Professional Documents
Culture Documents
• 1-Introduction:
• Structure of the International Community Historical Development and
Specificities of Public International Law, Definition, Nature, Legality of
International Law, Theories as to basis of International Law, Relation of
International Law to Domestic, Practice of States, UK USA and India,
Sources of International Law , Codification.
• -Subjects of International Law:
• The Concept of Subject of Law and of Legal Personality, Various
Theories like Realistic Theory, Fictional Theory, Functional Theory, State
as Subject, Definition and Conditions for Statehood, rights and duties of
states, Territory, Modes of acquisition and loss of state territory,
Sovereignty.
•
• 2-Recognition:
• De Facto and De Jure, Theories of Recognition, Recognition of Belligerency
and Recognition of Insurgency, Collective Recognition, State Responsibility,
Original and Vicarious Responsibility, State Responsibility for various Acts,
Individual Acts, Mob Violence, Insurgency and for International
delinquencies, The Invocation of Responsibility and Diplomatic Protection,
State Succession, Theories of State Succession, Rights and Duties arising out
of State Succession.
•
• 3- Individual as a subject of International Law:
• The Basic modification, post charter in the position: Nationality, extradition,
Asylum, Territorial and Extra, territorial, UNO & Human Rights, UDHR,
Covenant on Civil Political Rights,1966, Covenant on Economic Social and
Cultural Rights, 1966.
• 4-Law of Treaties:
• Concept of Treaty, Kinds of Treaties, Binding Force of Treaties, Pacta Sunt
Servanda, Jus Cogens, Rebus Suc Stantibus, Parties of a Treaty, Formation of a
Treaty, Reservation, Invalidity and Termination of Treaties.
•
• Diplomatic Relations:
• Meaning of Diplomacy, Law on Diplomatic Relations, Classification of
Diplomatic Agents, Functions, Privileges and Immunities of Diplomatic Agents,
and Duties.
•
• 5--Law of the Sea: Historical Background, Maritime Belt, Territorial Sea, The
Contiguous Zone, Exclusive Economic Zone, Continental shelf, The High Seas,
International Sea Bed Area, Common Heritage of Mankind , Law of the Sea
Conventions (United Nations Convention on the Law of the Seas).
• 6-Air Space and International Law:
• Aircraft Hijacking, Important Conventions relating to Airspace , Paris, Havana, Warsaw and Chicago
Conventions , Five Freedoms of Air , Legal Regime of Outer space , Important Conventions such as
Outer space Treaty.
•
• Settlement of International Dispute:
• Legal and Political Disputes, Pacific Means of Settlement, Arbitration , Negotiation, Mediation,
Good Offices, Conciliation, Settlement under UNO, Compulsive Means, Retortion, Reprisals,
Embargo, Pacific Blockade, Intervention.
•
• International Institutions:
• Legal Personality, League of Nations, United Nations , Origin and Purposes, Agencies of United
Nations, Specialized Agencies of United Nations, ILO, WHO, UNESCO,
•
• Suggested Readings:
• 1. Shaw Malcolm Nathan, International Law, Cambridge University Press, 2003.
• 2. Kapoor S K, International Law and Human Rights, Central Law Agency, Allahabad,
• 14thEdn.-2002.
• 3. Ian Brownlie, Principles of Public International Law, Oxford University Press, 2008
• 4. Joseph Gabriel Starke, Ivan Anthony Shearer, Starke's, International Law , Butterworths,
• 1994.
• 5. Lassa Oppenheim, Robert Jennings and Arthur Watts, Oppenheim's International Law,
• Oxford University Press, USA, 2008
• 6. Agarwal H.O., International Law & Human Rights, Central Law Publications, 2000
• 7. Ian Brownlie, Basic Documents in International Law, Oxford University Press, 2008
• Definition and concept of International Law
• Every society, irrespective of its population, makes a legal
framework (law) under which it functions and develops.
It is permissive in nature as it allows individuals to form
legal relations with rights and duties and restrictive in
nature as it punishes the wrong-doers. These laws are
referred to as Municipal laws. The world today requires a
framework through which interstate relations can be
developed. International Laws fill the gap for this.
• According to Prof. L. Oppenheim, “Law of Nations or International Law is the name for the body
of customary and conventional rules which are considered legally binding by the civilized states
in their intercourse with each other.”
• Criticisms: •
• With regards to the subjects, only states have been regarded as subjects of international law.
But as we know that today, States are not the only subjects of international law. International
Organisations, MNCs and to a limited extent, individuals are also subjects of international law
today.
• • As regards to sources, the definition says that only customs and treaties are considered to be
sources of international law. But if we refer to Article 38 of the Statute of ICJ, we will find
general principles recognised by civilised nations is also an important source. Besides there are
subsidiary sources, which have been ignored in this definition.
• The expression ‘body of rules’ denotes that international law is static. However, it is extremely
dynamic in nature.
• .
• Oppenheim’s Revised Definition in 1992:
International Law is the body of rules which are
legally binding on States in their intercourse with
each other. These rules are primarily those which
govern the relations of States, but States are not
the only subjects of International Law.
International Organisations and to so some extent,
individuals maybe the subjects of rights conferred
and duties imposed upon International Law.
• As per Torsten Gihl, “The term International Law means the body of rules of
law, which apply within the International Community or society of States.”
• As per J.L. Brierly, “The Law of Nations or International Law may be defined
as the body of rules and principles of action, which are binding upon civilized
states in their relations with one another.”
• Gray said, “International law or the Law of Nations is the name of a body of
rules which according to their usual definitions regulate the conduct of states
in their intercourse with each other.”
• In Queen v. Keyn (1876), Lord Coleridge, C.J., defined International law as
“The law of nations is that collection of usages which civilized States have
agreed to observe in their dealings with one another.”
• Schwarzenberger: International law is the body of legal rules which apply
between sovereign States and such other entities as have been granted
international personality.
Nature of international law
• Is International Law true Law?
• One of the most controversial issues that has long been debated and on
which the opinions of the jurists are sharply divided concerns the status
of international law. The debatable question is: Is international law really
law? One view is that international law is not a true law. It is a code of
rules of conduct of moral force only. Another view is that international
law is a true law, and it is to be regarded as law in the same way as that
of ordinary laws of a State which are binding upon the individuals. The
controversy whether international law is a law or not revolves on the
divergent definitions of the word law' given by the jurists. Hobbes, Austin
,Punderof was of opinion that the law is command of sovereign.
• Austin's view
• According to Austin, law is a command of the sovereign attended by sanction
in case of violation of the command. In other words, law should be limited to
rules of conduct enacted by a determinate legislative authority and enforced
by physical sanction. The superior, according to him, is the real sovereign.
• Austin said that international law cannot be called law proper in the true
sense, because it has neither sovereign legislative authority to enact law nor
there is an adequate sanction behind it. Moreover, there is no enforcement
agency which can enforce it as a body of rules
• The rules commonly called international law are in fact the rules of positive
morality; the rules are analogous to the rules binding a club or society.
• These jurist to support their view put forward
following arguments
• In international law there is no determinate
superior political authority
• it lacks effective legislative machinary
• International law lacks sanctions
• There is no executive power in international law to
enforce the decision of ICJ.
•
• Criticism of Austin's view
• According to Oppenheim, law is a body of rules for general conduct within a community which by common consent
of this community shall be enforced by external power.
• According to Sir Frederic Pollock:
• the only essential conditions for the existence of law are the existence of a political community and the recognition
by its members of settled rules binding upon them in that capacity, international law seem on the whole to satisfy
these conditions
• According to Brierly:
• the best evidence for the existence of international law is that every State recognizes that it does exist and that it is
itself under obligation to observe it.
• According to Starke, international law is really law.
He has put forward four main arguments:
• firstly, in many primitive communities, a system of law existed without there being a formal legislative authority;
• secondly, international legislation in the form of law-making treaties and conventions has come into existence today;
• thirdly, the authoritative agencies responsible for the maintenance of international intercourse do not regard
international law as merely a moral code;
• lastly, the United Nations is based on the true legality of international law.
•
• The arguments of the jurists who regard international law as really law, may be summed
up as follows:
• The views of the jurist on the question of relationship of international law and municipal law are divergent which
have led to the emergence of different theories .
• Monistic theory ( KELSON, WRIGHT, WESTLAKE ETC.)
• According to Monistic 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.
• Monism maintains that all the laws are made for individuals only. While municipal law is binding on them directly,
international law is binding on them through States. Since both the laws are meant to solve the problems of
human beings in different areas; they both are related to each other. According to them, subjects of both the
systems of law are ultimately individuals.
• According to this theory, international law and municipal law should be considered as manifestations of a single
concept of law. Because there is no difference between these
• Article 73 broadly stated, that the executive power of the Union shall extend to the matters
with respect to which Parliament has power to make laws. Thus ,treaty making is an executive
act.
• Art 246 of Indian constitution
• Parliament has exclusive power to make laws with respect to any of the
matters enumerated in List I in the Seventh Schedule (in this Constitution
referred to as the “Union List”).
• Entry 14 list 1(Union list)
• 14. Entering into treaties and agreements with foreign countries and
implementing of treaties, agreements and conventions with foreign countries
• i.e. implementing of treaties, agreements and conventions with foreign
countries rest with union parliament.
• Article 253 in The Constitution Of India
• Parliament has power to make any law for the whole or any part of the
territory of India for implementing any treaty, agreement or convention with
any other country or countries or any decision made at any international
conference
• The air Act ( prevention and control of pollution ) Act of 1981 was enacted by
the parliament by invoking the central government power under the Art 253.
• As to the position of treaties in Indian law ,two attitude prevail.
• One view is that treties shall not be binding upon courts unless they are
implemented by legilation.
• In Shiv Kumar Sharma & others v. Union of India , AIR (1958) the court
stated that “In India, treaties do not have the force of law and consequently
obligations arising there from will not be enforceable in municipal courts
unless backed by legislation”.
• Jolly George Varghese and anr. V. The Bank OF Cochin AIR 1980 SC 470.-
Justice krishna iyyer asserted that the positive commitment of the state
parties ignities legislative action at home but does not automatically make
the covenant an enforceable part of the corpus juris of India.
• Civil right vigilance committee, Banglore v UOI ( AIR 1983)
• The material facts, leading up to this appeal, are briefly these : Geof Boycott and Geof
Cook are two cricket players who are citizens of the United Kingdom. Marylbourne
Cricket Club (M.C.C.) included them in its team scheduled to visit India between
November 1981 and February 1982 to play six test matches and other matches at
different places in India. As to whether the Government of India should allow that
English Cricket Team which included Boycott and Cook to visit India and to play cricket
matches, despite their links with South Africa which is practising policy of aparthied
held became the subject matter of controversy both in India and outside. However, the
Government of India allowed that English cricket team including those two players to
come to the country and to play matches as scheduled.
• the petitioner contented that the government action is breach of its obligation under
Gleneagles Accord and obligations attached to its membership of U.N..
• It was held that as such obligations are not made part of the law of this country by
means of appropriate legislation , they can not be enforced and the court can not
compel Parliament to make such law.
• The other view
• In India all treaties do not require implementation by legislation.
• In berubari case no 1 (AIR 1960) - it was held that and agreement involving cession
of part of Indian territory to Pakistan , require amendment to the constitution and
hence legislative enactment is necessary.
• Berubari case no 2. ( AIR 1966) - Where in the territory de jure belonged to
pakistan it was held that giving it back did not entail cessation of territory. Hence
transfer could be effected by executive action and no legislative action necessary.
• UOI v sukumar sen gupta (AIR 1990) also known as teen bigha case - it was held
that lease in perpetuity of teen Bigha in favour of Bangladesh did not amount to
cessation of territory and hence legislation not required.
• Article 38 1. The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
• a-international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
•
b-international custom, as evidence of a general practice accepted as law;
•
c-the general principles of law recognized by civilized nations;
•
d- subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law.
• 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if
the parties agree thereto.
• A) International Conventions or Treaties:
• It is the most important source of international law because the reason that states have found in this source a
deliberate method by which to create binding international law
• O . Hudson- The convention is used in a general and inclusive sense and it apply to any
treaty ,convention ,protocol ,agreement,regardless of its title or its forms
•
It is the first and Important Source of International law. There is no Legislative organ in the field of
International Law, comparable to legislatures within the State, the enactments of which could bind all the States.
The Contracting Parties may, however, establish an international organization by means of the treaty with
authority to bind them by its resolutions or may even lay down rules for their mutual conduct. In this sense,
Multilateral treaties are a feeble approach to International Character.
• Art 2 of Vienna Convention on the Law of Treaty 1969, the codified law for contracting treaties, gives the
definition,
• “A treaty is an agreement whereby two or more states establish or seek to establish a relationship between them
governed by international law. However this definition is narrow and does not seem to be correct .
• Scwarzenberger - Treaties are agreements between subjects of international law creating binding obligation in
international law.
• Treaties can be Divided Into
• 1) Law Making Treaties and
• 2) Treaty Contracts
1) Law making Treaty-
Law making treaties are those treaties which are entered into by a large number of States. These are
the direct source of International Law.The reason for development of law making treaties are customs
which were proving to be inadequate and change circumstances.
• Law making treaties may be divided into
• i) treaty giving the rule of Universal International Law.
• ii) Treaty giving general principles.
(i) Treaty giving the rule of Universal International Law - These treaties are signed by a majority of
the State. For Example United Nation Charter.
• (ii) Treaty giving general principles - These treaties are entered into and signed by a large number of
countries giving thereby general principles of International Like. Geneva Convention on Law of sea
and Vienna Convention on Diplomatic Relations, 1961 Hague convention 1899 and 1907 are
examples of such a treaty.
• 2) Treaty Contracts:
These are the treaties which are entered into by two or more
States. The provisions of such treaties are binding only on the parties to the
treaty. Such type of treaties are also the source of International Law because
they help in the development of customary rules of International Law.
• This may happen when a similar rule is incorporated in a number of treaty
contracts.Beside this a treaty enter into by a few states is subsequently
accepted by many other states as they enter into similar treaties.
• A treaty may be of considerable evidentiary value as to the existence of a
rule which has crystallised into law by an independent process of
developmnet.
• B) Customs :
• Opinio juris essentially means that states must act in compliance with the
norm not merely out of convenience, habit, coincidence, or political
expediency, but rather out of a sense of legal obligation
• In the North Sea Continental Shelf Cases, the Court examined cases
where States had delimited their boundaries using the equidistance
method, after the Convention came into force. The court concluded, even
if there were some State practice in favour of the equidistance principle
the court could not deduct the necessary opinio juris. The North Sea
Continental Shelf Cases confirmed that both State practice (the objective
element) and opinio juris (the subjective element i.e. legal obligation) are
essential pre-requisites for the formation of a customary law rule.
• 2-Generation of customary rules by treaty
• North Sea Continental Shelf Cases
• 2-Generation of customary rules by treaty
• North Sea Continental Shelf Cases(1969) ICJ
• The dispute, which was submitted to the Court on 20 February 1967, related to the
delimitation of the continental shelf between the Federal Republic of Germany and
Denmark on the one hand, and between the Federal Republic of Germany and the
Netherlands on the other. The Parties asked the Court to state the principles and rules of
international law applicable, and undertook thereafter to carry out the delimitations on
that basis.
• The world court observed that
• A treaty provision can only generate customary international law ,but only when the
provision concerned is of fundamental norm creating character such as could be regarded
as forming the basis of a general rule of law
• Art 6 is of convention which lays down equidistance principle was not intended to be of a
norm creating character.
• The Court rejected the contention of Denmark and the Netherlands to the effect
that the delimitations in question had to be carried out in accordance with the
principle of equidistance as defined in Article 6 of the 1958 Geneva Convention
on the Continental Shelf, holding:
• - that the Federal Republic, which had not ratified the Convention, was not legally
bound by the provisions of Article 6;
• - that the equidistance principle was not a necessary consequence of the general
concept of continental shelf rights, and was not a rule of customary international
law.
• The Court also rejected the contentions of the Federal Republic in so far as these
sought acceptance of the principle of an apportionment of the continental shelf
into just and equitable shares. It held that each Party had an original right to
those areas of the continental shelf which constituted the natural prolongation of
its land territory into and under the sea. It was not a question of apportioning or
sharing out those areas, but of delimiting them.
Essential Ingredients of a Custom
• Long duration – in North Sea Continental Shelf Case the world court held that the passage of only
a short period is not necessarily a bar to the formation of a new customary international law.
• Uniformity and consistency– Asylum case ICJ 1950
• Columbia gave asylum to a rebel Peruvian Political leader Hays de la Torre in its Embassy in Peru.
the Colombian Ambassador requested Peru government to allow rebel leader , to leave the
country. Government of Peru refused. Colombia based his claim, according to the Convention in
force Bolivarian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum, the
Montevideo Convention of 1933 on Political Asylum for the of purposes of the asylum. The court
observed that Colombia had not proved the existence, either regionally or locally, of a constant and
uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon
the territorial State. It therefore followed that Colombia, as the State granting asylum, was not
competent to qualify the nature of the offence by a unilateral and definitive decision binding on
Peru
• Generality of Practice- west rand gold mining company case- it was held that a valid international
custom should be proved by satisfactory evidence that the custom is of such nature that it has
received general consent of states and no civilized state shall oppose it.
• opino juris et necessitatis- North Sea Continental Shelf Case
Application of international custom is very
difficult
• North Sea Continental Shelf Case
• Asylum case
• Right to passage case ICJ (1960)
• S.S. lotus case (1927) PCIJ
• The Lotus case concerns a criminal trial which was the result of the 2 August 1926
collision between the S.S. Lotus, a French steamer, and the S.S. Bozkourt, a Turkish
steamer, in a region just north of Mytilene(Greece). As a result of the accident, eight
Turkish nationals aboard the Bozkourt drowned when the vessel was torn apart by
the Lotus
• The issue at stake was Turkey’s jurisdictionto try Monsieur Demons, the French
lieutenant on watch duty at the time of the collision. Since the collision occurred on
the high seas, France claimed that the state whose flag the vessel flew had exclusive
jurisdiction over the matter. France proffered case law, through which it attempted to
show at least state practice in support of its position.
• After examination of the material before it (treaties ,state laws, judicial decision ,etc,)
the court held that no such customary rule was established because opino juris could
not be proved. The court explained that even if the facts alleged by france were
true,they would merely show that states had often ,in practice ,abstained from
instituting criminal proceeding and not that they recognised themselves as being
obliged to do so.
General principles of law recognized by
civilized nations
• general principles of law include substantive as well as procedural principles.
Some general principles of law' common to municipal legal systems are:
– Res judicata (a thing or matter settled by judgment): A matter once judicially decided is
finally decided, and there is an absolute bar to a subsequent action involving the same
claims, demand or cause of action. This principle was taken into account in the U.N.
Administrative Tribunal Case., Chorzow factory (indemnity ) case
By the term codification we ordinarily mean the process reducing the whole body of law into code in the form of
enacted law.
• It generally connotes a systematic arrangement of the rule of law which are already in existence.
• the codification of international law refers to the more precise formulation and systematization of rules of international
law on subjects that have already been extensively covered by State practice, precedent and doctrine
• Codification secures, by means of general conventions, agreements among the states upon certain topics of international
law and acts as a check whereby the determination of particular law is not left to the caprices of judges. It also tends to
reconcile conflicting views and renders agreement possible among different States.
•
Codification of the international law has been employed 3 different senses
• (1) The harmonizing of Municipal Law of various countries by the preparation and enactment of uniform statutes.
(2) A systematic re-statement of existing customary international law, for example as retaining and declaring the existing
rules of international law.
The committee on the progressive development of international law and its codification, set up by the United Nations
General Assembly resolved the controversy between the second and third meaning of codification. Article 15 of the
statutes of the International Law Commission distinguishes between the progressive development of international law and
its codification.
• United Nations Charter and Codification
• Legal personality
• Subjects of international law can be described as those persons or
entities who possess international personality.
• In any legal system ,certain entities ,whether they may be individual or
companies ,will be regarded as possessing rights and duties enforceable
at law.
• Thus an individual may prosecute or be prosecuted for assault and a
company can sue or sued for the breach of contract.
• They are able to this because the law recognises them as legal person
possessing the capacity to have and to maintain certain rights and being
subject to perform specific duties.
• Function of the law is apportion such rights and duties to such entities as
it sees fit.
• Legal personality also includes the capacity to enforce one’s own
rights and to compel other subjects to perform their duties under
international law. For example, this means that a subject of
international law may be able to:
• bring claims before international and national courts and tribunals
to enforce their rights.
• have the ability or power to come into agreements that are
binding under international law (for example, treaties).
• enjoy immunity from the jurisdiction of foreign courts (for
example, diplomatic immunity).
• be subject to obligations under international law (for example,
obligations under international humanitarian law).
• Throughout the 19th century, only states qualified as subjects of
international law, but this scenario completely changed after the
conclusion of the Second World War with more and more new actors
joining the international legal arena. Intergovernmental organizations
created by the states; non-governmental organizations (NGOs) created by
individuals; and even natural persons like individuals emerged as new
actors. A subject of international law is a body or entity recognized or
accepted as being capable, or as in fact being capable, of possessing and
exercising international law rights and duties. The possession of
international legal personality means that an entity is a subject of
international law, and is capable of possessing international rights and
duties, and has the capacity to maintain its rights by bringing international
claims. The subjects of international law can be categorized into:
• States, International organizations, Individual
• States:- The moment an entity becomes a
state, it becomes an international legal
person and acquires international legal
personality. States are the original subjects of
international law, and the branch of
international law was originally established to
regulate relations between the states.
• International organizations:- an international organization is also an
important subject of international law, it is defined as an organization
established by a treaty or other instrument governed by international
law and possessing its own legal personality. The United Nations and
World Trade Organizations are examples of international organizations.
• It can be said that states have original personality and non-state actors
have derived personality. This is attributed to the fact that states are
considered to be international personalities the moment they are
identified as a sovereign state,
• on the other hand, non-state actors like international organizations
derived their personality through other means. For example, the rights
and duties and its extent maybe described in their constitutions,
charters, and treaties that establish such organizations.
• Individual
• Duties of states
• Duty not to resort to war
• To fulfill treaty obligation in good faith
• The duty of non intervention
• Certain duties associated with independence of state –
• duty not to perform act of sovereignty on the territory of another state,
• duty not to allow in its territory preparations which are prejudicial to the security of another state,
• duty not to intervene in the affairs of another state etc.
Territory
• State territory is that defined portion of the globe which is subject to the
sovereignty of a state.
• The state territory includes the land (all the dry land within the state boundaries), t
he waters (both inland and territorial), and the air space over
• both the land and the waters (the troposphere, stratosphere, ionosphere, and a co
nsiderable part of adjacent outer space).
• The mineral wealth located under both land and sea within this territory is the prop
erty of the particular state as far down as is technically feasible.
• A state without territory is not possible , although the necessary territory may be
very small ,as the vetican city …..A wandering tribe ,although it has a government
and is otherwise organised ,is not a state until it has settled down in a territory of
its own.
• Article 2(4) of the United Nations Charter requires members to ‘refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any State
Modes Of Acquisition Of State Territory
• Occupation
• Occupation is the act of appropriation by a state which it intentionally acquires sovereignty over such territory
as it is at the time not under the sovereignty of another state.
• Jennings writes it is “the appropriation by a state of a territory, which is not at the time subject to the sovereignty
of any other state.
• Article 42 of The Hague Regulations of 1907 defines occupation as follows: “Territory is considered occupied
when it is actually placed under the authority of the hostile army
• Possession and Administration are the two essential factors required to constitute an effective occupation.
• In the Eastern Greenland case, the International Court of Justice stated that claims to sovereignty “based not
upon some particular act or title such as a treaty of cession but merely upon continued display of authority,
involve two elements, each of which must be shown to exist: the intention and will to act as sovereign, and some
actual exercise or display of such authority.
• Prescription
• A prescription can be defined as ‘the acquisition of sovereignty over a territory through a continuous and
undisturbed exercise of sovereignty over it during such a period as is necessary to create under the influence of
historical development the general conviction that the present condition of things is in conformity with the
international order
• Prescription (a claim to a right founded upon enjoyment): Eastern Greenland Case (PCIJ, 1933), Island of Palmas
Case
• Accretion
• Accretion refers to the physical expansion of an existing territory
through the geographical process
• It is a customary rule of international law that enlargement of
territories by new formations, takes place ipso facto by accretion,
without the state concerned taking any special step for the purpose of
extending its sovereignty. Hence, accretion too is a direct mode of
acquisition of territory.
• New formations through accretion may be natural or artificial.
Artificial formations include man-made embankments, breakwaters,
dikes( on smaller rivers and tributaries, dikes have been used primarily
to divert flow and stabilize eroding banks).etc. built along the river or
coastline
• Cession
• Cession of the state territory is the transfer of sovereignty over state territory by the owner
state to another state. 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 – In re berubari
union and Exchange of enclave cases,
• union of india vs sukumar sengupta AIR 1990
• Annexation – when a state conquers another state the conquering state after conquest
establishes its sovereignty over the conquered state
• Lease- A state may give its territory to another state under lease for a certain period. For
certain period some right of sovereignty are transferred to another state through lease
although the complete sovereignty over the said territory is not transferred. E.g. Island of
Malta to Britain.
• Pledge – sometimes a state become compelled to pledge a part of its territory in return of
some amount of money for which is in dire need . Example- in 1768 Republic of Geneo had
pledged the island of Corsica to France
• Plebisite- Kashmir
Loss of territory
• These are cession, dereliction, operation of nature, subjugation, prescription and
Revolt
• Loss of territory by subjugation(annexation), cession, and prescription is pretty
straightforward and requires no further explanation.
• It‟s simply the corresponding loss of territory due to the gain of that territory by
another state
• operation of nature- by earthquake a coast of the sea or an island may altogether
disappear .
• Revolt – When a new state takes birth by revolt then it may said that former state
has lost it territory for e.g. - in 1579 spain lost Netherland
1) Constitutive Theory:
Recognition is a process whereby a State is constituted, hence it is called as a constitutive theory. Hegel is a pioneer
of this theory. Which is supported and propounded by Anzilotti, Holland and Oppenheim.
According to Anzilotti, since the rules of International law have grown up by the common consent of the States, is a
subject of international law comes into being with the conclusion of the first agreement as expressed by the Treaty of
recognition. Such a recognition is reciprocal and constitutive, creating rights and obligations which did not exist before.
According to Holland, a State cannot be said to have attained maturity unless it is stamped with the seal of
recognition, which is indispensable to the full enjoyment of rights which it Connotes.
According to Oppenheim, a State is and becomes, an international person through recognition only and
exclusively.
• According to this theory, recognition gives the rights and duties to recognized States under the international law. The
recognition of Poland Czechoslovakia through the instrumentality of the Treaty and Versailles lends support to the
constitutive theory of recognition.
• Criticism of constitutive theory
• First- recognition is of political act of a state.if this theory is accepted ,it
would mean that the fate of new state would be determined by other
states. i.e. recognition is not a conclusive proof for the existence of a state.
• Second- there is no legal duty on the part of the existing state to recognize
any community that has in fact acquired the characterstics of statehood .
State are not obliged to recognise the other country.
• Third- a state exist prior to its recognition. Recognition has a retrospective
effect i.e. when a new state is recognized by other states,the latter is
regarded to have recognised all the acts of the former from the date of its
establishment.
• Fourth- a state do have some rights and obligations under international
law,even without recognition.
• Declaratory Theory: – The chief exponents of this theory are Hall, Wagner, Fisher and
Brierly.
• According to this theory, the statehood or the authority of new Government is not
dependent on the consent of the existing state but is based on some prior or existing fact.
According the followers of this theory, the recognition by the existing states is merely a
formal acknowledgement of the statehood and not the condition. In fact the statehood is
dependent on the some prior conditions necessary for an entity to be called as a state.
• The act of recognition is merely declaratory or evidence of a existing fact that a particular
state or government possesses the essential attribute as required under international law.
• 4-PREMATURE RECOGNITION- some times recognition is granted to an entity even if it does not possess
attribute of statehood.
• It is to be noted that premature recognition given to a state amount to an unwarrnated and illegal
internvention in the affairs of the existing state.
• The recognition of Israel by the U.S. in 1948 is the such example.
A state is responsible for the harm caused to the aliens by mob violence only when it has not
made due diligence to prevent it. This Principal is uncertain ambiguous because "due diligence" to
prevent mob violence depends upon the time, to act and circumstances. If the alien person is some
officer of the foreign country then the state responsibility is more. The responsibility of state also
extends to officers or servant or the International Organisation.
•
Modes of reparation or compensation:
• There are following modes available of Reparation:
• A Succession of government occurs when the government of a state is replaced with the 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 transformed from one state to another state.
• . Art 2(1)(b) of the Vienna Convention on the succession of States in respect of treaties in 1978
defines the term State succession as ‘the replacement of one State by another in the
responsibility for the international relations of territory’
• Succession of states is a theory and practice in international relations regarding the recognition
and acceptance of a newly created sovereign state by other states, based on a perceived
historical relationship the new state has with a prior state.
• Oppenheim- A succession of international person occurs when one or more international
persons take place of another international person,in consequence of certain change in the
latter’s condition.
•
• Types of State Succession
•
Universal Succession
• This is also referred to as Total Succession. When the entire identity of the parent State is destroyed and the old
territory takes up the identity of the successor State, it is known as Universal Succession. This can happen in cases
of:
• Merger
• Annexation
• Subjugation
• In certain cases of universal succession, the old State gets divided into multiple States. The dissolution of
Czechoslovakia is an example of universal succession. The new States of the Czech Republic and Slovakia are both
successor States
• Partial Succession
• Partial Succession occurs when a part of the territory of the State gets severed from the parent State. This severed
part now becomes an independent State. This can occur when there is a civil war or a liberalization war.
• The glaring examples of partial succession is the separation of Bangladesh from Pakistan.
• The existing States continued with their legal obligations and duties while the new States got their own
recognition and carried no rights or duties of the parent States.
Theories of State Succession
• Continuity Theory
• Negative Theory
• Theories importing international law
• Communist Theory
• 1- continuity theory
• A-Universal Succession Theory
• . According to this theory, the rights and duties of the old State i.e., the predecessor State pass on to
the new State i.e., the successor State upon succession without any exceptions and modifications
• B- Theory of Popular Continuity: Change of sovereignty is fictitious.
• C-Theory of Organic Substitution: Formation of a new state is a mere substitution of old state.
• D-Theory of self abnegation: state are at liberty to take over or reject whatever suits it in the
previous legal order.This is optional for new state to continue the activities of old state.
• Negative Theory
• The successor State does not exercise its jurisdiction over the territory in virtue of
a transfer of power from its predecessor but it has acquired the possibility of
expanding its own sovereignty in the manner dictated by its own will.
• Communist Theory
• The main emphasis under this theory is that a successor state is unencumbered
by the economic and political commitments of the predecessor.
Rights and Duties arising out of State
succession:
•
When a state takes the place of another state following rights and
duties arise.
(4) Nationality: The nationals of the former state lose their nationality at the
extinction of the state and become the nationals of new state.
(5) Laws: As far as the law of the former states is concerned, civil law continues
until it is changed by the succeeding state.
(6) Public funds and public property: The successor state takes over the public
funds and public property of the predecessor state.
Nationality
• Nationality may be defind - As the legal status of membership of the collectively of
individuals whose acts, decisions and policy are vouchsafed through the legal
concept of the state representing those individuals.
• Nationality is often determined by state laws.
• Nationality is the principal link between an individual and international law
• importance of nationality- Starke
• 1- the protection of rights of diplomatic agents are the consequences of nationality
• 2- ordinarily state do not refuse to take the persons of their nationality. By
nationality we mean loyality towards particular state.
• 3- Nationality may also mean that the person may be compelled to do millitary
service for the state.
• 4- Enemy character is determined on the basis of nationality.
• 5- Yet another effect of nationality is that the state can refuse to extradite its own
nationals.
Modes of Acquisition of Nationality
• By Birth – The most important mode of acquiring nationality is by birth. Nationality is conferred to a person by many
States on the basis of birth. All those persons who take birth within the territorial limit of a State acquire the nationality
of the State.
• India also provides citizenship by birth under s.3 of the Indian Citizenship Act.
• By Naturalization – The next mode of acquiring a Nationality is by naturalization. A person requires nationality at birth.
But, his nationality may later on change. When the nationality of a person changes subsequently, and he acquires the
nationality of some other State, the process of acquisition is called as naturalization. A person may acquire nationality
through naturalization in various ways. There are six ways which are as follows –
• (1) Through marriage. Example wife assuming her husband’s nationality.
• (2) legitimation,
• (3) Option.
• (4) Acquisition of domicile,
• (5) Appointment as Government official
• (6) Grant on the application of the state. Adoption of the child by parents who are nationals of the other States also
entitled the children to acquire the nationality of his parents.
•
Section 6 of the Indian Citizenship Act 1955 provides that a person may acquire citizenship by naturalization upon
fulfilment of certain conditions.
• By Resumption – The next mode of acquiring Nationality is by
resumption. Sometimes a person may lose his nationality because of
certain reasons. But later he may resume, recover his original
nationality after fulfilling certain conditions. Section 20 of the
Citizenship rules 1956 provides a procedure for the restoration of
nationality.
• By Subjugation – The fourth mode of acquiring nationality is
subjugation. Section 7 of the Indian Citizenship Act 1955 Lays down
that if any territory becomes a part of India those persons from such
territory shall automatically become citizens of India.
• By Cession – The fifth mode of acquiring Nationality is the Cession.
When a part of the territory of a state is ceded to another State. All
Nationals of the former acquires the nationality of the latter State.
Modes of Loss of Nationality
(i) Extradition is founded on the broad principle that it is in the interest of the civilized communities that
criminals should not to go unpunished and on that account it is recognized as a part of the comity of nations that
one State should ordinarily afford to another state assistance towards bringing offenders to justice.
(ii) Extradition has a deterrent effect because extradition act as a warning to criminal that they cannot
escape punishment by playing to another State
(iv) Extradition is done because it is a step towards the achievement of international co-operation in solving
international problems of a social character.
(vi) The State on whose territory the crime has been committed is in better position to try the offender
because evidence is more freely available in that State only
• Essentials condition of granting extradition
• 1- Non extradition of political criminal
• 2- Extradition is not allowed for millitary criminals also.
• 3- Extradition is not allowed for religious criminals .
• 4- rule of speciallity- state can prosecute that person only for the crime for which he was extradited.
• 5-double criminality – the crime for which extradition is claimed should be crime in both the
countries .( country claiming for extradition and country giving extradition)
• 6- There should be sufficient evidence for crime relating to extradition.
• The Mehul Choksi Case:
• The case involving Mr. Choksi was one that stirred great controversy in India. Mr Choksi is wanted in
India for counts of criminal conspiracy, corruption, money laundering and criminal breach of trust on
account of the Punjab National Bank Loan Fraud.
• After being accused of his crimes, Mr. Choksi fled to Antigua, where he purchased citizenship under
am investor scheme, in light of avoiding deportation to India for his Trial.
• The Antiguan authorities are naturally reluctant to extradite one of their citizens as they believed he
would be subject to inhumane conditions in India. Thus, India is facing a difficult time retrieving Mr.
Choksi from Antigua
Asylum:
• Definition:
• According to Starke, the conception of asylum in International law involves two elements
1.Shelter, which is more than merely temporary refugee ; and
2.A degree of active protection on the part of the authorities in control of the territory of asylum
• The Institute of International law, at its Bath session in September, 1950 defined the term asylum as under
• “Asylum is the protection which a state grants on its territory or in some other places under the control of certain
its organs to a person who comes to seek.”
• According to Article 14 of the Universal declaration of Human Rights, adopted by the General Assembly of United
Nations on 10 December 1948 –
• Everyone has the right to seek and to enjoy in other countries asylum from persecution.
• Kinds/ Types of Asylum:
•
B) Extra-territorial Asylum
• A) Territorial Asylum:
Territorial 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 to anyone. The grant of territorial asylum therefore depends upon the
discretion of a State which is not under a legal obligation to grant asylum to fugitive.
• Talisman Nasreen a Bangladeshi writer for her novel Raja granted asylum by Sweden.
Tiger Menno, wanted in Bombay Bomb blast case, granted asylum by Pakistan.
Dalai Lama and his followers was granted asylum by government of India.
•
Salman Rushdie for his controversial novel Satanic Verses given Asylum by Great Britain.
• B) Extra-territorial Asylum -
Active protection is given outside the territory not belonging to the state granting it. Thus
when Asylum is granted by a State at places outside its own territory. It is called extra-territorial Asylum’. It usually
describes to those cases in which a State refuses to surrender a person demanding who is not upon its own
physical territory but is upon one of its public ships lying in foreign territorial borders or upon its diplomatic
premises within foreign territories. Thus Asylum is given at legation, consular premises and warships are the
instances of extra-territorial asylum.
• Asylum case( Columbia vs peru)
• The United Nations (UN) is an international organization
founded in 1945. It is currently made up of 193 Member States.
• The forerunner of the United Nations was the League of
Nations, an organization conceived in circumstances of the First
World War, and established in 1919 under the Treaty of
Versailles "to promote international cooperation and to achieve
peace and security.
• The name "United Nations", coined by United States
President Franklin D. Roosevelt.
• The UN Charter of 1945 is the foundational treaty of the
United Nations,
• Components
• The main organs of the UN are
• the General Assembly,
• The General Assembly is the main deliberative, policymaking and representative organ of the UN.
• the Security Council,-It has primary responsibility, under the UN Charter, for the maintenance of international peace and security. five
permanent members—China, France, Russia, the United Kingdom, and the United States—and ten non-permanent members . Veto
power" refers to the power of the permanent member to veto (Reject) any resolution of Security Council.
• the Economic and Social Council,-It is the principal body for coordination, policy review, policy dialogue and recommendations on
economic, social and environmental issues, as well as implementation of internationally agreed development goals.It has 54 Members,
• the Trusteeship Council,-By 1994, all Trust Territories had attained self-government or independence. The Trusteeship Council
suspended operation on 1 November 1994.
• the International Court of Justice,- The International Court of Justice is the principal judicial organ of the United Nations. It was
established in June 1945 by the Charter of the United Nations and began work in April 1946.
• The ICJ is the successor of the Permanent Court of International Justice (PCIJ), which was established by the League of Nations in 1920.
• UN Secretariat.-The Secretariat comprises the Secretary-General and tens of thousands of international UN staff members who carry out
the day-to-day work of the UN.
UDHR( Universal Declaration of Human rights
)
• Second World War lead to the creation of the adopting of the Universal Declaration of
Human rights on 10 December, 1948
• Article 1 of the Universal Declaration proclaims that “All human beings are born free
and equal in dignity and rights”.
• Again according to article 2 “Everyone is entitled to all the rights and freedoms set
forth in this Declaration without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth
or other status
• Civil rights include -Article 3 Everyone has the right to life, liberty and the security of
person
• Article 4. No one shall be held in slavery or servitude
• Article 5 No one shall be subjected to torture
• Article (6-11) Right to equality before law and legal remedies etc.
• Economic social and cultural rights include – social security (art 22)
• Right to work ,employment ,right to education (art.26)etc.
International Covenant of Civil and Political Rights (ICCPR)1966
According to Starke the various Stages of formation of the treaties are as follows –
• 3) Signature -
When the final draft of a treaty is drawn up, the instrument is ready
for signature. The signature is affixed at a formal closing session. A treaty
generally comes into force on signature unless the States desire to subject
it to ratification. But where a treaty is subject to ratification, the signature
only implies that the representive have agreed upon a text and willing to
accept it and refer it to government which have a competency either to
approve or reject it
• 4) Ratification
When a treaty signed by the representative of of the states is confirmed by the
states,the act of confirmation is called ratification. The state parties become bound
by the treaties after ratification.
Ratification of a Treaty may withhold on the following grounds
ii) If any deceit as to matters of fact has been practiced upon him
iv) If there has not been consensus ad idem (meeting of mind) e.g. there has not
been agreed as to the same thing.
• 5) Accession and Adhesion
After the treaty has been so ratified, it has to be registered at the headquarters of the international
organization. According to Article 18 of the Covenant of the League, every treaty or international engagement
should be registered with the Secretariat of the League and published by it as soon as possible. No such treaty or
international engagement was binding on any state until it was so registered. This means that in case of any
dispute, the treaty could not be relied upon if it was not registered.
• To the same effect are the provisions in the United Nations Charter. Article 102 of the Charter reads: ----
Every treaty and every international agreement entered into by any Member of the United Nations after the
present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
No party to any such treaty or international agreement which has not been registered in accordance with the
provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United
Nations.
The second part of Article 102 clearly prohibits State to bring before the bar of world opinion any
secret treaty. The effect of non registered treaty is valid , however, limited to this extent that parties to the treaty
cannot invoke it before any organ of the United Nations.
RESERVATIONS TO TREATIES
• There are certain principle in the international law which all the states must observe ,their
non observance may affect the very foundation of the legal system to which they belong.
They therefore cannot be altered by concluding treaties. The basic or fundamental rules
posses the characters of jus cogens.
• It is evolved with doctrine jus publicum privatorum pactis mutari not potest which means
that a public law or right cannot be altered by the agreement of private persons.
• Article 53 of the Convention provides that:
• [a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law. For the purposes of the present Convention, a peremptory
norm of general international law is a norm accepted and recognised by the international
community of states as a whole as a norm from which no derogation is permitted, and
which can be modified only by a subsequent norm of general international law having the
same character.
• Article 64 declares that ‘[i]f a new peremptory norm of general international law emerges,
any existing treaty which is in conflict with that norm becomes void and terminates’.
• the concept of jus cogens, of fundamental and entrenched rules of international law.
• The seas have historically performed two important functions: first, as a medium of
communication; ssand, secondly, as a vast reservoir of resources, both living and non-
living.
• Both of these functions have stimulated the development of legal rules.
• Sea is divide into 3 parts
• Maritime zone
• Contiguous zone
• High sea
• There is maxim called mare liberum or freedom of the sea.
• due to economic interest the mare liberum maxim gets eclipsed.
• Series of conferences were held to reconcile the conflicting interest of the state in sea.
Among them
• In 1982 Third united nations conference on law of sea (UNCLOS III) is very important .
• Article 55 provides that the zone starts from the outer limit of the territorial sea, but by
• article 57 shall not extend beyond 200 nautical miles from the baselines from which the
• breadth of the territorial sea is measured.
• Article 58 Rights and duties of other States in the exclusive economic zone
• all States, whether coastal or land-locked, enjoy, navigation and overflight and of the laying of submarine
cables and pipelines.
THE HIGH SEAS
• all parts of the sea that are not included in the exclusive economic zone, in the territorial sea
or in the internal waters of a State, or in the archipelagic waters of an archipelagic State are
called as The high SEAS.
• Article 87
• Freedom of the high seas
• . The high seas are open to all States, whether coastal or land-locked. Freedom of the high
seas is exercised under the conditions laid down by this Convention and by other rules of
international law.
• It comprises, inter alia, both for coastal and land-locked States:
• (a) freedom of navigation;
• (b) freedom of overflight;
• (c) freedom to lay submarine cables and pipelines, subject to Part VI;
• (d) freedom to construct artificial islands and other installations permitted under
international law,
• (e) freedom of fishing,
• (f) freedom of scientific research,
The right of Hot Pursuit
• The right of hot pursuit of a foreign ship is a principle designed to ensure that a vessel
which has
• infringed the rules of a coastal state cannot escape punishment by fleeing to the high seas.
• In reality it means that in certain defined circumstances a coastal state may extend its
jurisdiction
• onto the high seas in order to pursue and seize a ship which is suspected of infringing its
laws.
• The right, which has been developing in one form or another since the nineteenth century.
• It notes that such pursuit may commence when the authorities of the coastal state have
good
• reason to believe that the foreign ship has violated its laws. The pursuit must start while
the ship,
• or one of its boats, is within the internal waters, territorial sea or contiguous zone of the
coastal
• state and may only continue outside the territorial sea or contiguous zone if it is
uninterrupted
Settlement of International Dispute
• Legal and Political Disputes
• There are two grounds on which a disagreement can arise between two
parties; political or legal. The distinction between the two is purely subjective.
It is primarily the attitude of the states that decide whether a dispute is a legal
or a political one. Owing to the involvement of the states, it becomes difficult
to distinguish the two. For a dispute to be regarded as a legal one, States must
desire to settle it on the basis of law, or else it becomes a political dispute.
• In Nicaragua v. Honduras, a case concerning Border and Transborder Armed
Action, the court clearly stated that it is only concerned with the legal aspects
of disputes.
• In an advisory opinion given in the
Legality of the Threat or Use of Nuclear Weapons that the presence of a
political aspect along with the legal aspect does not deprive the case of its a
legal question.
• Negotiation
• This is regarded as the oldest and the simplest form of settling
disputes. When the disputant parties settle the dispute
themselves by discussion or by adjusting the disagreement, the
process is called a negotiation. The dictionary meaning of
negotiation defines it as a discussion aimed at reaching an
agreement. Hence in a case of disagreement, the method of
negotiation can be used to reach a state of peaceful agreement.
This process of negotiation may be carried out by the Heads of
the State, or by their representatives or by diplomatic agents. In
1976, India and Pakistan settled their pending boundary disputes
in the Simla Conference through the negotiation method.
• Mediation and Good offices
• when parties are not willing to go for the negotiation method or they fail to reach a state of
settlement through a healthy negotiation. A third person assists them in resolving their legal matters.
Such a third person may either be appointed by the parties themselves or by the Security Council
• instances where the appointment has been made by the Security Council. McNaughton in 1949, in
1950 Dixon, in 1951 Graham, in 1957 Jarring
• In the process of mediation, the mediator participates in the discussion, gives his views and
suggestions in resolving the dispute. The mediator is usually known to settle the disputes as he may
even help in signing the treaty embodying the settlement that is reached.
• A famous example of mediation is when the Soviet Premier Kosygin settled the dispute between India
and Pakistan by signing the Tashkent Agreement in 1966.
• Good offices is basically the act through which the third party either arranges for a meeting between
the disputant parties or he acts, in ways through which a peaceful settlement can be reached
• When the parties have failed to come to terms through negotiation, it is the third party that provides
for their good offices for the peaceful settlement of disputes
• The Prime Minister of the United Kingdom, James Harold Wilson, had lent his good offices to India
and Pakistan to reach an agreement in reference to the Kutch issue.
Conciliation
• The process where a Commission or a Committee is appointed and the dispute is referred to them
and it is required by them to find out about the facts and then to write a report for the settlement of
the dispute, is called conciliation. Here an effort is made for a peaceful compromise, to sign an
agreement but important to note that the proposals made by the commission are never binding on
the parties to the dispute
•
• Such commissions or committees that provide for conciliation may either be permanent or ad hoc in
nature. The idea of the Conciliation Commission was born in 1899 and 1907 Hague Conventions for
the Pacific Settlement of Disputes. Several treaties after the end of the First World War were made
through the Conciliation Commission. The General Assembly under Article 10 and 14 and the Security
Council under Article 34 has the power to appoint a commission to settle disputes.
• Arbitration
• Arbitration is the process of using the help, advice and recommendation of a third party called
arbitrator to settle disputes. The International Law Commission defines it as ‘a procedure for the
settlement of disputes between states by a binding award on the basis of law and as a result of a
voluntarily accepted undertaking’. Owing to its tendency to blend civil law procedure and common
law procedure, International arbitration is sometimes also referred to as a hybrid form of
international dispute resolution
• Retortion
• Retortion is based on the principle of tit for tat and is also a synonym for retaliation or to say it
is the technical term. It is an act done by one state in a manner similar to what was done earlier
by another state. Such acts done by the States are not illegal but are permitted under
International Law. It is an effective tool of law enforcement although the method of
implementation may seem unfriendly
• Reprisals
• If the problem is not solved by Retorsion the States have the right to resort to Reprisal. In
retaliation, the state can initiate such a proceeding where the problem may be resolved.
However, reprisal is one such method that can only be resorted against a State when it has
indulged in some illegal or inappropriate activity. The method and process of reprisals were
clearly defined in the Naulilaa case, (Germany v. Portugal).
• For example, Israel has resorted to reprisal many times against Lebanon. It has bombarded
those regions of Lebanon where Arab terrorists attacked the territories of Israel. The members
of the UN cannot indulge in reprisals of such a type which endangers international peace and
security. It is commonly accepted that Reprisal becomes justified and legal when the other
country has committed an international tort or violates the norms of International law.
• Embargo
• Embargo is of Spanish origin. It is also a kind of Reprisal.
• The Convention did not contain provisions for continuing administrative machinery and
entrusted certain duties of coordination to the Pan-American Union, mainly to its
conference that met every five years. The Havana Convention had no Annexes; all rules
were contained in the treaty itself. Aircraft regulation was done according to the laws of
each country; no uniformity was provided.
•
• In summary, the Havana Convention contained no provisions for a permanent and
dynamic means of facilitating civil aircraft’s progressive development and evolution. States
were expected to take the initiative in guiding the development of civil aviation and in the
writing of regulatory codes. This permitted a good deal of flexibility among States, but also
led to a degree of uncertainty or confusion in practice.
CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO
INTERNATIONAL CARRIAGE BY AIR, SIGNED AT WARSAW ON 12 OCTOBER
1929 ( WARSAW CONVENTION
• Total 41 Articles.
• Article 1 .
• 1-This Convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward. It
applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.
• 2. For the purposes of this Convention the expression "international carriage" means any carriage in which, according to
the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in
the carriage or a transhipment, are situated either within the territories of two High Contracting Parties, or within the
territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the
sovereignty, suzerainty, mandate or authority of another Power, even though that Power is not a party to this Convention.
A carriage without such an agreed stopping place between territories subject to the sovereignty, suzerainty, mandate or
authority of the same High Contracting Party is not deemed to be international for the purposes of this Convention.
• 3. A carriage to be performed by several successive air carriers is deemed, for the purposes of this Convention, to be one
undivided carriage, if it has been regarded by the parties as a single operation, whether it had been agreed upon under
the form of a single contract or of a series of contracts, and it does not lose its international character merely because one
contract or a series of contracts is to be performed entirely within a territory subject to the sovereignty, suzerainty,
mandate or authority of the same High Contracting Party.
• Article 2
• 1. This Convention applies to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions
laid down in Article 1
• 2. This Convention does not apply to carriage performed under the terms of any international postal Convention.
• Warsaw convention is a legal framework that serve as an effective instrument used by
the International civil aviation. The Warsaw system is the result of the modifications
and additional protocols, rules, and regulations in the Warsaw convention. The
International Civil Aviation Organization (ICAO) oversees the operations of this
system.
• The convention contains definitions of terms, documents or carriage, luggage and
passenger ticket, liability of carrier, provisions of combined carriage and other general
provisions which sum up to five chapters. Aside from broad topics in international
flight treated by the Warsaw convention, there are also certain provisions of the
convention that are specific such as passengers tickets and baggage checks.
• The convention explicitly explains international carriage and its application. It also sets
rules binding the carriage of documents. As a legal framework, the Warsaw convention
also specifies the carrier's liability and limitations. The convention provides a limitation
which states that claims must be brought forward within two years
• Chicago Convention
• Known more commonly as the ‘Chicago Convention’,
this landmark agreement laid the foundation for the
standards and procedures for peaceful global air
navigation. It set out as its prime objective the
development of international civil aviation “…in a
safe and orderly manner”, and such that air
transport services would be established “on the
basis of equality of opportunity and operated
soundly and economically
Five freedom of Air
• freedom to fly across foreign country without
landing
• Freedom to land for non traffic purposes
• Freedom to disembark in foreign territory traffic
originating in the state of the origin of craft
• Freedom to pick up in any foreign country traffic
destined for the state to origin of aircraft and
• Freedom to carry traffic between two foreign
countries.
• Total 17 articles
• Article I
• Outer space, including the Moon and other celestial bodies,
shall be free for exploration and use by all States without
discrimination of any kind, on a basis of equality and in
accordance with international law, and there shall be free
access to all areas of celestial bodies.
• Article II
• Outer space, including the Moon and other celestial bodies, is
not subject to national appropriation by claim of sovereignty,
by means of use or occupation, or by any other means.
• Article IV
• States Parties to the Treaty undertake not to place in orbit
around the Earth any objects carrying nuclear weapons or any
other kinds of weapons of mass destruction, install such
weapons on celestial bodies, or station such weapons in outer
space in any other manner.
• The Moon and other celestial bodies shall be used by all States
Parties to the Treaty exclusively for peaceful purposes. The
establishment of military bases, installations and fortifications,
the testing of any type of weapons and the conduct of military
manoeuvres on celestial bodies shall be forbidden
Syllabus for exam
• 1-Introduction:
• Structure of the International Community Historical Development and Specificities of Public International Law, Definition, Nature,
Legality of International Law, Theories as to basis of International Law, Relation of International Law to Domestic, Practice of States,
UK USA and India, Sources of International Law , Codification.
• -Subjects of International Law:
• The Concept of Subject of Law and of Legal Personality, Various Theories like Realistic Theory, Fictional Theory, Functional Theory,
State as Subject, Definition and Conditions for Statehood, rights and duties of states, Territory, Modes of acquisition and loss of state
territory, Sovereignty
• 2-Recognition:
• De Facto and De Jure, Theories of Recognition, Recognition of Belligerency and Recognition of Insurgency, Collective Recognition,
State Responsibility, Original and Vicarious Responsibility, State Responsibility for various Acts, Individual Acts, Mob Violence,
Insurgency and for International delinquencies, The Invocation of Responsibility and Diplomatic Protection, State Succession,
Theories of State Succession, Rights and Duties arising out of State Succession.
•
• 3- Individual as a subject of International Law:
• The Basic modification, post charter in the position: Nationality, extradition, Asylum, Territorial and Extra, territorial, UNO & Human
Rights, UDHR, Covenant on Civil Political Rights,1966, Covenant on Economic Social and Cultural Rights, 1966.
• 4-Law of Treaties:
• Concept of Treaty, Kinds of Treaties, Binding Force of Treaties, Pacta Sunt Servanda, Jus Cogens, Rebus Suc Stantibus, Parties of a
Treaty, Formation of a Treaty, Reservation, Invalidity and Termination of Treaties
• 5--Law of the Sea: Historical Background, Maritime Belt, Territorial Sea, The Contiguous Zone, Exclusive Economic Zone, Continental
shelf, The High Seas, International Sea Bed Area, Common Heritage of Mankind , Law of the Sea Conventions (United Nations
Convention on the Law of the Seas).