of the operation of a treaty under its provisions or by

consent of the parties

(3) Suspension of the operation of a multilateral treaty by

agreement between certain of the parties only

(4) Termination or suspension of the operation of a treaty implied by

conclusion of a later treaty

(5) Termination or suspension of the operation of a treaty as a

consequence of its breach

(6) Impossibility of performance

(7) Fundamental change of circumstances

(8) Rift of diplomatic or consular relations

(9) Emergence of new jus cogens, etc.

Some of them are explained as follows:

(1) Withdrawal of Treaties: Obligations in international law arise from

the consent of the state. This is why treaties are mostly non-binding in

nature, and they expressly allow a party to withdraw.

(2) Implied by the conclusion of a later treaty: On account of drafting

a later treaty dealing with the same subject matter as its previous

version, the previous counterpart shall be deemed to be terminated,

provided that the parties intend to be governed by the new treaty or the

provisions of both the treaties are so incompatible with each other that

both the treaties cannot be applicable at the same time. The previous

treaty will be terminated if it’s the implied or established intention of the

signatories.

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(3) As a consequence of its breach: Material breach, as explicitly

mentioned in Section 61 consists in the violation of a provision of the

treaty which is of the essence to it and forsaking the treaty. There are

different consequences for different kinds of treaties.

If the treaty is bilateral and one of the parties has caused a

material breach of the treaty, then the other may use it to bring the

treaty to an end. If the treaty is multilateral, then default by one of the

parties entitles the other parties to terminate/suspend such treaty,

wholly or partly by unanimous consent.

(4) Impossibility of performance: The impossibility of fulfilling

conditions as per the treaty is considered sufficient ground for the

suspension/ termination of a treaty. If the impossibility is permanent, i.e.

the devastation makes execution of the treaty impossible, the treaty

may be terminated. However, if the impossibility is temporary, the treaty

may be suspended for the required duration.

However, if the impossibility of performance is due to the conduct

and action of one the parties, i.e. due to violation of a provision of the

treaty or violation of any international obligations, the treaty may not be

terminated/ suspended.

(5) Fundamental change of circumstances: Unforeseen changes which

fundamentally affect the treaty may be sufficient to invoke termination/

revocation of the treaty, provided that the changes are “fundamental” i.e.

initial existence of the circumstances may affect the consent of parties

to the treaty and that as a result, the obligations to be performed under

the treaty have been changed and transformed radically.

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If the change is due to breach of treaty or any international

obligations by one of the parties to the treaty, then this article would

not be invokable.

(6) Rift of diplomatic or consular relations: Provided that the treaty

demands the existence of hostile and diplomatic relations between its

parties, disturbance or severance of such relations shall have no effect

on the treaty since it doesn’t really affect the legal relationship among

the parties.

(7) Emergence of new jus cogens: If a new jus cogens or peremptory

norm of general international law emerges after worldwide assent to it,

any treaty in violation of it shall be deemed to be terminated.

Conclusion

The Vienna Convention on the Law of Treaties lays down basic and

fundamental principles to govern treaties. The main principle on which

the Convention operates is “pacta sunt servanda”, i.e. all treaties must

be followed in good force. It provides for various provisions such as

ratification, reservation, approval, conclusion, withdrawal, invalidation,

termination of a treaty, etc. The Convention is legally binding on its

parties. Treaties play an important role as the source of international

law and occupy a colossal pedestal in this field.

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Unit-IV
The Legal Regime of the Seas – Evolution of the Law of the Sea –
Freedoms of the High Seas – Common Heritage of Mankind – United
Nations Convention on the Law of the Seas – Legal Regime of
Airspace – Important Conventions relating to Airspace – Paris, Havana,
Warsaw and Chicago Conventions – Five Freedoms of Air – Legal
Regime of Outer space – Important Conventions such as Outer space
Treaty, Agreement on Rescue and Return of Astronauts, Liability
Convention, and Agreement on Registration of Space objects, Moon
Treaty - Uni space

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Introduction

Sea is a large body of water that is surrounded by the land. It is a

crucial part of human trade and commerce, voyage, mineral extraction,

power generation and is also considered as an essential source of blue

economy nowadays.

International law of the sea is a law of maritime space that

peacefully settles the global disputes on maritime boundary between or

among the States and defines various jurisdictions of the maritime

zones as well as the rights and obligations of the coastal States in these

zones, especially with regard to the conservation of marine environment

and biodiversity.

International law of the sea is that part of public international law

that regulates the rights and obligations of States and other subjects of

international law, regarding the use and utilization of the seas in peace

time. It is distinguished from the private maritime law that regulates the

rights and obligations of private persons with regard to maritime

matters, e.g., the carriage of goods and maritime insurance. Law of the

sea was developed as part of the law of nations in the 17th century with

the emergence of the modern national State system.

The seas of the world have historically played two key roles: firstly,

as a means of communication, and secondly, as an immense reservoir of

both living and non-living natural resources. Both of these roles have

encouraged the development of legal rules. No branch of international

law has undergone more radical changes during the past four decades

than has the law of the sea and maritime highways.

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Legal Regime of the seas

Law of the sea is concerned with the public order at sea and much

of this law is codified in the UN Convention on the Law of the Sea

(UNCLOS).

In the international jurisdictions disputes may frequently be arisen

among the neighboring coastal States regarding the delimitation of

maritime boundary, exploitation of minerals or natural resources,

commission of any crime in the territorial boundary of another State, etc.

These disputes are generally resolved by the international courts

or tribunals on the basis of complaints filed by the parties concerned

following the rules of international law of the sea or following the

precedents as a pivotal source of international law.

Shipping and fishing are the main areas of the sea. Depending on

human development, there were many cases of the use of technology,

and sometimes they attempted to satisfy the needs of human beings.

Many other resources and minerals, natural gas, oil, sand and gravel,

diamonds, gold and other resources were made from the seabed. With

the development of trade in the 20th century and the inexhaustible

realization of sea use, the classic principle of “Freedom of the Sea ” was

pushed into the background.

Codification of the Law of the sea

Since 1945, almost all the countries of the World have replaced

the “cannon-shot rule” with 12 nautical miles rule under which an area

of 12 nautical miles from a country sea coast is presumed to be the

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exclusive maritime limit of one country, and these rules are also
acknowledged and accepted under the UNCLOS rules and regulations.

After 1945, once the UN was set up, it was decided by the UN

security council and the Secretariat that there was a need to codify
existing rules especially with regards to the Law of the seas and to come

out with permanent solution vis-a-vis the maritime territorial limit of any

country.

With this view, the UNCLOS was passed, which codified the

existing customary rules, and it came into force in 1999, even though

the agreement was signed in 1982.

International Law of the Sea: Legal and Institutional Framework

The present law relating to sea is a mixture of customary

international law and treaty law, both bilateral and multilateral.

The Four Geneva Conventions on Territorial Waters and

Contiguous Zone, 1958. The first UN Conference on the law of the sea

was held in 1958 in Geneva. In this conference four multilateral

conventions covering various aspects on the law of the sea were

adopted:

1) Convention on the Territorial Sea and Contiguous Zone;

2) Convention on the High Seas;

3) Convention on Fishing and Conservation of Living Resources;

and

4) Convention on the Continental Shelf.

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All these conventions are in force, though in many aspects they

have been superseded by the 1982 UN Convention on the Law of the

Sea which is mainly of general application, i.e., it is not confined to one

specific aspect of the law of the sea. For non-parties to the 1982

Convention and for those matters on which the 1982 Convention is

silent, the 1958 Conventions will continue to govern the relations of

States that have ratified them. For States that are neither party to the

1982 Convention nor to the 1958 Conventions, the relevant law is the
customary.

The law of the Sea convention 1982

The law of seas governs all the rules and regulations related to

seas. The main aim of the law of seas is to ensure that the coastal state

that the sea is surrounded by, that particular state’s interest shall be

protected. The law of sea convention 1982 was established by the

United Nations Convention.

Which is also known as UNCLOS, it defines the rights and duties

entitled to the states, and it defines the limit as to till which limit of the

sea the state has sovereignty. It also states that in case of violation of

any rights of the coastal state for example in the case of fishery the state

is only entitled to use that natural resource for the economic

development of the state but meanwhile no other state has the

authority to do so.

Any state can innocently pass by the water territory of another

state but that shall not harm the interest of that particular state. The

ship passing through the innocent passage shall not hamper the

security of the coastal state and must pass through with the intention of

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good faith. As long as it is not hampering the interest till then they have
right to passage. Any state violating the rights of the another coastal

state can be punished under the UNCLOS.

Hence the UNCLOS basically aims at protecting the rights and

establishing duties on the coastal state.

A classified example of maritime disputes, existed between India

and Sri Lanka, commonly known as the Ram Setu Bridge, connecting

Dhanushkodi in India to Talaimannar in Sri Lanka.

Evolution of law of Seas

In 1970, United Nations General Assembly Resolution 2749, the

Declaration of Principles Governing the Seabed and Ocean Floor, was

adopted by 108 nation states and stated that the deep seabed should

be preserved for peaceful purposes and is the "Common Heritage of

Mankind."

In 1982, the Common Heritage of Mankind concept was stated to

relate to "the seabed and ocean floor and subsoil thereof, beyond the

limits of national jurisdiction" under Article 136 of the United Nations

Law of the Sea Treaty (UNCLOS).

The law of the sea is a body of customs, treaties, and international

agreements by which governments maintain order, productivity, and

peaceful relations on the sea.

Notable in the development of the law of the sea are a number of

international conventions signed in the latter half of the 20th century.

The United Nations (UN) held its first Conference on the Law of the Sea

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(UNCLOS I) in 1956, which resulted in a 1958 Convention. The final

conference, held in Montego Bay, Jamaica, in 1982, resulted in the 1982

Law of the Sea Convention (LOSC). The LOSC came into force in 1994

upon receiving the necessary number of UN signatories.

While the United States ratified the 1958 Convention, as of late

2013, it had not become a party to the 1982 Convention. The United

States recognizes that the 1982 Convention reflects customary

international law and complies with its provisions.

Freedom of the High Seas

The High Seas:

The high seas are open to all States, whether coastal or land-

locked. The main stream of Grotian theory was that the high sea is res

communis as it is physically impossible to take possession of it. Fenwick

opines that high sea or open sea is the sea outside the territorial waters.

The high seas were defined in article 1 of the 1958 Geneva Convention

on the High Seas as all parts of the sea that were not included in the

territorial sea or in the internal waters of a state.

High seas is that particular part of the sea where no state has

absolute sovereignty and all state shall use it commonly, its beyond the

waters and no state can have jurisdiction over it. There are several

activities that takes place in the high seas. The high seas plays a very

important role in the preservation of the natural resources as the

extractions of natural resources in that particular area is restricted.

The high seas helps in the protection and the balance of the

ecosystem as there are several species, minerals and other natural

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resources found, which makes it more prone towards the establishment

of several industries like fishing and shipping industries that rely largely

on the natural resources that’s found in the high seas.

Freedom of the high seas

Freedom of the high seas is exercised under the conditions laid

down by this Convention and by other rules of international law. It

comprises, inter alia, both for coastal and land-locked States:

(a) freedom of navigation;

(b) freedom of overflight;

(c) freedom to lay submarine cables and pipelines, subject to Part VI;

(d) freedom to construct artificial islands and other installations

permitted under international law, subject to Part VI;

(e) freedom of fishing, subject to the conditions laid down in section 2;

(f) freedom of scientific research, subject to Parts VI and XIII.

These freedoms shall be exercised by all States with due regard

for the interests of other States in their exercise of the freedom of the

high seas, and also with due regard for the rights under this Convention

with respect to activities in the Area.

On all these aspects the state has the freedom to occupy or utilise

the high seas for economic development of the development of the

high seas. The condition precedent to all these shall always comply to

the fact that it shall not over extract the natural resources of the high

seas and must aim at the development of the high seas. All the states

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shall co-operate each other. They need to conserve and preserve the
fishers and all the water organisms and resources. They need to respect

the treaties.

Common heritage of mankind

Common heritage of mankind (also termed the common heritage

of humanity, common heritage of humankind or common heritage

principle) is a principle of international law that holds that defined

territorial areas and elements of humanity's common heritage (cultural

and natural) should be held in trust for future generations and be

protected from exploitation by individual nation states or corporations.

The common heritage of mankind, a pioneer legal principle within

international law, provides for a general framework of universal

responsibility of sustainable legal and environmental protection. It

establishes a close link of sea and space law to the law governing other

areas beyond national jurisdiction, such as the high seas, the deep

seafloor, and some might even argue to include the vast ice covered

Antarctica.

The “common heritage of mankind” is an ethical concept and a

general concept of international law. It establishes that some localities

belong to all humanity and that their resources are available for

everyone’s use and benefit, taking into account future generations and

the needs of developing countries. It is intended to achieve aspects of

the sustainable development of common spaces and their resources,

but may apply beyond this traditional scope.

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When first introduced in the 1960s, the “common heritage of

mankind” (CHM) was a controversial concept, and it remains so to this

day. This controversy includes issues of scope, content and status,

together with CHM’s relationship to other legal concepts. Some

commentators consider it out of fashion due to its lack of use in practice,

e.g., for mining of seabed resources, and its subsequent rejection by

modern environmental treaty regimes. In contrast, other commentators

consider it a general principle of international law with enduring

significance.

ORIGINS OF THE PRINCIPLE

Legal discussion of CHM generally begins with the speech of the

Maltese ambassador Arvid Pardo (1914–1999) to the United Nations in

1967. In this speech he proposed that the seabed and ocean floor

beyond national jurisdiction be considered the CHM.

This was an important event that triggered the later negotiation

of the 1982 Law of the Sea Convention (UNCLOS III) and other legal

developments that subsequently earned Arvid Pardo the title “father of

the law of the sea.” But CHM has a much longer history, and Pardo drew

upon this in developing CHM as a legal concept for the oceans.

Other people, including the writer and environmentalist Elisabeth

Mann Borgese (1918 – 2002) considered CHM an ethical concept central

to a new world order, based on new forms of cooperation, economic

theory and philosophy. This history is important to elucidating the

ethical core of CHM: the responsibility of humans to care for and

protect the environment, of which we are a part, for present and future

generations.

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A 1948 draft World Constitution provided that the Earth and its
resources were to be the common property of mankind, managed for

the good of all. Concern about the use of nuclear technology and

resources, for military and peaceful purposes, also led to an early

proposal that nuclear resources be collectively owned and managed,

and not owned by any one state.

Traces of CHM are also found in the U.N. Outer Space Treaty

(1967), which governs state exploration and use of outer space, the

moon, and other celestial bodies. CHM, however, achieved prominence

in the context of the evolving law of the sea. The 1967 World Peace

through Law Conference referred to the high seas as “the common

heritage of mankind” and stated that the seabed should be subject to

U.N. jurisdiction and control.

REVOLUTIONIZING THE LAW OF THE SEA

Concern about the impact of new technologies upon the oceans,

militarization and expanding state claims to ownership of parts of the

oceans, e.g., continental shelf and exclusive economic zones, together

with growing economic disparity and associated harm to long-term

human security, prompted Arvid Pardo to develop the idea that all

ocean space, i.e., surface of the sea, water column, seabed and its

subsoil, and living resources, should be declared the CHM, irrespective

of existing claims to national jurisdiction.

The intention was to replace the outdated legal concept of

“freedom of the high seas” by proclaiming ocean areas an international

commons. (Areas with significant natural resources that are

acknowledged to be beyond the limits of the national jurisdiction of

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sovereign states are known as international commons.) Freedom of the

high seas, developed by the Dutch jurist Hugo Grotius (1583–1645),

creates an open access regime allowing for its laissez-faire use. The few

restrictions that exist serve only to protect the interests of other states

and their exercise of free use.

In contrast, as the CHM, ocean space and its resources would be a

commons that could not be owned by states beyond a certain limit. As a

commons it would be open to the international community of states,

but its use would be subject to international administration and

management for the common good of all humanity. Where areas of

ocean space and resources existed within national jurisdiction, states

would regulate and manage use on behalf of all mankind, not solely for

the benefit of national interests.

This approach recognized the unity of the oceans as ecological

systems and rejected both laissez-faire freedom and unfettered state

sovereignty. It included efforts to simplify ocean jurisdiction by

establishing one single line of demarcation between national and

international ocean space (Draft Ocean Space Treaty of 1971) and

prevent gradually expanding claims to national jurisdiction.

The CHM was originally intended as a concept that would

revolutionize the law of the sea by applying to all ocean space and

resources. But in 1967 Arvid Pardo recognized that this would be

rejected by the powerful states who were attempting to extend their

sovereign claims to more ocean space and resources. By focusing on the

legal status of the much more limited entity of the “seabed” beyond

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national jurisdiction, it was thought that CHM could gain an important

foothold within the U.N. system.

The 1967 Maltese proposal lead to a number of important

developments, including the 1970 U.N. General Assembly Declaration of

Principles Governing the Sea-Bed and the Ocean Floor and the Subsoil

Thereof, Beyond the Limits of National Jurisdiction.

This declaration set out the legal principles needed to implement

the notion that the seabed and its resources are the CHM, and it helped

create consensus for the negotiation of a new law of the sea convention:

UNCLOS III (U.N. Convention on the Law of the Sea). The ultimate

outcome was a much more limited application of CHM than ever

intended by its advocates. As will be explained immediately below,

UNCLOS III restricted the application of CHM to a few rocks, e.g.,

mineral resources such as manganese nodules, sitting on the bottom of

the deep seabed.

Part XI of UNCLOS III deals with the seabed and ocean floor and

subsoil thereof (the “Area”) beyond the limits of national jurisdiction.

Article 136 declares the Area and its resources (only) to be the “common

heritage of mankind.” The Area and its resources cannot be claimed,

appropriated, or owned by any state or person (Article 137). All rights to

resources belong to mankind as a whole, with the International Seabed

Authority (ISA) acting on mankind’s behalf (Article 140). The ISA must

ensure the equitable sharing of financial and other benefits arising from
activities in the Area, taking into particular account the needs and

interests of developing states and others. Promotion of research,

transfer of technology to developing states and protection of the

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marine environment’s ecological balance are all important functions of

the ISA (Articles 143–145).

Part XI provisions create an international administration and

management regime for only a small part of the international commons

(the Area and its resources). It does not generally replace the freedom of

the high seas (Part VII); thus the intended revolution of the law of the

sea was not achieved. In the 1970s, the most commercially viable

mineral resources of the Area were thought to be manganese nodules,

hence Pardo’s view that CHM was reduced in its application to “ugly

little rocks lying in the darkest depths of all creation.” Despite this

serious limitation, the use of CHM was revolutionary enough to be one

of the reasons why the US refused to adhere to UNCLOS III.

To date, commercial use of the Area and its resources has not

occurred. Further, the traditional fragmented approach to jurisdiction

over separate elements of ocean space and resources endures despite

the irrefutable unity of ecological systems.

United Nations Conventions on the Law of the Sea

The United Nations Convention on the Law of the Sea (UNCLOS),

also called the Law of the Sea Convention or the Law of the Sea Treaty,

is an international agreement that establishes a legal framework for all

marine and maritime activities. As of June 2016, 167 countries and the

European Union are parties.

The Convention resulted from the third United Nations

Conference on the Law of the Sea (UNCLOS III), which took place

between 1973 and 1982. UNCLOS replaced the four treaties of the 1958

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Convention on the High Seas. UNCLOS came into force in 1994, a year
after Guyana became the 60th nation to ratify the treaty. It is uncertain

as to what extent the Convention codifies customary international law.

In general, the UNCLOS defines the rights and responsibilities of

nations with respect to their use of the world’s oceans. It establishes

guidelines for businesses, the environment and the management of

marine natural resources. As of June 2016, 167 countries and the

European Union (EU) have joined in the Convention.

The United Nations Convention on the Law of the Sea (UNCLOS)

sets out an international legal framework governing the oceans,

including shipping. UNCLOS codifies the rules underlying the nationality

(registry) of ships, the right of innocent passage for merchant vessels

through other nations’ territorial waters, etc..

The 1982 Convention on the Law of the Sea constitutes a

comprehensive codification and development of contemporary

international law governing the sea in time of peace. This treaty is

considered to be the “constitution of the oceans” and represents the

result of an unprecedented, and so far never replicated, effort at

codification and progressive development of international law.

Maritime jurisdictions are now governed mainly by the 1982 UN

Convention on the Law of the Sea. The comprehensive 1982 Convention

that replaced the 1958 four conventions on the law of the sea consists

of 320 articles and 9 annexure was concluded in 1982. The UNCLOS is

intended to govern the use of oceans for fishing, shipping, exploration,

navigating and mining and it is the most complete treaty in public

international law that covers a range of law of the sea topics, e.g.

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delimitation of maritime boundaries, maritime zones, marine

environment protection, marine scientific research, piracy and so on.

This Convention represents the most significant development in

the whole history of the rules of international law regarding the high
seas. The greater part of the convention, containing the more significant

rules therein enunciated much the previous law was thereby changed;

appear now to command the general consensus of the world

community.

Salient Features of The UNCLOS, 1982

A careful list of the main substantive provisions of the Convention,

focusing on those, introduces changes or new concepts in the

traditional law of the sea would seem to include the aspects:

a) The maximum width of the territorial sea is fixed at 12 miles and that

of the contiguous zone at 24 miles;

b) A “transit passage” regime for straits used for international navigation

is established;

c) States consisting of archipelagos, provided certain conditions are

satisfied, can be considered as “archipelagic States”, the outermost

islands being connected by “archipelagic baselines” so that the waters

inside these lines are archipelagic waters;

d) A 200-mile exclusive economic zone including the seabed and the

water column, may be established by coastal States in which such States

exercise sovereign rights and jurisdiction on all resource-related

activities;

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e) Other States enjoy in the exclusive economic zone high seas

freedoms of navigation, over flight, laying of cables and pipelines and

other internationally lawful uses of the sea connected with these

freedoms;

f) A rule of mutual “due regard” applies to ensure compatibility between

the exercise of the rights of the coastal states and of those of other

states in the exclusive economic zone;

g) The concept of the continental shelf has been confirmed, though with

newly defined external limits;

h) The International Seabed Authority being the “machinery” entrusted

with the supervision and regulation of exploration and exploitation of

the resources;

i) A series of very detailed provisions deal with the protection of the

marine environment setting out general principles and rules about

competence for law-making and enforcement as well as on safeguards;

j) Detailed provisions concerning marine scientific research, based on

the principle of consent of the coastal State, consent which should be

the norm for pure research and discretionary for resource-oriented

research;

k) The ocean bottom beyond national jurisdiction is proclaimed to be

the “Common Heritage of the Mankind” ( Khan, 2006 ).

UNCLOS: Various Jurisdictions of the Maritime Zones

Under both the Geneva Convention on Territorial Sea, 1958 and

the UN Convention on the Law of the Sea, 1982 there are following

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seven maritime areas over which the States can exercise their
jurisdiction:

1) Base Line;

2) Inland waters;

3) Territorial Sea;

4) Contiguous Zone;

5) Exclusive Economic Zone (EEZ);

6) High Seas; and

7) Continental shelf.

1). The Base Line: The coastal curve, from which the maritime area of a

State is measured, is called baseline or low water line. Baseline can be of

two types: a) normal baseline and b) straight baseline.

A “normal baseline” is defined under the Law of the Sea as the

low-water line along the coast as marked on officially recognized, large-

scale charts or the lowest charted datum, which is mean lower low water

(MLLW) in the United States.

Normal baseline is the low-water mark line along the coast. The

low-water mark after ebb tide on the coast is considered the normal

baseline. On the other hand, straight baseline departs from the physical

coastline due to certain distinctive features of coasts of a State.

In some circumstances, when the coastline is deeply indented, has

fringing islands or is highly unstable, straight baselines may be used.

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2). The Inland Waters: The internal waters which exist from the
baseline to the landward side area of the coastal State are called the

inland waters. Article 8 (1) of the 1982 Convention states that, waters on

the landward side of the baseline of the territorial sea form part of the

internal waters of the State. Also article 5 (1) of the 1958 Convention

provides that, waters on the landward side of the baseline of the

territorial sea form part of the internal waters of the State.

Civil and Criminal Jurisdiction of the Coastal State

The coastal State has its sovereign control and authority over its

inland waters. The coastal state also has the civil and criminal

jurisdiction over its internal waters. If the law and order situations in the

inland waters of the coastal area are hampered, it shall definitely apply

its criminal jurisdiction.

There is a renowned case in this regard e.g., the Fijens Case or

Wildenhus Case (1887) (Belgium vs. USA) which has already been

discussed in the previous chapter. Another leading case in this respect

is Rex vs. Anderson (1868). In this case, James Anderson was an

American national killed a foreign national in a British ship and at the

time of that killing the vessel was in the French territorial water. That is

to say, in this case the accused was an American citizen, vessel was of

Britain and the place of committing crime was France. When a case is

filed before the British Court, Anderson claimed and argued that the

crime was occurred in the French territorial water and for this reason
Britain has no jurisdiction to try the accused in this. The main issue

before the Court was whether the British Court has actually jurisdiction

to try Anderson. The Appellate Court decided that, the three countries

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involved in this case are entitled to prosecute Anderson and so can

Britain in order to protect its vessel. The reason behind this judgment

was that, Britain has jurisdiction to prosecute Anderson because the

crime was committed in the British ship, i.e. here the flag State is Britain.

Again, the USA has also Personal Jurisdiction to prosecute Anderson

and France can also prosecute as it has the Territorial Jurisdiction as the

crime has hampered the security and peace of France.

3). The Territorial Sea: The doctrine of territorial sea has traditionally

been regarded as founded upon the principle laid down by the Dutch

Jurist Bynkershoek in 1702 that a state’s sovereignty extended as far out

to sea as a common shot would reach and the three-mile limit has

traditionally been represented as simply rough equivalent of the

maximum range of a canon shot in the 18th century. Actually the

territorial sea is the closest maritime area adjacent to the land territory

of states. The territorial sea forms an undeniable part of the land

territory to which it is bound, so that a cession of land will automatically

include any band of territorial waters.

Legal Position of the Coastal State

Ordinarily the states claimed only three miles of territorial sea till

the 1960s and there was no uniformity in the national jurisdictions of

the territorial sea. The 1982 Convention has put to rest all varying width

of the territorial sea.

According to article 1 of the 1958 Convention, the sovereignty of

a state extends beyond its land territory and internal waters, to a belt of

sea adjacent to its coast. As per article 2(1) of the 1982 UN Convention,

the sovereignty of a coastal state extends, beyond its land territory and

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internal waters and, in the case of an archipelagic state, its archipelagic

waters, to an adjacent belt of sea, described as the territorial sea. This

sovereignty extends to the air space over the territorial sea as well as to

its bed and subsoil. The sovereignty over the territorial sea is exercised

subject to this Convention and to other rules of international law.

According to article 3 of the 1982 Convention, every State has the

right to establish the breadth of its territorial sea up to a limit not

exceeding 12 nautical miles, measured from baselines determined in

accordance with this Convention. The width of the territorial sea is

defined from the low water mark around the coasts of the state. In the

area of territorial sea, the coastal state shall have its exclusive

jurisdiction. But the other states shall enjoy an exceptional right named

as “right of innocent passage”.

Right of Innocent Passage

Article 17 of the 1982 Convention deals with the right of innocent

passage of states and provides that, subject to this Convention, ships of

all States, whether coastal or land-locked, enjoy the right of innocent

passage through the territorial sea.

The 1982 Convention also contains provisions regarding the

meaning of ‘passage’ which in its article 18 (1) states that, passage

means navigation through the territorial sea for the purpose of:

a) traversing that sea without entering internal waters or calling at

a roadstead or port facility outside internal waters; or

b) proceeding to or from internal waters or a call at such

roadstead or port facility. Passage shall be continuous and expeditious.

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Conversely, article 19 (1) provides the meaning of ‘innocent

passage’ and accordingly states that, passage is innocent so long as it is

not prejudicial to the peace, good order or security of the coastal State.

Such passage shall take place in conformity with this Convention and

with other rules of international law. The right to innocent passage shall

no more remain innocent if the peace and security of the territorial sea

of the coastal state is hampered by any act of the foreign vessel.

Obligations of the Coastal State

The coastal state has some obligations regarding the innocent

passage under the 1982 Convention. For instance, the coastal state shall

enact necessary legislations regarding the right to innocent passage.

That is to say, the obligation to ensure the security of innocent passage

lies upon the coastal state (Article 22 (1)). Again, article 25 deals with the

rights of protection of the coastal State which states in its sub article (1)

that, the coastal State may take the necessary steps in its territorial sea

to prevent passage which is not innocent.

The coastal State may, without discrimination in form or in fact

among foreign ships, suspend temporarily in specified areas of its

territorial sea, the innocent passage of foreign ships if such suspension

is essential for the protection of its security, including weapons exercises.

Such suspension shall take effect only after having been duly published

(Article 25 (3)).

Coastal States’ Criminal Jurisdiction: Vessels in Innocent Passage

Article 27 deals with the provisions regarding the criminal

jurisdiction on board a foreign ship and provides in its sub-article (1)

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that, the criminal jurisdiction of the coastal State should not be

exercised on board a foreign ship passing through the territorial sea to

arrest any person or to conduct any investigation in connection with any

crime committed onboard the ship during its passage, save only in the

following cases:

a) If the consequences of the crime extend to the coastal State;

b) If the crime is of a kind to disturb the peace of the country or

the good order of the territorial sea;

c) If the assistance of the local authorities has been requested by

the master of the ship or by a diplomatic agent or consular officer of the

flag State; or

d) If such measures are necessary for the suppression of illicit

traffic in narcotic drugs or psychotropic substances.

The above provisions do not affect the right of the coastal State

to take any steps authorized by its laws for the purpose of an arrest on

board a foreign ship passing through the territorial sea after leaving

internal waters. In considering whether or in what manner an arrest

should be made, the local authorities shall have due regard to the

interests of navigation (Article 27 (4)).

Civil Jurisdiction of the of the Coastal State over the Vessels in

Innocent Passage

Article 28 of the 1982 Convention deals with the civil jurisdiction

of the coastal state in relation to foreign ships which states as follows:

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1) The coastal State should not stop or divert a foreign ship

passing through the territorial sea for the purpose of exercising

civil jurisdiction in relation to a person on board the ship.

2) The coastal State may not levy execution against or arrest the
ship for the purpose of any civil proceedings, save only in respect

of obligations or liabilities assumed or incurred by the ship itself

in the course or for the purpose of its voyage through the waters

of the coastal State.

3) Para (2) is without prejudice to the right of the coastal State, in

accordance with its laws, to levy execution against or to arrest, for

the purpose of any civil proceedings, a foreign ship lying in the

territorial sea, or passing through the territorial sea after leaving

internal waters.

4). The Contiguous Zone

Contiguous zone is that part of the sea which is beyond and

adjacent to the territorial sea of the coastal state. It may not extend

beyond 24 miles from which the width of the territorial sea is measured.

The use of contiguous zones gives the coastal state an additional area

of jurisdiction for limited purposes.

According to the UNCLOS, a state can continue to enforce its laws

in the contiguous zones concerning four specific matters: (1) customs, (2)

taxation, (3) immigration and (4) pollution.

Jurisdiction of the Coastal State in the Contiguous Zone

If the coastal state notices that another state or person is violating

its rights, or fleeing after committing any crime, or hampering the law

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and order situations in the contiguous zone area of the coastal state,
then it has jurisdiction to prosecute and punish the perpetrator state.

5). Exclusive Economic Zone (EEZ) or Patrimonial Sea

An EEZ is a sea zone over which a state has special rights

regarding the exploration and the use of marine resources, including

energy production from water and wind. Generally, a state’s EEZ is an

area beyond and adjacent to the territorial sea, extending seaward to a

distance of no more than 200 nm (about 370 km) out from its coastal

baseline. However, there is still exception to this rule when the EEZs of

neighbouring states overlap.

That is to say, these states’ coastal baselines are less than 400 nm

(about 740 km) apart. When the overlap of EEZs occurs, it is up to the

states to delineate their actual maritime boundary, though there

are several international conventions or rules (note that they could also

be confusing since some of these conventions or rules are conflicting

with each other).

A state’s EEZ is defined in the UNCLOS as it starts at the coastal

edge and extends outwards to the sea for a distance of 200 nm from the

baseline. Obviously, the EEZ of a state stretches much further into the

sea than its territorial waters, which ends at 12 nm from the coastal

baseline. Thus the area of the EEZ includes that of the contiguous zone.

6). Continental Shelf:

States also have rights to the seabed of what is called the

continental shelf. A state’s continental shelf is defined in the UNCLOS as

the natural prolongation of its land territory towards the outer edge of

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continental margin, or 200 nm (about 370 km) from the coastal state’s
baseline, whichever is greater.

As a result, a state’s continental shelf may exceed 200 nm from its

baseline until the natural prolongation ends. However, it may never

exceed 350 nm (about 650 km) from the baseline. The UNCLOS permits

all coastal states to have the right to harvest (or grant the right to others)

mineral and nonliving material in the subsoil of its continental shelf, with

the exclusion of any other right.

The practice of allotting EEZs to nations and of giving them

control of maritime affairs outside territorial limits had not been

materialised until the late 20th century. Aside from its provisions

defining ocean boundaries, the UNCLOS establishes general obligations

for safeguarding the marine environment and protecting freedom of

scientific research on the high seas.

In summary, the most significant issues covered in the provisions

of the UNCLOS are setting limits, navigation, archipelagic status and

transit regimes, EEZs, continental shelf jurisdiction, deep seabed mining,

the exploitation regime, protection of the marine environment and

settlement of disputes. The claims for maritime boundaries of major

countries are described in Appendix B.

NOAA's Role

NOAA is responsible for depicting on its nautical charts the limits

of the 12 nautical mile Territorial Sea, 24 nautical mile Contiguous Zone,

and 200 nautical mile Exclusive Economic Zone (EEZ). Each of these

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maritime zones is projected from what is called a “normal baseline,”

which is derived from NOAA nautical charts.

The location of maritime zones and boundaries can have

potentially far-reaching effects. As a result, NOAA works with other

federal agencies, particularly the U.S. Department of State, to

periodically update U.S. maritime zones and boundaries as depicted on

NOAA navigational charts.

Legal Regime of Airspace

A basic principle of international air law is that every state has

complete and exclusive sovereignty over the airspace above its territory,

including its territorial sea. At the turn of the 20th century the view that

airspace, like the high seas, should be free was sometimes advanced.

Airspace, in international law, the space above a particular

national territory, treated as belonging to the government controlling

the territory. It does not include outer space, which, under the Outer

Space Treaty of 1967, is declared to be free and not subject to national

appropriation.

Air Law is a general viewpoint that covers the special

characteristics and demands of aviation field. There is no governing

body with the right to frame the air laws governing all states in the legal

sense or there is not any international law. But the phrase Air Law is

used to describe a system of implicit and explicit agreements that the

nations together. These agreements are known as conventions. There

are numerous conventions such as Chicago, Rome, Tokyo, Geneva, and

few more. Let us discuss more about the aviation law.

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What is Air Law?

It is a branch of law that is concerned with air transport

operations, and all the associated legal and business concerns. This is a

series of rules that governs the use of airspace for aviation, and its
benefits for the general public and the nations of the world.

The first attempt to set the air law was made around 1910, when

German air balloons repeatedly trespassed over French territory. The

French government wanted both the governments to come together to

form an agreement to resolve the problem. The Paris Conference of

1910 was in favor of the sovereignty of states in the space above their

territories.

It started developing further when after the World War I, the first

scheduled flight from Paris to London took its first flight in 1909.

Public International Air Law: Chicago Convention

A Convention on International Civil Aviation was signed at

Chicago on 7th December, 1944. It established specific principles in

order to develop international civil aviation in a safe and orderly manner.

It also ensures that international air transport services are established on

the basis of fair opportunity for participating countries.

The convention formed the International Civil Aviation

Organization (ICAO), the Canada-based agency of the United Nations. It

sets the principles of international air navigation and works to −

 Ensure a well-ordered growth of international civil aviation

throughout the world.

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 Encourage aircraft design and operation for peaceful and

constructive purposes.

 Promote the development of airways, airports, and air navigation

facilities for international civil aviation.

 Meet the safety, regularity, efficiency, and economical air

transport needs of the people around the world.

 Prevent unplanned economic decisions and in turn waste.

 Ensure that each Contracting State has an opportunity to

operate international airlines.

 Encourage flight safety in international air transport.

 Foster the development of all aspects of international civil

aviation.

Important Convention relating to Airspace

Air law, in its current usage, refers to the set of principles and

series of rules governing the use of airspace and its benefits for aviation,

general public and different nations. A number of multilateral as well as

bilateral treaties have been formulated for the effective and peaceful

usage of airspace.

The locomotion of first flight between London and Paris ensued

the first-ever convention, Paris Convention of 1919, in the field of air

space. Consequently, four distinct and cardinal conventions took place.

These were Havana Convention, 1928; Warsaw Convention, 1929;

Chicago Convention, 1944; and Montreal Convention, 1999. All these

conventions progressed the idea of Aerial navigation.

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Further in Havana Convention, the important issue regarding air

traffic dealt with dexterity.

Another important aspect of airspace, apart from air navigation, is

aircraft hijacking. Several treaties and conventions took place to contain

the curb of hijacking, most important incudes, Tokyo Convention, 1963;

Hague Convention, 1970; Montreal Convention, 1971; and Beijing

Protocol, 2011.

The Important principles being emerged from such treaties and

conventions are principal of universal jurisdiction and principle of

extradition. Former implies that, crime of hijacking is against the interest

of international community and in order to conquer such a crime, all

states can exercise jurisdiction. The Principle of extradition provided that

the offence is deemed to be to be extraditable offence in common

extradition treaty which will have effect of considering hijacking as not a

political crime.

1). Paris Convention of 1919

The Paris Convention of 1919 (formally, the Convention Relating

to the Regulation of Aerial Navigation) was the first international

convention to address the political difficulties and intricacies involved in

international aerial navigation. The convention was concluded under the

auspices of the International Commission for Air Navigation (forerunner

to ICAO). It attempted to reduce the confusing patchwork of ideologies

and regulations which differed by country by defining certain guiding

principles and provisions, and was signed in Paris on October 13, 1919.

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In Paris convention, the exclusive and complete sovereignty over

the air space above its territory was recognized. Along with other

important principles, innocent passage to other country’s aircraft was

the cardinal principal of the convention. It also focused on the issue of

peace and prohibition of military use.

History

The first passenger-carrying airline flight happened in 1913 with

the St. Petersburg-Tampa Airboat Line. Before that time, aircraft had

been used to carry mail and other cargo. With the start of World War I

in 1914, aircraft were being operated internationally to carry not only

cargo, but also as military assets. The international use of aircraft

brought up questions about air sovereignty. The arguments over air

sovereignty at the time factored into one of two main viewpoints: either

no state had a right to claim sovereignty over the airspace overlying its

territory, or every state had the right to do so.

The Paris Convention of 1919 sought to determine this question

as part of the process of framing the convention's assumptions, and it

was decided that each nation has absolute sovereignty over the airspace

overlying its territories and waters.

The nations that signed the treaty were: Belgium, Bolivia, Brazil,

the British Empire, China, Cuba, Ecuador, France, Greece, Guatemala,

Haiti, the Hejaz, Honduras, Italy, Japan, Liberia, Nicaragua, Panama, Peru,

Poland, Portugal, Roumania, the Kingdom of Yugoslavia, Siam,

Czechoslovakia, and Uruguay. Ultimately, the convention was ratified by

11 states, including Persia, which had not signed it. The United States

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never ratified it because of its linkage to the League of Nations. The

treaty came into force in 1922.

The Paris Convention was superseded by the Convention on

International Civil Aviation (also known as the Chicago Convention).

Principles

The following principles governed the drafting of the convention:

 Each nation has absolute sovereignty over the airspace overlying its

territories and waters. A nation, therefore, has the right to deny entry

and regulate flights (both foreign and domestic) into and through its

airspace.

 Each nation should apply its airspace rules equally to its own and

foreign aircraft operating within that airspace, and make rules such

that its sovereignty and security are respected while affording as

much freedom of passage as possible to its own and other

signatories' aircraft.

 Aircraft of contracting states are to be treated equally in the eyes of

each nation's law.

 Aircraft must be registered to a state, and they possess the

nationality of the state in which they are registered.

Contents

It had 9 chapters, dealing with:

 General Principles

 Nationality of aircraft

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 Certificates of airworthiness and competency

 Admission to air navigation above foreign territory

 Rules to be observed on departure when under way and on

landing

 Prohibited transport

 State aircraft

 International Commission for air navigation

 Final Provisions

2). Havana Convention 1928

The Havana Convention was modelled after the Paris Convention;

it applied exclusively to private aircraft (government aircraft were not

included) and laid down basic principles and rules for aerial traffic,

recognizing that every State had complete and exclusive sovereignty

over the airspace above its territory and adjacent territorial waters.

Clauses largely enabled the USA owned airlines to freely operate

services within North and South America.

Although the principles of the Havana Convention were the

mutual freedom of air passage, it made, however, no attempt to

develop uniform technical standards, nor was there any provision for

periodic discussion on common problems through the agency of a

permanent organization (i.e., a Secretariat).

The Convention did not contain provisions for continuing

administrative machinery and entrusted certain duties of coordination

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to the Pan-American Union, mainly to its conference that met every five
years. The Havana Convention had no Annexes; all rules were contained

in the treaty itself. Aircraft regulation was done according to the laws of

each country; no uniformity was provided.

In summary, the Havana Convention contained no provisions for a

permanent and dynamic means of facilitating civil aircraft’s progressive

development and evolution. States were expected to take the initiative

in guiding the development of civil aviation and in the writing of

regulatory codes. This permitted a good deal of flexibility among States,

but also led to a degree of uncertainty or confusion in practice.

The Havana Convention was approved by the US Senate on 20

February 1931. Pursuant to the terms of Article 34, the Convention came

into force as to the United States in respect of other countries which

had ratified it, 40 days from the deposit by the United States of its

ratification with the Cuban Government. The Convention was registered

with the League of Nations on 12 May 1932.

This Pan-American Agreement was a certain success, since, signed

by 21 States, it was finally ratified by 16 of them by 1944, i.e., Bolivia,

Brazil, Chile, Costa Rica, Cuba, the Dominican Republic, Ecuador,

Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Uruguay, the

USA, and Venezuela. The Secretary General of ICAN entered into direct

relations with the Director General of the Pan-American Union and it

was agreed between them that the secretariat of ICAN should regularly
communicate to the Union all information it receives in exchange of

documentation of the same order that the Union can gather.

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Although the Paris and Havana Conventions served a useful

purpose, they also caused some degree of confusion in actual practice,

since they were two separate sets of rules. However, they were seen to

be no longer adequate for the years after World War II, because of the

immense wartime development of aerial transport. The Convention on

International Civil Aviation signed at Chicago on 7 November 1944

superseded them; there was some readiness to concede that

commercial air rights as well as technical and navigational regulations

should be governed by international agreement.

3). Warsaw Convention

The Convention for the Unification of certain rules relating to

international carriage by air, commonly known as the Warsaw

Convention, is an international convention which regulates liability for

international carriage of persons, luggage, or goods performed by

aircraft for reward.

Originally signed in 1929 in Warsaw (hence the name), it was

amended in 1955 at The Hague, Netherlands, and in 1971 in Guatemala

City, Guatemala. United States courts have held that, at least for some

purposes, the Warsaw Convention is a different instrument from the

Warsaw Convention as amended by the Hague Protocol.

The Montreal Convention, signed in 1999, replaced the Warsaw

Convention system in countries ratifying it.

History

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On 17 August 1923, the French government proposed the

convening of a diplomatic conference In November 1923 for the

purpose of concluding a convention relating to liability in international

carriage by air. The conference was formally deferred on two occasions

due to reluctant behavior of the governments of various nations to act

on such a short notice without the knowledge of the proposed

convention. Finally, between 27 October and 6 November, the first

conference met in Paris to study the draft convention. Since most of the
participants were diplomats accredited to the French government and

not professionals, it was agreed unanimously that a body of technical,

legal experts be set up to study the draft convention prior to its

submission to the diplomatic conference for approval. Accordingly, the

International Technical Committee of Legal Experts on Air Questions

(Comité International Technique d’Experts Juridiques Aériens, CITEJA)

was formed in 1925. In 1927–28 CITEJA studied and developed the

proposed draft convention and developed it into the present package of

unification of law and presented it at the Warsaw Conference, where it

was approved between 4 and 12 October 1929. It unified an important

sector of private air law.

The Convention was written originally in French and the original

documents were deposited in the archives of the Ministry for Foreign

Affairs of Poland. After coming into force on 13 February 1933, it

resolved some conflicts of law and jurisdiction.

Between 1948 and 1951 it was further studied by a legal

committee set up by the International Civil Aviation Organization (ICAO)

and in 1952 a new draft was prepared to replace the convention.

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However it was rejected and it was decided that the convention be

amended rather than replaced in 1953. The work done by the legal

committee at the Ninth Session was presented to the International

Conference on Air Law which was convened by the Council of the ICAO

and met at The Hague from 6 to 28 September 1955. The Hague

Conference adopted a Protocol (the Hague Protocol) for the

amendment of the Warsaw Convention. Between the parties of the

Protocol, it was agreed that the 1929 Warsaw Convention and the 1955
Hague Protocol were to be read and interpreted together as one single

instrument to be known as the Warsaw Convention as amended at the

Hague in 1955. This was not an amendment to the convention but

rather a creation of a new and separate legal instrument that is only

binding between the parties. If one nation is a party to the Warsaw

Convention and another to the Hague Protocol, neither state has an

instrument in common and therefore there is no mutual international

ground for litigation.

Finally, the Montreal Convention, signed in 1999, replaced the

Warsaw Convention system.

Contents

There are five chapters:

 Chapter I – Definitions

 Chapter II – Documents of Carriage; Luggage and Passenger Ticket

 Chapter III – Liability of the Carrier

 Chapter IV – Provisions Relating to Combined Carriage

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 Chapter V – General and Final Provisions

In the convention there is a provision of successive carriage and a

combined carriage partly by air and partly by other modes of transport

as well.

In particular, the Warsaw Convention:

 Defines "international carriage" and the convention's scope of

applicability

 Sets rules for documents of carriage

 Sets rules for the air carrier's liability and limitations thereof

 Sets rules for legal jurisdiction

 Mandates carriers to issue passenger tickets;

 Requires carriers to issue baggage checks for checked luggage;

 Creates a limitation period of two years within which a claim must be

brought (Article 29); and

 Limits a carrier's liability to at most: 250,000 Francs or 16,600 special

drawing rights (SDR) for personal injury; 250 Francs or 19 SDR per

kilogram for checked luggage and cargo, or US$20 per

kilogram[citation needed] for non-signatories of the amended

Montreal Convention; 5,000 Francs or 332 SDR for the hand luggage

of a traveller.

 The sums limiting liability were originally given in gold francs

(defined in terms of a particular quantity of gold by article 22

paragraph 5 of the convention). These sums were amended by the

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Montreal Additional Protocol No. 2 to substitute an expression given

in terms of SDRs. These sums are valid in the absence of a differing

agreement (on a higher sum) with the carrier. Agreements on lower

sums are null and void.

 A court may also award a claiming party's costs, unless the carrier

made an offer within 6 months of the loss (or at least 6 months

before the beginning of any legal proceedings) which the claiming

party has failed to beat.

The Warsaw Convention provides that a plaintiff can file a lawsuit

at his or her discretion in one of the following forums:

 The carrier's principal place of business

 The domicile of the carrier

 The carrier's place of business through which the contract was made

 The place of the destination

According to Clauses 17 and 18 of the Warsaw Convention, airline

companies are liable for any damage that occurs to passengers or their

belongings during in-flight. However, airline companies will not be held

responsible if the damage results from the passenger's own fault or one

of their temporary servants such as doctors assisting ill passengers on

their own initiative (Clause 20).

To be covered by air carriers, doctors should respond to the

captain's call when it comes to assisting ill passengers. In such cases,

doctors are considered an airline's temporary servants who acted on the

airline's instructions. Major airlines are all covered by insurance to meet

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such contingencies and to cover doctors who act as their temporary

agents.

Ratifications

As of 2015, the Warsaw Convention had been ratified by 152

states. The Protocol to the Convention had been ratified by 137 states.

4). Chicago Convention

The Convention on International Civil Aviation, also known as the

Chicago Convention, established the International Civil Aviation

Organization (ICAO), a specialized agency of the UN charged with

coordinating international air travel. The Convention establishes rules of

airspace, aircraft registration and safety, security, and sustainability, and

details the rights of the signatories in relation to air travel. The

Convention also contains provisions pertaining to taxation.

The document was signed on December 7, 1944, in Chicago by 52

signatory states. It received the requisite 26th ratification on March 5,

1947, and went into effect on April 4, 1947, the same date that ICAO

came into being. In October of the same year, ICAO became a

specialized agency of the United Nations Economic and Social Council

(ECOSOC). The Convention has since been revised eight times (in 1959,

1963, 1969, 1975, 1980, 1997, 2000 and 2006).

As of March 2019, the Chicago Convention had 193 state parties,

which includes all member states of the United Nations except

Liechtenstein. The Cook Islands is a party to the Convention although it

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is not a member of the UN. The convention has been extended to cover
Liechtenstein by the ratification of Switzerland.

Both the conventions lack the proper regulation of airspace after

World War II, which resulted into the formulation of Chicago

Convention which proved to be Magna Carta in the field of air law.

The peculiar features of Chicago convention includes, the need of

consent of concerned state before schedule flight and power of ICAO

council to settle disputes along with its binding nature. For the first time

‘Five freedoms of air’ were also declared under the convention. It was

also declared that for state aircraft, special agreement and consent

thereon is prerequisite for their locomotion. The International Civil

Aviation Organization, considered to be the paramount organization

concerning air law, was also established under the convention.

Main articles

Some important articles are:

 Article 1: Every state has complete and exclusive sovereignty over

airspace above its territory.

 Article 3 bis: Every other state must refrain from resorting to the use

of weapons against civil aircraft in flight.

 Article 5: The aircraft of states, other than scheduled international air

services, have the right to make flights across state's territories and

to make stops without obtaining prior permission. However, the

state may require the aircraft to make a landing.

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 Article 6: (Scheduled air services) No scheduled international air

service may be operated over or into the territory of a contracting

State, except with the special permission or other authorization of

that State.

 Article 10: (Landing at customs airports): The state can require that

landing to be at a designated customs airport and similarly

departure from the territory can be required to be from a

designated customs airport.

 Article 12: Each state shall keep its own rules of the air as uniform as

possible with those established under the convention, the duty to

ensure compliance with these rules rests with the contracting state.

 Article 13: (Entry and Clearance Regulations) A state's laws and

regulations regarding the admission and departure of passengers,

crew or cargo from aircraft shall be complied with on arrival, upon

departure and whilst within the territory of that state.

 Article 16: The authorities of each state shall have the right to search

the aircraft of other states on landing or departure, without

unreasonable delay.

 Article 24: Aircraft flying to, from or across, the territory of a state

shall be admitted temporarily free of duty. Fuel, oil, spare parts,

regular equipment and aircraft stores retained on board are also

exempted from customs duty, inspection fees or similar charges.[5]

 Article 29: Before an international flight, the pilot in command must

ensure that the aircraft is airworthy, duly registered and that the

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relevant certificates are on board the aircraft. The required

documents are:

 Certificate of registration

 Certificate of airworthiness

 Passenger names, place of boarding and destination

 Crew licenses

 Journey Logbook

 Radio Licence

 Cargo manifest

 Article 30: The aircraft of a state flying in or over the territory of

another state shall only carry radios licensed and used in accordance

with the regulations of the state in which the aircraft is registered.

The radios may only be used by members of the flight crew suitably

licensed by the state in which the aircraft is registered.

 Article 32: The pilot and crew of every aircraft engaged in

international aviation must have certificates of competency and

licensees issued or validated by the state in which the aircraft is

registered.

 Article 33: (Recognition of Certificates and Licences) Certificates of

airworthiness, certificates of competency and licensees issued or

validated by the state in which the aircraft is registered, shall be

recognized as valid by other states. The requirements for the issuing

of those certificates or airworthiness, certificates of competency or

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licensees must be equal to or above the minimum standards

established by the Convention.

 Article 40: No aircraft or personnel with endorsed licenses or

certificate will engage in international navigation except with the

permission of the state or states whose territory is entered. Any

license holder who does not satisfy international standard relating to

that license or certificate shall have attached to or endorsed on that

license information regarding the particulars in which he does not

satisfy those standards.

Five Freedoms of Air

The freedom of air means a country grants airlines of a particular

country the privilege to use and/or land in another country’s airspace.

The freedoms of the air are a set of commercial aviation rights granting

a country's airlines the privilege to enter and land in another country's

airspace. They were formulated as a result of disagreements over the

extent of aviation liberalisation in the Convention on International Civil

Aviation of 1944, known as the Chicago Convention. The signatories to

the convention decided to set rules that would act as fundamental

building blocks to international commercial aviation.

The United States had called for a standardized set of separate air

rights to be negotiated between states, but most other countries were

concerned that the size of the U.S. airlines would dominate air travel if

there were not strict rules. The freedoms of the air are the fundamental

building blocks of the international commercial aviation route network.

The use of the terms "freedom" and "right" confers entitlement to

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operate international air services only within the scope of the

multilateral and bilateral treaties (air services agreements) that allow

them.

The convention provides Nine freedoms of air, but only the first
five freedoms have been officially recognized by the International Civil

Aviation Organisation (ICAO).

International Civil Aviation Organization (ICAO)

ICAO consists of an Assembly of representatives from the

contracting states, a Council of governing bodies out of various

subordinate bodies, and a Secretariat. The chief officers are the

President of the Council and the Secretary General. ICAO conducts

meeting every three years to discuss about the work and to set future

policies.

The suggestions, standards, and recommendations are amended

by the convention. ICAO identifies nine separate geographical regions

to plan the provision of air navigation facilities and on-ground services

the aircrafts require for flying in these regions.

Freedoms of the Air

There are five different freedoms of the air. The first two are technical

freedoms followed by three commercial freedoms −

 First Freedom − The right of aircraft from State A to overfly State B

without landing. That is, it is granted by one State to another State

or States to fly across its territory without landing.

In the case of the GoFirst flight (Indian carrier) was using the

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airspace of Pakistan (the second country) and was landing in the

UAE (the third country).

 Second Freedom − The right of aircraft from State A to land in State

B for technical reasons. The right or privilege, in respect of

scheduled international air services, granted by one State to another

State or States to land in its territory for non-traffic purposes.

This means an Air India flight from New Delhi to New York can

land at a British airport to get refuelled without embarking or

disembarking passengers.

 Third Freedom − To put down, in the territory of the first State,

traffic coming from the home State of the carrier. This is the right of

aircraft from State A to accept paying traffic from State A and put it

down in State B.

 Fourth Freedom − To take on, in the territory of the first State, traffic

destined for the home State of the carrier. The right of aircraft from

State A to pick up paying traffic in State B and put it down in State A.

 Fifth Freedom − To put down and to take on, in the territory of the

first State, traffic coming from or destined to a third State. The right

of aircraft from State A to take paying traffic from State B to State C.

The first two freedoms concern the passage of commercial aircraft

through foreign airspace and airports, while the other freedoms are

about carrying people, mail and cargo internationally. The first through

fifth freedoms are officially enumerated by international treaties,

especially the Chicago Convention. Several other freedoms have been

added, and although most are not officially recognised under broadly

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applicable international treaties, they have been agreed to by a number

of countries.

The lower-numbered freedoms are relatively universal while the

higher-numbered ones are rarer and more controversial. Liberal open

skies agreements often represent the least restrictive form of air services

agreements and may include many if not all freedoms. They are

relatively rare, but examples include the recent single aviation markets

established in the European Union (European Common Aviation Area),

and between Australia and New Zealand.

Legal Regime on outerspace

Outer space and the celestial bodies are not subject to any kind of

appropriation, they are free for exploration and use by all States for

exclusively peaceful purposes in conformity with the following

provisions. No space object shall be launched otherwise than under the

authority of a State.

The first nation to send a man into space was U.S.S.R and that

triggered the very concept of the space law and the space race began.

After that, the number of advancements in space exploration from a

number of satellites, to international Space Station from establishing

foot on the moon, to forestalling the approaching treats from outer

space to earth.

There was no universal law and need of space law felt and in the

absence of law, it is governed by various treaties and conventions only.

The First treaty regarding space law was Outer Space Treaty, which came

into force in the year 1967. After that, many treaties came into the

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picture and the main purpose was the peaceful utilization of space and
space resources for the welfare of mankind.

Outer Space

Outer space, commonly shortened to space, is the expanse that

exists beyond Earth and its atmosphere and between celestial bodies.

There is no clear cut definition some there are many proposed

definitions of outer space, like:

 Any region of space beyond limits determined with reference to

the boundaries of a celestial body or system, especially:

 The region of space immediately beyond Earth's atmosphere.

 Interplanetary or interstellar space.

Outer space represents a challenging environment for human

exploration because of the hazards of vacuum and radiation.

Microgravity also has a negative effect on human physiology that

causes both muscle atrophy and bone loss. In addition to these health

and environmental issues, the economic cost of putting objects,

including humans, into space is very high.

The Space Law refers to the human activities in outer space with

relation to National and International Law. During the time, when it was

discussed at the United Nations, many treaties, resolutions, international

space organizations, agreements on space activities etc., were originated.

Legal Status:

There are 5 basic treaties:

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(1) Outer Space Treaty

(2) Agreement on the Rescue of Astronauts, Return of Astronauts and

Return of Objects Launched into Space (Astronaut Rescue and Return

Agreement)

(3) Convention on International Liability for Damage Caused by Space

Objects (The Liability Convention)

(4) Convention on Registration of Objects Launched into Outer Space

(The Registration Convention)

(5) Agreement governing the activities of States on Moon and Other

Celestial Bodies (The Moon Agreement).

Outer space Treaty

The Outer Space Treaty is also known as the Treaty on Principles

Governing the Activities of States in the Exploration and Use of Outer

Space, including the Moon and other Celestial Bodies. At the time it was

signed up by three countries:

 The Russain Federation.

 The United Kingdom.

 The United States of America.

The Outer Space Treaty was considered by the Legal

Subcommittee in 1966 and agreement was reached in the General

Assembly in the same year. The Treaty was largely based on the

Declaration of Legal Principles Governing the Activities of States in the

Exploration and Use of Outer Space, which had been adopted by the

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General Assembly in its resolution 1962 (XVIII) in 1963, but added a few
new provisions.

The Treaty was opened for signature by the three depository

Governments (the Russian Federation, the United Kingdom and the

United States of America) in January 1967, and it entered into force in

October 1967.

It is regarded as the Master Treaty of all in the space law and

sometimes called The Grandfather Treaty. This treaty came into the

picture when humans were close to set foot on the moon. It reflected

the concern of two superpowers of that time, U.S & Soviet Union. The

Outer Space Treaty was signed for the benefit of entire mankind and

majorly focused upon the concept of weapons of mass destruction in

space. This treaty also tries to resolve the issue of claim of sovereignty in

space and it also dealt with registration of Space Objects.

The Outer Space Treaty provides the basic framework on

international space law, including the following principles:

 the exploration and use of outer space shall be carried out for

the benefit and in the interests of all countries and shall be the

province of all mankind;

 outer space shall be free for exploration and use by all States;

 outer space is not subject to national appropriation by claim of

sovereignty, by means of use or occupation, or by any other

means;

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 States shall not place nuclear weapons or other weapons of mass

destruction in orbit or on celestial bodies or station them in

outer space in any other manner;

 the Moon and other celestial bodies shall be used exclusively for
peaceful purposes;

 astronauts shall be regarded as the envoys of mankind;

 States shall be responsible for national space activities whether

carried out by governmental or non-governmental entities;

 States shall be liable for damage caused by their space objects;

and

 States shall avoid harmful contamination of space and celestial

bodies.

This treaty further brought the reassurance that outer space was

to be used only for peaceful purposes and it shall be for the betterment

of mankind. It further laid out the direction to proceed:

 It brought into action the points as promised in the treaty.

(International cooperation in matters relating to outer space,

peaceful co-existence).

 Requested the countries signing up for the treaty to ratify the

treaty as soon as possible.

 The treaty expressed its hope for its successful adherence for a

long time.

Requested the committee to adhere by certain measures for

peaceful uses of outer space:

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 To come to an agreement to set the liability for the damages

caused in the due process of launching objects into outer space.

 To come to an agreement on the aid of astronauts and space

vehicles (returns and assistance).

 To form a lucid definition of outer space and the processes of its

utilisation.

 To decide the various implications of communication in space.

 Provide a report of progress in work at the 22nd General

Assembly Session.

Agreement on Rescue and Return of Astronauts

The Agreement on the Rescue and Return of Astronauts and the

Return of Objects Launched into Outer Space (ARRA) of 1968 deals with

the obligation of states toward astronauts in distress or in emergency

situations and with the obligation to return space objects. It is the

second of the five United Nations space treaties, after the Outer Space

Treaty (OST) of 1967 and before the Liability Convention (LIAB) of 1972.

The historical development of ARRA and how this agreement

reflects the needs and interests of the two important space-faring

nations at the time of its entry into force, the United States and the

Soviet Union, are important factors for understanding the space race.

ARRA is related to the OST and regards the various obligations of states

concerning rescue and assistance as well as the return of astronauts,

which stand in the middle between a general humanitarian duty and

political and national security considerations.

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The return of space objects and the question of costs of rescue

and return operations are important concerns and can be compared to

the situation with the law of the sea, the United Nations Convention on

the Law of the Sea (UNCLOS) of 1982 and the Convention for the

Unification of Certain Rules of Law Respecting Assistance and Salvage at

Sea (Salvage Convention) of 1989.

ARRA has never been applied with respect to accidents or distress

of astronauts or cosmonauts but several times with respect to the

recovering and returning of space objects.

Finally, current challenges, such as the commercialization and

privatization of outer space activities need to be addressed. This

includes the increased interests of private individuals to enter outer

space (so-called space tourism) and the question of the application of

the ARRA to suborbital flights. Many legal challenges created by

technological progress can be resolved via an evolving interpretation

and application of the ARRA. Yet, some issues might warrant a new legal

framework.

Liability Convention

The Liability Convention was considered and negotiated by the

Legal subcommittee from 1963 to 1972. Agreement was reached in the

General Assembly in 1971 ( resolution 2777 (XXVI)), and the Convention

entered into force in September 1972. Elaborating on Article 7 of the

Outer Space Treaty, the Liability Convention provides that a launching

State shall be absolutely liable to pay compensation for damage caused

by its space objects on the surface of the Earth or to aircraft, and liable

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for damage due to its faults in space. The Convention also provides for
procedures for the settlement of claims for damages.

The Convention on International Liability for Damage Caused by

Space Objects, also known as Space Liability Convention, is a treaty from

1972 that expands on the liability rules created in the Outer Space of

1967. In 1978, the crash of the nuclear powered Soviet Satellite Kosmos

954 in Canadian Territory led to the only claim filed under the

convention.

The Liability Convention was concluded and opened for signature

on 29 March, 1972. It entered into force on 1 September 1972. As of 1

January 2021, 98 States have ratified the Liability Convention, 19 have

signed but not ratified and four international intergovernmental

organizations have declared their acceptance of the rights and

obligation provided for in the agreement. The said four international

intergovernmental organizations were the European Space Agency, the

European Organisation for the Exploitation of Meteorological Satellites,

the Intersputnik International Organization of Space Communications,

and the European Telecommunications Satellite Organization.

States (countries) bear international responsibility for all space

objects that are launched within their territory. This means that

regardless of who launches the space object, if it was launched from

State A's territory, or from State A's facility, or if State A caused the

launch to happen, then State A is fully liable for damages that result
from that space object.

If two states work together to launch a space object, then both of

those states are jointly and severally liable for the damage that object

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causes. This means that the injured party can sue either of the two
states for the full amount of damage.

Claims under the Liability Convention must be brought by the

state against a state. The convention was created to supplement existing

and future national laws providing compensation to parties injured by

space activities. Whereas under most national legal systems an

individual or a corporation may bring a lawsuit against another

individual or another corporation, under the Liability Convention claims

must be brought on the state level only. This means that if an individual

is injured by a space object and wishes to seek compensation under the

Liability Convention, the individual must arrange for his or her country

to make a claim against the country that launched the space object that

caused the damage.

Agreement on Registration of Space objects

The Convention on Registration of Objects Launched into Outer

Space (commonly known as the Registration Convention) was adopted

by the United Nations General Assembly in 1974 and went into force in

1976. As of February 2022, it has been ratified by 72 states.

Space objects are subject to registration in order to allocate

"jurisdiction and control" over those objects in the sovereign-free

environment of outer space. This approach is similar to the registration

of ships in view of the high sea and for aircrafts with respect to the

international airspace.

Registration is one of the basic principles of space law, starting

with UN General Assembly Resolution 1721 B (XVI) of December 20,

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1961, followed by Resolution 1962 (XVIII) of December 13, 1963, then

formulated in Article VIII of the Outer Space Treaty of 1967 and as

specified in the Registration Convention of 1975. Registration of space

objects can be seen today as a principle of customary international law,

relevant for each spacefaring state.

Registration is divided into a national and an international level.

The State Party establishes a national registry for its space objects, and

those registrations have to be communicated via diplomatic channel to

the UN Register of space objects.

This UN Register is handled by the UN Office for Outer Space

Affairs (UNOOSA) and is an open source of information for space

objects worldwide. Registration is linked to the so-called launching state

of the relevant space object. There might be more than one launching

state for the specific launch event, but only one state actor can register

a specific space object. The state of registry gains "jurisdiction and

control" over the space object and therefore no double registration is

permissible.

Based on the established UN Space Law, registration practice was

subject to some adaptions due to technical developments and legal

challenges. After the privatization of the major international satellite

organizations, a number of non-registrations had to be faced. The state

actors reacted with the UN Registration Practice Resolution of 2007 as

elaborated in the Legal Subcommittee of UNCOPUOS, the Committee

for the Peaceful Use of Outer Space. In this context an UNOOSA

Registration Information Submission Form had been developed.

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Today the complexity of launch activities and the concepts of

mega-constellations lead to new challenges to the registration system.

The Registration Practice Resolution already recommends that in cases

of joint launches, each space object should be registered separately.

Registration of space objects is a legal instrument in the context

of state responsibility; it is not an instrument of traffic management. The

orbit information of the registration system is indicative for

identification purposes but not real-time positioning information. Such

traffic management information follows different rules.

Moon Treaty

The Moon Treaty (1979) provided for the demilitarization of the

Moon and other celestial bodies and declared the Moon and its

resources to be a “common heritage of mankind.

The Agreement Governing the Activities of States on the Moon

and Other Celestial Bodies, better known as the Moon Treaty or Moon

Agreement, is a multilateral treaty that turns jurisdiction of all celestial

bodies (including the orbits around such bodies) over to the participant

countries. Thus, all activities would conform to international law,

including the United Nations Charter.

It was noted that since the 1967 Outer Space Treaty was signed,

technologies and society evolved, requiring a redefinition of the rights

and responsibilities of citizens and governments alike in the use and

development of outer space.

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The primary stated objective of the 1979 Moon Treaty is "to

provide the necessary legal principles for governing the behavior of

states, international organizations, and individuals who explore celestial

bodies other than Earth, as well as administration of the resources that

exploration may yield." It proposed to do so by having the state parties

produce an "international regime" that would establish the appropriate

procedures (Article 11.5).

The Moon Treaty proposes to establish an "international regime"

or "framework of laws" that apply to the Moon and to other celestial

bodies within the Solar System, including orbits around or other

trajectories to or around them.

The Moon Treaty lays several provisions outlined in 21 articles. In

Article 1, the treaty makes a declaration that the Moon should be used

for the benefit of all states and all peoples of the international

community. It reiterates that lunar resources are "not subject to national

appropriation by claim of sovereignty, by means of use or occupation,

or by any other means." It also expresses a desire to prevent the Moon

from becoming a source of international conflict, so that the resources

should be used exclusively for peaceful purposes.

To those ends, the treaty lays several provisions, and some of

these are paraphrased below:

 Bans any military use of celestial bodies, including weapon testing,

nuclear weapons in orbit, or military bases. The use of military

personnel for scientific research or for any other peaceful purposes

shall not be prohibited. (Article 3.4)

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 Provides a framework of laws to establish an international

cooperation regime, including appropriate procedures, to govern

the responsible exploitation of natural resources of the Moon.

(Article 11.5)

 Bans altering the environmental balance of celestial bodies and

requires that states take measures to prevent accidental

contamination of the environments of celestial bodies, including

Earth. (Article 7.1)

 The orderly and safe use of the natural lunar resources with an

equitable sharing by all state parties in the benefits derived from

those resources. (Article 11.7)

 The placement of personnel or equipment on or below the surface

shall not create a right of ownership. (Article 11)

 There shall be freedom of scientific research and exploration and use

on the Moon by any party without discrimination of any kind.

(Article 6) Samples obtained during research activities, are hoped to

be made available to all countries and scientific communities for

research. (Article 6.2)

 Any areas or regions reported to have a special scientific interest,

shall be designated as international scientific preserves. (Article 7.3)

 Shall promptly inform the United Nations and the public of any

phenomena which could endanger human life or health, as well as of

any indication of extraterrestrial life. (Article 5.3)

 State parties shall ensure that non-governmental entities under their

jurisdiction shall engage in activities on the Moon only under the

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authority and continuing supervision of the appropriate state party.

(Article 14)

 All parties shall inform the United Nations as well as the public, of

their activities concerned with the exploration and use of the Moon.
(Article 5)

 Any state party to this agreement may propose amendments to the

agreement. (Article 17)

 Any state party to this agreement may give notice of its withdrawal
by written notification to the Secretary-General of the United

Nations. It will take effect one year from the date of this notification.

(Article 20)

When compared with the Outer Space Treaty, it reiterates most

provisions, and adds two new concepts in order to address the

exploitation of natural resources in outer space: to apply the concept of

'common heritage of mankind' to outer space activities, and to have the

participating countries produce a regime that lays the appropriate

procedures for orderly mining. Multiple conferences produced no

consensus on these two items.

Unispace

In August 1982, delegates from 94 countries and several

specialized agencies met in Vienna, Austria to discuss the state of space

technology, its potential, and the political issues that derive from using

it. Because of their interest in the lessons that might be drawn from U.S.
participation in UNISPACE ’82, and concern over U.S. leadership in space,

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the Committee on Science and Technology of the U.S. House of

Representatives, and the Joint Economic Committee asked the Office of

technology Assessment (OTA) to prepare this technical memorandum

on UNISPACE ’82 and related issues, It was undertaken as part of a

major assessment of international cooperation and competition in

civilian space activities requested by these same committees.

Although UNISPACE ’82 was primarily a technical conference

centered around space technology, the fact that it was organized by the

United Nations (U. N.) and involved 94 countries meant that political

issues related to space technology constituted an implicit part of the

agenda. UNISPACE ’82 itself is unlikely to have a significant direct effect

on the long-term space goals or strategies of the United States.

Nevertheless, it offered a window through which to view the

development of international space policy, the roles that the United

States and its agencies play in this process, and the potential effect of

the process on U.S. public and private interests.

UNISPACE Conferences

Sputnik 1 marked the advent of the space age back in 1957. Since

then the United Nations has been stressing on the importance of

peaceful international coordination in outer space. The outer space is

believed to be the wild west, but many don’t know it has the potential

to support immense socio-economic development for the future.

No single country had the technology advanced enough to go

out there and reap those benefits. Thus, as the famous saying goes,

“Unity is strength”, the need for global cooperation on this was

recognised.

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Overseeing this immensely beneficial scope of development, the

UN organised a series of global conferences for the exploration and

peaceful uses of outer space and its resources. These series of

conferences were known as UNISPACE conferences. There have been

three UNISPACE conferences, all of them were held in Vienna.

The key agendas discussed in each of the conferences:

UNISPACE I

The data and information as per the information provided by the Official
UNISPACE I Report:

Timeline: held from 14th August to 27th August 1968.

Attendees: 78 member states, 9 specialized UN agencies, 4 other

International organisations.

Key takeaways: This was the first of the series of the conferences:

 Raising awareness of the vast potential of space.

 Discover possible space benefits for the entirety of humankind.

 Review the advancement of space science and technology.

 Promote international cooperation.

 Work for development, keeping in mind the benefit of the third

world countries.

 Recommended the formation of an Expert Space Applications

Unit. (This later turned out to be UNOOSA)

UNISPACE II

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The data and information as per the information provided by the Official
UNISPACE II Report:

Timeline: held from 9th August to 21st August 1982.

Attendees: 94 member states, 45 Intergovernmental and Non-

governmental organisations.

Key takeaways: This was the second of the series of conferences. This

question raised many important contemporary questions:

 Asked about the procedure of maintaining the usage of outer

space for peaceful purposes.

 Questions about preventing an arms race in outer space.

 What shall be the essential requirements of maintaining a

peaceful exploration of outer space?

 Enable means for the developing countries to benefit from the

peaceful and healthy uses of technology.

 UNISPACE II strengthened the UNOOSA programme.

 Marked the establishment of UN-affiliated regional space

science centres for the development of science and technology.

UNISPACE III

The data and information as per the information provided by the

Official UNISPACE III Report:

Timeline: held from 19th July to 30th July 1999.

Attendees: 97 member states, 9 UN specialised agencies, 15

International Intergovernmental Organisations.

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Key takeaways: this was the third of the series of conferences. This
conference laid the foundation of peaceful uses of outer space in the

21st century:

 The need to protect the environment on a global level.

 Efficient management of natural resources.

 Protecting the space environment.

 Increase the outflow of space science and benefits to the

developing nations.

 This conference ended with the Vienna Declaration on Space and

Human Development infamous as The Vienna Declaration.

 The Vienna Declaration recommended 33 strategies addressing

contemporary challenges in space activities.

Crimes in Space

Space is considered to be ‘res communis’, meaning common

ground. There are some areas which are regarded as common ground

by all the states. No particular state is the sole owner of these areas.

These areas include the high seas, outer space, Antarctica etc.

The Intergovernmental Agreement of the Space Station’s member

nations states that if any astronaut of a member state commits any

crime in space, he/she will be subject to the laws of their states and the

due course of law will proceed accordingly.

Is Space Mining Legal?

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The scientists believe that the moon and other celestial bodies
can have many sustainable resources which might pave a way for

providing resources for future generations. The scientists even claim

that if we are able to find water on the moon, we might be able to cut

down the costs of colonizing the moon by a whopping 90 per cent. It

might also have other valuable minerals like platinum and whatnot, this

can give humanity the further push required.

There are some companies looking forward to conducting mining

on the moon and other celestial bodies.

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Unit-V
International Organizations — League of Nations and United Nations
— International Court of Justice —International Criminal Court -
Specialized agencies of the UN — WHO, UNESCO, ILO, IMF and WTO.

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International organizations

International organizations have been formed with the aim of

helping to set the international agenda, strengthen political

relationships, providing a place for developmental initiatives, etc.

An international organization (also known as an international

institution or an intergovernmental organization) is a stable set of

norms and rules meant to govern the behavior of states and other

actors in the international system. Organizations may be established by

a treaty or be an instrument governed by international law and

possessing its own legal personality, such as the United Nations, the

World Health Organization and NATO.

International organizations are composed of primarily member

states, but may also include other entities, such as other international

organizations. Additionally, entities (including states) may hold observer

status.

Notable examples include the United Nations (UN), Organization

for Security and Co-operation in Europe (OSCE), Bank for International

Settlements (BIS), Council of Europe (COE), International Labour

Organization (ILO) and International Criminal Police Organization

(INTERPOL).

The first and oldest international organization—being established

employing a treaty, and creating a permanent secretariat, with a global

membership—was the International Telecommunication Union (founded

in 1865). The first general international organization—addressing a

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variety of issues—was the League of Nations. The United Nations

followed this model after World War II.

In 1935, Pitman B. Potter defined international organization as "an

association or union of nations established or recognized by them for

the purpose of realizing a common end." He distinguished between

bilateral and multilateral organizations on one end and customary or

conventional organizations on the other end.

The League of Nations, 1920

The League of Nations was an international organization,

headquartered in Geneva, Switzerland, created after the First World War

to provide a forum for resolving international disputes. Though first

proposed by President Woodrow Wilson as part of his Fourteen Points

plan for an equitable peace in Europe, the United States never became a

member.

The League of Nations was an international organization,

headquartered in Geneva, Switzerland, created after the First World War

to provide a forum for resolving international disputes.

The League of Nations was a international organization founded

after the Paris Peace Conference, 1919. The League's goals included

disarmament, preventing war through collective security, settling

disputes between countries through negotiation diplomacy and

improving global welfare. The diplomatic philosophy behind the League

represented a fundamental shift in thought from the preceding hundred

years. The League lacked an armed force of its own and so depended on

the Great Powers to enforce its resolutions, keep to economic sanctions

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which the League ordered, or provide an Army, when needed, for the
League to use. However, it was often very reluctant to do so.

After a number of notable successes and some early failures in

the 1920s, the League ultimately proved incapable of preventing

aggression by the Axis Powers in the 1930s. The onset of the Second

World War made it clear that the League had failed in its primary

purpose—to avoid any future world war. The United Nations

Organization replaced it after World War II and inherited a number of

agencies and organizations founded by the League.

Origins

The idea of the actual League of Nations appears to have

originated with British Foreign Secretary Edward Grey, and it was

enthusiastically adopted by the Democratic U.S. President Woodrow

Wilson and his advisor Colonel Edward M. House as a means of avoiding

bloodshed like that of World War I. The creation of the League was a

centrepiece of Wilson's Fourteen Points for Peace, specifically the final

point: "A general association of nations must be formed under specific

covenants for the purpose of affording mutual guarantees of political

independence and territorial integrity to great and small states alike."

The Paris Peace Conference accepted the proposal to create the

League of Nations on January 25, 1919. The Covenant of the League of

Nations was drafted by a special commission, and the League was

established by Part I of the Treaty of Versailles, which was signed on

June 28, 1919. Initially, the Charter was signed by 44 states, including 31

states which had taken part in the war on the side of the Triple Entente

or joined it during the conflict.

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Despite Wilson's efforts to establish and promote the League, for

which he was awarded the Nobel Peace Prize in 1919, the United States

neither ratified the Charter nor joined the League due to opposition

from isolationists in the U.S. Senate, especially influential Republicans

Henry Cabot Lodge of Massachusetts and William E. Borah of Idaho,

together with Wilson's refusal to compromise.

The League held its first meeting in London on 10 January 1920.

Its first action was to ratify the Treaty of Versailles, officially ending

World War I. The headquarters of the League moved to Geneva on

November 1, 1920, where the first general assembly of the League was

held on November 15, 1920 with representatives from 41 nations in

attendance.

Symbols

The League of Nations had neither an official flag nor logo.

Proposals for adopting an official symbol were made during the

League's beginning in 1920, but the member states never reached

agreement.

However, League of Nations organizations used varying logos and

flags (or none at all) in their own operations. An international contest

was held in 1929 to find a design, which again failed to produce a

symbol. One of the reasons for this failure may have been the fear by

the member states that the power of the supranational organization

might supercede them.

Finally, in 1939, a semi-official emblem emerged: two five-pointed

stars within a blue pentagon. The pentagon and the five-pointed stars

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were supposed to symbolise the five continents and the five races of
mankind. In a bow on top and at the bottom, the flag had the names in

English and French. This flag was used on the building of the New York

World's Fair in 1939 and 1940.

Structure

The League had three principal organs:

 a secretariat (headed by the General Secretary and based in Geneva),

 a Council, and

 an Assembly.

The League also had numerous Agencies and Commissions.

Authorization for any action required both a unanimous vote by the

Council and a majority vote in the Assembly.

General weaknesses

The League did not, in the long term, succeed. The outbreak of

World War II was the immediate cause of the League's demise, but there

was also a variety of other, more fundamental, flaws.

The League, like the modern United Nations, lacked an armed

force of its own and depended on the Great Powers to enforce its

resolutions, which they were very reluctant to do. Economic sanctions,

which were the most severe measure the League could implement short

of military action, were difficult to enforce and had no great impact on

the target country, because they could simply trade with those outside

the League. The League also further weakened when some of the main
powers left in the 1930s. Japan began as a permanent member of the

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Council, but withdrew in 1933 after the League voiced opposition to its
invasion of the Chinese territory of Manchuria. Italy also began as a

permanent member of the Council but withdrew in 1937. The League

had accepted Germany as a member in 1926, deeming it a "peace-

loving country", but Adolf Hitler pulled Germany out when he came to

power in 1933. Another major power, the Bolshevik Soviet Union, was

only a member from 1934, when it joined to antagonise Germany (which

had left the year before), to December 14, 1939, when it was expelled
for aggression against Finland.

The League's neutrality tended to manifest itself as indecision.

The League required a unanimous vote of its nine (later fifteen) member

Council to enact a resolution, so conclusive and effective action was

difficult, if not impossible.

Another important weakness of the League was that it tried to

represent all nations, but most members protected their own national

interests and were not committed to the League or its goals. The

reluctance of all League members to use the option of military action

showed this to the full.

Specific failures

The general weaknesses of the League are illustrated by its

specific failures.

In 1935, Emperor Haile Selassie of Ethiopia condemns the Italian

invasion of Abyssinia in his address to the League.

In 1935, Emperor Haile Selassie of Ethiopia condemns the Italian

invasion of Abyssinia in his address to the League.

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United nations

The United Nations is an intergovernmental organization whose

purpose is to maintain international peace and security, develop friendly

relations among nations, achieve international cooperation, and be a

centre for harmonizing the actions of nations.

The United Nations (UN) is an intergovernmental organization

whose purpose is to maintain international peace and security, develop

friendly relations among nations, achieve international cooperation, and

be a centre for harmonizing the actions of nations. It is the world's

largest and most familiar international organization. The UN is

headquartered on international territory in New York City, and has other

main offices in Geneva, Nairobi, Vienna, and The Hague (home to the

International Court of Justice).

The UN was established after World War II with the aim of

preventing future wars, succeeding the rather ineffective League of

Nations. On 25 April 1945, 50 governments met in San Francisco for a

conference and started drafting the UN Charter, which was adopted on

25 June 1945 and took effect on 24 October 1945, when the UN began

operations. Pursuant to the Charter, the organization's objectives

include maintaining international peace and security, protecting human

rights, delivering humanitarian aid, promoting sustainable development,

and upholding international law. At its founding, the UN had 51

member states; with the addition of South Sudan in 2011, membership

is now 193, representing almost all of the world's sovereign states.

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The organization's mission to preserve world peace was

complicated in its early decades by the Cold War between the United

States and Soviet Union and their respective allies. Its missions have

consisted primarily of unarmed military observers and lightly armed

troops with primarily monitoring, reporting and confidence-building

roles. UN membership grew significantly following widespread

decolonization beginning in the 1960s. Since then, 80 former colonies

have gained independence, including 11 trust territories that had been

monitored by the Trusteeship Council. By the 1970s, the UN's budget

for economic and social development programmes far outstripped its

spending on peacekeeping. After the end of the Cold War, the UN

shifted and expanded its field operations, undertaking a wide variety of

complex tasks.

Functions of the United Nations Organisation

The functions of the United Nations Organization are as follows:

To maintain security and international peace is at the forefront

To endeavour to develop good and friendly relations among the

different nations

To ensure respect for human rights and that they are not violated and

the universal fundamental freedom is maintained

To arbitrate and garner cooperation to solve problems of social,

economic, and cultural nature.

It’s main principles are:

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Most important is that all member nations have to settle their

disputes through a peaceful process.

The member nations are based on sovereign equality.

All member nations have to be faithful in fulfilling their obligations

towards the charter and they are to provide full cooperation and

assistance to the UN in actions taken by it in accordance with the

charter.

The UN cannot intervene in matters which are within the jurisdiction

of any nation (Internal matters of the state).

All member states are to desist from the use of threat or force against

other member states.

The UN has six principal organs:

1. the General Assembly;

2. the Security Council;

3. the Economic and Social Council (ECOSOC);

4. the Trusteeship Council;

5. the International Court of Justice; and

6. the UN Secretariat.

The UN System includes a multitude of specialized agencies,

funds and programmes such as the World Bank Group, the World

Health Organization, the World Food Programme, UNESCO, and UNICEF.

Additionally, non-governmental organizations may be granted

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consultative status with ECOSOC and other agencies to participate in

the UN's work.

The UN's chief administrative officer is the secretary-general,

currently Portuguese politician and diplomat António Guterres, who

began his first five year-term on 1 January 2017 and was re-elected on 8

June 2021. The organization is financed by assessed and voluntary

contributions from its member states.

The UN, its officers, and its agencies have won many Nobel Peace

Prizes, though other evaluations of its effectiveness have been mixed.

Some commentators believe the organization to be an important force

for peace and human development, while others have called it

ineffective, biased, or corrupt.

International Court of Justice

The International Court of Justice (ICJ, sometimes known as the

World Court, is one of the six principal organs of the United Nations

(UN). It settles disputes between states in accordance with international

law and gives advisory opinions on international legal issues. The ICJ is

the only international court that adjudicates general disputes between

countries, with its rulings and opinions serving as primary sources of

international law.

The ICJ is the successor of the Permanent Court of International

Justice (PCIJ), which was established in 1920 by the League of Nations.

After the Second World War, both the league and the PCIJ were

replaced by the United Nations and ICJ, respectively. The Statute of the

ICJ, which sets forth its purpose and structure, draws heavily from that

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of its predecessor, whose decisions remain valid. All member states of

the UN are party to the ICJ Statute and may initiate contentious cases;

however, advisory proceedings may only be submitted by certain UN

organs and agencies.

The ICJ consists of a panel of 15 judges elected by the UN General

Assembly and Security Council for nine-year terms. No more than one

judge of each nationality may be represented on court at the same time,

and judges collectively must reflect the principal civilizations and legal

systems of the world. Seated in the Peace Palace in The Hague,

Netherlands, the ICJ is the only principal UN organ not located in New

York City. Its official working languages are English and French.

International Criminal Court

The International Criminal Court (ICC) investigates and, where

warranted, tries individuals charged with the gravest crimes of concern

to the international community: genocide, war crimes, crimes against

humanity and the crime of aggression.

The International Criminal Court in The Hague prosecutes those

accused of war crimes, crimes against humanity and genocide. The ICC

seeks to investigate and prosecute those responsible for grave offenses

such as genocide and war crimes.

Dozens of countries are not ICC members, including China, India,

Russia, and the United States. The court has angered nonmembers by

launching probes into possible war crimes in Afghanistan, the

Palestinian territories, and Ukraine.

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In 1998, 60 countries signed the Rome Statute after it was opened

for signature by the United Nations. The Statute laid the foundation for

the establishment of the International Criminal Court in 2002. Its

purpose is to investigate and prosecute war criminals.

The International Criminal Court (ICC), established in 2002, seeks

to hold to account those guilty of some of the world’s worst crimes.

Champions of the court say it deters would-be war criminals, bolsters

the rule of law, and offers justice to victims of atrocities. But, since its

inception, the court has faced considerable setbacks. It has been unable

to gain the support of major powers, including the United States, China,

and Russia, who say it undermines national sovereignty. Two countries

have withdrawn from the court, and many African governments

complain that the court has singled out Africa. U.S. opposition to the

ICC hardened under President Donald Trump, and although the Joe

Biden administration has taken a more conciliatory approach, tensions

remain.

Crimes within the jurisdiction of the International Criminal Court

(1) War crimes: War crimes include torture, mutilation, corporal

punishment, hostage taking and acts of terrorism. This category also

covers violations of human dignity such as rape and forced prostitution,

looting and execution without trial. War crimes, unlike crimes against

humanity, are always committed in times of war.

(2) Genocide: This includes all acts committed with the intent to destroy

a national, ethnic or religious group.

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(3) Crimes against humanity: Crimes against humanity are acts

committed as part of a widespread or systematic attack directed against

any civilian population, such as murder, deportation, torture and rape.

The ICC prosecutes the perpetrators even if the crimes were not

committed in times of war.

Consequences of the crime of aggression

The states that are party to the Rome Statute have not yet

reached consensus on the definition of and punishment for aggression.

Until they do, the ICC is unable to prosecute individuals for acts of

aggression.

The powers of the ICC

The ICC is only competent to hear a case if:

the country where the offence was committed is a party to the Rome

Statute; or

the perpetrator's country of origin is a party to the Rome Statute.

The ICC may only exercise its jurisdiction if the national court is unable

or unwilling to do so. The ICC only has jurisdiction over offences

committed after the Statute’s entry into force on 1 July 2002.

Referring a case to the International Criminal Court

Various parties have the right to refer a case to the ICC:

 any State Party to the Rome Statute, irrespective of any involvement

in the alleged offence;

 the Prosecutor of the ICC;

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 the United Nations Security Council

The United Nations Security Council may ask the ICC to defer

investigation of a case for a limited period if it considers that the

proceedings would constitute an obstruction to its powers.

Situations currently under investigation by the ICC

The ICC is currently investigating a number of cases relating to the

situations in:

 Sudan;

 Uganda;

 the Democratic Republic of Congo (DRC);

 the Central African Republic (CAR);

 Kenya.

Specialized agencies of the UN

When the UNO was created during the 1940s, the initial member

states recognized that there were several problems poorly fitted to

deliberations within the General Assembly, ECOSOC, and several of the

problems were extremely technical. This was because the ability of

communication systems needed the cooperation of stakeholders not

represented in those 3 bodies such as the international labour law.

Several of the specialised agencies predated the creation of the

international organization system. The second oldest is the Universal

communication Union, created in 1874 to coordinate communication

policies and guarantee cross-border delivery of mail. Another is the

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International Labour Organization created as a part of the League of

Nations in 1919.

So, the answer to this problem was the creation of

specialised/expert and technical agencies. The specialised agencies are

autonomous organizations tasked with raising these problems, setting

international standards, and implementing them around the world. A

key role of these agencies is international standard-setting.

Today, there are more than a dozen specialised and technical

agencies. The keyword of these specialised agencies is “autonomous.”

These agencies don’t report back to the ECOSOC. Their work is directed

by their board and also the budget that the board approves. One of

ECOSOC’s mandates is coordinating international organization activities

and policies with the specialised agencies. The heads of the specialised

agencies conjointly meet with the Secretary-General frequently. Several

specialised agencies share resources and have interaction in joint work.

The specialized agencies along with the United Nations are often

collectively called the United Nations System.

At present, there are 17 specialized agencies which are as follows:

1) International Labour Organization (ILO)

2) International Maritime Organization (IMO)

3) International Monetary Fund (IMF)

4) Food and Agriculture Organization (FAO)

5) International Civil Aviation Organization (ICAO)

6) International Fund for Agricultural Development (IFAD)

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7) United Nations Industrial Development Organization (UNIDO)

8) Universal Postal Union (UPU)

9) International Telecommunications Union (ITU)

10) United Nations Educational, Scientific and Cultural Organization

(UNESCO)

11) World Health Organization (WHO)

12) World Tourism Organization (UNWTO)

13) World Meteorological Organization (WMO)

14) World Intellectual Property Organization (WIPO)

15) World Bank Group (WBG)

16) Former specialized agencies

17) Related organizations

The specialised agencies in brief

WHO (World Health Organization)

The United Nations’ specialised organisation for health, the World

Health Organization (WHO), was established in 1948. The organisation’s

headquarters is in Geneva, Switzerland, and it is headed by its Director-

General. There are 194 Member States, 150 Country Offices, and six

Regional Offices in the Organisation. It is an intergovernmental

organisation that collaborates with its member nations, generally

through their health ministries.

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WHO is a specialised agency which works for the public health

globally since the time it came into existence in 1948 and it is a member

of the UN Development Group. It succeeded the health Organization

which was a part of the League of Nations. WHO has 194 members

currently but post Covid-19 there have been some differences between

the WHO and the US due to which the US is expected to withdraw its

membership.

Objectives

WHO’s mission revolves around ensuring that all people have access to

the best possible health facilities. The organisation has a wide range of

functions that support its principal goal. These include:

 The main objective is the achievement of the best possible health

standard for all the people of the world.

 To achieve the best health standard for all it collaborates with the

UN specialised agencies, governmental health administration of the

different member countries, and professional and other groups

related to the health.

 In this regard, it helps countries to improve their health system by

helping them build better health infrastructure, and set up local

health centres, and assists in the development of national training

institutions for medical and nursing personnel of the member states.

 It works to eradicate diseases by promoting research to find new

and better cures for the diseases.

 It promotes maternal and child health and provides important drugs

needed for their medical care. It runs an immunization programme

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for children against six major diseases such as Measles, Diphtheria,

Tetanus, Tuberculosis, Polio and Whooping Cough.

 It works to improve nutrition, sanitation, working conditions and

other aspects of environmental health such as providing safe

drinking water and adequate waste disposal.

 It also provides technical advice to the governments of member

countries in the preparation of their long-term national health plans

and sends out expert international teams to even conduct field

surveys.

 It sponsors various education and support programs to the health

care professionals world-wide and provides fellowship awards to

doctors, public-health administrators, nurses, sanitary inspectors,

researchers, and laboratory technicians.

 WHO also develops and promotes international standards regarding

food, biological and pharmaceutical substances.

The WHO leads the global health issues by setting the research

agenda, establishing norms and standards, articulating evidence-based

policy alternatives, helping nations with technical assistance, and

monitoring and analysing health trends. It began operations on April 7,

1948, now observed as World Health Day every year.

Structure of WHO

1. World Health Organization Assembly:

Delegates representing members make up the Health Assembly. Each

member is represented by a maximum of three delegates, one of whom

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is appointed as a head delegate by the member. These delegates are

chosen from among those with the highest technical expertise in health,

ideally representing the Member’s national health administration. The

Health Assembly holds regular annual sessions and special sessions on

occasion.

Functions of WHO

 The Health Assembly decides the organisation’s policies.

 It oversees the organisation’s financial policy and examines and

approves the budget.

 In line with any agreement between the organisation and the

United Nations, it reports to the Economic and Social Council.

2. The Secretariat

The Secretariat comprises the Director-General and other

technical and administrative employees. The Health Assembly appoints

the Director-General on the board’s nomination and terms determined

by the Assembly.

3. Associate Membership and Membership

Members of the United Nations can join the organisation as members.

Associate Members are territories or groupings of territories that are not

accountable for the conduct of their foreign affairs.

The World Health Organisation’s (WHO) Contribution

WHO’s national offices are the organisation’s main points of

contact with governments. They offer health-related technical assistance,

communicate important global standards and recommendations, and

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convey government requests and needs to WHO’s other levels. They

also keep the host government informed about illness outbreaks

outside the nation and follow up with them.

They give public health advice and guidance to other UN agency

offices in the country. WHO also collaborates with other UN agencies,

funders, non-governmental organisations (NGOs), and the corporate

sector, in addition to governments.

All nations, including the most developed, can take advantage of

WHO’s worldwide health activities. For example, all countries gained

from their contribution to WHO initiatives that resulted in the global

elimination of some diseases and control of many others.

India and the World Health Organization

On January 12, 1948, India became a World Health Organisation

(WHO) member. The regional office for South-East Asia is located in

New Delhi.

 Smallpox: The total number of smallpox cases reported in India in

1967 accounted for roughly 65 per cent of all cases worldwide. Of

these, 26,225 patients perished, painting a bleak picture of the uphill

battle. The World Health Organisation (WHO) initiated the

Intensified Smallpox Eradication Programme in 1967. Smallpox was

eliminated in 1977, thanks to a joint effort by the Indian government

and the World Health Organisation (WHO).

 Polio: With financial and technical assistance from the World Bank,

India initiated the fight against the illness in response to the WHO’s

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1988 Global Polio Eradication Initiative. The Indian government, in

collaboration with UNICEF, the World Health Organisation (WHO),

the Bill and Melinda Gates Foundation, Rotary International, and the

Centers for Disease Control and Prevention, helped to raise almost

universal awareness of the need to vaccinate all children under the

age of five against polio in 2012. India was removed from the list of

endemic nations in 2014 due to these initiatives.

Conclusion

The World Health Organisation (WHO) is a United Nations

specialised body that investigates public health issues. It’s

headquartered in Geneva, Switzerland, and was founded on April 7,

1948. The WHO is led by its Director-General. The WHO now has 194

member nations. The only way to become a full member of the WHO is

to approve the treaty known as the World Health Organisation’s

Constitution. The goal of WHO, according to its constitution, is for “all

people to achieve the best attainable level of health.”

UNESCO

(United Nations Educational, Scientific and Cultural Organization)

UNESCO was constituted in 1945 before which existed the League

of Nation’s International Committee on Intellectual Cooperation.

UNESCO came into force only in 1946. Its headquarters are in Paris, and

currently, it has 193 members. UNESCO itself is also a member of UNDP.

The broad objectives of UNESCO are promoting sustainable

development, human rights, world peace and security through

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international cooperation in education, the sciences, and culture. It

carries out these objectives through five major program areas:

 Education,

 Natural Sciences,

 Social/Human Sciences,

 Culture, and

 Communication/Information.

Via these objectives, it sponsors projects that develop literacy,

provides technical education and training, spreads knowledge of

sciences, protects press freedom and independent media, and preserves

regional and cultural history thereby promoting cultural diversity.

UNESCO is also an environmental conservation organisation.

There are many Culture Conventions of UNESCO which aim at the

protection and preservation of the culture and natural heritage of the

world.

Functions

UNESCO is a specialised agency of the United Nations that works

for world peace through global cooperation in the fields of education,

culture and the sciences.

 Through its programmes, it strives to achieve the Sustainable

Development Goals (SDGs).

 UNESCO develops educational tools so as to help humanity live in a

world free of intolerance and hate.

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 It works in preserving the cultural heritage of the world’s many

cultures and also promotes the equal dignity of all cultures.

 It also engages in advancing scientific programmes and policies as

platforms for cooperation and development.

 UNESCO is also known for advocating the freedom of expression

and stands up against the killing of journalists.

Although officially founded as UNESCO in 1945, the organisation

had its origins in the League of Nations itself. The Constitution of

UNESCO came into force in 1946. Currently, UNESCO has 193 members.

The US, Israel and Liechtenstein are members of the UN, but not

members UNESCO. The US and Israel pulled out in 2019 citing bias in

the organisation in the Palestine issue.

The US had pulled out of UNESCO once earlier in 1984 and then

rejoined in 2003. Three countries, namely, Palestine, Niue and the Cook

Islands are members of UNESCO, but not of the UN.

Conventions:

UNESCO sponsors many programmes such as in the fields of

teacher training, science, promotion of media and press freedom,

regional and cultural history, cultural diversity, natural and cultural

heritage, translating world literature, human rights, etc.

Culture Conventions of UNESCO: These conventions have helped in

the protection and preservation of the natural and cultural heritage of

the world.

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 Convention on the Means of Prohibiting and Preventing the Illicit

Traffic of Cultural Property (1970)

 Convention for the Protection of the World Cultural and Natural

Heritage (1972)

 Convention on the Protection of the Underwater Cultural Heritage

(2001)

 Universal Declaration on Cultural Diversity (2001)

 Convention for the Safeguarding of the Intangible Cultural Heritage

(2003)

 Convention on the Protection and Promotion of the Diversity of

Cultural Expressions (2005)

UNESCO is the only UN Agency to have a global network of

national cooperating bodies known as National Commissions for

UNESCO.

UNESCO World Heritage Sites

UNESCO has also declared some sites as World Heritage Sites and

there are about 1000 such heritage sites across 167 nations which are

declared because these sites have distinctive cultural or physical

significance and they are considered to be of great value to humanity.

UNESCO's mission is to contribute to the building of a culture of

peace, the eradication of poverty, sustainable development and

intercultural dialogue through education, the sciences, culture,

communication and information.

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UNESCO World Heritage Site is a site recognized by UNESCO as

having a distinctive cultural or physical significance, and which is

considered of outstanding value to humanity. There are more than 1000

heritage sites across 167 nations.

UNESCO and India

 India is a founding member of UNESCO.

 The National Commission in India that works with UNESCO (as

mandated by UNESCO’s Constitution) is called the Indian National

Commission for Cooperation with UNESCO (INCCU).

 The INCCU comes under the Department of Secondary and Higher

Education, Ministry of Human Resource Development, GOI.

 UNESCO has its presence in India since 1948 and currently has two

offices.

 India has been continuously re-elected to the Executive Board of

UNESCO since 1946.

 Members are elected for four-year terms.

 India makes huge contributions to the organisation in the form of

funds every year.

 A UNESCO Category I Institute dedicated to education for peace and

sustainable development was established in 2012 and is called the

Mahatma Gandhi Institute of Education for Peace and Sustainable

Development (MGIEP).

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Located in New Delhi, It is the first and only category 1 Research

Institute in the Asia Pacific and focuses on achieving the SDG 4.7

towards education to foster peaceful and sustainable societies.

UNESCO’s most significant work in India relates to the cultural

heritage of the country. UNESCO works closely with the Ministry of

Culture in this regard.

ILO (International Labour Organisation)

The International Labour Organization (ILO) was constituted in

1919, forming a part of the Treaty of Versailles. In 1946, ILO became the

first specialised agency of the UN. The ILO as a UN agency has a

directive to advance social and economic justice through setting

International Labour Standards.

The International Labour Organization comprises 187 member

states, 186 of them are the member states of the UNO and the Cook

Islands. Its headquarters are in Geneva, Switzerland with around forty

field offices in different parts of the world, and it employs about 2700

staff members from more than 150 nations, of whom 900 are employed

in technical cooperation programmes and projects.

In conditions of freedom, equity, security and dignity, ILO’s

international labour standards aim to ensure accessible, productive, and

sustainable work worldwide. These are outlined in its conventions and

treaties, eight of which are fundamental conventions covered in the ILO

Declaration on Fundamental Principles and Rights at Work, 1998. These

fundamental subjects include freedom of association and the effective

recognition of the right to collective bargaining, effective abolition of

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child labour, the elimination of all forms of forced or compulsory labour,

and the elimination of discrimination at the workplace in employment

and occupation. For governance, there are four governance conventions,

their significance emphasized by the ILO Declaration on Social Justice

for a Fair Globalization in its follow up.

India & ILO

India is a founder member of the International Labour

Organization, which came into existence in 1919. At present the ILO has

186 Members. A unique feature of the ILO is its tripartite character. The

membership of the ILO ensures the growth of tripartite system in the

Member countries. At every level in the Organization, Governments are

associated with the two other social partners, namely the workers and

employers. All the three groups are represented on almost all the

deliberative organs of the ILO and share responsibility in conducting its

work. The three organs of the ILO are:

 International Labour Conferences: - General Assembly of the ILO –

Meets every year in the month of June.

 Governing Body: - Executive Council of the ILO. Meets three times in

a year in the months of March, June and November.

 International Labour Office: - A permanent secretariat.

The work of the Conference and the Governing Body is

supplemented by Regional Conferences, Regional Advisory Committees,

Industrial and Analogous Committees, Committee of Experts, Panels of

Consultants, Special Conference and meetings, etc.

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1. International Labour Conference

Except for the interruption caused by the Second World War, the

International Labour Conference (ILC) has continued, since its first

session in 1919 to meet at least once a year. The Conference, assisted by

the Governing Body, adopts biennial programme and budget, adopts

International Labour Standards in the form of Conventions and

Recommendations and provides a forum for discussing social, economic

and labour related issues. India has regularly and actively participated in

the Conference through its tripartite delegations.

The Conference has so far had 4 Indian Presidents viz., Sir. Atul

Chatterjee (1927), Shri Jagjivan Ram, Minister for Labour (1950),

Dr.Nagendra Singh, President, International Court of Justice (1970) and

Shri RavindraVerma, Minister of Labour and Parliamentary Affairs (1979).

There have also been 8 Indian Vice Presidents of the International

Labour Conference, 2 from the Government group, 3 from the

Employers and 3 from the Workers’ Group. Indians have chaired the

important Committees of the Conferences like Committee on

Application of Standards, Selection Committee and Resolutions

Committee.

2. Governing Body

The Governing Body of the ILO is the executive wing of the

Organization. It is also tripartite in character. Since 1922 India has been

holding a non-elective seat on the Governing Body as one of the 10

countries of chief industrial importance. Indian employers and workers’

representatives have been elected as Members of the Governing Body

from time to time.

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Four Indians have so far been elected Chairmen of the Governing

Body. They are Sir Atul Chatterjee (1932-33), Shri Shamal Dharee Lall,

Secretary, Ministry of Labour (1948-49), Shri S.T. Merani, Joint Secretary,

Ministry of Labour (1961-62) and Shri B.G. Deshmukh, Secretary,

Ministry of Labour (1984-85).

Earlier, the Governing Body of ILO functioned through its various

Committees. India was a member of all six committees of the Governing

Body viz. (i) Programme, Planning & Administrative; (ii) Freedom of

Association; (iii) Legal Issues and International Labour Standards; (iv)

Employment & Social Policy; (v) Technical Cooperation and (vi) Sectoral

and Technical Meetings and Related issues.

Now the Governing Body of ILO functions through its various

Sections and India takes part in all the proceedings of the Sections

during the sessions of the Governing Body viz. Institutional Section (INS);

Policy Development Section(POL); Legal Issues and International Labour

Standards Section (LILS); Programme, Financial and Administrative

Section(PFA);High-level Section(HL); and Working Party on the

Functioning of the Governing Body and the International Labour

Conference (WP/GBC)

3. The International Labour Office:

The International Labour Office, Geneva provides the Secretariat

for all Conferences and other meetings and is responsible for the day-

to-day implementation of decisions taken by the Conference, Governing

Body etc. Indians have held positions of importance in the International

Labour Office.

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4. International Labour Standards - ILO Conventions

The principal means of action in the ILO is the setting up the

International Labour Standards in the form of Conventions and

Recommendations. Conventions are international treaties and are

instruments, which create legally binding obligations on the countries

that ratify them. Recommendations are non-binding and set out

guidelines orienting national policies and actions.

The approach of India with regard to International Labour

Standards has always been positive. The ILO instruments have provided

guidelines and a useful framework for the evolution of legislative and

administrative measures for the protection and advancement of the

interest of labour. To that extent the influence of ILO Conventions as a

standard of reference for labour legislation and practices in India, rather

than as a legally binding norm, has been significant. Ratification of a

Convention imposes legally binding obligations on the country

concerned and, therefore, India has been careful in ratifying

Conventions. It has always been the practice in India that we ratify a

Convention when we are fully satisfied that our laws and practices are in

conformity with the relevant ILO Convention. It is now considered that a

better course of action is to proceed with progressive implementation

of the standards, leave the formal ratification for consideration at a later

stage when it becomes practicable. We have so far ratified 41

Conventions of the ILO, which is much better than the position existing

in many other countries. Even where for special reasons, India may not

be in a position to ratify a Convention, India has generally voted in

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favour of the Conventions reserving its position as far as its future

ratification is concerned.

Core Conventions of the ILO:

The eight Core Conventions of the ILO (also called fundamental/human

rights conventions) are:

1. Forced Labour Convention (No. 29)

2. Abolition of Forced Labour Convention (No.105)

3. Equal Remuneration Convention (No.100)

4. Discrimination (Employment Occupation) Convention (No.111)

5. Minimum Age Convention (No.138)

6. Worst forms of Child Labour Convention (No.182)

(The above Six have been ratified by India)

7. Freedom of Association and Protection of Right to Organised

Convention (No.87)

8. Right to Organise and Collective Bargaining Convention (No.98)

(These two have not been ratified by India)

Consequent to the World Summit for Social Development in 1995,

the above-mentioned Conventions (Sl.No. 1,5,7 and 8) were categorised

as the Fundamental Human Rights Conventions or Core Conventions by

the ILO. Later on, Convention No.182 (Sl.No.6) was added to the list.

As per the Declaration on Fundamental Principles and Rights at

Work and its Follow-up, each Member State of the ILO is expected to

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give effect to the principles contained in the Core Conventions of the

ILO, irrespective of whether or not the Core Conventions have been

ratified by them.

Under the reporting procedure of the ILO, detailed reports are

due from the member States that have ratified the priority Conventions

and the Core Conventions every two years. Under the Follow-up to the

ILO Declaration on Fundamental Principles and Rights at Work, a report

is to be made by each Member State every year on those Core

Conventions that it has not yet ratified.

IMF (International Monetary Fund)

In a conference held in July 1994 at the Bretton Woods, 44

delegates from non-communist countries discussed an agreement

about the international monetary system, its structure, and operation.

The groundwork and foundation of the international monetary system

were the Articles of Agreement of the International Monetary fund (IMF).

Although the IMF came into existence on 27 December, 1945, it

launched financial operations only on 1 March, 1947. At the time, 29

countries signed its Articles of Agreement (it’s charter) while today

(August 2020), the IMF has a count of 189 member countries.

Incidentally, India is one of the founder members of the IMF.

Purpose

The purposes for which the IMF came into being are listed in

Article 1 of the Articles of Agreement (AGA). These are:

 To stimulate international coope-ration;

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 To accelerate the expansion and balanced growth of

international trade,

 To foster exchange stability,

 To support in the establishment of a multi-lateral system of

payments,

 To ensure that its general resources are available to its members

experiencing difficulty in the balance of payments and assist with

adequate safeguards, and

 To reduce the time taken and lessen the degree of

disequilibrium in the international balance of payments of its

members.

Formation of IMF

The breakdown of international monetary cooperation during the

Great Depression led to the development of the IMF, which aimed at

improving economic growth and reducing poverty around the world.

The International Monetary Fund (IMF) was initially formed at the

Bretton Woods Conference in 1944. 45 government representatives

were present at the Conference to discuss a framework for postwar

international economic cooperation.

The IMF became operational on 27th December 1945 with 29

member countries that agreed to bound to this treaty. It began its

financial operations on 1st March 1947. Currently, the IMF consists of

189 member countries.

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The IMF is regarded as a key organisation in the international

economic system which focuses on rebuilding the international capital

along with maximizing the national economic sovereignty and human

welfare.

IMF Functions

IMF mainly focuses on supervising the international monetary

system along with providing credits to the member countries. IMF’s

main function is the regulation of the international monetary system

which include:

 Member countries are granted credit amid a temporary balance

of payments deficits,

 Keeping a watchful eye over the monetary and exchange rate

policy of member countries,

 Issuing policy recommendations.

All these functions of the IMF can be combined into the

regulatory, financial, and consultative type of functions.

 Regulatory functions: IMF functions as a regulatory body and as

per the rules of the Articles of Agreement, it also focuses on

administering a code of conduct for exchange rate policies and

restrictions on payments for current account transactions.

 Financial functions: IMF provides financial support and resources to

the member countries to meet short term and medium term Balance

of Payments (BOP) disequilibrium.

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 Consultative functions: IMF is a centre for international

cooperation for the member countries. It also acts as a source of

counsel and technical assistance.

Organizational Structure of International Monetary Fund (IMF)

The United Nations is the parent organization that handles the proper

functioning and administration of the IMF. The IMF is headed by a

Managing Director who is elected by the Executive Board for a 5-year

term of office. The International Monetary Fund (IMF) consists of the

Board of Governors, Ministerial Committees, and the Executive Board.

Objectives of the IMF

IMF was developed as an initiative to promote international

monetary cooperation, enable international trade, achieve financial

stability, stimulate high employment, diminish poverty in the world, and

sustain economic growth. Initially, there were 29 countries with a goal of

redoing the global payment system. Today, the organization has 189

members.

The main objectives of the International Monetary Fund (IMF) are

mentioned below:

 To improve and promote global monetary cooperation of the world.

 To secure financial stability by eliminating or minimizing the

exchange rate stability.

 To facilitate a balanced international trade.

 To promote high employment through economic assistance and

sustainable economic growth.

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 To reduce poverty around the world.

India & IMF

India is a founder member of the IMF. India’s Union Finance

Minister is the Ex Officio Governor on the IMF’s Board of Governors.

Each member country also has an alternate governor. The alternate

governor for India is the Governor of the RBI. There is also an Executive

Director for India who represents the country at the IMF.

India’s quota in the IMF is SDR 13,114.4 million that gives India a
shareholding of 2.76%. This makes India the eight largest quota holding

country at the organization. In 2000, India completed the repayment of

all the loans it had taken from the IMF. Now, India is a contributor to the

IMF. The emerging economies have gained more influence in the

governance architecture of the International Monetary Fund (IMF).

The reforms were agreed upon by the then 188 members of the

IMF in 2010, in the aftermath of the global financial meltdown. More

than six percent of the quota shares will shift to emerging and

developing countries from the U.S. and European countries.

WTO (World Trade Organization)

There was a proposal to have a specialised agency dealing with

trade issues in the UN system but the proposal failed but in its place,

was established the WTO which has its headquarters in Geneva,

Switzerland. Its key goals are:

 Resolution arising from trade disputes,

 Setting a standard and enforcing rules for international trade,

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 To facilitate negotiations for further liberalization of trade,

 Working towards a clean, transparent decision-making process

as regards international trade,

 To cooperate and work with other international bodies involved

in global economic management, and

 Most importantly assist and aid the developing nations get an

advantage from the global trading system.

This basically ensures protection of the interests of small and poor

countries against discriminatory trade practices of bigger powerful

countries.

Functions

Promotion of growth by facilitating trade is the most important

function of WTO. Other important functions include:

 It oversees the implementation, administration and operation of the

covered agreements (with the exception is that it does not enforce

any agreements when China came into the WTO in Dec 2001)

 It provides a forum for negotiations and for settling disputes.

Additionally, it is WTO's duty to review and propagate the

national trade policies and to ensure the coherence and transparency of

trade policies through surveillance in global economic policy-making.

Another priority of the WTO is the assistance of developing, least-

developed and low-income countries in transition to adjust to WTO

rules and disciplines through technical cooperation and training.

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1. The WTO shall facilitate the implementation, administration, and

operation and further the objectives of this Agreement and the

Multilateral Trade Agreements, and shall also provide the framework

for the implementation, administration, and operation of the

multilateral Trade Agreements.

2. The WTO shall provide the forum for negotiations among its

members concerning their multilateral trade relations in matters

dealt with under the Agreement in the Annexes to this Agreement.

3. The WTO shall administer the Understanding on Rules and

Procedures Governing the Settlement of Disputes.

4. The WTO shall administer a Trade Policy Review Mechanism.

5. to achieve greater coherence in global economic policymaking, the

WTO shall cooperate, as appropriate, with the International

Monetary Fund (IMF) and with the International Bank for

Reconstruction and Development (IBRD) and its affiliated agencies.

The above five listings are the additional functions of the World

Trade Organization. As globalization proceeds in today's society, the

necessity of an International Organization to manage the trading

systems has been of vital importance. As the trade volume increases,

issues such as protectionism, trade barriers, subsidies, violation of

intellectual property arise due to the differences in the trading rules of

every nation. The World Trade Organization serves as the mediator

between the nations when such problems arise. WTO could be referred

to as the product of globalization and also as one of the most important

organizations in today's globalized society.

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The WTO is also a center of economic research and analysis:

regular assessments of the global trade picture in its annual publications

and research reports on specific topics are produced by the

organization. Finally, the WTO cooperates closely with the two other

components of the Bretton Woods system, the IMF and the World Bank.

Principles of the trading system

The WTO establishes a framework for trade policies; it does not define

or specify outcomes. That is, it is concerned with setting the rules of

"trade policy." Five principles are of particular importance in

understanding both the pre-1994 GATT and the WTO:

1. Non-discrimination: It has two major components: the most

favored nation (MFN) rule and the national treatment policy. Both

are embedded in the main WTO rules on goods, services, and

intellectual property, but their precise scope and nature differ across

these areas. The MFN rule requires that a WTO member must apply

the same conditions on all trade with other WTO members, i.e., a

WTO member has to grant the most favorable conditions under

which it allows trade in a certain product type to all other WTO

members. National treatment means that imported goods should be

treated no less favorably than domestically produced goods (at least

after the foreign goods have entered the market) and was

introduced to tackle non-tariff barriers to trade.

2. Reciprocity: It reflects both a desire to limit the scope of free-riding

that may arise because of the MFN rule and a desire to obtain better

access to foreign markets. A related point is that for a nation to

negotiate, it is necessary that the gain from doing so be greater than

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the gain available from unilateral liberalization; reciprocal

concessions intend to ensure that such gains will materialize.

3. Binding and enforceable commitments: The tariff commitments

made by WTO members in multilateral trade negotiation and on

accession are enumerated in a legal instrument known as a schedule

(list) of concessions. These schedules establish "ceiling bindings": a

country can change its bindings, but only after negotiating with its

trading partners, which could mean compensating them for loss of

trade. If satisfaction is not obtained, the complaining country may

invoke the WTO dispute settlement procedures.

4. Transparency: The WTO members are required to publish their

trade regulations, to maintain institutions allowing for the review of

administrative decisions affecting trade, to respond to requests for

information by other members, and to notify changes in trade

policies to the WTO. These internal transparency requirements are

supplemented and facilitated by periodic country-specific reports

(trade policy reviews) through the Trade Policy Review Mechanism

(TPRM).[61] The WTO system tries also to improve predictability and

stability, discouraging the use of quotas and other measures used to

set limits on quantities of imports.

5. Safety values: In specific circumstances, governments are able to

restrict trade. The WTO's agreements permit members to take

measures to protect not only the environment but also public health,
animal health and plant health.

There are three types of provision in this direction:

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 articles allowing for the use of trade measures to attain non-

economic objectives;

 articles aimed at ensuring "fair competition"; members must not use

environmental protection measures as a means of disguising

protectionist policies.

 provisions permitting intervention in trade for economic reasons.

Exceptions to the MFN principle also allow for preferential treatment of

developing countries, regional free trade areas and customs unions.

Conclusion

The World Trade Organization (WTO) is the body that keeps

global trade running smoothly. It oversees the rules and mediates

disputes among its member nations. Today, the world is seeing

protectionism, trade wars (such as between the United States and China),

and Brexit, all of which are putting pressure on the global economy. The

WTO's future role is critical in preserving the global liberalized economic

system that has evolved after the end of World War II. At a time when

countries are threatening to leave the WTO, causing it to become

dysfunctional, India and other growing economies such as Brazil, South

Africa, and others can provide a strong foundation for a successful WTO

while safeguarding the interests of developing countries.

Other Specialised Agencies

International Maritime Organization (IMO)

A specialized agency of the United Nations, the International

Maritime Organization (IMO) is responsible for the processes to develop

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the safety and security of international shipping. It is also responsible to

prevent marine pollution from ships. It superintends every facet of

worldwide shipping regulations, including legal issues and shipping

efficiency. Ships and shipping lines tend to pollute the water and one of

the key duties of IMO is to devise strategies and measures to keep the

waterways clean by preventing marine pollution from ships. Legal issues

relating to international shipping, such as liability and compensation

matters, and the facilitation of international maritime traffic is also

looked after by the IMO.

Some of the important treaties of IMO are:

 The International Convention for the Prevention of Pollution from

Ships (MARPOL)

 The International Convention for the Safety of Life at Sea (SOLAS),

 The International Convention on Standards of Training, Certification,

and Watch-keeping for Seafarers (STCW).

 The most crucial treaty about safety at sea is SOLAS. After the

sinking of the Titanic, the first draft of SOLAS was adopted in 1914,

before the creation of the IMO.

Food and Agriculture Organization (FAO)

The FAO is one of the specialized agencies of the United Nations.

It was constituted in 1945, and the Food and Agriculture Organisation

(FAO) has its headquarters in Rome, Italy. The goal for which FAO was

constituted was to provide food security for everyone and also ensure

that high-quality food in sufficient quantities is available to people to

maintain a healthy lifestyle. Each year, several major reports are

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published by FAO about food, agriculture, forestry, fisheries, and natural

resources of the world.

Its main functions can be listed as follows:

 Coordinate the activities of governments and development agencies

which are targeted to develop and improve agriculture, fisheries,

forestry and other land and water resources.

 The FAO, to improve agricultural output and development,

conducted research and provided technical assistance to various

projects.

 It conducts educational and training programs and also collects

agricultural data and analyses it to improve yield and production.

 The FAO is also involved with publishing several

publications/reports, such as:

 the State of the World,

 the State of the World’s Forests,

 the Global Report on Food Crises,

 the State of Food and Agriculture, etc.

 Its other functions include executing current and prospective

activities dealing with matters related to Food and Agriculture

around the world, Programme of Work and Budget, administrative

matters and financial management of the Organisation and

constitutional matters.

The International Civil Aviation Organization (ICAO)

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To manage the administration and governance of the Convention

on International Civil Aviation (Chicago Convention), a specialised UN

agency was established in 1944, known as the International Civil

Aviation Organization (ICAO). ICAO has 193 member states and it works

with them and the industry groups to reach an agreement on

international civil aviation Standards and Recommended Practices

(SARPs) and policies in the sustenance of an economically maintainable,

efficient, safe and secure, and environmentally responsible civil aviation

sector.

The member states of ICAO use SARPs and policies to ensure that

in their own country the civil aviation operations and regulations are of

the same standards as the global norms.

ICAO’s main objectives include:

 Monitoring as well as generating reports on the many air transport

sector performance metrics,

 For safety and air navigation, producing global plans to coordinate

multilateral strategic progress, and

 In the areas of safety and security, auditing States’ civil aviation

oversight capabilities.

The ICAO has several component bodies. They are:

 An Assembly that meets every 3 years and has delegates from all

member countries,

 A Council of representatives elected by and responsible to the

Assembly from 33 member states,

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 For addressing technical matters, an Air Navigation Commission

appointed by the Council.

 It is also responsible for various standing committees such as a

Committee on joint support of Air Navigation Services and a Finance

Committee. A Secretary-General heads the Secretariat of ICAO and

the Secretary-General is selected by the Council for a three-year

term. The five main sections of the Secretariat are:

 the Air Navigation Bureau,

 the Air Transport Bureau,

 the Technical Cooperation Bureau,

 the Legal Bureau, and

 the Bureau of Administration and Services

These provide administrative and technical support to the various

national representatives of the member states of ICAO.

International Fund for Agricultural Development (IFAD)

It is a specialized United Nations agency which is an international

financial institution. It was constituted in 1977, after the 1974 World

Food Conference and since then it has been involved in offering grants

and loans with low interest for associated projects. Its headquarters is in

Rome(Italy) and it has 177 member countries.

Its key function is to improve agricultural development and

livelihoods of people in developing countries. It does this by helping to

increase the productive capacity of the poor and rural people, enabling

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them to increase their food security, improve nutrition and raise their
incomes.

It supports many vulnerable groups such as foresters, fishers and

small-scale entrepreneurs in rural areas by sharing the weather

information, assisting in disaster preparedness, providing lessons in

social learning and technology transfer which in turn empowers the

farmers to feed growing populations and enhance the climate

robustness of rural farming systems. IFAD mobilizes billions in loans and

grants to support programs and projects in rural areas in partnership

with recipient governments.

United Nations Industrial Development Organization (UNIDO)

UNIDO is a UNO development agency established by the General

Assembly and constituted in 1967 but it became a specialised agency of

the UNO only in 1987. Its headquarters is based in Vienna. UNIDO also

has liaison offices in other parts of the world such as New York City and

Geneva and many smaller field offices all across the world. India is also

part of UNIDO.

Many developing countries and economies which are in transition

sometimes get marginalized and UNIDO helps prevent that. It assists

them by mobilization of information and technology, knowledge, and

skills to push forward a competitive economy, beneficial employment

and a sound environment. It also mobilizes cooperation not only at the

global level but also at regional, national and sectoral levels. UNIDO is

different from the other specialised agencies of the UNO as it has a

constitution. It has its own policy-making organs and even its own

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regular budget. The voluntary contributions made to UNIDO are

disposed of to finance developmental activities.

Another unique thing about UNIDO in the United Nations system

is that it is the only organization promoting the creation of wealth and

removing poverty through manufacturing. The focus of UNIDO is on

three interrelated thematic priorities which are:

 Environment and Energy

 Reduction of poverty through Productive Activities

 Trade capacity-building

One of UNIDO’s achievements is that it has created the largest

portfolio of projects related to building trade capacity in the UN system.

UNIDO also plays an important role in the implementation of the

Montreal Protocol (for prevention of ozone depletion) and the

Stockholm Convention (removal of persistent organic pollutants).

The United Nations’ Universal Postal Union (UPU)

Since mail is sent all across the world and it is received from all

over the world, a need for uniformity was felt and hence as early as 1874,

Universal Postal Union (UPU) was established. UPO basically does the

job of fixing rates for international postal services and is also

responsible for framing rules for international mail exchange. Its

headquarter is in Bern, Switzerland and it comprises the Postal

Operation Council, Congress, the Council of Administration, and the

International bureau.

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It is the second oldest international organization in the world and

the oldest is the International Telecommunication Union (ITU) which was

established in 1865. It has 192 member countries and at present

regulates 40 lakh postal outlets worldwide.

International Telecommunications Union (ITU)

The ITU is a specialized UNO agency for information and

communication technologies. Everywhere across the world people feel

the need to communicate. It is their fundamental right. ITU is therefore

committed to connecting the entire world’s people and through its work,

it protects and supports everyone’s fundamental right to communicate.

ITU holds the distinction of being one of the oldest international

agencies and was established in 1865. It has 193 member countries

besides which about 800 private-sector entities and academic

institutions are also associated with it. ITU has been based on the public

or private partnership since its constitution itself and it is headquartered

in Geneva, Switzerland.

Some functions of the ITU include:

 Coordination of the shared global use of the radio spectrum,

 Promotion of international cooperation in assigning satellite orbits,

 Working to improve telecommunication infrastructure in the

developing world.

 It is also regulating areas that include: broadband Internet, latest-

generation wireless technologies, aeronautical and maritime

navigation, radio astronomy, satellite-based meteorology,

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convergence in fixed-mobile phone, Internet access, data, voice, TV

broadcasting, and next-generation networks.

 India has also been a member of ITU since 1869 and is a regular and

active member of the ITU Council since 1952.

World Tourism Organization (UNWTO)

The UNWTO is a specialized agency of the United Nations which

promotes tourism for not only economic growth but environment

friendly and responsible tourism. The World Tourism Organisation went

into operation in 1974 but became a specialised agency of the United

Nations system in 2003. UNWTO has 158 member states, 6 territories

and 2 permanent observers. The Executive Council is UNWTO’s

governing body and it is headed by its Secretary-General. Some of the

responsibilities it shoulders are as follows:

 It makes tourism universally accessible and also promotes

sustainable and responsible tourism.

 It focuses especially in the area of development of sustainable

tourism in Small Island Developing States (SIDS).

 UNWTO helps develop tourism as a means of economic growth to

promote the potential of tourism in fighting poverty specially

focussing on the developing nations.

 It prescribes the execution of the Global Code of Ethics for Tourism

to enhance the aid from tourism to socio-economic development,

simultaneously ensuring minimum negative impacts.

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 It is steadfast in promoting tourism to achieve the United Nations

Sustainable Development Goals (SDGs), which are for eliminating

poverty and nurturing sustainable development and peace around

the world.

World Meteorological Organization (WMO)

The origin of the World Meteorological Organization (WMO) is

from the International Meteorological Organization (IMO), which was

founded in 1873 to discuss and exchange meteorological information

and it became a specialized agency of the UN in 1950. Now it is the

expert in matters relating to the state and behaviour of the Earth’s

atmosphere. It studies the Earth’s interaction with the oceans, the

climate of the Earth and the resulting distribution of water resources.

Currently, WMO comprises a total of 187 member states and 6 member

territories.

Some of the functions of WMO are:

 To aid in the collaboration of establishment of a network of stations

for meteorological, geophysical and hydrological, other observations

about meteorology.

 To foster the formation and upkeep of centres responsible for

meteorological and related services such as climatology.

 To facilitate the formation and maintenance of systems for quick

interchange of meteorological and related information.

 It facilitates the calibration of meteorological and other related

observations to ensure publication of such observations and

statistics.

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 It organises the use of meteorological data to shipping, aviation,

water and agriculture issues.

 It encourages research and training in meteorology and coordinates

the facilitation of such research and training worldwide.

WMO also has a Hydrology and Water Resources programme (HWRP)

which engages the efficient use of hydrology to study water-related

disasters and provide assistance in its management at the lowest level

that is the basin level.

World Intellectual Property Organization (WIPO)

World Intellectual Property Organization (WIPO) became a

specialized agency of the UN system in 1967. It originated from the

United International Bureaux for the Protection of Intellectual Property

(BIRPI), constituted in 1893, which was set up primarily to safe-guard

and promote intellectual property (IP) to encourage creativity without it

being stolen. This is ensured by many legal provisions and rules.

Currently, WIPO has 192 member states and its headquarter is in

Geneva, Switzerland. Some of the WIPO treaties are:

World Bank Group (WBG)

The World Bank Group consists of five international organisations

which function towards eradicating poverty and assisting in economic

development basically of developing countries.

It achieves this by providing loans at a minimal interest and

providing grants. The World Bank also provides loans to various

government organizations for better health infrastructure, irrigation

system, educational infrastructure, and water supply etc. It provides

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technical and monetary/financial advice to different projects of the

member countries.

The World Bank came into existence after the ratification

internationally of the Bretton Wood agreement in 1945 and commenced

its functioning in 1947 when it acquired the status of a specialized

agency of the UN system. The headquarters of the World Bank

Organization in Washington D.C. Out of the 5 international

organizations of the World Bank Group, only 3 (IBRD, IFC and IDA) are

specialized agencies of the UN system. ICSID and MIGA are not

Specialized Agencies of the UN system. Basically, the World bank group

targets sustainable growth and promotes the socio-economic status of

the society. Its 5 international organisations are as follows:

 International Bank for Reconstruction and Development (IBRD)

 International Finance Corporation (IFC)

 International Development Association (IDA)

 International Centre for Settlement of Investment Disputes (ICSID)

 Multilateral Investment Guarantee Agency (MIGA)

UNSDF

United Nations Sustainable Development Framework (UNSDF) is a

basis of collaboration, and strategies between the Government of India

and the United Nations system and its specialised agencies in India to

add to the realization of national priorities and the Sustainable

Development Goals (SDGs). The UNSDF was framed based on

widespread participation from all sectors such as with government

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entities, civil society representatives, academia, and the private sector.

After this the focus areas that were decided under UNSDF are as follows:

 Education and employability

 Urbanisation and poverty removal

 Water, sanitation, and health

 Food Security and nutrition

 Climate change, clean energy and combatting and managing

disaster

 Entrepreneurship, improving skills and job creation

 Youth development and gender equality

Former specialized agencies

These are those specialised agencies that no longer exist. Till date,

there is only one such specialised agency which is the International

Refugee Organization, which existed for the duration of 1946 to 1952. It

is now called ‘Office of the United Nations High Commissioner for

Refugees’ and it is a subsidiary organ of the United Nations General

Assembly having its headquarter in Geneva, Switzerland.

Related organisations

Some intergovernmental organizations which have an agreement

with the UNO and have a similar structure to the specialized agencies of

the UN system are called related organisations. These related

organisations do not deal with economic, social, cultural, educational,

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health, and related fields as mandated by Articles 57 and 63 of the UN

Charter with the specialized agencies. Some of them are:

(1). International Atomic Energy Agency (IAEA)

(2). International Organization for Migration (IOM)

(3). The Organisation for the Prohibition of Chemical Weapons (OPCW)

Conclusion

The UN specialized agencies are autonomous organizations which

are associated with the United Nations through negotiated agreements.

Provisions regarding their formation etc. are given in Articles 57 and 63

of UN Charter. They were all not created at the same time. Some existed

as early as before World War I and some came into existing to meet the

emerging needs after World War II.

Some of the achievements of the UN specialised agencies in India

are worth mentioning here.

FAO has been operating in India since 1948 and helped the nation

in resolving issues such as food accessibility and sustainable agriculture.

IFAD on the other hand, helped small Indian farmer’s capacity to avail

market opportunities to enhance their income. Mahatma Gandhi

Institute of Education for Peace and Sustainable Development (MGIEP)

which is located in New Delhi is a UNESCO initiative in India dedicated

to education for peace and sustainable development. Another important

agency doing a lot of good work in India is WHO. The Indian

Government with the assistance at every step from WHO has been

successful in eradicating diseases such as cholera, Polio, and Small Pox

etc. and has been successful in controlling Malaria and Tuberculosis.

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India is one of the founding members of the ILO and became one of the
permanent members of its governing body way back in 1922. UNIDO in

India helps in sustainable industrial development.

Thus, the UNO provides tactical and planned help to India so it

can achieve its objectives to remove poverty and inequality and

simultaneously promote sustainable development in alignment with the

globally agreed SDGs. India is the world’s largest democracy and the

UN also supports the county’s ambitious projects for rapid

change/growth and development priorities.

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