— ))History and evolution of international law: Before tracing out the roots of international law, let Ii D is; 4 “Law can be defined as the rules or code of conduct riat is essential for ranning rn the state affairs” 7 DYnternational Law: International law, in simple words, can be detined as “rhe code of conduct on basis of which states interact with each other or by which a state imeract with cae eee a international community”. —a—v—v-~—vervse—e—v—ovrv—v—~e” \ International Law in the words of Prot. Kelsen He define international law in the following words; ey which “International law or the law of nations is the name of the budy of rul ; © i ~ according 10 usual definition regulate the cofduct of the states and thei interaction with one another Evolution of International Law: ed on leave: In beginning of the world, human beings used to live in caves. ‘They ! started and uncooked food. Slowly and gradually, the wend got change and peop to live together as family. They learied the technique of igniting fire by colliding stones with each other. Later on, as the population grew and the process of evolution moved forward, concept of village came into being. Further grow! population resulted in the establishr f city states. ‘The time when human beings lived together and their interaction increased, a code of conduct was needed% All the three points of discussion in that treaty are today the most import subjects of international law. B. Greek’s Era: Gree!.s have their own contribution to international law. ‘Th y learned the tech:.ique of concluding treaty and the art of diplomacy from Origntal States, for —————E—— art of diplomacy from one negotiation with other states. Greeks signed a lot of treatics with other states. SS C. Romans Era: Roman era is also one of the glorious eras. They occupi lot of territory Romans contribution for international law is that they have signed a lot of weaties with Latin and assured them their co-operation in many areas. For instance, for the first time, they provided the right of sue to their citizens in each other courts. They introduced two terminologies; f ) > IUS Gentium: It defines the relationship with roman citizens and foreigners. > IUS Eetaile: It talks about external relations of Romans and also about the declaration of war: Moreover, the maxim, “Pacta-Sunt Servanda” is also a contribution of this age. Second phase: Middle Ages Second phase is an era of 9" century to 16" century. It is also called as “Middle Ages". This era is characterized by the struggle of Protestants uyuinst Catholics Entire Europe, during this cra, shifted from God-centric to state/scrence centr Mastin Lusher King came and the reformation of Europe took place. It was the time when scgupgules were discovered{ Vasco de Gama discovered sca route to India, Captain tralia and Columbus discovered USASregulation of sea-routes/trade: When sca-toutes were discovered, trade took place between different states. The trade contributed to the growing importance of seas and sea routes. Regulation of sea-routes became mandatory resulting in-publishing of many books, comprising syelated to sea-trade. Some of the prominent books were: > Maritime laws __ > Lex Mercatoria English black book of admiralty 7 v The concept that high sea will be no man's land has its roots in that era. Cannon Shot Rul Sea is very important because natural resources and precious metals are found in it, Its importance further increased after the discovering of sea routes and trade initiation. Control of sea routes increases the role of 2 state in world affairs Morcover, it also is very important from the perspective of naval forces power. Some states, in the past, started occupying seas, adjacent to their territorial lands. ‘These coastal states claimed their exclusive right on the entire seas adjacent to their boundaries. Resultantly, wars were fought between the states to occupy maximum waters near theit borders and enjoy their rights over it. Some of the states extended their right over the waters up to 100 NM and some even to 200 MM,, ‘This competition for controlling water created a need for law. First ever rule « tation of territorial waters is Cannon shot rule. Cannon was regarding the lin actually coastal artillery. The states used to shot a fire by it while fixing it on the 6t os wo as be coast and the range of that fire meant the range of territo: waters of that particular state. Initially, its range was 3NM One phase: Modern Age Th d phase (modern age) emanates from 17" century and last: tll today, Great ertod, For instance; developments to international law have been made during this Treaty of Westphalia: (1648) Treaty of Westphalia, concluded in 1648 is a land mark treaty in the history of international law. Aficr the division of religion and politics in Europe, the government system was entirely changed. However, unfortunately, 30year long er war was started. To end the war, this treaty was concluded which resulted in, ——_ 7 Breakup of feudal structure 7 Balance of power “E Emergence of modern nation states © Concept of sovereignty Hugo Grotius: he father of modern internat his idea of “just war”. In his words, war is a necessary evil a evolution and development but war should be just war. By just war combatants. there should be discrimination between combatants and ni He wrote two famous books during his life time. > The tice sea (1609) > On the law of war and peare O68 7818" Century Jighteenth century bears witness to the hot debate of three schools of thoughts. These are; Naturalists: / Naturalists believe that every law is divine and we cannot alter it. The pre-requisite of a law according to them is that a law should be considered a law only if it is divine and universally beneficial for all human beings. For instance, the revolution of planets around the sun is an example of natural law. r ositivicts - Positivists are contrary to naturalists and they believe on man-made laws. Main” argument of positivists is that a law will be considered a law only if it has been c d made through right the process and has been enacted by the right person/authority. | They present treatigs as one of best example of law. r Grotiansd Grotians are the followers of Hugo Grotius. They are standing just between the carlicr_two schools of thoughts and believe on both naturalists and positivists arguments Aa Conboy ge _ Congress of Vighna asis Napoleonic wars greatly destabilized international structure. The wars provided, setback to the development of international politics. After his death, in 1815 A. D, Congress of Vienna was convened to shape up future of the world politics. Main discussion points were; 1 1 Xe p1 2 J. pact the signatory states promised not to use war 1 resolve 1 > Sovereignty of one another > Balance of power » ‘> Nationality of citizens - > Immunit “s of diplomats. wr WZ Soon after that, Belgium and Switzertand were declared as neutral states in or ler to Belgium and Switzerland were Ceclared as ensure the balance of power, Hague Conventions: (1899 ~ 1907) / ational law Hague conventions occupy great signifitance in development of interr Rules related to wars were formulated in it, One of the most important oustcot jaa a these conventions was the rule of disarmament. It was a step towards minimizing the ratio of arms in the world to reduce the factor of war. Another significant contribution of Hague Conventions is the development of Law of Neutrality. It : oe developed many law regarding neutrality and neutralization. 20" Century: ~ history of human beings. ‘ofiweritiatli céitary is the most dramatic century in th This century has witnessed two-World Wars plus two International Organizations \established for the purpose of bringing peace to the world. In addition, this century has also witnessed the production and application of nuclear weapons for the Tirst time in human history Kellogg Briand Pact: (1928) = 3 his pact was signed by Belgium, Frafice, 1noture or of whatever origin they may be, which may arise among oromisee hat henceforth, the issues will be settled by peaceful manner. ventions: (1925 - iy dered very important for playing its role Geneva yventions are cons ent of LLL © conventions were convened on the platform of LER.C Some of its important outcome was; + f'\ reatment of prisoners of wat ee Provision of medical facilities to wounded _ of otection of the religious and medical staff during war U.N.O: (1945) JS - United Nations organization bears utmost importance in the development and implementation of international law. It has added significantly to international law and has changed entirely the nature of international law by bringing it in documented form. Some of its important outcome is; | aie { declaration of Human Rights (1948) / \ > Vicana convention on diplomatic relations (1961) Vienna convention on consular relations (1963) . > convention on law of treaties(19697 % UN convention on law ofsea i982). / 3 | Garcon 7 veal a _ '= INTERNATIONAL LAW AND MUNICIPAL/STATE LAW Outline: ner. + Int-vduction. % Vavious theories. ra ¥ Monism of, : ¥. Dualism ¥ Specific adoption theory ¥ Transformation theory J v Delegation theory “ Conelusion. Howse: eme-tL 3é INTERNATIONAL LAW AND MUNICIPAL/STATE LAW \ i I In order to understand international law properly, it is necessary to understand the relationship between international law and state law. Generally, stale law regulates the conduct of the persons living within its territory whereas international law regulates the relations among states. In the modem period, in view of the ‘ continuous development of internatiormal law it is not proper to say that : international law regulates only the relations among states; in fact international is 4 law which regulates the relations of members of international community. Following are some of the prominent theories which explain the relationship between international law and state law. 1. Monism yAyssD 2. Dualism 3. Specific Adoption theory 4, Transformation theory il 5. Delegation theory : 1. Monism: ‘The exponents of this theory’ emphasize on the scientific analysis of internal structure of law. According to them, law is a unified branch of law, no_matter ———~_———E—_—EO OOO whether it applies to one person, ities. According to monist belief, international obligations and municipal rulgs are two facets of same pheno: jon and have derived ultimately from one basic norm, According to exponents of Monism, intemational law and state law are intimately connected with cach other. Both are th o bray ified knowledge of law applicable to huitan community in some or the other way, In view of the monisticwriters, in the ultimate analysis of law we find that man is at the root of all laws ‘All iaws are made for men and man only is the ultimate analysis 2. Dualism: ghikes In the view of dualist writers, international law and state law are two separate laws. : —————— \ For example, according: to the soviet view, “international law and municipal law comprise two separate principles of Jaw and remain in no hierarchical dependence ee aw : er STR upon éach other. ‘The monist view of law is part of philosophy according to which he totality is a single structure. Differences between the two schools are significant rat and the dualist considers that municipal law differs markedly from international 7 tax: Grieped nos pointed out the following differences between international law * and state law. ip Regarding subject: Individual is the subject of the state law, whereas state . is the subject of international law. 7 Regarding origin: Origin of state law is the will of the state whereas origin of the international law is the common will of the states Criticism: 2 L)pt is not correct t0 say that international law is binding only on states. In the modem period, international law is binding not_only on states but al indiyiduals and some non-state entities as well. x ayfhe conception of state will as the source of state law is incorrect In fact, f will of a state is nothing but the will of the people who compose it. n 3) It is not correct to contend that the source of international law is: the common will of the state. There are some fundamental_principles of y international law which are binding upon states, even against their will. ,ee 2 n Whether monism or Dualism is the correct theory? C On the basis of above discussion, monism appears to be the correct theory but nc , 7 theory can be complete in itself and it is not possible to include all elements in it ‘The practice of states indicates that sometimes there is the primacy of international law and sometimes there is the primacy of municipal law and sometimes there is the mixture of different legal systems. For example in Greco-Bulgarian 0 communities case, the permanent court of international justice held, “it isa tl general accepted principle of international law that in relations between powers € who are contracting parties to a treaty, the provisions of municipal law cannot prevail over the treaty”. On the other hand, whgn the municipal courts find that the gonflict_between the international law and municipal law is of such nature that / cannot be avoided, in that case they give primacy to municipal law, * 3. Specific adoption theory: i : According to the positivist, international law cannot be directly enforced in the \ field of state law. It is necessary to make its specific adoptign. No short, t {imtemational law can be applied in the field of municipal law only when municipal law cither permits it or adopts it specifically, Criticism The view is not correct because there are many principles of international law which are applied in the field of municipal law without specific adoption. 4. Transformation theor: . ot . \ The exponents of this theory contend that for the application of international law in the field of municipal law, the rules of international law have to undergotne nit onal rers. not the hat the ort, pal w transformation, Without transformation they cannot be applied in the field of municipal law Criticism: va This theory is based 0. consensual theory which has already been criticized. It may i) also be noted that it is not necessary for all treaties to undergo transtormation for their application in the field of munitipal law. There are several law-making s of treatiés which become applicable to the states without undergoing the pro transformation. This theory has been severely criticized by the critics. “It is therefore incorrect to consider the transformation {rom one to other is materially essential”. 5. Delegation theory: »-~ As pointed out earlier, wansformation theory has been se number of jurists. The critics of transformation theory have put forward theory called delegation theory/These cr of international law permit each-State to determine as to how international treatics 's point out that the constitutional rules will. become? applicable in the field of state Jaw, ‘Thus, in fact, there is no transformation nor is there any specific adoption in every case. The rules of international Jaw are applied in accordance with the procedure and system prevailing in each state in accordance with its constituti Prevailing in 20) eee )¢ i i Outline . t i i ‘ j > Short Background ® Theories about subjects of international law © Oppenheim’s theory Ss © Kelsen’s theory Sutuibuds 1 \ > [Latest theor oa > Place of individual in international law ‘ 7 SALAD Sie beds F NSPS t |X Subjects of International Law: Ordinarily international law deals with the rights and duties of the states. Ger it is the states that enter into treati..s with each other and are thus bound by it does not me:.1 that other entities or individuals are outside provisions. Howev the scope of international law. Today’ in view of developing and changing character of international law, international law applies upon individuals and certain non- state entities in addition to states. * Various theories regarding subjects of international law Following are three main theories regarding subjects of international law. These “theories are actually a debate about who can be the subject of intemational lav \ According to modern view, states, individuals and non-state entities all qualify to be the subjects of international law, 1. Only states are the subjects of international law: ofpterheim Some jurists have expressed the view that only states are the subject of international law. In their view, international law regulates the conduct of the states so only states are the subjects OP international law. Dual Oppenheim is one of the chief exponents of this theory. He is of the view that individuals are not and cannot be subjects of international law. aby . ska Criticism: This view has been subjected to severe criticism by jurists. The theory fails to explain the case of slaves and pirates. The rules related to human codified for individuals. Asylum is granted by states to individual have been Exwadition is RSuadition also the case of individual nota state. When an agent of U.N sulfers injury duringch performance of his duty, the concerned state is held responsible. On these all basis court rejected the proposition that only sta < are the subject of international law. 2. Individuals are the only subjects of international law: Ph. Kaisen This theory is contrary to the above. Certain jurists have expressed the view tha only individuals are the subjects of international law. Chief exponent of this theory is Prof. Kelsen. He contended that under international law the duti are ultimately the duties of individuals, Truly speaking there is no difference between : slaig law and internationallaw. tn his view, both laws apply on the individuals and they are for individual. The only difference between them is that state law applies on individuals intermediately whereas international law applies on individuals P individuals Siommediaiel ee mediately. — Criticism: in Kelsen’s views appear to be logically sound. But so far as the practice of states is concerned it is seen that the primary concern of international law is the rights and dutics of states. Statute of intemational court of justice also adheres to the vaditional view that gnly states can be parties to international proceeding. 3. States, individuals and certain non-state entities are subject: in he third view not only combines the first and second views but goes a step ahead to inclucie international organizations and certain non-state entitics as subjects of international law. This view undoubtedly appears to be far better than the first two. views. Following arguments may be put forward in support of this view.SOURCES OF INTERNATIONAL LAW: ce Outline: > Types of sources o Material source © Formal source - | - Sources of international ane 347A S— : \International treaties Ag WV. Con LEN MAGA. . ic ) Customs and usage 3. WETS \2 General principles -y testo: Tete Qtek Vike Cee roked © AM $4-{ STL, Judicial decision , Coes ely Combeda Ard Nove: , Tustice works 34) & I ro ‘ 4 Cece (0° fh Gar Teg + b lo 4 & ee Seon do Now are pee gee te fryrailway case, Poland refused to provide facilities w the officials of the company. The per nanent court of international justice rejected the contention of Poland and ruled against Poland sis b. 1949 Geneva convention *1 the pi c. The Ger Scie conventior of 1948 d. The Nuremberg and Tokyo tribunals are non-state entities and working | for individuals. 5 ha Con . r&T : ary Conclusion: ——— are A It is clear from the above discussion that today international luw regulates the | conduct and relations of not only the states, but also of individuals, international ~ organizations and certain other non-state entities. ies als Place of individuals in international law: : j - As pointed out earlier, individuals are also treated to be the subjecis of international law although they enjoy far lesser rights than stetes under , international law. In the recent.times, several treaties have been concluded whe: 4 it sights have been conferred and duties have been imposed upon the individuals 1 = xe oe — i | ds 4 / | of 7 How * u t mae OX | ° y \ NS i : i } i eel— Sources of International Law Before going towards identifying sources of international, let's first discuss that Asources are of two types A sa . Material sources: It can be defined as “the actual _material_from which an international lawyer determines the rules applicable to a particular situation. ‘I. Formal sources: \ Formal sources are those legal procedures and methods for the creation of rules of general application which are legally binding upon the addresses. For instance, in case of Pakistan, the constitution ofU973is a material source while the legal eee ‘x tnethod or procedure for becoming the president of Pakistan is @ formal source. The term ‘source’ refers to the methods or procedures by which international hiw is ‘source’ refers to the Memoeer created. The sources of international law may be classitied as; pga : a) International b) Customs and usages" c) General principles of lew recognized by civilized states 4) Judicial a) e) Juristic works International treaties: AL In the modern period international treaties are the most important source of international law. Article 2 of Vienna convention on law of ivaties ‘ oo provides that “a rreany is an agreement whereby two or nore states ei! sh orta establish a_relationship between them govern by international law Whenever, an international tribunal decides an intern: ional dispute then it find n internati nial treaty on that point. In case of yes the decision i upon provisions of that treaty. International treaties may be of two types. a, Law-making treaties: The coniribution of law-making treaties is directly the source of international law Law making weaties perform similar function at_international_arena wha ‘ture does at domestic level. These are the means through which internationa’ law can he adapted in accordance with changing time. t b. Treaty contracts: As compared to law-making teatics, treaty contracts are binding only on the binding only on the parties to treaty. It also helps in formation of international law through the I operation of principles governing the development of customary rules. Customs and usagesf z ) {tis regarded as one of the most prominent source of international law. Article 38(b) of statute of IC] recognizes an intemational custom as an evidence of general practice of international law. Customs, when practiced for a1 time become 2 law at lasi. Difference between Customs and Usages: ° Customs are consistent ‘A. Usages are not consistent Clistoms are universal A. Usages are particular gnized by law CC. Usage is not recognized by law Se | ctr sam . Pee |— TV. Custom begins where usage] D. Usage is the initial state of | ends custom law! V. Customs are consistently| — E. Usages are notofienrepeated | find repeated. on ity For example, the envoys were given immunities in the past as a custom but now it has becom law. Ja4 Features of Custom: ond >. Long duration > Uniformity and consistent > Generality of practice mpelling law) ‘the ithe | tates although they are not codified are also taken as source of iiterhational, In modern period it has become an important source. This souré helps international law to adapt itself according to ‘ice the changing times and circumstances. eral” Some general principles are; ea, r > Self defense concept is significant example of general principle of law. | > No one can be a judge himself if he is @ party to a dispute because judge listens to both parties > Pacta Sunt Servanda was a general principle on the basis of which diplomats — were granted immunities., _ 7 = c — 19Case study: Temple of Preah Vihear case between Thailand and Combodia: b In this case, ‘ie ICJ recognized and applied principle of estoppels. : i Judicial decision: ® It is another important source of international law. According to article 59 of | atgis 2? of | statute of IC] “the decision of the court will have no binding force excep! between the parties and in respect of that particular case”. Although, earlier decisions are | not binding on the court it self and court’is free to deviate from its previous decision, however it do not (For example)in Anglo-Nopwegian fisheries case, ICJ delivered the decision in favor of Norway. —___ Although the juristic works are not independent source of intemational law, however it can help in development of law. According to article 38(e) of ICJ, the a works of highly qualified jurists are subsidiary means of law. In the words of Justice Gray; 4 “Where there is no treaty and no controlling executive and legislative act or ed nations judicial decision, result must be made to the customs and usage of civil and as evidence of those works of jurists and commentators who by years of * labour, research and experience have made themselves well acquainted with the subjects which they treat”. So tHese were the sources of international law in view of article 38 of statute of 5 LCI. | |IS INTERNATIONAL LAW REALLY A LAW OR & POSITIVE LEGAL MORALITY? ia: | In 18 century a Bs juin Aus) ied 3 ciiastions ubowt the nature and viability of international law. ®le said that there is_no sovereign in international law 10 ensure its implementation; therefore, people do not follow it. of © There is no mechanism for interpretation of international {aw at international zen law to make sure that it is universally beneficial. are © The stiucture of legislation at international arena is also missing. aiticture’of legislatio us ‘ . os > His questions can be answered one by one in the following way a Command of a sovercign: . Treaties are considered as an important source of international law. These treaties are signed by sovereign @f states, therefore, the sovereign of particular states - implement it in their respective territory. Hence, the command. of sovereign is he pie germane pean present. In addition, Security Council, which is an important branch of U.N.O., has of - i . ; the responsibility to ensuré the implementation of international law and — Te Smplementation \ recommendations of General Assembly or | Raa : Concept of Iegislation: ns WW of { As mentioned above that international treaties are sources of international law and te are signed by sovereign state. They only come into force once the leyislative body | i \ (parliament) ratifies any particular treaty. So the concept of legislation is also f | Present in international law. >nT Interpretation of international law: At the time of John Austin international law was in its embryonic stage. Now we nave ICJ, Hague tribunal, Nuremberg tribunal and Tokyo tribunal_and other “These all bodies are used for the interpretation of ¢ role in development arbitration courts etc Tntemnational law and so these all bodies are playing their du of international law. On the basis of above discussion, we can completely reject the questions raised by echanism John Austin because with the passage of time the enforcement 1 international law has become better.7 ASYLUM AS her aay (Outline: ODHRE Oren 3. endtReve s | * Origin of asylum \“S een aa De wine | Definition of asylum 5 ON oe i . | «Guidelines from UNO | +» Types of asylum ce i ' o Territorial asylum \°¢ rs itor y Ft cs RUNES Sy o Extra-territorial asylum |. Grounds of asylum o Political > Recadget o Military 5 S- in Sen) Sak vy o. Religious SO— Usk vy O* o Human rights Frade : eeOrigin of asyinm V Revolution came in France on July 14, 1789. People of France stood for liber fratemity and equality. After materializing a successful revolution, they annound that “all those people who are politically and on religious basis prosecuted in he own respective countries and they want to come to France, we will warn welcome them”. With that they actually laid the foundation’ of the concept |” asylum Asylum involves two things; Ae 'y o A shelter which is more than temparary refuge. © A degree of active protection on the part of authorities which have contrihi over the territory of asylum. Definition of Asylum: W “The protection which a state grants on its territory or in some of her place undeit the control of certain of its organs to a person who comes to seck it is known aB asylum” The person who scek asylum is termed as “Asylee”, : Right to Asylum: According to article 14 of Universal Declaration of Human Rights 1948, “everyone has a right to seek and enjoy in other countries asylum from prosecution. Guidelines from United Nations: According to a resolution adopted by General Assembly on December 14, 1967;p econ if | when a person requests for asylumfiis request should not be rele’ |e enters into the territory of any state, be Spould not be expelled but when @ \ sarge number of people request for asylum, it may be rejected on the basis ol |. ational security of its Own people. rouney’ Hf any state feels difficulty in granting asylum, it sould consider the in the "appropriate measures with the feeling of international unity trough medium of individual states OF United Nations. cept When a state grants asylum to the fugitives, other states should respect tt Example is the case of ‘Molvi_Eazal_Ullab_ bares? Pakistan_and, _ Afghanistan | pes of Asylum: contrghere are major {YO types of asylum. " yn A. Territorial Asylum+ When a state grants asylum to a person on sts own soil and within 4S own territory, undeit is calle itorial asy!u! Foronamnld Sizes’ has granted asylul wn afBar-Hamdagh Bugti_ fr i nted asylum bY Adolf Eichmann w#s gral “Frgentina. He was 2 minister or death inrcabinet of Hitler. jar 1967, United Nations General Assembly cnanimovsly adoped # declarauien on cérijorial asylum. After thet, nother conference nemed #5 nived_ Nations — ference of Plenipotentiaries OP territorial asylum WS held 1 eva from js conference Was attended by 92 countries 10 to February 4, \ B, Extra-territorial asylums Extra territorial asylum is granted by 2 State outside its territory @-8 PHS embassy * a oe vessels. It may be further classified a8;a) Asylum in foreign legates: _ When a ‘ate grants asylum to someone in its embassy, it is called as ‘is foreign | “Sates. For instance, Julian Assange has been in her embassy in London. He is an Au; i $Y in London Peru. Asylum may be granted in embassy in three exceptional cases, eS my © As a temporary measure to individuals who are physically in danger § 7 mob violence or in case of fugitives having fear of government, © It is granted in those states where asylum is well established, | 7, recognized local binging system, © Asylum may also be granted where there is a special treaty between es concerned. 5) Asylum in consular premises: Onsular premises: Asylum may also be Sranted in consular premises, Moreover, there is no differen between asylum granted from an ems assy and asylum grant Pending upon the proximi a & z 8 ® 8 § 2 = & or ere Both can be requested for asylum de authority to grant asylum, ©) Asylum in premises of international institution: ions. For example is the case of Najeeb Ullah in Kabul, He got asylum in the office of United Nations } in Kabul, Afghapistan, - |— pr $3. red or if — } when a person requests for asylums request should not be rice! Fnot be expelled but when & nters into the tervitory of any state, he shoul ¥ hee! \ arge number of people reat basis of | security of its own people. st for asylum, It may be rejected on the fibeq national rounef’ Tf any state feels difficulty in granting asylum, st should consider the in the. ‘appropriate measures with the feeling of international unit unity ugqueh medium warn of naividual states OF United Nations. ‘ 5, other states should respect tt YF When a state grants asylum to the fugitives, en Pakistan and cept Example is the case of ‘Molvi_Eazal lla betwet f lypss of Asylum: contnghere are major te TYPES of asylum. Ro : A Territorial Asylum: sts own soil and within its ov territory, sylum to 4 Pee on ovanted asy! or amnld Surteriont has an. Rat Ejehmann was_granted asylum bY ster for death it ecabinet of Hitler. When astate grants 4s: ritorial asy!v undest 1s called wn afBar-Hlamdagh Bugti ‘Argentina. He was @ mini ao, da declaration on as General Assembly unanimously adopte' that, another conference named 2s ries Nats ylum_was held i eva from js conference was attended by 92 countries tn 1967, United Natior orial asylum. Afte territ Con! nference of Plenipotenti: 10 to February 4, aries ON territorial as; B, Extra-territorial asylum: Extra territorial asylum is granted by a state outside its territory e.g, in its embassy public vessels- jt may be further classified 4s; 7 4 OF ini } | \ 4) Asylum in war ships: + | War ships of any country can also grant asylum. The captain of @ ship will 4 . . * communicate with the home state and upon positive respr sc, asylum will be granted to a person. Merchant ship cannot grant asylum to; person because they 84s} A poe : | are not immune from the local jurisdiction of a state. ry E 7 i-§ Grounds for Asylum: on te w } Asylum is generally granted on the basis of the following Swe grounds. | wx a. Political Ground: ke an ci basi Asylum is granted to a person on this ground if he has committed a political crime. | Example is the case of Re-Castioni. He was a Swiss national who was charged | with the murder of political consul. U.K granted him asylum. per ff b. Military Ground: 4 . . . Id asylum is also granted on this ground. In gulf war, two sons-in-liw of Saddam hey’ Were charged of military defection. Me c. Religious Ground: ten ren, Asylum may also be granted on this ground. For example is the case of Salman Deere ee Rushdi. He was an Iranian and wrote a book with the name “Satanic Verses” thus ulate gious crime. He was granted asylum by U.K. his extradition was e thd committing a reli requested after Jranian revolution but was refused. All the above three crimes are Non-extraditable crimes Se iple ons | Sy Hei t Asylum is also granted on tiis ground. Recent example is the case’ of Malah d. Human Rights Ground: . Yousafzai. i | Although everyone has a right to seek asylum yet there is no correspondence uy of states to grant asylur+ EXTRADITION £ Malal ace dui | Outline: Y B:sis of extradition. Y¥ Concept of extradition. v Viewpoints of jurists: ' i | V Rules of extradition. | o Principle of double criminality i o Attentat clause, 1856 | o Russian project, 1881 | o Swiss act, 1892 | o Rule of specialty Y Non extraditable crimes.Basis of extradition: Generally cach staie exercises complete jurisdiction over all persons living with its territory, Sometimes, there may be a case that a person commits a crime in of state and somehow he/she manages to get out of that state and enter into th territory of another state and gets asylum in that state. In such a situation, the staf affected finds itself helpless to exercise jurisdiction over that person. In the condition, the affected state requests for extradition of the guilty. Extradition is actually the reverse of asylum. What is extradition? 7 Extradition is the delivery of an accused or convicted individual to the state or whose territory he is alleged to have committed or to have been convicted of a crime, . F V According to Starke; ; tis a process based upon a treaty or reciprocity of an offender. pon a treaty —— V According to Hugo Grotius; { “It is the duty of a state either to punish'the criminals or to return them to the States where they have committed crime" Reference may be made to thi case of Aimal Khasi He was a Pakistani citizen who killed two personnel of CIA in Virginia ii Pakistan extradited him to USA in 1997,‘ | } According to Starke and ICJ; > Extradition is the right of the state; however international !aw does not i 1pose duty on the state to extradite a person to another state. >. igtradition always depends upon a{pilateral treatyymade betwe :: states. ig with. > Moreigner law does not apply on extradition, it only applics on xpulsion. vein of > For arresting a person, one should have the warrant of that person and after into el arresting, he/she should be handed over to the authorities of that particular the staf: state. [ In the: : Rules for extradition Following are some of the rules for extradition. 1) Principle of double criminality: F it means that the crime for which extradition is claimed should be crime in both the tate on | Countries (the country which is claiming and country which is extraditing). cd of a i [=2)-The Attentat clauses _— ‘In 1854. French foremen, Gstestin Jacquin attempted to murder of King Napoleon 1)~ F III but failed. After that he went.to Belgium and got asylum. His extradition was requested but the courts of Belgium refused his extradition. Attentat clause was | formulated for that purpose by Belgium in 1856. It provides that the murder of ‘Head of foreign government and of his family member should not be considered a Ee ts - political ime itizen ‘0 th m to3) Russian project 1881: Alexander Iw led_in_ 1881. Russia called a conference at Brussels | of a political crime but B: fused to attend th. determine the natur conference. 4) Swiss act 1892: : : Article LO of the Swiss act 1892 provides that political_criminal & extradited, If the courts of a country fails to recognize the crime of a person tht whether it is political or not, then the parliament or assembly of the particular sta’ will decide. 5) The rule af specialty: An accused is extradited for a particular crime and the country which gets back th criminal is entitled to prosecute him only for that crime on which he is extradited. Non- extraditable crimes: Following three crimes are non-extraditable crimes. i. Political crime: Extradition is not allowed for political crime. It was 1® started from Frenc revolution. 4 Case study 01: Re Castioni was a Swiss national and was charged of murdering a member council. U.K refused his extradition on the basis of political crime. 4 Case study 02:d ; Re Meunir was French and was charged of explosions in two cafes. U.K extradited him because his crime was not political. ii, Religidus crime: It is not extradite!ile crime. For instance, the case of Salman Rushdi is a go” sd example. The reason for this is that religious crime is not a crime in U.K and so has lost the principle of double criminality. Military crime: It is also non-extraditable crime. Example is case of sons-in-law of Saddam Hussain. aDIPLOMATIC IMMUNITIES Outline: > Brief history > Basis of immunitics o Theory of extra-territoriality o Functional theory > High commission and embassy > Diplomatic agents _ 5 Categories of diplomatic agents MSI. 4 o Functions of diplomatic, agents « = o Immunities of diplomats 32=3 o Embassies are also inviolable © Waiving off immunity o Family and servants of diplomats > Consuls o Classification of consuls o Functions of consuls o Immunities of consuls | © Termination of diplomatic missionBrief history: Earlier when there was monarchy and empire system in the world, the emperors ove to each other: Most often, the envoys were killed in tl. way to the desire \ destination. At that time it was decided to give safe passage nd respect to the envoys of each other states. In 18" and 19" century, the statés.started to give more importance to diplomats. When Napoleon was, defeated and killed, Congress’ of Vienna was convened in —————— “1815°to shape-up cOrivention; iifimunities: of diplomats were’ also’ discussed: and some guidelines he’ future ‘of thé world politi Napoleonic wars. In this Were produced.’ After that two other conveiitions Were convened in which rules regarding diplomatic immunities were codified. - © Vienna convention on diplomatic relations, 1961 Vienna cohvention on diplomatic relations, 170) = Vienna convention on consular relations, 1963.7 Basis of diplomatic immunities: Before discussing the i immuni ies provided to diplomats i it is necessary to know as ahh what is the basis of these immunities end privileges: 1, Theory of Extra- Territoriality: According to this theory the staff of embassy belongs to sender state and is out of the jurisdiction of réceiving state. In simple. words, the laws of receiving state cannot be applied on them. But this theory is criticized by many jurists. According to Professor Oppenheim, it is not the true basis for immunities. Moreover, the Supreme Court of Australia has also discarded this, theory in 1971. In the afore- mentioned year, two citizens of Australia threw some explosive material on theSoviet Chancery in Canberra. They were instantly arrested and persecuted by the courts, During the trial they argued that since the Soviet Chancery is outside the jurisdiction of Australia so we cannot be punished for this crime. At that moment, the Supreme Court of Australia discarded this theory. 2. Functional Theory: According to this theory, the immunities and privileges provided to the diplomats: are not because of the extra-territoriality but because of the special functions which, they perform. Diplomats are made immune in order to enable them fo perform their functions properly. In fact, it is the true basis for providing immunities to diplomats High Commissioner and Ambassador: igh Commission and High Commissioner. While all the other states except common ‘All the common wealth countries use the concept/terminology of wealth use the words Embassy and Ambassador. There is no difference between the two except the name. Total number of common wealth countries is 54. All those countries whic remained colonies of British Empire in the past (except Ravanda and Mozambique are part of the common wealth countries. Diplomatic agents: ‘ —_—— Diplomatic agents are the representatives of one state, working in the area o another state for the purpose of negotiating other some other specific task According to articleGAbf the Vienna Convention on diplomatic relations, 196 diplomatic agents can be classified as;a. Ambassador or legates: It is the representative of sender state in receiving state and is the top most y the diplomatic agent in the world. It is appointed by héad of the state. -e the b. Minister or Plenipotentiary: ment, . It is a diplomatic agent of second category as compared to ambassador. It is also important position in the embassy+ e. Charged’ affairs Itis third important slot in the embassy'as'a diplématic agent. Functions of diplomatic agents: —_—eo mee ani re ing t f Vi According to the (tise do ‘enna, Convention on diplomatic relations, 1961, following are the functions of a diplomatic mission. _,>, Representing the sending state in the receiving state. > Protecting the interests of sending. state in rece’ ing state and of its nationals, > Negotiating government of receiving state > Communicating events with government of receiving states. > Establishing social linkages by, promoting friendly relations with receiving state. Immunities enjoyed by diplomats: One of the pillar s of modern international law is the diplomatic immunities of the diplomats. Article 22 to 38 of Vienna convention is totally about the immunities oft diplomats. However, mutual consent is essential for establishing diplomatic relatigns and immunities. | i i 4. Personal inviolability of envoys: t Article 29 of the Vienna convention on diplomatic relations, 1961, provides that diplomats axe inviolable persons. They should be liable to any form of arrest orf detention in the receiving country. The receiving state shall treat him with due! respect and dignity. 1fa diplomat is attacked and insulted, it is considered as ant ‘ZHack on and insult of the state whose representative he is. However, diplomatic} agents haye a duty not to interfere in the internal affairs of that state. : —_—— Immunity from criminal jurisdiction: Diplomats also enjoy immunities from criminal jurisdiction of the courts in receiving country. However, itis generally. believed that they will not violate the provision of the law where they are appointed. Case of Raymond Davis is a good, example in this connection. He killed two persons in Lahore and then claimed to be a diplomat. Later on, he paid compensation to the family of victims. Diplomats can lose their immunity in some specific conditions like if they are found guilty of conspiracy against the state. For example in 1712, the ambassador of Sweden was arrested in England on the charge of conspiracyragainst the king of England 3. Immunity from civil Jurisdiction? Diplomats are also immune from civil jurisdiction of the court. If he occupies a land, he cannot be persecuted for it. Ita case is filed against a diplomatic agent, it sg not necessary for him to present himself personally in the court, It is sufficient4 matic 3 that 2st or 1 due} as an matic rts in te the good f---—sompelled 16 COME 15'S .to be! pies af ent, ith ‘Aicient} for him to send a message that he is a diplomat and is ouiside the jurisdiction of the court. For example, in 1946, a French minister for Bolivia was passing through New York where a civil proces was started against him in the court, He just sent message to the court that being a diplomat he is immune from the jurisdiction of the court and court dismissed the appeal filed against him. According to article 40 of the Vienna Convention of" 1961, the same rule will apply on his family accompanying him or travelling alone to join him. 4° Immunity regarding residence: The residence of a diplomatic agent is also immune and inviolable. If a person is handed over to the police. wanted by the police and he does not enjoy any immunity, then he should be 8: Inimlnity from being presentéd a 8 witness: , Diplomats enjoy immunity from being presented as witness. They cannot be Bre evident any aiplomatie agent ‘himsele waives his immunity, then he may’ personally present himself in the court but in that case he will be deemed to be within the jurisdiction of the court. 6. Immunity from taxation: Article 34 and 36 of Vienna convention 1961 provides that diplomatic agent is immune from all types of direct and indirect taxes e.g. income tax, wealth tax and property tax etc. — \"7. Immunity from police rules: tN Diplomats are also immune from police rules of receiving state. However, for the sake of establishing good relations with receiving state, they generally follow such i anon rules, 8 Right to worship: Diplomats have full right to profess their religion in their own way. ‘The receiving 4 = state has nothing to do with it. 9. Right to travel: In the view of article 26 of the Vienna convention on diplomatic relations, 1961,.a diplomat can travel anywhere in, the territory of receiving country except’ prohibited areas. ‘d - a “k 10. Freedom of communication: = , A: Article 27 provides freedom to the diplomats to freely communicate with the 5 capital of their home state in connection with their functions and duties ; 11. Immunity from local and military obligations: bi According to article 35 of Vienna convention of 1961, diplomatic agents are also |. i exempted from local and military obligation. 12: Immunity from inspection of personal baggage: Article 32(2) provides immunity to diplomats from inspection of their personal | baggage. unless there are serious grounds for presuming that it contains some © prohibited materialEmbassies are also inviolable: \ Embassies are also inviolable places as they are considered as outside the jafisdietion OF that state: The fortes ¢,"that' state carinot enter into area of embassy oad for arresting a person or inspection oc! documents there. For instance is the case of e “such Assange. He has taken asyliiin in embassy of Ecuador in London However, in case of cleat’evidence that a particular embassy is inivolved int any illegal activities, then the rules will apply, For example. Pakistani. forces raided on Iraqi embassy in recovered from, there. The ambassador was Islamabad and heavy. explosives. iving declared ecause he was found guilty of anti-Pakistan activities. Citi fiedd of the state “waive off? ‘a diplomat’s immunity? Slla cept, f Yes, head: of. the sending state. can “waive off” the immunities of a particular diplomat. For instance, there was a case in 1997, in which a Georgian diplomat irl ii car accident. President of USA write a letter_to_the, : requested, him for waiving off the mmunity of that the fF i particular diplomat. Resultantly, the diplomat was arrested and tried in the courts pe p OF USA for. his crime: Family and servants of diplomats: ilso Family and seivants of a diplomat who are not nationals and permanent citizens of ‘the receiving state enjoy the same immunities which are enjoyed by a diplomat. “The immunities of Servants are’ usually, based on reciprocity: > Rér instaice, son of a Brazilian diplomat went to a disco club and killed a person over there. He was immediately arrested by the authorities and was put into jail. nal Najeeb Ullah. He got refuge in U.N office, in Kabul. The recent case is of JulianHowever, he was released once it was confirmed that he is a son of a diplomat. Tj diplomat was declared as P.N.G a Can a diplomatic agent lose his immunity? A diplomatic agent can lose his immunity under the following circumstances; 1 | | bit a case is filed against him in the court, he should not go to the court a should send a message that being a diplomat he is immune and is exempts from the law of the state. If he presents himself in the court, he will lose hi ‘o If a diplomat files a suit against somebody in the court it will mean that h /, has waived off his immunity. o [fhe presents himself as a witness in the court, he will lose his immunity. _ Consuls: : Consuls are the representatives of their states but they are not deemed to b diplomats Classification of consul: The consuls are categorized as; WD» . 2 natal Scheme “steer, as 1176783 1. Consul General: Consul General is the first and top rifost categories in a consulate. He/she i generally appointed in the main commercial cities. Consul General heads th consul office.~~ 2. Consuls: It is a second slot in a consulate below consul general. They are generally . appointed in small cities or they ass*st the work of consul general. 3. Vice Consuls: . | Vice consul is a post of thitd category and in some states they are appointed by Consul General. “Goaaii’Agenis! ‘They are of last category and aré appointed ether, by: Consil, General or in some cases even by Consul. "Functions of Consuls: et: q + They protect the commercial interest of their respective states. uit: They look after the shipping etc of their country.. “+ They look after the interest of their citizens and assist them in cases and for =i: getting-passport-ete: - “+ They also perform certaig-other functions for their citizens like registration ~ otbi marriage and deativete. Immunities of consuls: Although the staff of a consulate does not enjoy all those immunities which are ovided to diplomats, some irhmunity is also conferred upon them. ¥ They enjoy immunity from civil jurisdiction. Y They cannot be arrested for small crime like violation of traffic rule etc. Y Consulates are also inviolable.V If the appointing state recalls her envoy, diplomatic mission comes to Y They may be called on to attend as witness. E Termination of a diplomatic mission: end ' Y Under article 43 of the Vienna convention, the appointing state may ¢i the functions of an envoy through a notification. V Termination of diplomatic mission also takes place on the request off receiving state V Ifa diplomatic envoy is handed over his passport, it will mean that he ponslTascaotes become an undesirable person trrthat state and should go back to 4 country, V If a diplomatic agent is declared Persona-Non-Gratia, the diplomal mission comes to an end. j V Diplomatic mission comes to an end when object is achieved. ' VY When the time period of an appointed diplomat come to an et diplomatic mission terminates. j \b |2. Consuls: H It is a second slot in a consulate below consul general. They are generally appointed in small cities or they ass*st the work of consul general. 3.. Vice Consuls: Vice consul is a post of thitd category and in some’ states they are appointed by Consul General. “4: Consul Agents: svecooogridieries denis They are of last category and_aré, appointed either by, Consul General or in some cases even by Consul. : . Functions of Consuls: They protect the commercial interest of their respective states. sath They look after the shipping etc of their country.. % They look after the interest of their citizens and assist them in cases and for getting-passport-ete=eas = They also’ perform certaig.other functions for their citizens like registration “of birth, marriage and deathetc. ” Although the staff of a consulate does not enjoy all those immunities which are provided to diplomats; some irnmunity is also conferred upon them. ¥ They enjoy imitiunity: fom civil jurisdiction. Y They cannot be arrested for small crime like violation of trattic rule etc. Y Consulates are also inviolable.The territory of a state comprises of not only of its land mass but also its natic waters and the air space above the land and water ter \)Maritime territory: Besides internal waters, a coastal state’s sovereignty extends to territorial wa and for some purpose over contiguous zone, continental shelf and exclu: ——— 7 economic zone. ———— )Martime belt or territorial water: " Maritime belt or territorial water is that belt of the sea which is adjacent to coastal state and over which the coastal state exercises complete sover Background of law of sea: Sca is enriched with natural resources and fishes etc. it is also very important f trade perspective. Therefore, states started occupying sea adjacent to their I This issue became the basis of conflicts between states and need of law was fe resolve the issue. First of all, Cannon Shot Rule emerged in which they deci that maritime belt will be decided upon cannon fire. The range of cannon was fi 3 nautical miles at that time. Some documents like Maritime laws and 4» Mercatoria were published. Scientific inventions and discoveries enhanced range of cannon artillery and therefore it became imperative to bring change that rule, Many countries were expanding their maritime belts on basis of t powerful they are. Chile, Peru and Equador claimed their territorial waters uj 00 miles. Grotius argued that, “the sovereignty of the coastal state over marit belt should extend only to that area up to which it can exercise effective contr rst important attempt was made by League of Nations in 1930 to deve ensus on maritime belt but failed, After t.at 3 important conventions uOutline: i > Maritime territory > Maritime belt sto > Background _ >. Convention of 1930 by league of nation > Convention by united nations « UNCLOS-I (1958) * UNCLOS -II (1960) «© UNCLOS = III'(1982) > Innocent passage > Contiguous zone > Hot pursuit >.Continental-shelfsery-i= f .¢ Rights on-continental shelf eos > Equidistant ‘is-4. > Archipelagic states © » } Exclusive economic sone > High Seajeld, by United Nations which played a pivotal role in obtaining consensus of countries and formulation of rules regarding maritime belt ts natiofFirst.UN convention on law of sea, 1958: a Fat the time when countries were occupying and claiming more maritime belt, UN salléd a convention that is-known as UN convention on law of sea, 1958. i Discussion was made about territorial belt and rules related to contiguous zone ‘were ea in this convection. cnt to ty. ARTIS convention, consensus was developed on high sea. > Convention on continental self () ant fr eir | i as felt fs decid@ix. * as fing HOMeVer, this convention “failed to fix the range of maritime boundary although Howev eS some rules about this belt were formulated, like innocent passage.In this convention, America proposed a compromise formula of 6 nautical miles for maritime ‘elt but consensus was not developed and the convention failew’ Later on, all issues were decided in the Thitd UN convention on law of se2-1582 and complete consensus was reached by all states: ‘This convention (UNCLOS — IT) broughs changes and all issues were resolved by it. Some important outcome of UNCLOS II are: \ > Territorial belt was decided up to 2 nautical miles. > Upto 200 nautical miles from the base zone, there will be exclusive }. economic zone. — > Seabed will be considered beyond national jurisdiction and thus a common heritage. : > Archipelagic state concept is also the outcome of 1982 convention war has been taken place between UK and Ioeland on the b UK and ean on te Saptuting of cod fishes. That is why the range of EEZ was fixed up to 200 nautical miles and the maritime belt was decided up to 12NM by UNCLOS ~ Ill. The area will be under complete authority of coastal state. The maritime belt stars from baseline and baseline starts from 35m depth of the sea. aSi Bb 3s" Fig: 01Maritime Boundary Innocent Passage: Article 14 — 23, section 3 of UN convention on law of sea deals with the innocent passage of foreign ships, According to article(14, Ships of all states whether coastal are not shall enjoy the right of innocent passage through territorial sea Blockage of way is prohibited and if there is danger in the sea, then the Coastal Sate should” Give” proper ‘Publicity fo” the danger fo. navigation. Along with merchant ships, warships also.have innocent passage and submarine should travel above surface of water and should have i a Corfu crannet eas) It was a case between UK and Albania, Albania damaged 2 war ships (Orient and ——— Superb) of UK by fixing sea mines. UK went to International Court of Justice and argued that we aré not ina state of war, still they damaged our ships. 1CJ came up with decision in favor of UK. -Centiguous zone: 2 : Anicle 33_of UNC says that, it is riot the part of your national territory and coastal state’s immigration, sanitary and fiscal laws can be implemented here. Moreover, you can punish someone who violates yout immigration and custom law. Fishing is allowed in that water. . Continental shelf: According to natural prolongation theory, the continental shelf of coastal state may be up to 350NM. The exclusive economié zone will remain up to 200NM. This 350NM continental shelf is for specific countries.depending upon their geo-graphic location. If any state exceeds it beyond 350NM, it is entitled to give | % of their profit to cultural organization. Continental shelf Fig: 02 Continental ShelfRights on continental shelf: Y Coastal state has sovereign rights over it for the purpose of exploring it and onal ' resources of it ts continental shelf. be v A country ca take technical assistance of. another country but there should our v The “exploitation of its natural resources must'not result in any un-justifiable nay i interference with, navigation, fishing or the conservation of the living his : “ a we shic, tto “convention, considered as internal water 6fthe coastal state...Fig: 03 Archipelagie States Exclusive economic zone: oo | — Third ‘UN Convention on law of Sea, 1982 came-up with following provisions | | t I i regarding EEZ Article 57 of UNCLOS - Ill says that exclusive economic zone shall not Vv extend beyond 200NM from the baseline > Article $5 says that EEZ is an area beyond and adjacent to the territorial sea. Article 56 says, in the EEZ coastal state has the following rights.2 © Sovereign rights for the purpose of exploring and_exploiting, ; exploring 2 ng or non-living) of conservation and managing natural resources ( the water super jacinth to the sea belt and subside. o The coastal state can establish and use artificial islands, installation and strictures. eee O° The'coastal state can conduct maririé scientific research. © Protection and preservation of the marine environment. <> Article 58 says that in the BEZ all states whether coastal or landlocked enjoy freedom of over flight and navigation and lying of sub-marine cables:and pipelines. All coastal states are entitled to provide free movement in water to land locked sete : High sea: # ee . High sea is no man’s property and is declared as common heritage. I is beyond the yy Yo" i state’s jurisdiction. Disputes on mining in high sea will be settled by International 40 ¢ Sea Bed ‘author. of Sed Tribu (Hamburg, Germany) and) internat isputes in bigh ‘sea other than sea bed will be settled by Law 4 Equidistant: It is a rule, applied in case of opposite or adjacent coasts of two states, in this case ons F area between baselines of two states are equally divided. Permission of coastal state is necessary for conduction of research in continental shelf. ——— not petHot pursuit: If a foreign ship violates the laws of a state in its maritime belt, the particular can unwise her right of hot pursuit (following of ship). As the ship escapes from — gt contiguous zone and enters into high sea, the right of Frot pursuit ends there. Hot pursuit must be continuous and the moment you stop, YoU lose the right of hot purs Sursuit. When the ships enter into territorial water of another state, the right also F ——— ends there. CSS OFFICERS ACADEMY Howse Ne 258 Seret #13 Near Bilal Shaheed chowk Cbaklala Scheme-tTt ‘Rawal Pe: 6500 3819288, 0300 SSB041, 6391 1178783 ows Se U nan YATES EATRECOGNITION OF STATE Outline:, > State. o Requirements of state - > What is Recognition? ~. > Theories of recognition o Constitutive theory o Declaratory theory > Modes of recognition o De facto recognition o De jure recognition > External and internal matters of state > Recognition of insurgency ==35 "Recognition of belligerency : > Recognition of goverfment.and state. os §- Estrada doctrine o Tobar doctrine © Stimson doctrineRECOGNITION OF STATE Outline:, > State. o Requirements of state - > What is Recognition? ~. > Theories of recognition o Constitutive theory o Declaratory theory > Modes of recognition o De facto recognition o De jure recognition > External and internal matters of state > Recognition of insurgency ==35 "Recognition of belligerency 2 > Recognition of goverment .and states oss §- Estrada doctrine o Tobar doctrine © Stimson doctrineBefore going towards defining what actually recognition is, let's first discuss that what a state is. State: State can be generally defined as; “A group of people that is politically organized having a specific territory is called as a state”. According to professor Kelsen, there are 4 conditions for statehood. These are; © People, o Territory, © Government, and © Sovereignty 2) What is recognition? Recognition is a process through which a political community acquires international personality by becoming a member of family of nations. According to ofessor Oppenheim, in recognizing a state as a member of international community, the existing states declare that in their opinion the new state fulfils the} conditions of statehood as required by law. Fenwick also subscribes to this view that through recognition the members of the international community formally acknowledge that the new state has acquired) international personality. According to Kelsen, a community to be recognized as an international person must fulfill the following conditions.+ The community must be politically organized. © ltshould have control over definite territory. hi « This definite contrgl should tend towards permanence. that cree 7 \ * Thi sommunity thus constituted must be independent, In, short we may say that through, recognition, the recognizing state ackrowledges that the recognized state possesses the essential conditions of statchood. International law doesnot providé as'to how these essential conditions are to be alled } ° détermined’ and’ leaves the intemational community’ free to “determine by themselves’ whether the recognized’ state’“contain the essential conditions of statehood. It is because of this reason that very often recognition is said to be a political diplomatic function. ion) Thefe’are two main theories of recognition; Theories of recog) quires ng to : : ° exponents of this theory. In the words of Oppenheim, “A state is, and becomes fra | inerntionel_peron trough onir ond. ecutive”. Helland also suppots 's the | constitutive theory, In this view, recognition confers maturity upon the state, and until and unless a state is recognized; it cannot acquire rights under international of the law. uired According to Judge Lauterpacht, there is a legal duty on the part of the state to recognize any community that has in fact acquired the characteristics of statehoodicism: 4 This theory has been vehemently criticized by jurists. The view of Lauterpacly 4, about the legal duty on the part of existing states does not seem to be correct, In | practice. states do not accept any such obligation. According to this theory, if a state is not recognized it can have neither duty nor rights under international law, suggestion. Example of China can be cited in this connection. This is very abs China was not recognized by USA and other western countries for many years although China possessed all the attributes of a state. Now if is said that China ave no rights and duty under international law would be an absurd proposition. 2) Declaratory Theory: According 10 this theory, statchood or the authority of new government exists independent of recognition. Recognition is merely acknowledgment through which | an established Fact is accepted, Chief exponents of this theory are Hall, Wagner, Brierly and Fisher etc According » to Professor Hall, a state enters into the family of nations as of right when it has acquired the essential attributes of statehood. Brierly has also remarked, “The A state may exist without being recognized. [f it exists in fact, then whether or not it has formally recognized by other states, it has a right to be treated by them asa state Oe 5 Criticism: as also been subject to criticism. The view that recognition is only a This theo declaratory of an existing fact is not completely correct. mE:ache In ifa aw. ion. 2ars rina cists, hich ding has “The ae not asa ya Conclusion: On the basis of above discussion, it may be concluded that recognit is declare ‘ory as well as constitutive act. “Probably the truth lies somev ! cre tween these t :-o theories”. eee Professor Oppenheim who has been classed among the exponents of const theory, has admitted, that recognition is constitutive as well as declaratory. In his words, “Recognition is ve in nature’ Modes of recognition: ey Recognition may be of two kinds: o De facto recognition. o De jure recognition I. De facto recognitio: The practice of states shows tat in first stage the states generally give de facto secognition-Later on; when they-are-satisfied thatthe recognized state is capable of fulfilling-its. intemational obligations, they confer de jure recognition upon it According to Professor G. Schwazenberger, when a state wants to delay de jure recognition of any state. it may, in the first stage grant de facto recognition. It is sometimes said, de facto recognitions of state isa step towards de juve recognition De facto recognition means that the state recognized possesses the essential elements of statehood and is fit to be a subject of international Jaw. In the view of judge Lauterpacht, de facto recognition shows that the recognizing state wants to establish its relation with recognized state without establishing diplomatic relations. As remarked by Professor Oppenheim, “De facto recognition is, in\opancton between de facto and de jure recognitions: conve, prowisional and liable to be withdrawn if the ahsent requirement of cognition fails ta be materialized” [1 De jure recognition: Pewavert De jt requirements of statehood and is capable of being 2 member of international re seeognition is granted when the recognized state possesses all the essential community. British practice shows that three conditions are required for granting de jure recognition YA toasonable assurance of stability and permanence iment should command the-general support of the population; and Y The govel v It should be able and willing fulfill to its international obligations. sion an intention to establish diplomatic relations are necessary T main difference between these two is that the de facto recognition Is provisional and de jure is final, Granting recognition to 2 state creates some legal _Provisional and ge puree , \ effects. These legal effects of recognition are; a. Diplomatic relations: Diplomatie relations can be established with the countries to which de jure cognition has been granted. 7 b. Right of suing in the courts: ble in case of de jure recognition: : Phis right is also av+ of ial ral ng ad ¢. Diplomatic immunities: Diplomatic immunities are granted only after de jure recognition. It is not provided in de facto recogr tion. d. Possessior and succession of property: Itis also possible in case of de jure recognition External and internal matters of a state in case of de facto recognition: (6) In case of internal matters state be totally free even in de facto recognition. While: in eXternal matters the state will have no such credibility and will have no any power. For instance, the/casd of Arantzazu Mendi can be cited in this ching to connection. It was a Spanish ship, travelling in high sea. Before London the Basques took charge of Spain as a result of civil war Leader of Basques, Gen. Franco became the ruler. When ship reached the water of U.K, the session of ship and argued that U.K has granted us de republicans claimed the pos jure recognit wn so the ship should be handed over to us. Conversely, Gen. Franco stated that Government is changed here which is our internal matter so ship should be handed over to us. Later, the decision came in favor of Gen. Franco. Recognition of insurgency “Insurgency is used to denote the condition of political revolt in a country where the rebels have not attained the character of belligerents”, It is an armed struggle by a specific group against an established order.Features of insurgency” = [tis a kind of guerilla warfare. * Insurgents have no specific uniform. * They have no identified leader Insurgency is the internal matter of a state so it cannot be recognized Recognition of belligerencys \) \ When insurgency is well organized, hostilities are conducted according to the law ; of war and have a definite territory under their control, it is called as belligerency. It may be recognized by other states whether or not the parent state has already recognized that status of belligerents. Recognition of belligerency is the questior of policy and not law. Some states recognize belligerency while others not. Pre-requisites of belligerency: . They must have some occupied territory lis “The armed conflict is to be of general character. ‘ + They should be identified as combatants. / “+ They should have leadership. : . a i “+ And they must be following a chain of commands. 1 Insurgency later on converts to belligerency that is an international armed conflict. Example is NTC (National Transition Council) in Libya. In this case state can get assistant of another case. Sri Lankan rebels were not given the status of belligerents as they were not following the rules of international armed conflict.ial al ng ad w a are ¢. Diplomatic immunities: Pr Diplomatic immunities are granted only after de jure recognition. It is not provided in de facto recogr tion. d. Possessior and succession of property: It is also possible in case of de jure recognition. External and internal matters of a state in case of de facto recognition: (6) In case of internal matters state will be totally free even in de tact recognition. While: in external matters the state will have no such credibility and will have no any power. For instance, the/éas8 of Arantzazu Mendi can be cited in this reaching to connection. It was a Spanish ship, travelling in high sea. Bett London the Basques took charge of Spain as a result of civil war. Leader of Basques, Gen. Franco became the ruler. When ship reached the water of U.K, the republicans claimed the possession of ship and argued thet U.K hes granted us de S Conversely, Gen. Franco jure recognition so the ship shoul Id be handed over to stated that Government is changed here which is our internal matter so ship should be handed over to us. Later, the decision came in favor of Gen. Franco. Recognition of insurgency: I) . “Insurgency is used to denote the condition of political revolt in @ country where the rebels have not attained the character of belligerents”. It is an armed struggle by a specific group against an established orderRecognition of government and recognition of stat & Recognition of state means that it has been included as a member of community. There is a difference between recognition of state and recogniti +1 of government. P recognition the international community determines the the recognized state: possesses the essential qualities of a state and is able and willing to fullill its international obligations. But so far as the recognition of government is concerned, it depends on facts and circumstances. Ordinarily it is seen that the | recognition of government is given simultaneously with the cognition of the | state. For instance most of the states recognized Bangladesh as well as its government. However states do not accept any obligation of recognizing states or | aw} Sovernment. Most of the countries accepted China as a state but they did not cy, | ecoBnize the communist government of China for many years. Usually states do . not recognize the government that has come to power through extra constitutional ion | Change or coup d°état. | There are three main doctrine regarding recogni rament . Estrada doctrine: ~~ . | ‘This doctrine was propoiiidiat By’ Me: Bstrade, foreign minister of Mexico. This | doctrine is about the establishment of diplomatic relations with other states "| According to him coup d'état is the internal matter of a state and has nothing with | international community. If a revolutionary government cormmands the support of | the people, it may establish diplomatic relations with it | : ct. yet | | 100 | COO - 38i — ii, ‘Tobar doctrine: hig theory was propounded by Tobar, a jurist of Ecuador. He argued that international community should not recognize the change which has come through iii, Stimson doctrin ‘ ine was propounded by Stimson, Secretary of State of United States of This doctri led doctrine of non-recognition. According to this America. This theory is often cal theory, if_a state grants recog nition to another state in violation of international nition would not be valid-An example is the Pact of Paris, 1928. fuse to accept any such obligation and treat recognition as However states re’ ‘This theory alsasays that extra-constitutional change political diplomatic function. ) , (Y should not be recognized and revolution shoutd be recognized by state. L) slrould not be recognized and ievelution So OS Ce here are two main practices of recognition of government, [1 )U.S practice: in case of un-constitutional change in a country, USA usually recalls its diplomat from that particular country, granting de facto recognition to that government (U.K Practice: ‘After 1980 U.K is also following the similar practice. Ne Express, implied and collective recognition:hat igh} sof his! mall "28. is al ngd f-is-also-an example of implied recoptiti 1. Express recognition: In this type of recognition a state formally recognizes another st Recognition is usually done by a congratulation message, official visit of that state or by the 4. formal recognition of that “tate ion: : 2. Colleetive recogniti By collective recognition we meaii that recognition is granted by number of states collectively. For example, when a state is admitted to the United Nations, it will mean collective recognition by those states which voted in favor of the admission of such state. 3. Implied recognitio Implied recognition is granted when the recognized state and recognizing state enter into a bilateral treaty and formally sign it. Participation of the cuncerned stare in a multi-lateral treaty or in intemmational conference also indicates implied apulti-lateral_treaty_ recognition. The start of negotiation between the recognizing ani re ognized state | Is withdrawn of recogni possible) Recognition de jure is final and once given cannot be withdrawn. But so far as de facto recognition is concerned it is provisional and can be withdrew if the recognized state fails to fulfill the conditions, imposed along de facto recognition. Is there a duty to recognize? \v) is duty of the existing states. In. In view of Judge Lauterpach have not consented to any such obligation. Existing states are oni &poe i 1 . i {ev not obligated to perform the acts of recognition, Refusal to recognize the { — } 1 new state is no violation of general international law 1 : Vo settLAW OF TREATIES: Outline: v Introduction. ,~ Meaning and Definition of international treaties. Y Basis of binding force of treaties. ¥ Parties competent to,make a tredaty. Y Requirement of free consent. V Essentials of treaty. . Y Formation of treaties. Y Classification of treaties. ¥, Multilateral treaty procedure: « Y Ratification of treaty: Y Reasons for ratification of treaty. =< Taterpretation of treaty. v Terminatior-eftreaties. Legal maxims.(&) Meaning and definition of internatio Vinternational treat \Q9) Introduetion: rst and foremost source odem period international treaties have been the f In the of international law. Whenever an international court has to decide an international dispute, its first endeavor is to find out whether there is an international treaty the matter under dispute. In case of yes, the decision of the court is | governin: sed on the provisions of the treaty. Thternational treaties occupy the same the field of international law as the legislation occupies in significant pos the municipal law. al treaties: is an agreement between two or more states whereby they establish or seek to establish their relationship go-verned by international lew. According to Prof. Schwarzen Berger; Treaties are agreements between subjects of international law creating legal rights and treaties eat controversy amongst the jurists in regard to the bindinLAW OF TREATIES: Outline: Y Introduction. ~~ ~~» 5. Ace ssion and adhesion: a ¥ P ~ he practice of the states shows that, »se states which have not signed the treaties » accept it later on, this 1s called accession. Even after the prescribed may numbers of state parties have signed, the other states may also accept or adhere to r that treaty. This is called adhesion. ‘ 4. Entry into force: oreo iflereoroneretc eee rome Entry into force depends upon the provisions of the treaties. Some treaties enter | into force immediately after signature. But the treaty in which ratification ish necessary enters into force only after it has been ratified by the prescribed number! wo oy { treaty are bound by the treaty. This is often expressed by the maxim “Pacta treaties z xpressed by the maxim “Pacta treatie of state parties. It is fundamental principle of international law that only parties to a! 77. Registration and publication: Att nters into force, its registration and publication are also ordinarily} considered essential. According to article # 102 of the United Nations charter the! registration and publication of every treaty is essential. It is made clear in this} article that if an international treaty or agreement is not registered, it cannot be} invoked before any organ of the United Nations. The object of this article was to prevent the practice of secrete agreements between states. (9) Classification of treaties: MeNair has classified the treaties under the following categories: 1. Treaties having the character of conveyances } 2. Treaty contracts oOcs by va ck its Effects of the Outbreak of war: The effects of outbreak of war can be broadly categorized as; > General effec rent states Besides. affecting the neutral. states;.war: mainly affects the bellig ‘According to Professor Oppenheim, it is wrong to say that due to the outbreak of war all: the relations of the belligerent states and that of their citizens come to an end, International law prescribes’ céftain’ limitations and prohibitions and the jelaticins of the belligerent states duting war are governed by the laws of wat. > Diplomatic and consular relations: [At the outbreak of war, diplomatic and consular relations between the belligerent states. are, broken immediately.. Consequently, the belligerent states recall their diplomatic; agents from, each other states. Often at the outbreak of war, the receiving belligerent states. hand over the passports to diplomatic agents of enemy country which means that they should immediately retum to their states. Article 44 ofthe“ Visit oft diplomatic relations, 1961, pfdvides that it is the duty of the receiving state to provide necessary facilities to such agents so that they may return safely to their home state. >.Treaties: According to the old view, all treaties are terminated between the belligerent states after the outbreak of war. In the present times, many significant changes have come in tis respect. The present practice of states shows that all the treaties between the belligerent states do not come to an end. Some treaties are completely wspended during terminated, some remain in force, while, some others are simply war times. For example,pou 307 Ith, -ely and the to the become completely void whereas executed contracis remain un-alle outbreak of war > Enemy Property: Enemy property may be of two types. Y Public enemy property: At the outbreak of war all movable public enemy property situated in the enemy éountry may be seized. Immovable public enemy property may be temporarily taken but cannot be permanently seized. V Private enemy property: Private enemy property can be temporarily taken only when it is military purposes of the belligerent states. lis plunder or seizure is contrary to international law, “LEGAL MAXIMS” Riises‘of War or stratagem? By ruses of war we mean“that. for, the attainment of its military objectives a belligerent state can misguide or mislead the enemy. According to modern concept te of war, war is not only the test of physical strength but also of intelligence. Ruses of war are permitted under article 24 of the Hague convention Deceit: The position is different in regard to the deceit whic! is differer 1 stratugem or ruses of war. According to Hague convention, una ithorize 1g OF e of the armed forces has been prohibited. Similarly, flag of peace ur einbiem of Red Cross cannot be used to deceive the enemy. This is contrary g intEspionage: The position of espionage under international law is very peculiar. On one hand, international law recognizes espionage during land warfare; on the other hand, it shment can be awarded to those who are caught or also recognizes that the pur apprehended while spying. According to laws of land warfare as recognized in America. no discrimination should be made between men and women in regard to hhe punishment awarded to spies. .| SETTLEMENT OF INTERNATIONAL DISPUTES! Outline: ad, > Settlen‘ent of disputes it > Pacitic means of settlement of disputes o Arbitration - o Judicial settlement o Negotiation o Good offices o Mediation o Conciliation o Enquiry © Settlement of disputes under the auspices of UNO > Compulsive or coercive means of settlement of disputes eiorsion o Reprisals o Embargo © Pacific blockade o Intervention 4- Witpate: Ver Been issue eat Shate ov Wee WM abe Lat Oye Bere both i { : eet, Lindkeh Vegucces ord | Mad aoe, bexe om She Bocu's ai Llp Set T methads of the settlement of international disputes may be divided into wef 1 | a) Pacific means of settlement/ Reacd woe, >) Compulsive or forcible means of settlement, Co -2X ve Moms 8 Peace ees fatlewing are the pacific means of settlement of international disputes: « : i. Arbitration; Cask dacisien Bem NOtaex d+ Se By arbitration we mean the method through which a dispute is referred to certain} persons called arbitrators. Their decision, if town as “award”, These arbitrators} are selected by the parties to dispute. Although they are selected on the basis of the} | \ t | consent of the parties to a dispute, their decision or award is binding upon the] parties. Article 15 of the Hague convention of 1899 provides: “International arbitrational court has 1» judges of their own choice and on the basis of a respect for law I | {for its object the settlement of circa between states b: | | The history of settlement of international disputes through arbitration may bel from very ancient times. But in modern times its history dates back reaty of 1794” between England and America, The next important event iraced bac! from “Jay in development of settlement of international disputes through arbitration wad “Alabama claims Arbitration, 1872”. In this case, America has claimec compensation on the ground that it had violated the laws of neutrality. As field of international law decisions Pek: arked by Judge Hudson; “The success of Alabama claims arbitration stimulated a remarkable activity in the (oT r-rlLULD, LUC2 twol hb eee rtain| ators| f the} 1 the! veo aw". y be back] vent] was| med) As ithe a The next important event was the adoption of Hague convention of 1899, wherein ut international law relating to arbitration was codified. Yet another impo alt of the Hague conference of 1899 was the establishment of Permanent Court of Arbitration. This work wat completed by Hague cunference of 1907 The name (Permanent Court of Arbitration” fs very misleading. In luct, it is neither a court nor permanent. As pointed out by Fawcett, “the court is permanent only in the sense that it has 2 registry, the international bureau, which has its seat at The Hague, which keeps the archives. and acts as an intermediary between states desiring to use the court". Instead of being a court, it comprises of # panel of names fom which arbitrators for temporary arbitral tribunals are chosen. Others examples are; Y Mascat dhows case, 1905 . Y North Atlantic coast fisheries case, 1910 Y Kutch arbitration of 1968 Advantages of arbitration: More appropriate for technical disputes. + Less expensive + ° Can be conducted without publicity. + General principle governing the practice and powers of arbitval tribunals are fairly well recognized. + Arbitral procedure is flexible enough. = Judges of choice.‘ om bop, 4 CEE F-F 5 2 Oe 2) Oke 3 jones ¢ Jfecy ao Is Tekges as , ; berms 9 gene So far as the judicial settlement of international disputes is concerned, at present there is only such court called as the| International Court of Justice|which is the| of International Justice, established under the udicial settlemen’ succes: f Permanent_Cour' League of Nation: 5, At present [CI occupies important place so far as the settlement of international disputes through judicial process is concerned. Deer lawn as Indypmect | Distinction between arbitration and judicial settlement: 1. {CJ is a permanent court govertied by its statute. On the other hand, the permanent court of arbitration is neither a court, nor permanent. IC] has a permanent registry. Arbitration courts have no permanent courts, Proceedings of ICI ate public and its judgments are published. The judgments of arbitration courts are more properly called awards and may or may not be published. 4. IC} is open to all states but its jurisdiction depends upon the consent of states. In case of arbitration, the consent is necessary even for establishment of court. Disputes submitied to ICI] are decided in accordance with international law, Arbitration courts settle disputes on the basis of respect for law Strict application is neither required nor consistent and focus is laid or the resolution dispute. i. / 6. The judges of ICI are elected in such a way as to represent all civilizations. No equal representation in arbitration courts. 7. ICJ has contributed to the development of international law. Awards o arbitrations are not often regarded as legal decisions.the f, the nent the aent The nay F for onal aw. lon all UN charter 8. Judicial settlement is given a prominence under 1 Arbitration is,"although, recognized by UN charter as one of the pacitic methods of settlement of disputes but it has not been that promi 9. ‘The statute 0 {CJ is an integral pant of charter. Arbitravon simply finds mention in th . charter ; Negotiation: xi) Negotiations are also the means for the settlement of international disputes. It i much less a formal methods than judicial settlement. Sometimes disputes are uch less a formal methods than_judicial settlement settled through negotiations only. But if negotiations fail to resolve the dispute, then other methods, such as, good offices, mediation, ete may be used along with negotiations When two states are not able to resolve their disputes, a third sti may fife is good offices for the same. These offices may also be offered by internationa organization or. some-individuals.-The-third=states individual or international organization creates such an environment as may be conducive for the settlement of disputes. Some general suggestions may be put forward but the third does UR in the negotiations. [For example, not take active part SC Sffeied/its good offices in the’ disputes between Indonesia and Netherlands in 1947. The recent example of offering good offices is that of France to America and North Vietnam to settle their mutual dispute so as to end Vietnam War Mediationgy ) Mediation is yet another method through which efforts are made to settle international disputes. In case of mediation, the third state or individu! meQuavetvar ee offers its good offices but also actively participates in the talks to resolve the ample: Tashkent agreement between India iid Pakistan. \4 (F 1k, Wey. 7 ' dispute. E (viConciliation: Card AX Cty, Lenten es en beet Conciliation is the method through which the other states or the impartial person try to resolve the dispute through different means. Often the matter is referred to a commission or committee who submits its report and recommends certain measures for the settlement of disputes. In the words of Judge Hudson; “conciliation is a process of formal proposals of settlement after an investigation of the facts and an formidared = SX ye ere guc conventions of 1899 and 1907, made the provisions for a conciliation effort to re-conciliate to accept or reject proposals are effort to recone 2 ereewer—— The He commission. In the present time also conciliation is adopted as a method of settlement of an international dispute. A recent example of this is the 1965 convention of the settlement of investment of disputes between states and nationals of other states. (7% )Enquiry: che wpe append It is also a method which is often resorted to for the settlement of disputes. It may be noted that is not_an independent method and is often used along with other methods, The main objective of the enquiry is to make investigation of the relevan matters Cass Setticment of international disputes under auspices of UNO: Following are some of the provisions for the settlement of international dispute: under the UN ch, ter;Leanne sore et 1. It is one of the purposes of UNO that the state membe! their disputes through peaceful means. The General Assembly of the United Nations recommendations for the f ‘ iceful settlement of international disputes: Fron diticle 33 to 38of onapter six, bf the charter meke the provisions In accordance with these wp : for the peaceful: settlement of disputes. hood of danger to internation: provisions if there is a.likeli peace and security, then the, states should resolve their disputes through any peaceful method. In this connection, the Security Council may also make recommendations in regard to the settlement of disputes through peaceful means. sive or coercive means of settlement: Jex Ce Compul: FFintemational disputes aie not resolved through peaceful means then the states resort to compulsive or coercive means, which are as follows; When a state behaves in a discourteous manner with another state, the internationa! law confers right upon the state affected to resort to Retorsion. The word Retorsion > But the affected state can take only those means or measures means “retaliation” means _retatanen as Retorsion which is permitted under international law. For example, in Retorsion, diplomatic relation may be ended,’ privileges of diplomatic agents may be dS may ther vant, n aotbe ee atesape ten Casey Lek ot cad Won Yet another compulsive means of settlement of international dispute is reprisal According to Starke, reprisal connotes cozrcive measures adopted by one state against another for the purpose of setting some disputes. W&e x Race, Joes Bays, Gat TL ci Youk pbowene ‘A leading case on reprisal is the Naulia incident. In this case, the tribunal laid down the following principles: 1) Reprisals are illegal unless they are bases upon a previous act contrary to \ international law, ‘There must be a certain proportion between the offence and the reprisals as a essary condition for the legitimacy of the latter. 3) Reprisals are only legitimate when they have been preceded by an unsuccessful demand of redress. In fact, the employment of force is only justified by necessity 4) Recent example may be the Israeli bombarding on certain areas of Lebanon from where the Arab freedom fighter operated attacks from time to time in different parts of the territory of Israel Difference between Retorsion and reprisal: In Retorsion, only that action can be taken which is permitted under international In reprisal, those action can also be taken which might otherwise be illegal but la are allowed as reprisal in certain special circumstances. (y) Embargo; Restart Rows. Le chede Embargo is yet another compulsive method for settlement of international dispute. It is a type of reprisal. By embargo we mean that if a state violates international es pean Solaw or commits some international crime than the affected state becomes ent to create obstruction in the transport of its ships which are within the territory of affected state. Paci blockaded) pose eee Ae peernntts & Sd - & Sek Pacific blockage is alsg gycompulsiggymeans of settlement of international dispute. yadat | Ondo Through pacific the ingress and egress of the ports of the states are blockaded so that the ships of other states may not reach those ports and the shop blockaded state may not go out of the ports However there is 2 distinction between blockade and pa ic blockade. Blot what which is often resorted to during war. Pacific blockade is a blockade which is ording to modern used in peace time. It is resorted to as a reprisal. However snternational law, this mean cannot be used if it is likely to endanger international peace and security. United Nations may itself use blockade as « mesn (0 take collective measures under article 42. A recent example of peaceful blockade is that of the blockade of Cuba by America in 1962. Intervention use Nese! A separate chapter is devoted to the rules of international law relating to intervention settlement of international disputes through intervention which is prohibited in principle but is permitted under certain exceptional circumstances.i i i | | Jefattont USE OF FORCE/INTERVENTION Yutline! “> What is intervention + Background of intervention + UNSC setup ++ Ground for intervention Protection of civilians and peace keepers » Self defense © Humanitarian intervention es Nu ALN » Collective self defense Joker, QE. ok Pacbot Soke ba LA Canad ———wie AQ LX a more See ARS What is Intervention? —— Oppenheim has defined intervention in the following words. “Intervention is a dictatorial interference by » state in the affairs of another state \ for the purpose of maintaining or altering the sctual condition of things purpose of maintaining or. altering the scrual condition of things In principle. intéinational law prottys intervention but as pointed out by Hans nfemational, law prohibits "intervention y Kelsen; interiational law does riot prohibit intervention in all circumstances. Principle of non-intervention propounded under the charter under article{ 2(7) applicable to the United Nations and not to the states. In fact, the principle of At says all members intervention by states has been propounded under artic| shall refrain in their international relations from the threat or use of force, against the territorial integrity or political independence of any state. This principle has been re-affirmed by the general assembly through its resolution 1231(xx) of December, 1965. No state has @-right to intervene directly or indirectly for any reason whatever, in _.the.internal-.or-éxternal-affairs-ofeanothersta'e® Intervéntiom® was also the main subject. of. Panama Charter. held in March, 1973. Governments of states have accepted this principle but so far as Teal practice is concerned, this principle is not followed by the states. In 1970, General Assembly’ unanimously adopted a resolution entitled “Declaration on principles of international law concernint ‘friendly relations and co-operation among states in accordance with the charter of UN" Brief History: First of all, the principle of non-intervention was emerged in League of Nations. similar to Article 15 of the covenant of League of Nations was to @ great ©ne Se ASe ae oh ee Ti agg oe Lk Nev ds Sewertion we “aak coli f the United Nations “charter. After that Kellogg-Briand pact was signed in which the signatory countries decided that, rence forth they will settle their disputes by peaceful means. Unfortunately Second World War started in 1939 and these both frameworks were discarded. Later on, another international organization (United Nations) was established in 1945. Article 2(3) and 2(4) of UN charter provides that; Use of force is allowed provided that it is used in a manner consistent with human rights and THL store order States may send its forces to other states to hel United Nations Security Council set-up: Chapter 6 of UNSC provides economic sanctions against a state violating hapter 7 of UNSC talks about “all possible means” hinting that international law you can go for milttary measure as well. Article# 42 of the UN charter authorizes the states to use force when it considers that other measures would be inadequate or have proved to be inadequate. This article has been applied many times. Iraq 1 Kuwait war case can be cited here. Iraq invaded Kuwait in 1990. A resolution was passed in UNSC (resolution#678) which gave a deadline to Iraq to withdraw its forces but fraq refused. Later on, UNSC deployed army of “coalition of the willing” in Iraq lo restore peace. Case Study: Invasion of Iraq in 2003 In this case Bush used doctrine of pre-emptive strike. (It means a surprise attack’ nched against a state in order to prevent it from doing it to you). —he Neeie_ 4 SF . = 2 ARQ What is Intervention? — Oppenheim has defined intervention in the following words. * “Intervention is a dictatorial interference by + state in the affairs of another state \ Jor the purpose of maintaining or altering the actual. condition of things purpose of maintaining or. altering the sciual condition of thins: ? . \ ° . “i In principle, inteinational law proteys intervention but as pointed out by Hans atérnational, faw ‘prohibits waterventer Kelsen; international law does Hot prohibit ‘intervention in all circumstances. Principle of non-intervention propounded under the charter under article 2(7) applicable to the United Nations and not to the states. In fact. the principle of intervention by states has been propounded under artic| (4) says all members shall refrain in their international relations from the threat or use of force, against the territorial integrity or political independence of any state. This principle has been re-affinmed by the general assembly through its resolution 1231(xx) of December, 1965. No state has a-right to intervene directly or indirectly for any reason whatever, in _.. the. internal-on-externab-affairs-of-another=sta.e> merventior Was also the main subject. of Panama Charter held in March, 1973. Governments of states have accepted this principle but so far as teal practice is concerned, this principle is not followed by the states. In 1970, General: Assembly unanimously adopted a resolution entitled “Declaration on principles of international law concerning friendly relations and co-operation among states in accordance with the charter of U.N”. Brief History: First of all, the principle of non-intervention was emerged in League of Nations milar to ‘Article 15 of the covenant of League of Nations was to @ great extfece Gan re BAR pee wav dey UNSC also passed a resolution 940 in 1994 to restore democracy in Haiti. Aristide became the 1* democratic president of Haiti in 1996 after that successful venture. ‘ b Grounds used for intervention: Grounds used for intervention: le | The foliowing grounds are used for interver. ion. sof a | © Protection of civilians and peace keepers: This gfound is used for intervention to*protect the civilians, their property and the peace keepers in a state which is in condition of war. Example is the case of conflict between Hutus and Tutus in 1994. At that time UN Secretary General Dek nt} Hemarjkold gave an idea of UN peace kéepinig force. “Blue Beret Force” was deployed there. This force is’ usually:deployéd’'in a post conflict situation 10 eployed: th maintain peace and is not provided with heavy weapons. faetistewe rehde = SL 18} Self defense has been a valid ground of intervention for a long time. On the ground at | of self defense a state 2 may intervene in the affairs of another state. United. ¢s F "Nations charter enshrines the principle of self defense in article 51. It provides that; ute aq | “Nothing in the present charter shall impair the inherent right of individuals or ‘ i Bal collective self defense if an armed attack occurs against a UN member, until ww | UNSC has taken necessary steps to restore peace”. es of America he | In this connection Mr. Webster, the setretary of United S “propounded a very important principle in the famous case, the coralline. ‘This down in the principle was affirmed by Nuremberg tribunal in 1946. The test Jai coralline was finally affirmed b the ICJ in Corfu channel case. Artic ck’ to following conditions:(388) ¢Humanitarin intervention: Chevtex VAY a UN i | [ 9 ‘There should be an armed attack » The ‘abt exists until security coundil has taken necessary action »nuld be reported to the security council t shall not affect the responsibility of the Security Council for the tenance of peace and security ahi is not available against a non-member of the United Nations. So intervention on the basis of self preservation is not justified because self defense in permitted only when an armed attack occurs. Self defense is done when it becomes necessary i.e. in response to an armed attack on territory, ships, aiverafis, embassies, consulates or nationals. {n response a reasonable and itéd to immediate proportionate action should be taken. Also it should be purpose. Intervention is also permitted on humanitarian grounds. When human rights aref openly violated in a state and the people are ruthlessly persecuted, UNSC} authorizes the states to intervene in the affairs of that particular state. Intervention, is done in order to check such persecution and violations of human rights. ss of it: Vewen Cxtses Sees Paramete There must be compelling and urgent situation of extreme humanitarian. The state directly involved must either net be willing or able to deal with it. There is no alternative. on must be limited in scope and time to what is necessary to relievthe self hen sips, and liate ation Example: England, France and Russia jointly intervened in the contlist off Gresee and turkey in 1827 to check violation of human rights. poh sts Bsa yah SS Rate Bake ne py aE Under the UN charter collective intervention can be made to check an aggression mn the breach: of international peace and security. Aicle 5 of the NATO charter, which is also known as one-for-ali and all for-one’ provides for collective self defense: According to this article; Auist{imee See te “Armed attack against one member is an attack against all and sets in motion the possibility of collective- ,-self-defense””. . Warsaw pact was also concluded for mutual defense between Soviet Union and Eastern Europe. This was @ treaty for fiiendship, cooperation and mutual assistance, more commonly for defense purpose. Also accordifig to a UN res y particular territory has been illegally occupied, the use of force will be justified, Example is the case of Malvina Islands between Argentina and Britain._ STATE JURISDICTION: Outline: Y Territorial sovereignty v Exercise of jurisdiction and basis of jurisdiction V Subjective and objective territorial principle v Some exceptions of the éxercise of jurisdiction © Diplomatic agents © Foreign embassies es Foreign sovereigns Public property of foreign sovereign o 0 0 International organizations © Extradition treaties © Foreign troops Y Exercise of jurisdiction in case of collision in high sea o Case study of S.S. L@TUS Y Criminal jurisdiction in international law Y Criminal jurisdiction of coastal state in territorial sea Y State jurisdiction according to universal principleud \ i | |] committing the murder in France If they come to England, Te! ‘orial Sovereignty: One of the essential elements of statehood is territorial sovereignty Territorial — EONS SO tity sovereignty denotes that the state exercises sovereigriy over a detinite territory over which it is entitled to enact laws. It has the owner:/1ip over this territory to the exclusion of others. It can enact binding laws for the i:shabitants living within this territory and in respect of their property. According to Max Huber, territori sovereigiity theans independence over a definite territory to the exclusion of other states) Th this" ternitory.a_state” pérfoiths: its’ function“ According 10 Stark in jurisdiction is ‘erritorial sovereignty’ signifies that within this « exercised by the state over persoris and property 10 the exclusion of other states State exercises teritorial sovereignty, over all those areas which are within is territory. It comprises not only lands but also waters, rivers, maritime be its air space etc. Distinction between éxercise of jurisdiction and basis of jurisdiction: }.>-In-general,. every- state: has-exelusive:jurisdietion: withir its'own territory; but this jurisdiction is not absolute, because itis subject to certain limitations imposed by intemational: law. Thus in practice it ig not always necessery that « state may exercise jurisdiction in its territory; on the other hand, there may be circumstances, in which a state may exercise jurisdiction even outside its territory. Thus there is a distinction between the exercise of jurisdiction and basis of jurisdiction J.E.S. has explained this with the help of following illustration An Engl GesMian murdered a French SScch man and théteafter an away to England So long as courts for ghitan_and @ they were in France, they could be arrested and tried by Fre! lish courts can try the Englishman but they cannot try the German because they have no basis for pau sz ry cannot try the German be eS OOjurisdiction as English courts cannot try a foreigner for having committed a murder Other illustration: I Subjective and objective territorial principle: This is regarded as the technical extension of the territorial principles. According 10 this principle, a state may claim jurisdiction over crimes commenced within its territory but completed or consummated outside its territory. The state where crime commenced or was initiated may have jurisdiction over such preparatory act. This is provided. for example, under the Geneva Convention for the Suppression of f= some foreign stat a rl peta Wy” A Erench armed public ship fying the flag of France was in the British territorial waters when M, the cabin{bop\of the ship, committed the offense of murder by shooting dea D,)the captain of the ship. Both M and D werey Uhm British nationals serving at that time as members of the officer crew of the oa . French euiser. Extradition proceedings instituted by French government failed and M, who had been kept under arrest, was released but arrested the murder committed within British territorial waters. immed Chung chi Cheung was a British citizen, and was a cabin boy in a Chinese armed ship. On January, 11, 1937, when the said ship reached the territorial waters of Hong Kong, Chung chi cheung shot dead the captain of the ship and injured the acting chief officer of the ship. Even in wounded condition, the acting chief officer ordered the ship to be taken into the territorial waters of Hong Kong. When the ship reached Hong Kong, he called the police and got the cabin boy arrested. The Chinese authorities started the proceedings for the extradition of the accused but and the accused was released. Soon 1, he was re-arrested and tried in the court of Hong Kong, ———der 2se ial rip on, ors Counterfeiting of C ncy (1929) and the convention for the suppression of the illicit drug traffic 1936. Objective territorial principle: of the According to this principle, a state_gets jurisdiction over the crime, if a The eet must Exampl K, a British subject, fires across the channel and kills a Frenchman on the shore of France. In this case Bri ish has jurisdiction over criminal K because K is a British subject and the crime is committed within the temvitory of Britai car ed in Britain, it was claim_jurisdiction because though the crime was initia he ca completed or consummated in the French territory. So i! K goes to Fran be apprehended and tried for the murder. Some exceptions of the exercise of jurisdiction: 1. Diplomatic agents: __ Diplomatic agents enjoy certain immunities and privileges. They are immune from the jurisdiction of the civil and criminal courts of the receiving st 2. Foreign embassies: Foreign embassies are often considered to be outside the jurisdiction of the state which they are situated. Embassies enjoy certain immunities because of the spec: functions performed by the diplomatic agents.3Noorsizn cavereigns: . Foreign sov reigy also treated to be outside the jurisdiction of other stves and possess mauy privileges and immunities. The principle of immunity of foreign sovereigns was developed in the early years of the nineteenth century. According to this principle, vast immunities and exemptions are granted to foreign sovereigns and for states Example: In Mighel vs. Sultan of Johore case, the Sultan of Johore, during his stay in England, promised to marty the plaintiff. When the said promise was not fulfilled, the plaintiff filed a case for the breach of the promise, The Sultan of © was a sovercign of a-fereign state who had not submitted Jahore contented that diction of the court and as such court had no jurisdiction over him. The to the jur court accepted the contention and decided in his favor. 4. Immunity in respect of public property of foreign sovereign state: Like the person foreign sovereign, the property of the sovereign or the public also receives certain immunities and exemptions from the of jurisdiction. In some countries, distinction is made between sovereign mercial acts. For example, in America, a foreign sovercign is not ged in commercial acts and commercial functions. According mpted when er to Prof, W. Friedman, following views are prevalent: a) All that property which is owned-by a state is entitled to immunity. This view is followed in England. b) According to the second view, this immunity is not absolute and has certain limitations. It depends upon the type of act. But it is difficult to determine whether a particular act is a sovereign or not.sand reign rding eigns 3 stay s not an of aitted . The aublic n the sreign snot nding This d has uult.to the nature of the c) According to the third view, immunity depends up function. In accordance with this rule, those ships which are owned by the state and perform commercial functions are treated equally to private ships during peace times. Example: Thai-Europe tapioca service Lig. V. Govt. of Pakistan 5, International organizations: International organizations also enjoy certain immunities and privileges from the nited jurisdiction of the state in which they ere situated. For example, che salt of Nations International Labour Organization, etc, enjoys several privileges and immunities. 6. Extradition treaties: ction outside their tertitory. Extradition treaties enable the states to exercise jurisdi x the states to exer them to apply for the extradition of an accused that has fled These treaties enable to some other country after committing a crime. 7. Foreign troops: A sovereign may cede a portion of his territorial jurisdiction where he allows the troops of a foreign prince to pass through his dominion therefore, implies a waiver of all jurisdictions over the troops during th The grant 0 ee passage, cir passage, and permits the foreign general to use that discipline, and to inflict those punishiients which the government of his army may require.ee Ma diction in case of collision of high sca: In case of collisions of two ships in the high sea, jurisdiction is ordinarily exercised by the state whose flag flies on the ship. However, on the basis of extra- territoriality that state which has been affected by the said collision may also exercise jurisdiction | Case study of S.8 Lotus: _}ufetfor ‘ | ook Creme The Gortaah (Bozkourt) ship collided with the French ship SS Lotus. In consequence of this collision certain Turkish nationals died. When the SS Lotus pULIeuaneona sicles ship reached Turkish port, Constantinople, Turkish government arrested a French national and some officers and started criminal proceedings against them. The French government lodged strong protest against it and so the matter was referred to permanent court of international justice. The court propounded the following inciple: |. ‘Those states which subscribe to the theory of the extra-territoriality of [ criminal jurisdiction admit that offence will be deemed to have been committed within their territory if it effects falls upon their territory. In the view of the court there is no such rule of international law as may prohibit the ‘Turkish government from prosecuting and punishing the French national and the officers of the board of the ship, $$ Lotus. According to the court, in collision cases, in the open sea, there is no rule of w international law which provides that only the state whose flag flies on the Ship can exercise jurisdiction over such matters. aaaaa—=—_—vocvrm—_'Criminal jurisdiction in international law: —__ ‘There are several views prevalent in gonnection with the criminal jurisdictio international lav’, Following are th€ three main views. ea ised (D Accordin , to the first view, each state can exercise criminal jurisdi -tion oo within its own territory, This theory is popularly known as the theory of also territoriality of criminabsjurisdiction. ‘This theory is supported by Great e Britain, America and so other states. @ The second view is also known as 1 theory of territoriality but it admits certain“axceptions to this general theory. France @nd Germany ete are its In chief supporters. According 19 them, a state_may_sxereise criminal tus jurisdiction even outside its territory on the basis of the national secur ca gaeconomic ground. : The @ The third theory is popularly known as the theory of extraterritoriality “red a Turkey, Italy, etc, are its chief supporters According to this theory cri -ing social evil and it is in the interest f whole international community to \e State responsibility for injury to alien: i Under international law it is generally agreed that aliens living in a state should Iso be conferred upon the same rights which are given to the citizens. It is the i responsibility of a state to protect the: rights of their citizen. State responsibility | towards aliens may be of following types; | i TAREE TRB REA Shs a EL ( |) State responsibility for acts of individuals: If the citizens of a state cause some harm or damage to an alien in that state, the alien gets the right to file the suit for compensation according to law of that state. Teghh to I ie sul tor compensate mals! 1s in such a situation the state tribunals protect the rights of aliens. It may be noted that the decision of the courts are binding upon the aliens in the same way as they are binding upon the citizens of the state. But if the decision of a state tribunal” is arbitrary and against justice, the alien per$en has remedy to approach his home state to settle the matier through political means and ensure that the matter is decided in accordance with the principles of international law.£4 death of Count Bernadotte and a French observer. The government of Is Ww) State responsibility for acts of mob-violenc gence to + State may be held responsible for mob-violence if it had not made due di state responsibility in 2s such as prevent it Jurists often express ie view that there is no respect of mob-violence. But thi, view is not correct. Some count’ spec oro ew isso England.and America do not.supvort this view. lf the alien person is some officer of foreign country then the state responsibility is further increased. Reparation for injuries suffered in the service of UN: Count Bernadotte along with a French observer was appointed by UNSC to mediate between Arabs and Jews in Palestine. On September, 17, 1948, when he was in that area of Jerusalem which was under the occupation of Israel, he along, with the French observer was killed. In this connection, the general assembly of the United Nations requested, in 1948; the Intemational Court of Justice to give an advisory opinion as to whether in such matters the United Nations can claim compensation and damages for the persons appointed under its service. The IC) d_under igternational Jaw decided that United | Nations is an | international Person. has rights and ‘duties and that it can: claim. ri disnages and compensation for. the i injures or loss.suffered by the petson working under its service, Secretary General Of the United Nations clainied compensation from the government of Israel for the paid the money in the form of compensation but refused to accept any obligation under | paid the law in this connection. In other words we may say that although I compensation, but’ it did not accept that it was-its legal responsibility to pay compensation arising out of mob-violence.—_ Ww) State responsibility for acts of mob-violence: diligence to - State may be held responsible for mob-violence if it had not mace. du prevent it. Jurists often express “re view that there is no state sponsibility in respect of mob-violence. But thi. view is not correct Some countries such as England.and America do not. supvort this view. If the alien person is some officer of foreign country then the state responsibility is further increased. Reparation for injuries suffered in the service of UN: Count Bernadotte along with a French observer was appointed by UNSC to mediate. between Arabs and Jews in Palestine. On September, 17, 1948, when he, was in that area of Jerusalem which was under the occupation of Israel, he along with the French observer was killed. In this connection, the general assembly of the United: Nations requested, in 1948, the International Court of Justice to give an advisory opinion as to whether in such matters the United Nations can claim compensation and damages for the persons appointed under its service. The 1CJ decided that United jtvhas rights and ‘duties and that it can. claim damages. and compensation for. the injuries or loss.suffered by the petson working under its service. Secretary General of the United Nations claimed compensation from the government of Israel for the tions is_an intemational person and. under igternational Jaw «4 death of Count Bernadotte and a French observer. The government of Israel paid the money in the form of compensation but refused to accept any obligation under law in this connection, In other words we may say that although Israel paid the compensation, but it did not accept that it was its legal responsibility 10 Pay compensation arising out of mob-violence.§°2) State responsibility for acts of insurgents: 9 “SA Sey nad Rerlpmahe So far as ate responsibility for the acts of insurgents is concerned, the general | rule is that it is the responsibility of the states to try to prevent the violent act of vies. But there is a controversy that if the states are nof able to prevent | violent activities, then whether they will responsible or not? \ 5 Calvo doctrine: —— } N] he doctrine was propounded by Calvo of Argentina and hence it is called Calvo , doctrine. According to this doctrine, during civil war the state is not responsible for ffered by the alien persons because if this responsibility is accepted | then big nations will get_an excuse to intervene in the independence of weaker states, Tapate responsibility for the acts of Governmental organs: high officials toward the alien persons. But state responsibility is accepted only to the extent where the officials concerned have acted out of their powers and jurisdiction. Similarly, state is also responsible for the acts of its judicial organs. tate responsibility for contracts with foreigner: state concerned has responsibility for the act performed by its representative or | In this connection the general rule is that if there is a breach of contract entered into a state with aliens then it does not give rise to any state responsibility. The alien person, however, has the remedy to.avail the local means available to him in the state concerned. However, if the matter is not resolved to the satisfaction of the alien person, then he may try to settle it through the medium of his home state. In | the words of Fenwick, “In general, the alien, believing himself to the victim of {— breach of contract by foreign government, must first exhaust such local remedies as are to press the claim through the foreign office of his governme ©@) State responsibility for the breach of treaty: al State responsibility for the leach of international weaty depends upon the of provisions of the treaty. # SeXy Mor Sake See E SN Se 8 Sk GSE SNE nt Example: ~ Case study gf I’m alone ship. ( case shay) . © Cortfiscabion! ease State responsibility in respect of ae ie of foreign property: Nabinchiatin im stole bd She 1 There is a great controversy in ae 7 Mie expropriation of foreign property Os cd | situated-in a state. In the modern period, significant changes have taken place in T this regard. Till the 19" century, if any state expropriated the foreign property, it sidered to be the was ¢ lation of international law making the said state liable ‘ontrol of for the compensation. But in the modern period, in view of the comp! iw States, over..theireconomic-system=andin' consequence of thé“ nationalization of it has become difficult to recognize such expropriation as the violation of international law. It may be noted here that the, term ‘expropriation’ 7 different industries, 0 ny 08 FO eee 'd "includes nationalization and confiscation of property. On the basis of practice, a ee ee principles ang decided cases, expropriation of foreign property may be vali where there has been no j ity or discrimination with the foreigners. This was \ held in Anglo-lranian oil co. Ltd. vs.Jeffarte. Case S47 1 Anglo-lranian oil co. Lid. vs. Jaffarte. | , Example#02 . 1 “Nationalization of Suez Canal (GoSe stoby) e QS \sbs Ge onlyDSTA wah ons whan BM moder hess seals . 2) Eadid Gee Outline: © A AE Beare BOHR > Meaning and definition of the term ae > Development of the law of neutrality: &« AS BAH Aah > Rational basis of neutrality . > Neutrality under League of Nations ’ © Two types of war ‘ > Neutrality under UN > Duties of neutral statcs © Abstention 9 Prevention © Acquiescence © Restoration o Reparation > Duties of belligerent states o Abstention i o Prevention o Acquiescence | | > Rights of neutral states > End of neutrality > Kinds of neutrality 1 > Perpetual or permanent neutralityDOWeMERL law was present but there were no clear provisions about it. According to modern international law, the law of neutrality started in middle ages. As pointed out by Professor Schwazenberger; gxcadle ayu- “Neutrality as descriptive of the politice. and legal status of the country not at war with of the two belligerents mode its appearance in Europe diplomatic correspondence in the middle ages” —\ EE ae ina In eighteenth century, two famous jurists Bynker-Shoeck and Vattel contributed much to the development of the law of neutrality. It was agreed in that century that the states which do not take part in war are entitled to remain neutral/impartial and Sa ee this impartiality may confer upon them certain rights SE LOA yet The development of the law of neutrality received a great impetus in the gin h cet ry Much of thé credit for it’ goes ‘to USA_for remaining neutral in the ar of \ leading case of this.period.relating-to.neutrality. is “Alabama claims Napoleonic wars. The systematic development of law of neutrality also owes much to the civil country, Arbitration, 1872”. In the civil war, Great Britain, being a new provided Alabama and other destroyers to Southern states. ‘Phe court of Aybitration gave its award in favor of America and ruled that Britain should pay 1,55,00,000 dollars in gold to America as compensation. The permanent neutralization of Belgium_and Switzerland in Nineteenth century was also a land mark event. This encouraged the development of law of neutrality Some rules relating to the law of neutrality were developed in convention of 1907. But First World War tured into a total war and the laws of neutrality were open! 1p to the and flagrantly violated. America remained neutral in the | ‘ grantly 7 in the war, -t 22 year 1917 but later on it was compelled to take p:ARM BAG + ig ofien justified because of the following reasons: 4 WerreLQy | It ncips to localize the area of war & EZ 11 discourages the war wt 43 snsequence of neutrality. some states are able to keep them away from war, fi {1 regularizes international relations. dinarily above mentioned reasons are said to be rational basis of the law of War has clearly established that the first and SSS neutrality. But the Second Wor second reasons are not the true basis of neutrality. During the Second World War, Norway, Denmark, Ireland and Belgium were Heutral states but the belligerent | states in general and Germany in particular did not respect their neutrality and i because America wanted to conquered them. Third basis is not the concerned bas keep itself away from the First World War, but has to enter in 1917 Position of law of neutrality under the covenant of League of open Jations: CLOTS Nations: OY Many jurists have expressed the view that the covenant of League of Nations has put an end to the old law of neutrality. There could be two types of war under the League of Nations (@ War not in disregard of the covenant of league of nations (2) War in disregard of the provisions of covenant of League of Nations. ' First type of war: (i) Members are under obligation to settle their international disputes through judicial decision or inguiry by the counci(2) If the states tail to settle their disputes by these means, even then the states could not_go to war until a period of three months lapsed alter award or judicial decision or inquiry. AS Gp al the means are exhausted and the probl :.9_is not resolved in that case —— the member states can’ resort to war. The cther states are free to remain 2 neutral. That is to say, thé covenant had not completely prohibited war. It tom * simply imposed ceitainl restrictions upon the member states in respect of their right to resort to war. * Second type of war: v of Ifa state went to war in total disregard of the provisions of covenant of League of a Nations, then such a state could be deemed to be the enemy of the whole of League vem of Nations. ‘Atticle 16 of the covenant of the League of Nations provides that if any ang SHE TeSOrted to war in violation of the -etictes IZ TS and TS, Then it was AS considered to be war against the whole league. In this type of war, other states of . the League of Nations cannot remain neutral as they have to assist thi fighting against the enemy sfatg“A of " Position of neutrality under UN charter: as Some jurists have expressed the view that United Nations charter has put an end to the he-old-laweof-reutrality, In the view of these jurists, when a state geqorts to ar, — offen. 2 : there ca IWS Conditions. )He can either be an, SeaSior or defen is an aggressor then preventive or enforcement action can be tuken against him under the charter. If he is a defender.then he,should_be assisted by the United \ Nations. Thus the member states of United Nations cannot remain neutral, Some relevant provisions in United Nations charter which have ai! the law neutrality are given belowcovides that all members shall give the United Nations every Article assistance in any action it takes in accordance with the present charter and shafl refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. x vides that the members of United Nations agree to accept and carry 2. Article 2: out the decisions of the Security Council in accordance with the present charter. at is to say, if the Security Council decides to take any action, the member states have no option but to carry out this decision. Under such cannot remain neutral 3. Article 41, 42 and 4. x Articles 41, 42 and 43 are related to the enforcement action conferred upon the Security Council in respect of maintenance of peace and security. Under these articles the Security Council has been empowered to ask other states to assist i Th rovisions are in face detrimental for the observance of the rules of old law + se f of neutrality 4. Article 492% : ‘Article 49 provides that the members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council. It has also affected the old law of neutrality.5. Article 51: Article 51 of the charter confers upon the member states of the United Nations the right of individual or collective self defence if .1 armed attack occurs inst a member of the United Nations. xy 5 all Some jurists are of the view that although the provisions of the charter have greatly is affected the old law of neutrality-they have not completely. abolished it. Fenwick has also expressed the view that if in respect of certain matters relating to peace and security, the Security ‘Goiiscil is not able to take action then in such a si it other member states ¢ Uni ited ‘Nations can remain neutral. my er. Duties of the neutral states: —~ Duties of the neutral statese tes Ordinarily following are the duties of neutral states: vey ; 2 fs che 2se it. aw ng ity QQ Abstention: Iti is the duty of the neutral state to abstain from rendering direct or indirect help to ip either belligerent through war forces or cannot guatntes Toans to be given to them. : @ Prevention: “Ati is the duty of the neutral states to ‘prevent certain things within their territory. For example, it is their duty to ensure that persons are not recruited for the war forces rsons are not recruited | of belligerent states within their territory. @ Acquiescence: (Raed | It is also the duty of the neutral states to give their acquie: ce in cértain matters. For example, they should give their acquiescence when ship using the tleg ofey oppose such seizure, it will be f the law of neutrality on their par id, Resioration: - ithin their IL is the duty of the state not to allow any act. connected with the war territory and in case if any such act takes place it is their duty to restore it. That is if cither of the belligerent seizes enemy ship within the,territory of the neutral siate then it becomes the duty of the neutral state to get such ship restored, to the other belligerent state . @% Reparation: ‘avenes the above mentioned duties, it may be held liable to utral state cont compensation ‘or the same. A leading case on the point is “Alabama claims The case of Altmark: Article 5 of Hague convention th Higerents are forbidden to use neutral ports and waters as a base It provides naval operations against their adversaries . Duties of belligerent states: Following are the duties of belligerent states: @ Abstention: tr is the cuty of the belligerents to abstain from committing any act of war within states the territory of neut—— — @ Prevention: Iv is their duty to prevent bad treatment toward the ambassadors. citizens etc of the 1 be neutral’states. . © Acquiescence: Like the neutral states, belligerent states are under the duty to give their heir _.acquiescence in respect of certain matters. For example, if the neutral state gives itis asylum or refuge to some members of its forces, it is the duty of other belligerent ee aaa the'- “states not to oppose it. we “4 Rights ofneutral states: — © The first right of neutral state is that no war like act should be committed in their territory. 2 to © Their cable lines in seas, etc. should not be damaged as far as possible ims * @ The belligerent states should not use their territory for making preparation * ~~ for war. | @Fhey-are’ also enttlec 0: HAANE SORE HIRE TST 1H ‘protection of their territory +95 “and to make belligerent gtatés observe them. Oo Neutral states also posses the right that if their neutrality is violated then they may get compensation for the same. get compere + Commencement of neutrality: ‘immediately after the start of war, neutral states should declare their neutrality. It is only after, the start_of war, states can determine as to whether they will remain neutral of not. Hence, knowledge of start of war is necessary for the declaration of war. Article 2 of Hague coriventién III provides that the belligerent states should hin.ntimate the neutral states about the start of war. The rights and duties begin only , after $1, .). intimation, End oy neutral Neutrality comes to an end in one of the following ways; al @) At the end of the war o) When the neutral state starts war with one of the belligerent states (© When any belligerent state starts war with the neutral state. The rights and duties continue till a state remains neutral. They end as soon as the » neutral state ends neutrality. ~~~ Kind of neutrality ay be of following kinds: i. Perpetual or permanent neutrality: 7 When a state is neutralizs aspecial treaty, then such neutrality is called as perpetual or permanent neutrality. ii, General or partial neutrality: When only a part of a state is neutralized, it is called partial neutrality. On the other : hand, when the whole state adopts the attitude and policy of neutrality, it is called general neutrality iii, Voluntary neutrality and neutrality based on some treaty: Voluntary neutrality is neutrality which is declared by a state voluntarily without eaty. On the other hand, a state may become neutral being: pniv. Armed neutrality: ed forces for the defence of its neutrality, it is called armed When a state uses nly neutrality. v. Benevolent neutrality: When a state, while remaining neutral, favors a belligerent state or otherwise helps _it, it is. called benevolent neutrality. vi. Perfect and qualified neutrality: 1 indirectly. When a state remains completely impartial assist either of the belligerents, it is called perfect neutrality. B But ila state remains he neutral generally but as a result of some provisions of weaties entered into before 8 y but as a result of some provisions of weatles enterec INO start of war, directly or indirectly, assists a ec, then_is_it called qualified neutrality Leer Neutrality and neutralization: emporary-andpermarient™ as Individually and by international treaty 1. Switzerland 2. Austria —— er4 / Wire \rpes 4 Queatsios Mi'ca’s (Pass) : Subye bee pays A SSroh yd eed Cove d git) (Pe derence monk ee ‘4 | \ Qeertion J 8) Wye de Codie) | SPA GD. CGenerad) CTedaiced /Coried Mars) |(3 e sylum and Extradition ~~ U's os iplomatic Immunities vs, Ls) aw of Seay (We, @, Nes 2) ecognition of States 4 Cg 5) 18,92 (2 aw of. Treaties WA0- 08 AG Gs, “ International’ Humanitarian Law) t Settlement of International Disputes(X> Use of forces/Interventio (Borate Jurisdiction Lge Titel Ge i “ State Responsibilig oe aw of Neutrality Go a ources of International Lawttc, WM, RD ubjects of International Law ~ Gs yi, —oh—\t elation between International Law and State ‘ ay BA =P AY-8hTOPIC#O1 ORIGIN, NATURE AND BASIS OF INTERNATIONAL LAW: Outline: \e What is law yok kia. Le Defining International Law Generh + Vf : Se Evolution of International law Wo Ancient Phase: COX PM CoS reer * Contribution of Egypt Pharaohs \woo bc Rae CXsehb | Jerr yeng dads aw KY abst wk fk —,& Contribution of Greeks Era cao ee oon (eee = Contribution of Roman Era dacs’ ae Se Wo Mia Middle Ages: ces. yp Xe et * Renaissance of Europe aids eapanen tn aes Matas te, op Resta wees Mcemeh Bye Discovering of sea-routes\ Vows & eos Se . “GREEN eR © Regulation ofsea-trade arya - “8s Cannon Shot rule | (ii Modern Age: ¥¥ SS (2S =a Treaty of Westphalia ~ (44% * Hugo Grotius = -ys$ oct, Cou Ye Take al SL et Ph ece Sem MWA . (iw)o 18th Century: wee hee WS = Naturalists = Positivists \ = Grotians19" Century: lishment of LLC.R.C duty * Hague conventions \%%, Woh Qler quer bien “Lee eS ® Congress of VietS (Wdgabgowic \sess)) = ‘ oR 3 Bg 6 SWRA A, 2 o 20" Century: Soveen ty, . Dab abbey, S ang, Briand pact Sates Siphnds » Geneva Conventions \A9S-\W4s, \CRO * League of nations + UN.O and its tule VAX, dA Ok \