PUBLIC INTERNATIONAL LAW

8th SEMESTER 5 YEARS B.A, L.L.B

AL-AMEEN COLLEGE OF LAW

1 0
 SYLLUBUS
UNIT-1
Nature, Definition, Origin and basis of international
law; Sources of International Law; Relationship between
Municipal and International Law; Subject of International
Law.
UNIT-2
States as Subjects of International Law; States in
general; Recognition; State territorial sovereignty.
UNIT-3
State jurisdiction; Law of the Sea; State Responsibility;
Succession to rights and obligations.
UNIT-4
State and Individual- Extradition, Asylum and
Nationality; the Agents of international business;
diplomatic envoys, consuls and other representatives; the
law and practice as to treaties.
UNIT-5
The United Nations Organization- Principal Organs and
their functions; World Trade Organization- main features;
International Labour Organization.

1 0
 UNIT-1
 Nature, Definition,
 Origin and basis of international law;
 Sources of International Law;
 Relationship between Municipal and International Law;
 Subjects of International Law.

QUESTIONS
1. Discuss the basis and nature of International Law. Or Whether the International Law is law in
the proper sense of the term? Give reasons for your answer.
2. International Law is the vanishing point of Jurisprudence. Explain
3. Define International Law and Trace the Origin and Development of International Law?
4. What are the sources of International Law? Explain the Treaties as a Sources of International
Law?
5. Explain the Theories of relating to relationship between International Law and Municipal
Law?
6. Explain the Difference between International Law and Municipal Law?
7. Discuss the Theories as to application of International Law in Municipal Law?
8. Define International Law? Explain the various Theories regarding basis of International
Law?
9. What do you mean by subjects of International Law? Can an Individual be a subject of
International Law? If so in what circumstances.

1 0
 PUBLIC INTERNATIONAL LAW
INTRODUCTION
The term International Law was first coined by Jeremy Bentham in 1780. The System of Public
International Law may be described as “consisting of a body of Laws, rules and legal Principles that are
based on Customs, treaties or Legislations and define, control, constrain (compel) or effect the rights and
duties of states in their relations with each other”.
Public International Law has increased in use and importance vastly over the 20th Century, due to the
increase in global Trade, armed Conflicts, Environmental deterioration on a world wide scale, awareness
of human rights violations, rapid and vast increases in International Transportation and boom in global
communications.
MEANING
International law means a body of rules regarded by the nations of the world as binding on them in
their relations with each other, in peace and war and compromises the rights and duties of sovereign states
towards each other. It is a set of legal rules which regulates the relationship of the nation states with each
other, as well as, their relationship with other international actors.
It can be described as the aggregate of rules governing relation between states in the process of their
conflict and co-operation designed to safeguard their existence, expressing the will of the ruling classes of
the states and defended in case of need by coercion applied by states individually or collectively.
DEFINITION
Most of the classical jurists laid down that international law regulates the relation of states with one
another, and they therefore have defined the term in this sense only.
1. According to Oppenheim, “Law of nations or international law is the name for the body of
customary and treaty rules which are considered legally binding by states in their intercourse with
each other”.
The above definition contains three important elements.

 Firstly, international law consists a body of rules governing the relations between states.
 Secondly, states regard these rules as being binding on them in their relations with one another.
States comply with international law because they feel legally obligated to do so, and not
because they want to or are merely morally obligated to do so.
 Thirdly, such rules derive from customs and treaties.
2. According to Starke, International law is “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:
a. The rules of law relating to the functioning of international institutions or organizations, their
relations with each other and their relations with states and individuals and
b. 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”.
This definition of Starke has widened the scope of international law, the scope by stating that along with
states international law regulates the rights and duties of international institutions or organizations,
individuals and other non-state entities.

1 0
 CASE LAWS
In R v. Keyn, Lord Coleridge C.J. Observed that “The law of nations is that collection of usages which
civilized states have agreed to observe in their dealing with one another”.
In Re Piracy, Jure Gentium, Lord Chancellor Sankey aptly remarked that International Law is a “living
and expanding Code”.
NATURE OF INTERNATIONAL LAW
There is a controversy as to the true nature of International law. Some jurists regard it as a law while
some other jurists argue in negative and hold that International law is not a true law. The Jurists are divided
into two groups with regard to the legal character of the norms of International Law. The views of the two
groups of jurists are as follows:
1. International Law is not law in the true sense of the term.
2. International Law is law in the true sense of the term.
3. International Law is said to be a “weak Law.”

I. International Law is not law in the true sense of the term.

 John Austin- [Is International Law a mere positive morality?]
A leading English writer on Jurisprudence answered the question in negative. According to him,
International Law is not true law, but a code of rules and conduct of moral force only. He holds that
International Law is no law as it does not emanate from a law giving authority and has no sanction
behind it. Austin described International Law as positive international morality consisting of
opinion or sentiments current among nations generally.
Criticism
Austin in his definition of law has given more importance to sanction and fear in compliance of
law. In case of International law there is neither sanction nor fear for its compliance hence it is not law in
proper sense of the term. But now the concept has changed and International Law is considered as law.
There is no consideration of fear or sanction as essential part of law. If fear and sanction are considered
necessary then there are sufficient provisions in UNO charter for compliance of the International Law as
Law.
 Hobbes and Pufendorff- also answered the question in negative by saying that there is no
positive law of nations properly invested with true legal force and binding as the command of a
superior.
 Holland- [International Law is a law by curtesy]
He observed that International Law differed from ordinary law and not supported by the authority of a
state. According to him, the law of nations is but private law ‘writ large’.
In this view of the matter, he called “International Law as the vanishing point of Jurisprudence”.
According to him, rules of international law are followed by courtesy and hence they should not be kept
in the category of law. The international Law is not enacted by a sovereign King. It has also no sanctions
for its enforcement which is the essential element of municipal law. Holland further say that International
Law ass the vanishing point of Jurisprudence because in his view there is no judge or arbiter to decide
International disputes and that the rules of the International Law are followed by States by courtesy.

1 0
 Austin also subscribes to this view, Justice V.R. Krishna Iyer formally member of Indian Law
Commission has also remarked, “It is a sad truism that international law is still the vanishing point of
jurisprudence. This view is not correct. It is now generally agreed that Holland’s view that international
law is the vanishing point of jurisprudence is not correct.
But now it is well settled that International Law is law. It is true that International Law is not enacted by
sovereign and has no agency for its enforcement. But it is true that it is a weak law. A majority of
International lawyers not subscribe to this view is based on the proposition that there are no sanctions
behind international Law are much weaker than their counterparts in the municipal law, yet it cannot be
successfully contended that there are no sanctions at all behind international law.
The jurists who do-not consider international law as the vanishing point of jurisprudence say that there is
difference between state law and International Law. International Law cannot be enacted by the state but
still there is agency for its enforcement. According to Dias, “International Law is obeyed and complied
with by the states because it is in the interests of states themselves.”
For this object they give the following arguments:-
1. The judgements of International court of Justice are binding on States.
2. If any state does not honour the order/judgement of International court of justice, the Security
Council may give its recommendation against that state for action.
3. The judicial powers of International Court of justice (Voluntarily and compulsory) have been
accepted by the States.
4. The judgement of International court of Justice has been followed till date.
5. The system of enforcement i.e. sanctions and fear, has been developed.
For example :- If there is a threat to international peace and security, under chapter VII of the U.N.
Charter, the security council can take necessary action to maintain or restore international peace and
security. Besides this the decisions of the International Court of Justice are final and binding upon the
parties to a dispute.
On the basis of above discussion it may be concluded that the International Law is in fact law and it is
wrong to say that it the vanishing point of Jurisprudence.

 Jeremy Bentham and Jethro Brown are the other prominent jurists who also deny the legal
character International Law.
Criticism
According to Bentham’s classic definition international law is a collection of rules governing relations
between states. Two of the most dynamic and vital elements of modern international law.
1. In its broadest sense, International law provides normative guidelines as well as methods, mechanisms,
and a common conceptual language to international actors i.e. primarily sovereign states but also
increasingly international organizations and some individuals.
2. Although international law is a legal order and not an ethical one it has been influenced significantly by
ethical principles and concerns, particularly in the sphere of human rights. International is distinct from
international comity, which comprises legally nonbinding practices adopted by states for reasons of
courtesy. Ex. the saluting of the flags of foreign warships at sea.
II. International Law is not law in the true sense of the term.

1 0
 
According to Oppenheim, International Law is law in proper sense because:-
i. In practice International Law is considered as law, therefore the states are bound to follow
them not only from moral point of view but from legal point of view also.
ii. When states violate international law then they do deny the existence of international law but
they interpret them in such a way so that they can prove their conduct is as per international
law.
 Starke while accepting International Law as Law has said, “That in various communities
law is in existence without any sanction and legal force or fear and such law has got the
same acceptance as the law framed and enacted by state Legislative Assemblies.
i. With the result of international treaties and conventions International Law is in existence.
ii. U.N.O. is based on the legality of International Law.
 Prof. Briely, “To deny the existence and legal character of International Law is not only
inconvenient in practice but it is also against legal thoughts and principles.” The states who
are maintaining the international relations not only accept International Law as code of
conduct but has also accepted its legal sanction and force.
 Prof. Hart, “There are many rules in practice which are honoured by states and they are
also bund by them, now the State Government accept the existence of International Law.”
 Jus Cojens, “International Law may now properly be regarded as a complete system.”
It is pertinent to mention here that from the above noted contents it is clear that the following
grounds are supportive for accepting the International Law as law:-
 Now so many disputes are settled not on the basis of moral arguments but on the basis of
International Treaties, precedents, opinions of specialists and conventions.
 States do not deny the existence of International Law. On the contrary they interpret
International Law so to justify their conduct.
 In some states like USA and UK international Law is treated as part of their own law. A leading
case on the point is the, Paqueta v/s Habanna-1900. Justice Gray observed that the
international law is a part of our law and must be administered by courts of justice.”
 As per statutes of the International Court of Justice, the international court of Justice has to
decide disputes as are submitted to it in accordance with International Law.
 International conventions and conferences also treat international Law as Law in its true sense.
 The United Nations is based on the true legality of International Law.
 That according to article 94 of UNO charter, the decisions of the International Court of Justice
are binding on all Parties (States).
 Customary rules of International Law are now being replaced by law making treaties and
conventions. The bulk of International Law comprises of rules laid down by various law-
making treaties such as, Geneva and Hague conventions.
On the basis of above mentioned facts and arguments, the International Law is law in true sense
of the term. United States and U.K., treat International Law as part of their law. In a case
of West Rand Central Gold Mining Company Ltd., v/s Kind- 1905, the court held the
International Law has considered it as a part of their law. From the above analysis it is revealed
that the International Law is law.

 Hall and Lawrence on the other hand answered the question in affirmative. According to
them, International Law is habitually treated and enforced as law, like certain kind of

1 0
 positive law, it is derived from custom and precedent which form a source of International
Law.
 Pitt Cobbett observed that International Law must rank with law and not with morality.
Thus it is clear from the above discussion that the solution for the above question depends upon the
definition of law, which one may choose to adopt.
III. International Law is said to be a “weak Law.”
The weaknesses of International Law become evident when we compare it with Municipal
Law. Its weaknesses reflected in most of cases when these are compared with the state law. The
following are some of the weaknesses of International Law:-
1. The greatest shortcoming of International Law is that it lacks an effective executive authority to
enforce its rules.
2. Lacks Of effective legislative machinery:- Since the International Laws are based on international
treaties and conventions. Therefore these are interpreted by the states according to their Self Interest.
3. The International court of Justice lacks compulsory jurisdiction in the true sense of
the term:- The International court of Justice which is situated in Hague (Netherland) is not authorized
to take cases of all states. The cases can be filed in this court with the mutual consent of concerned
states.
4. Due lack of effective sanctions, rules of International Law are frequently violated:-There is no
sense or fear of sanction in the International Law with the results the laws are violated frequently by the
States.
5. Lack in right to intervene in Internal affairs:- As per article 2(7) of UNO Charter, UNO is not
competent to interfere in the domestic matters of states. International law cannot interfere in the
domestic matters. Keeping in view these facts in several cases International Law proves to be
ineffective and weak.
6. Uncertainity:-There is one more reason behind the weakness of International Law is its uncertainty.
It is not certain as the laws of states as well as Municipal law. In addition to this it has not been able to
maintain international peace and order.
It is now very much clear from the above facts that International Law is weak. Paton says that “from
institutional point of view International Law is a weak. It has no legislative support though there is
international court of justice but that functions or takes case on the basis of mutual consent of states. It
has no power to get the decisions implemented.”
According to Karbet, “The main course of weakness of International Law is the lack of social solidarity
among highly civilised states.
A case of Queen v/s Ken 1876:- There is no such institution or body which can enact laws for sovereign
states and there is no court also which can enforce its decision and to bind the states.”
SUGGESTIONS FOR IMPROVING INTERNATIONAL LAW
Despite the above mentioned weaknesses, it has to be noted that International Law is constantly developing
and its scope is expanding. It is a dynamic concept for it always endeavours to adopt itself to the needs of
the day. As compared to Municipal Law the International Law is works in a decentralized system. This is
because of the facts that the International policies, Inter-dependence of states and the continuous growth of
the concept of International or world community. However the weaknesses of the International Law may
be improved in following ways:-

1 0
 1. The International Court of Justice should be given compulsory jurisdiction, in the true sense of term
overall international disputes.
2. An International Criminal Court should be established to adjudicate cases relating to international
crimes.
3. International Laws should be properly codified.
4. The machinery to enforce the decisions of the International Court of Justice should be strengthened.
5. An International Police system should be established to check international crimes and to enforce
the rules & principles of International Law.
6. An international Bureau of Investigation and prosecution should be established for investigation of
matters relating to International crimes and the prosecution of International criminals.
7. The U.N.O. should be authorized to intervene in the internal matters of states.
8. For settlement of international disputes the use of judicial precedents must be encouraged.
9. There must be constant review of International Law.
10. Last but not the least there must be basic recognition of the interest which the whole international
society has in the observance of its laws.
It is pertinent to mentioned here that the General Assembly of UNO should made fruitful efforts in this
direction. The above suggestions will make International Law equivalent to a Municipal Law to some
extent. With the growth of Internationalism and the feeling of universal brotherhood international law will
also become effective and powerful.

ORIGIN AND BASIS OF INTERNATIONAL LAW

Origin of International law
According, Oppenheim, “It is in its origin essentially a product of Christian civilization and began
gradually to grow from the second half of Middle Ages”. The claim of the European scholars that the
credit of giving birth to International law as we know today, goes to the European countries, is not
correct. “The allegation of western Jurists, Oppenheim and others that International Law originated in
Europe and is the creation of Western civilization is falsified by a study of the original texts of the
‘Ramayana’ and ‘Mahabharath’.” “It leads us nowhere to hold that modern international law is only three
or four centuries old. Such an attitude is not only too legalistic, but is clearly disapproved by the present
practice which do take account of history.”
International law is synonymous with the ‘ law of nations’ which corresponds to French and German
equivalents ‘droit international’ or ‘droit des genis’; ‘international Recht’ or ‘volkerecht’ and it
corresponds to the Italian Spanish equivalents’ droitto internazionale’ and ‘derecho international’
respectively.
Bynkershock ascribes the origins of the law of nations to reason and usage basing usage on the
evidence of treaties and ordinances. Different names and titles are given to the subject of international law
such as Universal Law, Law of Nations, International Public Law, the Law between powers, Inter-State
Law, the law of the Community states, Transnational Law.
Basis of International Law
There are two main theories which attempt to explain the basis of International Law:-

1 0
 1. Theories as to the law of nature
In 16th and 17th century, the jurists were of the view that the international law is based on law
of nature. According to this theory, International law has been followed by the states because it is
the law of nature which is higher law.
According to them, natural law confers binding force on International law. According to Grotius
natural law, is the ‘dictate of right reason’. This theory has been criticized the definition of the
term ‘natural law’ is very vague and uncertain as each follower gives a different definition.
Different meanings are ascribed such as reason, justice, utility, general interest of international
community etc. it must be admitted that the law of nature has greatly influenced the growth of
international law, but the theory is not based on realities and actual practice of the states.
2. Positivism
This theory is based on actual practice of the states. It has been pointed out that the will of
states is the main source of international law is binding because states have consented for the
rules of international law.
Starke has rightly stated: “International law can in logic be reduced to a system of rules
depending for their validity only on the facts that states have consented to them. According to
Italian Jurist, Anzillotti, the binding force of international law is based on a fundamental principal
known as ‘Pacta Sunt Servanda’(agreements entered into by states must be respected and
followed in good faith). But the Positivist Theory fails to explain the binding force of customary
rules of International Law.
Criticism-Many jurists have criticized this theory, following are the main points of criticism:
a) The concept of will of state is metaphorical. The will of the state is nothing but the will of the
people who compose it.
b) It fails to explain the case of the admission of a new state into the family of nations. When a
state is admitted to the family of nations, international law becomes applicable to it even
without its consent.
c) The positivists have based their theory on consent which has been severely criticized by the
jurists.
d) In practice, it is never necessary to shown in regard to any particular rule of customary
international law that the states had given their consent.
e) There are certain principles of international law which are applicable to non-members of the
U.N. although they had never given their consent for it.
Some other Theories regarding the basis of International Law
Apart from the above mentioned theories, there are some other theories regarding the basis of
International Law:
i) Theory of consent
The theory of consent, is based on the Positivists theory which has been criticized earlier. It
fails to explain the basis of international law. According to this theory, states observe the rules of
international law because they have given their consent. The points of criticism are as follows:-
a) As regard customary rules, it is not necessary to prove that states have given their consent.
b) In regard to customary rules, the basis of implied consent is far from correct.
c) It fails to explain the case of recognition of a new state.
d) It fails to explain the true basis of international law.

10

1 0
 ii) Auto-Limitation Theory
Yet another theory based on the theory of consent which fails to explain the basis of
international law. It is presumed that states has a will. Moreover, Auto-Limitation is no limitation
at all.
iii) Pacta Sunt Servanda
According to Anzillotti, the binding force of International Law is based on a fundamental
principal known as Pacta Sunt Servanda which means, agreements entered into the states must be
respected and followed in good faith. Nevertheless, this theory also fails to explain the binding
force of customary rules of international law. As an author rightly remarks,” the realization that
international customary law does not rest on agreements and that the tenet of Pacta Sunt Servanda
is itself a rule of customary law led to new formulations of basic norms.
iv) Theory of fundamental rights
As this theory is based on naturalistic view, it is contended that like man, states also possessed
certain fundamental rights because so far there is no world authority over and above the states.
This theory has also been criticized, because it fails to explain the basis of international law.
HISTORY AND DEVELOPMENT OF INTERNATIONAL LAW
International Law is of very recent origin. The development of International Law is the result of the
development of international relations. In his famous book, international Law’, Professor T.J. Lawrence,
who has made a special study of its decent developments, has divided it into three periods.
The first period begins with the origin of the European civilization and lasts till the beginning of the
Roman Empire. The second period begins from the Roman Empire and lasts to the Reformation. The third
extends from 1648 up to the present time.
First Period
India was aware of much of international law when the rest of the world was in uncivilized stage.
References have been made to these rules in ‘Koutilya’s Arthshastra’. For example, in the post-Vedic
period there existed certain rules according to which wars were declared, and waged, treaties were
renounced, alliances were negotiated and ambassadors were accredited Ambassadors were not to be
killed, because it were they who gave the message of their rulers to the foreign rulers.
They were never convicted whether disclosed good messages or bad ones. Indian Rulers observed a
regular code of war. References have been made to these rules in the Mahabharata and in other books of
ancient times.
In the third century B.C., Rhodes, a famous city of Greece, became a very great trade centre. The traders
of Rhodes started following certain rules which later on began to be observed by the other states of
Greece. These rules are known as Maritime Code. They also recognised “the law of mankind” which
established a system of the protection of envoys, obligations of alliances and sanctity of treaties
With the dawn of Roman Empire, Rome established its relations with the alien states. They also
developed a system for dealings with the alien states. This system is known as Jus gentium which means
law of nations. The Jus gentium is the real contribution of Rome in the development of International Law.
The Jus gentium was a Code of rules applied to the dealings with the citizens of different nations. This
code of rules is very similar to the International Law. This is the greatest contribution of Rome to the
development of International Law.

11

1 0
Second Period:
There was no development in the International Law so long as the Roman Empire existed. The theory
of common superior (supreme) over all political units of the world was popular. After the fall of Roman
Empire Feudal states emerged. The feudal rulers protested against the supremacy of the church.
The concept of territorially independent state was brought in with the advent of feudal system. The
supremacy of Pope was questioned. Pope’s interference in the internal matters of different states annoyed
the European rulers. The rulers abolished the authority of Pope and organised nation-states.
Wars were declared by these nation-states against one another. The Church laid stress to carry out
these wars in human ways. Ayala, the judge of Spanish Military Court; Mr. Genteel, a prominent figure of
Italy; Suarge, the famous jurist of Spain and the political thinkers belonging to the latter half of sixteenth
century maintained that the dealings between different States should be regulated by the Law of Reason.
States should observe the Law of Reason while dealing with other states on international level.
Third Period:
The third period extends from the date of Reformation up to the present time. Hugo Grotius’s book, “On
the Law of War and Peace” (1625), is a notable contribution of this period. This book reflects upon the
cruelty of wars fought in sixteenth and seventeenth centuries. Hugo Grotius, the Dutch Scholar
formulated the doctrine of International Law and analyzed international practice his book.
He laid stress on the two fundamental doctrines:
(a) All States are equally sovereign and independent.
(b) The jurisdiction of the state is absolute over its entire area. His book “On the Law of War and Peace”
deals in detail with the international laws of war and peace. References have been made to these laws of
war and peace in the Peace Westphalia (1648) which ended thirty years’ war.
International Law of which we are aware in modern times is essentially the product of this period.
Wheaton and Oppenheim are more prominent among the political thinkers who have expressed their
views on International Law.
Development of International Law
1. International law in Ancient times
In ancient period, International law was in a crude form among ancient societies. The rules of
International law was governed by ‘inter-rational’ relationship in all communities. Each Neighboring state
was regard hostile to one another yet there were rules which governed their inter-group relationships in
the ancient past.
In ancient times, relations between different communities and kingdoms were governed by kind of law
staturated with religion, in few matters. Thus, ancient Jews, Greeks, Romans, Hindus and Mohammedans
composed the first to start with International Law and developed considerably good code of conduct for
the treatment of diplomatic envoys, declaration and termination of war, regulation of warfare within and
outside the tribe, the conclusion of treaties and related matters connected with International relations.
2. International Law in the middle ages
The 15th and 16th centuries witnessed the discovery of the new world and the sea routes to the Far East.
This created a new rivalry between the nations of Europe for colonizing these vast newly discovered area
and for extending their commercial activities. In absence of the rules for the acquisition of territory, these

12

1 0
newly emerged states acquiesced in the use of force as a means of acquiring title to a piece of territory,
and for extending sovereignty over peoples thus subjugated. In fact war came to be recognized as a
prerogative of a sovereign state. Theories were evolved to meet the new conditions.
3. International Law in Modern Ages
There were many factors which led to the development of law in 19th and 20th centuries. The relation
of state and their mutual contacts had greatly increased during the said period and many rules and
principles were formulated on the basis of the practice of states and the needs and requirements of the
changing times and circumstances. We will discuss them under the following headings:-
1. Congress of Vienna, 1815 – It was a landmark event for the development of international law. It
was the first important European conference where many rules of international law were
formulated. Ex- rules relating in international rivers, classification of diplomatic agents, etc.
2. Declaration of Paris, 1856 – The declaration of Paris was a law-making treaty in which many rules
relating to the naval warfare were laid down. Attack on undefended people during naval war was
prohibited. It was also laid that enemy ships could be sunk or otherwise destroyed during war but
before doing so, precautions should be taken to save the life of the crew of the ship.
3. Geneva Convention, 1864 – Many rules relating to the wounded and sick members of the armed
forces during land warfare were laid down in Geneva Convention of 1864. Killing of wounded
soldiers was prohibited and rules were made for providing certain facilities to them.
4. Hague conference of 1899 and 1907 – The great contribution of Hague conference was the
establishment of the Permanent Court of Arbitration. These conferences emphasized the settlement
of International disputes through peaceful means.
5. The league nations - The League of Nations was established under the treaty of Versailles, 1919. It
is for the first time, imposed certain restrictions upon the nations right to resort to war at their will.
The covenant of the League of Nations provided, that before resorting to war, they would first settle
their disputes through arbitration, judicial settlement, or enquiry by council.
6. Treaty of Locarno of 1925 – France, Britain, Germany, Italy and Belgium undertook the
obligation of not using force in the settlement of their boundary disputes. The parties to the treaty
also expressed their resolve to settle their disputes through peaceful means.
7. Kellog-Briand or Paris Pact of 1928 – This pact was a landmark in so far as the parties to it
renounce war as an instrument of their national policy for the settlement of international disputes. It
was a very significant international event for regulation over war.
8. Geneva Convention, 1929 – This convention was signed by 47 states of the world. Many rules
relating to the treatment of prisoners of war were laid down in this convention. Reprisal against
prisoners of war, cruelty towards them and collective penalties against them were prohibited. Rules
were also formulated for providing medical and other facilities to the prisoners of war.
9. Second World War – almost all the above mentioned rules of International Law were flagrantly
violated during the Second World War which turned into a ‘total war’. Consequently, the Second
World War indirectly led to the eventual establishment of the United Nations.
10. The United Nations – The UN Charter came into force on Oct 24, 1945 and thus the UN was
established. In the beginning the number of its members was only 51 which has now swelled to
191. The United Nations is an International treaty which regulates the mutual relations of its
members.

13

1 0
 SOURCES OF INTERNATIONAL LAW
The term sources refer to methods or procedure by which international law is created. A distinction is
made between the formal sources and material sources of law. The formal, legal and direct sources consist
of the acts or thing which gives that the content its binding character as law. The material sources provide
evidence of the existence.
The sources of international law may be classified into five categories:-
1. International Conventions or Treaties: -
“Convention” is ‘the act of convening a conference, a body of delegates assembled for a
common purpose.’ In the modern period international treaties are the most important source of
international law. This is because the reason that states have found in this sources.
Article 2 of the Vienna Convention on the law of treaties 1969, a treaty is agreements whereby two or
more states establish or seek to establish relationship between them govern by international law.
Prof. Schwarzenbergr, “Treaties are agreements between subjects of international law creating a binding
obligation in international law.”
International treaties may be of the two types: -
a) Law making treaties:- these are the direct source of international law and the development of these
treaties was changing of the circumstances. Law making treaties perform the same functions in the
international field as legislation does in the state field.
b) Treaty contracts:-As compared to law making treaties treaty contracts are entered into by two or more
States. This may happen when a similar rule is incorporated in a number of treaty contracts.
2. International Customs:-
International customs have been regarded as one of the prominent sources of international law for a
long time. However even today it is regarded as one of the important sources of international law. Usage
is an international habit which has yet not received the force of law.
STRAKE Says, “Usage represents the twilight stage of custom, custom begins where usage ends. Usage
is an international habit of action that has yet not received full legal attestation.” A custom in the
intendment of law is such usage as that obtained the Force of law i.e.:-
i) It is not necessary that the usage should always precede a custom.
ii) In certain cases usage gives rise to international customary law.
iii) When a usage is combined with a rule of customary law exists.
iv) It is an important matter to see as to how international custom will be applied in international law.
In a case of West Rand Central Gold Mining Compy.v/s R-1905, court held that for a valid
international customs it is necessary that it should be roved by satisfactory evidence that the custom is
of such nature which may receive general consent of the States and no civilized state shall oppose it.
Porugal v/s India-1960, ICJ pointed out that when in regard to any matter or practice, two states
follow it repeatedly for a long time, it becomes a binding customary rule. Still other resolutions
amount to an interpretation of the rules and principles which he charter already contains and which
are in binding upon States.
3. General Principles of Law recognised by civilized States: -
Art.38 of ICJ provides that the Statute of International Court of Justice lists general principles of law
recognised by civilised States as the third source of international law. In the modern period it has become
an important source. This source helps international law o adapt itself in accordance with the changing

14

1 0
time and circumstances. On the basis of this view the general principle of law recognised by civilized
States have emerged as a result of transformation of broad universal principles of law applicable to all the
mankind.
Following are some important cases relating to the general principles of law recognised by civilized
States:-
1. R. v/s Keyn-1876, that I. Law is based on justice, equality and conscience which have been accepted
by practice of States.
2. U.S v/s Schooner-held that I. Law should be based on general principles.
4. Decisions of Judicial or Arbitral Tribunals and Juristic Works:-
i) International judicial Decisions:-In the modern period international court of justice is the main
international judicial tribunal. It was established as a successor of the permanent court of I.
justice. Art.59 of the statute of ICJ makes it clear that the decisions of the court will have no binding
force except between the parties and in respect of that particular case. While in principle it does not
follow the doctrine of precedent. Thus judicial decisions unlike customs and treaties are not direct
sources of law; they are subsidiary and indirect sources of international law.
ii) State judicial decisions:-
These decisions may become rules of international law in the following two ways:-
1. State judicial decisions are treated as weighty precedents.
2. Decisions of the state courts may become the customary rule of International Law in the same
way as customs are.
iii) Decisions of International Arbitral Tribunals:- Jurists have rightly too pointed out that in most of
the arbitral cases arbitrators act like mediators and diplomats rather than as judges as in Kutch
Award-1968.
iv) Juristic Works:- Art.38 of ICJ, the work of high qualified jurists are subsidiary means for the
determination of the rules of International Law.
In Paquete Habana and Lola fishing vessels with Spanish flags on them in 1898 during war between
America & Spain, held that they could not be seized or apprehended during the state of blockade.

5. Decisions or determinations of the organs of international institutions:-

Art.38 of ICJ incorporated these sources and also introduced one new source namely general
principles of law. In view of the strong reasons the decisions and determination of organs are now
recognised as an important source of International Law. The resolutions of the organs may be binding on
the members in regard to the internal matters. Organs of international institution can decide the limits of
their competence.
6. Some other sources of International Law:-
Besides the above sources of International Law, following are some of the other sources of
international law: -
1. International Comity: mean mutual relations of nations.
2. State Paper:-In modern period diplomats send letters to each others for good relations are also the
sources of I. Law.

15

1 0
 3. State guidance for their officers: Numbers of matters are resolved on the advice of their legal
advises.
4. Reasons: has a special position in all the ages.
5. Equity & Justice: I t may play a dramatic role in supplementing the law or appear unobtrusively as
a part of judicial reasoning.
RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW
While international law is applied in the relations of the states and to other subjects of
international law, national or state law which is called municipal law is applied within a state to the
individuals and corporate entities which are the bearers of rights and duties there under.
The problem of relationship between the rules of international law and municipal law is one of the
most controversial questions of legal theory. Originally, the relationship between the two laws was a
matter of theoretical importance but at present the question has acquired practical significance as well.
When there exists a conflict between the rules of international law and municipal law, a court is faced
with the difficulty of arriving at a decision. The question of relationship of the two systems has acquired
importance in modern international law also because a very large part of it is directly concerned with the
activities of individuals who come under the jurisdiction of municipal courts. This has necessitated
ascertaining the relationship of the two systems of law.
The views of the jurists on the question of relationship of international law and municipal law are
divergent which have led to the emergence of different theories. Prominent among them are as follows:
1) Monistic theory-
This theory was pronounced in the 18th century. It was put forward by two German scholars
Moser and Martens, and later developed by Austrian jurist Kelson. According to this theory there
exists only one set of legal system, i.e, the domestic legal order. It has been denied by the exponents
of this theory that international law is distinct and autonomous body of law. It followed that there was
obvious no need for international rules to be incorporated into municipal legislation, since they have
been made by the states themselves.
According to this theory, municipal law as well as international law are parts of one universal
legal system serving the needs of the human community in one way or the other. Individual is at the
root of every law. Law is a body of rules binding upon the subjects. Subjects in municipal law are the
individuals directly whereas in international law the subject is the state which obviously include
individual. Thus we see individual is the subject of both laws. The two laws together form a single
legal order.
Since both the laws are meant to solve the problems of human beings in different areas, they
both are related to each other. They believe that the whole legal system is one unified branch in which
international law operates as a part. Neither municipal law nor international law is therefore above the
system nor is separated from the system. The result is that international rules can be applied as such
by municipal courts without any need for transformation.
2) Dualistic theory:
According to this theory, international and municipal laws are two distinct, separate and Self
Contained legal systems. This theory was developed by prominent German scholar Triepel in 1899. It
was later on followed by Italian jurist Anzilotti. The above authors are of the view that the two
systems of law differ from each other on the following grounds:

16

1 0
 a) Regarding sources- sources of municipal laws are custom grown up within the boundaries of
the state concerned and the status enacted by the sovereign; the sources of international law
are custom grown up among the states and law-making treaties concluded by them.
b) Regarding subjects- dualists are of then view that the subjects of international and municipal
law are different from each other. While municipal law regulates the relations between the
individuals and corporate entities and also the relations between states.
c) Regarding substance of law- substance of laws of the two systems are also different. While
municipal is a law of a sovereign over individuals, international law is law not above, but
between sovereign states. Its norms are created by its subjects themselves, i.e., by the states
through agreements where essence is a concordance of will of states or by other subjects of
international law. Thus, municipal law addresses itself to the subjects of the sovereigns,
international law to the sovereigns themselves.
d) Regarding principles- anzilotti is of the view that while municipal laws in a state legislature,
international law is obeyed because of the principle of pacta sunt servanda. Thus, while in
municipal law there is a legal sanctity, international law is followed because states are morally
bound to observe them.
e) Regarding dynamism of the subject-matter- subject-matter of the two systems are also
different. While the subject-matter of municipal law is limited.
These are the points of differences between the two systems, and therefore they are applied distinctly in
different areas.
1. Transformation theory- According to this theory international law undergoes transformation to be
applied to in the field of municipal law. International law cannot find place in national law unless it
undergoes transformation. This theory has been criticized severely as it is incorrect to say that
transformation is essential, there are several treaties which become applicable to state even without
undergoing transformation.
2. Specific adoption- International Law cannot be directly enforced in the field of State Law. In order to
enforce it in the field of Municipal Law it is necessary to make its specific adoption. The theory of
adoption is based on Hague convention-1970, Vienna Convention-1972 and Tokyo Convention-
1975.
In case of Jolly George v/s Bank of Cochin-1980: The court held that any agreement does not become
part of Indian constitution automatically, but the positive commitment of state parties inspires their
legislative action.”
The use of International Law in different countries like India, Britain, America and Russia. The rules of
International Law have been based in a different ways:-
 Indian Adoption:- The International Law has been given important place and mention the customary
rules of International Law in Article 51(6) of the Indian constitution with the following strive :
 To increase international peace and security.
 To maintain just and good relations among states.
 To increase faith and honour for use of International Law treaty, obligations in natural relations
and conduct of organised people.
 To act as mediator to encourage for settlement of international dispute.
Some of the cases in this regard are:-

17

1 0
i) Shri Krishna Sharma v/s State of west Bengal-1964: It was decided that whenever the court interprets
the domestic Municipal Law, it should be taken into consideration that it does not go against International
Law.
ii) Magan Bhai, Ishwar Bhai Patel v/s Union of India-1969:- Court accepted the implementation of
Kutch Agreement between India and Pakistan on the basis of correspondence between them.
Similarly there are two other case viz:
Vishakha v/s State of Rajasthan-1997 and Apparel Export Promotion Council v/s A.K.Chopra-
1999:
In both of the cases the court held that the right of sex equality of women has assumed the important
rule of International Law and its convention, court said that in cases of violation of human right the court
should always consider international documents and conventions and should make them binding.
 British Adoption: In Britain International customs are treated as part of domestic law. British courts
apply international customs subject to the conditions
(i) International customary rules are not inconsistent with British Laws
(ii) They are accepted by lower courts when the limit of these customary rules are fixed by High Court.
For use of treaties, the case of International Tin Council v/s Dep’t., of Trade and Industry-1900: the Lord
Council decided that in England treaties are not binding automatically. It is binding only when the
Parliament makes it a part of English Law and incorporates in Law by enactment of law in this regard.
 Adoption in America: In America the courts interpret the state law in such a way that it does not go
against International Law. The rules of customary International Law are treated as part of State Law.
It has been done in the case of Paqueta Habana Case- 1900: It was held that International Law is part
of our state Law and when any question or case relating International Law is filed before courts of proper
powers then the rights based on these questions should be determined and enforced.
3. Delegation theory-
According to this theory the state decide as to how and in which manner international law will be
applied in the state law. There is no transformation or specific adoption. International law is applied in
the state law according to the procedure and system prevailing in each state.
Last but not the least in a recent case namely, Chairman, Railway Board & others v/s Mrs. Chandrima
Das and others-2000: The supreme Court of India observed that the International Conventions and
Declarations as adopted by the United Nations have to be respected by all signatory states and meaning
given to the words in such declarations and covenants have to such as would help in effective
implementation of those rights.

18

1 0
 SUBJECT OF INTERNATIONAL LAW
A subject of rules is a being upon which the rules confer rights, capacity and imposes duties and
responsibility. Generally it is the State who enters into treaties with each other and is thus bound by its
provisions. This does not however mean that other entities or individuals ar outside the scope of
international law. International law applies upon individuals and certain non-state entities in addition to
states. In the modern era the international law has expanded a lot. Now this law is applied besides States
and individuals also.
Theories regarding Subjects of International Law:-
Following are the three main theories prevalent in regard to the subjects of international law:-
1. Only States are the subject-matters of International Law/Realistic Theory:- Certain jurists have
expressed the view that only International law regulates the behaviour of states hence states are its subject
matters. Percy E. Corbett says, “The triumph of positivism in the late eighteenth century made the individual
an object not a subject of international law.
CRITCISM: - The jurists have bitterly criticized as this theory fails to explain the case of slaves and
pirates. The pirates are regarded enemy of humanity and they can be punished by the State for piracy. In
international arena by some ordinary treaties community of states have granted certain rights. But those
jurists who say that states are the only subject-matter of international law but are object of it. To say that
individuals are not the subject but object of the International law seems to be incorrect. Prof.
Schwarzenberger, has aptly remarked that this view is controversial. He asserts that he individual who is
the base of the society is only an object of the I. Law is not justified.
2. Only individual are the subjects of International law/Fictional Theory:- Just contrary to the above
theory there are certain jurists who have expressed the view that in the ultimate analysis of international
law it will be evident that only individuals are the subject of International Law. The main supporter of this
theory is Professor Kelson. Before keelson this view was expressed by Westlae, who opined, the duties and
rights of the States are only the duties and rights of men who compose them. Kelson has analysed the
concept of State and according to him it is a legal concept which as a mixture of legal rules applicable to
all the people living in certain area hence the obligations of a State in international law in the last resort are
the duties of individuals of which state consists.
In fact there is no difference between international law and state law. In his view both laws apply on the
individuals and they are for the individuals. However he admits that the difference is only this that the state
law applies on individuals intermediately whereas international law applies upon the individuals mediately.
Criticism:-So far as logic is concerned the view of Kelson seems to be correct. An example is the
Convention on the settlement of invest Disputes between States and Nationals of the other states, 1965. By
this treaty provision is made to settle the disputes which arise by investment of capital by nationals of one
state in other states. So it is clear that the view of Kelson that international law is made applicable through
the medium of a State seems justified.
3. States individuals and certain non-state Entities are Subjects/Functional Theory:- This view seems
to be justified as against the above views. In support of this, the following reasons may be advanced: -
 In modern times many treaties grants rights and duties to individuals.
 In case Danzing Railway PCIJ-1928, in case the State Parties of a treaty intended to grant rights to
individuals then International Law would recognise such rights and International Court will enforce
them.

19

1 0
  Geneva Convention of Prisoners of War-1949 has also accorded certain rights o prisoners of war.
 According to Nuremberg Court since crimes against International Law are committed by
individuals the provisions of International Law can be enforced.
 Genocide convention- 1948:- In the convention also individuals have been assigned directly certain
duties. By article 4 of this convention those individuals who commit international crime of genocide
should be punished whether they are public servants or ordinary person.
By the above description it is clear that only states are not subject matter of Internationals Law but in
modern times individuals international Institutions, Non-state entities minorities are also the subject-matter
of International Law.
Place of Individuals in International Law:- As pointed out earlier individuals are also treated to the
subjects of international law although they enjoy lesser rights than states under international law. In the
beginning they were accepted as subjects of international law as an exception of the general rule and number
of jurists treated them as objects rather than the subject. In the recent times several treaties concluded
wherein rights have been conferred and duties have been imposed upon the individuals. Some of the
provisions are as under:-
1. Pirates: Under International Law pirates are treated as enemies of mankind. Hence every state is entitled to
punish them.
2. Harmful acts of individuals: - For the amicable and cordial relation of the state it is necessary that the
individuals should not be involved in such acts as may prove detrimental for the good relations among
states. A leading case ex parte Petroff-1971, wherein two persons who were found guilty of throwing
explosive substances on the Soviet Chancery were convicted.
3. Foreigners: To some extent international law also regulates the conduct of the foreigners. According to
international law it is the duty of each state to give to them that right which it confers upon its own
citizens.
4. War criminals: can be punished under international law.
5. Under some treaties individuals have been conferred upon some rights whereby they can claim
compensation or damages.
CONCLUSION
To conclude, slowly and gradually individuals are occupying place of importance under international
law. They are no more mere objects of international law. They are in fact the subjects of international law.
It cannot, however, be denied that even today states are the main subjects of International law and the
bulk of international law deals with their rights and duties.

20

1 0
 UNIT-2
 States as Subjects of International Law; States in
general;
 Recognition;
 State territorial sovereignty.
QUESTIONS
1. Define State. State the different kinds of state.
2. What do you understand by recognition of a state? What are the theories of
recognition? What are the legal effects of recognition and consequences of non-
recognition of a state? Discuss.
3. What is the difference between de facto and de jure recognition.
4. Discuss the conditional recognition.
5. Detail note on Acquisition and loss of territory.
6. What is meant by Intervention? Under what circumstances intervention by one state in
the affairs of another state considered justified?

21

1 0
 SUBJECTS OF INTERNATIONAL LAW- STATE
INTRODUCTION
States are the original and major subjects of International Law. Their legal personalities derive from
the very nature and structure of the international system. All States, by virtue of the principle of sovereign
equality, enjoy the same degree of international legal personality. International Law is primarily
concerned with the rights, duties and interests of States. Normally the rules of conducts that International
Law prescribes are rules which States are to observe. Since, a state is the primary concern of International
Law, it is necessary to study of a State as a Subject of International Law.
MEANING
The term ‘State’ is derived from the word ‘Status’ which was first used by the Tuetons. The Greeks
used the word ‘polis’ which is translated as ‘City State’.
The State is a natural, a necessary, and a universal institution. It is natural because it is rooted in the
reality of human nature. Thus, A State is a community of persons, more or less numerous, occupying a
definite territory, possessing an organized government, and enjoying independence from external control.
Man needs the state to satisfy his diverse needs and to be what he desires to be. Without the state he can
not rise to the full stature of his personality. In fact, in the absence of such a controlling and regulating
authority, society cannot be held together and there will be disorder and chaos, what food means to the
human body, state means to man both are indispensable for his existence and development.
DEFINITION
1. Aristotle: State is “a union of families and villages having for its end a perfect and Self sufficing
life by which we mean a happy and honorable life”.
2. Cicero: “The State is a numerous society united by a common sense of right and mutual
participation in advantages”.
3. Woodrow Wilson: “State is people organized for law within definite territory”.
4. Oppenheim: “The State exists when people settle in a country under its own sover eignty”.
ESSENTIAL CHARACTERSTICS OR ELEMENTS OF STATE
State is the primary subject in International Law. The requirements to be considered as a subject of
international law are the capacity to have rights and duties under international law. Some writers also
argue that a State must be fully independent and be recognized as a State by other States. The
international legal system is a horizontal system dominated by States which are, in principle, considered
sovereign and equal. International law is predominately made and implemented by States. Only States can
have sovereignty over territory. Only States can become members of the United Nations and other
international organizations. Only States have access to the International Court of Justice.
According to Montevideo Convention the state as a subject of international law should possess the
following qualifications:
(i) Permanent population
(ii) Defined territory
(iii) Government
(iv) Capacity to enter into relations with other States

22

1 0
PERMANENT POPULATION:
A permanent population is another necessary requirement for statehood. There are no criteria relating to
the size of the population: Andorra with its 68,000 inhabitants is as much a State as India, which now has
currently well over one billion inhabitants. Neither does international law set any requirements about the
nature of the population: the population may largely consist of nomads (such as in Somalia), it may be
ethnically (relatively) homogeneous (such as in Iceland) or very diverse (such as in the former Soviet
Union), it may be very poor (such as in Sierra Leone, where in 2000 nearly 70 percent of the population
lived below the poverty line) or it may be very rich (as in many Western States). It should also be noted
that the requirement of a permanent population does not relate to the nationality of a population: it merely
requires that States have a permanent population. According to Brownlie it connotes a stable community
with a physical basis.
DEFINED TERRITORY:
The development of the State is closely linked to the ability to exercise effective control over a defined
territory. However, the existence of border disputes is not an obstacle to attaining statehood in
international law. There is no rule stating that the boundaries of a State should be undisputed or
unambiguously established. Israel for example, was admitted to the United Nations on 11 May 1949,
despite its ongoing territorial disputes with the Arab States. According to O'Keefe there is no limit to size.
Undefined boundaries will not matter as long as the core territory is defined. With regard to the size of the
territory it can be stated that no specific requirements exist: the international community of States consists
of both micro-States, such as Liechtenstein and San Marino and very large States such as Canada or
Russia.
GOVERNMENT:
The third requirement for statehood, is the existence of a government capable of exercising
independent and effective authority over the population and the territory. The importance that is attached
to the criteria of independence and effectiveness is understandable considering the predominantly
decentralized nature of international law. Since international law lacks a central executive body, with the
power to enforce compliance with international obligations, compliance with international obligations
must often be guaranteed by the States themselves. A State must therefore be able to the effectively and
independently exercise its authority within its borders. According to Brownlie the existence of effective
government, with centralized administrative and legislative organs, is the best evidence of a stable
political community.
CAPACITY TO ENTER INTO RELATIONS WITH THE OTHER STATES:
It can be said that the capacity to enter into full range of international relations can be a valuable
measure, but capacity or competence in this sense depends in part on the power of the government,
without which a State cannot carry out its international obligations. The ability of the government to
independently carry out its obligations and accept responsibility for them in turn greatly depends on the
previously discussed requirements of effective government and independence. Moreover, a State cannot
enter into relations with other States if it is not recognized. Consequently, it cannot be recognized as a
State. According to Shaw the concern is the lack of competence to enter into legal relations, and the
essence of such a capacity is independence.

23

1 0
KINDS OF STATE AND NON-STATE ENTITIES
Following are different kinds of state and non-state entities:-
1. Confederation
Confederation is formed by independent States. Under international law confederation has a no
international personality. The aim and objective of confederation is to establish a sort of co-ordination
among the States, leaving states independent in their internal and external matters. But, under
international law, these States are not international persons.
2. Federal state
Generally, a federal State is formed by the merger of two or more than two sovereign States. Under
international law, a Federal State is an international person. The Federal State exercises control and
has rights not only over the member-states but also over the citizens of the states. In a Federal State,
generally there is a division of powers between the central authority and the States through a
contribution.
3. Condominium
When two or more States exercise rights over a territory, it is called Condominium. “A Condominium
exists when over a particular territory joint dominion is exercised by two or more external powers”.
New Hebrides is a good example of a Condominium. Both England and France exercised control and
had rights over the territory of New Hebrides between 1914 and 1980. Thus, there is a joint
sovereignty of France and Britain over New Hebrides. Other examples of condominium are those of
Austria and Prussia over Schleswig- Holstein and Lanenburg from 1864 till1866, of great British and
Egypt over Sudan from 1898 to 1955, and of Great British and France over Islands of Canada and
Endenbury after 1939. In respect of rivers, gulfs or bays also sometimes the idea of condominium is
used.
4. Vassal state
A State which is under the suzerainty of another State is called a vassal State. Its independence is so
restricted that it has no importance under international law. As remarked by Starke, “Vassal State is
one which is completely under the suzerainty of another State. Internationally its independence is so
restricted as scarcely to exist at all. In its foreign affairs, the Vassal State possesses no power and all
its foreign policies are governed by the State of which it is a Vassal State.
5. Protectorate state
According to Starke, “Although not completely Independent, a Protectorate State may enjoy a
sufficient measure of sovereignty to claim jurisdictional immunity in the territory of another State. If
may also still remain a State under International law.” In the case of lonian ship, The Court held that a
State may remain international person even though it is dependent upon some other State.
6. Micro states-
A microstate or ministate is a sovereign state having a very small population or very small land area,
and usually both. As the meaning of neither “state" nor "very small" is clear, the recent attempts to
define microstates focus on identifying political entities with unique qualitative features linked to
their geographic or demographic limitations. According to a qualitative definition, microstates are:
"modern protected states, i.e. sovereign states that have been able to unilaterally depute certain
attributes of sovereignty to larger powers in exchange for benign protection of their political and

24

1 0
 economic viability against their geographic or demographic constraints." In line with this and most
other definitions the examples of microstates include: Liechtenstein, Monaco, San
Marino, Niue and the Federated States of Micronesia.
The smallest political unit recognized as a sovereign state isVatican City, with 842 citizens as of July
2013 and an area of only 0.44 km. However, some scholars dispute qualifying Vatican as a state
arguing that it does not meet the "traditional criteria of statehood" and that the "special status of the
Vatican City is probably best regarded as a means of ensuring that the Pope can freely exercise his
spiritual functions, and in this respect is loosely analogous to that of the headquarters of international
organisations.
Microstates are distinct from micronations, which are not recognized as sovereign states. Special
territories without full sovereignty, such as the British Crown Dependencies, The Chinese Special
Administrative Regions and overseas territoriesof Denmark, France, the Netherlands, Norway and
the United Kingdom, are also not considered microstates.
Most scholars identify microstates by using a quantitative threshold and applying it to either one
variable (such as territory or population size) or a composite of different variables. While it is agreed
that microstates are the smallest of all states, there is no consensus on what variable (or variables) or
what cut-off point should be used to determine which political units should be labelled as
"microstates" (as opposed to small states or "normal" states). While employing simple quantitative
criteria may seem straightforward, it can also be perceived as potentially problematic. According to
some scholars the quantitative approach to defining microstates suffers from such problems as
"inconsistency, arbitrariness, vagueness and inability to meaningfully isolate qualitatively distinct
political units.
In response to the problems associated with the quantitative definitions of microstates, some
academics have suggested finding states with unique features linked to their geographic or
demographic smallness. Newer approaches have proposed looking at the behaviour or capacity to
operate in the international arena in order to determine which states should deserve the microstate
label. Yet, it has argued been that such approaches could lead to either confusing microstates with
weak states or relying too much on subjective perceptions.
Microstates as modern protected states
In order to address both the problems with quantitative approaches and with definitions based on
qualitative features, it has been argued that a useful and meaningful to isolate microstates from other
types of states, would be to see them as "modern protected states". According to the definition
proposed by Dumienski (2014): "microstates are modern protected states, i.e. sovereign states that
have been able to unilaterally depute certain attributes of sovereignty to larger powers in exchange for
benign protection of their political and economic viability against their geographic or demographic
constraints. Adopting this approach permits limiting the number of microstates and separating them
from both small states and autonomies or dependencies. Examples of microstates understood as
modern protected states include such states as: Liechtenstein, San Marino, Monaco, Niue, the Cook
Islands or Palau.
Rights and Duties State:
Being the most prominent among the different subjects of international law, a State is by definition
endowed with the capability of bearing rights and duties under international law. With regard to the
development of written legal instruments dealing with fundamental rights and duties of States, several

25

1 0
significant results were achieved during the 20th century. The Montevideo Convention of 1933
constituted one of the first examples of insertion of ‘rights and duties’ of States in a multilateral legally
binding instrument. The Charter of the Organization of American States (‘OAS Charter’), adopted in
1948, contained a full Chapter devoted to ‘Fundamental Rights and Duties of States’. In 1949, as a part of
the report covering the work of its first session, the International Law Commission, submitted to the
General Assembly the text of a ‘Draft Declaration on Rights and Duties of States’. It comprised 14
articles detailing four rights (independence, jurisdiction, equality, and self-defence) and ten duties, to
peacefully settle disputes with other States, to refrain from resorting to war as an instrument of national
policy, to refrain from giving assistance to any State action in violation of the duty not to resort to war, to
carry out international obligations in good faith, and to conduct relations with other States in accordance
with international law and with the principle that sovereignty of each State is subject to the supremacy of
international law.
1. Rights of States
(i) Right of Independence: The notion of independence was scrutinized as early as 1931 in the context
of the advisory opinion dealing with the customs system established at that time between Germany
and Austria. The view was taken by the Permanent Court of International Justice that an entity that
cannot fulfil the test of legal independence shall not be considered as having an international legal
status altogether. Article 1 of the Draft Declaration lays down that every State has the right to
independence and hence to exercise freely, without dictation by any other State, all its legal powers,
including the choice of its own form of government. Several international judicial decisions have
tackled the issue of independence. These include, for example, the PCIJ’s judgment in the Lotus
Case.
(ii) Right of Sovereignty: Sovereignty is closely related to independence. As a matter of fact, the two
concepts have sometimes been interpreted as different sides of the same attribute. As an attribute of
the State, sovereignty is generally thought to require the presence of a community, consisting of a
territory and a population governed by an organized political authority. According to long-standing
international law practice, ‘sovereignty in the relations between States signifies independence’ and
‘independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of
any other State, the functions of a State’. Among the implications of the right to sovereignty, is
therefore the corresponding prohibition to intervene in matters within the domestic jurisdiction of
other States. Article 2 of the Draft Declaration lays down that every State has the right to exercise
jurisdiction over its territory and over all persons and things therein, subject to the immunities
recognized by international law.
(iii) Right to Equality: According to the right to equality (or equal treatment), all States occupy the
same position within the international community, have the same legal capacity, and bear equal
rights and duties regardless of their size or power. The right has been enshrined, inter alia, in the
Friendly Relations Declaration, the 1963 OAU Charter and the 2000 Constitutive Act of the
Organization of African Unity. Article 5 of the Draft Declaration lays down that every State has the
right to equality in law with every other State.
(iv) Right to Self-Preservation: There is widespread consent that the right of every State to self-
preservation and the corresponding duty not to prejudice the preservation of other States is to be
included among the ‘basic’ or ‘fundamental’ rights. Such a right, according to early commentators,
developed as a right to preserve, maintain, and protect a State’s independence, sovereignty, and
equality. It is for this reason that some authors regard it as a mere corollary of the preceding rights.
Others, on the contrary, see it as the only truly fundamental right of States. The existence of a

26

1 0
 ‘fundamental right to survival’ has been confirmed by the ICJ in a recent advisory opinion relating to
the legality of the threat or use of nuclear weapons, which recognized the fundamental right of every
State to survival as a basis for admitting its right to resort to self-defence. Article 12 of the Draft
Declaration lays down that every State has the right of individual or collective self-defence against
armed attack.
Over the years, several other rights, and corresponding duties, have been considered of a ‘fundamental’
nature in addition to the ones referred to above. These include, for example, the right to come into
existence, the right to mutual commerce, the right to establish relationship with other States, the right to
peaceful coexistence, and the right to security.
Duties of States:
Article 3 of the Draft Declaration lays down that every Stale has the duty to refrain from intervention in
the internal or external affairs of any other State.
Article 4 - Every State has the duty to refrain from fomenting civil strife in the territory of another State,
and to prevent the organization within its territory of activities calculated to foment such civil strife.
Article 6 - Every State has the duty to treat all persons under its jurisdiction with respect for human rights
and fundamental freedoms, without distinction as to race, sex, language, or religion.
Article 7 - Every State has the duty to ensure that conditions prevailing in its territory do not menace
international peace and order.
Article 8 - Every State has the duty to settle its disputes with other States by peaceful means in such a
manner that international peace and security, and justice, are not endangered.
Article 9 - Every State has the duty to refrain from resorting to war as an instrument of national policy,
and to refrain from the threat or use of force against the territorial integrity or political independence of
another State, or in any other manner inconsistent with international law and order.
Article 10 - Every State has the duty to refrain from giving assistance to any State which is acting in
violation of article 9, or against which the United Nations is taking preventive or enforcement action.
Article 11 - Every State has the duty to refrain from recognizing any territorial acquisition by another
State acting in violation of article 9.
Article 13 - Every State has the duty to carry out in good faith its obligations arising from treaties and
other sources of international law, and it may not invoke provisions in its constitution or its laws as an
excuse for failure to perform this duty.
Article 14 - Every State has the duty to conduct its relations with other States in accordance with
international law and with the principle that the sovereignty of each State is subject to the supremacy of
international law.

27

1 0
 RECOGNITION
Recognition is a unilateral voluntary act of states, according to which these state consider the other
state as a subject of international law and have intend to maintain official relation. Hans Kelsen says that
recognition of a state is an act by which another state acknowledges that the political entity recognized
possesses the attributes of statehood. In general, recognition is not an obligation, but it is a right of the
state. It must be evidently expressed. It could be done by some certain of states. So it means that there is
no obligation to recognize new-established state. The recognition of state can help for building up and for
developing relations with new states. And the recognition of state is very important for the establishment
of consular and diplomatic relations.
Meaning and Definition
The recognition of a state under international law is a declaration of intent by one state to
acknowledge another power as a "state" within the meaning of international law. Recognition constitutes
a unilateral declaration of intent. It is entirely at the discretion of any state to decide to recognize another
as a subject of international law. Recognition also constitutes a declaration by a state that in its opinion
the country it has recognized must be regarded as a "state" within the meaning of international law, and
hence also as a subject of international law.
Is Recognition a Political act or a Legal act?
Judge Hersch Lauterpacht considered that recognition of a State was a legal act. He said that when the
state fulfils all the essentials of statehood then it becomes the duty of other state to recognise it.
According to Starke, Lauterpacht’s view is not supported by state practice.
Acceptance of this view would mean that the new state has the right to recognized by other states. Since
International Law does not provide any such right to the new state, therefore existing state does not have
any legal duty to recognise the state. Granting or withholding recognition depends upon the discretion of
the state.
Another view is that, recognition is a political act. Recognition of a state depends upon the discretion of
the state, and therefore is optional.
Is Recognition Obligatory?
According to Judge Hersch Lauterpacht, when a state possess the four essential qualities of statehood, it
becomes the duty of other state to recognise it. But in practice it is not so, it is not obligatory for the state
to recognise another state and refusal to recognise will not amount to violation of International Law.
There is generally a practice to recognise a new state though it is not a duty.
THEORIES OF RECOGNITION
There are two principal theories as to the nature, function and effect of recognition:
(i) Constitutive Theory: According to this theory, it is the act of recognition alone which
creates statehood or which clothes a new government with any authority or status in the
international sphere. Anzilloti, Oppenheim, etc. are the chief exponents of constitutive theory.
According to Openheim a state is, and becomes, an international person, through,recognition
only and exclusively.
(ii) Declaratory Theory: According to this theory, statehood or the authority of a new
government exists as such prior to and independently of recognition. The act of recognition is
merely a formal acknowledgment of an established situation of fact. The chief exponents of

28

1 0
 this theory are Brierly, fisher etc. Brierly has remarked, the granting or recognition to a new
State is not a 'Constitutive' but a 'Declaratory' act. A state may exist without being recognized
and if it exists in fact, then whether or not, it has been formally recognized by other States it
has a right to be treated by them as a State.
Actually, the two theories are of little assistance in explaining recognition or determining the status of
non-recognized entities in practice. In addition, the practical differences between these two theories are
not significant. Under the declaratory theory, the decision whether an entity satisfies the criteria of
statehood is left to other States, and the granting formal recognition to another State, which is a unilateral
act, is left to the political discretion of States. On the other hand, the significance of the constitutive
theory has diminished because of the obligation imposed on States to treat an entity that satisfies the
criteria of statehood as a state. Moreover, the States practice regarding recognition shows that States
follow a middle position between these two theories.
In practice, however, the existence of a state is not dependent on whether it has been recognized as such.
The sole determining factor is whether or not the elements of statehood under international law (state
people, state territory, state power) are actually present in the specific case. Realistically, however, an
entity cannot function as a state unless at least a certain number of states recognize it as such. In recent
state practice recognition has often been made contingent on the fulfilment of certain conditions, for
example compliance with the UN Charter or observance of the rule of law, democracy and human rights.
From the viewpoint of international law, however, these are not criteria for recognition but conditions of a
political nature, formulated in relation to the establishment of diplomatic relations. It has been urged that
states are subject to a duty under international law to recognise a new state or a new government fulfilling
the legal requirements of statehood or of governmental capacity. There is no general acceptance of the
existence of the duty or the right mentioned.
MODES OF RECOGNITION
1) Express Recognition
The declaration or notification by an existing state which purports the intention to recognize a newly born
state, the recognition is said to be express recognition. In other words, when a formal and express
declaration or statement is made and published or sent to the opposite party, the recognition is said to be
express recognition.
2) Implied Recognition
When the existing state shows its intention of recognition of a newly born state by some acts, the
recognition is said to be implied recognition. In other words, in case of implied recognition no formal
statement or declaration is to be made, rather the intention of recognition is to be collected by the acts or
transactions of the existing state. So, if such acts purport intention of recognition, it is said to be implied
recognition.
Types of implied recognition:
a) Unilateral acts: When a state enters into a bilateral treaty or establishes diplomatic relations with an
unrecognised state, it may be inferred that the former has recognised the state.
b) Collective acts: When an unrecognised state participates in a multilateral treaty, the other participants
of the treaty are regarded to have recognised the new state if the intention has been indicated. In the
absence of an unequivocal intention to the contrary, no recognition is implied.

29

1 0
 3) Conditional Recognition:
The grant of recognition by an existing state to a newly born state stipulated on fulfilment some
conditions in addition to the requirements of statehood is said to be conditional recognition. As for as, the
recognition is concerned it is itself conditioned with the fulfilment of the essentials of statehood, that is to
say, the new state must occupy some territory, has some population, government and sovereignty. If these
requirements have been complied with by the new state, then that should be recognized by existing states.
But as far as, the recognition is concerned it is usually based on some political considerations. So, in the
pursuance of these considerations the existing states sometimes declare recognition but stipulated with
certain other conditions for the recognized state to be fulfilled.
Criteria of Recognition
Montevideo Convention stipulates that the states as subjects of international law should posses the
following qualifications;
• Defined territory
• Permanent population
• Government
• Capacity of to enter into relations with other states
A state in order to be recognized by other states needs first of all to have a defined territory with a clear
lines and borders. This is very important for any new-established state, because territory is very important
for security issue and for the development of the state. There must be a reasonably stable political
community and this must be in control of a certain area.
Permanent population is also very important because, a state must have population which will develop
the political socialization process and these people would participate on behalf of their government and
state. Population is important, because in the absence of the physical basis for an organized community, it
will be difficult to establish the existence of a state
Government is needed, because the territory and the population is needed to protect and represent the
government in internal and international affairs.
Government also is very important, because it is the main body which enters negotiation with other
states. The existence of effective government, with centralized administrative and legislative organs can
lead to the stable political community.
After having a defined territory, population, and the government which rules and protects the people
and borders, a state need to enter negotiations with other states. Because the major need of the state is to
make negotiations and establish relations with other states for farther developments. On the other hand, it
can be very useful, because a new-established state can prove that she really is interested in maintaining
good relations and she has no interest about other territories. The criteria of independence is represented
by the requirement of capacity to enter into relations with other states
Kinds of recognition:
Recognition may be of two modes:
1. De facto recognition-
When an existing state considers that the new state has not acquired sufficient stability, it may grant
recognition to the latter provisionally which is termed de facto recognition. De facto recognition is
granted normally when the recognizing state considers that the state although has legitimate government,

30

1 0
its effectiveness and continuance to govern the territory is doubtful. The grant of de facto recognition
shows willingness on the part of the recognizing state to establish relationship with the new state, but the
willingness is given provisionally, i.e., subject to the fulfillment of all the true purpose of de facto
recognition is a declaration that the body claiming to be the government of an established or a new state
actually wields effective authority, without, however, satisfying other conditions of full de jure
recognition. Should these remaining conditions be forthcoming, full recognition (de jure) will be granted
eventually. Thus, de facto recognition may be regarded as a preliminary step towards de jure recognition.
Example: The Soviet Union was recognized by Great Britain de facto on March 16th 1921 and later de
jure on February 1st 1924. If the existing states, after granting de facto recognition, later choose to
recognize de jure, the effect of the latter is given from retrospective date, i.e., from the date when de facto
recognition was granted.
2. De jure recognition-
When an existing state considers that the new state is capable of possessing all the essential attributes
of statehood with stability and permanency and it commands the general support of the population, the
recognition granted is known as de jure recognition. De jure recognition is final. It may be given with or
without prior to de facto recognition. When a new state comes into existence peacefully and
constitutionally, de jure recognition may be granted directly.
Distinction between De Facto and De Jure Recognition
Whatever the basis for the distinction between de jure and de facto recognition, the effects of the two
types are mostly the same. Nevertheless, there are certain important differences between these two types,
which are:
1. Only the de jure recognized State or government can claim to receive property locally situated in the
territory of the recognizing State.
2. Only the de jure recognized State or government can represent the old State for the purposes of State
succession or with regard of espousing any claim of its national for injury done by the recognizing
State in breach of International Law.
3. The representatives of the de facto recognized state or government may not be entitled to full
diplomatic immunities and privileges.
Whatever the type of recognition, once given may in certain circumstances be withdrawn. Actually, this
is more easily done with regard to de facto recognition than to de jure recognition, because of the nature
of the former one, which is temporary. De facto recognition is intended to be a preliminary acceptance of
political realities and may be withdrawn in accordance with a change in political conditions.
When a de facto government loses its effective control over the country, the reason for recognition
disappears and it may be withdrawn. De jure recognition, on the other hand, because it is intended to be
generally a definitive act, it is more difficult to be withdrawn. Because recognition is essentially a
political act, no matter how circumscribed or conditioned by the law, a State has a discretionary power to
determine whether a particular situation justifies a withdrawal of recognition and to take such action if it
serves its national interests.

31

1 0
 De facto recognition De jure recognition

De facto recognition is conditional and

De jure recognition is final.
Provisional.

If the conditions are not fulfilled by

De jure recognition cannot be withdrawn once given it is
the concerned state then it is
final.
withdrawn.

To maintain political relation in this The willingness is to be expressed for maintenance of

recognition is not necessary. political relations.

De facto recognition is the first step towards

De jure recognition is the final step towards recognition.
de jure recognition.

In Luther v. Sagor,1921 “It was held that there is no distinction between de facto and de jure recognition
for the purpose of giving effect to the internal acts of the recognized authority.”
Bank of Ethopia v. National Bank of Egypt and Liquori, 1937, The court held that in view of the fact
that the British government granted recognition to the Italian Government as being the de facto
government of the area of Abyssinia which was under Italian control, effect must be given to an Italian
decree in Abyssinia dissolving the plaintiff bank appointing liquidator.”
Legal effects of recognition-
Oppenheim says the following are the consequences of recognition:
i. The recognized state can enter into diplomatic relation and treaties.
ii. The recognized state has a right to sue in the courts of recognizing state.
iii. The recognized state gains immunity for itself and its property from the jurisdiction of the court
of law of the recognizing state.
iv. In case of recognizing of a new government to an old state the previous treaties signed by its
predecessor automatically come into force.
v. The recognizing state becomes subject to various obligation under international law in connection
with the recognized state.
vi. The recognized state becomes bound to respect international obligation in general and with
respect to the recognizing state in particular.
vii. The recognized state is entitled to the succession and possession of the property situated in the
territory of the recognizing state.
Example- State A deposited some gold in state B. there is rebellion in state A and a new parallel
government is established. State B grants de jure recognition to the new government. The new
government claims the gold deposited by the government.
International effects of recognition:
Apart of all the theoretical arguments involving the constitutive and declaratory theories, it is accepted
that recognition of a State or government is a legal acknowledgement of factual situations. Recognition

32

1 0
entails the recognized State the enjoyment of rights and the subjecting to duties prescribed in International
Law for States.
Recognition of a State by another State does not lead to any obligation to establish diplomatic relations or
any other specific links between them. Nor does the termination of diplomatic relations automatically
lead to withdrawal of recognition. These remain a matter of political discretion.
It should not be assumed that non-recognition of a State or government would deprive that entity rights
and duties under International law. It is well established in International Law that the political existence
of a State is independent of recognition by other States, and thus an unrecognized State must be deemed
subject to the rules of International Law. Unrecognized State is entitled to enjoy certain rights and be
subject to many duties. It has the rights to defend its integrity and independence, to provide for its
conservation and prosperity and consequently to organize itself as it sees fit. The exercise of these rights
by unrecognized
State has no other limitation than the exercise of the rights of other States according to International Law.
Moreover, unrecognized State is subject to most of the rules of International Law, such as those related to
the law of wars, and is bound by its agreements. Non-recognition, with its consequent absence of
diplomatic relations, may affect the unrecognized State in asserting its rights against unrecognizing
States, or before their national courts. However, non-recognition will not affect the existence of such
rights, nor its duties, under International Law.
Internal Effects of Recognition:
Recognition entails the recognized State the rights to enjoy privileges and immunities of a foreign
State before the national courts, which would not be allowed to other entities. However, because
recognition is essentially a political act reserved to the executive branch of government, the judiciary
branch must accept the discretion of the executive branch and give effect to its decisions. The national
courts can only accept and enforce the legal consequences that flow from the act of recognition. They can
accept the rights of a foreign government to sue, to be granted immunities or to claim other rights of a
governmental nature. They can give effect to the legislative and executive acts of the recognized State.
In the case of non-recognition, national courts will not accept such rights. In this context, recognition is
constitutive, because the act of recognition itself creates the legal effects within the domestic jurisdiction
of a State.
ARANTZAZU MENDI CASE
Principle: When there is effective control over the territory of a government of de fecto (recognition) a
foreign court can not apply its jurisdiction over its matter.
Fact: During the Spanish Civil War, the UK recognized de jure the Republican government of Spain, but
also recognized de facto the rebel government (the Nationalists). Both governments sued in British courts
to control the Spanish-flagged vessel Arantzazu Mendi, when arrived in a British port.
Issue: whether the republican government shall have the right to possess the ship.
Decision: It was held: A de facto government has control over state assets within the territory it controls. A
de jure government has control even over state assets abroad.
Reasoning: It was held by the House of Lords that since the Nationalist was a de-facto recognized sovereign
ineffective contract over a large portion of Spain, it was immune from the jurisdiction of the local courts of
other sovereign.

33

1 0
RECOGNITION OF GOVERNEMENT
Government is an essential of statehood. By government it is meant the administrative and controlling tool
of a state. Once a state comes into being, its government may change from time to time. If the change of
government takes place in ordinary political life it the existing states are not required to recognize the new
government. But sometimes the change of a government takes place as a result of a revolution. In such a
case, it becomes necessary to ascertain that whether this new revolutionary government is;
i. Capable of having sufficient control over the people of the territory or not, and
ii. Willing to maintain international responsibilities and duties or not. So, if the existing states
consider that this new government is capable of fulfilling the above conditions then the new
government may be recognized.
The recognition of new regime means that the existing states are satisfied that the new government has a
capacity to control and is willing to perform international duties and obligation. The recognition may be
either de facto or de jure. And the intention may be expressed either by sending a message to the authority
of the new government or to declare the same in a public statement. The modern practice is seemed to reject
the doctrine of recognition of new government. Now, the some states as USA and UK and others have
adopted a course to give assent to the above pre conditions for a government merely by extending relation
or cessation of relations with such government. Non-recognition of government doesn’t affect the
recognition of a state. A state remains recognized the only consequence of the non-recognition of the new
revolutionary government is the suspension of the bilateral relations between the existing state and the new
government. And as soon as the said government is to be replaced by any other government, if recognized
the relations shall be recontinued on the same pattern as were with the previous government of the
revolutionary one. The consequence of the recognition of a new government means to keep the relations in
the same manner as were with the previous government.
RECOGNITION OF BELLIGERENCY
Belligerency is the treatment to consider a civil war as a real war between two rival powers by other existing
states. The recognition by the existing states of the rebels in case of civil war in a belligerent state is said to
be recognition of belligerency. In other words when a state goes in a state of belligerency where the rebels
have a considerable control over a substantial territory of nation, the rebels may be recognized by the
existing state. Such recognition is said to be recognition of belligerency.
Conditions: – There are following conditions by the movement of rebels to recognize by other states:
i. That the movement shall be of a general character.
ii. That rebels shall have in possession a substantial part of the national territory.
iii. That they are giving respect and bind themselves for the warfare laws and other international duties.
iv. That they have a proper force. If the above conditions have been fulfilled by rebels then they may
recognized by other existing states, and shall enjoy the international rights.
RECOGNITION OF INSURGENCY
The recognition by existing states the de facto authority over a large territory of the rebels is said to be
insurgency. In case of insurgency the rebels or the insurgents occupy a large part of the national territory
which was formerly governed by the parent government. And if they are capable to control over that
occupied part then the existing states may recognize it.
Prior to recognize the insurgency it is necessary for the recognizing state to satisfy the following conditions:

34

1 0
 i. When insurgents occupies a considerable parent state’s territory,
ii. They have a support from the majority of the citizens of the parent state,
iii. They are acting under a proper command and,
iv. They have good control over the occupied territory.
When the in case of an insurgency the above requirements have been complied with then, it is on the
discretion of the existing state whether to recognize it or not. The recognition of an insurgency is the first
step towards the diplomatic relations with their government. But if the insurgency did not succeed in their
attempt after recognition by the any existing state, the recognition shall be deemed to have been
extinguished.
RECOGNITION OF GOVERNMENT IN EXILE
When rebellions take possession of a major portion of a country and establish their government, the
government of the said state is said to be a government in exile. Government of that state are established
temporarily within the territory of some friendly state. The occupation of the territory by the enemy does
not imply that the government in exile does not have effective control of the territory. Such a government
continues the recognition as the government of the occupied territory as long as it continues its efforts to
regain control over the lost territory, if it seems like it has finally failed to regain control then it would lose
its right to be recognised.
For example: the mainland of China was under the communist government and Chiang Kai Shek established
exile government in Taiwan, he claimed that he was the legal government of all China and most of the
governments accepted the Chiang Kai Shek’s government. It was given permanent membership in4
Security Council in UN.
RETROSPECTIVE EFFECT OF RECOGNITION
Jurists are of the view that Dejure recognition has retrospective effect. In other words, after a state is
recognised its acts done prior to recognition are also recognised. When a state recognises a state it often
recognises the past acts of such a state with a view to establish friendly relation with that state.
CONCLUSION
Recognition of any state means, that state become a member of International community and acquires
International entity. The state becomes entitled to all rights and special rights as a member of the
International community. In the absence of recognition any state cannot establish her diplomatic and
political relations with any states and also unable to sign any treaty agreement with any state.

35

1 0
 STATE TERRITORIAL SOVEREIGNTY
INTRODUCTION
As stated in a previous chapter dealing with a State, a territory is one of the fundamental elements of
statehood. Without a territory, an entity cannot be a State. The notion that a State occupies a definite
portion of the earth within which it exercises, subject to the limitations of International Law, its exclusive
authority to the exclusion of other States lies at the basis of International Law. The exercise of such a
supreme authority by a State over its own territory is known in International Law as “territorial
sovereignty”.
Notably, the concept “territorial sovereignty” is confused with the concept “jurisdiction”. Some have
used the two concepts interchangeably. However, there is a distinction between the two concepts.
Territorial sovereignty signifies ownership and possession of a territory, which entitles a State to exercise
its authority and jurisdiction over the territory. Jurisdiction justifies competence to affect peoples,
properties and events within a territory.
Because “territorial sovereignty” and “jurisdiction” are two legal concepts connected to territory and
can only be understood in relation to territory, therefore, in the following two sections “territorial
sovereignty” and modes of acquiring territory are dealt with. While “jurisdiction” will be the subject of
the next chapter.
EXTENT OF TERRITORIAL SOVEREIGNTY
Every state has authority over its people and property; it can make law for them and enforce it. But to
what extent does this authority extend, where does a state territory end?
The customary international law recognises the state territory as follows:
1) Land situated within the boundaries of the state recognised by international law
2) National Waters
3) The maritime coastal belt or territorial sea
4) A ship bearing the flag of the state
5) Ports
6) Airspace
7) Subsoil under earth
LAND TERRITORY:
Land within its boundaries, boundary is a line which divides one state from another. It is also called
frontiers. It is very important that the state boundary is defined otherwise there will be frequent disputes.
It can either be settled by treaties or an award by tribunals.
There are two types of boundaries: Natural Boundary (rivers, mountains, forest etc) and Artificial
Boundary that is constructed for the purpose of dividing territories like wall, posts, pillars, trenches etc.
The limits of the boundaries may be marked by the state themselves or by international agencies.
Example: demarcation of boundary done between Iran & Kuwait by a commission set up by the UN.

36

1 0
NATIONAL WATERS:
1. RIVERS:
Rivers within the state belongs to the state. Rivers are of four types:
i. River which starts and ends within the same state
ii. River which separates two states as boundary
iii. River which flows through two or more states – It is known as Plurilateral, Multilateral or
Non National River
iv. Multilateral river which flows into the sea – it is called International River
2. CANALS
Canals are human made channels or artificial water ways for water convenience to service water transport
vehicles. Example: The Corinth Canal although is kept open to vessels, is exclusively within the control
of Greece.
3. STRAITS
It is naturally formed narrow passage of water connecting two seas or two other large areas of water. All
straits which are not six miles wide are part of Costal State, and those which are more than six miles wide
are called International Strait. Presently law relating to states are codified by UN convention in the law of
Sea 1982.
4. BAYS
Bay is a broad inlet of sea, where the land curves within. It is a receded coastal body of water that directly
connects to larger main body of water such as an ocean.
MARITIME BELT OR TERRITORIAL SEA
Article 1 of Territorial Sea Convention provides that the sovereignty of the state extends beyond its land
territory to a part of the sea which is adjacent to the coastal state. These waters are contained in a certain
zone called the Maritime Belt or Territorial Sea. Territorial Sea therefore maybe defined as that part of the
sea which is adjacent to the coast and over which International Law permits the coastal states to exercise
sovereignty subject only to a general right of innocent passage on the part of foreign shipping. The
breadth of the territorial sea is 12 nautical miles measured from the base line.
SHIP BEARING FLAG OF THE STATE
The sea is not under the authority or does not belong to any state. All nations have equal rights of
navigation over the sea at the time of peace. However, the state can exercise authority over the high seas
on the following matters:
i. Its vessel and persons on it
ii. Foreign vessel wrongfully flying its flag
iii. Right of visit and search of natural vessel
iv. Hot pursuit on open sea in peace time
v. Piracy
Port
A port which is part of international water is fully part of state territory as land itself. Allowing other
ships in their port is an old custom and varies according to the practice of different states. Foreign vessels

37

1 0
entering port are subject to the local jurisdiction of the state but a vessel in distress which has a right to
seek shelter in foreign port is immune from local jurisdiction.
AIR SPACE
Air Space has been defined by the Polish jurist Prof. Berezowski as the place in which international
relations in the field of aviation develop in the space directly encircling the earth, filled to a greater or
lesser extent with air and bearing the name air space. A state has sovereignty over the air space above its
territory. It follows that the air space over the high seas and over the unoccupied territories are absolutely
free from the jurisdiction of any state.
SUBSOIL UNDER EARTH
The subsoil beneath the territorial land and water is of importance on account of telegraph and telephone
wires and also on account of the working of the mines and the building of tunnels. Oppenheim has rightly
stated that the subsoil on an unlimited depth belongs to state which owns the territory on the surface and
the territorial waters appurtenant to the territory of the states.
TERRITORIAL SOVEREIGNTY
Sovereignty in regard to a territory is known as territorial sovereignty. Territorial Sovereignty is the
right of a State to exercise over its own territory, to the exclusion of any other States, the functions of a
State. It has a positive and a negative aspect. The first aspect relates to the exclusivity of the right of the
State with regard to its own territory, while the second aspect refers to the obligation to protect the rights
of other States.
A State exercises its territorial sovereignty within its boundary. Boundary is an imaginary line that
delineates the territorial limit of a State. Boundaries are of three dimensions. They include the State land
and the maritime domain of its internal waters and territorial sea, the airspace and its subsoil. They are
either natural topographical, having physical distinguishable features such as mountains, rivers or lakes,
or imaginary and artificial such as lines of attitude and longitude, surveyor lines or posts. Both types have
equal legal effects and usually based upon treaties or historical title. The sovereignty of a coastal State
extends, beyond its boundaries, over its contiguous zone, over its continental shelf and over its exclusive
economic zone. Moreover, the sovereignty of State whether coastal or land-locked extends over its
national vessels. The sovereignty of a State extends also to its national aircrafts.
The right to territorial sovereignty enables a State to exercise the fullest measures of sovereignty
powers over its land territory, large measures over its territorial waters and air space, and smaller
measures over its continental shelf and adjacent area. In addition, it enables a State to exercise
sovereignty over vessels and aircrafts that fly its flag or carry its nationality, which are treated as its
territory. Corollary to the rights generated from territorial sovereignty, there are duties imposed upon a
State. These duties involve the obligation to protect within its territory the rights of other States, together
with the rights that each State may claim for its nationals in foreign territory.
Many treaties and conventions have been concluded to regulate State sovereignty over land, sea,
airspace and outer space. Over airspace and outer space, there are the 1944 Convention on International
Civil Aviation (the Chicago Convention), the 1963 Treaty Banning Nuclear Weapon Tests in the
Atmosphere, in Outer Space and under Water, and the 1967 Treaty on Principles Governing the Activities
in the Exploration and Use of Outer Space including the Moon and Other Celestial Bodies (the Outer
Space Treaty).

38

1 0
 Over the sea, there is the 1982 Convention on the Law of the Sea, which replaced the 1956
Conventions related to the Territorial Sea and the Contiguous Zone, the High Seas, the Continental Shelf,
and Fishing and Conservation of living Resources of the High Seas. In Addition, there is the 1959
Antarctica Treaty.
Since the rights generated from the concept of territorial sovereignty can only be exercised in relation
to a territory, it is necessary to know how a territory can be acquired.
ACQUISITION OF TERRITORY
The international rules related to territorial sovereignty are rooted in the Roman Law provisions
governing ownership and possession. In addition, the classification of the different modes of acquiring
territory is a direct descendant of the Roman rules dealing with property.
Territory is the space within which the State exercises sovereign authority. Title to territory is
acquired either through the claim of land not previously owned (terra nullius) or through the transfer of
title from one State to another. Title acquired in the first category is called original title, while in the
second category is called derivative title. Modes of original acquisition of territory include occupation,
prescription and accretion. Derivative modes include cession (voluntary or forcible), and conquest and
annexation. All these modes are dealt with in the following.
(1) Occupation
Occupation is an original mode of acquisition by a State of a title to a territory. It implies the
establishment of sovereignty over a territory not under the authority of any other State (terra nullius)
whether newly discovered or abandoned by the State formerly in control (unlikely to occur).
For the title acquired through occupation to be final and valid under International Law, the presence
and control of a State over the concerned territory must be effective. Effectiveness requires on the part of
the Claimant State two elements: an intention or will to act as sovereign, and the adequate exercise of
sovereignty. Intention may be inferred from all the facts, although sometimes it may be formally
expressed in official notifications to other States. Adequate exercise of sovereignty must be peaceful,
real, and continuous. This element of physical assumption may be manifested by an explicit or symbolic
act by legislative or administrative measures affecting the claimed territory, or by treaties with other
States recognizing the sovereignty of the Claimant State over the particular territory or demarcating
boundaries.
Occupation was often preceded by discovery that is the realization of the existence of a particular
piece of land. In the early period of European discovery, in the Fifteenth and Sixteenth Centuries, the
mere realization or sighting was sufficient to constitute title to territory. As time passed, something more
was required and this took the form of symbolic act of taking possession, whether by raising of flags or
by formal declarations. By the Eighteenth Century, the effective control came to be required together
with discovery to constitute title to territory.
(2) Prescription
Prescription is a mode of establishing title to territory which is subject to the sovereignty of another
State (not terra nullius) through peaceful exercise of de facto sovereignty over a long period of time. It is
the legitimization of a doubtful title by the passage of time and the presumed acquiescence of the former
sovereignty. It differs from occupation. It relates to territory which has previously been under the
sovereignty of another State. However, both modes are similar since they require evidence of sovereignty
acts by a State over a period of time.

39

1 0
 A title by prescription to be valid under International Law, it is required that the length of time must be
adequate, and the public and peaceful exercise of de facto sovereignty must be continuous. The
Possession of Claimant State must be public, in the sense that all interested States can be made aware of
it. It must be peaceful and uninterrupted in the sense that the former sovereign must consent to the new
sovereign. Such consent may be express or implied from all the relevant circumstances. This means that
protests of whatever means by the former sovereign may completely block any claim of prescription.
As the requirement of adequate length of time for possession is concerned, there is no consensus on
this regard. Thus, the adequacy of the length of period would be decided on a case by case basis. All the
circumstances of the case, including the nature of the territory and the absence or presence of any
competing claims will be taken into consideration.
(3) Accretion
Accretion is a geographical process by which new land is formed mainly through natural causes and
becomes attached to existing land. Examples of such a process are the creation of islands in a river mouth,
the drying up or the change in the course of a boundary river, or the emerging of island after the eruption
of an under-sea volcano. When the new land comes into being within the territory of a State, it forms part
of its territory, and this causes no problem. However, in case of a drying or shifting of a boundary river,
the general rule of International Law is that if the change is gradual and slight, the boundary may be
shifted, but if the change is violent and excessive, the boundary stays at the same point along the original
riverbed.
Where a new territory is added, mainly through natural causes, to territory already under the
sovereignty of the acquiring State, the acquisition and title to this territory need no formal act or assertion
on part of the acquiring State.
(4) Cession
Cession of territory is a transfer of sovereignty from one sovereign to another. Its basis lies in the
intention of the concerned parties to transfer sovereignty over the territory in question, and it rests on the
principle that the right of transferring its territory is a fundamental attribute of the sovereignty of a
State. It occurs by means of an agreement between the ceding and the acquiring States. The cession may
comprise a portion of the territory of the ceding State or the totality of its territory. In the latter case, the
ceding State disappears and merges into the acquiring State.
Cession of territory may be voluntary as a result of a purchase, an exchange, a gift, a voluntary merger,
or any other voluntary manner, or it may be made under compulsion as a result of a war or any use of
force against the ceding State.
History provides a great number of examples of cession. Examples of voluntary cession are the United
States’ purchase of Alaska from Russia in 1867, the exchange of a portion of Bessarabia by Romania to
Russia in exchange for Dobrudja in 1878, the France’s gift of Venice to Italy in 1866, and the voluntary
merger of the Republic of Texas into the United States in 1795. Examples of cession as a result of a war
are the cession to Germany by France of the region of Alsace- Lorraine in 1871, and the merger of Korea
into Japan in 1910.
(5) Conquest and Annexation
Conquest is an act of defeating an opponent State and occupying all or part of its territory. Annexation
is the extension of sovereignty over a territory by its inclusion into the State. Under traditional
International Law, conquest did not of itself constitute a basis of title to the lan d. It was merely a military

40

1 0
occupation. If followed by a formal annexation of the conquered territory, then it was called subjugation
and could be considered a valid derivative title to territory. Accordingly, conquest followed by
annexation constituted a mode to transfer the title of the conquered territory to the conqueror. Like
compulsory cession, conquest followed by annexation would transfer territory by compulsion, but unlike
cession, it involved no agreement between the concerned parties.
While the acquisition of territory through conquest followed by annexation was an accepted mode of
acquiring title to territory under traditional International Law, it is no longer legal at modern times. The
acquisition of territory through the use of force is outlawed by paragraph 4 of article 2 of the Charter of
the United Nations, which obliged the member States to refrain from the use of force against the territorial
integrity or political independence of any State. This same principle is reaffirmed in the 1970 General
Assembly “Declaration on Principles of International Law Concerning Friendly Relations and Co-
operation among States in Accordance with the Charter of the United Nations”. This Declaration adds that
the territory of a State shall not be the object of acquisition by another State resulting from the threat or
use of force, and that no territorial acquisition resulting from such act shall be recognized as legal.
Although today conquest is not a legal mode of acquiring title to territory, it does give the victor
certain rights under International Law as regards the occupied territory, such as rights of belligerent
occupation. The territory remains the legal possession of the ousted sovereign because sovereignty does
not pass by conquest to the occupying State, although it may pass in certain cases where the legal status of
the territory occupied is in dispute prior to the conquest.
At present times, acquisition of territory following a war would require further international action in
addition to internal legislation to annex. Such further international action would be either a treaty of
cession by the former sovereign or international recognition.
Modern examples of annexation following conquest are Israel’s annexation of the Golan Heights and
the East Jerusalem, and Iraq’s annexation of Kuwait in 1990. In case of the Iraqi annexation, the Security
Council adopted the resolution 662 of 1990 declaring that this annexation “has no legal validity and is
considered null and void”, and called upon all States not to recognize this annexation and to refrain from
actions which might be interpreted as indirect recognition.
Corresponding the modes of acquiring territory, there are modes of losing it. Territory may be lost by
express declaration or conduct such as a treaty of cession or acceptance of cession, by conquest, by
erosion or natural geographic activities, by prescription or by abandonment.
LOSS OF TERRITORY
The act of appropriation by a State by which it internationally acquires sovereignty over such territory as it
is at the time not under the sovereignty of another state. Further it is therefore an original mode or
acquisition is that the sovereignty is not derived from another State. Occupation can only take place by and
for a State. The leading case on the point is Island of Palmas Arbitrations, as regards the sovereignty
over the Island of Palmas there was a dispute between America and Netherlands.
The following are the modes of acquisition of territory: In International Law a territory may be acquired by
the following means:-
1. Occupation: - Oppenheim said that, “Occupation is such an action by which any State may obtain
sovereignty on that territory over which there is no sovereignty of any other state.” According to
Starke, “Occupation consists in establishing sovereignty over a territory not under the authority of any
other State, whether newly discovered or an un-likely case abandoned by the State formerly in control.”

41

1 0
To decide whether on a territory occupation of a particular state exists or not, it is seen whether that State
has an effective authority and control over that territory or not. A leading case on this topic Island of
Palmas Arbitration, AJIl-1928.
2. Accretion:-A territory by accretion may be obtained by a State. Sometimes by natural calamities also a
territory comes within the jurisdiction of a State through the same was previously a portion of another
State. For this here is no need of any formal action or declaration.
3. Prescription: - By prescription a territory comes within a State when by continuous occupation and
control of that territory for a long time creates a vested authority in the controlling State and by passage of
time that State becomes the actual and real sovereign over that territory. Reference, J. G. Strake-
Introduction to International Law-1989.
4. Cession: - By cession also a territory comes within the authority of a State. The cession may occur as a
result of a war through pressure or it may be voluntary. The Cession will be valid only when the
sovereignty over the territory is transferred from one state to another with the territory. While in accretion
only one party may act. Under article 368 Parliament may make a law to give effect to an implement the
agreement in question covering Cession of a part of Berubari Union NO.12 as well as some of the Cooch-
Behar Enclaves.
5. Conquest: When a state gets victory over the other State then the sovereignty over the conquered state
is not established only by victory. For sovereignty it is necessary that the victor State establishes an
effective authority over the territory of the conquered state through annexation. The importance of this
means is more or less extinct because of the Charter of the U.N.O. by which intervention of one state on
the affairs of another is prohibited.
6. Lease: - The territory may also be acquired through lease. A state may give its territory o another state
under lease for a certain period. For the said certain period some rights of sovereignty are transferred to
another. A good example of this type of lease is transfer of certain Islands on lease by Malta to Great
Britain for some years. Recently India had also leased three Bigha to Bangladesh. Case Union of India
v/s Sukumar Sengupta-1990, it was held that the concessions given to Bangladesh over the said area
amounted to servitude.
7. Pledge:-Sometimes there arise certain circumstances under which a State becomes compelled to pledge
a part of its territory in return of some amount of money for which it is in dire need. In this case also a
part of sovereignty over the territory concerned is transferred. For example in 1768 the Republic of
Geneva had pledged the Island of Corsica to France.
8. Plebiscite:-Some writers of the view that through plebiscite also new State may be acquired. Although
in International Law there is no such rule but some modern writers have expressed the view that by
plebiscite also a new territory can be acquired by a State. An example to this concern is of West Irian,
Netherland and Indonesia both had put their claims on the territory of West Irian. UNO decided
for voting of the residents of west Irian. Irians voted in favour of Indonesia. Now Irian is a part of the
Indonesia. Example of Kashmir, Govt. Of India have taken the position that since the merger of J&K
with India several elections have taken place and the people have voted.
9. Through Independence obtaining of territorial sovereignty:-those States which were colonies after
attaining independence get sovereignty over the territory which consisted within the colonial setup. The
difficulty in this context is that nationality and sovereignty in the concerned colonial territory comes only
after it attains independence.

42

1 0
Mode of loss of State Territory:-
1. According to Oppenheim, “A territory of a State is lost through cession means if one state gets
some territory the same territory is lost by the other state.
2. National Calamity: By operation of nature also sometimes territory of a state is lost e.g. floods,
by volcanic events.
3. Defeat in War: if by conquering a State gets some territory the same is lost by the defeated state.
4. Prescription: by occupation of a territory for a long time state gets that territory through
prescription. Original States loses that very territory by prescription.
5. Revolution: through revolution a new state comes into being so it may be said that the state
against which revolt occurred had lost its territory in the shape of a new state. Example:
Netherland revolted against Spain. & in 1971 Bangladesh was born by revolution.
6. Dereliction:- When any state abandons a territory completely or relaxes its authority over it then
it loses that territory. In history there are lesser examples of this kind.

43

1 0
 INTERVENTION
INTRODUCTION
Intervention in fact principally prohibited under the provisions of International Law. According to
International Law no state has the right to intervene in the affairs of another state for the purpose of
maintaining or altering the actual condition of thing. All members shall retrain in their international
relations from the threat or use of force, against the territorial integrity or political independence of any
state or in any other manner inconsistent with the purposes of the United Nations. So in this way when
any state interferes in the internal and external affairs of other state, then as per International Law, it
becomes a matter of intervention.
Meaning and Definition of Intervention: - In simple words intervention means to interfere directly or
indirectly by one or more states in the internal or external affairs of another state.
Prof. L. Oppenheim: “Intervention is dictatorial interference by a state in the affairs of another state or the
purpose of maintaining or altering the actual condition of things. Interference pure and simple is no
intervention.”
Hans Kelson pointed out that, “International Law does not prohibit intervention in all circumstances.
He further says that when one state intervenes in the affairs of another state through force, then as a
reaction against this violation International Law permits intervention.”
Types of Interventions:- It can be accessed from the above view of different Jurists regarding types of
intervention that there are so many types of Interventions. However some of them are as under:-
1. Military interference: It is done with military force.
2. Political Interference: is done by giving threatening information.
3. Dictatorial Interference: Is done in threatening tone.
4. Interference without right: It is done without any purpose & right.
5. Internal Interference: is done in interfering in the internal affairs.
6. External Interference: It is also done in interfering in external affairs.
7. Penal Intervention;
8. Subversive Intervention: is done by another state through exciting the people against the state.
9. Economic Intervention: is done by creating obstacles in the trade.
Bases of Intervention: - It is very much pertinent to mention here that what is the basis of doing of
intervention and what type of interventions are valid under UNO Charter. However the following have
been considered as the main basis of intervention:-
i. On the basis of self defence
ii. On the basis of humanity
iii. for application of treaty rights
iv. to stop illegal intervention
v. to maintain balance of power
vi. to protect individuals and their property
vii. collective intervention
viii. to protect International Law
ix. at the time internal war.
All above basis of intervention have been recognised by the UNO except the followings:-

44

1 0
 i. for application of treaty rights.
ii. to stop illegal intervention
iii. to maintain balance of power
iv. to protect individuals and their property.
v. to protect International Law.
Despite all these the following types of intervention are in use and recognised:-
1. Intervention for Self Defence and Self Protection:-
Self Defence and Self Protection is main traditional basis of intervention. The intervention for Self
Defence is rather limited as compared to that Self Protection.
Oppenhein says that the use of power of intervention should have been made when it becomes
necessary for Self protection.”
A famous case, The Caroline-1841: In this case Mr. Webster declared that the necessity of
self defence should be instant overwhelming and leaving no choice of means and no moment for
deliberation. Art. 51 of UN Charter provide that the right of intervention is still available. Under this
the state has the right to individual and collectively protection. But this right is available only when: -
i. There has been attack on any state.
ii. No step has been taken by the Security Council for international peace and security.
2. Intervention on the basis of humanity:- Every person on this earth has a right to live with human dignity.
The state cannot devoid her of this right. It the state behaves her citizens with cruelty then it is violation of
International Law of human rights. The action for intervention by UNO can be taken only in case when the
degree of violation of human rights is such that if created danger for maintenance of International peace
and security. The best example of such intervention is by UNO in 1991 in Iraq for the protection of Kurds.
3. Collective Intervention:- In Chapter 7 of UNO Charter the Security Council is empowered to take action
of collective intervention. The collective intervention means just and legal base of Modern times. UNO can
intervene for maintenance of world peace and security and to stop or avoid attack on the following
conditions:-
i. When there is actual danger or possibility of danger for international peace and security.
ii. Actual attack has been made by the concerned state.
The use of such right was made by UNO in Korea in 1950, Kango in 1961 and Iraq in 1991.
4. Intervention in case of internal war:- When in any state there is possibilities of Internal war, the
intervention is considered as legal and just basis because there are strong apprehensions of breach of
International peace. Under this situation the Security Council can decision to take collective action under
Chapter 7 of UNO Charter. The action taken by UNO in 1961 in Kango is the best example of
intervention. This action was taken to stop internal war.

CONCLUSION
It is absolutely fact that every state is entitled to manage willingly her own internal and external affairs and
does not like interfere of another state. Similarly it is also the duty of the other state not to interfere in the
internal and external affairs of any state. International Law also like this. The main motto of the Security
Council is maintaining peace in all the member states.

45

1 0
 UNIT-3
 State jurisdiction;
 Law of the Sea;
 State Responsibility;
 Succession to rights and obligations.
QUESTIONS
1. Define State Jurisdiction. What are the exemptions to the territorial Jurisdiction of state?
2. Explain State Jurisdiction according to personal and protective principles?
3. “A State exercises Jurisdiction over property, person, acts and events occurring within its
territory”. Explain the exception to its rule.
4. Discuss the Jurisdiction of maritime state over coastal waters.
5. What is High Seas? What are the freedoms available to the State?
6. Explain the responsibility of state for international delinquencies?
7. What is State Succession? What are the kinds and Theories of Succession?

46

1 0
 STATE JURISDICTION
INTRODUCTION
State Jurisdiction is the power of a state under international Law to govern persons and property by its
municipal law. It includes both the power to prescribe rules and the power to enforce them. The rules of
State jurisdiction identity the persons and the property within the permissible range of a state’s law and its
procedures for enforcing the law. A State may regulate its jurisdiction by legislation through its courts or
by taking executive or administrative action. Thus the jurisdiction of a State is not always a co-incident
with its territory Case of KTMS Abdul Cader and others v/s Union of India-1977, the court held that act
has no extra-territorial application and hence the State government has no power under the Act to pass
orders of detention against persons who at the time when the orders were made were not within India but
were out-side its territorial limits.
In general every State has exclusive jurisdiction within its own territory but this jurisdiction is not
absolute because it is subject to certain limitations imposed by international law. Thus in practice it is not
always necessary that a State may exercise jurisdiction in its territory on the other hand in some
circumstances may exercise jurisdiction outside its territory. Though the relationship between jurisdiction
and sovereignty is close jurisdiction is not co-extensive with State Sovereignty. Each state has normally
jurisdiction over all persons and things within its territory.
Illustration:-A French armed public ship flying the flag of France was in the British territorial waters when
M, the Cabin boy of the ship committed the offence of murder by shooting dead D the captain of ship. Both
M &D were British nationals. During the trial that took place that the British courts had no jurisdiction to
try him for the murder committed on board a French cruiser flying French flag. The defence cannot succeed
because he theory that the pubic ship of a state should be treated to be a floating portion of that state has
long been discarded. Secondly the offence was committed within the territory of Britain. Thirdly seeking
good office of British police and medical aid amounted to a waiver of the immunity. Thus M could be tried
by British court.
Meaning and Definition
State jurisdiction is the capacity of a State under International Law to prescribe and enforce the rules of
law. It is derived from the State sovereignty and constitutes its vital and central feature. It is the authority
of a State over persons, property and events which are primarily within its territories (its land, its national
airspace, and its internal and territorial water). This authority involves the powers to prescribe the rules of
law, to enforce the prescribed rules of law and to adjudicate. The powers related to State jurisdiction raise
the question regarding the types and forms of State Jurisdiction.
State jurisdiction may extend beyond its territory over persons and things which have a national
link. This extension raises the question regarding the grounds or the principles upon which the State can
assert its jurisdiction within and beyond its boundaries.
Nevertheless, there are certain persons, property and events within a State territory which are immune
from its jurisdiction. This limitation to a State jurisdiction raises a question regarding the immunity from
jurisdiction.
The answers to the above raised questions are dealt with in the following:-
Types of State Jurisdiction

47

1 0
 State jurisdiction implies the competence to prescribe rules of law, the jurisdiction to enforce the
prescribed rules of law and the jurisdiction to adjudicate.[3] Accordingly, it is of three types: legislative
jurisdiction, executive jurisdiction and judicial jurisdiction.
(1) Legislative Jurisdiction
Legislative jurisdiction is the capacity of a State to prescribe rules of law (the power to legislate). A
State has the supremacy to make binding laws within its territory. It has a legislative exclusivity in many
areas. This supremacy is entrusted to constitutionally recognized organs.
Although legislation is primarily enforceable within a State territory, it may extend beyond its territory
in certain circumstances. International Law, for example, accepts that a State may levy taxes against
persons not within its territory as long as there is a real link between the State and the proposed taxpayer,
whether it is nationality or domicile.
The question of how far a court will enforce foreign legislation is a matter within the field of Private
International Law (conflict of laws). It is common practice of States that a State enforces civil laws of
another State, but it is rare to enforce the penal or taxes laws of another State.
The legislative supremacy of a State within its territory is well established in International Law.
However, this supremacy may be challenged in cases where a State adopts laws that are contrary to the
rules of International Law. In such cases, a State will be liable for a breach of International Law. A State
may also be liable for a breach of International Law if it abuses its rights to legislate for its nationals
abroad.
(2) Executive Jurisdiction
Executive jurisdiction is the capacity of a State to act and to enforce its laws within its
territory. Generally, since States are independent of each other and possess territorial sovereignty, they
have no authority to carry out their functions on foreign territory. No State has the authority to infringe
the territorial sovereignty of another State. In this sense, a State cannot enforce its laws upon foreign
territory without the consent of the host State; otherwise, it will be liable for a breach of International
Law.
(3) Judicial Jurisdiction
Judicial jurisdiction is the capacity of the courts of a State to try legal cases. A State has an exclusive
authority to create courts and assign their jurisdiction, and to lay down the procedures to be
followed. However, in doing so, it cannot by any means alter the way in which foreign courts operate.
There are a number of principles upon which the courts of a State can claim jurisdiction. In civil
matters, the principles range from the mere presence of the defendant in the territory of a State to the
nationality and domicile principles. In the criminal matters, they range from the territorial principle to the
universality principle. These principles are the subject of the followings discussed below:
Principles of Jurisdiction
Generally, the exercise of civil jurisdiction by courts of a State has been claimed upon far wider
grounds than has been the case in criminal matters. The consequent reaction by other State with this
regard has been much mild. This is partly because public opinion is far more vigorous where a person is
tried in foreign territory for criminal offences than if a person is involved in a civil case. In addition,
International Law does not impose any restrictions on the jurisdiction of courts in civil matters.

48

1 0
 In Common Law countries such as the United States and United Kingdom, the usual ground for
jurisdiction in civil cases is the service of a writ upon the defendant within the country, even if the
presence of the defendant is temporary and incidental. In Civil Law countries, the usual ground for
jurisdiction is the habitual residence of the defendant in the country. In some countries such as
Netherlands, Denmark and Sweden, generally courts assert their jurisdiction if the defendant possesses
assets in the country; however, in matrimonial cases the commonly accepted ground for jurisdiction is the
domicile or residence of the plaintiff.
As far as criminal jurisdiction is concerned, the grounds or principles of jurisdiction mostly invoked by
States are as follows.
(1) The Territorial Principle
The territorial principle is derived from the concept of State sovereignty. It means that a State has the
primary jurisdiction over all events taking place in its territory regardless of the nationality of the person
responsible. It is the dominant ground of jurisdiction in International Law. All other State must respect
the supremacy of the State over its territory, and consequently must not interfere neither in its internal
affairs nor in its territorial jurisdiction.
The territorial jurisdiction of State extents over its land, its national airspace, its internal water, its
territorial sea, its national aircrafts, and its national vessels. It encompasses not only crimes committed on
its territory but also crimes have effects within its territory. In such a case a concurrent jurisdiction
occurs, a subjective territorial jurisdiction may be exercised by the State in whose territory the crime was
committed, and an objective territorial jurisdiction may be exercised by the State in whose territory the
crime had its effect.
Although jurisdiction is primarily and predominantly territorial, it is not exclusive. A State is free to
confer upon other States the right to exercise certain jurisdiction within its national territory. States are
free to arrange the right of each one to exercise certain jurisdiction within each national territory. The
most significant recent examples of such arrangements are: the 1991 France-United Kingdom Protocol
Concerning Frontier Control and Policing, under which the frontier control laws and regulations of each
State are applicable and may be enforced by its officers in the control zones of the other; the 1994 Israel-
Jordan Peace Treaty, under which the Israeli criminal laws are applicable to the Israeli nationals and the
activities involving only them in the specified areas under Jordan’s sovereignty, and measures can be
taken in the areas by Israel to enforce such laws.
(2) The Nationality Principle
The nationality principle implies that a State jurisdiction extends to its nationals and actions they take
beyond its territory. It is based upon the notion that the link between the State and its nationals is personal
one independent of location.
Criminal jurisdiction based on the nationality principle is universally accepted. While Civil Law
countries make extensive use of it, the Common Law countries use it with respect to major crimes such as
murder and treason. The Common law countries, however, do not challenge the extensive use of this
principle by other countries.
A State may prosecute its nationals for crimes committed anywhere in the world; the ground of this
jurisdiction is known as active nationality principle. Also, it may claim jurisdiction for crimes committed
by aliens against their nationals abroad; the ground of this jurisdiction is known as passive nationality
principle. This last principle has been viewed as much weaker than the territorial or active nationality

49

1 0
principle as a basis for jurisdiction. It has been considered as a secondary basis for jurisdiction, and a
matter of considerable controversy among States. However, in recent years this principle has come to be
much acceptable by the international community in the sphere of terrorist and other internationally
condemned crimes.
(3) The Protective principle
The protective principle implies that a State may exercise jurisdiction over an alien who commits an
act outside its territory, which is deemed prejudicial to its security and interests. It is universally accepted,
although there are uncertainties as to its practical extent, particularly as regard to the acts which may
come within its domain. It is justified on the basis of protection of State’s vital interests, particularly when
the alien commits an offence prejudicial to the State, which is not punishable under the law of the country
where he resides and extradition is refused.
Although the protective principle is used as a secondary basis for jurisdiction and in a
narrower sense than the territorial or the nationality principle, it can easily be abused, particularly
in order to undermine the jurisdiction of other States. In practice however, this principle is
applied in those cases where the acts of the person which take place abroad constitute crimes
against the sovereignty of the State, such as plots to through a government, treason, espionage, forging a
currency, economic crimes and breaking immigration laws and regulations. This principle is often used in
treaties providing for multiple jurisdictional grounds with regard to specific crimes, such as the 1979
Hostage Convention and the 1970 Hague Aircraft Hijacking Convention.
(4) The Universality Principle
The universality principle, in its broad sense, implies that a State can claim jurisdiction over certain
crimes committed by any person anywhere in the world, without any required connection to territory,
nationality or special State interest. Before the Second World War, such universal jurisdiction has been
considered as contrary to International Law by the Common Law countries, except for acts regarded as
crimes in all countries, and crimes against the international community as a whole such as piracy and
slave trade.
After the Second World War, universal jurisdiction has been universally recognized over certain acts
considered as international crimes. International crimes are those crimes committed against the
international community as a whole or in violation of International Law and punishable under it, such as
war crimes, crimes against peace and crimes against humanity. In recent years, crimes such as Hijacking
of aircraft, violation of human rights and terrorism, have been added to the list of international crimes.
Today under the universality principle, each State and every State has jurisdiction over any of
the international crimes committed by anyone anywhere.

Immunity from Jurisdiction

The concept of jurisdiction is derived from the concept of sovereignty, and is connected with the
principles of equality and non-interference in domestic affairs of other States. The grounds for jurisdiction
are related to the duty of a State under International Law to respect the territorial integrity and political
independence of other States. Immunity from jurisdiction is grounded on this duty, and constitutes
derogation from the host State jurisdiction.
Under International Law, immunity from jurisdiction is granted to certain persons, namely States
(sovereigns) and their diplomatic and consular representatives, and international
organizations.

50

1 0
EXEMPTION TO THE TERRITORIAL JURISDICTION
There are some exceptions of the exercise of jurisdiction which definitely recognizes the protective
jurisdiction of one state to deal with foreign nationals acting in their country against its security and
integrity:-
1. Diplomatic Agents:- Diplomatic agents enjoy certain privileges and immunities. They are immune
from the jurisdiction of the civil and criminal courts of the receiving State. In this connection the old
view was that the diplomatic agents enjoy these immunities and privileges because they were deemed
to be outside the jurisdiction of receiving State. In the present time this theory has been discarded.
Modern view diplomatic agents enjoy certain immunities and privileges because of the special
functions they perform. This was affirmed in a case Ex-parte Petroff-1971 by the Supreme Court of
Australia.
2. Foreign Embassies: - Foreign embassies are often considered to be outside the jurisdiction of the State
in which they are situated. For sake of convenience embassies are to be treated a part of their home
States. The correct view however is that though not part of their home States embassies enjoys certain
immunities because of the special functions performed by the diplomatic agents.
3. Foreign Sovereigns:-Foreign sovereigns are often treated to be outside the jurisdiction of other states
and possess many privileges and immunities. In the case of Christina-1938, Lord Wright observed that
there are general principles of International Law according to which a sovereign state is held to be
immune from the jurisdiction of another sovereign State.
The principle of immunity of immunity of Foreign Sovereign was developed in the early years of the
nineteenth century. In the case of the Schooner Exchange v/s McFaddon-1812, A French Naval Vessel
stayed in Philadelphia for repairs after a storm. Some persons sought possession of the ship on the ground
that in reality the ship Schooner Exchange. An American ship which they owned and was seized by French
on the High Seas in 1810 in pursuance of a Napoleonic Decree. The U.S. Govt. however requested the
court to refuse jurisdiction on the ground of sovereign immunity. Court held that the vessel was exempt
from U.S. Jurisdiction.
The jurisdiction of the nation within its own territory is necessary exclusive and absolute. It is
susceptible of no limitation not imposed by it. In another case of Vavasseur v/s Krupp-1878, the plaintiff
contended that the Japanese Govt., has violated his patent rights and therefore he demanded that the delivery
of the goods by it be stopped. But the court had that it had no jurisdiction over the property of the foreign
sovereigns more especially with what we call the public property of the State of which he is sovereign.
4. Property of foreign sovereigns: the property of foreign sovereign remains immune from jurisdiction
of the state. As long as the foreign sovereign has some interest in the property, it remains immune, and
it is immaterial for what purpose the property is employed. In the Parliament Belge, the defendant ship
was owned by the king of the Belgians, it was a mail boat which carried passengers and some cargo on
the channel crossing. The court held that a public vessel was not entitled to immunity if it engages in
the carrying of passengers as a commercial nature. However the decision was reversed by the court of
appeal on the basis that as a consequence of the absolute independence of every sovereign state to
respect the independence and dignity of every other sovereign state, each and every one should decline
to exercise by means of its court any of its territorial jurisdiction over the public property of any state
which is destined to public use.
5. Foreign armed forces: armed forces of a state remain in the foreign territory on several occasions in
the service of their home state. Such forces are considered by some to be extra-territorial, and therefore
they remain under the jurisdiction of the state to which they belong. Thus, if a crime has been committed

51

1 0
 on foreign territory by a member of these forces he cannot be punished by the local, civil or military
authorities. Punishment can be given only by the commanding officer of the forces or the authorities of
their home.
6. Foreign warships and their crew: men of war, being in fact a part of armed forces of a state are
deemed organs like armed forces. The territorial waters and ports of the states are as a general rule open
to men of war, unless they are not excluded by special agreements. It does not mean that men of war
can do what they like in foreign waters. They are expected to comply voluntarily with the laws of the
littoral states.
7. Consular Immunity
A consular officer, like a diplomatic agent, represents his State in the receiving State. However, unlike
a diplomatic agent, he is not concerned with political relations between the two States, but with a variety
of administrative functions, such as issuing visas and passports, looking after the commercial interests of
his State, and assisting the nationals of his State in distress. Thus, he is not granted the same degree of
immunity from jurisdiction as a diplomatic agent.
Notably nowadays, many States combine its diplomatic and consular services. Thus, a person who
acts simultaneously as a diplomat and consul enjoys diplomatic immunity.
Under the 1963 Vienna Convention on the Consular Relations, a consular officer (the head of the
consular post and any person entrusted to exercise consular functions) is immune from an arrest or
detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent
judicial authority. He is immune from imprisonment or any other restriction on his personal freedom save
in execution of a final judicial decision. If criminal proceedings are instituted against him, he must
appear before the competent authorities. The proceedings must be conducted in a manner that respects
his official position and does not hamper the exercise of consular functions, and with the minimum delay.
A consular officer is immune from the jurisdiction of the judicial or administrative authorities of the
receiving State only in respect of acts performed in the exercise of consular functions. He is exempt from
all dues and taxes, except in certain cases. In addition, the consular premises, archives and documents are
inviolable.
A consular officer enjoys the immunities from the moment he enters the territory of the receiving State
on proceeding to take up his post or, if already in its territory, from the moment when he enters on his
duties. The same immunities are enjoyed by members of the family of the consular officer from the date
which he enjoys his immunities.
The immunities of a consular officer may be waived by the sending State. The waiver must be
express. However, the waiver of immunity from jurisdiction for the purposes of civil or administrative
proceedings does not imply waiver of immunity from the execution of a judicial decisions; in such case, a
separate waiver is required. Immunity may also be waived by the consular officer himself, by submitting
voluntarily to the jurisdiction of the court of the receiving State.
.8. Immunities of International Organizations
It is uncertain which immunities and to what extent international organizations enjoy under customary
International Law; the position of this law is far from clear. Actually, immunities are granted to
international organizations by treaties, or by headquarters agreements concluded with the host State where
the organization is seated.

52

1 0
 The purpose of immunity granted to international organizations is purely functional. Immunity is
regarded as functionally necessary for the fulfillment of their objectives. It is not a reflection of
sovereignty, as it is in case of a State, except only indirectly when aiming to protect the interests of the
member States of the organization.
Probably the most important example of treaties providing immunities to international organizations is
the 1946 General Conventions on the Privileges and Immunities of the United Nations, which sets out the
immunities of the United Nations and its personnel. The United Nations enjoys complete immunity from
all legal process. Its premises, assets, archives and documents are inviolable. It is exempt from direct
taxes and customs duties. Its staff is exempt from income tax on their salaries.
The U.N Secretary General and the Assistant Secretaries General enjoy diplomatic immunity. Other
staff members enjoy limited immunities, such as immunity from legal process in respect of their official
acts.
Representatives of member States attending the United Nations meetings are granted almost the same
immunities as diplomats, except their immunity from legal process applies only to their official acts.
An example of treaties providing immunities to representatives of States in international organizations
is the 1975 Vienna Convention on the Representatives of States in their Relations with International
Organizations of a Universal Character. This treaty applies to representatives of States in any
international organizations of a universal character, irrespective of whether or not there are diplomatic
relations between the sending State and the host States.
Under this treaty, the representatives of States in universal international organizations enjoy similar
immunities to those provided in the 1961 Vienna Convention on Diplomatic Relations. They enjoy
immunity from criminal jurisdiction, and immunity from civil and administrative jurisdiction in all cases,
save for certain exceptions. The mission premises, archives, documents and correspondence are
inviolable.

53

1 0
 LAW OF THE SEA
The oceans had long been subject to the freedom of-the-seas doctrine - a principle put forth in the 17th
century, essentially limiting national rights and jurisdiction over the oceans to a narrow belt of sea
surrounding a nation's coastline. The remainder of the seas was proclaimed to be free to all and belonging
to none. While this situation prevailed into the twentieth century, by mid-century there was an impetus to
extend national claims over offshore resources.
The entire sea is divided into territorial sea, contiguous sea continental shelf, EEZ and high sea.
TERRITORIAL SEA
Everything from the baseline to a limit not exceeding twelve miles is considered the State’s territorial sea.
Territorial seas are the most straightforward zone. Much like internal waters, coastal States have
sovereignty and jurisdiction over the territorial sea. These rights extend not only on the surface but also to
the seabed and subsoil, as well as vertically to airspace.
While territorial seas are subject to the exclusive jurisdiction of the coastal States, the coastal States’
rights are limited by the passage rights of other States, including innocent passage through the territorial
sea and transit passage through international straits.
BREADTH OF TERRITORIAL SEA
The breadth of the territorial sea has remained a thorny issue, and up to 18th century the opinion was, that
breadth of territorial sea extends to the range of a cannon-shot which at that time was three nautical miles.
The three-mile rule, popularly known as ‘cannon-shot’ rule as propounded by the Dutch jurist
Bynkershock, had a rationale that a State’s sovereignty extended to the sea as far as a canon or fire could
reach.
The general assembly of the UN, adopted a resolution for convening a conference on the law of the sea.
Consequently in 1958 a conference was held in Geneva to consider a number of drafts prepared by the
international commission.
The Geneva conference adopted 4 conventions-
1. Convention of territorial sea & contiguous zone,
2. Convention on high seas,
3. Convention on fishing & conversation of living resources and,
4. Convention on the continental shelf.
All the 4 conventions came into force but left the most important issue which was left undecided was the
breath of the territorial sea because of difference of opinion of states.
The convention on the law of the sea 1982 has laid down that the sovereignty of a costal state extends
beyond its land territory and internal water to an adjacent belt of sea up to 12 nautical miles which is
known as territorial sea.
Two methods have been laid down for measuring the breadth of the territorial sea: the low water line and
the straight baseline. The normal method used is the low-water line as marked on large-scale charts
officially recognized by coastal State. Where the coastline is deeply intended and cut into, or if there is a
fringe of islands along the coast in its immediate vicinity, the straight baseline method joining appropriate
points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.

54

1 0
The method of straight baseline was enunciated by the Anglo Norwegian Fisheries case, which had a
decisive effect on the baseline issue. In this case, Norway which has a fringe coastline, by its 1935 Decree
proclaimed exclusive fishery zone (meant territorial sea) along almost 1000 miles of its coastline. The
zone which was four miles wide, measured not from the low-water mark but from straight baselines
linking some 48 outer most points of island and lands, at a considerable distance from the coast By using
the straight baselines, some of which was 30 miles long and the longest was 44 miles, Norway could
enclose waters within its territorial sea that would have been the high seas, and hence open to foreign
fishing.
The UK, whose fishing interests were affected by this Decree, challenged the legality of the straight
baseline system adopted by Norway and the choice of certain baselines used in applying it. The Court
upheld the method applied by Norway in drawing the baselines and it also did not reject the criterion of
low water mark. But the manner of application of straight baselines is ‘dictated by geographical realities’.
It was propounded by the judgment that where a State has a rugged coastline, deeply indented, or if there
is a fringe of islands in the immediate vicinity, the straight baseline, joining the low water at appropriate
points, is admissible, provided:
• The drawing of baseline must not depart to any appreciable extent from the ‘general direction’ of the
coast;
• The areas lying within the baselines are sufficiently closely linked to the adjacent land domain; and
• The economic interests as evidenced by long-established usage, peculiar to a particular region
concerned, must be taken into account before the straight baseline method is allowed to be followed by
coastal State.
The principles laid down in the Fisheries case relating to straight baselines are to be followed in drawing
baselines except those of low-tide elevations, unless the lines drawn in such circumstances have received
‘general international recognition’. The system of straight baselines is not to be applied in a manner as to
cut off the territorial sea or an EEZ of another State from the high seas.
The delimitation of the territorial sea between two States opposite or adjacent to each other can
take place in accordance with an agreement between them, failing which the median line, every
point of which is equidistant from the nearest points on the baselines from which the breadth of the
territorial seas of each of the two States is measured. This rule is not applicable in the cases of ‘historic
title’ or other special circumstance.
RIGHTS OF COSTAL STATE OVER TERRITORIAL SEA:
The sovereignty of the coastal states extends to the territorial sea.
1. Absolute sovereignty over territorial sea. They have complete dominion over this part of the sea
except that of the right of innocent passage and of transit by vessels of all nations.
2. It follows from the regime of sovereignty that the coastal state has the exclusive right to
appropriate the natural products of the territorial sea, including the right of fisheries therein, and
to the resources of the sea-bed and its sub-soil namely, sedentary fisheries and non-living
resources such as hydrocarbons and minerals.
3. The coastal areas may enact laws and regulations. Especially in regard to transport and
navigation. It can also enact laws for conservation of living resources of the sea and preservation
of environment and control of pollution. Foreign ship exercising the right of innocent passage
should comply with such laws made by the coastal states.
4. Costal state has the right to take necessary steps to prevent passage which is not innocent.

55

1 0
 5. Costal state can suspend of rights of innocent passage temporarily in specified areas of its sea if
there is suspicion and such measure is essential for the protection.
6. If the ship/vessel causes damage due to non-compliance of law, than the costal state can
7. hold the flag country responsible to compensate for damages done.
RIGHTS OF OTHER STATES
It is the customary rule of International law that territorial sea is open to merchant vessels of all
the states for navigation. Such vessels have right to innocent passage through the territorial sea of a state.
Thus every State has the right to demand that in time of peace. This is a corollary of the freedom of the
open sea. This rule was incorporated in the Geneva Convention on the Territorial Sea and Contiguous
Zone of 1958 under Article 14. The same provision has been laid down
under Article 17 of the Convention of 1982.

INNOCENT PASSAGE
The customary international law recognizes the right of innocent passage for ships of all States through
the territorial waters of a State but no such right exists for aircraft in the airspace over the territorial
waters. ‘Ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the
territorial sea.’ No right of innocent passage exists through internal waters. The passage to be considered
innocent, of foreign fishing vessels, their conduct should be according to the laws and regulations made
by the coastal State for fishing purposes in the territorial sea.
Under the Convention vessels entitled to innocent passage are ‘ships of all states’ without making a
distinction between a merchant, public or warships. The submarines, however, are required to navigate on
the surface. Warships have the right of passage through international straits, as decided in the Corfu
Channel case.
CONTIGUOUS ZONE
States may also establish a contiguous zone from the outer edge of the territorial seas to a maximum of 24
nautical miles from the baseline. This zone exists to bolster a State’s law enforcement capacity and
prevent criminals from fleeing the territorial sea. Within the contiguous zone, a State has the right to both
prevent and punish infringement of fiscal, immigration, sanitary, and customs laws within its territory and
territorial sea. Unlike the territorial sea, the contiguous zone only gives jurisdiction to a State on the
ocean’s surface and floor. It does not provide air and space rights.
CONTINENTAL SHELF
The concept of continental shelf is mainly co-related with an exploitation of the natural resources
from the sea adjacent to the territorial sea. This was one of the important developments after the Second
World War in relation to the law of the sea was the evolution and acceptance of the concept of the
continental shelf. The President of the United States proclaimed that the natural resources of the
continental shelf were ‘beneath the high seas but contiguous to the coasts of the United States as
appertaining to the United States and subject to its jurisdiction and control’. The
continental shelf was regarded ‘as an extension of the land mass of the coastal nation’. The main reason
for this action of the United States was to reserve for itself, the oil and mineral resources in the seabed
which had become technologically possible to drill.
Proclamation soon became the trendsetter and was immediately followed by similar unilateral
declarations by many maritime nations which laid claims of exclusive jurisdiction control or

56

1 0
sovereign rights over the resources of the continental shelf and associated offshore areas. These
declarations led to the formation of customary international law giving coastal States jurisdictional rights
over their shelves. These rights over the resources of the continental shelf were universally accepted by
the 1958 Geneva Convention on the Continental Shelf.
Geologically, the continental shelf may be defined as the zone around the continent extending from the
lowwater line to the depth, at which there is usually a marked increase of declivity to a greater depth.
What is commonly understood by the ‘continental shelf’ is a gently sloping platform of submerged land
surrounding the continents and islands. It is a submerged bed of the
sea, contiguous to a continental land mass, and found in such a manner as to be really an extension of, or
appurtenant to this land mass. Normally, it extends to a depth of approximately 200 meters, at which
point the first substantial ‘fall off’ of the seabed occurs. At certain places, it continues beyond a depth of
200 meters.
DEFINITION OF CONTINENTAL SHELF UNDER THE GENEVA CONVENTION OF 1958
In 1958 Continental Shelf Convention used the term ‘continental shelf’ as referring ‘to the seabed and
subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of
200 meters or beyond that limit, to where the depth of the superjacent waters admits of the exploitation of
the natural resources of the said areas’. Thus, the shelf has been defined in terms of ‘exploitability; and
the depth of the sea. It means that if the exploitation of the resources could be made beyond the limit of
200 meters depth, that area could be claimed
by the coastal State as its continental shelf. The requirement of the phrase ‘adjacent of the coast’ is not
solely confined to the proximity, but provided the legal basis for the coastal State to claim jurisdiction
over the continental shelf.
DEFINITION OF CONTINENTAL SHELF UNDER THE CONVENTION ON THE LAW OF
THE SEA, 1982
This Convention has defined the term continental shelf under Para I of Article 76 by stating that the
continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend
beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the
continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the
territorial sea is measured where the outer edge of the continental margin does not extend up to that
distance.
RIGHTS OF COASTAL STATES OVER CONTINENTAL SHELF UNDER UN CONVENTION
ON THE LAW OF THE SEA, 1982
Article 77 of the Convention provides various provisions with regards to the rights of coastal states. The
coastal State enjoys limited sovereign rights over the continental shelf for the purpose of exploring and
exploiting its ‘natural resources’, and not sovereignty. These rights are exclusive in the sense that no one
can undertake these activities without the express consent of the coastal State or make a claim to the
continental shelf. They also do not depend on occupation, effective or notional, or any express
proclamation.
The ‘natural resources’ of the continental shelf consist of mineral and other non-living resources of the
seabed and sub-soil, together with living organisms which at the harvestable stage, either are immobile on
or under the seabed or are unable to move except in constant physical contact with the seabed or subsoil.

57

1 0
The coastal State also has the exclusive right to authorize and regulate drilling of the sub-soil for all
purposes. [Article 81] Like the EEZ, the coastal State has the exclusive right to construct, maintain or
operate the artificial islands, installations, and structures on the shelf. [Article 80]
RIGHTS OF OTHER STATES IN CONTINENTAL SHELF UNDER UN CONVENTION ON
THE LAW OF THE SEA, 1982
The Convention also gives various rights to the Other States. The rights of the coastal State over the
continental shelf do not affect the legal status of the superjacent waters or of the airspace above those
waters. The exercise of the rights of the coastal State over the continental shelf must not infringe or result
in any unjustifiable interference with navigation and other rights and freedoms of other States as provided
for in this Convention - Article 78. Also, all States are entitled to lay submarine cables and pipeline on the
continental shelf - Article 79.
The delimitation of the continental shelf between nations has generated a lot of litigation because of its
economic importance. Rules relating to delimitation are provided in Article 6 of the 1958 Continental
Shelf Convention and Article 83 of the 1982 Convention.
The delimitation of boundaries remained more contentious between the adjacent States as opposed to the
opposite States where the median line was to be followed. In the case of adjacent States, ‘equidistance
principle’ was found to be inadequate to demarcate the continental shelf, nor did it represent the
customary international law.
CONTINENTAL SHELF AND NORTH SEA CONTINENTAL SHELF CASE
The International Court of Justice, for the first time, has the occasion to determine the adequacy of the
rule enshrined in Article 6 in the North Sea Continental Shelf case. In the two separate cases against West
Germany filed by the Netherlands and Denmark, the Court was asked to decide about the ‘applicable’
principles and rules of international law ‘to the determination as between the Parties of the areas of the
continental shelfs in the North Sea which appertain to each of them beyond the partial boundary.
The two cases were joined by the Court. Denmark and the Netherlands argued that the
‘equidistance/special circumstances rule’ in Art. 6 would be applied. Germany instead proposed ‘the
doctrine of the just and equitable share’. Germany’s opposition to the ‘equidistance rule’ was based on the
fact that the rule, if applied on a concave coastline, such as that of the North Sea, shared by all the three
States concerned, would result into giving the State in the middle, and in this case Germany, a smaller
continental shelf than it might otherwise obtain.
The Court rejected both these contentions and held that applying the equidistance principle will lead to
inequitable results because of the peculiar coastline of the States concerned and opined that the notion of
equidistance could not be logically be compulsorily applied in all situations. It is not consonant with
certain basic legal notions, ‘those principles being that delimitation must be the object of agreement
between the States concerned, and such agreement must be arrived at in accordance with equitable
principles.’
Thus, in following the ‘equitable principles’, the factors to be taken into account are:

 The relevant circumstances, i.e., the geographical situation of the parties and natural
configuration of the coast;
 Proportionally, i.e., the extent of the continental shelf areas appertaining to coastal State and the
length of the coast measured in the general direction of the coastline; and

58

1 0
  The concept of natural prolongation, i.e., the shelf is an appurtenant to the land territory.
The approach is taken by the International Court of Justice on the ‘equidistance principle’ has been
followed by the Court in Tunisia vs Libya case, the Court was asked to specify principles and rules of
international law which were applicable to the delimitation of the continental shelf between Tunisia and
Libya. They have a single continental shelf as the natural prolongation of their land territory, and hence
no principle of ‘natural prolongation’ as such could be applied. The Court observed that since the two
countries abutted on a common continental shelf, the physical criterion was of no assistance for the
purpose of delimitation. The application of the equidistance method could not, in particular circumstances
of the case, lead to an equitable result, and in such a case, the delimitation can be effected on the basis of
‘equitable principles’, taking into account all the relevant circumstances.
LIBYA VS MALTA CASE
The Libya vs Malta was the first case decided by the Court a fatter signing of the 1982 Convention.
Though both the States were signatories to the Convention, they agreed for the dispute to be governed by
customary international law. The Court, however, looked into the provisions of the Convention as a rule
of customary international law, and observed that ‘the principles and rules, applicable to the delimitation
of continental shelf areas are those which are appropriate to bring about an equitable result.’ In deciding
the dispute, the Court placed great reliance on the ‘equidistance principle’. But to achieve an equitable
result, it will be necessary to first draw a line, every point of which should be equidistant from the coast
of the two opposite States concerned and then to make adjustments in the light of all the relevant
circumstances. The Court once again discounted the ‘natural prolongation’ factor propounded in the
North Sea Continental Shelf cases, which was subservient to the equitable principle. Thus, the judicial
practice has clearly established that the principle of equidistance is not an applicable rule in all cases of
delimitation between adjacent States. The ‘natural prolongation’ criterion has similarly given way to
distance criterion (i.e. 200 nautical miles from the coast). The emphasis on ‘equitable solution’ in the
1982 Convention, however, is without any accompanying procedure to be followed to achieve it. The
application of equitable principle reduces the chances of settling boundary disputes without litigation.
EXCLUSIVE ECONOMIC ZONE (EEZ)
Exclusive Economic Zone (EEZ) is comparatively a concept of recent origin. The concept of EEZ was
initiated by Kenya in 1972 at the Geneva session of the UN Committee on Peaceful uses of Sea-bed and
Ocean Floor Beyond the limits of National Jurisdiction. The EEZ finally found a place in the Convention
on the Law of the Sea of 1982. Since then, it has become a generally accepted institution of the law of the
sea. In Tunisia vs Libya, it was stated that the concept of EEZ can be regarded as a part of customary
laws.
Article 55 of the United Nations Convention on the Law of the Sea – Specific legal regime of the
exclusive economic zone defined it as an area beyond and adjacent to the territorial sea, subject to the
specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State
and the rights and freedoms of other States are governed by the relevant provisions of this Convention.
BREATH OF EEZ
It extends up to 200 nautical miles (equivalent to 370.4 km) from the baselines from which the breadth of
the territorial sea is measured. [Article 57] The zone is an intermediate area between the high seas and the
territorial sea with a distinct regime of its own which a State can specifically claim. The zone comprises
the area which was previously part of the high seas and is not under the sovereignty of the coastal State.

59

1 0
RIGHTS OF THE COASTAL STATES OVER EEZ
In the EEZ, the Coastal States have ‘sovereign rights’ for the purpose of exploring and exploiting,
conserving and managing the natural resources, living and non-living resources of the waters superjacent
to the sea-bed and its subsoil.
Article 56 of the United Nations Convention on the Law of the Sea – Rights, jurisdiction and duties of the
coastal State in the exclusive economic zone
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural
resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed
and its subsoil, and with regard to other activities for the economic exploitation and exploration
of the zone, such as the production of energy from the water, currents and winds;
(b) Jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the exclusive economic
zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a
manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in
accordance with Part VI.
RIGHTS OF OTHER STATES OVER EEZ
Article 56, Para 2 of the Convention of 1982 clearly lays down that the coastal states shall give due regard
to the rights and duties of other States while exercising their rights in the EEZ.
Any conflict on the unregulated uses of the EEZ between a coastal State and other States should be
resolved on the basis of equity and in the light of all the relevant circumstances. The delimitation of the
EEZ between States with opposite or adjacent coasts is to be effected ‘by agreement on the basis of
international law in order to achieve an equitable solution’. If no agreement can be reached within a
reasonable time, the States concerned may resort to the procedures provided in the Convention.
Article 58 of the United Nations Convention on the Law of the Sea – Rights and duties of other States in
the exclusive economic zone.
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the
relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and
overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses
of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and
submarine cables and pipelines, and compatible with the other provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone
in so far as they are not incompatible with this Part. 3. In exercising their rights and performing their
duties under this Convention in the exclusive economic zone, States shall have due regard to the
rights and duties of the coastal State and shall comply with the laws and regulations adopted by the
coastal State in accordance with the provisions of this Convention and other rules of international law
in so far as they are not incompatible with this Part.

60

1 0
HIGH SEAS
The high seas denote all parts of the sea that are not included in the EEZ, territorial se or internal waters
of a State. The rule was formulated in 1609 by Grotius in his treatise mare liberium by arguing that the
sea cannot be owned. Hence, all states whether coastal or landlocked shall be free to exercise therein the
freedom of navigation, of overflight, of immersion, of fishing and of constructing artificial islands etc.
However, the regime has been considerably changed under the Convention on the Law of the Sea of
1982. Article 87(2) of the Convention lays down the limitation of the general nature on the freedom of
high seas by stating that the freedom of the high seas “shall be exercised with due regard for the interests
of other States in their exercise of the freedom of high seas.”
FREEDOM OF HIGH SEAS
1. Freedom of navigation
2. Freedom of fishing
3. Freedom of laying submarine cables & pipelines
4. Freedom to fly over high seas
5. Freedom of scientific research
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.
General rule is that the state whose flag is flying on a vessel has complete jurisdiction over the ship and
its crew. But there are two exceptions to this:
1. Right to visit.
2. Right of hot pursuit
RIGHT TO VISIT:
Generally if a warship on high seas, encounters a foreign ship other than a ship entitled to complete
immunity, it’s not justified on boarding it except for the following grounds:
1. A ship engaged in piracy
2. A ship engaged in slave trade
3. A ship engaged in un authorized broadcasting of flag of a state
4. A ship without nationality
5. A ship though flying on foreign flag or refusing to show its flag, in reality it is same nationality as
war ship.
RIGHT OF HOT PURSUIT:
Article 111 of the convention on the law of sea 1982 provides that hot pursuit of a foreign ship may be
under taken by competent authority of the state if they have good reason to believe that the ship has
violated laws of that state. This right ceases as soon as the ship pursued enters territorial sea of its own
state or of a third state.
Pursuit will not commence until visual or auditory signal to stop has been given at a distance which
enables it to heard or seen.

61

1 0
 STATE RESPONSIBILTY
When a duty is established by any rule of international law and such duty is breached by an act or
omission of a state, that state is held responsible for such act. Art 1on the draft articles states that every
internationally wrongful act of a state entails the international responsibility of that state and thus applies
to all states irrespective of the fact whether it was long established or newly established.
The PCIJ in Chorzow factory case stated that, “it is a principle of international law and even a general
conception of a law that breach of an engagement involves an obligation to make reparation”.
State responsibility may be incurred during the time of war as well as during the time of peace. As regards
state responsibility during time of war it is well recognised U/A 3 of the Hague Convention 1907, it states
that a belligerent party which violates the provisions of the regulation shall if the case demands, be liable
to pay compensation.
It shall be responsible for all acts committed by persons forming pact of its armed forces. But state
responsibility during the time of peace has not been previously laid down under customary law.
KINDS OF STATE RESPONSIBILITY:
State responsibility may incur in two ways either act of a state or by the act of its individual. When an act
which constitutes a breach of an international obligation is committed by the government of a state or by a
person at the governments command the act is called the act of state and it’s responsible for such
wrongful acts.
A state can also be vicariously responsible for the acts of others like acts of agents, subjects etc.
1. DIRECT RESPONSIBILITY:
A state is responsible for the breach of international obligation caused by it to the other state. A state
performs its function through different organs and agencies (executive, diplomats, judiciary, and armed
forces) and if any wrongful act is done by them, state becomes responsible directly on their behalf.
Such organs and agencies include:
i. Executive and administrative organs: when an act causing injury to another state is committed
by the head of the government or officer commanded or authorised by the head of the state do the
acts, it is called international delinquency. States are held responsible for international
delinquency.
ii. Acts of diplomatic envoys: generally diplomats enjoy complete immunity in the receiving state;
they are excluded from their jurisdiction. But if they do any injurious acts at the command of his
home state, then the state will be responsible and not the diplomat personally.
iii. Acts of members of armed forces: acts if committed by members of armed force in the exercise
of their official function without the states command or authorisation then it is not state act. But
for reckless act of the armed force, the state will be responsible even if it has not authorised.
iv. Acts of judiciary: judiciary is independent but this is irrelevant in the international law point of
view. If it gave any judgement contrary to the international obligation of a state then state is
responsible. Example: judgement denying an ambassador the immunities ensured by customary
international law.
v. Constituent unit of federal states: a state cannot evade its responsibility alleging that its
constitutional powers of control over them are insufficient.

62

1 0
2. INDIRECT STATE RESPONSIBILITY:
It is duty of the state to prevent its own subjects as well as foreign subjects living within its territory from
committing such acts which may cause injury to other states. If any wrongful act is done then state is
responsible.
i. Mob violence: state responsibility for mob violence may arise in two ways:
 If the foreign public/private property is damaged by mob violence due to neglect to take
precaution/preventive action. State should have foreseen the danger and taken steps to prevent it.
Burden of proof is on the state to show that all reasonable steps were taken to prevent outbreak of
violence.
 State is responsible where mob violence takes place due to indifferent attitude of its organs, i.e., if the
wrongful act is done with the connivance of its organs.
ii. Violence in insurrections and civil war: state is responsible for the injuries caused to an alien the
consequence of civil war.
CALVO CLAUSE
Argentine publicist Calvo announced the doctrine in 1868. According to this state is not responsible for
the loss sufferedby the foreigners as a result of civil war since that would cause unjustified inequality in
the rights of its own citizens and aliens. It would also give an excuse for other states to interfere in small
states independence. In Mexico the Calvo Clause was included U/A 27 of the constitution.
THEORIES THAT DETERMINE STATE RESPONSIBILITY
1. The risk theory: if a person brings any dangerous thing within his premises for his own use/profit, he
is liable for any accidents arising from it even if he has taken care and there is no negligence. This
principle is also applied in international law if it has been clearly mentioned by international
agreement. Example: Damage resulting from peaceful use of nuclear energy.
2. Fault theory: state obligation will only arise when an act or omission which amounts to a breach of
legal obligation is attributable to the state.
DOCTRINE OF ABUSE OF RIGHTS
No state has the right to use the territory in such a manner which may cause damage to the territory of
another state. When there is no right there is no abuse of rights, instead it may be called as interference of
rights of another, because it is the integrity of the state that is infringed.
DOCTRINE OF NECESSITY
When a state faces danger, and such danger was not caused by itself and it has no way of escaping from it
but can only escape by taking an action which would violate the rights of another state, such action does
not incur state responsibility.
DEFENCE TO STATE LIABILITY (EXCUSE FOR STATE RESPONSIBILITY)
Article 29 to Article 30 of the 1980 draft articles drafted by the International Law Commission states the
defence available to the state to avoid state responsibility.
1. Consent (Article 29)
2. Counter Measure in respect of internationally wrongful act (Article 30)
3. Force Majeure (Article 31)

63

1 0
 4. Self Defence (Article 34)
5. Distress (Article 32)
6. State of Necessity (Article 33)
1. CONSENT (ARTICLE 29)
When a state gives consent to an act of another state which would otherwise be inconsistent with
international obligation. After granting consent, the consenting state cannot claim that the Act is wrongful
later. The consent given has to be a valid consent without any fraud, coercion, etc.
2. COUNTER MEASURE IN RESPECT OF INTERNATIONALLY WRONGFUL ACT
(ARTICLE 30)
The wrongfulness of an act of a state, not in conformity with an obligation of that state towards another
state is precluded, if the act constitutes as a legitimate measure under International Law against the other
state in consequences of internationally wrongful act of that state.
3. FORCE MAJEURE (ARTICLE 31)
The wrongfulness of an act of a state, not in conformity with an obligation of that state towards another
state is precluded, if the act was due to unforeseen external event beyond its control which made it
impossible for the state to perform its international obligation.
4. SELF DEFENCE (ARTICLE 34)
State does not incur liability if it takes lawful measures of self-defence, inconformity with charter of UN.
5. DISTRESS (ARTICLE 32)
When a person does a wrongful act, to save his life or others’ lifes entrusted to that person, and there is no
other way but the wrongful act, then no liability will be incurred. This applies only when human life is in
danger.
6. STATE OF NECESSITY (ARTICLE 33)
An act done to safeguard the interest of the state from grave danger and such act was the only way. The
said act did not seriously impair the interest of state towards which the state had obligation.
STATE RESPONSIBILITY FOR BREACH OF TREATY
This is a case about violation of international agreement known as “The Chorzow Factory Case”. The
question before the court was whether Poland can be made liable for such violation of an international
agreement.
Fact: After the First World War due to a bipartite agreement between Germany and Poland; Germany
agreed to transfer the control of Upper Silesia area to Poland. On an agreement that Poland would not
forfeit any property of Germany, but thereafter Poland forfeited two of German Companies situated at
that area.
Issue:

 Whether the court has its jurisdiction over the matter or not?
 Whether there was any violation of the agreement between Germany and Poland or not?
 Whether there was any international obligation on Poland due to the breach of bipartite agreement
between Germany and Poland?

64

1 0
Decision: The Permanent Court of International Justice has its jurisdiction to try the case. Poland had
violated the international agreement between Germany and Poland. Poland would be liable to repair any
loss suffered by the Germany due to the forfeit of that two company as they violated that international
agreement.
Analysis:
The rule of Permanent Court of International Justice was very appropriate, which was given in favour of
Germany as the attitude of Polish Government towards two German companies was not in conformity
with the articles of Convention concerning Upper Silesia[1], concluded at Geneva on May 15th, 1922
(hereinafter referred as Geneva Convention), thus violating the international agreement by unlawful
expropriation of the said companies and that infers the state responsibility on Poland for reparation for
such violation.
STATE RESPONSIBILITY OF EXPORPRIATION OF FOREIGN PROPERTY
Before this was considered violation of International Law, but now state exercises complete control over
their economic system and has nationalised everything and this makes it difficult to recognize such
expropriation as violation of International Law.
In Anglo Iranian Oil Company Case, it was held that such an act is valid only where there has been no
discrimination with the foreigners. In 1958, a commission on permanent sovereignty over natural
resources was established. On the basis of its report, the economic and social commission passed a
resolution which declared that in case of expropriation, the owner shall pay “appropriate compensation”
in accordance with the rules in force in the state taking such measures. In 1974, the UN General
Assembly adopted by an overwhelming majority a charter on economic right and duties of the state. The
resolution proclaims that each state has the right to freely exercise full permanent sovereignty over its
wealth and natural resources to regulate and exercise authority over foreign investments within its
national jurisdiction and to nationalize, expropriate or transfer the ownership of foreign policy. It also
provides for appropriate compensation to be paid in cases of expropriation or nationalization. In case of
dispute regarding compensation it should be settled under the domestic laws of the nationalising state.
STATE RESPONSIBILITY FOR CONTRACTS WITH FOREIGNERS
The State will sign contract with foreigners for certain commercial purposes. If the state fails to comply
with the terms of contract there’s breach of the contract. And the foreigner can claim compensation
according to the municipal law of the state. If that’s not enough then he may approach his home state to
take political actions against the other state.
LIABILITY FOR THE ACTS OF MULTINATIONAL CORPORATION
Charter of economic rights and duties of the state 1974 recognises the right of each state to regulate and
supervise the activities of transnational corporations within its jurisdiction and to take measures to ensure
that such activities comply with laws, rules and regulations and confirm with its economic and social
policies.
STATE RESPONSIBILITY FOR ENVIRONMENT
Every state has the duty to protect the natural environment to conserve and sustainably use the natural
resources, keep them free from any kind of pollution and take effective measure to prevent any damage to
private individual and their property. Compensation will be awarded to such victims, this has been laid
down in Principle 22 of Stockholm declaration.

65

1 0
FAILURE TO RESPECT THE TERRITORIAL RIGHT OF OTHER STATES
A breach arises when there is failure to respect the territorial rights of another state due to the prohibition
of the use of force contained in Article 2 of UN Charter. It gives rise to responsibility of the offending
state.
DAMAGE TO STATE PROPERTY
If a state through its acts or omission is the direct cause of damage to the property of a foreign state, then
it is liable to make reparation for damage caused.
CORFU CHANNEL CASE – UK VS ALBANIA
Albania failed to notify all ships of the existence of a minefield in its territorial waters. Here it breached
certain general and well recognised principle which is elementary in consideration of humanity, principle
of the freedom of maritime communication, etc.
UNLAWFUL ARREST OF A WANTED CRIMINAL ON THE TERRITORY OF ANOTHER
STATE
Attorney General of the Government of Israel vs Eichmann (1961)
Adolf Eichmann, head of the Jewish office of the Gestapo during World War II, was convicted of war
crimes, crimes against the Jewish people, and crimes against humanity. Although the crimes were not
committed on the territory of Israel (which at the time did not exist as a state), the court held that such
acts could be tried by any state that had custody of the defendant. Eichmann had, in fact, been abducted
from Argentina by Israeli agents.
Argentina complained to the Security Council of the abduction of Eichmann by Israeli agents without the
knowledge of Argentinean Government and also stated that acts such as these effect the sovereignty of
member state and endangers international peace and security. It requested that the Government of Israel to
make appropriate reparations to the Government of Argentina.
BY ALLOWING TOXIS FUMES TO ESCAPE INTO THE TERRITORY OF ANOTHER STATE
Trail Smelter Case
Facts: The Tail Smelter located in British Columbia since 1906, was owned and operated by a Canadian
corporation. The resultant effect of from the sulphur dioxide from Trail Smelter resulted in the damage of
the state of Washington between 1925 and 1937. This led to the United States (P) suit against the Canada
(D) with an injunction against further air pollution by Trail Smelter.
Issue: Is it the responsibility of the State to protect other states against harmful acts by individuals from
within its jurisdiction at all times?
Held: Yes. It is the responsibility of the State to protect other states against harmful act by individuals
from within its jurisdiction at all times. No state has the right to use or permit the use of the territory in a
manner as to cause injury by fumes in or to the territory of another or the properties or persons therein as
stipulated under the United States (P) laws and the principles of international law. By looking at the facts
contained in this case, the arbitration held that Canada (D) is responsible in international law for the
conduct of the Trail Smelter Company. Hence, the onus lies on the Canadian government (D) to see to it
that Trail Smelter’s conduct should be in line with the obligations of Canada (D) as it has been confirmed
by International law. The Trail Smelter Company will therefore be required from causing any damage
through fumes as long as the present conditions of air pollution exist in Washington. So, in pursuant of

66

1 0
the Article III of the convention existing between the two nations, the indemnity for damages should be
determined by both governments. Finally, a regime or measure of control shall be applied to the
operations of the smelter since it is probable in the opinion of the tribunal that damage may occur in the
future from the operations of the smelter unless they are curtailed.
Discussion: Responsibility for pollution of the sea or the existence of a duty to desist from polluting the
sea has never been laid at the feet of any country by any international tribunal. Although regulation of
pollution is just commencing, it must ensure that there is equilibrium against freedom of the seas
guaranteed under general and long established rules of international law.
CONSEQUENCES OF STATE RESPONSIBILITY
1. Restitution
It means re-establishing the situation which would have existed if the wrongful act or omission has not
taken place. It may be done by performing the obligation which the state has failed to discharge or by
revocation of the unlawful act or abstaining from further wrongful conduct.
2. Indemnity
It takes place only when restitution is not possible.
3. Satisfaction
It may be defined as a measure which the author of breach of duty is bound to take under customary
law or under an agreement by the parties to a dispute, apart from restitution or compensation.

67

1 0
 STATE SUCCESSION
State Succession means substitution of one state by another over a territory. It signifies the transfer of
rights and duties from one international person to another. The term State Succession is a misnomer it
should not be understand in the common term as used in private law i.e., succession after death. In
International Law context, it means change of sovereignty over territory either by acquisition or loss of
sovereignty.
According to Oppenheim when any question is to be decided by consent each state is entitled to have one
vote. Several efforts have been made to formulate and codify rights and duties of States. Declaration of
Rights and Duties of Nations proclaimed by the American Institute of International Law.
State Succession involves:
1. Passing of rights and obligation upon external change of sovereignty over territory.
2. Passing of internal changes of sovereignty.
The Vienna Convention on Succession of States in respect of treaties of 1978 defines State Succession
U/A 2(1) (a) as the replacement of one state by another in the responsibility for the international relations
of territory. A state which has replaced another state is called the Successor State or in some cases New
State. Edward Collins says: “A succession of Government occurs when the government of a state is
replaced with a new one. State succession occurs when a state ceases to exist or a new state is formed
within the territory of an existing state or territory is transferred from one state to another state.
KINDS OF STATE SUCCESSION
1. Universal Succession
Where the personality of the predecessor state is completely destroyed and is observed by another
international personality is completely destroyed. This may happen through voluntary merger, annexation
or subjugation.
Example: Prussia annexed Hanover in 1866; Unification of West Germany and East Germany.
2. Partial Succession
When a part of the state is severed from the parent state and personality is effected only to the severed
extent.
Example: Secession, cession, conquest, annexation of a part, dismemberment i.e., when a state is replaced
by two or more states. Secession of Estonia, Latvia and Lithuania in 1991 from USSR. Replacement of
Soviet Union by 12 sovereign states in December 1991. Replacement of Czechoslovakia by Czech
Republic and Slovak Republic in 1993.
In Cases where the loss of territory is considerable or where a state losses certain essential portion of the
territory it may mean the dissolution or end of the state.
Example: Republic of Yugoslavia
THEORIES OF STATE SUCCESSION
1. Universal succession theory.
2. Popular continuity theory.
3. Organic substitution theory.
4. Self-abnegation theory.

68

1 0
 5. Clean slate theory.
6. Socialistic theory.
7. Option theory.
8. Burden with benefit theory.
9. Populace benefaction theory.
CONSEQUENCES OF STATE SUCCESSION [RIGHTS AND LIABILITIES OR OBLIGATIONS
ARISING OUT OF SUCCESSION]
1. Treaties: The effect of state sovereignty in relation to treaties has always been a matter of
controversy. The effect of State Succession on different kinds of treaties:
i. Personal Treaties (Political Treaty) – These treaties are concluded due to the personal
influence of the contracting parties, such as those relating to peace, alliance, friendship, etc.
Such treaties are not binding on the State Succession. Before it was regarded as ending with
the extension of personality of a state but now State Succession generally continues all those
treaties which conform to its interest and suits according to its circumstances.
ii. Commercial Treaties – These are also not binding on State Succession. Only those which
are consistent with the new state of affairs are continued.
iii. Administrative Treaties – Example: Extradition treaty, avoidance of double taxation. The
continuation of such treaties depends upon the discretion of the State Succession. But is
desirable in order to have effective international judicial administrative system and peace and
order that these are continued.
iv. Dispositive Treaties – Real or Localized Treaties – These create right in rem and these rights
are permanent and independent of the states personality. Example: Servitudes and Frontier
Agreements.
v. Multilateral Treaties – This is generally continued as it is for the benefit of all the states.
However successor state is not bound to continue such treaties if it is not consistent with the
interest of new state.
2. Membership of International Organization Constitutions of most of the International Organization
exclude the possibility of succession and therefore the question of succession of membership does
not arise. Each and every state is required to apply a fresh in order to become a member of such
organization irrespective of the fact that its predecessor was a member of that particular
organization.
3. Property
i. Public Property: Vienna Convention on State Succession in respect of state property
archives and debts 1983 U/A 8 defines state property as property rights and interest which at
the date of the succession of states were according to the internal law of the predecessor state
owned by that state. It is an established principle of International Law that the successor state
takes over all the public and propriety rights of its predecessor state. State Immovable
Property such as fixed military installations, prisons, airports, government offices, state
hospital etc. passes to successor state. Movable State Property of the predecessor state
connected with the activity of the predecessor state in respect to the territory to which the
succession of state applies shall pass to the successor state.
ii. Public Property: In case of Cession, private property remains with the parent state.
iii. Property lying in Foreign State: The successor may claim any state property in the territory
in which it acquires sovereignty.

69

1 0
 4. State Achieves has been defined in the present context under Article 20 of 1983 Vienna
Convention as all documents whatever date and time produced or received by the predecessor
state in the exercise of its functions which at the date of succession belong to the predecessor
state according to its internal laws.
5. Public Debt Defined as any financial obligation of the predecessor state arising in conformity
with International Law towards another state or an international organization or any other subject
of International Law. The above definition excludes the predecessor’s states debts towards private
person. Normally no state considers itself to remain bound by the debts and liabilities of the
predecessor state. If the successor states accepts the benefits of the predecessor state, it becomes
by moral obligation to accept its burdens as well.
6. Contract Law relating to contract on succession of a state is not well established and state practice
is also not uniform. State practice suggests that succession of contracts depend upon the
discretion of the successor state. But concessionary contracts which are of the local nature and
which creates permanent rights such as digging of mines, laying and running of railways, etc, are
normally accepted by the successor state. In such cases it is not the contract which passes on to
the successor state, but what is continued are the rights acquired under it and obligations incurred.
7. Torts State Succession is not bound to assume the unliquidated damages for the torts of the
predecessor state. If however the amount of the claim has become liquidated by agreement of the
parties or through judgement or award of a tribunal, successor state may be bound to settle the
claim of this liquidated claim.
8. Laws : It is a recognised principle of International Law that law once enforced are not changed
merely by the change of sovereignty over a territory. They are continued by the successor state
event if it is inconsistent with the interest until and unless new laws are made.
CONCLUSION
To Conclude, State Responsibility refers to ‘liability’ of a state under International law. It arises from
the breach by a state of an International obligation. That obligation can be one of the customary
international law or a treaty obligation.

70

1 0
 UNIT-4
 State and Individual- Extradition,
 Asylum and Nationality;
 the Agents of international business;
 diplomatic envoys, consuls and other representatives;
 The law and practice as to treaties.

QUESTIONS
1. Define Extradition? Explain the essential conditions for extradition? For which crime
extradition cannot be claimed. Discussed
2. What is Asylum? Explain the different kinds of Asylum?
3. Define Asylum, its essentials and types of asylum. What are the differences between
extra territorial asylum and territorial asylum?
4. What is Nationality? What are the various modes of acquiring and losing nationality? Is
there any difference between nationality and citizenship in India?
5. What are the categories of diplomatic agents? What immunities do diplomat enjoy and
how the immunities are lost?
6. Define Treaty. What do you understand by ratification of a Treaty?

71

1 0
 NATIONALITY
INTRODUCTION:-
Nationality is a legal relationship between an individual person and a state. Nationality affords the state
jurisdiction over the person and affords the person the protection of the state. What these rights and duties
are varies from state to state.
By custom and international conventions, it is the right of each state to determine who its nationals are.
Such determinations are part of nationality law. In some cases, determinations of nationality are also
governed by public international law—for example, by treaties on statelessness and the European
Convention on Nationality.
Nationality differs technically and legally from citizenship, which is a different legal relationship between
a person and a country. The noun national can include both citizens and non-citizens. The most common
distinguishing feature of citizenship is that citizens have the right to participate in the political life of the
state, such as by voting or standing for election. However, in most modern countries all nationals are citizens
of the state, and full citizens are always nationals of the state.
Definitions of Nationality:
Starke, “Nationality has been defined as the status of membership of the collectively of individual whose
acts decision and policy are vouchsafed through the legal concept of the State representing these
individuals.”
Prof. Oppenheim, “Nationality of an individual the quality of being a subject of a certain State and
therefore its citizens.”
Fenwick:-“Nationality is such a bond which binds an individual with a state and makes him a member of
that specific State and provides for right of protection from that State with an obligation to abide the laws
promulgated by that State,”
Kelson:- “Citizenship or Nationality is the status of an individual who is legally an member of a state and
ornamentally he can be called a member of that community.”
IMPORTANCE OF NATIONALITY: -
i) The right of protection of diplomatic representatives are available because of nationality.
ii) If any state does not restrain a person of its nationality from such disadvantageous action which are
affecting other States then the first State shall be responsible to other states for such actions of its
nationals.
iii) Ordinarily states do not refuse to accept its nationals in extradition.
iv) One of the effects of the nationality is that the state has a right to refuse extradition of own national.
v) By the practice of many States, at the time of war the Enemy character is determined on the basis
of nationality.

72

1 0
 MODES OF ACQUISITION OF NATIONALITY:- According to International Law nationality can be
obtained by following means :-
1. By Birth: - In the country in which a person is born he obtains the nationality of that country by birth or at
the time of birth person gets the same nationality which his parents are having.
2. By Naturalization: - By naturalization also nationality can be obtained. When an alien living in a country
obtains the nationality of that country it is called naturalization.
In Nottebohm case-1955, it was held that a State has no obligation in granting nationality to a person through
naturalization if that person has no relations with that state. The court propounded the real and effective
nationality doctrine. If any person obtains nationality of two states then in case of controversy between the
two nationalities the nationality of that state shall be accepted with which the person fundamentally has real
and effective relationship.
3. By Resumption:-Sometimes it so happens that a person may lose his nationality because of certain reasons
subsequently he may resume his nationality after fulfilling certain conditions.
4. By Subjugation:-When a State is defeated or conquered all the citizens acquire the nationality of the
conquering State.
5. Cession:-When a state has been ceded in another State all the people of the territory acquire nationality of
the State in which their territory has been merged.
LOSS OF NATIONALITY
1. By Release:-In some states there are such legal provisions are available by which they grant permission
to release their nationals from its nationality. For this type of release an application is necessary. If the
application for release is accepted then the applicant is released from the nationality of that state.
2. By Deprivation:-Often in many states such legal provisions are available by which if a national of that
state enters into service of another state without the permission of home state. He would loss nationality.
3. By long residence abroad:- The loss of nationality may take place on the ground that the individual
stayed abroad beyond a certain time limit. Many states have such type of legal provisions which terminates
the nationality for the stay of beyond limit.
4.By Renunciation:- It may also be the cause of loss of nationality, when a person is having nationality of
two or more states, he has to choose the nationality of one & has to renounce the nationality of other state.
5. By Substitution:-In some states the nationality is terminated by substitution. A person gets nationality
of one state in place of other states.
NATIONALITY AND CITIZENSHIP:
Nationality and Citizenship are often considered to be synonymous with each other. But the term
nationality differs from citizenship. Nationality has reference to the jural relationship which may arise from
consideration under International Law. On the other hand, citizenship has reference to the jural relationship
under municipal law. In other words, nationality determines the civil rights of a person, natural or artificial,
particularly with reference to the International law, whereas citizenship is intimately connected with civil
rights under the municipal law. Hence all citizens are nationals of a particular state, but al nationals may
not be citizens of the State. In other words, citizens are those persons who have full political rights as
distinguished from nationals, who may enjoy full political rights and are still domiciled in that country.

73

1 0
 DIFFERNCE BETWEEN NATIONALITY & CITIZENSHIP
NATIONALITY
The legal relationship which exists between the
nation & Individual.
Through Nationality the civil & natural rights
of a person may come.
All citizens may possess the nationality of a
particular state.
A person who possesses only nationality in a
particular state may not possess all political
rights.
CITIZENSHIP
Denotes the relations between the person and
the state law.
The rights of citizenship are the sole concern
of state law.
It is not necessary that all the nationals may be
the citizens of that particular state.
Citizens are those persons who possess full
political rights in the state.

DOUBLE NATIONALITY:
As the Nationality laws of different States are different, conflicts may arise. Hence, in a State where both
Jus Soli and Jus Sangauinis are recognised, a child born there may acquire two nationalities. A child born
of German Parents in India, acquires Indian Nationality by birth and German Nationality by parentage.
Similarly, a woman marrying a person of another State may acquire Double Nationality.
The Hague .Convention of 1930, on the conflict of Nationality Laws provided for treating a person who
had double nationality as one who has only one Nationality.
The U.N. has made provisions relating to the mitigation of the artificial link. Married woman may retain
their pre- marriage nationality.
STATELESSNESS:
This is a peculiar condition recognised by both the municipal law and International law. The Universal
Declaration of Human Rights provided that everyone has a right to Nationality, and that no one should be
arbitrarily deprived of his Nationality.
Statelessness may arise by:-
1. Change of sovereignty over territory or
2. Denationalisation by States.
The consequences are grave. There will be a great hardship and insecurity to the Stateless person as
there will be no State to protect him and of his interests.
International Law has provided for certain remedies:
Imposing duties on States to regard Nationality as acquired.
a) Making States oblige in not passing denationalization laws.
b) Granting of Nationality by Liberal-minded States.
c) Reliefs provided for in the Geneva Convention 1954.
d) International Refugee Organization has to a large extent solved this problem.
CONCLUSION
To Conclude, Nationality constitutes an important link between the individual and the state. It
establishes a continuing relationship between the sovereign state on the one hand and the citizen on the
other. The fundamental basis of a man’s nationality is his membership of an independent state.

74

1 0
 EXTRADITION
Introduction
Extradition is the conventional process in which a person is surrendered by one state to another on the
basis of a treaty, or comity, or some bilateral arrangement between the two sovereign states. This request
of extradition made by a sovereign state is usually initiated at first place because the individual demanded
by the state is charged with a crime but not tried, or tried and convicted yet the accused escaped and
reached the territory of the other sovereign state.
This process is also known as Rendition, which is handing over or surrendering of a convicted person or
accused from one state jurisdiction to another where the accused is alleged to have committed a crime.
Meaning
The term extradition has been derived from two Latin words “ex” meaning from/out of and “tradition”
means handing over. Extradition is the delivery of an accused or a convicted individual to the State on
whose territory he is alleged to have committed or to have been convicted of a crime.
Extradition involves two states:

 Territorial state: where the accused is found

 Requesting state: where crime was committed
Definition
According to Oppenhiem “it is the delivery of an accused or a convicted individual to the state where he
is accused of by the state on whose territory he happed to be for the time”.
In Black’s Law Dictionary, extradition has been defined as “The surrender by one state or Country to
another of an individual accused or convicted of an offense outside its own territory and within the
territorial jurisdiction of the other, which, being competent to try and punish him, demands the
surrender.” Hence it can be summarised that Extradition is the act of sending a person from one
jurisdiction to another where he/she is accused of committing a crime and is being demanded to get them
tried as per the legal procedure in the sovereign demanding such person.
According to Starke, “The term extradition denotes the process whereby under treaty or upon a basis of
reciprocity one state surrenders to another at its request a person accused or convicted of a criminal offence
committed against the laws of the requesting state.
PURPOSE OF EXTRADITION:
The purpose of extradition is to make sure that criminals are surrendered from one country to another
which leads to mutual cooperation between states in control, prevention, and suppression of international
and domestic criminality. At present in this era of globalization, where certain groups and individuals are
conducting trade and business by various means and channels at an unprecedented manner, most of the
crimes have become cross-border in nature & thus the obligation on part of the states to extradite has
gained enough significance and value over the years.
In the Supreme Court case of Abu Salem Abdul Qayoom Ansari vs. State of Maharashtra [(2011) 11
SCC 214], Justice Sathasivam was of the view that with the tremendous increase in the international
transport and communication, extradition has taken prominence since the emergence of the 21st century.
A criminal is extradited to the requesting state because of the following reasons:

75

1 0
 1. Suppression of crime
2. Warning to criminals, that they cannot escape punishment
3. Safeguard interest of territorial state
4. Reciprocity. A state which is requested to surrender the criminal today may have to request for
extradition of a criminal on some future date.
5. It’s a step towards achievement of international co-operation in solving international problems
6. Requesting state is in better position to try offender because evidence is easily available there.
LAWS OF EXTRADITION:
1. Extradition treaties- the first and the foremost important condition of extradition is the existence of
an extradition treaty between the territorial state and the requesting state, some states such as US,
Belgium and Netherlands require a treaty as an absolute pre condition. The strict requirement of an
extradition treaty may be regarded as the most obvious obstacle to international co-operation in
suppression of crimes. It is therefore, desirable that states conclude extradition treaties with as many
states as possible to suppress the crime.
2. Extradition of political offender- it is a customary international law that political offenders are not
extradited. In other words, they are granted asylum by the territorial state. During the days of
monarchs, extradition of political offenders was very common but the practice underwent a complete
change with the beginning of French revolution. The French constitution under Art 120 made a
provision for granting asylum to those foreigners who exiled from their home country for the cause of
liberty. At present, non-extradition of political offenders has become a general rule of international
law and therefore it is one of the exceptions of extradition.
Basis of non-extradition of political offender:
i. Humanity
ii. Fear of not being treated fairly
iii. Political offenders are not dangerous for the territorial state
iv. The object of the political offender to take shelter in another country is not the same as those
of the ordinary criminals.
Exceptions of political offenders:
i. Genocide convention
ii. Convention on apartheid
iii. Crimes against humanity.
iv. Hijacking, torture or hostage
v. There is no protection for former government officials guilty of human rights abuses.
What is a political offence?
One of the most complicated questions which arises is, the meaning of the term “political offence”. In
few cases, judges did not consider it necessary to lay down an exhaustive definition of the term political
offence. Hence, they did not make any attempt to define the term.
Re Castioni case: Castioni killed a Switzerland govt. officer and escaped to England. Lord Denman held,
“for an offence, to be political it must at least be shown that,
i. Act was done in furtherance of, or
ii. With the intention of assistance of, or
iii. An overt act

76

1 0
In the course of acting in political matter or a political rising, or a dispute between two parties in a state as
to which is to have the government and it should be clear that the man was acting as one of the many
engaged in acts of violence of a political character, political struggle or disturbance, during which two or
more parties in the state are contending each other to impose government.
This view which was also observed in Re Meunier case is very narrow. Sometimes a group of people
may force the government to do or not to do any particular act and in their course of persuasion they may
commit crimes that are also political in nature even though their object is not to overthrow the
government.
Ex Parte Kolczynski Case:
In this case the definition of political offence was widened. Political offence must always be considered
according to the circumstances existing at the time when they have to be considered. The crime need not
be committed by an organised party to overthrow the government. Membership of a political party is not
required and if any ordinary crime is committed in the course of committing any offence against the
state, that would be considered political because of its close association with the politics of the state.
3. Doctrine of double criminality- Double criminality is a requirement in the extradition law of many
countries. It states that a suspect can be extradited from one country to stand trial for breaking a
second country's laws only when a similar law exists in the extraditing country. Example: if Country
A has no laws against blasphemy, double criminality could prevent a suspect being extradited from
Country A to face blasphemy charges in another country. In order to ensure that a crime is recognized
in both states, a list of extraditable offences is attached in the extradition laws of some states.
The rule of double criminality has put a state into difficult situation when it has to request another state
for extradition in respect of those offences which do not find place in the list of crimes embodied in a
treaty. In order to overcome the above difficulty it is desirable that instead of laying down the names of
various crimes specifically in the treaty. Some general criterion should be adopted.
4. Rule of specialty-
According to this principle, a fugitive maybe tried by the requesting state only for that offence for
which he has been extradited. In other words, the requesting state is under a duty not to try or punish
the fugitive criminal for any other offence than that for which he has been extradited. The rule has
been made to provide safeguard to the fugitives against fraudulent extradition.
In US vs. Rauscher, the accused was extradited on the charge of murder, but he was tired and
convicted in US on a minor charge of causing cruel and unusual punishment on a member of the
crew. He made an appeal before the supreme court of the US which quashed the conviction and
ordered the release of the prisoner on the ground that unless otherwise provided for the treaty, the
prisoner could only be charged with the offence for which he was extradited unless he was given
reasonable time to return to the country which surrendered him.
5. Prima facie evidence- there should be a prima facie evidence of the guilt of the accused. Before a
person is extradited, the territorial state must satisfy itself that is a prima facie evidence against the
accused for which extradition is demanded. The purpose of laying down the rule of prima facie
evidence is to check fraudulent extradition.
6. Time-barred crimes- a fugitive criminal shall not be surrendered, if he has tried and has served
sentence for the offence committed in the territorial state. Thus extradition is not granted if the
offence for which extradition has been made has become time-barred.

77

1 0
7. Extradition of own nationals- in many cases a person after committing a crime in a foreign country
flees back to his own country. Whether a state would extradite such persons to a where crime has
been committed is a controversial point and practice differs on it. Extradition or non-extradition of its
own nationals depends upon the wording of the extradition treaties.
8. Military offenders- extradition treaties generally exclude military offences.
CONCLUSION
Each State exercises complete jurisdiction over all the persons within its territory. But sometimes there may
be cases when a person after committing crime runs away to another country. In such a situation the country
affected finds itself helpless to exercise jurisdiction to punish the guilty person. This situation is
undoubtedly very detrimental for peace and order. There is a social need to punish such criminals and in
order to fulfil this social necessity the principle of extradition has been recognised.

78

1 0
 ASYLUM
INTRODUCTION
The term Asylum is referred to those cases where the territorial state declines to surrender a person to
the requesting state, and provides shelter and protection in its own territory.
A state has a right to grant asylum to a person on the principle that it has sovereign right to control over
the individuals found on its territory. This right is exclusive in the sense that other states are excluded to
exercise the jurisdiction over the same territory. The draft convention on territorial asylum adopted by the
general assembly in 1974 has recognized under article 1 that the grant of asylum is a sovereign right of a
state. Although states have a right to grant asylum to a person found on its territory, the right presently is
not absolute. The present trend is that states are under a duty not to grant asylum to those who have
planned, facilitated or committed terrorist acts.
If extradition for a crime is included in a treaty then states cannot grant asylum for it. The right grant
asylum is not absolute, the Security Council by adopting resolution on September 28th 2001 held that “all
states shall deny safe haven to those who finance, plan, support or commit terrorist acts.
Meaning
The word asylum is Latin words ‘a’ (not) ‘sylon’ (right of seizure), and is derived from a Greek word
‘Asylia’ which means inviolable place. It is a sanctuary or place of refuge; any place of retreat and
security; an institution for receiving and maintaining persons suffering from certain bodily defects or
mental maladies; a refuge for the destitute. A person enjoying asylum may be referred to as an asylee.
Definition
J.G. Starke says that, Asylum involves two elements. Firstly, shelter, which is more than a temporary
refuge and secondly, a degree of active protection on the part of the authorities in control of the territory
of asylum.
V. Bevan, Asylum means refuge and active protection granted by a state to a person seeking such a
refuge and protection on the territory under its control.
Article 14 of UDHR, 1948 says, Everyone has a right to seek and enjoy in other countries asylum from
persecution.
BASIS OF ASYLUM:
A state has right to grant asylum because of the principle that it has a sovereign right to control over
individuals found within its territory and other states cannot interfere within a States jurisdiction.
REASONS FOR GRANTING ASYLUM:
A state may grant asylum to a person because of many reasons:
i. It is granted to save a person from the jurisdiction of the local authorities. It is feared that he would not
get fair trail, if extradited, because of the difference in views as to his political or religious activities.
ii. It may be granted on extra-legal grounds or to as on humanitarian grounds. The ICJ in the Corfu
channel case stated that “asylum may be granted on humanitarian grounds in order to protect political
offenders against the violent and disorderly actions of irresponsible sections of the population.

79

1 0
iii. National security also plays an important part in granting asylum. The offender who may be a rebel
today may become the ruler in future date. In such a case relationship would be strained if he is
extradited.
TYPES OF ASYLUM:
A state may grant asylum to a person in two ways. They are-
1) Territorial asylum- when asylum is granted by a state on its territory, it is called Territorial asylum.
The right to grant asylum by a state to a person on its own territory flows from the fact that every
state exercises territorial sovereignty over all persons, on its territory, whether they are its subjects or
aliens. A state has a right to admit or expel any person found in its territory. The grant of territorial
asylum therefore depends upon the discretion of a state which is not under a legal obligation to grant
asylum to a fugitive.
The lack of generally accepted rules regarding grant of territorial asylum led the general assembly to
adopt a resolution known as the declaration on territorial asylum through the adoption of a resolution.
Article 1 of the declaration provided that asylum granted by a state is to be respected by all other states. It
also states that the right to seek and enjoy asylum may not be invoked by any person with respect to
whom there are serious reasons for considering that he has committed a crime against peace, a war crime
or crimes against humanity.
2) Extra-territorial asylum- when asylum is granted by a state at places outside its own territory it is
called extra-territorial asylum.
i) Asylum at legation: when asylum is granted by a state within its embassy premises situated in
foreign countries it is known as asylum in legation or diplomatic asylum. This is based on the
consideration that embassy premises are regarded to be outside the jurisdiction of the territorial
state, and therefore inviolable. Asylum may be granted to individuals in legation premises in the
following cases- firstly, as a temporary measure, to individuals physically in danger from the mob
or from the fear of the government. Thus asylum is given to the person whose life has become
unsecured. Secondly, it is granted where there is a binding local custom in this regard. And thirdly,
when there is a treaty between the territorial state and the state which is represented by the legation
concerned.
ii) Asylum in consulates: rules regarding asylum in consulates are similar to that of asylum in legation
premises.
iii) Asylum in warship: men of war and public vessels of foreign states, while in the port of internal
waters of another state are exempted from the jurisdiction of the latter for certain purposes. They
remain under the jurisdiction of the flag state. However, such vessels are bound to observe the
ordinary laws of the port. As far as asylum in war ship is concerned, it, may be granted on the
ground of humanity, in cases of extreme danger to the individual seeking it. Thus, right to grant
asylum on war ship may be granted in the same way as in case of legation and also subject to the
operation of the same conditions. The fugitive once onboard, is perhaps immune from seizure by
the territorial state, but mere refuge does not exonerate the ships authority from the duty to deliver
up the offender.
iv) Asylum in merchant vessels: merchant vessels are not exempted from the jurisdiction, and
therefore, asylum cannot be granted to an offender. This if a person after committing a crime on
shore seeks asylum on board a foreign merchant vessel he may be arrested by the local police,
either before the ship leaves the port or when it comes into another port of the same state. There is
therefore, a rule that asylum is not granted on merchant vessels.

80

1 0
 State jurisdiction implies the competence to prescribe rules of law, the jurisdiction to enforce the
prescribed rules of law and the jurisdiction to adjudicate.[3] Accordingly, it is of three types: legislative
jurisdiction, executive jurisdiction and judicial jurisdiction.
(1) Legislative Jurisdiction
Legislative jurisdiction is the capacity of a State to prescribe rules of law (the power to legislate). A
State has the supremacy to make binding laws within its territory. It has a legislative exclusivity in many
areas. This supremacy is entrusted to constitutionally recognized organs.
Although legislation is primarily enforceable within a State territory, it may extend beyond its territory
in certain circumstances. International Law, for example, accepts that a State may levy taxes against
persons not within its territory as long as there is a real link between the State and the proposed taxpayer,
whether it is nationality or domicile.
The question of how far a court will enforce foreign legislation is a matter within the field of Private
International Law (conflict of laws). It is common practice of States that a State enforces civil laws of
another State, but it is rare to enforce the penal or taxes laws of another State.
The legislative supremacy of a State within its territory is well established in International Law.
However, this supremacy may be challenged in cases where a State adopts laws that are contrary to the
rules of International Law. In such cases, a State will be liable for a breach of International Law. A State
may also be liable for a breach of International Law if it abuses its rights to legislate for its nationals
abroad.
(2) Executive Jurisdiction
Executive jurisdiction is the capacity of a State to act and to enforce its laws within its
territory. Generally, since States are independent of each other and possess territorial sovereignty, they
have no authority to carry out their functions on foreign territory. No State has the authority to infringe
the territorial sovereignty of another State. In this sense, a State cannot enforce its laws upon foreign
territory without the consent of the host State; otherwise, it will be liable for a breach of International
Law.
(3) Judicial Jurisdiction
Judicial jurisdiction is the capacity of the courts of a State to try legal cases. A State has an exclusive
authority to create courts and assign their jurisdiction, and to lay down the procedures to be
followed. However, in doing so, it cannot by any means alter the way in which foreign courts operate.
There are a number of principles upon which the courts of a State can claim jurisdiction. In civil
matters, the principles range from the mere presence of the defendant in the territory of a State to the
nationality and domicile principles. In the criminal matters, they range from the territorial principle to the
1 0
universality principle. These principles are the subject of the followings discussed below:
Principles of Jurisdiction
 Generally, the exercise of civil jurisdiction by courts of a State has been claimed upon far wider
grounds than has been the case in criminal matters. The consequent reaction by other State with this
regard has been much mild. This is partly because public opinion is far more vigorous where a person is
tried in foreign territory for criminal offences than if a person is involved in a civil case. In addition,
International Law does not impose any restrictions on the jurisdiction of courts in civil matters.

48

1 0
 In Common Law countries such as the United States and United Kingdom, the usual ground for
jurisdiction in civil cases is the service of a writ upon the defendant within the country, even if the
presence of the defendant is temporary and incidental. In Civil Law countries, the usual ground for
jurisdiction is the habitual residence of the defendant in the country. In some countries such as
Netherlands, Denmark and Sweden, generally courts assert their jurisdiction if the defendant possesses
assets in the country; however, in matrimonial cases the commonly accepted ground for jurisdiction is the
domicile or residence of the plaintiff.
As far as criminal jurisdiction is concerned, the grounds or principles of jurisdiction mostly invoked by
States are as follows.
(1) The Territorial Principle
The territorial principle is derived from the concept of State sovereignty. It means that a State has the
primary jurisdiction over all events taking place in its territory regardless of the nationality of the person
responsible. It is the dominant ground of jurisdiction in International Law. All other State must respect
the supremacy of the State over its territory, and consequently must not interfere neither in its internal
affairs nor in its territorial jurisdiction.
The territorial jurisdiction of State extents over its land, its national airspace, its internal water, its
territorial sea, its national aircrafts, and its national vessels. It encompasses not only crimes committed on
its territory but also crimes have effects within its territory. In such a case a concurrent jurisdiction
occurs, a subjective territorial jurisdiction may be exercised by the State in whose territory the crime was
committed, and an objective territorial jurisdiction may be exercised by the State in whose territory the
crime had its effect.
Although jurisdiction is primarily and predominantly territorial, it is not exclusive. A State is free to
confer upon other States the right to exercise certain jurisdiction within its national territory. States are
free to arrange the right of each one to exercise certain jurisdiction within each national territory. The
most significant recent examples of such arrangements are: the 1991 France-United Kingdom Protocol
Concerning Frontier Control and Policing, under which the frontier control laws and regulations of each
State are applicable and may be enforced by its officers in the control zones of the other; the 1994 Israel-
Jordan Peace Treaty, under which the Israeli criminal laws are applicable to the Israeli nationals and the
activities involving only them in the specified areas under Jordan’s sovereignty, and measures can be
taken in the areas by Israel to enforce such laws.
(2) The Nationality Principle
The nationality principle implies that a State jurisdiction extends to its nationals and actions they take
beyond its territory. It is based upon the notion that the link between the State and its nationals is personal
one independent of location.
Criminal jurisdiction based on the nationality principle is universally accepted. While Civil Law
countries make extensive use of it, the Common Law countries use it with respect to major crimes such as
murder and treason. The Common law countries, however, do not challenge the extensive use of this
principle by other countries.
A State may prosecute its nationals for crimes committed anywhere in the world; the ground of this
jurisdiction is known as active nationality principle. Also, it may claim jurisdiction for crimes committed
by aliens against their nationals abroad; the ground of this jurisdiction is known as passive nationality
principle. This last principle has been viewed as much weaker than the territorial or active nationality

49

1 0
principle as a basis for jurisdiction. It has been considered as a secondary basis for jurisdiction, and a
matter of considerable controversy among States. However, in recent years this principle has come to be
much acceptable by the international community in the sphere of terrorist and other internationally
condemned crimes.
(3) The Protective principle
The protective principle implies that a State may exercise jurisdiction over an alien who commits an
act outside its territory, which is deemed prejudicial to its security and interests. It is universally accepted,
although there are uncertainties as to its practical extent, particularly as regard to the acts which may
come within its domain. It is justified on the basis of protection of State’s vital interests, particularly when
the alien commits an offence prejudicial to the State, which is not punishable under the law of the country
where he resides and extradition is refused.
Although the protective principle is used as a secondary basis for jurisdiction and in a
narrower sense than the territorial or the nationality principle, it can easily be abused, particularly
1 States.
in order to undermine the jurisdiction of other 0 In practice however, this principle is
applied in those cases where the acts of the person which take place abroad constitute crimes
against the sovereignty of the State, such as plots to through a government, treason, espionage, forging a
currency, economic crimes and breaking immigration laws and regulations. This principle is often used in
treaties providing for multiple jurisdictional grounds with regard to specific crimes, such as the 1979
Hostage Convention and the 1970 Hague Aircraft Hijacking Convention.
(4) The Universality Principle
The universality principle, in its broad sense, implies that a State can claim jurisdiction over certain
crimes committed by any person anywhere in the world, without any required connection to territory,
nationality or special State interest. Before the Second World War, such universal jurisdiction has been
considered as contrary to International Law by the Common Law countries, except for acts regarded as
crimes in all countries, and crimes against the international community as a whole such as piracy and
slave trade.
After the Second World War, universal jurisdiction has been universally recognized over certain acts
considered as international crimes. International crimes are those crimes committed against the
international community as a whole or in violation of International Law and punishable under it, such as
war crimes, crimes against peace and crimes against humanity. In recent years, crimes such as Hijacking
of aircraft, violation of human rights and terrorism, have been added to the list of international crimes.
Today under the universality principle, each State and every State has jurisdiction over any of
the international crimes committed by anyone anywhere.

Immunity from Jurisdiction

The concept of jurisdiction is derived from the concept of sovereignty, and is connected with the
principles of equality and non-interference in domestic affairs of other States. The grounds for jurisdiction
are related to the duty of a State under International Law to respect the territorial integrity and political
independence of other States. Immunity from jurisdiction is grounded on this duty, and constitutes
derogation from the host State jurisdiction.
Under International Law, immunity from jurisdiction is granted to certain persons, namely States
(sovereigns) and their diplomatic and consular representatives, and international
organizations.

50

1 0
EXEMPTION TO THE TERRITORIAL JURISDICTION
There are some exceptions of the exercise of jurisdiction which definitely recognizes the protective
jurisdiction of one state to deal with foreign nationals acting in their country against its security and
integrity:-
1. Diplomatic Agents:- Diplomatic agents enjoy certain privileges and immunities. They are immune
from the jurisdiction of the civil and criminal courts of the receiving State. In this connection the old
view was that the diplomatic agents enjoy these immunities and privileges because they were deemed
to be outside the jurisdiction of receiving State. In the present time this theory has been discarded.
Modern view diplomatic agents enjoy certain immunities and privileges because of the special
functions they perform. This was affirmed in a case Ex-parte Petroff-1971 by the Supreme Court of
Australia.
2. Foreign Embassies: - Foreign embassies are often considered to be outside the jurisdiction of the State
in which they are situated. For sake of convenience embassies are to be treated a part of their home
States. The correct view however is that though not part of their home States embassies enjoys certain
immunities because of the special functions performed by the diplomatic agents.
3. Foreign Sovereigns:-Foreign sovereigns are often treated to be outside the jurisdiction of other states
and possess many privileges and immunities. In the case of Christina-1938, Lord Wright observed that
there are general principles of International Law according to which a sovereign state is held to be
immune from the jurisdiction of another sovereign State.
The principle of immunity of immunity of Foreign Sovereign was developed in the early years of the
nineteenth century. In the case of the Schooner Exchange v/s McFaddon-1812, A French Naval Vessel
stayed in Philadelphia for repairs after a storm. Some persons sought possession of the ship on the ground
that in reality the ship Schooner Exchange. An American ship which they owned and was seized by French
on the High Seas in 1810 in pursuance of a Napoleonic Decree. The U.S. Govt. however requested the
court to refuse jurisdiction on the ground of sovereign immunity. Court held that the vessel was exempt
from U.S. Jurisdiction.
The jurisdiction of the nation within its own territory is necessary exclusive and absolute. It is
susceptible of no limitation not imposed by it. In another case of Vavasseur v/s Krupp-1878, the plaintiff
contended that the Japanese Govt., has violated
1 his 0patent rights and therefore he demanded that the delivery
of the goods by it be stopped. But the court had that it had no jurisdiction over the property of the foreign
sovereigns more especially with what we call the public property of the State of which he is sovereign.
4. Property of foreign sovereigns: the property of foreign sovereign remains immune from jurisdiction
of the state. As long as the foreign sovereign has some interest in the property, it remains immune, and
it is immaterial for what purpose the property is employed. In the Parliament Belge, the defendant ship
was owned by the king of the Belgians, it was a mail boat which carried passengers and some cargo on
the channel crossing. The court held that a public vessel was not entitled to immunity if it engages in
the carrying of passengers as a commercial nature. However the decision was reversed by the court of
appeal on the basis that as a consequence of the absolute independence of every sovereign state to
respect the independence and dignity of every other sovereign state, each and every one should decline
to exercise by means of its court any of its territorial jurisdiction over the public property of any state
which is destined to public use.
5. Foreign armed forces: armed forces of a state remain in the foreign territory on several occasions in
the service of their home state. Such forces are considered by some to be extra-territorial, and therefore
they remain under the jurisdiction of the state to which they belong. Thus, if a crime has been committed

51

1 0
 on foreign territory by a member of these forces he cannot be punished by the local, civil or military
authorities. Punishment can be given only by the commanding officer of the forces or the authorities of
their home.
6. Foreign warships and their crew: men of war, being in fact a part of armed forces of a state are
deemed organs like armed forces. The territorial waters and ports of the states are as a general rule open
to men of war, unless they are not excluded by special agreements. It does not mean that men of war
can do what they like in foreign waters. They are expected to comply voluntarily with the laws of the
littoral states.
7. Consular Immunity
A consular officer, like a diplomatic agent, represents his State in the receiving State. However, unlike
a diplomatic agent, he is not concerned with political relations between the two States, but with a variety
of administrative functions, such as issuing visas and passports, looking after the commercial interests of
his State, and assisting the nationals of his State in distress. Thus, he is not granted the same degree of
immunity from jurisdiction as a diplomatic agent.
Notably nowadays, many States combine its diplomatic and consular services. Thus, a person who
acts simultaneously as a diplomat and consul enjoys diplomatic immunity.
Under the 1963 Vienna Convention on the Consular Relations, a consular officer (the head of the
consular post and any person entrusted to exercise consular functions) is immune from an arrest or
detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent
judicial authority. He is immune from imprisonment or any other restriction on his personal freedom save
in execution of a final judicial decision. If criminal proceedings are instituted against him, he must
appear before the competent authorities. The proceedings must be conducted in a manner that respects
his official position and does not hamper the exercise of consular functions, and with the minimum delay.
A consular officer is immune from the jurisdiction of the judicial or administrative authorities of the
receiving State only in respect of acts performed in the exercise of consular functions. He is exempt from
all dues and taxes, except in certain cases. In addition, the consular premises, archives and documents are
inviolable.
A consular officer enjoys the immunities from the moment he enters the territory of the receiving State
on proceeding to take up his post or, if already in its territory, from the moment when he enters on his
duties. The same immunities are enjoyed by members of the family of the consular officer from the date
which he enjoys his immunities.
The immunities of a consular officer may be waived by the sending State. The waiver must be
express. However, the waiver of immunity from jurisdiction for the purposes of civil or administrative
proceedings does not imply waiver of immunity from the execution of a judicial decisions; in such case, a
separate waiver is required. Immunity may also be waived by the consular officer himself, by submitting
voluntarily to the jurisdiction of the court of the receiving State.
.8. Immunities of International Organizations
It is uncertain which immunities and to what extent international organizations enjoy under customary
International Law; the position of this law is far from clear. Actually, immunities are granted to
international organizations by treaties, or by headquarters agreements concluded with the host State where
the organization is seated.

1 0
52
 The purpose of immunity granted to international organizations is purely functional. Immunity is
regarded as functionally necessary for the fulfillment of their objectives. It is not a reflection of
sovereignty, as it is in case of a State, except only indirectly when aiming to protect the interests of the
member States of the organization.
Probably the most important example of treaties providing immunities to international organizations is
the 1946 General Conventions on the Privileges and Immunities of the United Nations, which sets out the
1
immunities of the United Nations and its personnel. 0 The United Nations enjoys complete immunity from
all legal process. Its premises, assets, archives and documents are inviolable. It is exempt from direct
taxes and customs duties. Its staff is exempt from income tax on their salaries.
 The U.N Secretary General and the Assistant Secretaries General enjoy diplomatic immunity. Other
staff members enjoy limited immunities, such as immunity from legal process in respect of their official
acts.
Representatives of member States attending the United Nations meetings are granted almost the same
immunities as diplomats, except their immunity from legal process applies only to their official acts.
An example of treaties providing immunities to representatives of States in international organizations
is the 1975 Vienna Convention on the Representatives of States in their Relations with International
Organizations of a Universal Character. This treaty applies to representatives of States in any
international organizations of a universal character, irrespective of whether or not there are diplomatic
relations between the sending State and the host States.
Under this treaty, the representatives of States in universal international organizations enjoy similar
immunities to those provided in the 1961 Vienna Convention on Diplomatic Relations. They enjoy
immunity from criminal jurisdiction, and immunity from civil and administrative jurisdiction in all cases,
save for certain exceptions. The mission premises, archives, documents and correspondence are
inviolable.

53

1 0
 LAW OF THE SEA
The oceans had long been subject to the freedom of-the-seas doctrine - a principle put forth in the 17th
century, essentially limiting national rights and jurisdiction over the oceans to a narrow belt of sea
surrounding a nation's coastline. The remainder of the seas was proclaimed to be free to all and belonging
to none. While this situation prevailed into the twentieth century, by mid-century there was an impetus to
extend national claims over offshore resources.
The entire sea is divided into territorial sea, contiguous sea continental shelf, EEZ and high sea.
TERRITORIAL SEA
Everything from the baseline to a limit not exceeding twelve miles is considered the State’s territorial sea.
Territorial seas are the most straightforward zone. Much like internal waters, coastal States have
sovereignty and jurisdiction over the territorial sea. These rights extend not only on the surface but also to
the seabed and subsoil, as well as vertically to airspace.
While territorial seas are subject to the exclusive jurisdiction of the coastal States, the coastal States’
rights are limited by the passage rights of other States, including innocent passage through the territorial
sea and transit passage through international straits.
BREADTH OF TERRITORIAL SEA
The breadth of the territorial sea has remained a thorny issue, and up to 18th century the opinion was, that
breadth of territorial sea extends to the range of a cannon-shot which at that time was three nautical miles.
The three-mile rule, popularly known as ‘cannon-shot’ rule as propounded by the Dutch jurist
Bynkershock, had a rationale that a State’s sovereignty extended to the sea as far as a canon or fire could
reach. 1 0
The general assembly of the UN, adopted a resolution for convening a conference on the law of the sea.
Consequently in 1958 a conference was held in Geneva to consider a number of drafts prepared by the
international commission.
The Geneva conference adopted 4 conventions-
1. Convention of territorial sea & contiguous zone,
2. Convention on high seas,
3. Convention on fishing & conversation of living resources and,
4. Convention on the continental shelf.
All the 4 conventions came into force but left the most important issue which was left undecided was the
breath of the territorial sea because of difference of opinion of states.
The convention on the law of the sea 1982 has laid down that the sovereignty of a costal state extends
beyond its land territory and internal water to an adjacent belt of sea up to 12 nautical miles which is
known as territorial sea.
Two methods have been laid down for measuring the breadth of the territorial sea: the low water line and
the straight baseline. The normal method used is the low-water line as marked on large-scale charts
officially recognized by coastal State. Where the coastline is deeply intended and cut into, or if there is a
fringe of islands along the coast in its immediate vicinity, the straight baseline method joining appropriate
points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.

54

1 0
The method of straight baseline was enunciated by the Anglo Norwegian Fisheries case, which had a
decisive effect on the baseline issue. In this case, Norway which has a fringe coastline, by its 1935 Decree
proclaimed exclusive fishery zone (meant territorial sea) along almost 1000 miles of its coastline. The
zone which was four miles wide, measured not from the low-water mark but from straight baselines
linking some 48 outer most points of island and lands, at a considerable distance from the coast By using
the straight baselines, some of which was 30 miles long and the longest was 44 miles, Norway could
enclose waters within its territorial sea that would have been the high seas, and hence open to foreign
fishing.
The UK, whose fishing interests were affected by this Decree, challenged the legality of the straight
baseline system adopted by Norway and the choice of certain baselines used in applying it. The Court
upheld the method applied by Norway in drawing the baselines and it also did not reject the criterion of
low water mark. But the manner of application of straight baselines is ‘dictated by geographical realities’.
It was propounded by the judgment that where a State has a rugged coastline, deeply indented, or if there
is a fringe of islands in the immediate vicinity, the straight baseline, joining the low water at appropriate
points, is admissible, provided:
• The drawing of baseline must not depart to any appreciable extent from the ‘general direction’ of the
coast;
• The areas lying within the baselines are sufficiently closely linked to the adjacent land domain; and
• The economic interests as evidenced by long-established usage, peculiar to a particular region
concerned, must be taken into account before the straight baseline method is allowed to be followed by
coastal State.
The principles laid down in the Fisheries case relating to straight baselines are to be followed in drawing
baselines except those of low-tide elevations, unless the lines drawn in such circumstances have received
‘general international recognition’. The system of straight baselines is not to be applied in a manner as to
cut off the territorial sea or an EEZ of another State from the high seas.
The delimitation of the territorial sea between two States opposite or adjacent to each other can
take place in accordance with an agreement between them, failing which the median line, every
point of which is equidistant from the nearest points on the baselines from which the breadth of the
territorial seas of each of the two States is measured. This rule is not applicable in the cases of ‘historic
title’ or other special circumstance.
RIGHTS OF COSTAL STATE OVER TERRITORIAL SEA:
The sovereignty of the coastal states extends to the territorial sea.
1. Absolute sovereignty over territorial sea. They have complete dominion over this part of the sea
except that of the right of innocent passage and of transit by vessels of all nations.
2. It follows from the regime of sovereignty that the coastal state has the exclusive right to
appropriate the natural products of the territorial sea, including the right of fisheries therein, and
to the resources of the sea-bed and 1its sub-soil
0 namely, sedentary fisheries and non-living
resources such as hydrocarbons and minerals.
3. The coastal areas may enact laws and regulations. Especially in regard to transport and
 navigation. It can also enact laws for conservation of living resources of the sea and preservation
of environment and control of pollution. Foreign ship exercising the right of innocent passage
should comply with such laws made by the coastal states.
4. Costal state has the right to take necessary steps to prevent passage which is not innocent.

55

5. Costal state can suspend of rights of1 innocent

0 passage temporarily in specified areas of its sea if
there is suspicion and such measure is essential for the protection.
6. If the ship/vessel causes damage due to non-compliance of law, than the costal state can
 7. hold the flag country responsible to compensate for damages done.
RIGHTS OF OTHER STATES
It is the customary rule of International law that territorial sea is open to merchant vessels of all
the states for navigation. Such vessels have right to innocent passage through the territorial sea of a state.
Thus every State has the right to demand that in time of peace. This is a corollary of the freedom of the
open sea. This rule was incorporated in the Geneva Convention on the Territorial Sea and Contiguous
Zone of 1958 under Article 14. The same provision has been laid down
under Article 17 of the Convention of 1982.

INNOCENT PASSAGE
The customary international law recognizes the right of innocent passage for ships of all States through
the territorial waters of a State but no such right exists for aircraft in the airspace over the territorial
waters. ‘Ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the
territorial sea.’ No right of innocent passage exists through internal waters. The passage to be considered
innocent, of foreign fishing vessels, their conduct should be according to the laws and regulations made
by the coastal State for fishing purposes in the territorial sea.
Under the Convention vessels entitled to innocent passage are ‘ships of all states’ without making a
distinction between a merchant, public or warships. The submarines, however, are required to navigate on
the surface. Warships have the right of passage through international straits, as decided in the Corfu
Channel case.
CONTIGUOUS ZONE
States may also establish a contiguous zone from the outer edge of the territorial seas to a maximum of 24
nautical miles from the baseline. This zone exists to bolster a State’s law enforcement capacity and
prevent criminals from fleeing the territorial sea. Within the contiguous zone, a State has the right to both
prevent and punish infringement of fiscal, immigration, sanitary, and customs laws within its territory and
territorial sea. Unlike the territorial sea, the contiguous zone only gives jurisdiction to a State on the
ocean’s surface and floor. It does not provide air and space rights.
CONTINENTAL SHELF
The concept of continental shelf is mainly co-related with an exploitation of the natural resources
from the sea adjacent to the territorial sea. This was one of the important developments after the Second
World War in relation to the law of the sea was the evolution and acceptance of the concept of the
continental shelf. The President of the United States proclaimed that the natural resources of the
continental shelf were ‘beneath the high seas but contiguous to the coasts of the United States as
appertaining to the United States and subject to its jurisdiction and control’. The
continental shelf was regarded ‘as an extension of the land mass of the coastal nation’. The main reason
for this action of the United States was to reserve for itself, the oil and mineral resources in the seabed
which had become technologically possible to drill.
Proclamation soon became the trendsetter and was immediately followed by similar unilateral
declarations by many maritime nations which laid claims of exclusive jurisdiction control or

56

1 0
sovereign rights over the resources of the continental shelf and associated offshore areas. These
declarations led to the formation of customary international law giving coastal States jurisdictional rights
over their shelves. These rights over the resources of the continental shelf were universally accepted by
the 1958 Geneva Convention on the Continental Shelf.
Geologically, the continental shelf may be defined as the zone around the continent extending from the
lowwater line to the depth, at which there is usually a marked increase of declivity to a greater depth.
What is commonly understood by the ‘continental shelf’ is a gently sloping platform of submerged land
surrounding the continents and islands. It is a submerged bed of the
sea, contiguous to a continental land mass, and found in such a manner as to be really an extension of, or
appurtenant to this land mass. Normally, it extends to a depth of approximately 200 meters, at which
point the first substantial ‘fall off’ of the seabed occurs. At certain places, it continues beyond a depth of
200 meters.
DEFINITION OF CONTINENTAL SHELF UNDER THE GENEVA CONVENTION OF 1958
In 1958 Continental Shelf Convention used the term ‘continental shelf’ as referring ‘to the seabed and
subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of
1 depth0 of the superjacent waters admits of the exploitation of
200 meters or beyond that limit, to where the
the natural resources of the said areas’. Thus, the shelf has been defined in terms of ‘exploitability; and
the depth of the sea. It means that if the exploitation of the resources could be made beyond the limit of
200 meters depth, that area could be claimed
by the coastal State as its continental shelf. The requirement of the phrase ‘adjacent of the coast’ is not
solely confined to the proximity, but provided the legal basis for the coastal State to claim jurisdiction
over the continental shelf.
DEFINITION OF CONTINENTAL SHELF UNDER THE CONVENTION ON THE LAW OF
THE SEA, 1982
This Convention has defined the term continental shelf under Para I of Article 76 by stating that the
continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend
beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the
continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the
territorial sea is measured where the outer edge of the continental margin does not extend up to that
distance.
RIGHTS OF COASTAL STATES OVER CONTINENTAL SHELF UNDER UN CONVENTION
ON THE LAW OF THE SEA, 1982
Article 77 of the Convention provides various provisions with regards to the rights of coastal states. The
coastal State enjoys limited sovereign rights over the continental shelf for the purpose of exploring and
exploiting its ‘natural resources’, and not sovereignty. These rights are exclusive in the sense that no one
can undertake these activities without the express consent of the coastal State or make a claim to the
continental shelf. They also do not depend on occupation, effective or notional, or any express
proclamation.
The ‘natural resources’ of the continental shelf consist of mineral and other non-living resources of the
seabed and sub-soil, together with living organisms which at the harvestable stage, either are immobile on
or under the seabed or are unable to move except in constant physical contact with the seabed or subsoil.

57

1 0
The coastal State also has the exclusive right to authorize and regulate drilling of the sub-soil for all
purposes. [Article 81] Like the EEZ, the coastal State has the exclusive right to construct, maintain or
operate the artificial islands, installations, and structures on the shelf. [Article 80]
RIGHTS OF OTHER STATES IN CONTINENTAL SHELF UNDER UN CONVENTION ON
THE LAW OF THE SEA, 1982
The Convention also gives various rights to the Other States. The rights of the coastal State over the
continental shelf do not affect the legal status of the superjacent waters or of the airspace above those
waters. The exercise of the rights of the coastal State over the continental shelf must not infringe or result
in any unjustifiable interference with navigation and other rights and freedoms of other States as provided
for in this Convention - Article 78. Also, all States are entitled to lay submarine cables and pipeline on the
continental shelf - Article 79.
The delimitation of the continental shelf between nations has generated a lot of litigation because of its
economic importance. Rules relating to delimitation are provided in Article 6 of the 1958 Continental
Shelf Convention and Article 83 of the 1982 Convention.
The delimitation of boundaries remained more contentious between the adjacent States as opposed to the
opposite States where the median line was to be followed. In the case of adjacent States, ‘equidistance
principle’ was found to be inadequate to demarcate the continental shelf, nor did it represent the
customary international law.
CONTINENTAL SHELF AND NORTH SEA CONTINENTAL SHELF CASE
The International Court of Justice, for the first time, has the occasion to determine the adequacy of the
rule enshrined in Article 6 in the North Sea Continental Shelf case. In the two separate cases against West
Germany filed by the Netherlands and Denmark, the Court was asked to decide about the ‘applicable’
principles and rules of international law ‘to the determination as between the Parties of the areas of the
continental shelfs in the North Sea which appertain to each of them beyond the partial boundary.
The two cases were joined by the Court. Denmark and the Netherlands argued that the
‘equidistance/special circumstances rule’ in Art. 6 would be applied. Germany instead proposed ‘the
doctrine of the just and equitable share’. Germany’s opposition to the ‘equidistance rule’ was based on the
fact that the rule, if applied on a concave coastline, such as that of the North Sea, shared by all the three
States concerned, would result into giving the State in the middle, and in this case Germany, a smaller
continental shelf than it might otherwise obtain.
1 0
The Court rejected both these contentions and held that applying the equidistance principle will lead to
inequitable results because of the peculiar coastline of the States concerned and opined that the notion of
equidistance could not be logically be compulsorily applied in all situations. It is not consonant with
certain basic legal notions, ‘those principles being that delimitation must be the object of agreement
between the States concerned, and such agreement must be arrived at in accordance with equitable
principles.’
Thus, in following the ‘equitable principles’, the factors to be taken into account are:

 The relevant circumstances, i.e., the geographical situation of the parties and natural
configuration of the coast;
 Proportionally, i.e., the extent of the continental shelf areas appertaining to coastal State and the
length of the coast measured in the general direction of the coastline; and

58

1 0
  The concept of natural prolongation, i.e., the shelf is an appurtenant to the land territory.
The approach is taken by the International Court of Justice on the ‘equidistance principle’ has been
followed by the Court in Tunisia vs Libya case, the Court was asked to specify principles and rules of
international law which were applicable to the delimitation of the continental shelf between Tunisia and
Libya. They have a single continental shelf as the natural prolongation of their land territory, and hence
no principle of ‘natural prolongation’ as such could be applied. The Court observed that since the two
countries abutted on a common continental shelf, the physical criterion was of no assistance for the
purpose of delimitation. The application of the equidistance method could not, in particular circumstances
of the case, lead to an equitable result, and in such a case, the delimitation can be effected on the basis of
‘equitable principles’, taking into account all the relevant circumstances.
LIBYA VS MALTA CASE
The Libya vs Malta was the first case decided by the Court a fatter signing of the 1982 Convention.
Though both the States were signatories to the Convention, they agreed for the dispute to be governed by
customary international law. The Court, however, looked into the provisions of the Convention as a rule
of customary international law, and observed that ‘the principles and rules, applicable to the delimitation
of continental shelf areas are those which are appropriate to bring about an equitable result.’ In deciding
the dispute, the Court placed great reliance on the ‘equidistance principle’. But to achieve an equitable
result, it will be necessary to first draw a line, every point of which should be equidistant from the coast
of the two opposite States concerned and then to make adjustments in the light of all the relevant
circumstances. The Court once again discounted the ‘natural prolongation’ factor propounded in the
North Sea Continental Shelf cases, which was subservient to the equitable principle. Thus, the judicial
practice has clearly established that the principle of equidistance is not an applicable rule in all cases of
delimitation between adjacent States. The ‘natural prolongation’ criterion has similarly given way to
distance criterion (i.e. 200 nautical miles from the coast). The emphasis on ‘equitable solution’ in the
1982 Convention, however, is without any accompanying procedure to be followed to achieve it. The
application of equitable principle reduces the chances of settling boundary disputes without litigation.
EXCLUSIVE ECONOMIC ZONE (EEZ)
Exclusive Economic Zone (EEZ) is comparatively a concept of recent origin. The concept of EEZ was
initiated by Kenya in 1972 at the Geneva session of the UN Committee on Peaceful uses of Sea-bed and
Ocean Floor Beyond the limits of National Jurisdiction. The EEZ finally found a place in the Convention
on the Law of the Sea of 1982. Since then, it has become a generally accepted institution of the law of the
sea. In Tunisia vs Libya, it was stated that the concept of EEZ can be regarded as a part of customary
laws.
Article 55 of the United Nations Convention on the Law of the Sea – Specific legal regime of the
exclusive economic zone defined it as an area beyond and adjacent to the territorial sea, subject to the
specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State
and the rights and freedoms of other States are governed by the relevant provisions of this Convention.
BREATH OF EEZ
It extends up to 200 nautical miles (equivalent to 370.4 km) from the baselines from which the breadth of
the territorial sea is measured. [Article 57] The zone is an intermediate area between the high seas and the
territorial sea with a distinct regime of its own which a State can specifically claim. The zone comprises
the area which was previously part of the high seas and is not under the sovereignty of the coastal State.

59

1 0
important as well as debatable aspect is the patents right. The basic principle of the patent system is that
an inventor, who makes a full disclosure of what he has invented, is granted a statutory monopoly to
exploit his invention.
Patents should be available for any invention, whether products or processes, in all fields of technology
provided they are new, involve an inventive step and capable of industrial application. Patents should be
available and patent rights enjoyable without discrimination.
TRIPS also say that members must provide for the protection of plant varieties either by patents or by an
effective sui generis system. The sui generis system commonly refers to the system of Plant Breeders’
Rights (PBRs)—the exclusive right to produce seed of the protected variety for the seed trade and control
of its marketing.
In addition, WTO members have set procedures for settling disputes arising out of the violation of trade
rules. Thus, there exists a multilateral system of settlement of disputes. The WTO agreement also allows
governments to take appropriate action against dumping.
Criticisms of the World Trade Organization:
Free trade policy pursued by the WTO over the years has widened the income gap between rich and poor
nations, instead of minimizing the gap. Secondly, WTO functions in a discriminatory way as it is more
biased to the rich countries and MNCs. In fact, this strategy of the WTO has not benefited the developing
countries.
One can see that the market access of these countries in industry has not improved, non- tariff barriers
like anti-dumping measures have increased and domestic support and export subsidies for agricultural
products in the rich countries still remain high. Thirdly, it is criticized that labour relations and
environmental issues have been side-lined or ignored by the WTO. Finally, decision-making process in
the WTO is rather non-transparent, ineffective and non- inclusive since “the vast majority of developing
countries have very little real say in the WTO system.”

101

1 0
 INTERNATIONAL LABOUR ORGANIZATION

INTRODUCTION

The International Labour Organization (ILO) is a United Nations agency dealing with labour issues,
particularly international labour standards, social protection, and work opportunities for all. The ILO works
to promote social justice at the workplace, as it believes that social justice is the key to lasting peace. It also
promotes employment generation and the concept of decent work, while adhering to international labour
and human rights. The ILO formulates policies and programmes which are aimed at serving the needs of
the working men and women. The policies ensure that all workers have an equal opportunity, get respected
for their work, and get paid decent wages. The ILO works for promoting internationally recognized human
rights for the workers. They have three primary principles which are based on freedom of association, the
abolition of child labour, and promoting social justice.

History

The ILO was established as an agency for the League of Nations following World War I.

 It was established by the Treaty of Versailles in 1919.

 Its founders had made great strides in social thought and action before the establishment of the
organization itself.
 It became the first specialized agency of the United Nations (UN) in the year 1946.
 The ILO has played a significant role in promoting labour and human rights. It had held a
significant position during the Great Depression (1930s) for ensuring labour rights.
 It played a key role in the decolonization process and in the victory over apartheid in South Africa.
 The organization got the Nobel Peace Prize in 1969, for its efforts to improve peace amongst the
classes, and for promoting justice and fair work for the workers.
Objective

The ILO is the only tripartite U.N. agency. The ILO is a meeting point for governments, workers and
employers of ILO’s member States to set labour standards, improve upon policies and create programs that
promote decent work for people. The four strategic objectives at the heart of the Decent Work agenda are:

 To develop and effectuate standards, fundamental principles, and fundamental rights at work.
 To ensure that men and women have equal access to decent work while enhancing opportunities for
the same.
 To magnify the coverage and effectiveness of social protection for everyone.
 To strengthen Tripartism and social dialogue.
Structure

The basis of the ILO is the tripartite principle. The ILO comprises the International Labour Conference,
the Governing Body, and the International Labour Office.

 International Labour Conference:

102

1 0
 o The progressive policies of the ILO are set by the International Labour Conference.
o The conference is an annual event, which happens in Geneva, Switzerland. The conference
brings together all the representatives of the ILO.
o Function: It is a panel for the review of the important issues regarding labour.
 Governing Body:
o The Governing Body is the executive body of the International Labour Organization.
o The governing body meets in Geneva. It meets three times annually.
o The Office is the secretariat of the Organization.
o It is composed of 56 titular members, and 66 deputy members.
o Functions:
 Makes decisions regarding the agenda and the policies of the International Labour
Conference.
 It adopts the draft Programme and Budget of the Organization for submission to
the Conference.
 Election of the Director-General.
 International Labour Office:
o It is the permanent secretariat of the International Labour Organization.
o Functions: It decides the activities for ILO and is supervised by the Governing Body and
the Director-General.
o The ILO member States hold periodically regional meetings to discuss the relevant
issues of the concerned regions.
o Each of the ILO’s 183 Member States has the right to send four delegates to the
Conference: two from government and one each representing workers and employers, each
of whom may speak and vote independently.

Functions

The ILO plays an important role in the formulation of policies which are focused on solving labour issues.
The ILO also has other functions, such as:

 It adopts international labour standards. They are adopted in the form of conventions. It also
controls the implementation of its conventions.
 It aids the member states in resolving their social and labour problems.
 It advocates and works for the protection of Human rights.
 It is responsible for the research and publication of information regarding social and labour issues.
 The Trade Unions play a pivotal role in developing policies at the ILO, thus the Bureau for
Workers’ Activities at the secretariat is dedicated to strengthening independent and democratic
trade unions so they can better defend workers’ rights and interests.
 The ILO also assumes a supervisory role: it monitors the implementation of ILO conventions
ratified by member states.
o The implementation is done through the Committee of Experts, the International Labour
Conference’s Tripartite Committee and the member-states.

103

1 0
 o Member states are obligated to send reports on the development of the implementation of
the conventions they have approved.
 Registration of complaints: The ILO registers complaints against entities that are violating
international rules.
o The ILO, however, does not impose any sanctions on the governments.
o Complaints can also be filed against member states for not complying with ILO
conventions that have been ratified.
 International Labour Standards: The ILO is also responsible for setting International Labour
Standards. The international labour conventions which are set by the ILO are ratified by the
member states. These are mostly non-binding in nature.
o But once a member state accepts conventions, it becomes legally binding. The conventions
are often used to bring national laws in alignment with international standards.
 ILO Global Commission on the Future of Work: The formation of an ILO Global Commission
on the Future of Work marks the second stage in the ILO Future of Work Initiative.
o The Commission outlines a vision for a human-centred agenda that is based on investing in
people’s capabilities, institutions of work and decent and sustainable work.
o It also describes the challenges caused by new technology, climate change and demography
and appeals for a collective global response to the disturbances being caused in the world
of work.
Mission

The ILO’s mission is to promote decent work for all workers. This is accomplished by promoting social
dialogue, protection, and through employment generation.

 The ILO provides technical support along with the support of development partners to multiple
countries in order to achieve this mission.
Declaration on Fundamental Principles and Rights at Work

The Declaration was adopted in 1998, and it mandates the member states to promote the eight fundamental
principles and rights. The Fundamental Principles and Rights are categorized into four classes. They are:

 Freedom of Association and the Right to Collective Bargaining (Conventions 87 and 98)
 Elimination of forced or compulsory labour (Conventions No. 29 and No. 105)
 Abolition of child labour (Conventions No. 138 and No. 182)
 Elimination of discrimination in respect of employment and occupation (Conventions No. 100 and
No. 111).
 As part of the Follow-up to the Declaration, the ILO Director-General also submits a Global Report
on one of the four categories of fundamental principles and rights at work to the tripartite
International Labour Conference.

Core Conventions

The eight fundamental conventions form an indispensable part of the United Nations Human Rights
Framework, and their sanction is an important sign of member States’ commitment to human rights.
Overall, 135 member States have ratified all eight fundamental conventions.

104

1 0
  The eight-core conventions of the ILO are:
o Forced Labour Convention (No. 29)
o Abolition of Forced Labour Convention (No.105)
o Equal Remuneration Convention (No.100)
o Discrimination (Employment Occupation) Convention (No.111)
o Minimum Age Convention (No.138)
o Worst forms of Child Labour Convention (No.182)
o Freedom of Association and Protection of Right to Organised Convention (No.87)
o Right to Organise and Collective Bargaining Convention (No.98)
 The conventions are highly relevant due to the economic challenges faced by workers all around
the world.
International Labour Organization and India

India is a founding member of the ILO. It became a permanent member of the ILO Governing Body in
1922. The first ILO Office in India was inaugurated in 1928.

 India has ratified six fundamental conventions.

 India has not ratified Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87) and Right to Organise and Collective Bargaining Convention, 1949
(No. 98).
 As the two conventions involve the granting of certain rights that are prohibited under the statutory
rules for government employees.
Labour Movement in India

The growth of the trade union movement in India was an organic process. It started towards the tail end of
the nineteenth century and has had a parallel development to India’s industrial development. The
difficulties of the workers’ lives came into light during the 1850s. The labour movement in India can be
categorized into two phases: the first phase lasting from the 1850s -1918, and the second from 1918- till
Independence.

 The origin of the labour movements in India can be traced back to the 1860s, however, the first
agitation occurred only in 1875.
 The actions of the working class in the earliest stage were sporadic and disorganized in nature and
hence were mostly futile.
 It was only from the second decade of the twentieth century in Bombay, that serious attempts were
made for the formation of associations that could lead an organized form of protests.
 The second phase witnessed the sporadic protests obtain an organized form. During this phase,
Trade Unions were formed on modern lines.
 The first labour tumult occurred in Bombay, 1875 under the leadership of S.S Bengalee.
o It concentrated on the plight of workers, especially women and children.
 This agitation led to the appointment of the first Factory Commission, 1875.
 The first Factories Act was passed in 1881 consequently.

105

1 0
 In 1890, M.N Lokhande established Bombay Mill Hands Association. This was the first
organized labour union in India.
 The 1920s was significant in this regard. Congress and the Communists made serious attempts to
mobilize and establish a connection with the working class.
 The first attempt to form an all-India organization was also made in the 1920s.
 Features of the labour movements in this era:
o Leadership was exemplified by social reformers and not by the workers themselves.
o The movements in this era mainly concentrated on the welfare of workers rather than
asserting their rights.
o They were organized, but there was no pan India presence.
o A strong intellectual foundation or agenda was missing.
o Their demands revolved around issues like that of women and children workers.

106

1 0
 PROBLEMS
1. “A” an American citizen was arrested in Mexico for having published in Texas an
article alleged to constitute a libel on a Mexican citizen. Can Mexico prosecute him?
Yes, Mexico can prosecute him. This is called “Passive Personality Principle”. The “Passive
Personality Principle” argues that a country may claim jurisdiction over an individual for crimes
committed abroad that affect the country’s citizens. The principle has become accepted as a basis
under international law. In 1886, Mexico asserted passive personality jurisdiction in what is now
known as the Cutting Case. In that case, Cutting, a US citizen, published a newspaper article
criticizing a Mexican citizen.
Mexican officials arrested Cutting on one of his visits to Mexico and charged him with criminal
libel. The United States protested the application of the principal over its citizen. The case was
settled diplomatically before a decision could be established on the legality of passive personality
principle.This illustration question is very similar to the Cutting Case.

2. The king of state A during his stay in state B promises to marry Miss. Bobby.
Subsequently, king refused to marry her. Miss. Bobby wants to file a suit against the
king in state B. can she do so?
Yes, she can file a suit against the king but the king can claim immunity from jursidiction. This
illustration is very similar to the case law Mighell vs. Sultan of Johore; in this case in 1885 the
Sultan of Johore came to England, and according to the plaintiff, Miss Mighell, took the name
Albert Baker and promised to marry her. It was held that, The Sultan was entitled to immunity
even though up to the time of suit "he has perfectly concealed the fact that he is a sovereign, and
has acted as a private individual."
Thus, a foreign sovereign may claim immunity from jurisdiction at the trial, no matter what he
may have done previously.

3. “A” a citizen of the state X while serving as solider ran away to neighbouring state Y as
he was fed up with army dicipline. On a request A filed a writ petition in courts of state
Y, contending that he was not extraditable. State Y follows general international
practices decide.
If there is treaty between states X and Y only then extradition can take place.
Extradition is the legal process by which a person is transferred from one place to another
without the person’s consent. This is a legal method to prevent people from evading
justice. When a person commits a crime in a state and then goes to a different one, the person
can be sent back to face charges in the state where the crime was committed. Generally, a
country’s power to arrest a fugitive only extends within its borders. If there is no provision for
extradition, people can evade justice by moving from one place to another. Not everyone can be
extradited. First, the fugitive must be charged with or have been convicted a criminal offense –
extradition cannot be sought if a person is only a suspect.
Extradition can take place only when a treaty exists between the two countries. The treaty itself
will have the list crimes for which a person can be extradited. If there is no valid treaty between
nations, then international law does not require the surrender of a fugitive to a foreign nation.

107

1 0