Pil 8th Sem Qa LN PDF

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PIL-8th Sem Q&A LN
Public International Law (Karnataka State Law University)
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Ph: 98455 35438 E-mail: krishnaa0205@yahoo.com, Ph: 98455 35438 E-mail: krishnaa0205@yahoo.com,
Note: All the subject matter has been collected from the internet rights violations, rapid and vast increases in international
or other freely available sources, believed to be under the transportation and a boom in global communications.
creative commons license and may be distributed freely for the
purpose of study but not for sale, any copyrighted material if Public international law has three principal sources: international
found in these notes may please be brought to my attention treaties, custom, and general principles of law. In addition,
and the same will be forthwith removed. judicial decisions and teachings may be applied as "subsidiary
Additionally, I hold no responsibility for the correctness or means for the determination of rules of law". International treaty
otherwise of the matter provided below and your results in the law comprises obligations, states expressly and voluntarily
examinations are eventually a product of your efforts only and I accept between themselves in treaties. Attempts to codify
take no responsibility for the same. However, any thanksgiving, customary international law picked up momentum after
& suggestions are welcome for further improvement of the legal theSecond World War with the formation of the International
education system in India Law Commission (ILC), under the aegis of the United Nations.
Codified customary law is made the binding interpretation of the
First Semester Five Year BA, LL.B. Examination Answered underlying custom by agreement through treaty. For states not
Papers party to such treaties, the work of the ILC may still be accepted
Max. Marks: 100 as custom applying to those states.
Instructions:
1. Please read the instructions in your Exam Question paper and in Public international law establishes the framework and the
your answer sheet without fail. criteria for identifying states as the principal actors in the
2. Start all answers in a different new page international legal system. International law is concerned with
PUBLIC INTERNATIONAL LAW the treatment of individuals within state boundaries. There is
thus a comprehensive regime dealing with group rights, the
Briefly explain the origin and development of International law. treatment of aliens, the rights of refugees, international
Nature and Origin of Public International Law crimes, nationalityproblems, and human rights generally. It
further includes the important functions of the maintenance of
Nature: international peace and security, arms control, the pacific
The system of public international law may be described as settlement of disputes and the regulation of theuse of force in
‘consisting of a body of laws, rules and legal principles that are international relations. Even when the law is not able to stop the
based on custom, treaties or legislation and define, control, outbreak of war, it has developed principles to govern the
constrain or affect the rights and duties of states in their conduct of hostilities and the treatment of prisoners.
relations with each other’. Public international law has increased International law is also used to govern issues relating to the
in use and importance vastly over the twentieth century, due to global environment, the global commons such as global
the increase in global trade, armed conflict, environmental communications, andworld trade.
deterioration on a worldwide scale, awareness of human
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According to international law, all states are sovereignand On this viewpoint one can refer to Neff’s ‘A short history of
theoretically equal. As a result of the notion of sovereignty, the International Law’ in Evans (2006), which traces the
value and authority of international law is dependent upon the development of international law in many historical traditions.
voluntary participation of states in its formulation, observance, Neff persuasively contends that persons from even the most
and enforcement. Although there may be exceptions, it is diverse historical cultures sought to relate to one another in a
thought by many international academics that most states enter peaceful, predictable, and mutually beneficial way. He points out
into legal commitments with other states out of enlightened self- that Mesopotamia, northern India and classical Greece had
interest rather than adherence to a body of law that is higher three areas of international law: diplomatic relations, treaty-
than their own. making, and rules governing the conduct of war. As these are
still three major areas of international law, it establishes the view
Breaches of international law raise difficult questions that international law has long historical roots.
for lawyers. Since international law has no established
compulsory judicial system for the settlement of disputes or a During the medieval period, throughout Europe, customs began
coercive penal system, it is not as straightforward as managing to be accepted, founded on the Rhodian sea law and which was
breaches within a domestic legal system. However, there are a Byzantine work. In addition, there was a ‘continental law
means by which breaches are brought to the attention of the merchant’, which was a series of regulations and practices
international community and some means for resolution. For governing trade. The area of diplomatic relations developed in
example, there are judicial or quasi-judicial tribunals in this period and the European states began to conclude bilateral
international law in certain areas such as trade and human treaties which spelled out reciprocal guarantees of fair
rights. The formation of the United Nations, for example, created treatment.
a means for the world community to enforce international law
upon members that violate its charter through the Security The sixteenth and seventeenth centuries constituted ‘the
Council. classical age’ of public international law. The major scholar of
that era was Hugo Grotius whose main work was ‘On the Law of
War and Peace’, published in 1625, and in which he further
Origin: developed the just-war theory and argued that the law of nations
International law has developed historically and philosophically was distinct from the law of nature. The purpose of the law of
over many centuries, in many cultures and a rudimentary nations was to regulate the external conduct of rulers. Up to the
system of international law existed even in ancient societies. nineteenth century, international law had developed over
Persons from even the most diverse historical cultures sought to centuries, with its flowering in the classical age. Although
relate to one another in a peaceful, predictable, and mutually Grotius might be known as the chief architect of our modern
beneficial way. international legal philosophy, the roots of his scholarship are in
the ancient natural law texts and developments of mercantile
law in the Middle Ages.
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stage in the continuing development of public international law

In the eighteenth and nineteenth centuries another philosophical that continues into the twenty-first century. There continue to be
tradition developed in contrast to Grotius’ natural law theory divergent theories of international law, which will inform future
which has also influenced modern international law: positivism. development of the subject.
It is important to note that modern international law has also
been profoundly influenced by developments in the nineteenth Examine the theories as to the relation between
and twentieth centuries which until the end of the Second World International
War was dominated by positivist thinking and the development Law and State Law.
of a plethora of bilateral and multilateral treaties, such as the International Law is the law which governs the Relations of
treaties that constituted the results of the Hague Conferences, sovereign independent States inter se Municipal law or State
the establishment of the League of Nations, and, finally, the law or national law is the law of a State or a country and in that
United Nations (UN). respect is opposed to International Law which consists of rules
Recently in the late-twentieth and early twenty-first centuries, in which civilized States consider as binding upon them in their
addition to the staggering developments in international legal mutual relations. Kelsen observes that national law regulates
instruments (multilateral law-making conventions) and the behavior of individuals International law the behavior of
international institutions (the UN, World Trade Organization States or as it is put whereas national law is concerned with the
(WTO), International Criminal Court) we have seen the rise of a international relations the so called domestic affairs of the
diverse range of international law theories, even though, there is State. International Law is concerned with the external relations
a argument that there is a continuation of natural law and of the State its foreign affairs.
positivism. One recent example, as embodied by Martii
Koskenniemi in his writings, ‘What is international law for?’ Legislature and court systems are different on the international
seeks to deconstruct the language used in international law and and municipal levels. Where the municipal level uses a
analyses the basic meaning. Juxtaposed with this philosophy, legislature to help enforce and test the laws, the international
are writers on liberal internationalism, such as Teson and court system relies on a series of treaties without a legislature
Slaughter and the New Haven school which examines the which, in essence, makes all countries equal.
process of international law-making as expounded by Myers
McDougall and Michael Reisman. All of these theorists examine Enforcement is a major difference between municipal and
international law through the lens of philosophical thinking that international law. The municipal courts have a law enforcement
might influence the development of international law into the arm which helps require those it determines to follow the rules,
future. and if they do not they are required to attend court. The
international court system has no enforcement and must rely on
In this brief historical review, it can be seen that international the cooperation of other countries for enforcement.
law was developed over many centuries and that the classical
age of Grotius and the Spanish philosophers might only be one There is a divergence of opinion on the question as to whether
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International Law and Municipal Law on the various national former although directly addressed to the States as corporate
laws can be said to form a unity being manifestations of a single bodies is as well applicable to individuals for States are only
conception of law or whether International Law constitutes an groups of individuals.
independent system of law essentially different from the
Municipal Law. The former theory is called monistic and the Dualistic theory: Dualists emphasize the difference between
latter dualistic. national and international law, and require the translation of the
latter into the former. Without this translation, international law
Monistic Theory: Monists assume that the internal and does not exist as law. International law has to be national law as
international legal systems form a unity. Both national legal well, or it is no law at all. If a state accepts a treaty but does not
rules and international rules that a state has accepted, for adapt its national law in order to conform to the treaty or does
example by way of a treaty, determine whether actions are legal not create a national law explicitly incorporating the treaty, then
or illegal. In most monist states, a distinction between it violates international law. But one cannot claim that the treaty
international law in the form of treaties, and other international has become part of national law. Citizens cannot rely on it and
law, e.g. jus cogens is made. International law does not need to judges cannot apply it. National laws that contradict it remain in
be translated into national law. The act of ratifying the force. According to dualists, national judges never apply
international law immediately incorporates the law into national international law, only international law that has been translated
law. International law can be directly applied by a national into national law. According to the dualist view the systems of
judge, and can be directly invoked by citizens, just as if it were International Law and Municipal Law are separate and self
national law. A judge can declare a national rule invalid if it contained to the extent to which rules of the one are not
contradicts international rules because, in some states, the expressly or tacitly received into the other system. In the first
latter have priority. In other states, like in Germany, treaties place they differ as regards their sources. The sources of
have the same effect as legislation, and by the principle of lex Municipal Law are customs grown up within the boundaries of
posterior, only take precedence over national legislation the State concerned and statutes enacted therein while the
enacted prior to their ratification. In its most pure form, monism sources of International Law are customs grown up within the
dictates that national law that contradicts international law is null Family of Nations and law making treaties concluded by its
and void, even if it predates international law, and even if it is members. In the second place Municipal Laws regulates
the constitution.It maintains that the subject of the two systems relations between the individuals under the sway of a State or
of law namely, International Law and Municipal Law are between the individuals and the State while International Law
essentially one in as much as the former regulates the conduct regulates relations between the member States of the Family of
of States, while the latter of individuals. According to this view Nations. Lastly there is a difference with regard to the
law is essentially a command binding upon the subjects of the substance of the law in as much as Municipal Law is a law of
law independent of their will which is one case is the States and the sovereign over individuals while International Law is a law
in the other individuals. According to it International Law and between sovereign State which is arrived at an agreement
Municipal Law are two phases of one and the same thing. The among them. The latter is therefore a weak law.
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single act. The delegation theory is incomplete for it does not

Besides the above two theories, Starke makes reference to two satisfactorily meet the main argument of the transformation
other theories namely, the Transformation Theory and theory. It assumes the primacy of international legal order but
Delegation Theory. fails to explain the relations existing between municipal and
international laws.
Transformation Theory: According to this theory it is the
transformation of the treaty into national legislation which alone It is settled by the leading English and American decisions that
validates the extension to individuals of the rules set out in International Law forms part of the municipal law of those
international agreements. The transformation is not merely a countries. The United States has unambiguously applied the
formal but a substantial requirement. International Law doctrine that International Law is part of the law of the land. All
according to this theory cannot find place in the national or international conventions ratified by the USA and such
Municipal Law unless the latter allows its machinery to be used customary International Law as has received the assent of the
for that purpose. United States are binding upon American Courts even if they
may be contrary to the statutory provisions. There is a
This theory is fallacious in several respects. In the first place its presumption in cases of conflict that the United States Congress
premise that International Law and Municipal Law are two did not intend to overrule International Law.
distinct systems is incorrect. In the second place the second
premise that International Law binds States only whereas Position in India
municipal law applies to individuals is also incorrect for In India, SC has held in several cases such as Vishakha vs
International Law is the sum of the rules which have been State of Rajasthan, Randhir vs Union of India, Unnikrishnan vs
accepted by civilized states as determining their conduct State of Karnataka, that domestic laws of India, including the
towards each other and towards each others subjects. In the constitution are not to be read as derogatory to International
third place the theory regards the transformation of treaties into law. An effort must be made to read the domestic law as being
national law for their enforcement. This is not true in all cases in harmony with the international law in case of any ambiguity.
for the practice of transforming treaties into national legislation At the same time, the constitution is still the supreme law of the
is not uniform in all the countries. And this is certainly not true land and in case of any directly conflict the constitution will
in the case of law making treaties. prevail.
Delegation Theory: According to this theory there is the

delegation of a right to every State to decide for itself when the ls Internalional aw a True Law?
provisions of a treaty or convention are to come into effect and
in what manner they are to be incorporated in the law of the DEFINITION
land or municipal law. There is no need of transformation of a
treaty into national law but the act is merely an extension of one
Law is that element which binds the members of the
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community together in the adherence to recognized body of customary and treaty rules which are considered
values and standards. It is both permissive in allowing legally binding by States in their intercourse with each
individuals to establish their own legal relations with other.
rights and duties, as in the creation of contracts, and
coercive, as it punishes those who infringe its regulation Public international law (or international public law)
concerns the relationships between sovereign nations.
International law, as understood among civilized nations, International law consists of rules and principles which
may be defined as consisting of those rules of conduct govern the relations and dealings of nations with each
which reason deduces, as consonant to justice, from the other. It is developed mainly through multilateral
nature of the society existing among independent conventions. Its modern corpus started to be developed
nations; with such definitions and modifications as may in the middle of the 19th Century.
be established by general consent (element of
international law by Wheaton). It can be regarded as International law is divided into conflict of laws (or private
laying down as established practice of international law international law) and public international law (usually just
that in the absence of stipulation a new state takes over termed as international law). The former deals with those
and becomes bound by the liabilities of its predecessor. cases in which foreign elements obtrude, raising
questions as to the application of foreign law or the role
The expression ‘International Law’ and ‘Law of Nations’ of foreign courts. For example, if two Englishmen make a
are synonymous and are equivalent terms. Professor contract in France to sell goods situated in Paris, an
Charles Cheney defines International Law as that body of English court would apply French law as regards validity
law which is composed for its greater part of principles of that contract. By contrast, public international law is
and rules of conduct which states feel themselves bound not simply an adjunct of a legal order, but a separate
to observe, and therefore, do commonly observe in their system altogether.
relations with each other. While according to Oppenheim,
Law of Nations or International Law is the name for the NATURE OF INTERNATIONAL LAW
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important elements. Firstly, law is command enacted by

One of the most controversial issues that has long been the sovereign legislative authority i.e., any rule which is
debated and discussed and on which the opinions of the not enacted by sovereign or superior cannot be regarded
jurists are sharply divided since the beginning of the as law. And secondly, it must be enforced by the
sciences of law of nations concerns the status of sovereign authority i.e., if laws are violated, there should
International Law. Although rules regulating the relations be adequate sanction behind it.
of States are referred to International Law in practice
consistently since 200 years, a number of jurists have Logically, if the rules concerned did not in ultimate
expressed doubts on the question: Is International Law analysis issue form a sovereign authority, which was
really law? One view is that International Law is not a politically superior, or if there were no sovereign
true law. It is a code of rule of conduct of moral force authority, then the rules could not be legal rules, but rules
only. Another view is that International Law is a true law, of moral or ethical validity only. Applying this general
and it is to be regarded as law in the same way as that of theory to international law, as there was no visible
ordinary laws of a State which are binding upon the authority as legislative power or indeed with any
individuals. determinate power over the society of the States, Austin
concluded that international law was not true law but
Austin’s View ‘international positive morality’ only analogous to the
rules binding a club or society.
According to Austin, international law is not legally
binding on States. Law is the command of the sovereign Oppenheim’s View
attended by sanction in case of violation of the command.
In the other words, law should be limited to rules of Oppenheim says that law is a body of rules for human
conduct enacted by determinate legislative authority and conduct within a community which by common consent of
enforced by physical sanction. The superior according to this community shall be enforced by external power
him is the real sovereign. The definition contains two According to this definition, essential conditions for the
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existence of law are threefold. Firstly, there must be a The rules of International law must be distinguished from
community. Secondly, there must be a body of rules of what is called international comity, or practices such as
human conduct within that community, so that the saluting the flags of foreign warships at sea, which are
community may be orderly governed. All the communities implemented solely through courtesy and are nor
submit to the rule of law because they wish to afford due regarded as legally binding. Similarly, the mistake of
respect and protection to the dignity of men and nations. confusing international law with international morality
And thirdly, there must be common consent of that must be avoided. While they may meet at certain points,
community that these rules shall be enforced by external the former discipline is a legal one both as regards its
powers. It means that it is not necessary that rules should contents and its form, while the concept of international
be enacted through law-making authority or there should morality is branch of ethics. However, this does not mean
exist a law administering court within the community that international law can be divorced from its value.
concerned.
CONCLUSION
ANALYSIS
It may be concluded that at present, World is, in reality,
Public international law covers relations between states regarded as an international community. John Austin
in all their myriad forms, from war to satellites, and regarded International Law as a ‘positive morality’ in the
regulates the operations of the many international 19th century, when international community lacked
institutions. It may be universal or general, in which case legislation, a court, sanctioning powers and enforcement
the stipulated rules bind all the states (or practically all machinery. And in view of all these if he concluded that
depending upon the nature of the rule), or regional, International Law is not a true law, perhaps he was not
whereby a group of states linked geographically or wrong. But presently, international legislation has come
ideologically may recognize special rules applying only to into existence as a result of multinational treaties and
them. conventions. These include the recognition that certain
rules have the character of jus cogens, which reduces
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the area for the operation of purely consensual rules, and perhaps one would not hesitate to call International Law
establishes that within general body of rules of the as a true law even if Austin’s definition of law is accepted
International Law there exists superior legal rules, with States are the only subjects of lnternationaI Law.
which rules of a lower order must be compatible. Critically examine.
States and non-State actors like individuals, international
Practice of states suggests that they consider themselves organizations, multinational companies and international
bound by such rules. If rules are violated by a State, non-government organizations are regulated by, or
sanctions may be applied against it not only by the subjected to, international law. They are called subjects
aggrieved State itself but collectively by the United of international law. These subjects have international
Nations Organization (UNO) as well. Further, legal personality. In other words, they have certain rights
international community has a Court (International Court and duties under international law and they can exercise
of Justice), whose decisions are binding upon the parties these rights and duties. ✐ Do all subjects of international
to a case. If a party falls to perform its obligations law have the same rights and duties? Give some
incumbent upon it under a judgment rendered by the examples of the rights and duties possessed by States,
Court. Security Council of the United Nations is individuals and international organizations.
empowered to take measures to enforce the decisions of
the Court, if the aggrieved party seeks the help of the WHO IS A SUBJECT OF INTERNATIONAL LAW?
Council.
A subject of international is (1) an individual, body or
entity; (2) recognized or accepted; (3) as being capable
Existence of International legislation, a Court, sanctioning
of possessing and exercising; (4) rights and duties; (5)
authority and the enforcement machinery are the
under international law. (Dixon)
developments of the present century. Personally, I agree
with the view of John Austin. But, the Statement of Subjects of international law are States and non- State
“International Law is a true law” is evident even if Austin’s actors like individuals and international organizations.
definition is accepted. In the light of these developments,
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Some argue that international non-governmental places obligations on States not to torture and to
organizations and multinational companies also fall into extradite or prosecute those who torture.
the category of subjects of international law.
Subjects: State & Non State Actors Legal personality also includes the capacity to enforce
Ex. Sri Lanka & Individuals, International Organizations- one’s own rights and to compel other subjects to perform
UN, ICJ, WHO, Multinational companies-Infy, IBM etc, their duties under international law. For example, this
means that a subject of international law should be able
HOW DO WE DETERMINE IF AN ENTITY IS A SUBJECT OF to:
INTERNATIONAL LAW?
(1) bring claims before international and national courts and
An entity is a subject of international law if it has tribunals to enforce their rights, for example, the International
“international legal personality”. In other words, subjects Court of Justice.
must have rights, powers and duties under international
law and they should be able to exercise those rights, (2) have the ability or power to come into agreements that are
powers and duties. The rights, powers and duties of binding under international law, for example, treaties:
different subjects change according to their status and

(3) enjoy immunity from the jurisdiction of foreign courts; for
functions. For example, an individual has the right of
example, immunity for acts of State.
freedom from torture under international law and States
have a duty under international law not to torture (4) be subject to obligations under international law (Dixon).
individuals or to send them to a country where there is a
likelihood of that person being tortured. This right is a Remember that all subjects of international law do not
right under treaty law, for example, the International have the same rights, duties and capacities. For an
Covenant on Civil and Political Rights and under example, a diplomat has immunity before foreign courts
customary international law. The Convention against because he is an agent of the sending State. ✐ See blog
Torture and Cruel, Inhuman and Degrading Treatment posts and media articles on the US- India diplomatic/
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consular incident involving Devyani It is however, difficult to fix the size of the population of a state.
Khobragade here, here and here. One State can bring a For the Greek Philosopher Plato, the ideal state should not
claim against another State before the International Court contain more than 5040 people. But Rousseau the French
Philosopher would treat 10,000 inhabitants as the ideal
of Justice to enforce its rights. An individual on his own
population.
can’t bring a claim against a State before the ICJ. States
have all the capacities mentioned above and individuals Modern states greatly vary in population. While some modern
have only a few. ✐ Of the four examples that we states (e.g. the USA, Russia and Canada) are still under
discussed, which ones are applicable to individuals? populated relating to area, resources and similar factors, others
(e.g., China, India, Egypt) are confronted by the problem of
population which is expanding too rapidly for their natural and
technological resources. There is no such hard and first rule as
What are the essential elements of the State? Explain the
to the number of people required to make a state. The
different kinds of states.
population of a state must be large enough to preserve the
The state has four essential elements:
political independence and to exploit its natural resources and
1. Population small enough to be well governed.
2. Territory
3. Government But it is the kind of people that matters more than their numbers.
4. Sovereignty What kind of people comprises a particular state? Are they
literate, well educated, culturally advanced? Aristotle rightly has
What follows now is a brief elaboration of these elements.
said that a good citizen makes a good state. So what is
1. Population important is the quality of people, their character, their culture
and their sense of belonging to the state.
The State is a human institution. Hence population is it’s first
and foremost element. No state can be imagined without the 2. Territory
people, as there must be some to rule and others to be ruled.
People cannot constitute a state, unless they inhabit in a definite
The people constitute its "personal basis".
territory When they reside permanently in a fixed place, they
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develop a community of interests and a sense of unity. It Government is the important- indeed, indispensable machinery
becomes easy to organise them into a political unit and control by mean of which the state maintains its existence, carries on its
them. So the state requires a fixed territory, with clearly functions and realise its policies and objectives. A community of
demarcated boundaries over which it exercises undisputed persons does not form a state unless it is organised by an
authority. Territory is its "material basis". The territory of a state established government.
comprises:
Government usually consists of three branches: the Legislature,
i) Land, mountains, rivers and lakes within its frontiers, the Executive and the Judiciary. Their respective functions are
legislation, administration and adjudication. The particular form
ii) Territorial water, extending six miles into the sea from the of government depends upon the nature of the state which in
coast, turn depends upon the political habits and character of the
people.
iii) Air space, lying above its territory.
4. Sovereignty
The state has full rights of control and use over its territory. Any
interference with the rights of one state by others may lead to The fourth essential element of the state is sovereignty. It is that
war. important element which distinguishes the state from all other
associations. The word 'Sovereignty' denotes supreme and final
But how much territory is necessary for the maintenance of
legal authority and beyond which no further legal power exists.
state? There is no accepted rule as to the size of a state's
territory. In the modern world, we find states of all sizes and Sovereignty has two aspects- internal and external. Internal
shapes. More important than the size are the nature resources sovereignty is the supreme authority of the state over all
and the location of the state. A geographically contiguous individuals and associations within its geographical limits. By
territory is an asset; otherwise it creates problems of virtue of it, the state makes- and enforces laws on persons and
administration and control. associations. Any violation of these laws will lead to
punishment.
3. Government
External sovereignty implies the freedom of the state from
foreign control. No external authority can limit its power. India
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before 1947 was not a state because though it had the other Occupation
three elements, i.e., population, territory and government, the
fourth and the most important one i.e., independence was Occupation is the intentionally
missing. acquiring sovereignty over such territory not under the
sovereignty of another State.
A state's sovereignty extends to its territory. The sovereignty of Discovery of new land gives a good title over it. Example:
the state over its territory and its people must be accepted as Australia, America, Canada etc.
undisputed. A state also requires recognition by other sovereign
New land occupied should be open, public and the State
states. Such recognition is provided by the community of states;
authority over it should be for a long continuous period
international organisations like the United Nations, which grant
Forceful occupation does not give rightful title to the
membership to sovereign states. The UN membership is a
occupier. Example: Iraq occupying Kuwait.
means of recognising state's sovereignty whenever a new state
Related Cases
comes into existence, its recognition by other states and by UN
is extremely important. Island of Palmas Arbitration (22 AJIL (1928) 379)
The term 'state' generally used for the units of the Indian Eastern Greeland Case (PCIJ 1923 Series A/B No 53
Republic or for any of the fifty states which make the United Andaman Islands Issue: Mere proximity to the land does
States of America, is a misnomer. None of them enjoys not give another country to claim title over it
sovereignty. Lack of sovereignty gives them no position or rank Prescription
as states. Only by courtesy, we call them as states.
Long, continuous, uninterrupted use and enjoyment since
Every state must have its population, a definite territory, a duly time immemorial gives a good title over such land
established government and sovereignty. Absence of any of The prescription should be public, peaceful and
these elements denies to it the status of statehood. uninterrupted
Validity of title grows over time
Occupation as a mode of acquisition of territory. Related Cases
Chamizal Arbitration (US vs Mexico)(1911)

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Accretion Lease
Accretion is the formation of new lands (islands) A State can lease a part of its territory to another on
because of natural acts such as volcanoes, floods etc some certain terms
Related Cases Example
Chamizal Arbitration (US vs Mexico)(1911) China leased Hong Kong to Great Britain for a period of
Cession 99 years
Some islands of Cyprus are leased to Great Britain
Cession is the surrender of a territory by one country to Pledge
another.
Cession can be voluntary or by a forceful act (such as a A State can pledge a land to another for a loan which
war) should be repaid it with interest on certain date.
Example Example
India ceased Berubari and gave it to Pakistan Republic of Geneo pledged the Island of Corsica to
Annexation / Conquest France
Plebiscite
Annexation is the process of adding an additional area
by a State with or without force Plebiscite is a decree of the people to join a territory with
Example another State
Example
China annexed Tibet
Iraq invaded and annexed Kuwait Maharaja of Kashmir made a treaty to add Kashmir to
Sikkim, an independent country, voted to join and get India but Pakistan claimed Plebiscite
annexed with India
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Purchase • 5 Occupation
• 6 Dereliction / Abandonment / Relinquishment
Purchase is the process of paying money or another
• 7 Revolt
territory by one country with another
Example • 8 Granting of independence
• 9 Lease
Soviet Russia sold Alaksa to USA • 10 Pledge
Newly Born States • 11 Plebiscite
• 12 Purchase
Some times territories get separated and they
themselves declare independence. 13 Vanishment / Disappearance
Example
Soviet Russia split into many individual countries Cession
Bangladesh declared its independence

Agreements Process in which a state loses a part of its territory which
is not acquired by another state
Colonies, as seen in those of Great Britain, declare Losing part, after severance, will gain a new and a
independence by way of an agreement separate international personality
Peaceful secession: Lativia, Lithuania, Estonia etc.
Modes of losing territory became independent from USSR
There are several modes / ways of losing state territories. This Secession by revolt: Bangladesh separated from
is a topic under International Law. Pakistan in 1971
Subjugation
• 1 Cession
Subjugation is the process in which one group of people
• 2 Subjugation
dominates another group by taking away their freedom. Some
• 3 Operation of Nature
times, it involves defeating the other by using force.
• 4 Prescription
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Operation of Nature Colonies generally acquire new and separate

Prescription
international personality after severance
Acquisition of sovereignty over a territory through continuous Lease
Pledge
and undisputed exercise of sovereignty over it during such a
Plebiscite
period as is necessary to create under the influence of historical
development the general conviction that the present condition of Plebiscite is the vote of the entire people, (that is, the
things is in conformity with international order. State of Arkansas aggregate of the enfranchised individuals composing a state or
v. State of Tennessee, Ark. & Tenn., 60 S.Ct. 1026, 1030, 310 nation,) expressing their choice to join or merge with another
U.S. 563, 84 L.Ed. 1362 territory.
Occupation Purchase
Vanishment / Disappearance
The taking possession of a newly discovered or conquered
country with the intention of holding and ruling it. Natural calamities such as earthquakes and volcanoes
Dereliction / Abandonment / Relinquishment might result in the loss of territories, particularly those of
islands.
An owner relinquishes / frees a territory and releases the A 25 km radius island called Ghormara Island near West
sovereign rights over it. Bengal, India was lost due to soil erosion
Two essential events Example
First: Abandonment of a territory
Colonies like India, USA became independent from Great
Second: Intention of giving up sovereignty over it
Britain by way of an agreement
Examples: Islands of Santa Lucia, Delagoa Bay
Revolt
Granting of independence What is territorial jurisdiction of the State? Who are
exempted
This is generally done to a colony by the imperialist / from territorial jurisdiction and to what extent?
metropolitan state State Jurisdiction[1]
A state loses territory without acquisition by another state
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State jurisdiction is the capacity of a State under International Legislative jurisdiction is the capacity of a State to prescribe
Law to prescribe and enforce the rules of law.[2] It is derived rules of law (the power to legislate).[4] A State has the
supremacy to make binding laws within its territory. It has a
from the State sovereignty and constitutes its vital and central legislative exclusivity in many areas. This supremacy is
feature. It is the authority of a State over persons, property and entrusted to constitutionally recognized organs.
events which are primarily within its territories (its land, its Although legislation is primarily enforceable within a State
national airspace, and its internal and territorial water). This territory, it may extend beyond its territory in certain
authority involves the powers to prescribe the rules of law, to circumstances. International Law, for example, accepts that a
enforce the prescribed rules of law and to adjudicate. The State may levy taxes against persons not within its territory as
powers related to State jurisdiction raise the question regarding long as there is a real link between the State and the proposed
taxpayer, whether it is nationality or domicile.[5]
the types and forms of State Jurisdiction.
The question of how far a court will enforce foreign
State jurisdiction may extend beyond its territory over legislation is a matter within the field of Private International Law
persons and things which have a national link. This extension (conflict of laws). It is common practice of States that a State
raises the question regarding the grounds or the principles upon enforces civil laws of another State, but it is rare to enforce the
which the State can assert its jurisdiction within and beyond its penal or taxes laws of another State.
boundaries.
The legislative supremacy of a State within its territory is well
Nevertheless, there are certain persons, property and events established in International Law. However, this supremacy may
within a State territory which are immune from its be challenged in cases where a State adopts laws that are
jurisdiction. This limitation to a State jurisdiction raises a contrary to the rules of International Law.[6] In such cases, a
question regarding the immunity from jurisdiction.
State will be liable for a breach of International Law. A State
The answers to the above raised questions are dealt with in may also be liable for a breach of International Law if it abuses
the following sections. its rights to legislate for its nationals abroad.
Section 1: Types of State Jurisdiction (2) Executive Jurisdiction
State jurisdiction implies the competence to prescribe rules Executive jurisdiction is the capacity of a State to act and
of law, the jurisdiction to enforce the prescribed rules of law and to enforce its laws within its territory.[7] Generally, since States
the jurisdiction to adjudicate.[3] Accordingly, it is of three types: are independent of each other and possess territorial
legislative jurisdiction, executive jurisdiction and judicial sovereignty, they have no authority to carry out their functions
jurisdiction. on foreign territory.[8] No State has the authority to infringe the
territorial sovereignty of another State. In this sense, a State
(1) Legislative Jurisdiction
cannot enforce its laws upon foreign territory without the
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consent of the host State; otherwise, it will be liable for a breach incidental.[13] In Civil Law countries, the usual ground for
of International Law. jurisdiction is the habitual residence of the defendant in the
country.[14] In some countries such as Netherlands, Denmark
(3) Judicial Jurisdiction
and Sweden, generally courts assert their jurisdiction if the
Judicial jurisdiction is the capacity of the courts of a State to defendant possesses assets in the country; however, in
try legal cases.[9] A State has an exclusive authority to create matrimonial cases the commonly accepted ground for
courts and assign their jurisdiction, and to lay down the jurisdiction is the domicile or residence of the plaintiff.[15]
procedures to be followed. However, in doing so, it cannot by
any means alter the way in which foreign courts operate. As far as criminal jurisdiction is concerned, the grounds or
principles of jurisdiction mostly invoked by States are as follows.
There are a number of principles upon which the courts of a
State can claim jurisdiction.[10] In civil matters, the principles (1) The Territorial Principle[16]
range from the mere presence of the defendant in the territory of The territorial principle is derived from the concept of State
a State to the nationality and domicile principles. In the criminal sovereignty.[17] It means that a State has the primary
matters, they range from the territorial principle to the jurisdiction over all events taking place in its territory regardless
universality principle. These principles are the subject of the of the nationality of the person responsible. It is the dominant
following section. ground of jurisdiction in International Law. All other State must
respect the supremacy of the State over its territory, and
consequently must not interfere neither in its internal affairs nor
Section 2: Principles of Jurisdiction[11] in its territorial jurisdiction.
The territorial jurisdiction of State extents over its land, its
Generally, the exercise of civil jurisdiction by courts of a national airspace, its internal water, its territorial sea, its national
State has been claimed upon far wider grounds than has been aircrafts, and its national vessels. It encompasses not only
the case in criminal matters.[12] The consequent reaction by crimes committed on its territory but also crimes have effects
other State with this regard has been much mild. This is partly within its territory. In such a case a concurrent jurisdiction
because public opinion is far more vigorous where a person is occurs, a subjective territorial jurisdiction may be exercised by
tried in foreign territory for criminal offences than if a person is the State in whose territory the crime was committed, and an
involved in a civil case. In addition, International Law does not objective territorial jurisdiction may be exercised by the State in
impose any restrictions on the jurisdiction of courts in civil whose territory the crime had its effect.[18]
matters. Although jurisdiction is primarily and predominantly territorial,
In Common Law countries such as the United States and it is not exclusive. A State is free to confer upon other States
United Kingdom, the usual ground for jurisdiction in civil cases is the right to exercise certain jurisdiction within its national
the service of a writ upon the defendant within the country, even territory.[19] States are free to arrange the right of each one to
if the presence of the defendant is temporary and exercise certain jurisdiction within each national territory. The
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most significant recent examples of such arrangements are: the controversy among States. However, in recent years this
1991 France-United Kingdom Protocol Concerning Frontier principle has come to be much acceptable by the international
Control and Policing, under which the frontier control laws and community in the sphere of terrorist and other internationally
regulations of each State are applicable and may be enforced condemned crimes.[28]
by its officers in the control zones of the other; the 1994 Israel- (3) The Protective principle[29]
Jordan Peace Treaty, under which the Israeli criminal laws are
applicable to the Israeli nationals and the activities involving The protective principle implies that a State may exercise
only them in the specified areas under Jordan’s sovereignty, jurisdiction over an alien who commits an act outside its
and measures can be taken in the areas by Israel to enforce territory, which is deemed prejudicial to its security and
such laws.[20] interests.[30] It is universally accepted, although there are
uncertainties as to its practical extent, particularly as regard to
the acts which may come within its domain.[31] It is justified on
(2) The Nationality Principle [21] the basis of protection of State’s vital interests, particularly when
the alien commits an offence prejudicial to the State, which is
The nationality principle implies that a State jurisdiction
not punishable under the law of the country where he resides
extends to its nationals and actions they take beyond its
and extradition is refused.[32]
territory.[22] It is based upon the notion that the link between
the State and its nationals is personal one independent of Although the protective principle is used as a secondary
location.[23] basis for jurisdiction and in a narrower sense than the territorial
Criminal jurisdiction based on the nationality principle is or the nationality principle,[33] it can easily be abused,
universally accepted. While Civil Law countries make extensive particularly in order to undermine the jurisdiction of other
use of it, the Common Law countries use it with respect to major States.[34] In practice however, this principle is applied in those
crimes such as murder and treason.[24] The Common law cases where the acts of the person which take place abroad
countries, however, do not challenge the extensive use of this constitute crimes against the sovereignty of the State, such as
principle by other countries. plots to through a government, treason, espionage, forging a
currency, economic crimes and breaking immigration laws and
A State may prosecute its nationals for crimes committed regulations.[35] This principle is often used in treaties providing
anywhere in the world; the ground of this jurisdiction is known for multiple jurisdictional grounds with regard to specific crimes,
as active nationality principle.[25] Also, it may claim jurisdiction such as the 1979 Hostage Convention and the 1970 Hague
for crimes committed by aliens against their nationals abroad; Aircraft Hijacking Convention.[36]
the ground of this jurisdiction is known as passive nationality
principle.[26] This last principle has been viewed as much (4) The Universality Principle[37]
weaker than the territorial or active nationality principle as a The universality principle, in its broad sense, implies that a
basis for jurisdiction.[27] It has been considered as a State can claim jurisdiction over certain crimes committed by
secondary basis for jurisdiction, and a matter of considerable any person anywhere in the world, without any required
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connection to territory, nationality or special State

interest.[38] Before the Second World War, such universal (1) Sovereign Immunity [43]
jurisdiction has been considered as contrary to International
Law by the Common Law countries, except for acts regarded as
crimes in all countries, and crimes against the international In International Law, sovereign immunity refers to the legal
community as a whole such as piracy and slave trade. rules and principles determining the conditions under which a
After the Second World War, universal jurisdiction has been State may claim exemption from the jurisdiction of another
universally recognized over certain acts considered as State.[44] Sovereign immunity is a creation of customary
international crimes. International crimes are those crimes International Law and derives from the principles of
committed against the international community as a whole or in independence and equality of sovereign States; since States
violation of International Law and punishable under it, such as are independent and legally equal, no State may exercise
war crimes, crimes against peace and crimes against jurisdiction over another State without its consent.[45] It is a
humanity.[39] In recent years, crimes such as Hijacking of limitation imposed by International Law upon the sovereignty of
aircraft, violation of human rights and terrorism, have been a State.
added to the list of international crimes. Although rules of sovereign immunity form part of customary
Today under the universality principle, each State and every International Law, today they are incorporated either in
State has jurisdiction over any of the international crimes international treaties, such as the 1972 European Convention
committed by anyone anywhere. on State Immunity,[46] or in national statutes of certain States,
such as the 1976 U.S Foreign Sovereign Immunities Act[47] and
the 1978 U.K State Immunities Act.[48]
Section 3: Immunity from Jurisdiction[40] Historically, the head of a State (a sovereign) was associated
The concept of jurisdiction is derived from the concept of with the State. Originally, both of them enjoyed under
sovereignty, and is connected with the principles of equality and customary International Law absolute immunity, in all areas of
non-interference in domestic affairs of other States.[41] The their activities, from the jurisdiction of another State. While the
grounds for jurisdiction are related to the duty of a State under head of a State continues today to enjoy such absolute
International Law to respect the territorial integrity and political immunity, even for his private activities, a State nowadays
independence of other States.[42] Immunity from jurisdiction is enjoys only qualified (restrictive) immunity. Under the qualified
grounded on this duty, and constitutes derogation from the host immunity, a State enjoys immunity only in respect of its
State jurisdiction. governmental acts (acts jure imperii), not in respect of its
commercial acts (acts jure gestionis).[49]
Under International Law, immunity from jurisdiction is
granted to certain persons, namely States (sovereigns) and their In practice, sovereign immunity arises on two levels.[50] The
diplomatic and consular representatives, and international first level concerns the immunity of a State from the jurisdiction
organizations. of courts of another State; courts of a State cannot adjudicate a
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claim against a foreign State. The second level concerns the enjoys complete immunity from the criminal jurisdiction of the
immunity of a State from the execution of enforcement receiving State;[54] also, he enjoys immunity from its civil and
measures undertaken by courts of another State. administrative jurisdiction, except in the case of real action
relates to private immovable property situated within the
Sovereign immunity covers the head of a State as well as the
receiving State, action related to succession matters in which he
State itself, its government, its departments, and its agencies. It
is involved as a private person, and action related to
embraces the acts of these entities, their property and
professional or commercial activity, in the receiving State,
assets. This immunity may, however, be voluntarily waived by a
State.[51] A State may waive its immunity from jurisdiction and outside his official functions.[55] No measures of execution may
be forced upon him, except in the above mentioned cases. He
consequently submits itself to the jurisdiction of a foreign court.
cannot be obliged to give evidence as a witness. His person is
However, such submission (waiver of jurisdictional immunity),
inviolable.[56] He cannot be arrested or detained. All
although gives the court of a State the competence to
adjudicate and enter a judgment against a foreign State, it does appropriate steps should be taken by the receiving State to
not authorize the execution of the court’s decision against such protect him and prevent any attack on his person, freedom and
State. In case of execution, another waiver is needed, namely a dignity. He is exempt from all dues and taxes, except in certain
waiver of immunity from execution. Waiver must be express; cases.[57] The premises of the mission and the private
however, implied waiver is accepted if indicated by the residence of a diplomatic agent as well as their archives,
circumstances. documents, papers, official correspondence and other property
are inviolable.[58]
A diplomatic agent enjoys immunity from the moment he
(2) Diplomatic Immunity[52] enters the territory of the receiving State on proceeding to take
up his post or, if already in its territory, from the moment when
his appointment is notified to the Ministry for Foreign
The rules of diplomatic immunity are the most accepted and Affairs.[59] He also enjoys such immunity when passes through
uncontroversial rules of International Law. They are essential or is in the territory of a third State on proceeding to take up or
for the maintenance and efficient conduct of relations between to return to his post, or when returning to his own country.[60]
States. Prior to the 1961 Vienna Convention on Diplomatic
Relations, diplomatic law, especially privileges and immunities The immunity granted to a diplomatic agent is immunity from
were based upon custom as well as contained in bilateral the jurisdiction of the receiving State and not from
treaties and national statutes. Nowadays, most of the modern liability.[61] He is not immune from the jurisdiction of the
law of diplomatic immunity is contained in the 1961 Vienna sending State. Moreover, he can be sued in the receiving state
Convention on Diplomatic Relations which both codified existing after a reasonable time elapses from the ending of his mission.
customary law and established others.[53] The immunity of a diplomatic agent from jurisdiction of the
Under this convention, “a diplomatic agent” (the head of the receiving State may be waived by the sending State.[62] The
mission and any member of the diplomatic staff of the mission) waiver must be express. However, such waiver of immunity
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from jurisdiction does not imply waiver of immunity in respect of Under the 1963 Vienna Convention on the Consular
the execution of a judgment; in such case, a separate waiver is Relations[69], a consular officer (the head of the consular post
required. Immunity may also be waived by the diplomatic agent and any person entrusted to exercise consular functions) is
himself, by submitting voluntarily to the jurisdiction of the court immune from an arrest or detention pending trial, except in the
of the receiving State.[63] case of a grave crime and pursuant to a decision by the
competent judicial authority.[70] He is immune from
Members of the family of a diplomatic agent, if they are not
nationals of the receiving State, likewise enjoy the same imprisonment or any other restriction on his personal freedom
immunity from jurisdiction.[64] The same immunity, with certain save in execution of a final judicial decision. If criminal
exceptions, is enjoyed by members of the administrative and proceedings are instituted against him, he must appear before
technical staff of the mission, together with members of their the competent authorities. The proceedings must be
families forming part of their respective households, if they are conducted in a manner that respects his official position and
not nationals or permanent residents of the receiving does not hamper the exercise of consular functions, and with
State.[65] Members of the service staff who are not nationals or the minimum delay.
permanent residents of the receiving State enjoy immunity only A consular officer is immune from the jurisdiction of the
in respect of acts performed in the course of their official judicial or administrative authorities of the receiving State only in
duties.[66] respect of acts performed in the exercise of consular
functions.[71] He is exempt from all dues and taxes, except in
certain cases.[72] In addition, the consular premises, archives
(3) Consular Immunity [67] and documents are inviolable.[73]
A consular officer enjoys the immunities from the moment he
A consular officer, like a diplomatic agent, represents his enters the territory of the receiving State on proceeding to take
State in the receiving State. However, unlike a diplomatic up his post or, if already in its territory, from the moment when
agent, he is not concerned with political relations between the he enters on his duties.[74] The same immunities are enjoyed
two States, but with a variety of administrative functions, such by members of the family of the consular officer from the date
as issuing visas and passports, looking after the commercial which he enjoys his immunities.[75]
interests of his State, and assisting the nationals of his State in The immunities of a consular officer may be waived by the
distress.[68] Thus, he is not granted the same degree of sending State.[76] The waiver must be express. However, the
immunity from jurisdiction as a diplomatic agent. waiver of immunity from jurisdiction for the purposes of civil or
Notably nowadays, many States combine its diplomatic and administrative proceedings does not imply waiver of immunity
consular services. Thus, a person who acts simultaneously as from the execution of a judicial decisions; in such case, a
a diplomat and consul enjoys diplomatic immunity. separate waiver is required. Immunity may also be waived by
the consular officer himself, by submitting voluntarily to the
jurisdiction of the court of the receiving State.[77]
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(4) Immunities of International Organizations[78] 1975 Vienna Convention on the Representatives of States in
their Relations with International Organizations of a Universal
It is uncertain which immunities and to what extent
Character.[90] This treaty applies to representatives of States
international organizations enjoy under customary International
Law; the position of this law is far from clear.[79] Actually, in any international organizations of a universal character,
immunities are granted to international organizations by treaties, irrespective of whether or not there are diplomatic relations
or by headquarters agreements concluded with the host State between the sending State and the host States.
where the organization is seated. Under this treaty, the representatives of States in universal
The purpose of immunity granted to international international organizations enjoy similar immunities to those
organizations is purely functional. Immunity is regarded as provided in the 1961 Vienna Convention on Diplomatic
functionally necessary for the fulfillment of their Relations. They enjoy immunity from criminal jurisdiction, and
objectives.[80] It is not a reflection of sovereignty, as it is in immunity from civil and administrative jurisdiction in all cases,
save for certain exceptions. The mission premises, archives,
case of a State, except only indirectly when aiming to protect
documents and correspondence are inviolable.
the interests of the member States of the organization.[81]
What is State Succession? Explain the rights and duties
Probably the most important example of treaties providing
arising
immunities to international organizations is the 1946 General
out of State Succession.
Conventions on the Privileges and Immunities of the United
Ans Succession is merger or absorbtion of one state by another
Nations,[82] which sets out the immunities of the United
state or states. State succession is distinguished from govt.
Nations and its personnel. The United Nations enjoys complete
succession. When succession takes place then a state loses
immunity from all legal process.[83] Its premises, assets,
itself fully or a part of its territory while in case of govt.
archives and documents are inviolable.[84] It is exempt from
succession only the organization of a govt or constitutional
direct taxes and customs duties.[85] Its staff is exempt from
structure changes.
income tax on their salaries.[86]
The rule of state succession was incorporated from the
The U.N Secretary General and the Assistant Secretaries Roman Law by Grotius. In Roman law when a person dies his
General enjoy diplomatic immunity.[87] Other staff members rights and duties are succeeded by his successor. A state may
enjoy limited immunities, such as immunity from legal process in lose part of its territory, or it may lose all of it. Loss of territory
respect of their official acts.[88] may result in the enlargement of one or more states. When a
succession situation arises, the point of chief legal interest is the
Representatives of member States attending the United
effect, on the international rights and obligations of the state or
Nations meetings are granted almost the same immunities as
states concerned.
diplomats, except their immunity from legal process applies only
to their official acts.[89]
Kinds of Succession. State succession are of two types (1)
An example of treaties providing immunities to Universal Succession (2) Partial Succession
representatives of States in international organizations is the
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duties of the former state.

(1) Universal Succession: If the legal identity of a community
is completely destroyed there is said to be universal succession (3) Debts: It depends on the discretion of succeeding state
of states. Universal succession takes place when a state is whether to pay or not to pay the public debts of the former state.
completely absorbed by another, either through subjugation or
through voluntary merger. Universal succession takes place The nationals of the former state lose their
(4) Nationality:
under the following circumstances nationality at the extinction of the state and becomes the
(a) When the territory of a state is forcibly annexed by other nationals of new state.
state.
(b) When a state voluntary merges into one or several states. (5) Laws: As far as the law of the former states are concerned,
(c) When one state is divided into several states and several civil law continues until it is changed by the succeeding state.
states are formed.
The successor state takes over
(6) Public funds and public property:
(2) Partial Succession: When as a result of civil war or war of the public funds and public property of the predecessor state.
liberation, a part of state breaks off and takes up an
independent position. Partial succession takes place under the What is Asylum? Explain the different kinds of Asylum
following circumstances recognised under International Law.
(a) When a part of the state revolts and after achieving freedom
becomes a separate international person. Ans Asylum means giving protection to an alien who is accused
(b) When a part of state is ceded to another state. of committing offences of political nature. Asylum is the
(c) When a state accepts the suzerainty or becomes a protection given to a person seeking it in a territory of another
protectorate of another state. state. Asylum is the right of a sovereign state to grant shelter
and protection to a foreigner and refuse his extradition. Persons
Rights and Duties arising out of State succession: genuinely seeking refuge from persecution are often reffered as
When a state takes the place of another state following rights asylum seekers.
and duties arise. Asylum involves the following two elements:-
No Succession takes place in respect

(1) Political Rights and Duties: (1) A shelter which is more than a temporary refuge. People
of political duties and rights. The succession state is not bound who live in fear of being tortured or killed by their govt., often
by the treaties of peace or neutrality entered into by the extinct seek asylum as do people who are persecuted for their religious
state. or political beliefs.
(2) A degree of active protection: On the part of authorities
In respect of land, rivers, roads, railways
(2) Local rights and duties: which have control over the territory of asylum.
etc., therefore the succeeding state succeeds the rights and
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According to Universal Declaration of Human Rights , "Everyone (ii) Asylum in the premises of International Institutions.
has a right to seek and enjoy in other countries asylum from There is no general right or practice regarding granting
protection." Asylum is closely connected with extradition and asylum in the premises of international institutions and of
both are interdependent, where asylum stops extradition begins. specialised agencies, even on humanitarian grounds. But
Asylum is generally motivated by human consideration and temporary refuge in extreme cases cannot be ruled out. e,g
involves an adjustment between the legal claims of state Najibullah, former president of Afghanistan sought refuge in UN
sovereignty and the demands of humanity. headquarters in Kabul, later he was killed by Taliban.
Kinds of Asylum:- (iii) Asylum on Warships.

The warships and public vessels enjoy immunity under
(1) Territorial Asylum: Territorial asylum is the one granted by international law and it has been claims that there exists a right
a state in its territory. Territorial asylum is not usually granted to of asylum on ships. Asylum in merchant ships cannot be
ordinary criminals. It is designed and employed primarily for the granted because merchant vessels donot have immunity.
protection of persons accused of political offences such as
treason, desertion, Sedition, religious refugees. A well known Discuss the various stages of concluding Treaty.
case is Dalai Lama of Tibet. According to Martin Dixon and Robert McCorquodale , treaties
The General Assembly said in the Declaration of territorial are evidence of the express consent of states to regulate their
asylum (1967) that the grant of asylum is a humanitarian act interests according to international law. It is important to
and it cannot be regarded as unfriendly by another state. But remember that treaties are the most important source of
adds, states granting asylum shall not permit persons engaged international law and are increasingly used to codify and
in activities contrary to the purpose and principles of the U.N. develop international law.
Definition and Meaning of the term ‘Treaty’
(2) Extra-territorial asylum.Asylum granted by a state not on
its physical territory, but on its notional territory, like in a legation (1) Oppenheim : International treaties are agreements, of a
and consular premises and on warships is called the extra- contractual character, between States, or organizations of
territorial asylum. States, creating legal rights and obligations between the parties.
(2) McNair : The term treaty means a written agreement by
(i) Diplomatic Asylum. The granting of asylum in the legation
(building inwhich diplomats work) premises is known as which two or more states or international organizations create or
diplomatic asylum. It should be granted as a temporary measure intend to create a relation between themselves operating within
to individuals physically in danger. It is an exceptional and
the sphere of international law.
controversial measure because it withdraws the offender from
the jurisdiction of the territorial state. Article 2(1)(a) of the Vienna Convention on the Law of Treaties,
1969 defines the term treaty: Treaty means an international
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agreement concluded between States in a written form and The intensive development of international relations in the last
governed by international law, whether embodied in a single decades has let to an explosion of treaties, both in the bilateral
instrument or in two or more related instruments and whatever and in the multilateral sector.
its particular designation.
Therefore, treaties have become the most important source of
The term ‘treaty’ is used in a generic sense rather than a international law and they occupy an important place in the
reference to a particular form of international agreement. The international community as regards the relations between
term treaty covers convention, agreement, arrangement, States.
protocol, exchange of notes, exchange of letters, etc.
International law makes no distinction between agreements The structure of the Kingdom of Belgium as a federal state and
referred to as treaties and other types of agreements. The name the fact that the Communities and Regions have been granted
authority in international affairs, including the "ius tractati" (the
or designation given to an agreement is in itself unimportant and
right to conclude treaties) have important consequences for the
of no legal consequence.
conclusion of treaties. Depending on the distribution of authority
between the federal authorities and the federated entities, a
There is no formal requirement in international law for a treaty to
distinction is made between exclusively federal treaties, treaties
come into existence Treaties usually are in written form and the which exclusively concern the Communities and Regions, and
Vienna Convention on the Law of Treaties applies only to those mixed treaties.
treaties which are in written form. However, it cannot be
categorically stated that oral agreements have no legal validity. The conclusion of treaties comprises a number of steps:
1. The negotiations after Accrediting of Persons by the

Conclusion of treaties
Contracting States
Treaties are international legal agreements which are usually For multilateral treaties the authorisation to negotiate, also
concluded in writing between States or other subjects of called credentials, is required. With such authority granted
international law with a view to regulating their mutual
to it, the Belgian delegation may take part in the activities of
relationships, irrespective of the name given to it (treaty,
a diplomatic conference, cast its vote and accept any texts
agreement, convention, protocol).
agreed upon at the conference.
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2. The signing & Adoption of the text King cannot ratify mixed treaties until the federal authorities
The signing implies that the treaty text is recognised as and all competent federated entities have given their
authentic and definitive and that no more changes are approval.
possible. Most treaties are authenticated by signing. A treaty 5. Publication and registration
may not be signed until the necessary authority has been The Act of approval and the text of the treaty are published
granted to the signatory or signatories by the holder(s) of in the Belgian Official Journal (Moniteur belge/Belgisch
the "ius tractati". For exclusively federal treaties it is the King Staatsblad).
who grants authority in the form of a Royal Decree. The In accordance with the prevailing international obligations
Prime Minister and the Minister of Foreign Affairs have the text of the treaty must also be registered with the
general power of attorney. For Community or Region Secretary General of the United Nations.
treaties the head of the government of the Community or 6. Additional steps could include
a. Authentication: In many cases authentication is
Region is the holder of the "ius tractati". He himself may not seen as a distinct step as the act of signature
sign the treaty or grant authority to another person. serves as authenticating and an expression of
3. Parliamentary approval and Consent of the States willingness to be bound by the treaty. However, in
cases where the unsigned text of a treaty is
All treaties concluded by the King must be approved by the
incorporated in the final act of a conference, or
House of Representatives (Chambre/Kamer) and by the where the treaty adopted in an international
Senate in the form of an Act of approval. organization is authenticated by the president of
the organization, authentication may be a separate
step.
All treaties concluded by the Region and Community b. Signature: The act of affixing the signature by a
governments must be approved by the respective Councils. State’s representative may express the consent of
The mixed treaties must be approved by all legislative the State to be bound by the treaty.
c. Exchange of Instruments
authorities concerned. Article 13 of the Vienna Convention provides the
4. The ratification & Entry into force consent of States to be bound by a treaty
To be internationally binding the treaty must be ratified by constituted by instruments exchanged between
them is expressed by that exchange when:
the King. The instrument of ratification is deposited with the
other party or with the depositary. It should be noted that the (a) the instruments provide that their exchange
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shall have that effect; or (b) it is otherwise • Discuss, with the same exception, and make
established that those States were agreed that the recommendations on any questions within the scope of
exchange of instruments should have that effect. the Charter or affecting the powers and functions of any
organ of the United Nations;
Explain the constitution, powers and functions of General • Initiate studies and make recommendations to promote
Assembly. international political cooperation, the development and
Functions and Powers of the General Assembly codification of international law, the realization of human
rights and fundamental freedoms, and international
Forum for multilateral negotiation collaboration in the economic, social, humanitarian,
cultural, educational and health fields;
Established in 1945 under the Charter of the United Nations, the • Make recommendations for the peaceful settlement of
General Assembly occupies a central position as the chief any situation that might impair friendly relations among
deliberative, policymaking and representative organ of the nations;
United Nations. Comprising all 192 Members of the United • Receive and consider reports from the Security Council
Nations, it provides a unique forum for multilateral discussion of and other United Nations organs;
the full spectrum of international issues covered by the Charter. • Consider and approve the United Nations budget and
establish the financial assessments of Member States;
It also plays a significant role in the process of standard-setting • Elect the non-permanent members of the Security
and the codification of international law. The Assembly meets in Council and the members of other United Nations
regular session intensively from September to December each councils and organs and, on the recommendation of the
year, and thereafter as required. Security Council, appoint the Secretary-General.
• Pursuant to its “Uniting for Peace” resolution of
Functions and powers of the General Assembly November 1950 (resolution 377 (V)) [PDF], the Assembly
may also take action if the Security Council fails to act,
According to the Charter of the United Nations, the General owing to the negative vote of a permanent member, in a
Assembly may: case where there appears to be a threat to the peace,
breach of the peace or act of aggression. The Assembly
• Consider and make recommendations on the general can consider the matter immediately with a view to
principles of cooperation for maintaining international making recommendations to Members for collective
peace and security, including disarmament; measures to maintain or restore international peace and
• Discuss any question relating to international peace and security (see "Special sessions andemergency special
security and, except where a dispute or situation is sessions”).
currently being discussed by the Security Council, make • While the Assembly is empowered to make only non-
recommendations on it; binding recommendations to States on international
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issues within its competence, it has, nonetheless, economic legislation resulted through the Uruguay Round of
initiated actions—political, economic, humanitarian,
social and legal—which have affected the lives of millions GATT negotiations.
of people throughout the world.
• The landmark Millennium Declaration, adopted in 2000, A remarkable feature of the Uruguay Round was that it paved
and the 2005 World Summit Outcome Document reflect the way for further liberalisation of international trade with the
the commitment of Member States to reach specific goals
to attain peace, security and disarmament along with fundamental shift from the negotiation approach to the
development and poverty eradication; safeguard human institutional framework envisaged through transition from GATT
rights and promote the rule of law; protect our common to WTO Agreement.
environment; meet the special needs of Africa; and
strengthen the United Nations.
The GATT 1947 and the WTO co-existed for the transitional
• The search for consensus
• Each Member State in the Assembly has one vote. Votes period of one year in 1994. In January 1995, however, the WTO
taken on designated important issues, such as completely replaced the GATT. The membership of the WTO
recommendations on peace and security and the election increased from 77 in 1995 to 127 by the end of 1996.
of Security Council members, require a two-thirds
majority of Member States, but other questions are
decided by simple majority. Features of the WTO:
• In recent years, a special effort has been made to The distinctive features of the WTO are:
achieve consensus on issues, rather than deciding by a i. Unlike the GATT, it is a legal entity.
formal vote, thus strengthening support for the
Assembly’s decisions. The President, after having
consulted and reached agreement with delegations, can ii. Unlike the International Monetary Fund (IMF) and the World
propose that a resolution be adopted without a vote. Bank (WB) it is not an agent of the United Nations.
Discuss the main features of World Trade Organisation. iii. Unlike the IMF and the World Bank, there is no weighted
Introduction: voting, but all the WTO members have equal rights.
The establishment of the World Trade Organisation (WTO) as
the successor to ,the GATT on 1 January 1995 under the iv. Unlike the GATT, the agreements under the WTO are
Marrakesh Agreement places the global trading system on a permanent and binding to the member countries.
firm constitutional footing with the evolution of international
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v. Unlike the GATT, the WTO dispute settlement system is The General Council (GC) is composed of the representatives
based not on dilatory but automatic mechanism. It is also of all the members. It is the real engine of the WTO which acts
quicker and binding on the members. As such, the WTO is a on behalf of the MC. It also acts as the Dispute Settlement Body
powerful body. as well as the Trade Policy Review Body.
vi. Unlike the GATT, the WTOs approach is rule- based and There are three councils, viz.: the Council for Trade in Services
time-bound. and the Council for Trade-Related Aspects of Intellectual
Property Rights (TRIPS) operating under the GC. These
vii. Unlike the GATT, the WTOs have a wider coverage. It councils with their subsidiary bodies carry out their specific
covers trade in goods as well as services. responsibilities
viii. Unlike the GATT, the WTOs have a focus on trade-related Further, there are three committees, viz., the Committee on
aspects of intellectual property rights and several other issues of Trade and Development (CTD), the Committee on Balance of
agreements. Payments Restrictions (CBOPR), and the Committee on
Budget, Finance and Administration (CF A) which execute the
ix. Above all, the WTO is a huge organisational body with a
functions assigned to them by e WTO Agreement and the GC.
large secretariat.
The administration of the WTO is conducted by the Secretariat
Structure of the WTO:
which is headed by the Director General (DG) appointed by the
The organisational structure of the WTO is outlined in the Chart
MC for the tenure of four years. He is assisted by the four
50.1.
Deputy Directors from different member countries. The annual
budget estimates and financial statement of the WTO are
The Ministerial Conference (MC) is at the top of the structural
presented by the DG to the CBFA for review and
organisation of the WTO. It is the supreme governing body
recommendations for the final approval by the GC.
which takes ultimate decisions on all matters. It is constituted by
representatives of (usually, Ministers of Trade) all the member
Objectives of the WTO:
countries.
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The purposes and objectives of the WTO are spelled out in the care of by the member countries in evolving a new economic
preamble to the Marrakesh Agreement. order.
In a nutshell, these are: Functions of the WTO:

1. To ensure the reduction of tariffs and other barriers to trade. The WTO consisting a multi-faced normative framework:
comprising institutional substantive and implementation aspects.
2. To eliminate discriminatory treatment in international trade
relations. The major functions of the WTO are as follows:
1. To lay-down a substantive code of conduct aiming at
3. To facilitate higher standards of living, full employment, a reducing trade barriers including tariffs and eliminating
growing volume of real income and effective demand, and an discrimination in international trade relations.
increase in production and trade in goods and services of the
member nations. 2. To provide the institutional framework for the administration of
the substantive code which encompasses a spectrum of norms
4. To make positive effect, which ensures developing countries, governing the conduct of member countries in the arena of
especially the least developed secure a level of share in the global trade.
growth of international trade that reflects the needs of their
economic development. 3. To provide an integrated structure of the administration, thus,
to facilitate the implementation, administration and fulfillment of
5. To facilitate the optimal use of the world’s resources for the objectives of the WTO Agreement and other Multilateral
sustainable development. Trade Agreements.
6. To promote an integrated, more viable and durable trading 4. To ensure the implementation of the substantive code.
system incorporating all the resolutions of the Uruguay Round’s
multilateral trade negotiations. 5. To act as a forum for the negotiation of further trade
liberalisation.
Above all, to ensure that linkages trade policies, environmental
policies with sustainable growth and development are taken
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6. To cooperate with the IMF and WB and its associates for International Court of Justice. The rules concerning how to
decide disputes relating to treaties are even found in a treaty
establishing a coherence in trade policy-making. themselves—the Vienna Convention on the Law of Treaties
(United Nations, 1969).
7. To settle the trade-related disputes.
Custom. Customary international law (CIL) is more difficult to
ascertain than the provisions of a written treaty. CIL is created
Explain the various sources of International law. by the actual actions of states (called “state practice”) when they
demonstrate that those states believe that acting otherwise
Since there is no world government, there is no world Congress would be illegal. Even if the rule of CIL is not written down, it still
or parliament to make international law the way domestic binds states, requiring them to follow it (Dinstein, 2004).
legislatures create laws for one country. As such, there can be
significant difficulty in establishing exactly what is international For example, for thousands of years, countries have given
law. Various sources, however—principally treaties between protection to ambassadors. As far back as ancient Greece and
states—are considered authoritative statements of international Rome, ambassadors from another country were not harmed
law. Treaties are the strongest and most binding type because while on their diplomatic missions, even if they represented a
they represent consensual agreements between the countries country at war with the country they were located in. Throughout
who sign them. At the same time, as stated in the statute of history, many countries have publicly stated that they believe
the International Court of Justice (ICJ), rules of international law that ambassadors should be given this protection. Therefore,
can be found in customary state practice, general principles of today, if a country harmed an ambassador it would be violating
law common to many countries, domestic judicial decisions, and customary international law.
the legal scholarship.
Similarly, throughout modern history, states have acknowledged
Treaties. Treaties are similar to contracts between countries; through their actions and their statements that intentionally
promises between States are exchanged, finalized in writing, killing civilians during wartime is illegal in international law.
and signed. States may debate the interpretation or Determining CIL is difficult, however, because, unlike a treaty, it
implementation of a treaty, but the written provisions of a treaty is not written down. Some rules are so widely practiced and
are binding. Treaties can address any number of fields, such as acknowledged by many states to be law, that there is little doubt
trade relations, such as theNorth American Free Trade that CIL exists regarding them; but other rules are not as
Agreement, or control of nuclear weapons, such as the Nuclear universally recognized and disputes exists about whether they
Non-Proliferation Treaty. They can be either bilateral (between are truly CIL or not.
two countries) or multilateral (between many countries). They
can have their own rules for enforcement, such as arbitration, or General Principles of Law. The third source of international
refer enforcement concerns to another agency, such as the law is based on the theory of “natural law,” which argues that
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laws are a reflection of the instinctual belief that some acts are Legal scholarship, on the other hand, is not really authoritative
right while other acts are wrong. “The general principles of law in itself, but may describe rules of law that are widely followed
recognized by civilized nations” are certain legal beliefs and around the world. Thus, articles and books by law professors
practices that are common to all developed legal systems can be consulted to find out what international law is.
(United Nations, 1945).
For instance, most legal systems value “good faith,” that is, the
concept that everyone intends to comply with agreements they
make. Courts in many countries will examine whether the
parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many
different countries take good faith into consideration in their
domestic judicial systems indicates that “good faith” may be
considered a standard of international law. General principles
are most useful as sources of law when no treaty or CIL has
conclusively addressed an issue.
Judicial Decisions and Legal Scholarship. The last two

sources of international law are considered “subsidiary means
for the determination of rules of law.” While these sources are
not by themselves international law, when coupled with
evidence of international custom or general principles of law,
they may help to prove the existence of a particular rule of
international law.
Especially influential are judicial decisions, both of the

International Court of Justice (ICJ) and of national courts. The
ICJ, as the principal legal body of the United Nations, is
considered an authoritative expounder of law, and when the
national courts of many countries begin accepting a certain
principle as legal justification, this may signal a developing
acceptance of that principle on a wide basis such that it may be
considered part of international law.
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form of political association is its most abstract quality: it is

a corporate entity.
Define State. Explain the essential elements of the State.
A state is an organised political community living under a Elements of State given elsewhere will suffice.
government. States may be sovereign and may enjoy a
monopoly on the legal initiation of force and are not dependent What is meant by recognition? Critically examine the
on, or subject to any other power or state. A state is a form various theories or recognition.
of political association or polity that is distinguished by the fact According to International Law, Recognition is the formal
that it is not itself incorporated into any other political acknowledgment of the status of an independent State by other
associations, though it may incorporate other such associations. existing states.
The state is thus a supreme corporate entity because it is not
incorporated into any other entity, even though it might be Every State has to have some essential features, called
subordinate to other powers (such as another state or an attributes of statehood, in order for other States to recognize
empire). One state is distinguished from another by its having its the State as independent.
own independent structure of political authority, and an States are considered as the principal persons in
attachment to separate physical territories. The state is itself International Law.
a political community, though not all political communities are The recognition of a state is often a political act of a
states. A state is not a nation, or a people, though it may contain state.
a single nation, parts of different nations, or a number of entire Recognition is not a conclusive proof of the existence of
nations. A state arises out of society, but it does not contain or the state.
subsume society. A state will have a government, but the state Theories of Recognition
is not simply a government, for there exist many more
Recognition of a State is more of a political concept than a legal
governments than there are states. The state is a modern
concept because there are no specific rules for recognition of a
political construction that emerged in early modern Europe, but
State.
has been replicated in all other parts of the world. The most
important aspect of the state that makes it a distinctive and new There are two popular theories laid down for the purpose of
understanding the nature of recognition:
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Constitutive Theory Palestine is recognized as country by 80 nations

Declarative or Evidentiary Theory thought it does not have a definite territory, population
Constitutive Theory and a definite Government.
According to this theory, recognition is a necessary condition for Isreal is formed in 1947 by the United Nations
statehood and personality. It is a process by which a political Organization. Within few hours, many countries too
community acquires personality and becomes a member of the recognized it. However, India recognized it in 1992.
family of nations. A State comes into existence through Declarative Theory or Evidentiary Theory
recognition only and exclusively. This theory states that declaration is a mere formality and has
Examples: no legal effect as the existence of a State is a mere question of
fact.
Poland and Czechoslovakia were recognized by the Every new state becomes a member of the family of
instrumentality of the Treaty of Versailles. nations ipso facto by its coming into existence. Recognition only
Germany was divided into two parts after the World War provides the evidence to this fact. This theory says recognition
II by a treaty is not important.
Korea was divided into two parts
Disadvantages
Disadvantages of the theory
The theory fails to explain legal rights and consequent of a
Recognition is political and diplomatic but not legal. This recognized state.
theory imposes an obligation on all member states to Example: Taiwan is a democratic country and is adjoining areas
recognize a State. Practically, no states wants to do where Chinese territory. Only few countries recognize Taiwan
something on obligation. yet it had business dealings with almost every country.
There is no law the obliges established states to Forms of Recognition
recognize new States. Express Recognition
Recognition of a State can be done by few States and
others might refuse. According to this theory, the recognition
should be done by all the States.
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An existing state recognizes another state by fact and not legal. State may have more than one Governments.
releasing a public statement by way of notification or a No exchange of diplomatic representatives takes places. State
declaration announcing the intention of recognition succession might not happen. Mere de facto recognition is not
Grant is expressed in written words sufficient to get UN membership.
Implied Recognition Example: Israel, Bangladesh, Taiwan, Sahawi Arab Republic
etc.
Does not release a formal state but recognizes the
De Jure Recognition
state by some acts which imply that the state is being
recognized. This is a permanent recognition which one granted cannot be
Unilateral Acts taken back or withdrawn by other States. It is regal and rightful.
State will have only one Governments. Exchange of diplomatic
State entering into bilateral treaty representatives takes places. State succession happens
establishes diplomatic relations with an unrecognized smoothly. de jure recognition by majority states his essential for
state. UN membership.
Collective Acts Related Case Laws
A new state is recognized collectively by Luther vs. Sagor (1921 (1) KB 456)
the existing states.
Modes of Recognition Discuss the sources of International Law Explain them.
Introduction:-The term sources refer to methods or procedure
There are two important modes of recognition: by which international law is created. A distinction is made
between the formal sources and material sources of law. The
De Facto Recognition
formal, legal and direct sources consist of the acts or thing
De Jure Recognition which gives that the content its binding character as law. The
De Facto Recognition
material sources provide evidence of the existence. The
This is a provision recognition and not a permanent one. i.e it sources of international law may be classified into five
can be withdrawn by other States at any time. It is the first step categories:- 1.International Conventions: - In the modern
towards becoming a recognized country. Recognition is only by
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period international treaties are the most important source of always precede a custom. ii) In certain cases usage gives rise
international law. This is because the reason that states have to international customary law. iii)When a usage is combined
found in this sources. Article 2 of the Vienna Convention on with a rule of customary law exists. iv)It is an important matter
the law of treaties 1969, a treaty is agreements whereby two or to see as to how international custom will be applied in
more states establish or seek to establish relationship between international law. Refer a case of West Rand Central Gold
them govern by international law. Prof. Schwarzenbergr, Mining Compy.v/s R-1905, court held that for a valid
“Treaties are agreements between subjects of international law international customs it is necessary that it should be roved by
creating a binding obligation in international law.” International satisfactory evidence that the custom is of such nature which
treaties may be of the two types: - a) Law making treaties:- may receive general consent of the States and no civilized state
these are the direct source of international law and the shall oppose it. Porugal v/s India-1960, ICJ pointed out that
development of these treaties was changing of the when in regard to any matter or practice, two states follow it
circumstances. Law making treaties perform the same functions repeatedly for a long time, it becomes a binding customary rule.
in the international field as legislation does in the state field. b) Still other resolutions amount to an interpretation of the rules
Treaty contracts:-As compared to law making treaties treaty and principles which he charter already contains and which are
contracts are entered into by two or more States. This may in binding upon States.
happen when a similar rule is incorporated in a number of treaty 3. General Principles of Law recognised by civilized States:
contracts. -Art.38 of ICJ provides that the Statute of International Court of
2.International Customs:-International customs have been Justice lists general principles of law recognised by civilised
regarded as one of the prominent sources of international law States as the third source of international law. In the modern
for a long time. However even today it is regarded as one of the period it has become an important source. This source helps
important sources of international law. Usage is an international international law o adapt itself in accordance with the changing
habit which has yet not received the force of law. STRAKE time and circumstances. On the basis of this view the general
Says, “Usage represents the twilight stage of custom, custom principle of law recognised by civilized States have emerged as
begins where usage ends. Usage is an international habit of a result of transformation of broad universal principles of law
action that has yet not received full legal attestation.” A custom applicable to all the mankind. Following are some important
in the intendment of law is such usage as that obtained cases relating to the general principles of law recognised by
the Force of law i.e.:- It is not necessary that the usage should civilized States:-1.R. v/s Keyn-1876, that I. Law is based on
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justice, equality and conscience which have been accepted by they could not be seized or apprehended during the state of
practice of States. 2. U.S v/s Schooner-held that I. Law should blockade.
be based on general principles. 5. Decisions or determinations of the organs of
4. Decisions of Judicial or Arbitral Tribunals and Juristic international institutions:-Art.38 of ICJ incorporated these
Works:- i) International judicial Decisions:-In the modern sources and also introduced one new source namely general
period international court of justice is the main international principles of law. In view of the strong reasons the decisions
judicial tribunal. It was established as a successor of the and determination of organs are now recognised as an
permanent court of I. justice. Art.59 of the statute of ICJ makes important source of I. Law. The resolutions of the organs may
it clear that the decisions of the court will have no binding force be binding on the members in regard to the internal matters.
except between the parties and in respect of that particular Organs of international institution can decide the limits of their
case. While in principle it does not follow the doctrine of competence. 6. Some other sources of International Law:-
precedent. Thus judicial decisions unlike customs and treaties Besides the above sources of I. Law, following are some of the
are not direct sources of law; they are subsidiary and indirect other sources of international law: - 1. International Comity:
sources of international law. State judicial decisions:- These mean mutual relations of nations. 2. State Paper:-In modern
decisions may become rules of international law in the period diplomats send letters to each others for good relations
following two ways:-1. State judicial decisions are treated as are also the sources of I. Law. 3. State guidance for their
weighty precedents. 2. Decisions of the state courts may officers: Numbers of matters are resolved on the advice of their
become the customary rule of I. Law in the same way as legal advises. 4. Reasons: has a special position in all the
customs are. Decisions of International Arbitral Tribunals:- ages.5. Equity & Justice: I t may play a dramatic role in
Jurists have rightly too pointed out that in most of the arbitral supplementing the law or appear unobtrusively as a part of
cases arbitrators act like mediators and diplomats rather than as judicial reasoning.
judges as in Kutch Award-1968. Juristic Works. Juristic What do you mean by subjects of International Law? Can
Works:- Art.38 of ICJ, the work of high qualified jurists are an Individual be a subject of International Law? If so in
subsidiary means for the determination of the rules of I. Law. In what circumstances.
Paquete Habana and Lola fishing vessels with Spanish flags on INTRODUCTION:-A subject of rules is a being upon which the
them in 1898 during war between America & Spain, held that rules confer rights, capacity and imposes duties and
responsibility. Generally it is the State who enters into treaties
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with each other and is thus bound by its provisions. This does have expressed the view that in the ultimate analysis of
not however mean that other entities or individuals ar outside international law it will be evident that only individuals are the
the scope of international law. International law applies upon subject of International Law. The main supporter of this theory is
individuals and certain non-state entities in addition to states. In Professor Kelson. Before keelson this view was expressed by
the modern era the international law has expanded a lot. Now Westlae, who opined, the duties and rights of the States are
this law is applied besides States and individuals also. only the duties and rights of men who compose them. Kelson
THEORIS REGARDING SUBJECTS OF INTERNATIONAL has analysed the concept of State and according to him it is a
LAW:- Following are the three main theories prevalent in regard legal concept which as a mixture of legal rules applicable to all
to the subjects of international law:-1. Only States are the the people living in certain area hence the obligations of a State
subject-matters of I. Law:-Certain jurists have expressed the in international law in the last resort are the duties of individuals
view that only International law regulates the behaviour of states of which state consists.
hence states are its subject matters. Percy E.Corbett says, “The In fact there is no difference between international
triumph of positivism in the late eighteenth century made the law and state law. In his view both laws apply on the individuals
individual an object not a subject of international law. and they are for the individuals. However he admits that the
CRITCISM: - The jurists have bitterly criticised as this theory difference is only this that the state law applies on individuals
fails to explain the case of slaves and pirates. The pirates are intermediately whereas international law applies upon the
regarded enemy of humanity and they can be punished by the individuals mediately.
State for piracy. In international arena by some ordinary treaties Criticism:-So far as logic is concerned the view of Kelson
community of states have granted certain rights. But those seems to be correct. An example is the Convention on the
jurists who say that states are the only subject-matter of settlement of invest Disputes between States and Nationals of
international law but are object of it. To say that individuals are the other states, 1965. By this treaty provision is made to settle
not the subject but object of the International law seems to be the disputes which arise by investment of capital by nationals of
incorrect. Prof. Schwarzenberger, has aptly remarked that this one state in other states. So it is clear that the view of Kelsen
view is controversial. He asserts that he individual who is the that international law is made applicable through the medium of
base of the society is only an object of the I. Law is not justified. a State seems justified.
2. Only individual are the subjects of International law: - 3. States individuals and certain non-state Entities are
Just contrary to the above theory there are certain jurists who Subjects: - This view seems to be justified as against the above
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views. In support of this, the following reasons may be rights have been conferred and duties have been imposed upon
advanced: - i) in modern times many treaties grants rights and the individuals. Some of the provisions are as under:-
duties to individuals. ii) In case Danzing Railway PCIJ-1928, in 1. Pirates: Under I. Law pirates are treated as enemies of
case the State Parties of a treaty intended to grant rights to mankind. Hence every state is entitled to punish them.
individuals then International Law would recognise such rights 2. Harmful acts of individuals: - For the amicable and cordial
and International Court will enforce them. iii). Geneva relation of the state it is necessary that the individuals should
Convention of Prisoners of War-1949 has also accorded certain not be involved in such acts as may prove detrimental for the
rights o prisoners of war. iv) According to Nuremberg Court good relations among states. A leading case ex parte Petroff-
since crimes against International Law are committed by 1971, wherein two persons who were found guilty of throwing
individuals the provisions of International Law can be enforced. explosive substances on the Soviet Chancery were convicted.
vi) Genocide convention- 1948:- In the convention also 3. Foreigners: to some extent international law also regulates the
individuals have been assigned directly certain duties. By article conduct of the foreigners. According to international law it is the
4 of this convention those individuals who commit international duty of each state to give to them that right which it confers
crime of genocide should be punished whether they are public upon its own citizens.4.War criminals: can be punished under
servants or ordinary person. international law. 5. Under some treaties individuals have been
By the above description it is clear that only states are not conferred upon some rights whereby they can claim
subject matter of Internationals Law but in modern times compensation or damages.
individuals international Institutions, Non-state entities minorities 4. 3. Discuss the basis and nature of International Law. Or
are also the subject-matter of International Law. Whether the International Law is law in the proper sense of
PLACE OF INDIVIDUALS IN INTERNATIONAL LAW: - As the term? Give reasons for your answer.
pointed out earlier individuals are also treated to the subjects of INTRODUCTION: - Austin in his definition of law has given
international law although they enjoy lesser rights than states more importance to sanction and fear in compliance of law. In
under international law. In the beginning they were accepted as case of International law there is neither sanction nor fear for its
subjects of international law as an exception of the general rule compliance hence it is not law in proper sense of the term. But
and number of jurists treated them as objects rather than the now the concept has changed and International Law is
subject. In the recent times several treaties concluded wherein considered as law. There is no consideration of fear or sanction
as essential part of law. If fear and sanction are considered
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necessary then there are sufficient provisions in UNO charter for way so that they can prove their conduct is as per international
compliance of the International Law as Law :- law.
According to Bentham’s classic definition international law is a · Starke while accepting International Law as Law has
collection of rules governing relations between states. Two of said, “that in various communities law is in existence without
the most dynamic and vital elements of modern international any sanction and legal force or fear and such law has got the
law. same acceptance as the law framed and enacted by state
1. In its broadest sense, International law provides normative Legislative Assemblies.
guidelines as well as methods, mechanisms, and a common · With the result of international treaties and conventions
conceptual language to international actors i.e. primarily International Law is in existence.
sovereign states but also increasingly international · U.N.O. is based on the legality of International Law. According
organizations and some individuals. toProf.Briely, “To deny the existence and legal character of
2. Although international law is a legal order and not an ethical International Law is not only inconvenient in practice but it is
one it has been influenced significantly by ethical principles and also against legal thoughts and principles.”
concerns, particularly in the sphere of human rights. · The states who are maintaining the international relations not
International is distinct from international comity, which only accept International Law as code of conduct but has also
comprises legally nonbinding practices adopted by states for accepted its legal sanction and force. Prof. Hart, “There are
reasons of courtesy. e.g. the saluting of the flags of foreign many rules in practice which are honoured by states and they
warships at sea.) are also bund by them, now the State Government accept the
INTERNATIONAL LAW AS REALLY LAW existence of International Law.” According to Jus Cojens,
According to Oppenheim, International Law is law in proper “International Law may now properly be regarded as a complete
sense because:- system.”
· In practice International Law is considered as law, therefore It is pertinent to mention here that from the above noted
the states are bound to follow them not only from moral point of contents it is clear that the following grounds are supportive for
view but from legal point of view also. accepting the International Law as law:-
· When states violate international law then they do deny the · Now so many disputes are settled not on the basis of moral
existence of international law but they interpret them in such a arguments but on the basis of International Treaties,
precedents, opinions of specialists and conventions.
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· States do not deny the existence of International Law. On the part of their law. From the above analysis it is revealed that the
contrary they interpret International Law so to justify their International Law is law. The International Law is law but the
conduct. question arises as to what are the basis of International Law.
· In some states like USA and UK international Law is treated as There are two theories which support it as real law:-
part of their own law. A leading case on the point is 1. Naturalist Theory:- The Jurists who adhere to this theory are of
the, Paqueta v/s Habanna-1900. Justice Gray observed that the view that International Law is a part of the Law of the
the international law is a part of our law and must be Nature. Starke has written, “States submitted to International
administered by courts of justice.” Law because their relations were regulated by higher law, the
· As per statutes of the International Court of Justice, the law of Nature of which International Law was but a part.” Law of
international court of Justice has to decide disputes as are nature was connected with religion. It was regarded as the
submitted to it in accordance with International Law. divine Law. Natural Laws are original and fundamental. They
· International conventions and conferences also treat incorporate the will of the Governor and governed and advance
international Law as Law in its true sense. their consent or will. That is why international law is also based
· The United Nations is based on the true legality of International on natural law.
Law. Vattel Furfendorf, Christain, Thamasius, Vitona are the
· That according to article 94 of UNO charter, the decisions of main supporters of this theory.It was viewed that natural law
the International Court of Justice are binding on all Parties is uncertain and doubtful but it is accepted that Natural Law has
(States). greatly influenced the growth and has given the birth to
· Customary rules of International Law are now being replaced International Law and its development. Most of its laws are
by law making treaties and conventions. The bulk of framed from Natural Law.
International Law comprises of rules laid down by various law- 2. Positivist Theory:- This theory is based on Positivism i.e. law
making treaties such as, Geneva and Hague conventions. which is in the fact as contrasted with law which ought to be.
On the basis of above mentioned facts and arguments, the The positivists base their views on the actual practice of the
International Law is law in true sense of the term. United States states. In their view customs and treaties are the main sources
and U.K., treat International Law as part of their law. In a case of International Law. According to German economist,
ofWest Rand Central Gold Mining Company Ltd., v/s Kind- Heagal, “International Law is the natural consent of states.
1905, the court held the International Law has considered it as a Without the consent of states, no law can bind the states. This
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consent may be express or implied.” As pointed out by Starke, should not be kept in the category of law. The international Law
“ International Law can in logic be reduced to a system of rules is not enacted by a sovereign King. It has also no sanctions for
depending for their validity only on the fact that state have its enforcement which is the essential element of municipal law.
consented to them.” As also pointed by Brierly, “The doctrine Holland further say that International Law ass the vanishing
of positivism teaches that International Law is the sum of rules point of Jurisprudence because in his view there is no judge or
by which states have consented to be bound.” As said by arbiter to decide International disputes and that the rules of the
Bynkeshock, “The basis of International Law is the natural I. Law are followed by States by courtesy.
consent of the states. Without the consent of states no law can Austin also subscribes to this view, Justice V.R.Krishna
bind the states.” Iyerformally member of Indian Law Commission has also
The critics of the above views say that consent is not always remarked, “It is a sad truism that international law is still the
necessary for all laws. There are some laws which are binding vanishing point of jurisprudence. This view is not correct. It is
on states irrespective of their consent e.g. Vienna Convention now generally agreed that Holland’s view that international law
on the Law of Treaties. Article 36 of the Treaty says that the is the vanishing point of jurisprudence is not correct.
provisions of the Treaty may be binding on third parties even if But now it is well settled that International Law is law. It is true
they have not consented to it. that International Law is not enacted by sovereign and has no
CONCLUSION: - Gossil Hurst says, “That International Law is agency for its enforcement. But it is true that it is a weak law. A
in fact binding on states, because they are states.” This is very majority of International lawyers not subscribe to this view is
much correct because every state in the world wants peace, based on the proposition that there are no sanctions behind
Law and order and that is possible only through existence of international Law are much weaker than their counterparts in
International Law. Therefore it is in natural interest of States to the municipal law, yet it cannot be successfully contended that
accept the existence of International Law. there are no sanctions at all behind international law.
The jurists who do-not consider international law as the
2. International Law is the vanishing point of vanishing point of jurisprudence say that there is difference
Jurisprudence. Explain. between state law and International Law. International Law
INTRODUCTION:- Holland has remarked that International cannot be enacted by the state but still there is agency for its
Law is the vanishing point of jurisprudence in his view , rules of enforcement. According to Dias, “International Law is obeyed
international law are followed by courtesy and hence they
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and complied with by the states because it is in the interests of vain. Then USA and her allies were permitted to compel Iraq to
states themselves.” honour resolution of Security Council. Consequently USA and
For this object they give the following her allies used force against Iraq and freed Quait.
arguments:- The same action was taken against North Korea and Cango
1. The judgements of International court of Justice are binding on during the year l948 and 1961. The Security Council imposed
States. penalty against Libya for shooting down American Plane in
2. If any state does not honour the order/judgement of International Lockerbie (Scotland) in 1992, consequently two citizens were
court of justice, the Security Council may give its also killed. The Security Council forced Libyan Government to
recommendation against that state for action. surrender two terrorists who were involved in this mishap and
3. The judicial powers of International Court of justice (Voluntarily Libya obeyed the order of S. Council.
and compulsory) have been accepted by the States. The greatest proof of its utility and importance is the fact that its
4. The judgement of International court of Justice has been successor the International Court of Justice established under
followed till date. the United Nations charter is based on the Statute of the
5. The system of enforcement i.e. sanctions and fear, has been Permanent Court of International Justice, the United Nations &
developed. Security Council Charter possess wide powers to declare
For example :- If there is a threat to international peace and sanctions against the states who are guilty of violence of the
security, under chapter VII of the U.N. Charter, the security provisions of the same under chapter-VII
council can take necessary action to maintain or restore Thus International Law is in fact a body of rules and principles
international peace and security. Besides this the decisions of which are considered to be binding by the members of
the International Court of Justice are final and binding upon the International Community in their intercourse with other. The
parties to a dispute. legal character of International Law has also been recognized in
The gulf war 1991 Iraq trespassed and acquired the whole 1970 Declaration on the Principle of International Law
territory of Quait in her possession by violation of International Concerning Friendly relation and Cooperation among states.
Law. The Security Council passed a resolution against Iraq and Conclusion:- On the basis of above discussion it may be
asked her to liberate Quait. But Iraq did not honour the concluded that the International Law is in fact law and it is
resolution of Security Council; hence therefore may economic wrong to say that it the vanishing point of Jurisprudence.
and political restrictions were composed against Iraq. But all in
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5. Lack in right to intervene in Internal Affairs :- As per

article 2(7) of UNO Charter, UNO is not competent to interfere in
the domestic matters of states. International law cannot
3. Discuss the weaknesses of International Law. What are the interfere in the domestic matters. Keeping in view these facts in
suggestions for removing/improving the International Law? several cases International Law proves to be ineffective and
INTRODUCTION: - International Law is said to be a “weak weak.
Law.” The weaknesses of International Law become evident 6. UNCERTAINTY:- There is one more reason behind the
when we compare it with Municipal Law. Its weaknesses weakness of International Law is its uncertainty. It is not certain
reflected in most of cases when these are compared with the as the laws of states as well as Municipal law. In addition to this
state law. The following are some of the weaknesses of it has not been able to maintain international peace and order.
International Law:- It is now very much clear from the above facts that International
WEAKN ESSES Law is weak. Paton says that , “ from institutional point of view
l. The greatest shortcoming of International Law is that it International Law is a weak. It has no legislative support though
lacks an effective executive authority to enforce its rues. there is international court of justice but that functions or takes
2. Lacks Of effective legislative machinery:- Since the case on the basis of mutual consent of states. It has no power
International Laws are based on international treaties and to get the decisions implemented.”
conventions. Therefore these are interpreted by the states According to Karbet, “The main course of weakness of
according to their self interest. International Law is the lack of social solidarity among highly
3. The International court of Justice lacks compulsory civilised states.
jurisdiction in the true sense of the term :- The International A case of Queen v/s Ken – 1876 :- There is no such institution
court of Justice which is situated in Hague (Netherland) is not or body which can enact laws for sovereign states and there is
authorised to take cases of all states. The cases can be filed in no court also which can enforce its decision and to bind the
this court with the mutual consent of concerned states. states.”
4. Due lack of effective sanctions, rules of International Law SUGGESTIONS FOR IMPROVING
are frequently violated:- There is no sense or fear of sanction INTERNATIONAL LAW
in the International Law with the results the laws are violated Despite the above mentioned weaknesses, it has to be noted
frequently by the States. that International Law is constantly developing and its scope is
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expanding. It is a dynamic concept for it always endeavours to 10. Last but not the least there must be basic recognition of the
adopt itself to the needs of the day. As compared to Municipal interest which the whole international society has in the
Law the International Law is works in a decentralised system. observance of its laws.
This is because of the facts that the International policies, Inter- CONCLUSION: - It is pertinent to mentioned here that the
dependence of states and the continuous growth of the concept General Assembly of UNO should made fruitful efforts in this
of International or world community. However the weaknesses direction. The above suggestions will make International Law
of the International Law may be improved in following ways:- equivalent to a Municipal Law to some extent. With the growth
l. The International Court of Justice should be given compulsory of Internationalism and the feeling of universal brotherhood
jurisdiction, in the true sense of term overall international international aw will also become effective and powerful.
disputes.
2.An International Criminal Court should be established to 1. International Law and Municipal Law are the same.
adjudicate cases relating to international crimes. Please discuss. Or
3. International Laws should be properly codified. Discuss the various theories regarding relationship
4. The machinery to enforce the decisions of the International between International Law and Municipal Law.
Court of Justice should be strengthened. INTRODUCTION: - Certain theories have been propounded to
5. An International Police system should be established to explain the relationship between International Law and
check international crimes and to enforce the rules & principles Municipal Law. In general it is notionally accepted that the state
of International Law. municipal law control the conduct of individuals within the state
6. An international Bureau of Investigation and prosecution while International Law controls the relations of nations. But
should be established for investigation of matters relating to now this concept has altogether been changed and the scope of
International crimes and the prosecution of International International Law has increased and it not only determines and
criminals. controls the relations of states but also the relations of members
7. The U.N.O. should be authorised to intervene in the internal of International community. Both the laws have co-hesion with
matters of states. each other and the relations between these two are more
8. For settlement of international disputes the use of judicial prominent. These theories have been put forward to explain the
precedents must be encouraged. relationship between International Law and State Law. Of all
9. There must be constant review of International Law. these theories as per following details, the most popular are the
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Monism and dualism and they are diametrically opposed to International law is fundamentally different from State Municipal
each other:- Law.”
1. MONISTIC THEORY:-It is also known in the name of Monism Angilotti has also recognised both the systems as two different
theory. According to the exponents of this theory International legal systems. According to him the fundamental principle of
Law and Municipal Law are intimately connected with each State Municipal Law in compliance of law enacted by state
other. International Law and Municipal Law are the two legislature while principle of International Law is Pacta Sunt
branches of unified knowledge of law which are applicable to Servanda i.e. to honour the agreements executed between the
human community in some or the other way. All Law are made states.”
for individuals. The difference is that municipal law is binding on The main basis of separation of these two systems is as
individual while International Law is binding on states. follows:-
Conclusively it can be said that the root of all laws is individual. · The main source of International Law is customs and treaties
According to Strake, “International Law is part of state while in case of Municipal Law are an enactment by sovereign
Municipal Law and therefore decisions can be given by power.
Municipal courts according to the rules of International Law.” · International Law controls the relations between state while
According to O.Kornell, “The objective of all laws is human state law controls the relations between state and individuals.
welfare whether it is state municipal law or International Law.” · The main cause of compliance of state law is fear of sanction
2. DUALISTIC THEORY: - In view of the dualistic theory writers, while the basis of compliance of International Law is the moral
International Law and state Law are two separate laws and liability and vested interests of states.
contained legal systems. The Monist view of law is part of 3. THEORY OF SPECIFIC ADOPTION: - International Law
philosophy according to which totality is a single structure. But cannot be directly enforced in the field of State Law. In order to
within the framework of the unitary universe is diversity of enforce it in the field of Municipal Law it is necessary to make its
phenomenon. International Law cannot become part of state specific adoption. The theory of adoption is based on Hague
municipal Law till the principles of International Law are applied convention-1970, Vienna Convention-1972 and Tokyo
under State Municipal Law. Convention-1975. In case of Jolly George v/s Bank of
According to Strake, “The main foundation of the proponents Cochin-1980: The court held that any agreement does not
of dualistic theory is that state Municipal Law and International become part of Indian constitution automatically, but the positive
Law are two different legal systems because the nature of commitment of state parties inspires their legislative action.”
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The use of International Law in different countries like India, that in cases of violation of human right the court should always
Britain, America and Russia. The rules of International Law and consider international documents and conventions and should
treads have been based in a different ways e.g. make them binding.
· INDIAN ADOPTION :- The International Law has been given British Adoption: In Britain International customs are treated
important place and mention the customary rules of as part of domestic law. British courts apply international
International Law in Article 51(6) of the Indian constitution with customs subject to the conditions (i) International customary
the following strive : rules are not inconsistent with British Laws (ii) they are
i) To increase international peace and security. accepted by lower courts when the limit of these customary
ii) To maintain just and good relations among states. rules are fixed by High Court. For use of treaties, the case of
iii) To increase faith and honour for use of International Law International Tin Council v/s Dep’t., of Trade and Industry-
treaty, obligations in natural relations and conduct of organised 1900: the Lord Council decided that in England treaties are not
people. binding automatically. It is binding only when the Parliament
iv) To act as mediator to encourage for settlement of makes it a part of English Law and incorporates in Law by
international dispute. enactment of law in this regard.
Some of the cases in this regard are : i) Shri Krishna Sharma Adoption in America: In America the courts interpret the state
v/s State of west Bengal-1964 : It was decided that whenever law in such a way that it does not go against International Law.
the court interprets the domestic Municipal Law, it should be The rules of customary International Law are treated as part of
taken into consideration that it does not go against International State Law. It has been done in the case of Paqueta Habana
Law. Case- 1900: It was held that International Law is part of our
ii) Magan Bhai, Ishwar Bhai Patel v/s Union of India-1969:- state Law and when any question or case relating International
Court accepted the implementation of Kutch Agreement Law is filed before courts of proper powers then the rights based
between India and Pakistan on the basis of correspondence on these questions should be determined and enforced.
between them. Similarly there are two other case viz: Vishakha 4. THEORY OF TRANSFORMATION:- The exponents of this
v/s State of Rajasthan-1997. And Apparel Export Promotion theory contented that for the application of International Law in
Council v/s A.K.Chopra-1999: In both of the cases the court the field of Municipal Law, the rules of international law have to
held that the right of sex equality of women has assumed the undergo transformation. Without transformation they cannot be
important rule of International Law and its convention, court said applied in the field of Municipal Law.
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According to Strake:- “That the rules of International Law can de jure recognition. Explain those situations when de facto
be applied when they are transformed in to domestic law, is not become de jure recognition. What are the disabilities of an
necessary in every case.” unrecognised state?
5.THEORY OF DELIGATION:- The theory of transformation has INTRODUCTION: - It can be said that through recognition, the
been criticised by the Jurists with the result of this craterisation it recognising state acknowledges that the recognised state
put forward a new theory called Delegation theory. The possesses the essential conditions of Statehood, a Government
supporters of this theory say that according to the statutory rules and Sovereignty, a definite territory and has a complete control
of International Law, the powers have been delegated to the over his territory. The community is independent. So
constitution of different states o ensure that how and what recognition has an important place in International Law. By
extent according to International Law. States to determine as to recognition only the state is accepted as a member of
how International Law will become applicable in the field of International community.
Municipal Law in accordance with the procedure and system DEFINITION:- Many of the Jurists has define ‘Recognition’ in
prevailing in each state in accordance with its constitution. different ways. Some of them have opined as under:
CONCLUSION:- Last but not the least in a recent case namely, Prof.L.Oppenheim :- “In recognising a State as member of
Chairman, Railway Board & others v/s Mrs. Chandrima Das and International community, the existing states declare that in their
others-2000: The supreme Court of India observed that the opinion the new state fulfils the conditions of statehood as
International Conventions and Declarations as adopted by the required by International Law.”
United Nations have to be respected by all signatory states and Fenwick: - “That through recognition the members of the
meaning given to the words in such declarations and covenants International community formally acknowledge that the new
have to such as would help in effective implementation of those state has acquired international personality.”
rights. In the words of Phillip C Jessup: - By recognition is such a
function of a state by which she accepts that any political unit
contains the essential elements of nationality.”
According to Prof. Schwarzenberger:- “ Recognition can be
UNIT-II absorbed easily by a procedure developing International aw by
1. What do you understand by recognition? What are the which the state have accepted the negative sovereignty of each
various kinds of it? Also differentiate between de facto and
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other and willing to develop their legal relations on the basis of Besides this it is also possible that the State recognised may
their natural relations.” refuse to solve its main problems.
According to Kelson: “A community to be recognised as an De facto recognition means that the state recognized
International person must fulfil the following conditions:- possesses the essentials elements of statehood and is fit to be
i) The community must be politically organised. a subject of International Law.
ii) It should have control over a definite territory. According to Prof.L.Oppenheim :- “The de facto recognition
iii) This definite control should tend towards performance. of a State or government takes place when the said State is free
iv) The community thus constituted must be independent. state and enjoys control over a certain fixed land but she is not
Thus the conditions of statehood are, People, a territory, a enjoying the stability at a deserved level and lacking the
government and sovereignty.” competence to bear the responsibility of International Law.”
TYPES OF RECOGNITION For example :- De jure recognition had not been given to
Recognition is of two types, De facto and de jure recognition. Russia by America and other countries for a long time because
The practice of States shows that in first stage the State Russia was not having competence and willingness to bear
generally give de facto recognition. Later on when they are responsibility of International Law. The same position was with
satisfied that the recognised state is capable of fulfilling China.
International obligations, they confer de jure recognition on it, In view of the Judge Phillips C Jessup, “De facto recognition
that is why sometimes it is said that de facto recognition of state is a term which has been used without precision when properly
is a step towards de jure recognition. The detail of de facto and used to mean the recognition of the de facto character of a
de jure recognition is as under:- government; it is objectionable and indeed could be identical
DE FACTO RECOGNITION: - According to with the practice suggested of extended recognition without
Prof.G.Schwarzenberger:- “When a state wants to delay the resuming diplomatic relations.”
de jure recognition of any state, it may, in first stage grant de The de facto recognition is conditional and provisional. If the
facto recognition.” state to which De Facto recognition is being given is not able to
The reason for granting de facto recognition is that it is fulfil all conditions of recognition then that recognition is
doubted that the state recognized may be stable or it may be withdrawn.
able and willing to fulfil its obligations under International Law. DE JURE RECOGNITION
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De jure recognition is granted when in the opinion of recognizing exchange of diplomatic representatives. De jure recognition is
State, the recognized State or its Government possesses all the complete implying full and normal diplomatic relations.”
essential requirements of statehood and it is capable of being a De facto recognition De jure recognition
member of the International Community.
According to Prof.H.A.Smith :- “ The British practiced shows 1. De facto recognition is De jure recognition is final.
that three conditions precedent are required for the grant of de conditional and Provisional.
jure recognition of a new State or a new Government. The three If the conditions are not De jure recognition cannot be
conditions are as under:- fulfilled by the concerned state withdrawn once given it is final.
i) A reasonable assurance of stability and performance. then it is withdrawn.
ii) The government should command the general support of To maintain political relation in The willingness is to be
the population. this recognition is not expressed for maintenance of
iii) It should be able and willing to fulfil its international necessary. political relations.
obligations. De facto recognition is the first
Further Recognition de jure results from an expressed step towards de jure De jure recognition is the final
declaration or from a positive act indicating clearly the intention recognition. step towards recognition.
to grant this recognition such as the establishment of diplomatic
relations. In Luther v/s Sagor-1921:- “It was held that there is no
According to Phillips Marshall Brown: - “De jure recognition distinction between de facto and de jure recognition for the
is final and once given cannot be withdrawn, said intention purpose of giving effect to the internal acts of the recognized
should be declared expressly and the willingness is expressed authority.”
to establish political relations.” Bank of Ethopia v/s National Bank of Egypt and Liquori-
DISTINCTION BETWEEN DE FACTO AND DE JURE 1937:- The court held that in view of the fact that the British
RECOGNITION government granted recognition to the Italian Government as
As observed by Prof.G.Schwarznbeer, “De jure recognition is being the de facto government of the area of Abyssinia which
by nature provisional and may be made dependent on was under Italian control, effect must be given to an Italian
conditions with which the new entity has to comply. It differs decree in Abyssinia dissolving the plaintiff bank appointing
from de jure recognition in that there is not yet a formal liquidator.”
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But in the case of Luther v/s Sagore-1921 the court held that execute treaty agreement any states.
as far as internal affairs of a state is concerned De facto with states granting such
recognition is interim and it can be withdrawn.” recognition.
CONSEQUENCES OF RECOGNITION
There are many political and legal advantages of getting CONCLUSION
recognition and many disadvantages of not getting recognition. Recognition of any state means, that state become a member
They may be said as disabilities of a state of not getting of International community and acquires International entity.
recognition. The following are the advantages of getting The state becomes entitled to all rights and special rights as a
recognition and disadvantages of not getting recognition. member of the International community. In the absence of
ADVANTAGES DISADVANTAGES recognition any state cannot establish her diplomatic and
1. Can establish diplomatic The states who did not get such political relations with any states and also unable to sign any
and commercial relation with recognition cannot establish treaty agreement with any state.
the states granting such relations.
recognition. The state which does not get 2. Define intervention? Under what circumstances
2. Recognised states can recognition cannot do so. intervention by one state in the affairs of another state
institute a suit in the courts of considered justified.
states granting recognition. Unrecognised states cannot INTRODUCTION: - Intervention in fact principally prohibited
3. Can institute suit relating to institute suit relating to property. under the provisions of International Law. According to
property situated in the courts International Law no state has the right to intervene in the affairs
of state granting recognition. The representatives of of another state for the purpose of maintaining or altering the
4. The representatives of unrecognised states cannot actual condition of thing. All members shall retrain in their
recognised states are entitled enjoy such relations. international relations from the threat or use of force, against the
to enjoy diplomatic and territorial integrity or political independence of any state or in
political communities in the any other manner inconsistent with the purposes of the United
territories of state granting Nations. So in this way when any state interferes in the internal
such recognition. The unrecognised states cannot and external affairs of other state, then as per International Law,
5. The recognised states can sign any treaty agreement with it becomes a matter of intervention.
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DEFINITION OF INTERVENTION: - In simple words what type of interventions are valid under UNO Charter.
intervention means to interfere directly or indirectly by one or However the following have been considered as the main basis
more states in the internal or external affairs of another state. of intervention:-
Prof.L.Oppenheim : “Intervention is dictatorial interference by a i. On the basis of self defence ii) On the basis of
state in the affairs of another state or the purpose of maintaining humanity iii) for application of treaty rights iv) to stop illegal
or altering the actual condition of things. Interference pure and intervention v) to maintain balance of power vi) to protect
simple is no intervention.” Hans Kelson pointed out that, individuals and their property vii) collective intervention viii) to
“International Law does not prohibit intervention in all protect International Law ix) at the time internal war.
circumstances. He further says that when one state intervenes All above basis of intervention have been recognised by the
in the affairs of another state through force, then as a reaction UNO except the followings :- i) for application of treaty
against this violation International Law permits intervention.” rights. ii) to stop illegal intervention iii) to maintain balance of
TYPES OF INTERVENTIONS:- It can be accessed from the power IV) to protect individuals and their property. V) to protect
above view of different Jurists regarding types of intervention International Law.
that there are so many types of Interventions. However some of Despite all these the following types of intervention are in use
them are as under:- and recognised:-
1. Military interference: It is done with military force.2. Political i) Intervention for self defence and self protection: - Self
Interference: is done by giving threatening information.3. defence and self protection is main traditional basis of
Dictatorial Interference: Is done in threatening tone.4. intervention. The intervention for self defence is rather limited as
Interference without right: It is done without any purpose & right. compared to that self protection. Oppenhein says that the use
5. Internal Interference: is done in interfering in the internal of power of intervention should have been made when it
affairs. 6. External Interference: It is also done in interfering in becomes necessary for self protection.” A famous case, The
external affairs. 7. Penal Intervention; 8. Subversive Caroline-1841: In this case Mr. Webster declared that the
Intervention: is done by another state through exciting the necessity of self defence should be instant overwhelming and
people against the state.9. Economic Intervention: is done by leaving no choice of means and no moment for deliberation.
creating obstacles in the trade. Art. 51 of UN Charter provide that the right of intervention is still
BASES OF INTERVENTION: - It is very much pertinent to available. Under this the state has the right to individual and
mention here that what is the basis of doing of intervention and collectively protection. But this right is available only when: -
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i.There has been attack on any state. ii) No step has been can decision to take collective action under Chapter 7 of UNO
taken by the Security Council for international peace and Charter. The action taken by UNO in 1961 in Kango is the
security. best example of intervention. This action was taken to stop
1. Intervention on the basis of humanity:- Every person on this internal war. CONCLUSION: - It is absolutely fact that every
earth has a right to live with human dignity. The state cannot state is entitled to manage willingly her own internal and
devoid her of this right. It the state behaves her citizens with external affairs and does not like interfere of another state.
cruelty then it is violation of International Law of human rights. Similarly it is also the duty of the other state not to interfere in
The action for intervention by UNO can be taken only in case the internal and external affairs of any state. International Law
when the degree of violation of human rights is such that if also like this. The main motto of the Security Council is
created danger for maintenance of International peace and maintaining peace in all the member states.
security. The best example of such intervention is by UNO in 6. Detail note on Acquisition and loss of territory.
1991 in Iraq for the protection of Kurds. INTRODUCTION:-The act of appropriation by a State by which
2. Collective Intervention:- In Chapter 7 of UNO Charter the it internationally acquires sovereignty over such territory as it is
Security Council is empowered to take action of collective at the time not under the sovereignty of another state. Further it
intervention. The collective intervention means just and legal is therefore an original mode or acquisition is that the
base of Modern times. UNO can intervene for maintenance of sovereignty is not derived from another State. Occupation can
world peace and security and to stop or avoid attack on the only take place by and for a State. The leading case on
following conditions:- the point is Island of Palmas Arbitrations, as regards the
i) When there is actual danger or possibility of danger for sovereignty over the Island of Palmas there was a dispute
international peace and security. ii) Actual attack has been between America and Netherlands.
made by the concerned state. The following are the modes of acquisition of territory: In
The use of such right was made by UNO in Korea in 1950, International Law a territory may be acquired by the following
Kango in 1961 and Iraq in 1991. 3. Intervention in case of means:-
internal war:- When in any state there is possibilities of Internal 1. Occupation: - Oppenheim said that, “Occupation is
war, the intervention is considered as legal and just basis such an action by which any State may obtain sovereignty on
because there are strong apprehensions of breach of that territory over which there is no sovereignty of any other
International peace. Under this situation the Security Council state.” According to Starke, “Occupation consists in
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establishing sovereignty over a territory not under the authority 5. Conquest: When a state gets victory over the other
of any other State, whether newly discovered or an un-likely State then the sovereignty over the conquered state is not
case abandoned by the State formerly in control.” established only by victory. For sovereignty it is necessary that
To decide whether on a territory occupation of a particular state the victor State establishes an effective authority over the
exists or not, it is seen whether that State has an effective territory of the conquered state through annexation. The
authority and control over that territory or not. A leading case on importance of this means is more or less extinct because of the
this topic Island of Palmas Arbitration, AJIl-1928. Charter of the U.N.O. by which intervention of one state on the
2. Accretion:-A territory by accretion may be obtained affairs of another is prohibited.
by a State. Sometimes by natural calamities also a territory 6. Lease: - The territory may also be acquired through
comes within the jurisdiction of a State through the same was lease. A state may give its territory o another state under lease
previously a portion of another State. For this here is no need of for a certain period. For the said certain period some rights of
any formal action or declaration. sovereignty are transferred to another. A good example of this
3. Prescription: - By prescription a territory comes type of lease is transfer of certain Islands on lease by Malta to
within a State when by continuous occupation and control of Great Britain for some years. Recently India had also leased
that territory for a long time creates a vested authority in the three Bigha to Bangladesh. Case Union of India v/s
controlling State and by passage of time that State becomes the Sukumar Sengupta-1990, it was held that the concessions
actual and real sovereign over that territory. Reference, given to Bangladesh over the said area amounted to servitude.
J.G.Strake Introduction to International Law-1989. 7. Pledge:-Sometimes there arise certain circumstances
4. Cession: - By cession also a territory comes within under which a State becomes compelled to pledge a part of its
the authority of a State. The cession may occur as a result of a territory in return of some amount of money for which it is in dire
war through pressure or it may be voluntary. The Cession will need. In this case also a part of sovereignty over the territory
be valid only when the sovereignty over the territory is concerned is transferred. For example in 1768 the Republic of
transferred from one state to another with the territory. while in Geneva had pledged the Island of Corsica to France.
accretion only one party may act. Under article 368 Parliament 8. Plebiscite:-Some writers of the view that through
may make a law to give effect to an implement the agreement in plebiscite also new State may be acquired. Although in
question covering Cession of a part of Berubari Union NO.12 as International Law there is no such rule but some modern writers
well as some of the Cooch-Behar Enclaves. have expressed the view that by plebiscite also a new territory
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can be acquired by a State. An example to this concern is in 1971Bangladesh was born by revolution. 6. Dereliction:-
of West Irian, Netherland and Indonesia both had put their When any state abandons a territory completely or relaxes its
claims on the territory of West Irian. UNO decided for voting authority over it then it loses that territory. In history there are
of the residents of west Irian. Irians voted in favour of Indonesia. lesser examples of this kind.
Now Irian is a part of the Indonesia. Example of
Kashmir, Govt. Of india have taken the position that since the 7. Short notes on Non State entities or State Succession.
merger of J&K with India several elections have taken place and INTRODUCTION: - State is the main subject of International
the people have voted. Law and it is very difficult to define the term State. In principle all
9. Through Independence obtaining of territorial States are equal and this equality is due to their international
sovereignty:-those States which were colonies after attaining personality. All states as international persons are equal.
independence get sovereignty over the territory which consisted According to Oppenheim when any question is to be decided
within the colonial setup. The difficulty in this context is that by consent each state is entitled to have one vote. Several
nationality and sovereignty in the concerned colonial territory efforts have been made to formulate and codify rights and
comes only after it attains independence. duties of States. Declaration of Rights and Duties of Nations
Mode of loss of State Territory:-1.According to Oppenheim, proclaimed by the American Institute of International Law.
“A territory of a State is lost through cession means if one state Different kinds of Non State entities:- Here are some different
gets some territory the same territory is lost by the other kinds of Non-State entities:-
state. 2. National Calamity: By operation of nature also 1. Confederation: - It is formed by independent States. Under
sometimes territory of a state is lost e.g. floods, by volcanic International Law confederation has no international personality.
events. 3.Defeat in War: if by conquering a State gets some The aim and objective of confederation is to establish a sort of
territory the same is lost by the defeated state. 4. Prescription: co-ordination among the States.
by occupation of a territory for a long time state gets that 2. Federal State:- Generally a federal state is formed by the
territory through prescription. Original States loses that very merger of two or more than two sovereign states. Under
territory by prescription. 5. Revolution: through revolution a international law a federal state is an international person. In a
new state comes into being so it may be said that the state Federal State generally there is a division of powers between
against which revolt occurred had lost its territory in the shape the central authority and states through a contribution. The main
of a new state. Example: Netherland revolted against Spain. & difference between a confederation and a Federal State is that
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while the Federal State in an International person under territory is lost while personality and legal responsibility remain
international law and Confederation is not an international unimpaired the process is described as partial succession. This
person. does not imply a total or partial succession respectively to the
3. Condominium:- When two or more states exercise rights over legal relation of the previous sovereign but is merely an
a territory it is called condominium. It exists when over a abbreviated way of defining the extent of the change.
particular territory joint dominion is exercised by two or more The following are the different kinds of state succession:-
external powers. New Hebrides is a good example of a 1. Universal Succession: - i) Universal succession occurs when
condominium. Both England and France exercised control and one state occupies or annexes the State completely or
had rights over the territory of New Hebrides between 1914 amalgamates fully whether voluntarily or through winning of war.
&1980. ii) When a state is divided into two or more parts or limits and
4. Vassal States:-A state which is under the suzerainty of another every such unit becomes a separate international entity or a
State is called a Vassal State. Its independence is so restricted state.
that it has no importance under international law. According to 2. Partial Succession: - i) Partial succession occurs when any
Starke, “Vassal State is one which is completely under the portion of a state revolts and separates itself and attains
suzerainty of another State. Internationally its independence is independence and becomes an international person or
so restricted as scarcely to exist at all.” state.Example of Bangladesh who revolted against Pakistan
5. Protectorate State: - Starke, “Although not completely and became independent separate state is a good
independent a Protectorate State may enjoy a sufficient illustration of partial succession.
measure of sovereignty to claim jurisdictional immunity in theii) Or when a state gets some portion of another state through
territory of another state. In the Lonian Ship Case-1855: the Cession.
court held that a State may remain international person eveniii) When a sovereign state amalgamates itself with some Union
though it is dependent upon some other State. of States and loses some portion of its independence or comes
KINDS OF STATE SUCCESSION:- State succession is of within the sovereignty or protection of any other state.
two types:-
i) Universal succession ii) Partial succession. 8. State Jurisdiction. What are the exemptions to the
If the legal identity of a community is completely territorial Jurisdiction of state?
destroyed there is said to be a total succession of States. If the
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INTRODUCTION:-State jurisdiction is the power of a state Illustration:-A French armed public ship flying the flag of France
under international Law to govern persons and property by its was in the British territorial waters when M, the Cabin boy of the
municipal law. It includes both the power to prescribe rules and ship committed the offence of murder by shooting dead D the
the power to enforce them. The rules of State jurisdiction captain of ship. Both M &D were British nationals. During the
identity the persons and the property within the permissible trial that took place that the British courts had no jurisdiction to
range of a state’s law and its procedures for enforcing the law. A try him for the murder committed on board a French cruiser
State may regulate its jurisdiction by legislation through its flying French flag. The defence cannot succeed because he
courts or by taking executive or administrative action. Thus the theory that the pubic ship of a state should be treated to be a
jurisdiction of a State is not always a co-incident with its territory floating portion of that state has long been discarded. Secondly
Case of KTMS Abdul Cader and others v/s Union of India- the offence was committed within the territory of Britain. Thirdly
1977, the court held that act has no extra-territorial application seeking good office of British police and medical aid amounted
and hence the State government has no power under the Act to to a waiver of the immunity. Thus M could be tried by British
pass orders of detention against persons who at the time when court.
the orders were made were not within India but were out-side its EXEMPTION TO THE TERRITORIAL
territorial limits. JURISDICTION
STATE JURISDICTION There are some exceptions of the exercise of jurisdiction which
In general every State has exclusive jurisdiction within its own definitely recognizes the protective jurisdiction of one state to
territory but this jurisdiction is not absolute because it is subject deal with foreign nationals acting in their country against its
to certain limitations imposed by international law. Thus in security and integrity:-
practice it is not always necessary that a State may exercise 1. DIPLOMATIC AGENTS:- Diplomatic agents enjoy certain
jurisdiction in its territory on the other hand in some privileges and immunities. They are immune from the
circumstances may exercise jurisdiction outside its territory. jurisdiction of the civil and criminal courts of the receiving State.
Though the relationship between jurisdiction and sovereignty is In this connection the old view was tha the diplomatic agents
close jurisdiction is not co-extensive with State Sovereignty. enjoy these immunities and privileges because they were
Each state has normally jurisdiction over all persons and things deemed to be outside the jurisdiction of receiving State. In the
within its territory. present time this theory has been discarded. Modern view
diplomatic agents enjoy certain immunities and privileges
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because of the special functions they perform. This was The jurisdiction of the nation within its own territory is
affirmed in a case Ex-parte Petroff-1971 by the Supreme Court necessary exclusive and absolute. It is susceptible of no
of Australia. limitation not imposed by it. In another case of Vavasseur v/s
2. Foreign Embassies: - Foreign embassies are often considered Krupp-1878, the plaintiff contended that the Japanese Govt.,
to be outside the jurisdiction of the State in which they are has violated his patent rights and therefore he demanded that
situated. For sake of convenience embassies are to be treated a the delivery of the goods by it be stopped. But the court had that
part of their home States. The correct view however is that it had no jurisdiction over the property of the foreign sovereigns
though not part of their home States embassies enjoys certain more especially with what we call the public property of the
immunities because of the special functions performed by the State of which he is sovereign.
diplomatic agents.
3. Foreign Sovereigns:-Foreign sovereigns are often treated to
be outside the jurisdiction of other states and possess many
privileges and immunities. In the case of Christina-1938, Lord
Wright observed that there are general principles of UNIT-III
International Law according to which a sovereign state is held to 9. What is Nationality? What are the various modes of
be immune from the jurisdiction of another sovereign State. acquiring and losing nationality? Is there any difference
The principle of immunity of immunity of Foreign Sovereign between nationality and citizenship in India?
was developed in the early years of the nineteenth century. In INTRODUCTION:- Starke, “Nationality has been defined as the
the case of the Schooner Exchange v/s McFaddon-1812, A status of membership of the collectively of individual whose acts
French Naval Vessel stayed in Philadelphia for repairs after a decision and policy are vouch safed through the legal concept of
storm. Some persons sought possession of the ship on the the State representing these individuals.”
ground that in reality the ship Schooner Exchange. An American Prof. Oppenheim, “Nationality of an individual the quality of
ship which they owned and was seized by French on the High being a subject of a certain State and therefore its citizens.”
Seas in 1810 in pursuance of a Napoleonic Decree. The U.S. Fenwick:-“Nationality is such a bond which binds an individual
Govt. however requested the court to refuse jurisdiction on the with a state and makes him a member of that specific State and
ground of sovereign immunity. Court held that the vessel was provides for right of protection from that State with an obligation
exempt from U.S. Jurisdiction. to abide the laws promulgated by that State,”
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Kelson:- “Citizenship or Nationality is the status of an individual court propounded the real and effective nationality doctrine. If
who is legally an member of a state and ornamentally he can be any person obtains nationality of two states then in case of
called a member of that community.” controversy between the two nationalities the nationality of that
IMPORTANCE OF NATIONALITY: - i) The right of protection of state shall be accepted with which the person fundamentally
diplomatic representatives are available because of nationality. has real and effective relationship.
ii) If any state does not restrain a person of its nationality from 3. By Resumption:-Sometimes it so happens that a person may
such disadvantageous action which are affecting other States lose his nationality because of certain reasons subsequently he
then the fist State shall be responsible to other states for such may resume his nationality after fulfilling certain conditions.
actions of its nationals. 4. By Subjugation:-When a State is defeated or conquered all
iii) Ordinarily states do not refuse to accept its nationals in the citizens acquire the nationality of the conquering State.
extradition. 5. Cession:-When a state has been ceded in another State all the
iv) One of the effects of the nationality is that the state has a people of the territory acquire nationality of the State in which
right to refuse extradition of own national. their territory has been merged.
vi) By the practice of many States, at the time of war the Enemy LOSS OF NATIONALITY
character is determined on the basis of nationality. 1. By Release:-In some states there are such legal provisions
MODES OF ACQUISITION OF NATIONALITY:- According to are available by which they grant permission to release their
International Law nationality can be obtained by following nationals from its nationality. For this type of release an
means :- application is necessary. If the application for release is
1. By Birth: - In the country in which a person is born he obtains accepted then the applicant is released from the nationality of
the nationality of that country by birth or at the time of birth that state.
person gets the same nationality which his parents are having. 2. By Deprivation:-Often in many states such legal provisions
2. By Naturalization: - By naturalization also nationality can be are available by which if a national of that state enters into
obtained. When an alien living in a country obtains the service of another state without the permission of home state.
nationality of that country it is called naturalization. He would loss nationality.
In Nottebohm case-1955, it was held that a State has no 3. By long residence abroad:- The loss of nationality may take
obligation in granting nationality to a person through place on the ground that the individual stayed abroad beyond a
naturalization if that person has no relations with that state. The
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certain time limit. Many states have such type of legal provisions
which terminates the nationality for the stay of beyond limit. 10. What do you mean by Treaty? How it is signed and what
4.By Renunciation:- It may also be the cause of loss of is the procedure of ratification.
nationality, when a person is having nationality of two or more INTRODUCTION:-In the modern period International treaties
states, he has to choose the nationality of one & has to have been the first and foremost source of international law.
renounce the nationality of other state. Whenever an international court has to decide an international
5. By Substitution:-In some states the nationality is terminated dispute its first endeavour is to find out whether there is an
by substitution. A person gets nationality of one state in place of international treaty on the point or not. In case there is an
other states. international treaty governing the matter under dispute the
DIFFERNCE BETWEEN NATIONALITY & decision of the court is based on the provisions of the treaty.
CITIZENSHIP International treaties occupy the same significant position in the
NATIONALITY CITIZENSHIP field of international law as the legislation occupies in the
municipal law.
The legal relationship which Denotes the relations between DEFINITION OF TREATY: - International treaty is an
exists between the nation & the person and the state law. agreement between two or more states under the international
Individual. law to create mutual relationships. According to Oppenheim,
The rights of citizenship are “International treaties are those agreements between the states
Through Nationality the civil & the sole concern of state law. which are of contractual nature and produce legal rights and
natural rights of a person may obligations.”
come. According to Starke, “Usually in all cases, the purpose of
All citizens may possess the treaties is to create binding nature of obligations on the parties
nationality of a particular state. It is not necessary that all the to the treaties.”
nationals may be the citizens According to Vienna Convention on treaties-1969, “Treaties
A person who possesses only of that particular state and contracts are document under which two or more states
nationality in a particular state Citizens are those persons under international law establish or try to establish their
may not possess all political who possess full political rights relations.”
rights. in the state.
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CLASSIFICATION OF TREATIES:- One of famous jurist Mc against a party only after the signature of the party or its
Nair has classified treaties in the following manner:- representative is obtained on the treaty papers.
1. Treaties having the character of conveyance. 4. Accession and Adhesion: - The practices of the States show
2. Treaty contracts. that by the process of accession and adhesion a state which is
3. Law making treaties: a) Treaties creating constitutional law just not a party to a treaty may become a party to it by signing it
as charter of ICJ. b) Pure law making treaties e.g. labour afterwards.
conventions negotiated by ILO. 5. Enforcement of a treaty:- Usually the enforcement of a treaty
4. Treaties akin to charter of incorporation e.g. treaty by which depends and begins according to the terms and provisions as
International Posta Union -1874 came into existence. laid down in the treaty itself. Many treaties commence after the
5. Vattel has classified treaties into four categories i.e. equal, signature is affixed by the authorised person while those which
unequal, real and personal. need ratification by the other states in certain number begin
6. Prof.Oppenheim has classified the treaties after the required number of states have ratified. The general
into two categories:- rule of International Law is that a treaty is enforceable against
1. Law making treaties. 2. Treaties made for other purposes. the parties only which have entered and signed a treaty.
HOW THE TREATIES ARE SIGNED 6. Registration & Publication:- It is necessary after the treaty
FORMULATION OF TREATIES: - For making the treaty of comes into force, it may be got registered and published. Under
binding nature, the following conditions are to be fulfilled: the provisions of article 102 of UNO charter. If it is not registered
1. Accreditation of persons on behalf of contracting parties:- with the UNO that in case of any dispute comes into existence
The intending parties of treaties should appoint persons as their for its settlement through the organs of UNO the treaty which is
representatives to negotiate on their behalf authoritatively for not registered cannot be referred to for the settlement of that
arriving at terms and conditions of a treaty. dispute.
2. Negotiations and adoption:- After due negotiations the terms 7. Basis of binding force of the International treaties:-
and conditions of a treaty are clunched and for its adoption a According to Angilotti, “Binding force of International treaty gains
decision is made by both the parties. its binding force.
3. Signature: - The representatives sign on each and every terms PROCEDURE OF RATIFICATION:- Ratification is a very
of a treaty to make it enforceable. A treaty becomes enforceable important processes ordinarily the terms and conditions of a
treaty. Treaty does not become enforceable without ratification.
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The President of a State or Chief of the Govt. Ratify the convicted of a criminal offence committed against the laws of
signatures of its representatives who negotiated for arriving at the requesting state.
the agreed terms and conditions of a treaty. According to Grotius:- “It is the duty of each state either to
punish the criminals or to return them to the States where they
have committed crime.”
Under International Law extradition is mostly a matter
of bilateral treaty. In principle each state considers it a right to
give asylum to a foreign national, thus there is no universal rule
11. What do you understand from the term of Extradition? of customary international law in existence imposing the duty of
Is it different from Asylum? Difference between Extra extradition. Afamous case Music director Nadeem who was
Territorial & territorial Asylum. accused of the murder of Gulshan kumar. Nadeem fled to
INTRODUCTION: - Each State exercises complete jurisdiction Britain. Lack of providing sufficient evidence England refused to
over all the persons within its territory. But sometimes there may extradite Nadeem.
be cases when a person after committing crime runs away to IS EXTRADITION IS DIFFERENT FROM ASYLUM
another country. In such a situation the country affected finds There is a great difference in between extradition and
itself helpless to exercise jurisdiction to punish the guilty person. Asylum. Extradition means delivery of an accused or a
This situation is undoubtedly very detrimental for peace and convicted individual to the state on whose territory he is
order. There is a social need to punish such criminals and in alleged to have committed or have been convicted of a
order to fulfil this social necessity the principle crime whereas inAsylum the active protection extended to a
of extradition has been recognised. political refugeefrom another state by a state which admits him
Meaning & Definition of Extradition:- Extradition is the on his request.
delivery of an accused or a convicted individual to the State on
whose territory he is alleged to have committed or to have been DIFFERENCE BETWEEN EXTRA TERRITORIAL &
convicted of a crime. TERRITORIAL ASYLUM:- In the asylum case Colombia v/s
According to Starke, “The term extradition denotes the Peris- ICJ-1950.
process whereby under treaty or upon a basis of reciprocity one
state surrenders to another at its request a person accused or Extra territorial Asylum Territorial Asylum
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12. What are the different classes of Diplomatic Agents?

In case of diplomatic asylum The refugee is within the Describe briefly their privileges & Immunities.
the refugee is within the territory of the state of refuge INTRODUCTION: - During the Ramayana and Mahabharata
territory of the state where the period some aspects of International Law were in their
offence was committed. developed stage. Examples of international law relating to
Territorial asylum is granted by diplomatic agents may be cited in this connection. The
Grant of diplomatic asylum a State in its own territory. permanent appointment of diplomatic envoys began from the
involves a derogation from the seventeenth centaury. The rights, duties, immunities and
sovereignty of that state. privileges etc., of the diplomatic in 18th. &19th. Centaury was
Every state has right in the mostly in the term of customary rules. The first great landmark
It withdraws the offender from exercise of its sovereignty to was the Congress of Vienna in 1815, wherein the customary law
the jurisdiction of the territorial admit into the territory such regarding diplomatic agents was clarified and codified. The
state and constitutes an persons as it deems advisable contents of Vienna Convention were adopted finally in 1961.
intervention in matters which without exercising the The Indian Parliament passed the Diplomatic Relations on the
are exclusively within the Declaration of Asylum. basis of Vienna Convention-1972 to give effect to this
competency of the state. convention. This law relating to the diplomatic and consular
The grant of territorial asylum affairs remains the strongest section of International
Grant of extra territorial asylum is an incident of territorial Law. DIFFERENT CLASSES OF DIPLOMATIC AGENTS:-The
is rather a derogation from the sovereignty itself. diplomatic agents have been classified according to their status
sovereignty. and functions. The first classification of diplomatic agent was
Each state has a plenary right made in the Congress of Vienna in- 1815 under which
Right to grant extra-territorial to grant territorial asylum diplomatic agents were classified under the following
asylum is exceptional and unless it has accepted some categories:-
must be established in each particular restriction in this 1.Ambassadors and Legates:-These are the first category of
case. regard. diplomatic agents and are the complete representatives of the
sovereignty states. Their designation is Ambassadors or
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Permanent Representatives of their respective countries of U.N. 2. Immunity from criminal jurisdiction of the court: - The
They are appointed by POP. courts of the state where the envoy is posted do not treat the
2.Ministers Pleni-potentiary and Envoys extraordinary:- Are envoys within its criminal jurisdiction. It ordinarily believed that
the diplomatic agents of second category and as compared to envoys will not violate the laws of the host country. But there
the diplomatic agents of the first category. They enjoy less are certain circumstances when the envoys lose their immunity
privileges and immunities. for example when they indulge in conspiracy against the host
3.Charge-d affairs: - They are the diplomatic agents of the last state.
category. The main reason for this is that they are not appointed 3. Immunity from civil jurisdiction:- the envoys also enjoy the
by the head of State but are appointed by the Foreign Minister immunities of civil nature also no suit is filed in the civil court of
of the State. Their status is considered below the Minister the host state against envoys. As per Vienna convention three
Resident. exceptions when immunity is not available: i) for any immovable
4.Minister Resident: - In the congress of Aix-la-Chappele- property within the jurisdiction of host state he has. ii) in a
1818, this category was added at category No.3, but it was matter of inheritance where the envoy is a successor or
again dropped by 1961 Convention. executor in his personal capacity. iii) The commercial activities
PRIVIEGES & IMMUNITIES OF DIPLOMATIC AGENS:-As of the envoy in personal capacity.
observed by the International Court of Justice on 15.12.79 in a 4. Immunity regarding residence:-His premises are inviolable
case of United States Diplomatic and Consular Staff in Tehran: and no search is allowed in his residence. If any person intrudes
For enabling states irrespective of their differing constitutional the premises of envoy to avoid arrest, it is the duty of envoy to
and social systems to achieve mutual understanding. One of the deliver such person to the host government to decide.
pillars of modern International Law is the diplomatic immunities 5. Immunity from presence in a court as a witness:- Any
of the Ambassadors. However the following are the immunities envoy cannot be compelled to give an evidence in any Court but
and privileges of the diplomatic agents:- he himself can waive this privilege and appear before a court.
1. Inviolability of the person as envoys: - The diplomatic 6. Immunity from Taxes:-Vienna convention provides this
agents are extended personal safety and security. If an envoy is immunity to envoys for payment of local taxes. But water,
attacked it is deemed that attack was on the country to which electricity, telephones etc. not included.
the envoy is belonging. a. Right to worship:-Within the premises of their embassy,
envoys are free to follow according to their choice the mode of
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worship. B)Right to exercise jurisdiction over the staff and Reprisal as compulsive means of settlement of
family in the embassy:- Envoys are free to exercise their International disputes.
jurisdiction over the subordinate staff & family in the Embassy to Introduction:- The primary purpose of the United Nation is that
keep the embassy going on. there should be complete peace and security in all the members
c. Right to travel freely in the territory of receiving state:- of UNO. First of all to seek a solution by negotiation, enquiry,
Vienna convention has provided a new right to envoys, they can mediation, conciliation, arbitration, judicial settlement or other
travel freely within the territory of host state and go anywhere. peaceful means of their own choice. In the other meaning when
d. Freedom of communication for official purposes:- Vienna it deems necessary call upon the parties to settle their dispute
convention-1961 the envoys have freedom to communicate with by such mean which shall be convenient to them. Compulsive or
his own state in context to their official work. coercive means of settlement of International disputes are as
e. Immunity from Military and other local obligations :- under:-
Vienna convention granted the immunity to envoys from military 1. Retorsion:- Retorsion is the technical term for retaliation. If any
and other local obligations of the host state. BASIS OF state behaves in unequal or in courteous way with the other
IMMUNITIES AND PRIVILEGES OF DIPLOMATIC AGENTS:- State, then the other state under the International Law gets the
Theory of extra territoriality: - According to Grotius diplomatic right of retorsion. In this way the meaning of Retorsion is
agents though physically present upon the soil of the country to retaliation. But in connection with Retorsion the State can
which they are accredited. It is justified base when they are initiate only that proceeding which is permitted by the
treated to remain for all purposes upon the soil of the country to International Law. For example in retorsion the diplomatice
which they represent. Functional Theory: - the reasons for channels can be terminated and immunities and privileges of
granting privileges and immunities to the diplomatic agents are the diplomat can be withdrawn together with the existing
that they perform special type of functions that is why they are economic subsidies. In the past Pakistan declared the diplomat
called functional and in modern times this theory is accepted as of Iraq as persona non grata and that diplomat had to leave
correct. Pakistan. Pakistan took this action because in the Embassy of
Iraq a lot of arms and ammunition was stored.
13: Discuss the various compulsive means of settlement of 2. Reprisal:- If the problem is not solved by Retorsion the States
International disputes. OR write notes on Retorsion, have the right under the International Law to resort to Reprisal
that is, in Retaliation the state can initiate such a proceeding
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that violator of the problem may be solved. The reprisal can be 5. Intervention: - Under article 2(4) of the U.N. Charter, the
resorted against a State when it has indulged in some illegal or principle of non-intervention in the internal affairs of a State has
inappropriate activity. For example Israel has resorted to been propounded. But according to Kelson, he has asserted
Reprisal many times against Lebnon and has bombarded those that International Law does not prohibit intervention in all
regions of Lebnon where from Arab Terrorists attacked on the circumstances, meaning thereby that in certain circumstances
territories of Israel. The members of UN cannot indulge in intervention is valid and legal.
Reprisals of such a type which endangers the international
peace and security. It is commonly accepted that Reprisal 14. Explain the purpose and principles of United Nation.
becomes justified and legal when the other country has How for United Nation has been successful in achieving its
committed an international tort or violated the norms of object?
International Law. In the provocative action and Reprisal there INTRODUCTION:-In the 20th. Century two world wars of highly
must be adequate proportion i.e. in proportion to the violation, destructive nature were fought. After the First World War the
the damage should be caused. The Reprisal is valid only when league of Nation was established. The main objects of the
demand for reparation was made and this was not fulfilled. League of Nations were established and maintain world peace
3. Embargo:- Embargo is also a kind of Reprisal. If the ship and security. The League of Nations failed in its mission. The
belongs to a State which has committed international tort or has large scale destructive effects of the second World War forced
committed some other international wrong and is available in the Nations of the world once again to establish some institution
the territorial waters of the State against which tort or wrong has of International Statute which may solve peacefully the disputes
been committed then such vessels can be restrained from amongst them and establish peace and security world over. On
travelling through that area as a matter of right by the other 26th.anuary, 1945 at Sanfransisco different Nations buttressed
State. the establishment of U.N.O. and after it’s the membership of the
4. Pacific Blockade: - By this method the outer boundary of a UNO increased substantially and now it stands at 192.
State is blocked peacefully. It is resorted during the peace time PURPOSES OF UNO: - The purposes and objects for which the
against a State. The coming and going ship is stopped. By UNO has been established are laid down in Article 1 of the
blockade of Ports of a country compelled that state to solve the Charter:-
problem. 1. To maintain international peace and security:- In the
preamble of the charter it is resolved to save the succeeding
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generations from the scourge of war and be united to achieve 1. Principle of sovereign equality: - Principle of Sovereign
these ends. To achieve the target the Organisation shall prevent Equality means that all the members of UNO are equal in the
or remove threat to the peace, breach of peace and acts of eye of International Law. No discrimination in dealings with them
aggression by taking effective and collective measures. The is permitted.
international problems were to be solved by peaceful means 2. Principle of honouring of obligations:- Being member of
under the norms provided in the International Law and canons UNO, they enjoy certain rights and benefits. Members are
of justice. required to fulfil in good faith the obligations assured by them in
2. To develop friendly relations among nations:- The friendship accordance with the Charter of UNO.
should be prosper on the basis of respect for the norms of equal 3. All nations shall settle their disputes through the principals
rights and equality in self determination of people. So this of peaceful settlement:-All the international disputes are to be
thought which developed friendly relations & universal peace settled by peaceful means with the results that peace and
among the nations was set-up by UNO. security and justice of any region may not endanger.
3. For removal of social, economic, cultural and human 4. Principle of non-use of force:-All members of UNO should
problems soliciting of international co-operation:- In the refrain from the use of force or threat of force against the
preamble of the charter of UNO it has been resolved to energize territorial integrity or political independence of any State.
the International machinery for the development of economic 5. Principle of assistance to the UNO:-It is the essential duty of
and social status of the people. A belief is to b developed in every members of UNO to support and assist to take action
promoting and encouraging the respect for human rights and against the State who is not following the UNO charter.
fundamental freedom for all without distinction to race, sex, 6. Principle for non-member States: - As provided in Art.2 of
language or religion. UNO charter that the States which are not members of UN, act
4. To make the UN an International Centre for harmonization:- in accordance with the principles of UN for maintaining
The general purpose of UNO has to be made a centre for co- international peace and security.
ordination of activities executed by different nations in this 7. Principle of non-interference in domestic affairs of a state: -
regards to avoid clashes in choosing priority, the UNO is to Art.2 (7) provides that the UN shall not intervene in the matters
harmonise the different activities of different nations to achieve which are essentially within the domestic jurisdiction of any
the main purpose. State or to compel any members to submit such matters
PRINCIPLES OF UNO:- There are following principles of UNO:- settlement.
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If all the above principles are faithfully followed by all the Ordinarily by neutral States it may be presumed that states
members of UNO, than there will be no doubt at all that this path which try to keep themselves aloof from the war of their
will lead to World Peace and the sayings of Kelson that UNO is neighbours. Neutrality is the attitude of impartiality adopted by
World Government will remain in existence. third States towards the belligerents and recognized by
HOW FOR U.N. HAS BEEN SUCCESSFUL IN ACHIEVING belligerents. Such attitude creating rights and duties between
ITS OBJECTS the impartial States and belligerents.
The United Nation has performed important functions in the DEFINITION: - According to JG Strake, “Neutrality denotes
social, economic and cultural fields as well as in the fields of the attitude of a state which is not at war with belligerents and
human rights. Besides this Uniting for Peace Resolution. There does not participate in hostilities. In its technical sense however
has been constant development of the powers and functions of it is more than an attitude denotes a legal status or a special
UN. United Nations has become the symbol of democratisation nature involving a complex of rights and duties and privileges at
in the world. International Law which must be respected.
Public opinion is an important factor which comes According to Lawrence: Neutrality is the status of such States
into play in the new international law. The Gulf War-1991 and which do not participate in war and maintain their relations with
the breaking up of the Soviet Union are likely to bring about the belligerents. Lawrence has emphasized only on the point that
revolutionary changes in the U.N. in the present Uni-polar world neutrality is such a position of a state by which they do not
(United State as the super power), majority of the member-State participate in a war and maintain their peaceful transactions and
are now demanding democratization of the world body. Un- journey with belligerents.
doubtly the United Nations has achieved its objects in ESSENTIAL ELEMENTS OF NEUTRALITY:-Impartial
maintaining the peace, security and canons of justice at the Attitude:-states who do not takes part in war and remain
International Level. impartial. Impartiality is an important element of Neutrality.
Recognition of the attitude of impartiality by the belligerent
15. Short notes on i) Neutrality ii) Blockade. States: - Impartiality of Neutrality State is accepted or
INTRODUCTION: - The term neutrality has been derived from recognized by the belligerents
the Latin word ‘Neuter’ which means impartiality. In wider sense Emergence of certain rights and duties because of impartial
by neutrality which can be means an attitude of impartiality attitude and its recognition by the belligerents.
adopted by the States who do not take part in the war.
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Development of the law of Neutrality:-During 18th.Century it further restriction on the freedom of neutral States as to trade
began to accept that the countries which do not participate in with belligerents.
war have a right to remain impartial. During 19th.Century Law of Essential elements of Blockade:-i) It should be done by men
Neutrality get more development and credit for this goes to of war. ii) The part of coast or whole coast of the enemy can be
America. blockade. iii) The ingress and egress of the ships should be
Rational basis of Neutrality: - Neutrality usually because of prevented through blockade. iv) Blockade is an act of
the following reasons: war. v)Blockade should be such that no discrimination is made
1. It helps in limiting the area of war. 2. It discourages war. 3. between the ships of different countries.
Because of it the States keep themselves aloof from the war. 4. Besides the above elements the additional necessary
It regulates the international relations. elements are also to follow :- i) Declaration and
Provisions regarding Neutrality in the Charter of UNO:- Notification ii) Geographical limits of the blockade area: It is
1. The right to commence a was suspended. 2. Wars which are essential to clarify the areas where the blockade will operate
fought even without violating the conventions/treaties entered and vessels and aircrafts shall be prohibited from
into the charter of UNO or where there is lack of no war treaty entering. iii) Exemption to neutral parts: Neutral ports should
then the member States have freedom to solve matters of be exempted from blockade. iv) Impartiality: There should not
disputes either by enquiry through Security Council.3. If any be any discrimination with the vessels of any Nation; the vessels
States begins a war after the violation of Art.12 to 15 of the UN should stop impartially by the country which has imposed
Charter then such war shall be deemed to be a war against all blockade. v) Effectiveness: For making blockade binding it is
the members of States of the UNO. necessary that it should be effective. For effectiveness it is
BLOCKADE essential to utilize the force and such measures which are fit for
DEFINITION:-According to JG Strake, blockade occurs when stopping the ingress and egress of the vessels.
a belligerent bars access to the enemy coast or part of it for TERMINATION OF BLOCKADE: The blockade comes to an
purpose of preventing ingress or egress of vessels or air-crafts end in the following:-
of all Nations.” And according to Oppenheim, “It is blocking 1. By termination of war.
men of war of the approach to the enemy coast or part of it for 2. The country which has imposed blockade can itself terminate
the purpose of preventing ingress and egress of vessels or it.
aircrafts of any nations.” The law as to blockade represents a
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3. When the blockade is continuously violated and it does not distance. 3. The conduct was in accordance with the rules and
remain effective then it is understood that blockade has customs of war.
terminated. Prohibited Means in Land Warfare:-War is contest between
4. The blockading State captures and occupies the blockaded Armed forces of two or more States wherein force can be used
coast or port. within certain limits laid down by Laws and Customs of war.
5. When blockading forces are vanquished by the enemy forces. International customs, treaties have prohibited certain means in
6. When the military vessels blockading area leave the land warfare. Hague Convention- 1907, the use of poisonous
blockaded coast it is understood that blockade has ended. weapons, gas, pollute, food material, poison water, projectiles
which cause unnecessary sufferings and pain etc., have been
16. State briefly the rules of Land and Aerial warfare. prohibited and it will also violation of the laws and customs of
INTRODUCTION: - The law of war consist of the limits set by war. During land war undefended cities, villages cannot be
International Law within which the force required to over-power attacked or destroyed. Killing of wounded and sick persons of
the enemy may be used and the principles there under the armed forces during war has also been prohibited. However
governing the treatment of individual in the course of war and they can be made prisoners of war. Ruses of War or
armed conflict. The objective of the rules of war is not to govern Stratagem : It is a permitted way during land warfare. By ruses
the war or regulate it as rules of games. of war or stratagem we mean that for the attainment of its
Law of Land Warfare:-The Hague Convention-1907 is a military objectives a belligerent State can misguide or mislead
landmark in respect of rules of land warfare. Hague convention the enemy. According to modern concept of war, war is not only
clarified the status of belligerent states and clarified the the test of physical strength but also intelligence provided
distinction between combatants and non-combatants. under article 24 of Hague Convention.Deceit:- Ruses of war
According to it the persons in the regular army having specific are permitted but in Deceit which is different from stratagem is
regiment number etc., are lawful combatants. Besides this is the contrary to International Law. For example, according to Hague
guerrilla’s volunteer’s corps etc., may also be included in the Convention, unauthorised use of flag or emblem of the armed
category of combatants provided they fulfil the following three forces has been prohibited. Flag of peace or emblem of red-
conditions:- cross cannot be used to deceive the enemy.ESPIONAGE:- The
1. They serve under a definite and specific authority. 2. They position of Espionage is very peculiar. On one hand I.Law
have specific emblem which may be recognised from recognises espionage during land war and on the other hand it
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also recognised the punishment can be awarded to those who things was declared illegal. 3. Bombardment of those cities and
are caught or apprehended while spying. Hague Regulation- villages which are away from the war areas was also
1907 has defined ‘spy’ as one who under false pretences obtain prohibited. 4. It was also laid down that bombardment should be
information. True spy acting in disguise or under the pretences made only for the achievement of military objectives.
is himself responsible. Washington Conference-1922: The use of aircrafts during the
LAWS OF AERIAL WARFARE First World War had made it clear that the rules of aerial warfare
INTRODUCTION: - In the modern times the importance of aerial formulated so far were not in conformity with the changing facts
warfare has greatly increased. Aircrafts were used in large scale and circumstances. In order to amend these rules and to frame
for the first time during the First World War. Since the First certain rules a conference was called in Washington in 1922:-
World War he aircrafts have been used in all the major wars that 1.Aiming of private aircrafts with weapons for self-defence was
formulation of definite rules of International Law to regulate their prohibited. 2. Bombardment to frighten civilian population was
use during war. Bombing by aircrafts causes excessive loss of prohibited.3.villages and towns and buildings which are
public and private property. In order to regulate use of aerial unconnected with or are away from war areas should not be
warfare many conferences have been called for from time to destroyed. 4. Building connected with religion culture or the
time and many rules have been formulated. philanthropic works cannot be destroyed. 5. Hospitals and other
LAWS OF AERIALWARFARE: - Brussels Conference of places where the patients are treated cannot be destroyed.
1874: laid down the following rules/laws: 1. Bombardments on Further the main object of The Hague Air warfare Rules was to
undefended cities, villages and towns was prohibited. 2. propose a legal regulation of the special problems raised air
Bombing of buildings and works relating to art, science, religion warfare.
and culture and philanthropic works was prohibited. 3. It was · Aerial Bombardment is legitimate only when directed at military
also laid down that the buildings of public utility should not be objectives.
destroyed during aerial warfare.4. Bombing on hospitals etc., · Belligerent non-military aircraft can be fired upon unless they
was completely prohibited. Hague Convention- 1899, approved make the nearest available landing on the approach of enemy
the rules formulated in Brussels Conference, 1874 and also laid military aircraft.
down the following additional rules: - 1.Bombing on civilian · Aerial bombardment for the purpose of terrorising the civilian
people and their property without just and appropriate cause population of destroying or damaging private property not of
was prohibited. 2. Bombardment for the realisation of money or military character of injuring non-combatants is prohibited.
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BASES OF INTERVENTION: - It is very much pertinent to

Intervention mention here that what is the basis of doing of intervention and
DEFINITION OF INTERVENTION: - In simple words what type of interventions are valid under UNO Charter.
intervention means to interfere directly or indirectly by one or However the following have been considered as the main basis
more states in the internal or external affairs of another state. of intervention: - i. On the basis of self defence ii) On the basis
Prof.L.Oppenheim : “Intervention is dictatorial interference by a of humanity iii) for application of treaty rights IV) to stop illegal
state in the affairs of another state or the purpose of maintaining intervention v) to maintain balance of power vi) to protect
or altering the actual condition of things. Interference pure and individuals and their property vii) collective intervention viii) to
simple is no intervention.” Hans Kelson pointed out that, protect International Law ix) at the time internal war. All above
“International Law does not prohibit intervention in all basis of intervention have been recognised by the UNO except
circumstances. He further says that when one state intervenes the followings :- i) for application of treaty rights. ii) to stop
in the affairs of another state through force, then as a reaction illegal intervention iii) to maintain balance of power IV) to
against this violation International Law permits intervention.” protect individuals and their property. V) To protect
TYPES OF INTERVENTIONS:- It can be accessed from the International Law.
above view of different Jurists regarding types of intervention
that there are so many types of Interventions. However some of
them are as under:-
1. Military interference: It is done with military force.2.
Political Interference: is done by giving threatening Relation between International Law and Municipal Law.
information.3. Dictatorial Interference: Is done in threatening There are certain theories have been propounded to explain the
tone.4. Interference without right: It is done without any purpose relationship between International Law and Municipal Law. In
& right. 5. Internal Interference: is done in interfering in the general it is notionally accepted that the state municipal law
internal affairs. 6. External Interference: It is also done in control the conduct of individuals within the state while
interfering in external affairs. 7. Penal Intervention; 8. International Law controls the relations of nations. But now this
Subversive Intervention: is done by another state through concept has altogether been changed and the scope of
exciting the people against the state.9. Economic Intervention: International Law has increased and it not only determines and
is done by creating obstacles in the trade. controls the relations of states but also the relations of members
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of International community. Both the laws have co-hesion with municipal Law till the principles of International Law are applied
each other and the relations between these two are more under State Municipal Law.
prominent. These theories have been put forward to explain the According to Strake, “The main foundation of the proponents
relationship between International Law and State Law. Of all of dualistic theory is that state Municipal Law and International
these theories as per following details, the most popular are the Law are two different legal systems because the nature of
Monism and dualism and they are diametrically opposed to International law is fundamentally different from State Municipal
each other:- Law.”
1. MONISTIC THEORY:-It is also known in the name of Monism Angilotti has also recognised both the systems as two different
theory. According to the exponents of this theory International legal systems. According to him the fundamental principle of
Law and Municipal Law are intimately connected with each State Municipal Law in compliance of law enacted by state
other. International Law and Municipal Law are the two legislature while principle of International Law is Pacta Sunt
branches of unified knowledge of law which are applicable to Servanda i.e. to honour the agreements executed between the
human community in some or the other way. All Law are made states.”
for individuals. The difference is that municipal law is binding on
individual while International Law is binding on states.
Conclusively it can be said that the root of all laws is individual.
According to Strake, “International Law is part of state
Municipal Law and therefore decisions can be given by
Municipal courts according to the rules of International Law.”
According to O.Kornell, “The objective of all laws is human
welfare whether it is state municipal law or International Law.”
2. DUALISTIC THEORY: - In view of the dualistic theory writers,
International Law and state Law are two separate laws and
contained legal systems. The Monist view of law is part of
philosophy according to which totality is a single structure. But
within the framework of the unitary universe is diversity of
phenomenon. International Law cannot become part of state
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For example: - De jure recognition had not been given to

Russia by America and other countries for a long time because
De-Facto- RECOGNITION
Russia was not having competence and willingness to bear
Recognition are two types, 1. De facto 2. de jure
responsibility of International Law. The same position was with
recognition.
China.
The practice of States shows that in first stage the State
In view of the Judge Phillips C Jessup, “De facto
generally give de facto recognition. Later on when they are
recognition is a term which has been used without precision
satisfied that the recognised state is capable of fulfilling
when properly used to mean the recognition of the de facto
International obligations, they confer de jure recognition on it,
character of a government; it is objectionable and indeed could
that is why sometimes it is said that de facto recognition of state
be identical with the practice suggested of extended recognition
is a step towards de jure recognition. The detail of de facto and
without resuming diplomatic relations.”
de jure recognition is as under:-
The de facto recognition is conditional and provisional. If the
DE FACTO RECOGNITION:- Prof. G. Schwarzenberger:-
state to which De Facto recognition is being given is not able to
“When a state wants to delay the de jure recognition of any
fulfil all conditions of recognition then that recognition is
state, it may, in first stage grant de facto recognition.”
withdrawn.
The reason for granting de facto recognition is that it is
doubted that the state recognized may be stable or it may be
STATE JURISDICTION
able and willing to fulfil its obligations under International Law.
State jurisdiction is the power of a state under international Law
Besides this it is also possible that the State recognised may
to govern persons and property by its municipal law. It includes
refuse to solve its main problems.
both the power to prescribe rules and the power to enforce
De facto recognition means that the state recognized
them. The rules of State jurisdiction identity the persons and the
possesses the essentials elements of statehood and is fit to be
property within the permissible range of a state’s law and its
a subject of International Law.
procedures for enforcing the law. A State may regulate its
According to Prof.L.Oppenheim :- “The de facto recognition
jurisdiction by legislation through its courts or by taking
of a State or government takes place when the said State is free
executive or administrative action. Thus the jurisdiction of a
state and enjoys control over a certain fixed land but she is not
State is not always a co-incident with its territory Case of KTMS
enjoying the stability at a deserved level and lacking the
Abdul Cader and others v/s Union of India-1977, the court
competence to bear the responsibility of International Law.”
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held that act has no extra-territorial application and hence the and medical aid amounted to a waiver of the immunity. Thus M
State government has no power under the Act to pass orders of could be tried by British court.
detention against persons who at the time when the orders were The jurisdiction of the nation within its own territory is necessary
made were not within India but were out-side its territorial limits. exclusive and absolute. It is susceptible of no limitation not
STATE JURISDICTION imposed by it. In another case of Vavasseur v/s Krupp-1878,
In general every State has exclusive jurisdiction within its own the plaintiff contended that the Japanese Govt., has violated his
territory but this jurisdiction is not absolute because it is subject patent rights and therefore he demanded that the delivery of the
to certain limitations imposed by international law. Thus in goods by it be stopped. But the court had that it had no
practice it is not always necessary that a State may exercise jurisdiction over the property of the foreign sovereigns more
jurisdiction in its territory on the other hand in some especially with what we call the public property of the State of
circumstances may exercise jurisdiction outside its territory. which he is sovereign.
Though the relationship between jurisdiction and sovereignty is
close jurisdiction is not co-extensive with State Sovereignty. DIPLOMATIC AGENTS
Each state has normally jurisdiction over all persons and things During the Ramayana and Mahabharata period some aspects of
within its territory. International Law were in their developed stage. Examples of
Illustration:-A French armed public ship flying the flag of international law relating to diplomatic agents may be cited in
France was in the British territorial waters when M, the Cabin this connection. The permanent appointment of diplomatic
boy of the ship committed the offence of murder by shooting envoys began from the seventeenth centaury. The rights,
dead D the captain of ship. Both M &D were British nationals. duties, immunities and privileges etc., of the diplomatic in 18th. &
During the trial that took place that the British courts had no 19th. Centaury was mostly in the term of customary rules. The
jurisdiction to try him for the murder committed on board a first great landmark was the Congress of Vienna in 1815,
French cruiser flying French flag. The defence cannot succeed wherein the customary law regarding diplomatic agents was
because he theory that the pubic ship of a state should be clarified and codified. The contents of Vienna Convention were
treated to be a floating portion of that state has long been adopted finally in 1961. The Indian Parliament passed the
discarded. Secondly the offence was committed within the Diplomatic Relations on the basis of Vienna Convention-1972 to
territory of Britain. Thirdly seeking good office of British police give effect to this convention. This law relating to the diplomatic
and consular affairs remains the strongest section of
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International Law. DIFFERENT CLASSES OF DIPLOMATIC and social systems to achieve mutual understanding. One of the
AGENTS:-The diplomatic agents have been classified pillars of modern International Law is the diplomatic immunities
according to their status and functions. The first classification of of the Ambassadors. However the following
diplomatic agent was made in the Congress of Vienna in- 1815 are the immunities and privileges of the diplomatic agents:-
under which diplomatic agents were classified under the 1. Inviolability of the person as envoys: - The diplomatic agents
following categories:- are extended personal safety and security. If an envoy is
1. Ambassadors and Legates:-These are the first category of attacked it is deemed that attack was on the country to which
diplomatic agents and are the complete representatives of the the envoy is belonging.
sovereignty states. Their designation is Ambassadors or 2. 2. Immunity from criminal jurisdiction of the court:- The
Permanent Representatives of their respective countries of U.N. courts of the state where the envoy is posted do not treat the
They are appointed by POP. envoys within its criminal jurisdiction.
2. Ministers Pleni-potentiary and Envoys extraordinary:- Are
the diplomatic agents of second category and as compared to DEFINE TREATY& ITS RATIFICATION
the diplomatic agents of the first category. They enjoy less In case there is an international treaty governing the matter
privileges and immunities. under dispute the decision of the court is based on the
3. Charge-d affairs: - They are the diplomatic agents of the last provisions of the treaty. International treaties occupy the same
category. The main reason for this is that they are not appointed significant position in the field of international law as the
by the head of State but are appointed by the Foreign Minister legislation occupies in the municipal law.
of the State. Their status is considered below the Minister DEFINITION OF TREATY: - International treaty is an
Resident. agreement between two or more states under the international
4. Minister Resident: - In the congress of Aix-la-Chappele- law to create mutual relationships. According to Oppenheim,
1818, this category was added at category No.3, but it was “International treaties are those agreements between the states
again dropped by 1961 Convention. which are of contractual nature and produce legal rights and
PRIVIEGES & IMMUNITIES OF DIPLOMATIC AGENS:-As obligations.”
observed by the International Court of Justice on 15.12.79 in a According to Starke, “Usually in all cases, the purpose of
case of United States Diplomatic and Consular Staff in Tehran: treaties is to create binding nature of obligations on the parties
For enabling states irrespective of their differing constitutional to the treaties.”
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According to Vienna Convention on treaties-1969, “Treaties 2. Negotiations and adoption:- After due negotiations the terms
and contracts are document under which two or more states and conditions of a treaty are clunched and for its adoption a
under international law establish or try to establish their decision is made by both the parties.
relations.” PROCEDURE OF RATIFICATION
CLASSIFICATION OF TREATIES:- One of famous jurist Mc
Nair has classified treaties in the following manner:- Ratification is a very important processes ordinarily the terms
1. Treaties having the character of conveyance. and conditions of a treaty. Treaty does not become enforceable
2. Treaty contracts. without ratification. The President of a State or Chief of the
3. Law making treaties: a) Treaties creating constitutional law just Govt. Ratify the signatures of its representatives who negotiated
as charter of ICJ. b) Pure law making treaties e.g. labour for arriving at the agreed terms and conditions of a treaty.
conventions negotiated by ILO.
4. Treaties akin to charter of incorporation e.g. treaty by which
Public International Law
International Posta Union -1874 came into existence.
Nature, Scope, Basis of Public International Law.
5. Vattel has classified treaties into four categories i.e. equal,
unequal, real and personal.
International Law assumes a society of nations and it governs
6. Prof.Oppenheim has classified the treaties
the relationship of the members of this society. A system
into two categories:-
composed solely of legal rules and principles binding upon
2. Law making treaties. 2. Treaties made for other purposes.
civilized nations only in their mutual relations.
HOW THE TREATIES ARE SIGNED
FORMULATION OF TREATIES: - For making the treaty of Professor Oppenheim has defined international law in the
binding nature, the following conditions are to be fulfilled: following words :
1. Accreditation of persons on behalf of contracting parties:- “Law of Nations or International Law is the name for the body of
The intending parties of treaties should appoint persons as their customary and conventional rules which are considered legally
representatives to negotiate on their behalf authoritatively for binding by civilized States in their intercourse with each other.”
arriving at terms and conditions of a treaty. In the ninth edition of Oppenheim's book the term 'international
law' has been defined as:
“International law is the body of rules which are legally binding
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on States in their intercourse with each other. These rules are comprehensive description of all the rules now acknowledged to
primarily those which govern the relation of Organisations and, form part of the subject.
to some extant, also individuals may be subjects of rights These developments are principally : (i) the establishment of a
conferred and duties imposed by International law.” large number of permanent international institutions or
But like all living laws, international law is also not static. It is organisations such as, for example the UN and the WHO,
constantly developing and restructured in the very process of its regarded as possessing international legal personality, and
application to the new situations. entering into relations with each other and with states; and (ii)
In the words of Brierly : “ The Law of Nations or International the present movement to protect human rights and fundamental
Law may be defined as the body of rules and principles of action freedoms of individuals. Both categories of developments have
which are binding upon civilized States in their relations with given rise to new rules of international law, and may be
one another.” expected to influence the growth of the new rules in the future.
In the words of J G Starke : “ International law may be defined Law is a process, and this is equally true for International Law. It
as that body of law which composed for its greater part of the is now well established that the principle components of
principles and rules of conduct which states feel themselves International Law is no more confined to binding customary and
bound to observe, and therefore, do commonly observe in their conventional rules but also consists of “general principle of Law”
relations with each other, and which includes also : which are constantly enriching the International Jurisprudence.
(a) The rules of law relating to the functioning of international The main object of international law has been to product an
institutions or organisations, their relations with each other, and ordered rather than a just system of international relations.
their relations with states and individuals; and Moreover, apart from seeing that states receive just treatment,
(b) certain rules of law relating to individuals and non-state the modern law of nations aims at securing justice for human
entities so far as the rights or duties of such individuals and non- beings. Justice is a primary purpose of the law of nations
state entities are the concern of the international community. emphasises its kinship to state law.
This definition goes beyond the traditional definition of Origins and development of international law
international law as a system composed solely of rules The modern system of international law grew to some extent
governing the relations between states only. In view of out of the usages and practices of modern European states in
developments during the last four decades, it cannot stand as a their intercourse and communications, while it still bears witness
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to the influence of writers and jurists of the 16th, 17th, and 18th In the 18th century, there was a growing tendency among jurists
centuries, who first formulated some of its most fundamental to seek the rules of international law mainly in custom and
tenets. treaties, and to relegate to a minor position the 'law of nature', or
With the growth of a number of independent states there was reason, as a source of principles. In the 19th century the works
initiated, the process of formation of customary rules of of jurists contributed significantly to the scientific treatment of
international law from the usages and practices followed by the subject. In the 20th century the permanent Court of
such states in their mutual relations. Jurists had begun to take Arbitration was established. The set up of International Court of
into account the evolutions of a community of independent Justice. Then there has been the creation of permanent
sovereign states and to think and write about different problems international organisations in the interests of peace and human
of the law of nations, realising the necessity for some body of welfare, such as the UN, ILO, etc.
rules to regulate certain aspects of the relations between such International Law, as we know it today, is that indispensable
states. The writings of early jurists reveal significantly that one body of rules regulating for the most part the relations between
major preoccupation of 16th century international law was the states, without which it would be virtually impossible for them to
law of warfare between states. have steady and frequent intercourse. This was a natural result
Dutch scholar, jurist, and diplomat, Grotius systematically of the growing interdependence of states, and of the vastly
treatise on the subject De Jure Beli ac Pacis (The Law of War increased intercourse between them. Modern exigencies called
and Peace). On account of this treatise, Grotius has sometimes for a speedier method of law making. As a result, there came
been described as the 'father of the law of nations'. It cannot, be into being the great number of multilateral treaties, 'law making
maintained that Grotius dealt fully with the law and practice of treaties' or 'international legislation'. Apart from these 'law
his day as to treatise, or that his coverage of the rules and making treaties' there was a remarkable development in the use
usages of warfare was entirely comprehensive. Groutius dealt of arbitration to settle international disputes, and at the same
repeatedly with actual customs followed by the states of his day. time the Permanent Court of International justice came by its
At the same time Grotius was theorist who espoused certain decisions to make an important contribution to the growth of
doctrines. One central doctrine in his treatise was the international law. The work of codifying and progressively
acceptance of the 'law of nature' as an independent source of developing international law at present being sponsored by the
rules of the law of nations, apart from custom and treaties. UN with the expert aid of a body known as the International Law
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Commission. international law, they are not true. Customary rules as a source
Theories as to Basis of International Law. of international law are diminishing and they are being replaced
“Whether international Law is a law in the true sense of the term by law-making treaties and conventions. Thirdly “the
or not?” authoritative agencies responsible for the maintenance of
One theory which has enjoyed wide acceptance is that International intercourse do not consider International law as
international law is not true law, but a code of rules of conduct of merely a moral code.” Lastly, the United Nations is based on the
moral force only. The English writer on jurisprudence, John true legality of international law.
Austin, must be regarded as foremost among the protagonists Certain countries indeed in practice expressly treat international
of this theory. Austin's attitude towards international law was law as possessing the same force as the ordinary law binding
coloured by his theory of law in general Applying his general their citizens. The legally binding force of international law has
theory to international law, as there was no visible sovereign been asserted again and again by the nations of the world in
authority with legislative power or indeed with any determinate international conference. In connection with the Austinian
power over the society of states, and as in his time the rules of theory, it is useful to bear in mind the difference between rules
international law were almost exclusively customary, Austin of international law proper, and the rules of 'international
concluded that international law was not true law but 'positive comity'. The former are legally binding, while latter right of each
international morality' only, analogous to the rules binding a club state to receive courtesy from others. The essence of these
or society. He further described it as consisting of 'opinions or usages of 'comity' is thus precisely what Austin Attributed to
sentiments current among nations generally. international law proper, namely a purely moral quality.
Starke, who has also criticised the Austinian concept of law, Oppenheim regards international law as law because of the
subscribes to the view that International Law is really law. In this following two reasons : In the first place, international law is
connection, he has put forward four main arguments. In the First constantly recognised as law in practice. Secondly, while
place, it has been established by modern historical breaking international law, States never deny its legal existence.
jurisprudence that in many communities, a system of law On the contrary they recognise its existence and try to interpret
existed and was being observed though such communities international law as justifying their conduct.
lacked a formal legislative authority. Secondly Austin's views Cumulative evidence against the position taken by Austin and
might have been correct for his time but in view of present day his followers should not blind us to the fact that necessarily
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international law is weak law. Existing International legislative by Grotius and his followers the internal Law of Nations,
machinery, operating mainly through law-making conventions, is inasmuch as it is binding upon the conscience of nations.
not comparable in efficiency to state legislative machinery. Several writers call it the natural Law of Nations.
Theories as to 'Law of Nature' Because of its rational and idealistic character, the conception
The concept of the 'law of nature' exercised a signal influence of the 'law of nature' has had a tremendous influence – a
on international law. Several theories of the character and beneficent influence- on the development of international law.
binding force of international law were founded upon it. In the Positivism
beginning, Law of Nature was connected with religion. It was Positivism is based on law positivism i.e. Law which is in fact as
regarded as the divine law. Grotius expounded the secularised contrasted with law which ought to be. According to the
concept of Law of Nature. According to him, natural law was the positivists, law enacted by appropriate legislative authority is
'dictate of right reason'. His followers applied the law of nature binding. The positivists base their views on the actual practice of
as an ideal law which was founded on the nature of man as a the States. IN their view, treaties and customs are the main
reasonable being. sources of International Law. The 'positivists' hold that the rules
Some writers adopting the view that international law derived its of international law are in final analysis of the same character as
binding force from the fact that it was a mere application to 'positive' municipal law (ie State law) inasmuch as they also
particular circumstances of the 'law of nature'. In other words, issue from the will of the state. They believe that international
states submitted to international law because their relations law can in logic be reduced to a system of rules depending for
were regulated by the higher law- the 'law of nature' of which their validity only on the fact that states have consented to
international law was but a part. 'Natural Law' was invoked also them.
in order to justify the punishment of offenders, guilty of the Positivism begins from certain premises, that the state is
grosser and more brutal kind of war crimes metaphysical reality with a value and significance of its own,
It contains those precepts which the natural law dictates to and that endowed with such reality the state may also be
States, and it is no less binding upon them than it is upon regarded as having a will. Pursuant to their initial assumptions,
individuals. For States are composed of men, their policies are the positivists regard international law as consisting of those
determined by men, and these men are subject to the natural rules which the various state-wills have accepted by a process
law under whatever capacity they act. This same law is called of voluntary self-restriction. International law as a branch of
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state law, as external public law and only for that reason binding instances where it is quite impossible to find any consent by
on the state. states to the binding effect of these rules.
The outstanding positivist has been the Italian jurist Anzilotti. In It is never necessary in practice when invoking a particular rule
his views the binding force of international law can be traced of international law against a particular state to show that state
back to one supreme, fundamental principle or norm, the has assented to it diplomatically. The test applied is whether the
principle that agreements between states are to be respected, rule is one generally recognised by the society of states.
or as the principle is better known, Pacta sunt servanda. This There are concrete examples today of treaty rules, particularly
norm pacta sunt servanda is an absolute postulate of the those laid down by 'law making' treaties, having an incidence
international legal system, and manifests itself in one way or upon states without any form of consent expressed by or
another in all the rules belonging to international law. attributable to them.
Consistently with this theory, Anzilotti holds that just as in the These objections to positivism are by no means exhaustive, but
case of treaties, customary rules are based on the consent of they sufficiently illustrate the main defect of the theory – the
states, and there is here an implied agreement. fallacy of the premise that some consensual manifestation is
The main defect in this analysis is that the norm pacta sunt necessary before international law can operate. In spite of its
servanda is only partially an explanation of the binding force of many weaknesses, positivist theory has had one valuable
international law. Anzilotti's view that customary rules are influence on the science of international law. It has concentrated
binding on states by virtue of an implied pactum is no more attention on the actual practice of states. This has led to a more
convincing than the 'tacit' consent arguments of other positivists. realistic outlook in works on international law, and to the
The principal objections to positivism as a whole may be elimination of much that was academic, sterile, and doctrinal.
formulated as follows : Sanctions of observance of international law
The notion of the state-will is purely metaphorical, and is used to At one extreme there is the view that international law is a
express the system without sanctions. However, it is not quite true that there
fact that international law is binding on the state. It does not are no forcible means of compelling a state to comply with
explain the fact. international law. If any state, party to a case before the I C J,
It is difficult to reconcile the facts with a consensual theory of fails to perform the obligations incumbent upon it under
international law. In the case of customary rules, there are many judgment rendered by the Court, the Security Council may upon
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application by the other state. Party to the same case, make jurisdiction of States.
recommendations or decide upon measures to be taken to give (7) As compared to rules of State Law, the rules of International
effect to the judgment. These may include, not only the actual Law suffer from greater uncertainty.
use of force, but also economic sanctions. (8) International Law has, in many cases, failed to maintain
If the word 'sanctions' be taken in the larger sense of measures, order and peace in the world.
procedures, and expedients for exerting pressure upon a state Despite the above mentioned weaknesses, it has to be noted,
to comply with its international legal obligations, then the above- that International law is constantly developing and its scope is
mentioned provisions of the UN Charter are not exhaustive of expanding. It is a dynamic concept for it always endeavours to
the sanctions which may become operative in different areas of adopt itself to the needs of the day. Its survival and efficiency
international law. are due to its changing and adaptable character.
Weaknesses of International Law.
International Law is said to be “a weak law.” The weaknesses of CUSTOMARY LAW
international law become evident when we compare it with
Municipal law. Following are some of the weaknesses of Custom is a habitual course of conduct. Until recent time,
International law. international law consisted for the most part of customary rules.
(1) The greatest shortcoming of international law is that it lacks It is the oldest and the original source, of International as well as
an effective executive authority to enforce its rules. of law in general. These rules had generally evolved after a long
(2) It lacks an effective legislative machinery. historical process culminating in their recognition by the
(3) The International Court of Justice lacks compulsory international community. The preponderance of traditional
jurisdiction in the true sense of the term. customary rules was diminished as a result of the large number
(4) Due to lack of effective sanctions, rules of international law of 'law-making' treaties concluded since the middle of the last
are frequently violated. century, and must progressively decline in measure as the work
(5) The enforcement machinery of international law is very of the International Law Commission in codifying and restarting
weak. customary rules produces results in treaties. Yet according to
(6) A great limitation of International law is that it cannot views recently expressed by some writers, international custom
intervene in the matters which are within the domestic may still have a significant role to play as a dynamic source of
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fresh rules of international law where the international justifiable to say that a usage reflects a customary rule if it is
community undergoes change in new areas untouched by connected with a practically universal opinio juris.
treaties, judicial decisions or the writings of jurists. Article 38 (b) A customary element has been a feature of the rules of
of the Statute of International Court of Justice recognises international law from antiquity to modern times. In ancient
'International Custom, as evidence of general practice Greece, the rules of war and peace sprang from the common
accepted as law', as one of the sources of International usages observed by the Greek City States. These customary
Law. rules crystallised by a process of generalisation and unification
The terms 'custom' and 'usage' are often used interchangeably of the various usages separately observed by each city
but they are distinguished.. A Custom, in the intendment of law, republic.
is such usage as that obtained the force of law. Usage Customary rules crystallised from usages or practices which
represents the twilight stage of custom. Custom begins where have evolved in approximately three sets of circumstances:
usage ends. Usage is an international habit of action that has (a) Diplomatic relations between states. :- Thus acts or
not yet received full legal attestation. It is not necessary that the declarations by statesmen, opinions of legal advisers to state
usage should always precede a custom. It is also not necessary governments, bilateral treaties, and now press releases or
that a usage must always become a custom. The following are official statements by government spokesmen may all constitute
the certain conclusions:- evidence of usages followed by states.
(i) In certain cases usage gives rise to international customary (b) Practice of International organs. :- The practice of
law, in other cases it does not. But there is no rule of international organs, again whether by conduct or declarations,
international law, or indeed any rule at all, which determines may lead to the status, or their powers and responsibilities.
when usage shall give rise to custom. (c) State laws, decisions of state courts, and state miltary
(ii) Together with usage there are a number of other purely or administrative practices. :- A concurrence of state laws or
factual phenomenon which in various combinations contribute to of judicial decisions of state courts or of state practices may
the creation of international custom, and custom can arise even indicate so wide an a adoption of similar rules as to suggest the
without any usage. general recognition of a broad principle of law.
(iii) When a usage is combined with opinio juris sine A general, although not inflexible, working guide is that before a
necessitatis, a rule of customary law exists, and it is probably usage may be considered as amounting to a customary rule of
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international law, two tests must be satisfied. These tests relate determine the nature of the crime, which would be binding on
to: the territorial state, and this rule is accepted as a customary rule
(i) the material, i.e. in a similar circumstances States acts among the Latin American countries. Peru considered him
similarly, in other words, usage has been constantly and merely a common criminal under its laws. The ICJ to whom the
uniformally practiced by States, and dispute was referred for adjudication, refused to accept the
(ii) the psychological aspects involved in the formation of the Columbina contention that such a custom exists among the
customary rule. Latin American States, since it failed to establish any clear
As regards the material aspect, there must be general be a evidence in support of its contention.
recurrence or repetition of the acts which give birth to the The International Court of Justice has held, however, in the
customary rule. A state practice can be categorized into three Right of Passage over Indian Territory Case (Portugal-India),
groups as- that a particular practice between two states only, which is
1. Mutual relations Among States: Practice of states with accepted by them as law, may give rise to a binding customary
other nations in the form of diplomatic correspondence, press rule inter parties. The facts of this case are as follows:--
releases, bilateral treaties, memorandum of understanding, acts This case deals with the question relating to the right of Protugal
and declarations by statesman etc. Constitute evidence of to send its national and military through the Indian territory. Until
practices of States followed in the sphere of international 1954 Portugal possessed the right of passage through Indian
relations. territory which was in between Dadra and Nagar Haveli and
In the Asylum case, a person who had been declared a fugitive Daman. The right was however subject to control and regulation
after an unsuccessful rebellion led by him in Peru, was granted by India. The relation between India and Portugal worsened, the
asylum by the Columbian Embassy in Peru. Columbia sought people of Dadra revolted against the Portuguese Government.
from Peru a safe custody to allow him to leave the country, but Consequently the Government of India suspended the right of
Peru refused to grant this. Under the 1928 Havana Convention passage of Protugal over this area. India contended that it had
on Political Asylum, to which both the countries were parties, a become necessary due to the special circumstances that had
political fugitive if granted diplomatic asylum, was entitled to arisen. Portugal took this matter to the ICJ. The It may be noted
safe custody. However, Peru refused to accept the Columbian that the claim of Portugal was based on the treaty of 1779. The
contention that it is for the State granting the asylum to ICJ decided that Portugal was not entitled to send its armed
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forces through the way which fell within the Indian territory. The International Law. The proceedings of the International
Court ruled that India did not act contrary to its obligations. The Organisations have their solitary effect in the creation of the new
Court, however, ruled that the Treaty of 1779 was a valid treaty rules of customary International Law.
and Portugal was entitled to get passage through Indian territory 3. Unilateral acts of States: The legislative acts, decisions of
in consequence of the provisions of the said treaty. The decision states courts, opinion of law officers, military and administrative
is important in so far as that the ICJ ruled that if under a treaty a practices of various states are of great evidentory value in the
Sate gets right of passage through the territory of another State development of International Custom. A comparison of these
and if it continues for a long time, then it gains the force of law indicates the existence of a practice uniformally followed by all
and thereby imposes the obligation upon the State affected to states, which may be some evidence that a custom does or
continue to give right to such passage. does not exist.
A single act of a state agency or authority could not create any Opinio juris sive necessitates:- The psychological aspect is
rights of custom in favour of another state which had benefited better known as the opinio juris sive necessitatis, i.e., the
by the act; conduct to be creative of customary law must be practice is recognized as obligatory and there is the conviction
regular and reputed. Material departures from a practice may that its repetition is the result of a compulsory rule. Recurrence
negative the existence of a customary rule, but minor deviations of the usage or practice tends to develop an expectation that, in
may not necessarily have this negative consequence. Apart similar future situations, the same conduct or the abstention
from recurrence, the antiquity of the acts may be also a therefrom will be repeated. This opinio juris, is a convenient test
pertinent consideration. Yet even a short time may be enough that a usage or practice has crystallised into custom; the opinio
where the state practice has been extensive and for all practical juris is not an essential element of custom, but if it is present, it
purposes uniform. is helpful as distinguishing custom from a course of action
2. Practice of International Organisations: International followed as a matter of arbitrary choice or for other reasons.
organizations also contribute to the development of customary In the S S Lotus case, a stricter requirement was laid down by
International Law by providing a clear and concentrated form of the court for a customary rule to evolve. IN that case, the
state practice. The statements made and the votes cast at these French Ship S S Lotus had collided on the high sea with Turkish
forums by state representatives on legal matters provide strong Vessel, killing thereby eight Turkish nationals. When the Lotus
evidence of existing or emerging rules of customary arrived in Turkish waters, criminal proceedings were initiated in
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Turkish Court against the captain of Lotus alongwith the captain continental shelf among the adjoining states, in particular, had
of Turkish Vessel for manslaughter, and sentenced. The French become a part of customary International Law. The court found
Government protested against Turkish action, and by an the absence of the psychological element required for creation
agreement between the parties the dispute was submitted to of such a new rule, and observed that in certain cases where
Permanent Court of International Justice. The French the States concerned agreed to draw or did draw the
Government argued that under the Customary International boundaries concerned according to the principle of
Law, criminal jurisdiction pertains to the flag state of the vessel equidistance, “there is no evidence that they so acted because
in which the crime is committed. Evidence for this alleged rule they felt legally compelled to draw them in this way by reason of
existed in the state practice where the court had generally a rule of customary law obliging them to do so-especially
abstained from exercising criminal jurisdiction in deference to considering that they might have been motivated by other
the flag state, thereby giving rise to the assumption that there obvious factors.
had been a tacit acceptance by States of the rule that in criminal Generation by Treaty of Customary Rules of International Law.--
matters, the flag state was entitled to exclusive jurisdiction. The A provision of a treaty may also generate a rule of customary
court rejected the French contention and observed that the International Law. In North Sea Continental Self case the
circumstances alleged by the French Government merely show International Court of Justice observed that provisions in treaties
that States had often, in practice, abstained from instituting can generate customary law and may be in the words of the
criminal proceedings, and not that they recognized themselves Court; of a “norm-creating character”. But a treaty provision can
as being alleged to do so. The alleged fact does not allow one generate customary international law only when the provision
to infer that states have conscious of having such a duty. concerned is “of a fundamentally norm-creating character such
This line of reasoning of the Lotus case was adopted by the as could be regarded as forming the basis of a general rule of
ICJ in North Sea Continental Shelf case, where Denmark and law.”
the Netherlands in their case against the Germany for In West Rand Central Gold Mining Co. v. R. There the Court
delimitation of continental shelf between them, attempted to laid down that it must be proved by satisfactory evidence that
show that the 1958 Geneva Convention on continental shelf in the alleged rule 'is of such a nature, and has been so widely and
general, and Article 6 of the convention, dealing with the “equi- generally accepted, that it can hardly be supposed that any
distance-special-circumstances” rule of delimitation of civilised State would repudiate it'. This amounts to a test of
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'general recognition' by the international society of states. Statute of the International Court of Justice, international custom
Test of 'general recognition' underlies the provision in the should be the evidence of general practice “accepted as law”.
Statute of the International Court of Justice, under which the There has been a marked decline in the importance of custom
Court is directed to apply international custom 'as evidence of a in present times. It is because of certain drawbacks in the
general practice accepted as law', and is to be found also in Art. evolution of the rules of customary International law.
53 of the Vienna Convention. 1. The growth of a new custom is always a slow process and
Ingredients or elements of Custom the character of International society presently makes it
Following are the main ingredients of an international custom :- particularly slow, where states from different political,
1. Long Duration.-- Article 38 of the Statute of the International economical and legal system participate in law creating process.
Court of Justice directs the World Court to apply 'international It is unable to keep pace with the changes in international
custom, as evidence of a general pracatice accepted as law'. relations.
Emphasis is not given on a practice being repeated for a long 2. The question of whether usage has or has not crystallized
duration. In the field of international law, customs have emerged into a custom and has become obligatiory has many difficulties,
in a short duration. particularly when there is no agreement about its existence. It is
2. Uniformity and consistency.-- In the Asylum case, the for the court to ex tract the rule from the mass of documents,
International Court of Justice observed that the rule invoked State practices and judicial decisions etc. and accord it legal
should be 'in accordance with a constant and uniform usage authenticity.
practised by the States in question, and that this usage is the 3. It is an unsuitable vehicle for international ‘welfare’ or
expression of a right appertaining to the Sate granting asylum ‘cooperative’ law as also to meet the new scientific challenges.
and duty incumbent on the territorial State.' This follows from For these reasons the law creating process sis not more often
Article 38 of the Statute of the Court which refers to international done through treaties.
custom 'as evidence of a general practice accepted as law'.
3. Generality of Practice.-- Although universality of practice is
not necessary, the practice should have been generally
observed or repeated by numerous State.
4. Opinio juris et necessitatis.-- According to Article 38 of the
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Various theories regarding subjects of International Law :-

Following are the three theories prevalent in regard to the
subjects of international law:
1. Only States are subjects of International Law.-- Some
jurists have expressed the view that only states are the subjects
of international law. In their view, international law regulates the
INDIVIDUAL & INTERNATIONAL LAW conduct of States and only States alone are the subject of
international law.
As to the subject of international law, jurist of the world are This view has been subjected to severe criticism by jurists.
divided into two groups. One group contends that only states According to the view expressed by Oppenheim, States are
are the subject of international law while another group argued primarily, but not exclusively, the subject of international law. To
in favour of Individuals as a subject. However, some moderates, the extent that bodies other than states directly possess some
tried to bring about a compromise between them as to the rights, power and duties in international law they can be
proper focal point of international law. regarded as subjects of international law, possessing
International law is primarily concerned with the rights, duties, international personality. Further, “International law is no longer
and interests of states. Normally the rules of conduct that it if ever was concerned solely with states. Many of its rules are
prescribes are rules which states are to observe, and in the directly concerned with regulating the position and activities of
same way treaties may impose obligations which the signatory individuals, and many more indirectly affect them.” Thus, it is
states alone agree to perform. But this does not necessarily wrong to say that individual are not the subjects of international
imply that no other entities or persons, whether natural or legal, law.
can come within the dominion or bounty of international law. It is now generally recognised that besides States, public
The leading jurist Kelson and his followers maintain that in the international organisations, individuals and certain other non-
ultimate analysis, individuals alone are the subject of State entities are also the subjects of international law.
international law. Prof. Westalke in his papers on subject of 2. Only Individuals are the subjects of International Law.--
international law describes that “The duties and rights of states There are certain jurists who have expressed the view that in
are only the duties and rights of the men who compose them.” the ultimate analysis of international law it will be evident that
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only individuals are the subjects of international law. The duties individuals. It was authoritatively decided by the Permanent
and rights of the States are only the duties and rights of men Court of International Justice that if by a particular treaty the
who compose them. Theory that individual are only incumbents parties intended to confer rights on individuals, then these rights
of rights and duties at the international law insofar as they are should receive recognition and effect at international law, that is
objects and not subjects, there is theory which goes to the limit to say from an international court.
in the opposite direction. By Kelson, Individual alone are the Kelson's view appear to be logically sound. But so far as the
subjects of international law. The duties and rights of States are practice of the States is concerned it is seen that the primary
only the duties and rights of the men who compose them. concern of the international law is with the rights and duties of
Kelson analyses the notion of a state, and affirms that it is the States. From time to time certain treaties have been entered
purely a technical legal concept. The concept of the state is into which have conferred certain rights upon individuals.
used to express in technical language legal situations in which Although the statute of the ICJ adheres to the traditional view
individuals alone are bound to do certain acts or receive certain that only states can be parties to international proceedings, a
benefits in the name of the collectivity of human beings to which number of other international instruments have recognised the
they belong. The duties resting on a state at international law procedural capacity of the individual. It would be contend that
are thus ultimately duties binding on individuals. In this respect, States are not the subjects of international law. The correct
according to Kelsen, there is no real distinction between state position therefore is that besides States, individuals, public
law and international law. Both systems bind individuals, international organisations and some non-state entities are also
although international law as a matter of technique does so only the subjects of the International law.
mediately and through the concept of the state. These developments lay in the direction of imposing duties
There are cases where international law binds individuals on individuals under international law. But parallel thereto, there
immediately and not merely mediately in Kelsen's sense. The has been also a movement for conferring rights on individuals,
rule of international law by which states are authorised to attack, even as against states of which such individuals are national or
seize and punish pirates jure genetium, is a rule 'imposing a citizens.
legal duty directly upon individuals and establishing individual In regard to individuals in general, it should be noted that
responsibility'. there is a widely recognised rule of international practice that
Many modern treaties do bestow rights or impose duties upon before an international tribunal, the rights of, or the obligations
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binding individuals at international law, are respectively direct responsibility to individuals was reaffirmed in the
enforceable at the instance of or against those states only Genocide Convention adoption by the United Nations General
whose nationality such individuals posses. In other words an Assembly. It imposed certain duties directly upon the
individual cannot generally assert his own rights against a state individuals. According to the convention, persons guilty of crime
before an international tribunal or be answerable to a state in of genocide may be punished, no matter whether they are the
the same jurisdiction for failing in his obligations, but only head of the State, high officials or ordinary individuals.
through the state of which he is a national. (vi) In addition to the above example, a new trend or
3. States, Individual and Certain non-State Entities are movement has started in the international field under which
Subjects.-- Following arguments may be put forward in support some rights are conferred upon individuals even against the
of this view: States. A glaring example of this is the European Convention of
(i) In the present time, several treaties have conferred upon Human Rights in 1950. Under the provisions of the said
individuals certain rights and duties. convention, European Commission and the European Courts
(ii) In Danzing Railway Official Case, The Permanent Court of were established. The European Commission is entitled to
Justice ruled that if in any treaty the intention of the parties is to investigate the violation of human rights. An individual who is
confer certain rights upon some individuals, then international the victim of the violation of human rights and whose State is
law will recognize such rights and will enforce them. the member of the U.N. may send a petition regarding violation
(iii) 1949 Geneva Convention on the Prisoners of War has of human rights by his own State to the U.N. Commission on
conferred certain rights upon the Prisoners of War. Human Rights.
(iv) The Nuremberg and Tokyo Tribunals propounded the (vii) It is now generally agreed that international organisations
principle that international law may impose obligations directly are also the subjects of international law.
upon the individuals. (viii) In regard to the International criminal law, the law-
According to the Nuremberg Tribunal :- Crimes against making treaties have imposed certain obligations upon the
international law are committed by men, not by abstract entities, individuals and the State have consented to it.
and only by punishing individuals who commit such crimes can (ix) There are certain international treaties in regard to the
the provisions of international law be enforced.' minorities. These treaties have conferred upon minorities
(v) The above trend of international law towards attaching certain rights.
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Place of Individuals in International Law. 3. Foreigners.-- To some extent international law also regulates
As pointed out earlier, individuals are also treated to be the the conduct of the foreigners. According to international law, it is
subjects of international law although they enjoy lesser rights the duty of each State to give to them those rights which it
than States under international law. Thus, “It is no longer confers upon its own citizens.
possible, as a matter of positive law, to regard states as the only 4. War Criminals.-- War criminals can be punished under
subjects of international law, and there is an increasing international law. This conception is based on the principle that
disposition to treat individuals, within a limited sphere, as rules relating to war crime are not only for the States, but
subjects of international law.” In the recent times, several individuals are also bound by them.
treaties have been concluded wherein rights have been 5. Espionage.-- Espionage is a crime under international law.
conferred and duties have been imposed upon the individuals. Hence, when the spies are apprehended, they may be
Some of the provisions of the international law under which punished.
rights have been conferred upon individuals and obligations that 6. Under some treaties individuals have been conferred upon
have been imposed upon them are as follows:- some rights whereby they can claim compensation or damages
1. Pirates. :- Under International law pirates are treated as against the States.
enemies of mankind. Hence every State is entitled to apprehend 7. The United Nations Charter has also given a place of
them and punish them. Thus under international law it is the importance to the rights of individuals. The preamble of United
obligation of the parties not to commit piracy. Nations Charter begins with the words, “Peoples of the United
2. Harmful acts of individuals.-- For the amicable and cordial Nations”. This not incidental but deliberate and meaningful.
relation of the States it is necessary that the individuals should There are a number of provisions of U.N. Charter.
not be involved in such acts as may prove detrimental for the 8. Besides the above mentioned examples, some very
good relations among States. Therefore, under international law important steps are being taken in respect of the rights of
there are several such provisions which provide that the individuals under international law. International law now
persons who commit such crimes may be punished. For confers upon the individuals certain rights not only 'mediately'
example, if a person causes harm to the ambassador of another but 'immediately'.
State, then under international law he deserves to be given 9. The international Convenant on Civil and Political Rights,
stringent punishment. 1966 and the Optional Protocal confer rights directly upon the
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individuals. These along with the U.N. Commission of Human that the theory that states are the exclusive subjects of
Rights have enabled the individuals to send petitions even international law cannot be accepted today as a accurate in all
against their own States. respects. The use of the state as a medium and screen for the
International law is not solely concerned with advancing the application of international law cannot now do justice to all the
political interests of states, but to a large extent also with the far-reaching aims of the modern system.
interests and needs of individuals and non-state entities. A
number of international organisations are specifically devoted to International Law
advancing and ensuring respect for the right and interests of
Q. 1 Explain the relationship between International Law and
individuals. It would not therefore be a very revolutionary step if
Municipal Law.
one further step were to be taken, and international law were to
confer rights on individuals directly and ex proprio vigore without
necessarily operating for this purpose through the medium and International Law is the law which governs the Relations of
sovereign independent States inter se Municipal law or State
under the cover of the state. law or national law is the law of a State or a country and in that
To sum up, it may be said: respect is opposed to International Law which consists of rules
(a). That under modern practice, the number of exceptional which civilized States consider as binding upon them in their
mutual relations. Kelsen observes that national law regulates
instances of individuals or non-state entities enjoying rights or the behavior of individuals International law the behavior of
becoming subject to duties directly under international law, has States or as it is put whereas national law is concerned with the
grown. international relations the so called domestic affairs of the
State. International Law is concerned with the external relations
(b) That the doctrinaire rigidity of the procedural convention
of the State its foreign affairs.
precluding an individual from prosecuting a claim under
international law except through the state of which he is a Legislature and court systems are different on the international
national, has been to some extent tempered. and municipal levels. Where the municipal level uses a
legislature to help enforce and test the laws, the international
(c) That the interest of individuals, their fundamental rights and court system relies on a series of treaties without a legislature
freedoms, etc, have become a primary concern of international which, in essence, makes all countries equal.
law.
Enforcement is a major difference between municipal and
These and other developments of recent years appear to show international law. The municipal courts have a law enforcement
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arm which helps require those it determines to follow the rules, essentially one in as much as the former regulates the conduct
and if they do not they are required to attend court. The of States, while the latter of individuals. According to this view
international court system has no enforcement and must rely on law is essentially a command binding upon the subjects of the
the cooperation of other countries for enforcement. law independent of their will which is one case is the States and
in the other individuals. According to it International Law and
There is a divergence of opinion on the question as to whether Municipal Law are two phases of one and the same thing. The
International Law and Municipal Law on the various national former although directly addressed to the States as corporate
laws can be said to form a unity being manifestations of a single bodies is as well applicable to individuals for States are only
conception of law or whether International Law constitutes an groups of individuals.
independent system of law essentially different from the
Municipal Law. The former theory is called monistic and the Dualistic theory: Dualists emphasize the difference between
latter dualistic. national and international law, and require the translation of the
latter into the former. Without this translation, international law
Monistic Theory: Monists assume that the internal and does not exist as law. International law has to be national law as
international legal systems form a unity. Both national legal well, or it is no law at all. If a state accepts a treaty but does not
rules and international rules that a state has accepted, for adapt its national law in order to conform to the treaty or does
example by way of a treaty, determine whether actions are legal not create a national law explicitly incorporating the treaty, then
or illegal. In most monist states, a distinction between it violates international law. But one cannot claim that the treaty
international law in the form of treaties, and other international has become part of national law. Citizens cannot rely on it and
law, e.g. jus cogens is made. International law does not need to judges cannot apply it. National laws that contradict it remain in
be translated into national law. The act of ratifying the force. According to dualists, national judges never apply
international law immediately incorporates the law into national international law, only international law that has been translated
law. International law can be directly applied by a national into national law. According to the dualist view the systems of
judge, and can be directly invoked by citizens, just as if it were International Law and Municipal Law are separate and self
national law. A judge can declare a national rule invalid if it contained to the extent to which rules of the one are not
contradicts international rules because, in some states, the expressly or tacitly received into the other system. In the first
latter have priority. In other states, like in Germany, treaties place they differ as regards their sources. The sources of
have the same effect as legislation, and by the principle of lex Municipal Law are customs grown up within the boundaries of
posterior, only take precedence over national legislation the State concerned and statutes enacted therein while the
enacted prior to their ratification. In its most pure form, monism sources of International Law are customs grown up within the
dictates that national law that contradicts international law is null Family of Nations and law making treaties concluded by its
and void, even if it predates international law, and even if it is members. In the second place Municipal Laws regulates
the constitution.It maintains that the subject of the two systems relations between the individuals under the sway of a State or
of law namely, International Law and Municipal Law are between the individuals and the State while International Law
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regulates relations between the member States of the Family of Delegation Theory: According to this theory there is the
Nations. Lastly there is a difference with regard to the delegation of a right to every State to decide for itself when the
substance of the law in as much as Municipal Law is a law of provisions of a treaty or convention are to come into effect and
the sovereign over individuals while International Law is a law in what manner they are to be incorporated in the law of the
between sovereign State which is arrived at an agreement land or municipal law. There is no need of transformation of a
among them. The latter is therefore a weak law. treaty into national law but the act is merely an extension of one
single act. The delegation theory is incomplete for it does not
Besides the above two theories, Starke makes reference to two satisfactorily meet the main argument of the transformation
other theories namely, the Transformation Theory and theory. It assumes the primacy of international legal order but
Delegation Theory. fails to explain the relations existing between municipal and
international laws.
Transformation Theory: According to this theory it is the
transformation of the treaty into national legislation which alone It is settled by the leading English and American decisions that
validates the extension to individuals of the rules set out in International Law forms part of the municipal law of those
international agreements. The transformation is not merely a countries. The United States has unambiguously applied the
formal but a substantial requirement. International Law doctrine that International Law is part of the law of the land. All
according to this theory cannot find place in the national or international conventions ratified by the USA and such
Municipal Law unless the latter allows its machinery to be used customary International Law as has received the assent of the
for that purpose. United States are binding upon American Courts even if they
may be contrary to the statutory provisions. There is a
This theory is fallacious in several respects. In the first place its presumption in cases of conflict that the United States Congress
premise that International Law and Municipal Law are two did not intend to overrule International Law.
distinct systems is incorrect. In the second place the second
premise that International Law binds States only whereas Position in India
municipal law applies to individuals is also incorrect for In India, SC has held in several cases such as Vishakha vs
International Law is the sum of the rules which have been State of Rajasthan, Randhir vs Union of India, Unnikrishnan vs
accepted by civilized states as determining their conduct State of Karnataka, that domestic laws of India, including the
towards each other and towards each others subjects. In the constitution are not to be read as derogatory to International
third place the theory regards the transformation of treaties into law. An effort must be made to read the domestic law as being
national law for their enforcement. This is not true in all cases in harmony with the international law in case of any ambiguity.
for the practice of transforming treaties into national legislation At the same time, the constitution is still the supreme law of the
is not uniform in all the countries. And this is certainly not true land and in case of any directly conflict the constitution will
in the case of law making treaties. prevail.
Q. 3 What are the peaceful means of settlement of international
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disputes? Describe the constitution, function, and jurisdiction of international disputes by any of the following means:
Internation Court of Justice. How does it differ from permanent negotiation, inquiry, mediation, conciliation, arbitration, judicial
court of Arbitration and Permanent court of International settlement, resort to regional arrangements or agencies or other
Justice? Evaluate the role of ICJ in establishment of World peaceful means of their own choice, including good offices. In
Peace. What is Advisory Jurisdiction of ICJ? seeking such a settlement, the parties shall agree on such
Q. What are the peaceful means of settlement of peaceful means as may be appropriate to the circumstances
international disputes? Describe the constitution, function, and the nature of their dispute.
and jurisdiction of International Court of Justice. How does
it differ from permanent court of Arbitration and Permanent
court of International Justice? Evaluate the role of ICJ in Thus, the following are peaceful means of settlement of
establishment of World Peace. What is Advisory international disputes.
Jurisdiction of ICJ?.
The General Obligation

1. Non-Judicial Methods of Settlement
On 15th Nov. 1982, the General Assembly of UNO after 1. Mediation: It is a non-binding procedure in which
reaffirming the need to exert utmost efforts in order to settle any a neutral intermediary assist the parties in
conflicts and disputes between States exclusively by peaceful reaching a negotiated settlement of the dispute. In
means and to avoid any military action and hostilities, which can a growing number of cases parties agree to first
only make more difficult the solution of those conflicts and try to settle their dispute through mediation, and to
disputes, approved the Manila Declaration on the Peaceful resort to arbitration only if the dispute has not
Settlement of International Disputes. been settled with a certain period of time.
While both arbitration and mediation are usually
This created a general obligation on the member states to adopt private dispute resolution procedures based on a
ways to resolve international disputes peacefully. In particular, it party agreement they differ in a number of
obligated that States parties to a dispute shall continue to important aspects. Arbitration is an adjudicative
observe in their mutual relations their obligations under the procedure and in this respect resembles court
fundamental principles of international law concerning the litigation. Once the parties have submitted a
sovereignty, independence and territorial integrity of States, as dispute to arbitration, neither party can opt out
well as other generally recognized principles and rules of unilaterally, and any decision rendered by the
contemporary international law. arbitral tribunal will be binding on both parties.
Mediation in contrast, is a voluntary process which
It obligates the States to seek in good faith and in a spirit of co- depends on the continuing cooperation of both
operation an early and equitable settlement of their parties since either party can withdraw at any time.
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Employed over the years in diplomatic matters, these principles.

recently parties have begun using mediation to Given the lack of rule specificity and the discretion
resolve transnational business disputes prior to granted to the mediator, the success of the
binding dispute settlement alternatives or mediation often depends on the talents and
litigation.1 This alternative is particularly popular temperament of the mediator. His or her ability to
among Asian cultures. The mediation mechanism get the disputants to negotiate and work towards
may be generally defined as the intervention of an compromise is of utmost importance.Ultimately, if
unbiased third party in a dispute so as to facilitate these techniques fail and the parties are not
party resolution of differences on a voluntary satisfied with the settlement, they can pursue
basis. The process differs from conciliation and other methods of dispute resolution, such as
arbitration with respect to the involvement and traditional litigation or arbitration.
powers of the third party. Notwithstanding this 2. Conciliation - In conciliation, the conciliator plays
definition, currently no consensus exists about the a relatively direct role in the actual resolution of a
specifics of transnational mediation or its dispute and even advises the parties on certain
procedures, thus further complicating matters solutions by making proposals for settlement. In
when it is employed as the only contractual means conciliation, the neutral is usually seen as an
of dispute settlement. More specifically, when authority figure who is responsible for the figuring
international parties use mediation exclusively, out the best solution for the parties. The
there is no guarantee of a binding or definitive conciliator, not the parties, often develops and
outcome at all. proposes the terms of settlement. The parties
come to the conciliator seeking guidance and the
International dispute resolution organizations offer parties make decisions about proposals made by
procedural rules for mediation. Since mediation conciliators. In this regard, the role of a conciliator
has only recently come to the forefront, however, is distinct from the role of a mediator. The
these rules remain vague in many areas. For mediator at all times maintains his or her neutrality
example, the mediator's duties are not detailed and impartiality. A mediator does not focus only on
specifically. The International Chamber of traditional notions of fault and a mediator does not
Commerce Rules of Optional Conciliation merely assume sole responsibility for generating
state that the mediator has discretion to conduct solutions. Instead, a mediator works together with
the proceedings as he or she sees fit. The only the parties as a partner to assist them in finding
restriction imposed on the mediator by many of the best solution to further their interests. A
these rules is that the mediator operate under the mediator’s priority is to facilitate the parties’ own
principles of impartiality, equity and justice. discussion and representation of their own
Mediators are left to determine the contents of interests, and guide them to their own suitable
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solution- a good common solution that is fair, in the respect that it ”intervenes” in a substantial
durable, and workable. The parties play an active dispute that has already surfaced that is very
role in mediation, identifying interests, suggesting difficult to resolve without "professional"
possible solutions, and making decisions assistance. The parties approach mediation as an
concerning proposals made by other parties. The alternative method to resolve their dispute, due to
parties come to mediator seeking help in finding the fact that they both recognize that the conflict
their own best solution. has grown potentially serious enough for litigation.
Mediation may be used, however, any time after
Also the role of the attorneys is different in the emergence of a dispute, including the early
mediation. Attorneys are more active in mediation stages.
in generating and developing innovative solutions
for settlement. In conciliation, they generally offer
advice and guidance to clients about proposals 2. Settlement by The International Court of Justice - The
made by conciliators. International Court of Justice was established by the
Charter of the United Nations, which provides that all
Conciliation and mediation both look to maintain Member States of the United Nations are ipso facto
an existing business relationship and to rekindle a parties to the Court's Statute. The composition and
lost balance of power between two parties. These functioning of the Court are organized by this Statute,
concepts are sometimes used as synonyms, but and by the Rules of the Court which are drawn up by the
they do indeed vary substantially in their Court itself. The International Court of Justice is the
procedures. In mediation, the mediator controls primary judicial organ of the United Nations. It is based in
the process through different and specific stages: the Peace Palace in The Hague, Netherlands. Its main
introduction, joint session, caucus, and functions are to settle legal disputes submitted to it by
agreement, while the parties control the outcome. states and to give advisory opinions on legal questions
By contrast, in conciliation the conciliator may not submitted to it by duly authorized international organs,
follow a structured process, instead administering agencies, and the UN General Assembly.
the conciliation process as a traditional
negotiation, which may take different forms Composition of ICJ - The ICJ is composed of fifteen
depending on the case. judges elected to nine year terms by the UN General
Assembly and the UN Security Council from a list of
Conciliation is used almost preventively, as soon persons nominated by the national groups in the
as a dispute or misunderstanding surfaces: a Permanent Court of Arbitration. The election process is
conciliator pushes to stop a substantial conflict set out in Articles 4–12 of the ICJ statute. Judges serve
from developing. Mediation is closer to arbitration for nine year terms and may be re-elected for up to two
further terms. Elections take place every three years, with
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one-third of the judges retiring (and possibly standing for investment (investor-state arbitrations), and matters
re-election) each time, in order to ensure continuity within concerning international and regional trade.
the court.
Hearings are rarely open to the public and sometimes
Should a judge die in office, the practice has generally even the decision itself is kept confidential at the request
been to elect a judge of the same nationality to complete of the parties. Many decisions and related documents are
the term. No two may be nationals of the same country. available on the PCA website.
According to Article 9, the membership of the Court is
supposed to represent the "main forms of civilization and Jurisdiction of ICJ
of the principal legal systems of the world". Essentially, As stated in Article 93 of the UN Charter, all 192 UN
this has meant common law, civil law and socialist law members are automatically parties to the Court's statute.
(now post-communist law). Non-UN members may also become parties to the
Court's statute under the Article 93(2) procedure. For
Differences with Permanent Court of International example, before becoming a UN member state,
Justice - The Permanent Court of International Justice, Switzerland used this procedure in 1948 to become a
sometimes called the World Court, was the international party. And Nauru became a party in 1988. Once a state
court of the League of Nations, established in 1923. is a party to the Court's statute, it is entitled to participate
Between 1922 and 1940 the Court dealt with 66 in cases before the Court. However, being a party to the
contentious cases between States and delivered 27 statute does not automatically give the Court jurisdiction
advisory opinions. It was replaced in 1946 by the over disputes involving those parties. The issue of
International Court of Justice when the United Nations jurisdiction is considered in the two types of ICJ cases:
was organized. contentious issues and advisory opinions.
Differences with PCA - Unlike the ICJ, the PCA is not The International Court of Justice acts as a world court.
just open to states but also to other parties. The PCA The Court has a dual jurisdiction : it decides, in
provides services for the resolution of disputes involving accordance with international law, disputes of a legal
various combinations of states, state entities, nature that are submitted to it by States (jurisdiction in
intergovernmental organizations, and private parties. The contentious cases); and it gives advisory opinions on
PCA administers cases arising out of international legal questions at the request of the organs of the United
treaties (including bilateral and multilateral investment Nations or specialized agencies authorized to make such
treaties), and other agreements to arbitrate. The cases a request (advisory jurisdiction).
conducted by the PCA span a wide range of legal issues, 1. Contentious Issues - In contentious cases
including disputes over territorial and maritime (adversarial proceedings seeking to settle a
boundaries, sovereignty, human rights, international dispute), the ICJ produces a binding ruling
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between states that agree to submit to the ruling of comply with the judgment. Since the 1970s, the
the court. Only states may be parties in use of such clauses has declined. Many modern
contentious cases. Individuals, corporations, parts treaties set out their own dispute resolution
of a federal state, NGOs, UN organs and self- regime, often based on forms of arbitration.
determination groups are excluded from direct
participation in cases. The key principle is that the Third, Article 36(2) allows states to make optional
ICJ has jurisdiction only on the basis of consent. clause declarations accepting the Court's
Article 36 outlines four bases on which the Court's jurisdiction. The label "compulsory" which is
jurisdiction may be founded. sometimes placed on Article 36(2) jurisdiction is
misleading since declarations by states are
First, 36(1) provides that parties may refer cases voluntary. Furthermore, many declarations contain
to the Court (jurisdiction founded on "special reservations, such as exclusion from jurisdiction
agreement" or "compromise"). This method is certain types of disputes ("ratione materia"). The
based on explicit consent rather than true principle of reciprocity may further limit jurisdiction.
compulsory jurisdiction. It is, perhaps, the most Of the permanent Security Council members, only
effective basis for the Court's jurisdiction because the United Kingdom has a declaration. In the
the parties concerned have a desire for the Court's early years, most declarations were made
dispute to be resolved by the Court and are thus by industrialised countries. Since the Nicaragua
more likely to comply with the Court's judgment. Case, declarations made by developing countries
have increased, reflecting a growing confidence in
Second, 36(1) also gives the Court jurisdiction the Court since the 1980s. Industrialised countries
over "matters specifically provided for ... in however have sometimes increased exclusions or
treaties and conventions in force". Most modern removed their declarations in recent years.
treaties will contain a compromissory clause, Examples include the USA, as mentioned
providing for dispute resolution by the ICJ. Cases previously and Australia who modified their
founded on compromissory clauses have not been declaration in 2002 to exclude disputes on
as effective as cases founded on special maritime boundaries (most likely to prevent an
agreement, since a state may have no interest in impending challenge from East Timor who gained
having the matter examined by the Court and may their independence two months later).
refuse to comply with a judgment. For example,
during the Iran hostage crisis, Iran refused to Finally, 36(5) provides for jurisdiction on the basis
participate in a case brought by the US based on a of declarations made under the Permanent Court
compromissory clause contained in the Vienna of International Justice's statute. Article 37 of the
Convention on Diplomatic Relations, nor did it Statute similarly transfers jurisdiction under any
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compromissory clause in a treaty that gave that the advisory opinion shall be specifically
jurisdiction to the PCIJ. binding on particular agencies or states, they are
inherently non-binding under the Statute of the
In addition, the Court may have jurisdiction on the Court. This non-binding character does not mean
basis of tacit consent (forum prorogatum). In the that advisory opinions are without legal effect,
absence of clear jurisdiction under Article 36, because the legal reasoning embodied in them
jurisdiction will be established if the respondent reflects the Court's authoritative views on
accepts ICJ jurisdiction explicitly or simply pleads important issues of international law and, in
on the merits. The notion arose in the Corfu arriving at them, the Court follows essentially the
Channel Case (UK v Albania) (1949) in which the same rules and procedures that govern its binding
Court held that a letter from Albania stating that it judgments delivered in contentious cases
submitted to the jurisdiction of the ICJ was submitted to it by sovereign states. An advisory
sufficient to grant the court jurisdiction. opinion derives its status and authority from the
fact that it is the official pronouncement of the
Examples of contentious cases include: principal judicial organ of the United Nations.
A complaint by the United States in 1980 that Iran
was detaining American diplomats in Tehran in Advisory Opinions have often been controversial,
violation of international law. either because the questions asked are
A dispute between Tunisia and Libya over the controversial, or because the case was pursued
delimitation of the continental shelf between them. as an indirect "backdoor" way of bringing what is
2. Advisory Jurisdiction - An advisory opinion is a really a contentious case before the Court.
function of the Court open only to specified United Examples of advisory opinions can be found in the
Nations bodies and agencies. On receiving a section advisory opinions in the List of
request, the Court decides which States and International Court of Justice cases article. One
organizations might provide useful information and such well-known advisory opinion is the Nuclear
gives them an opportunity to present written or Weapons Case.
oral statements. Advisory Opinions were intended 3. International Arbitration: The Hague Peace System -
as a means by which UN agencies could seek the International arbitration is the process of resolving
Court's help in deciding complex legal issues that disputes between or among transnational parties through
might fall under their respective mandates. In the use of one or more arbitrators rather than through the
principle, the Court's advisory opinions are only courts. It requires the agreement of the parties, which is
consultative in character, though they are usually given via an arbitration clause that is inserted into
influential and widely respected. Whilst certain the contract or business agreement. The decision is
instruments or regulations can provide in advance usually binding.
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Arbitration is today most commonly used for the by the 1907 Convention for the Pacific Settlement
resolution of commercial disputes, particularly in the of International Disputes.
context of international commercial transactions 2. International Commercial Arbitration (ICA)
(International Commercial Arbitration). It is also used in 3. International Centre of Settlement of Investment
some countries to resolve other types of disputes, such Disputes (ICSID)
as labour disputes, consumer disputes, and for the 4. WIPO Arbitration and Mediation Center (World
resolution of certain disputes between states and Intellectual Property Organization)
between investors and states. 5. WTO Dispute Settlement System
As the number of international disputes mushrooms, so 6. Court of Arbitration for Sport (CAC)
too does the use of arbitration to resolve them. There are 7. Society of Maritime Arbitrators (SMA)
essentially two kinds of arbitration, ad hoc and 8. Ad Hoc Inter-State Arbitration
institutional. An 9. The Iran-US Claims Tribunal
institutional arbitration is one that is entrusted to one of 10. The International Centre for Settlement of
the major arbitration institutions to handle, while an ad Investment Disputes
hoc one is conducted independently without such an 11. Settling Disputes about Human Rights
organization and according to the rules specified by the 12. Dispute Settlement in the Law of the Sea
parties and their attorneys. 13. Settlement of International Economic Disputes
14. Regional Organizations and Dispute Settlement
The following are various avenues for International
Arbitration.
What do you understand by Recognition. Explain its
1. Permanent Court of Arbitration (PCA) - The importance in International Law. Examine various theories of
Permanent Court of Arbitration (PCA), is an Recognition. Distinguish between de-facto and de jure
international organization based in The Hague in recognition. Explain the statement, "a state is and becomes an
the Netherlands. It was established in 1899 as one international person through recognition only and exclusively.".
of the acts of the first Hague Peace Conference, What conditions are are to be fulfilled by a community to be
which makes it the oldest institution for recognized as an international person? Explain- Recognition is
international dispute resolution. not a constitutive but a declaratory act. What is the Stimson's
The creation of the PCA is set out under Articles doctrine of recognition?
20 to 29 of the 1899 Hague Convention for the
specific settlement of international disputes which
Define war. How is it different from armed conflict and hostile
was a result of the first Hague Peace Conference.
relations. Define war crime. What are its major kinds? What is
At the second Hague Peace Conference in 1907,
the earlier Convention was revised and improved meant by Rules of Warfare? Explain its objects.
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What is the right of legation? Who are diplomats? What are their new state with al the legal consequences attaching to this
categories? What are their priviledges, immunities, and duties? existence is not affected by the refusal of recognition by one or
How can they be removed? more states”. Recognition of states is the requirement of having
part of world community.
Define blockade. Describe the valid grounds of blockade. ACTS OF RECOGNITION:
Describe the conditions where blockade is lifted. Recognition is a matter of intention and it may be expressed or
implied. So the act of recognition may be affected expressly, by
Define Intervention. What may be the grounds on Intervention? formal announcement or by bilateral treaty of recognition. Also
in some circumstances through an act indicating an intention to
What is the importance of WTO in the present time. affect recognition e.g. U.K government recognized government
of Burma by a treaty in 1947; they recognized them as fully
Short Notes - ILO, Extradition - Essentional conditions, what is independent and sovereign state.
political crime, Prize Courts. There are two theories, which have effect on the recognition of a
state.
RECOGNITION: 1: Constitutive theory
The discretionary function exercised unilaterally by the govt of a 2: Declaratory theory
state, officially acknowledging the existence of another state or CONSTITUTIVE THEORY:
government or belligerent state is known as recognition.The This theory asserts that the act of recognition by other states
sovereign entities of international community have been used to confer international responsibility on an entity purporting to be a
justify the existence of state even in the absence of recognition state. It means if that state exists this is because of international
by other state. This criteria was derived from 1933 Montevideo community, as they have admitted that state into the community
inter America convention on rights and duties of states.In 1936 of nations.
prestigious institute de droit stated, “the existence of a new state So we can say that a state may possess all the attributes and
with al the legal consequences attaching to this existence is not qualifications of state hood but unless or until recognition is
affected by the refusal of recognition by one or more states”. accorded there will be no international personality. If we apply
Recognition of states is the requirement of having part of world this theory on Israel and Palestine, for Pakistan Israel is not a
community. state. Similarly before 1974 Bangladesh was not a state for
The sovereign entities of international community have been Pakistan.
used to justify the existence of state even in the absence of DECLARATORY THEORY:
recognition by other state. This criteria was derived from 1933 The theory asserts that the existence of states depend upon the
Montevideo inter America convention on rights and duties of facts whether these facts meet with the criteria of statehood laid
states. down in international law. According to this theory a state may
In 1936prestigious institute de droit stated, “the existence of a exist without being recognized. Recognition is merely
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declaratory and the function of recognition is to acknowledge recognize government of state. State practice suggest that there
the fact of states political existence and the willingness of is no legal duty upon states to extend recognition to new
recognizing states to treat that state as an international entity. government
According to American law institute restatement, they accept it EXAMPLES:
but also indicate that although a state is not required to accord Afghanistan is recognized by many states but Taliban
formal recognition to any other state, but it is required to be government was not recognized by majority of states. States
treated as international entity that meets with the requirement of may suspend the recognition of state e.g. in Pakistan in eras of
statehood. 70s due to martial law many states suspended their relations
In contemporary practice it is clear that an entity meets the with Pakistan. Similarly the relations between Libya and USA
conditions of statehood as defined in s201 OF RESTATEMENT, remain suspended for 24 long years. In the same way
can neither be denied the rights conferred on the states by Palestinian state does not exist but Pakistan and Saudi a
international law? States like Taiwan, New Caledonia, Serbia, recognize it as a state. Other examples included non-
Western Sahara, Palestine; they still have to get the recognition USA and allies of Costa Rica between 1917-1919,
membership of UNO. non-recognition by Britain of Russia between 1919-1921, non-
POLITICAL NATURE OF RECOGNITION: recognition of USA by Britain till 1933.
This kind of recognition is based upon political expediency. ESTRADE DOCTRINE
Some members of international community recognize the entity If non-recognition can be expression of disapproval of new
and the recognition is denied by others.e.g. European government then it can be applied where no such approval is
community announced that it would recognize those republics intended. States have adopted the policy of never recognizing
that would give assurance of five points. the government but instead of granting or withholding
1: Continued respect for UN charter. recognition only in respect of states. This doctrine originates in
2: Guarantee for the rights of national and ethnic groups. Mexico and has been adopted several states.
3: Respect for inviolability of all frontiers MODES OF RECOGNITION:
4: Acceptance of international obligations. There are two modes of recognition:
5: Under taking to settle all questions concerning state Defacto recognition
succession and regional disputes peacefully. Dejure recognition
By accepting these rules Croatia, Bosnia and Slovenia got DEFACTO RECOGNITION:
recognition from European community. So we can say that This term reflect the quality of government rather than that of act
recognition is political tool in the hands of international of recognition. Defacto recognition is temporary kind of
community. recognition. When a state wants to delay the Dejure recognition
RECOGNITION OF GOVERNMENT of an any state it may grant Defacto recognition. The reason is
If a state acquires all the elements of statehood and if it is that it is doubted that state going to be recognized may have all
recognized by other states then occasionally states does not the attributes to fulfill international responsibility, or the state is
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willing to fulfill international obligations. rather than legal. Prof. Keelson states that the distinction
As mentioned earlier that Defacto recognition is a temporary between two recognitions is not important .Any codification of
recognition and it means that state recognized possesses the international law relating to recognition can ignore it.
essential characters of statehood and it is fit to be subject of But according to lauterpatch there are certain differences
international law. between the two, they have pointed out that in case of
According to Oppenheim “the Defacto recognition of state or succession only the state, which has been granted dejure
government takes place when in view of recognizing state the recognition will be deemed to be the successor state.
new authority has not acquired sufficient ability” (although Defacto recognition is provisional and Dejure is final recognition.
effective power in territory is there). By recognizing that state as Defacto government enjoys same immunities as a dejure state
Defacto means that some characters are missing and now by does. However diplomatic courtesies and representation are
recognizing them Defacto they are compelling that state to fulfill usually not accorded to Defacto government except in
those requirements. extraordinary circumstances occurring in times of war.
According to lauterpatch “Defacto recognition shows that There is no difference for the present purpose between a
recognizing state wants to establish its relations with the government recognized as dejure and one recognized as
recognized state without establishing diplomatic relations. Defacto.
General Franco’s government in Spain was recognized Defacto LEGAL EFFECTS OF RECOGNITION:
by Britain. Similarly in 1936 United Kingdom recognized Italy Recognition produces legal consequences affecting the rights
sovereignty over Abyssinia. powers privileges of recognized states or government.
DEJURE RECOGNITION: Recognized states have following consequences of their
This recognition is granted when in the opinion of recognizing recognition.
state or its government the other state possesses all the Right of suing in law courts of recognized states.
characteristics and essential requirements of statehood, also it Recognized states may claim immunity from suit to its property
is capable of being member of international community. or diplomatic representative.
Dejure recognition is final and once given cannot be taken back, They may acquire the capacity to enter in to diplomatic relations
or with drawn. This is permanent kind of recognition. with other states and may conclude treaties with them.
United Kingdom recognized Italy’s sovereignty over Abyssinia
as dejure in 1938 Soviet government to United Kingdom in
1924. INTERVENTION:
DIFFERENCE BETWEEN TWO RECOGNITIONS: DEFINITIONS:
In Defacto recognition diplomatic relations are not established Prof Oppenheim:--Intervention is dictatorial interference by the
formally. They are established only by granting dejure state in the affairs of another state for the purpose of
recognition. According to jurists there is hardly any difference maintaining or altering the actual condition of things. The term
between the two and if at all there is any difference it is political intervention has been used by some writers in the expression of
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subversive intervention to denote propaganda or other activity 1.Internal Intervention:-- This is intervention by a state in a civil
by one state with intention of fomenting for its own purpose, war going on with the territory of another state. The intervening
revolt or civil strike in another state. state in such case may side with insurgents or legitimate govt.
Intervention involves the unsolicited interference of one nation in the intervention of number of states in civil war in spain in 1936
the affairs of another. It may be directed against a single state, was typical of internal intervention.
factions within that state, or interactions among a group of 2. External Intervention:-- it is an intervention by a state in the
states. It does not necessarily take the form of military action but foreign affairs of other states. As a general rule, an external
may involve economic or social pressure. When applied to intervention is directed against hostile relations of other states.
international law, the concept can be elusive. Because many While there is a war going on between two states, a third state
relations between states involve elements of coercion, it is can make an external intervention by entering the war on behalf
difficult to determine at which point pressure becomes of either of two states.
sufficiently coercive as to be deemed intervention. Although 3. Punitive Intervention:--It is resorted to by a state when it has
states always claim the right to intervene on the basis of \"vital suffered an injury by some action state and may be stated as an
interests,\" they never agree as to what this term involves. act of retaliation against the state. The punitive intervention may
A group of writers prohibit intervention in all circumstances. take the form of pacific blockade.
According to their point of view when one state intervenes in the
affairs of another state through force then as reaction against GROUNDS OF INTERVENTION:
his violation international law permits intervention. 1: SELF DEFENSE:
CONCEPT OF INTERVENTION AND UNITED NATIONS Use of force in self defense is justified where it is necessary for
CHARTER: self preservation. The right of self defense under article 51 is
Article 2, paragraph 4, of the Charter provides: \"All Members subject to following conditions: 1: There should be an armed
shall refrain in their international relations from the threat or use attack. 2: Right exist until security council has taken any action.
of force against the territorial integrity or political independence 3: It should be reported to security council. 4: The right shall not
of any State, or in any other manner inconsistent with the effect security councils responsibility for peace and security. 5:
Purposes of the United Nations.\" Right is not available for non member states.
The North Atlantic Treaty Organization (NATO) intervention in 2: INTERVENTION ON HUMANITARIAN GROUNDS:
Kosovo in 1999 was said to be justified on the grounds of such Intervention was permitted in the past on humanitarian grounds.
a humanitarian crisis coupled with non-compliance by the When human rights were openly violated in a state and the
parties with Security Council Resolutions. Similarly whatever is people were openly persecuted then other states can intervene
happening in Palestine …is that not a human crises. in the affair of such a state in order to check such persecution
and violation of human rights. E.g. England, France and Russia
Kinds of Intervention:--Winfield refers to three kinds of jointly intervened in the conflict of Greece and turkey in 1827to
interventions:-- check violation of human rights, other examples include:
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Bulgaria 1877 Cuba 1898 Haiti 1915 empowered to take collective action if there exist a threat or a
3: TO ENFORCE TREATY RIGHTS:---Intervention was also breach of international peace. In its first stage security council
permitted in the past under international law to enforce treaty take such collective measures and do not involve the use of
rigts. There are several examples of intervention on this ground force. Abaut if such an action does not prove to be adequate the
e.g. when Germany attacked Belgium in 1831 England security council is empowered to employ armed forces. The
intervened because it had a treaty eith Belgium whereby it was united natins took such actions in Korea 1950, congo 1961, in
commited to maintain the neutrality of Belgium. Similarly USA bosnia 1995-96
intervened Cuba in 1962. Now after the enforcement of united
nations charter this kind of intervention is not allowed as states DOCTRINE ON PRINCIPLE OF NON INTERVENION:
have undertaken not to intervene in the external or internal MONROE DOCTRINE:
affairs of another state. But again question arises is that what President Monroe of United States propounded this doctrine. I t
was wrong with USA when they first intervened Afghanistan and was reaction of the treaty which napoleon had entered in to with
then Iraq. European states. The European states wanted to re establish
4: INTERVENTION TO PREVENT ILLEGAL INTERVENTION:- their colonies in America and wanted to help Spain. In the
--In the past there have been several cases of intervention by background of these events president Monroe made a
states in order to prevent illegal intervention by other states. It declaration in 1923, the important points of this doctrine are as
was on this ground that England helped Protugal in 1926. The followed.
united nations charter has affected this right. Intervention by one 1: The states of American continent would not more be made
state in the affairs of another state is no more permissable. subject to colonization in future.---2: America would not interfere
INTERVENTION FOR PROTECTION OF PROPERTY AND in the European wars.---3: If European states interfered in the
PERSONS: In the past international law permited the affairs of American continent then America would consider it
intervention in order to protect the property and persons of a unfriendly act.
state citizens. The growth in international relations and DRAGO DOCTRINE:--This doctrine was presented by drago of
interdependence of states neccesitated the intercourse of Argentina. According to the doctrine European states could not
citizens of one state with other. So whenever there is a danger intervene in the affairs of states of American continent on the
to the persons or property of citizeens it become natural for a ground of claiming public debts. Actually European states had
state to to take action. During india pakistan war in 1971 started using military force to enforce the claims of their citizens
America sent its 7th fleet to the bay of bengal on the ground of e.g. England, Germany and Italy had enforced blockade against
protection of property and persons. But united nations charter Venezuela because they had failed to fulfill its financial
does not allow this kind of intervention. obligations.
COLLECTIVE INTERVENTION: Under united nations charter MODREN DOCTRINE:---More recently, an alternative approach
colletive intervention can be made to check an agression on the to humanitarian intervention known as \'Responsibility to protect
breach of international peace and security. Security council has R2P has emerged. Responsibility to Protect is the name of a
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report produced in 2001 by the International Commission on VII. Advocates of interventions argue that the creation of a
Intervention and State Sovereignty ICISS which was established new right is not necessary, but rather the simple application
by the Canadian government in response to the history of of rights which already exist.
unsatisfactory humanitarian interventions. The report sought to
2. More fundamentally than this legal problem are the
establish a set of clear guidelines for determining when
intervention is appropriate, what the appropriate channels for contradictions inherent in the concept of humanitarian
approving an intervention are and how the intervention itself intervention, which are primarily due to the confusion
should be carried out. created by the blurring of the right and the duty to interfere.
Responsibility to protect seeks to establish a clearer code of It is difficult, when such confusion occurs, to separate the
conduct for humanitarian interventions and also advocates a humanitarian motives from the political motives and be
greater reliance on non-military measures. The report also assured that the powers intervening are entirely
criticizes and attempts to change the discourse and terminology disinterested.
surrounding the issue of humanitarian intervention. It argues
3. Even though it is called universal, the declaration of
that the notion of a \'right to intervene\' is problematic and
should be replaced with the \'responsibility to protect\'. Under human rights is strongly influenced by the work of Western
Responsibility to Protect doctrine, rather than having a right to philosophers from the Enlightenment and more generally
intervene in the conduct of other states, states are said to have by a Judeo-Christian tradition. Intervention has often been
a responsibility to intervene and protect the citizens of another an action directed by Northern states toward Southern
state where that other state has failed in its obligation to protect states. It is thus unlikely that a Rwandan contingent might
its own citizens. one day be assigned a peacekeeping mission in Northern
LIMITATIONS: Ireland, or that the Lebanese might intervene in Basque
There are few limitations on intervention which are:
country.
1. When implemented, an intervention mission can
In reality, the powerful nation-states run little risk of becoming
contravene the fundamental objectives of the United
Nations, such as maintaining peace, and it contravenes the target of a humanitarian intervention action. For example,
Article 2.7 of the Charter of the United Nations whenever a the Chechen population is probably in as much danger as of
recognized state is subject to an intervention: \"Nothing 2005 as the Kosovo’s were in previous years, but Russia is
contained in the present Charter shall authorize the United significantly more powerful in the realm of international relations
Nations to intervene in matters which are essentially within than Serbia, and so an international action into Chechnya is
the domestic jurisdiction of any state\". However, the UN much less likely.
Charter also justifies interventions under Chapters VI and
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they represent two entirely distinct legal systems, international

INTERNATIONAL LAW & MUNICIPAL LAW law having an intrinsically different character from that of state
law. Because a large number of domestic legal systems are
Very often, municipal courts are confronted with the situations involved, the dualist theory is sometimes known as the
calling for applications of rules of international law, sometimes 'pluralistic' theory, but it is believed that the term 'dualism' is
at variance with municipal law, to the cases before them. It is in more exact and less confusing.
this context that the issue of relationship between two systems Dualism
of law assumes importance. In the 19th and 20th centuries, partly as a result of philosophic
There is a divergence of opinion among the jurists on the issue doctrines emphasising the sovereignty of the st6ate-will, and
of giving effect to the international law within the municipal partly as a result of the rise in modern states of legislatures with
sphere. Apart from the aspect of theory, there is the important complete internal legal sovereignty, there developed a strong
practical problem of more immediate concern to municipal trend towards the dualist view.
courts, namely, to what extent may such courts give effect The chief exponents of dualism have been the positivist writers
within the municipal sphere to rules of international law, both Triepel and Anzilotti. According to Triepel, there were two
where such rules are and where they are not in conflict with fundamental differences between the two systems :
municipal law. Besides, in the international sphere, international a. The subjects of state law are individuals, while the subjects of
tribunals may be called upon to determine the precise status international law are states solely and exclusively.
and effect of a rule of municipal law, which is relied upon by one b. Their juridical origins are different; the source of state law is
party to a case. the will of the state itself, the source of international law is the
Theories as to the Relation between International Law and State common will (Gemeinwille) of states.
Law.-- As to (b), the statement is somehow misleading it begs the
Certain theories have been propounded to explain the question to say that the Gemeinwille is a source of international
relationship between International Law and Municipal Law. Two law. The natural inference is that over and above the
principal theories are known as monism and dualism. According Gemeinwille there are fundamental principles of international
to monism, international law and state law are concomitant law, superior to it and indeed regulating its exercise or
aspect of the one system-- law is general; according to dualism, expression.
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Anzilotti adopted a different approach; he distinguished more limited range of subject matters.
international law and state law according to the fundamental Monism
principles by which each system is conditioned. In his view, Followers of monism regard all law as a single unity composed
state law is conditioned by the fundamental principle or norm of binding legal rules, whether those rules are obligatory on
that state legislation is to be obeyed, while international law is states, on individuals, or on entities other than states. In their
conditioned by the principle pacta sunt servanda, ie. Agreement view, the science of law is a unified field of knowledge, and the
between states are to be respected. Thus the two systems are decisive point is therefore whether or not international law is
entirely separate, and Anzilotti maintained further that they are true law. Once it be accepted as a hypothesis that international
so distinct that no conflicts between them are possible; there law is a system of rules of a truly legal character, it was
may be references from one to the other, but nothing more. As impossible according to Kelsen and other monist writers to deny
to Anzilotti's theory, it is enough to say that for reasons already that the two systems constitute part of that unity corresponding
given, it is incorrect to regard pacta sunt servanda as the to the unity of legal science. Thus any construction other than
underlying norm of international law; it is a partial illustration of a monism, and in particular dualism, is bound to amount to a
much wider principle lying at the root of international law. denial of the true legal character of international law. There
Apart from the positivist writers, the theory of dualism has cannot in view of the monist writers be any escape from the
received support from certain non-positivist writers and jurists, position that the two systems, because they are both systems of
and from a number of judges of municipal courts. The reasoning legal rules, are interrelated parts of the one legal structure.
of this class of dualists differ from that of the positivist writers, There are, however other writers who have favoured monism for
since they look primarily to the empirical differences in the less abstract reasons, that international law and state law are
formal sources of the two systems, namely, that on the one both part of a universal body of legal rules binding all human
hand, international law consists for the most part of customary beings collectively or singly. In other words, it is the individual
and treaty rules, whereas municipal law, on the other hand, who really lies at the root of the unity of all law.
consists mainly of judge-made law and of statutes passed by Question of Primacy
municipal legislatures. That since international law has In fact, International Law and municipal law are not comparable
expanded to so great an extent into many different areas, while since both have their own sphere of operations and neither can
domestic national laws have continued to be concerned with a be termed as subordinate to the other. The supremacy of
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international law in the international sphere is unchallenged in constitution, it would necessarily cease to be in force once the
the same way as of municipal law in the State matters. They are constitution on which its authority rested, disappeared. But
mutually independent and normally do not come into conflict nothing is more certain than that the valid operation of
with each other. But, at time, a conflict of obligation may occur, international law is independent of change or abolition of
or the State is not able to act on the domestic plane in the constitutions, or of revolutions.
manner required b international law. In such a situation, whether b. The entry of new states into the international society. It is well
the municipal court would apply the international law by established that international law binds the new state without its
overriding the municipal law depends on the provisions of the consent, and such consent if expressed is merely declaratory of
municipal law itself. The supremacy of international law in the true legal position. Besides, there is a duty on every state to
municipal sphere simply requires that if a state is in breach of its bring not only its laws, but also its constitution, into harmony
international obligations for which it is internationally with international law.
responsible, it cannot shelter itself behind domestic law by way It may be argued in favour of state primacy that states have the
of absolution. very widest liberties and exercise almost complete sovereignty.
On this point, the protagonists of monism are somewhat divided. 'Transformation' and 'specific adoption' theories
Kelsen's answer was to make a structural analysis of Certain theories concerning the application of international law
international law and state law. Here he applied his well-known within the municipal sphere.
'hierarchical or Grundnorm doctrine' according to which each On the one hand, the positivists have put forward the view that
rule is conditioned by a superior rule for its validity and thus, in the rules of international law cannot directly be applied within
turn, it derives validity from the fundamental postulate, i.e. the the municipal sphere by state courts or otherwise; in order to be
Grundnorm which might belong either to international law or so applied such rules must undergo a process of specific
state law. He has ascribed primacy to State law because, in his adoption by, or specific incorporation into, municipal law. Since,
opinion, the choice between either system could not be made in according to positivist theory, international law and state law
a strictly scientific way. constitute two strictly separate and structurally different
The thesis of the ultimate primacy of state law was claimed systems, the former cannot impinge upon state law unless the
to break down in two crucial cases: latter allows its constitutional machinery to be used for that
a. If international law drew its validity only from a state purpose. In the case of treaty rules, it is claimed that there must
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be transformation of the treaty, and this transformation of the The object of the present discussion is to ascertain in what
treaty into state law, which is not merely a formal but a manner and to what extent municipal courts do apply a rule of
substantive requirement, alone validates the extension to international law. The answers to these questions will be found
individuals of the rules laid down in treaties. to require distinctions to be made between customary and treaty
The transformation theory is based on an alleged difference rules of international law; and on the other between statutory
between treaties on the one hand, and state law or regulations and judge-made municipal law.
on the other according to the theory, there is a difference British Practice
between treaties which are of the nature of promises, and British practice draws a distinction between (i) customary rules
municipal statutes which are of the nature of commands. Critics of international law; (ii) rules laid down by treaties.
of the transformation theory have objected that this point is (i) The rule as to customary international law according to the
somewhat artificial. The real object of treaties and of statutes- current modern judicial authority is that customary rules of
indeed their common ground- is to stipulate that certain international law are deemed to be part of the law of the land,
situations of fact will involve certain determinate legal and will be applied as such by British municipal courts, subject
consequences. The distinction between promise and command to two important qualifications:
is relevant to form and procedure but not to the true legal a. That such rules are not inconsistent with British Statutes.
character of these instruments. b. That once the scope of such customary rules has been
Critics have put forward a theory of their own-the delegation determined by British courts of final authority, all British courts
theory. According to this theory there is delegated to each state are thereafter bound by that determination.
constitution by constitutional rules of international law, the right The rules as stated above is somewhat narrower than which
to determine when the provisions of a treaty or convention are was formerly applicable. In the eighteenth century, by a doctrine
to come into force and the manner in which they are to be known sometimes as the 'Blackstonian” doctrine, but more
embodies in state law. There is no transformation, there is no generally as the 'incorporation' doctrine, customary international
fresh creation of rules or municipal law, but merely a law and the two above-mentioned qualifications were not
prolongation of one single act of creation. expressly formulated. Thus Blackstone's statement of the
State Practice as to Operation of International Law within doctrine was in these terms:
Municipal Sphere 'The law of nations is here adopted in its full extent by the
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common law, and it is held to be a part of the law of the land. in regard to certain matters falling peculiarly within the Crown's
In terms the courts of law and equity stated that they would give prerogative powers. Such certificate or statement may be
effect to settled rules of international law as part of English law. difficult to reconcile with existing rules of international law.
This did not mean, however that they would enforce Notwithstanding judicial doubts as to its scope, the incorporation
international law if it conflicted with an English statute or judicial doctrine has left its definite mark in two established rules
decision. recognised by British Courts.
A customary rule must not be inconsistent with statutes or prior a. A Rule of Harmonious construction. Acts of Parliament and
judicial decisions of final authority, it is also a condition statutory instruments are to be interpreted so as not to conflict
precedent that the rule is one generally accepted by the with international law. There is indeed a presumption that
international community. Parliament did not intend to commit a breach of international
Customary rules of international law could never be applied by law.
British municipal courts unless they had been embodied in a b. A Rule of evidence. International law need not, like foreign
British statute. A more moderate view is that international law is law, be proved as a fact by expert evidence or otherwise. The
not a part of British domestic law, but may be a 'source' of rules British courts will take judicial notice of its rules, and may of their
applied by a British court; if, however, this meant that a British own volition refer to textbooks and other sources for evidence
judge were free to reject a generally recognised customary rule thereof.
of international law, it would be contrary to authority. In the matter of giving effect to international law, the position of
There are two important exceptions to the automatic British Prize Courts is different from that of the courts of
applicability of customary international law by British municipal common law and equity. Prize Courts are specifically appointed
courts : to apply international law.
1. Acts of state by the executive, for example a declaration of (ii) The British practice as to treaties, as distinct from
war, or an annexation of territory, may not be questioned by customary international law is conditioned primarily by the
British municipal courts, notwithstanding that a breach of constitutional principles governing the relations between the
international law may have been involved. executive and Parliament. The negotiation, signature, and
2. British municipal courts regard themselves as bound by a ratification of treaties are matter belonging to the prerogative
certificate or authoritative statement on behalf of the executive powers of the Crown. It has become established that:
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a. Treaties which : (1) affect the private rights of British American Practice is very similar to the British Practice. Such
Subjects, or (2) involve any modification of the common or rules are administered as part of the law of the land, and Acts of
statute law by virtue of their provisions or otherwise, or (3) the United States Congress are construed so as not to conflict
require the vesting of additional powers in the Crown, or (4) therewith, although a later clear statute will prevail over earlier
impose additional financial obligations, direct or contingent, customary international law. Also, an American court is entitled
upon the government of Great Britain, must receive to ascertain the rules of international law on a particular point by
parliamentary assent through an enabling Act of Parliament, referring to textbooks, state practice, and other sources.
and, if necessary, any legislation to effect the requisite changes Defense is, however, paid to the views of the executive, as in
in the law must be passes. the case of British courts, to the extent that American courts
b. Treaties made expressly subject to the approval of normally regard themselves as bound by the certificates or
Parliament require its approval, which is usually given in the 'suggestions' of the executive regarding such matters as the
form of a statute, though sometimes by resolution. recognition of foreign states, the territorial limits of a foreign
c. Treaties involving the cession of British territory require the country, and the immunity of governments, persons,
approval of Parliament given by a statute. corporations, or vessels from jurisdiction.
d. No legislation is required for certain specific classes of But so far as treaties are concerned, there is a radical difference
treaties, namely, treaties modifying the belligerent rights of the from the British practice. The American practice does not
Crown when engaged in maritime warfare, and administrative depend like the British practice upon any reconciliation between
agreements of an informal character needing only signature, but the prerogative powers of the executive and the legislative
not ratification, provided they do not involve any alternation of domain of Parliament, but upon the provisions of United States
municipal law. Constitution stipulating that 'all Treaties made, or which shall be
Where under the above-mentioned rules, a British treaty is made under the Authority of the United States', shall be 'the
required to be implemented by legislation, a mere general or Supreme Law of Land', and upon a distinction drawn by
vague allusion to the treaty in a statute is not sufficient to American courts between 'self-executing' and 'non-self-
constitute the necessary legislative implementation. executing' treaties. A self-executing treaty is one which does not
American Practice in the view of American courts expressly or by its nature require
In the matter of customary rules of international law, the legislation to make it operative within the municipal field.
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If a treaty is within the terms of the Constitution, and it is self- everything depended upon the provisions of Constitution. In
executing within the meaning just referred to, then under the order to know the position of International Law in the post
Constitution it is deemed to be operative as part of the law of constitution period, it is necessary to examine the relevant
the United States, and will prevail, also, over a customary rule of provisions of the Constitution of India. The most relevant
international law. On the other hand, treaties which are not self- provision is contained in Article 51.
executing, but require legislation, are not binding upon But Article 51 does not give any clear guidance regarding the
American courts until the necessary legislation is enacted. position of international law in India as well as the relationship of
Moreover, if the relevant treaty purports to deal with a particular municipal law and International law because this article is
subject matter in respect of which the United States Congress contained in Part IV of the Constitution of India which are non-
has exclusive legislative powers, the treaty will be considered as justiciable. Both international customary law and treaty law have
prima facie non-self-executing irrespective of what the intention been treated on the same footing in Article 51. An analysis of
of the parties is claimed to be. judicial decision shows that in India dualism is followed.
Self-executing treaties or conventions ratified by the United Article 51 of the Constitution of India, in so far as it requires the
States, are binding on American courts, even if in conflict with various organs of State, to foster respect for international law
previous American statutes, provided that there is no conflict and treaties would seem to strengthen rather weaken the legacy
with the United States Constitution. But a statute passed by of the common law principle that international law is a part of the
Congress overrules previous treaties that have become the law law of the land.
of the land, although there is a presumption that Congress did Thus, so far as customary rules of international law are
not intend to overrule such treaties, and unless the purpose of concerned, the position prevailing immediately preceding the
Congress to overrule international law has been clearly commencement of the Constitution continues even after the
expressed, such abrogation or modification will not be deemed coming into force of the Constitution.
to have been carried out. In Re-Berubari Union and Exchange of Enclaves, the Supreme
Indian Practice Court had to decide whether any legislation was necessary for
Before the adoption of Indian Constitution the Indian practice in the agreement relating to Berubari Union. Since it involved the
respect of relation of international law was similar to the British cession of Indian territory, the highest tribunal answered in
practice. After the adoption of the constitution of India alternative. The Supreme Court observed that the treaty-making
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power would have to be exercised in the manner contemplated therein. Any international Convention not inconsistent with the
by the Constitution and subject to the limitations imposed by it. fundamental rights and in harmony with its spirit must be read
Whether the treaty made can be implemented by ordinary into these provisions to enlarge the meaning and content
legislation or by the constitutional amendments will naturally thereof, to promote the object of constitutional guarantee. This
depend on the provisions of the constitution itself. implicit from Article 51(c) and the enabling power of Parliament
This was held by the Supreme Court of India in Jolly George to enact laws for implementing international Conventions and
Garghese v. Bank of Cochin, in the judgment of the Court norms.
quoted that international conventional law must go through the In this case, the Apex Court was dealing with the problem of
process of transformation into the municipal law before the harassment of working women observed that the meaning and
international treaty can become an internal law. content of the fundamental rights guaranteed in the Constitution
In Gramophone Company of India Ltd. v. Birendera Bahadur are of sufficient amplitude to encompass all the facets of gender
Pandey, the Supreme Court observed that if in respect of any equality including prevention of sexual harassment abuse.
principle of international law the Parliament says 'no', the Independence of judiciary forms a part of our constitutional
national court cannot say 'Yes'. National court shall approve scheme. The International Conventions (especially Convention
international law only when it does not conflict with national law. on the Elimination of All Forms of Discrimination Against
In case however the conflict is inevitable, the national law shall Women) and norms are to be read into them n the absence of
prevail. enacted domestic law occupying the field when there is no
Present Legal Position.-- inconsistency between them. It is now an accepted rule of
The Supreme Court in Vishaka v. State of Rajasthan, in the judicial construction that regard must be had to International
absence of domestic law occupying the filed to formulate Conventions and norms for construing domestic law when there
effective measures to check the evil of sexual harassment of is no inconsistency between them and there is a void in the
working women at all work places, the contents of International domestic law.
Conventions and norms are significant for the purpose of
interpretation of the guarantee of gender equality and right to RECOGNITION
work with human dignity in article 14, 15, 19) and 21 of the
Constitution and the safeguards of sexual harassment implicit The identity and number of states belonging to the international
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community are by no means fixed and invariable. The march of a. Recognition is, as the practice of most states shows, much
history produces many changes. Old states disappear or unite more a question of policy than of law. The policy of the
with other states to form a new state, or disintegrate and split recognising state is conditioned principally by the necessity of
into several new states, or former colonial or vassal territories protecting its own interests, which lie in maintaining proper
may be process of emancipation themselves attain statehood. relations with any new state or new government that is likely to
Then, also, even in the case of existing states, revolutions occur be stable and permanent.
or military conquests are effected, and the status of the new b. There are several distinct categories of recognition. The
governments becomes a matter of concern to other states, recognition of new states, and the recognition of new heads or
which formerly had relations with the displaced governments, governments of existing states. Although very much the same
raising the question of whether or not to engage in formal or principles are applicable to both, it is heads of recognition, there
informal relations with the new regimes, either by recognition of are the recognition of entities as entitled to the rights of
new government is not followed, solely by some kind of belligerency, the recognition of entries entitled to be considered
intercourse. as insurgent governments, the recently proposed new category
These transformations raise problems for the international of recognition of national liberation or resistance movements,
community, of which one is the matter of recognition of the new and the recognition of territorial and other changes, new
state or new government or other change of status involved. At treaties, etc. Finally, there is the distinction to bear in mind
some time or other, this issue of recognition has to be faced by between recognition de jure and de facto of states and
certain states, particularly if diplomatic intercourse must governments.
necessarily be maintained with the states or governments to be According to Kelsen, a community to be recognised as an
recognised. international person must fulfil the following condition : (1) The
However, the subject of one of some difficulty, and at this stage community must be politically organised; (2) It should have
of the development of international law, can be presented less control over a definite territory; (3) This definite control should
as a collection of clearly defined rules or principles than as a tend towards permanence; (4) The community thus constituted
body of fluid, inconsistent, any unsystematic state practice, must be independent. Thus the conditions of Statehood are (a)
involving as well the adoption by states of different policies. People; (b) A territory; (c) a government; and (d) sovereignty.
The reason for this are two fold : This act of recognition in both cases may be express, that is by
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formal declaration, or implied when it is a matter of inference established situation of fact. The chief exponents of this theory
from certain relations between the recognising state and the are Brierly, fisher etc. Brierly has remarked, the granting or
new state or new government. The manner of recognition is not recognition to a new State is not a 'Constitutive' but a
material, provided that it unequivocally indicates the intention of 'Declaratory' act. A state may exist without being recognized
the recognising state. and if it exists in fact, then whether or not, it has been formally
Recognition under modern state practice involves more than recognized by other States it has a right to be treated by them
cognition, that is to say more than an avowal of knowledge that as a State.
a state or government possesses the requisite bare The bulk of international practice supports the evidentiary
qualifications to be recognised. The practical purpose of theory, inasmuch as whi8le recognition has often been given for
recognition, namely, the initiation of formal relations with the political reasons and has tended therefore to be constitutive in
recognising state, must also always be borne in mind. Once character, countries generally seek to give or to refuse it in
granted, recognition in sense estops or precludes the accordance with legal principles and precedents. Moreover, a
recognising state from contesting the qualifications for mere refusal by a single state to recognise could not affect the
recognition of the state or government recognised. situation could not affect the situation if a great number of other
There are two principal theories as to the nature, function, and states had already given their recognition.
effect of recognition : The evidentiary theory is further supported by the following
a. Constitutive Theory:- According to this theory, it is the act of rules.
recognition alone which creates statehood or which clothes a A. The rule that if a question arises in the courts of a new state
new government with any authority or status in the international as to the date at which the state came into existence, it will be
sphere. Anzilloti, Oppenheim, etc. are the chief exponents of irrelevant to consider the date when treaties with other states
constitutive theory. Openheim, says A state is, and becomes, an recognising it came into operation. The date when the
international person, through, recognition only and exclusively. r4equirements of statehood were in fact first fulfilled is the only
b. Declaratory or Evidentiary theory:- According to this material date.
theory, statehood or the authority of a new government exists as B. The rule that recongition of a new state has retroactive effect,
such prior to and independently of recognition. The act of dating back to its actual inception as an independent state.
recognition is merely a formal acknowledgment of an These two rules which apply also to newly recognised
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governments are based principally on the necessary Implied recognition

consideration that there should be no gap of time during which a Implied recognition is very much a matter of the intention of the
state or government is out of existence. In other words, state said to have given recognition. The implication is made
continuity is the essence of state sovereignty or of governmental solely when the circumstances unequivocally indicate the
authority. intention to establish formal relations with the new state or new
Further authority against the constitutive theory is the Tinoco government. For example, by entering into some form of
Arbitration, where the Arbitrator held that the revolutionary relations with it. Such conduct can usually amount to no more
Tinoco Government of Costa Rica which came into power in than recognition de facto, or recognition of an entity as an
1917 was a properly constituted government, although not insurgent authority or indicate an intention to maintain through
recognised by Great Britain, and the Great Britain was not agents, informal relations without recognitions.
estopped (ie, precluded in law) by such prior non-recognition In practice, the only legitimate occasion for conclusively
from later alleging that the government was in fact a duty and implying recognition de jure are :
property constituted one. 1. The formal signature of a bilateral treaty by the recognised
Is there a duty to grant recognition? and recognizing States as distinct from mere temporary
It has been urged that states are subject to a duty under arrangements or agreements. It is not necessary that the treaty
international law to recognise a new state or a new government be ratified.
fulfilling the legal requirements of statehood or of governmental 2. The formal initiation of diplomatic relations between the
capacity. There is no general acceptance of the existence of the recognised and recognising state.
duty or the right mentioned. If there were such a duty under 3. The usage of a consular exequatur by the admitting state for
general customary international law, it would be one observed a consul of an unrecognised state.
by all major states, yet no such duty is acknowledged by states In certain circumstances exceptional circumstances, but not
following the Estrada doctrine of non-recognition, nor so far as otherwise, recognition has been inferred from the following
concerns the recognition of new governments is the existence of circumstances :
the duty recognised by states such as the United States, the a. Common participation in a multilateral treaty.
United Kingdom and Australia, which have abandoned the b. Participation in an international conference.
policy of such recognition of new regimes. c. Initiation of negotiations between a recognising and a
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recognised state. arises except when changes in the headship of the state or of its
Recognition of the validity of the laws decreed or enacted by a government take place in an abnormal or revolutionary manner.
particular entity, does not necessarily import recognition of the Where the change proceeds in a formal and constitutional way,
law-making entity. recognition by other states is purely a matter of formality. The
Recognition subject to a condition recognising government should at least be satisfied as to the
Sometimes states are recognised subject to a condition, prospects of stability of the new government.
generally an obligation which they undertake to fulfil. The effect In the case of nascent states, recognition raises many problems
of such conditional recognition is that failure to fulfil the for the recognising states; first, because of the merging of the
obligation does not annul the recognition, as once given this is new state with its new government and the difficulty of
incapable of withdrawal. By breaking the condition, the recognising the one without recognising the other; secondly,
recognised state may be guilty of a breach of international law, most states prefer, in the matter of recognition of nascent
and it is open to the recognising states to sever diplomatic states, to be as non-committal as possible and to preface the
relations as a form of sanction, or otherwise to proceed. But the date of recognition de jure by a stage of recongition de facto.
status which the recognised state has obtained from the act of There is no difficulty, of course, where the new state is a former
recognition cannot then be retracted. dependency or trust territory, and the parent or tutelary state,
In practice states have repeatedly, as consideration for the grant itself already de jure recognised, has consented to
of recognition, exacted from states or governments to be emancipation. Recognition can be accorded automatically, and
recognised some guarantee or undertaking or stipulation. is essentially then a legal act of a cognitive nature.
Collective recognition
The advantage of recognition taking place by some collective United Nations Convention of Law of Sea.
international act, or through the medium of an international
institution cannot be denied. It would obviate the present Earlier the powerful States laid extensive claims of sovereignty
embarrassments due to unilateral acts of recognition. over specific portions of the open sea. Grotius Championed the
Recognition of a head of state or of a new government doctrine of the ‘freedom of seas’ because it is impossible for any
This has nothing to do with the recognition of a state itself. In nation to effectively possess them. The law developed out of
case of existing states, no difficulty in recognising a government well-settled usages culminating into customary law. The
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hallmark of this law, which was followed upto the half of the with their problem of access to the sea. It was soon being
twentieth century, was essentially that of non-regulation and realized that these conventions were inadequate to meet the
laissez faire and except that of territorial waters, the law new challenges put up by science and technology, which made
essentially endorsed the doctrine of ‘open sea’. But the United it possible for States with sufficient resources and know-how to
States declared proclamation jurisdiction over the continental explore and exploit the underwater mineral resources at greater
shelf gave a new direction to the law of sea. Many nations made depth of the sea, and the consequential need to prevent the
sweaping claims to protect their economic and military interests. increasing pollution, and the conservation of the fishing
These developments stressed the urgency for codification of law resources of the seas.
in order to strive uniformity and resolve maritime conflicts This made it imperative to reformulate the law of the sea in
among nations. The matter was put on the agenda of the composite form to make it conducive to the new interests and
International Law Commission in 1949. demands of all concerned and paved the way to hold the Third
On the basis of the drafts prepared by the ILC, in 1958, the First Law of the Sea Conference.
United Nations Conference on the Law of the Sea took place at The initiative to hold a new conference came from Malta’s
Geneva, which adopted four conventions, viz., the Geneva representative to the United Nations at whose behest the
Convention on the Territorial Sea and the contiguous Zone, on General Assembly considered the item concerning the
the High Sea, on the ;Continental Shelf, and the Fishing and exploitation and uses of the seabed and ocean floor beyond the
Conservation of the Living Resources of the High Seas. But the limits of the present national jurisdiction. He also pressed for the
important issues related to the breadth of the territorial sea and United Nations endorsement that deep seabed resources are
the fishing rights of the coastal States beyond their territorial sea the ‘common heritage of mankind’ and the same should be
were left undecided. A Second Conference on the Law of Sea developed in the interests of all nations, with special regard to
was held in 1960, at Geneva, but again no agreement could be the needs of developing countries. The move was to secure the
found these issues. mineral wealth of the oceans as well as to avoid the
Together, both these conference on the Law of the Sea left militarization of the deep seabed. This led to the formation of a
many matters unsettled. Further, the interests of the landlocked 42 member Ad hoc Seabed Committee in 190, the General
States were also not adequately protected, except the High Assembly adopted a declaration of Principles Governing the
Seas Convention, which in Art. 3 explicitly and specially dealt Seabed and Oceans floor, and the Sub-soil thereof, beyond the
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limits of National Jurisdiction, which proclaimed that the In the case Concerning the Continental Shelf between Libya
exploitation of these areas should be carried out for the benefit and Malta, the Court observed that ‘the 1982 Convention is of
of the mankind as a whole. major importance, having been adopted by an overwhelming
At the end of nine years in 12 sessions, the Conference adopted majority of States; hence it is clearly the duty of the court to
the Law of the Sea Convention in 1982. Though it was agreed in consider in what degree any of its relevant provisions are
its second session that all the provisions as well as the binding upon the parties as a rule of customary international
complete text of the Convention would be accepted by law’, and noted that the provisions on the continental shelf
consensus with a view to increase their acceptability and ‘there reflect the customary law of the continental shelf.
shall be no voting until all efforts at consensus have been Thus, the Convention is a major achievement and its ambit is
exhausted’, the draft Convention was adopted through voting in very wide.
the eleventh session of the Conference. Maritime Belt or Territorial Sea: Maritime belt or territorial sea
The Convention consists of 320 Articles spread over 17 parts is that part of the sea which is adjacent to the coastal State and
and nine annexes. Apart from these, there are four resolutions. which is bounded by the high seas on its outer edge. The
The Convention comprises the ground covered by the four coastal State exercises its sovereignty over this area as it
Geneva Convention of 1958, and creates some new regimes. In exercises over its internal waters. The sovereignty extends to
fact, many of the provisions repeat verbatim or in essence the the airspace over the territorial sea as well as its bed and sub-
provisions of the Geneva Conventions, or give more detailed soil. This sovereignty accrues to a State under customary
rules on matters covered by them. It contains provisions on international law which no State can refuse. However, the
those matters on the new legal regimes of Exclusive Economic sovereignty over this area has to be exercised subject to the
Zone and the deep seabed. It has laid down a 12 nautical miles provisions of the conventions and ‘to other rules of international
limit for the territorial sea. The Convention contains a detailed law’, which provides certain rights to other States, particularly
machinery for the settlement of disputes, including an right of ‘innocent passage’ in the territorial waters of the State.
International Tribunal for the Law of the Sea. It also provides for It is generally held view that at the turn of the century, there
the compulsory judicial settlement of most of the disputes that existed a three-mile limit as a ruleof general application. The
may arise under the Convention, at the request of one of the three-mile rule, popularly known as ‘cannon-shot’ rule, had a
parties to the dispute. rationale that a State’s sovereignty extended to the sea as far
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as a canon could reach or fire. Before the 1982 Sea Convention low-water mark but from straight baselines linking some 48
was concluded, States proclaimed varying breadth of the outer most points of island and lands, at a considerable distance
territorial sea, generally ranging from 3 to 12 miles, though in from the coast By using the straight baselines, some of which
certain cases they had proclaimed wider areas than that, in few were 30 miles long and the longest was 44 miles, Norway could
cases upto 200 nautical miles. But at the UNCLOS-III, claims enclose waters within its territorial sea that would have been the
wider than 12 miles did not find favour and the 12 miles rule was high seas, and hence open to foreign fishing. The UK, whose
accepted by the Conference, which may be considered the fishing interests were affected by this Decree, challenged the
present customary international law position. legality of the straight baseline system adopted by Norway and
Article 3 of the 1982 Sea Convention limits the breadth of the the choice of certain baselines used in applying it. The Court
territorial sea to 12 nautical miles ‘measured from baselines upheld the method applied by Norway in drawing the baselines
determined in accordance with the Convention’. Two methods and it also did not reject the criterion of low water mark. But the
have been laid down for measuring the breadth of the territorial manner of application of straight baselines is ‘dictated by
sea: the low-water line and the straight baseline. The normal geographical realities’.
method used is the low-water line as marked on large scale It was propounded by the judgment that where a State has a
charts officially recognized by coastal State. Where the rugged coastline, deeply indented, or if there is a fringe of
coastline is deeply intended and cut into, or if there is a fringe of islands in the immediate vicinity, the straight baseline, joining
islands along the coast in its immediate vicinity, the straight the low water at appropriate points, is admissible, provided: (i)
baseline method joining appropriate points may be employed in the drawing of baseline must not depart to any appreciate extent
drawing the baseline from which the breadth of the territorial sea from the ‘general direction’ of the coast; (ii) the areas lying
is measured. within the baselines are sufficiently closely linked to the adjacent
The method of straight baseline was enunciated by the Anglo land domain; and (iii) the economic interests as evidenced by
Norwegian Fisheries case, which had a decisive effect on the long established usage, peculiar to a particular region
baseline issue. In this case, Norway which has a fringe concerned, must be taken into account, before the straight
coastline, by its 1935 Decree proclaimed exclusive fishery zone baseline method is allowed to be followed by coastal State.
(meant territorial sea) along almost 1000 miles of its coastline. The principles laid down in the Fisheries case relating to straight
The zone which was four miles wide, measured not from the baselines are to be followed in drawing baselines except those
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of low-tide elevations, unless the lines drawn in such Under the Convention vessels entitled to innocent passage are
circumstances have received ‘general international recognition’. ‘ships of all states’ without making a distinction between
The system of straight baselines is not to be applied in a merchant, public or warships. The submarines, however, are
manner as to cut off the territorial sea or an EEZ of another required to navigate on the surface. Warships have the right of
State from the high seas. passage through international straits, as decided in the Corfu
The delimitation of the territorial sea between two States Channel case.
opposite or adjacent to each other can take place in accordance The coastal States has the right to make laws to regulate the
with an agreement between them, failing which the median line, territorial waters. It can adopt laws and regulations governing
every point of which is equidistant from the nearest points on innocent passage, and to prevent passage which is not
the baselines from which the breath of the territorial seas of innocent. Foreign ships in innocent passage are required to
each of the two States, is measured. This rule is not applicable comply with all such laws and regulations, framed by the coastal
in the cases of ‘historic title’ or other special circumstance. State, and other common international regulations for the
In the territorial sea, the coastal State enjoys all the right and prevention of collisions at sea.
duties inherent in sovereignty, and the right to regulate this The costal State is required not to hamper or impair innocent
regime. Other States also enjoy certain privileges associated passage or to apply rules and regulations in this regard in a
with the right of innocent passage. discriminatory manner. Nevertheless, the coastal State is
The customary international law recognizes the right of innocent empowered to ‘take the necessary steps’ to prevent non-
passage for ships of all States through the territorial waters of a innocent passage.
State but no such right exists for aircrafts in the airspace over India’s position in relation to the law of the sea is generally
the territorial waters. ‘Ships of all States, whether coastal or not, governed by Art. 297 of the Constitution of India, and the
shall enjoy the right of innocent passage through the territorial Territorial Water, Continental Shelf, EEZ and other Maritime
sea.’ No right of innocent passage exists through internal Zones Acts. The Maritime Zones Act proclaims the sovereignty
waters. The passage to be considered innocent, of foreign of India over the territorial waters of India and the seabed and
fishing vessels, their conduct should be according to the laws sub-soil underlying and the airspace over such water. The limits
and regulations made by the coastal State for fishing purposes of the territorial is the line every point of whfch is at a distance of
in territorial sea. 12 nautical miles from the nearest pint of the appropriate
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baseline. All foreign ships are given the right of innocent The concept was finally incorporated in 1982 Convention and it
passage through the territorial waters. Passage is innocent so has since become part of the customary law of the sea. The
long as it is not prejudicial to the peace, good order or security EEZ is an area beyond and adjacent to the territorial sea
of India. However, foreign warships, including submarines and extending upto 200 nautical miles from the baselines from which
other underwater vehicles, may enter or pass through the the breadth of the territorial sea is measured. The zone is an
territorial water by giving prior notification to the Central intermediate area between the high seas and the territorial sea
Government. Submarines and other underwater vehicles are to with a distinct regime of its own which a State can specifically
navigate on the surface and show their flags when passing claim. The zone comprises the area which was previously part
through such waters. The Central Government, if satisfied that it of the high seas, and is not under the sovereignty of the coastal
is necessary in the interest of peace, good order or security of State. Thought the Convention refrains from describing EEZ as
India or any part thereof, may suspend the innocent passage, a part of the high seas, other State generally continue to
absolutely or subject to certain exceptions or modifications, by exercise the freedoms of the high seas in the EEZ, in particular,
notification made in the official gazette. Thus, the position of freedoms of navigation and overflight, laying of submarine
India in this regard is in accordance with the 1982 Convention. cables and pipelines and other internationally lawful uses of the
sea related to these freedoms. But the Convention does not
Exclusive Economic Zone specify whether foreign warships, which enjoy freedom of
navigation through EEZ, can conduct navel exercises in the
The most significant contribution of the UNCLOS III was the EEZ as the can on high seas.
creation of the new regime of EEZ. The zone, in fact, has its The regime of EEZ accords certain rights to the coastal State.
roots in the concept of Exclusive Fishing Zone and the doctrine One, it has sovereign rights for the purpose of exploring,
of the continental shelf. It was actuated by the developments exploiting, conserving and managing the natural resources,
that had taken place after the Second World War, when many whether living or non-living, of the waters superjacent to the
nations (particularly Latin American) started proclaiming 200 seabed and of the seabed and sub-soil, and with regard to
miles as their fishery zone. Such claims were motivated by a ‘other activities’, such as the production of energy from the
concern for the conservation of living sea resources and other water, currents and winds. Two, the coastal State has the
considerations. exclusive jurisdiction with respect to the establishment and use
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of artificial islands, installations and structures; marine scientific effect. The notification should have the approval of both the
research; and the protection and preservation of the marine House of Parliament before issuance. No person, including a
environment. foreign government, can explore or exploit this area without an
While exercising its rights and performing its duties in relation to agreement with the Central Government or an authority granted
this zone, the coastal States has to give due regard to the rights by the Central Government. This provision, however shall not
and duties of other States. Foreign ships are required to respect apply to fishing by an Indian citizen.
these laws and abstain from illegal fishing. But imprisonment or The Central Government, by notification, declares any area as a
any other corporal punishment for violation of fisheries designated area and makes laws with respect and also for the
legislation is excluded. While exercising this right, the coastal protection of the marine environment, or customs or other fiscal
State is obliged to conserve and manage the living resources of matters in relation to such designated area. While declaring any
the EEZ, and to determine the level of exploitation taking into area of the EEZ a designated area, the government will ensure
account the environmental and economic factors. freedom of navigation, by taking into account the interests of
Any conflict on the unregulated uses of the EEZ between a India. The government may extend any law, imposing
coastal State and other States should be resolved on the basis restrictions and modifications, temporarily on the EEZ or part
of equity and in the light of all the relevant circumstances. thereof, and may make any provision for the enforcement of
The delimitation of the EEZ between States with opposite or such law.
adjacent coasts is to be effected ‘by agreement on the basis of
international law in order to achieve an equitable solution’. If no Continental Shelf
agreement can be reached within a reasonable time, the States
concerned may resort to the procedures provided in the One of the important development after the second World War
Convention. in relation to the law of the sea was the evolution and
Section 7 of the Martime Zones Act, in India, is in compliance of acceptance of the concept of continental shelf. The President of
the 1982 convention, which prescribes 200 nautical miles as the the United States, proclaimed that the natural resources of the
limit of EEZ. The limit may be altered by the Central continental shelf were ‘beneath the high seas but contiguous to
Government, giving due regard to international law and State the coasts of the United States as appertaining to the United
practice, through a notification in the Official Gazette to this States and subject to its jurisdiction and control’. The continental
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shelf was regarded ‘as an extension of land mass of the coastal shelf’ as referring ‘to the seabed and sub-soil of the submarine
nation’. The main reason for this action of the United States was areas adjacent to the coast but outside the area of the territorial
to reserve for itself, the oil and mineral resources in the seabed sea, to a depth to 200 meters or beyond that limit, to where the
which had become technologically possible to drill. depth of the superjacent waters admits of the exploitation of the
Proclamation soon became the trend setter and was natural resources of the said areas’. Thus, the shelf has been
immediately followed by similar unilateral declarations by many defined in terms of ‘exploitability; and the depth of the sea. It
maritime nations which laid claims of exclusive jurisdiction means that if the exploitation of the resources could be made
control or sovereign rights over the resources of the continental beyond the limit of 200 meters depth, that area could be claimed
shelf and associated offshore areas. These declarations led to by the coastal State as its continental shelf. The requirement of
the formation of customary international law giving coastal the phrase ‘adjacent of the coast’ is not solely confined to the
States jurisdictional rights over their shelves. These rights over proximity, but provided the legal basis for the coastal State to
the resources of the continental shelf were universally accepted claim jurisdiction over the continental shelf.
by the 1958 Geneva Convention on the Continental Shelf. The coastal State enjoys limited sovereign rights over the
The continental shelf maybe defined as the zone around the continental shelf for the purpose of exploring and exploiting its
continent extending from the low-water line to the depth, at ‘natural resources’, and not sovereignty. These rights are
which there is usually a marked increase of declivity to greater exclusive in the sense that no one can undertake these
depth. What is commonly understood by the ‘continental shelf’ is activities without the express consent of the coastal State or
a gently sloping platform of submerged land surrounding the make a claim to the continental shelf. They also do not depend
continents and islands. It is a submerged bed of the sea, on occupation, effective or notional, or any express
contiguous to a continental land mass, and found in such a proclamation.
manner as to be really an extension of, or appurtenant to this The ‘natural resources’ of the continental shelf consist of
land mass. Normally, it extends to a depth of approximately 200 mineral and other non-living resources of the seabed and sub-
meters, at which point the first substantial ‘fall off’ of the seabed soil, together with living organisms which at the harvestable
occurs. At certain places it continues beyond a depth of 200 stage, either are immobile on or under the seabed, or are
meters. unable to move except in constant physical contact with the
In 1958 Continental Shelf Convention used the term ‘continental seabed or sub-soil.
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The coastal State also has the exclusive right to authorize and of international law ‘to the determination as between the Parties
regulate drilling of the sub-soil for all purposes. Like the EEZ, of the areas of the continental shelf in the North Sea which
the coastal State has the exclusive right to construct, maintain appertain to each of them beyond the partial boundary.
or operate the artificial islands, installations and structures on The two cases were joined by the Court. Denmark and the
the shelf. Netherlands argued that the ‘equidistance/special
The above rights of the coastal State, however, are not to affect circumstances rule’ in Art. 6 would be applied. Germany,
the legal status of the superjacent waters, or the air space instead proposed ‘the doctrine of the just and equitable share’.
above those waters. The exercise of these rights by the coastal Germany’s opposition to the ‘equidistance rule’ was based on
State is not to impair navigation or other rights and freedoms of the fact that the rule, if applied on a concave coastline, such as
States. that of North Sea, shared by all the three States concerned,
The delimitation of continental shelf between nations has would result into giving the State in the middle, and in this case
generated a lot of litigation because of its economic importance. Germany, a smaller continental shelf than it might otherwise
Rules relating to delimitation are provided in Art. 6 of the 1958 obtain. The Court rejected both these contentions and held that
Continental Shelf Convention and Art. 83 of the 1982 applying the equidistance principle will lead to inequitable
Convention. results because of the peculiar coastline of the States
The delimitation of boundaries remained more contentious concerned and opined that the notion of equidistance could not
between the adjacent States as opposed to the opposite States be logically be compulsorily applied in all situations. It is not
where the median line was to be followed. In the case of consonant with certain basic legal notions, ‘those principles
adjacent States, ‘equidistance principle’ was found to be being that delimitation must be the object of agreement between
inadequate to demarcate the continental shelf, nor did it the States concerned, and the such agreement must be arrived
represent the customary international law. The International at in accordance with equitable principles.’
Court of Justice, for the first time has the occasion to determine Thus, in the following the ‘equitable principles’, the factors to be
the adequacy of the rule enshrined in Art. 6 in the North Sea taken into account are: the relevant circumstances, i.e., the
Continental Shelf cases. In the two separate cases against geographical situation of the parties and natural configuration of
West Germany filed by the Netherlands and Denmark, the Court the coast; proportionally, i.e., the extent of the continental shelf
was asked to decide about the ‘applicable’ principles and rules areas appertaining to coastal State and the length of the coast
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measured in the general direction of the coastline; and the appropriate to bring about an equitable result.’ In deciding the
concept of natural prolongation, i.e., shelf is an appurtenant to dispute, the Court placed great reliance on the ‘equidistance
the land territory. principle’. But to achieve an equitable result, it will be necessary
The approach taken by the International Court of Justice on the to first draw a line, every point of which should be equidistant
‘equidistance principle’ has been followed by the Court in the from the coast of the two opposite States concerned and then to
Continental Shelf case (Tunisia V. Libya) case, the Court was make adjustments in the light of all the relevant circumstances.
asked to specify principles and rules of international law which The Court once again discounted the ‘natural prolongation’
were applicable to the delimitation of continental shelf between factor propounded in the North Sea Continental Shelf cases,
Tunisia and Libya. They have a single continental shelf as the which was subservient to the equitable principle.
natural prolongation of their land territory, and hence no Thus, the judicial practice has clearly established that
principle of ‘natural prolongation’ as such could be applied. The equidistance is not an applicable rule in all cases of delimitation
Court observed that since the two countries abutted on a between adjacent States. The ‘natural prolongation’ criterion
common continental shelf, physical criterion was of no has similarly given way to distance criterion (i.e. 200 nautical
assistance for the purpose of delimitation. The application of the miles from the coast). The emphasis on ‘equitable solution’ in
equidistance method could not, in particular circumstances of the 1982 Convention, however, is without any accompanying
the case, lead to an equitable result, and in such a case, the procedure to be followed to achieve it. The application of
delimitation can be effected on the basis of ‘equitable equitable principle reduces the chances of settling boundary
principles’, taking into account all the relevant circumstances. disputes without litigation.
The Continental Shelf (Libya V. Malta) case was the first case The Martime Zones Act, states the Indian position. India has
decided by the Court a fater signining of the 1982 Convention. proclaimed 200 nautical miles from the baselines as its
Though both the States were signatories to the Convention, continental shelf. The rights and duties of Indian in this regime
they agreed for the dispute to be governed by customary are similar to other States, as specified in the international
international law. The Court, however, looked into the provisions Conventions. However the government can declare the area of
of the Convention as a rule of customary international law, and continental shelf and its superjacent waters as designated areas
observed that ‘the principles and rules, applicable to the and make provisions to regulate it.
delimitation of continental shelf areas are those which are Continental Shelf and EEZ:
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The regimes of continental shelf and EEZ co-exist under the limit. Thus, under the 1982 Convention, a continental shelf can
customary international law and the 1982 Convention. They exist without EEZ, but there cannot be an EEZ without a
contain few significant similarities and overlappings. The coastal corresponding continental shelf.
State enjoys sovereign rights over the resources of the EEZ and In the Libya V. Malta Case, the Court was of the view that both
the continental shelf. These rights are primarily of economic the regimes are linked together, ‘since the rights enjoyed by a
kind and the area otherwise pertains to the high seas. The State over its continental shelf would also be possessed by it
traditional freedoms of the high seas under the customary over the seabed and sub-soil of any exclusive economic zone
international law, i.e., freedoms of navigation, overflight and which it might proclaim.’
immersion and available to other nations in these zones.
However, they are different in may ways:
(1) Whereas the coastal State gets rights over the continental
shelf because of its land territory, i.e., continental shelf accrues
to it under customary international law, the EEZ is a concept of
law, whereas continental shelf is a concept of geography.
(2) Whereas the rights of continental shelf can exist beyond the
limit of 200 miles from the coast whereas shelf and margin
extend beyond that limit, it is not so with the EEZ.
(3) The resources of the EEZ are subject to the rule of sharing
the surplus of the living resources of the EEZ with other nations,
particularly with landlocked and geographically disadvantageous
States, but the resources of the continental shelf are immuned
from this requirement and if the coastal State does not exploit
them, no other State has a right to do so.
(4) The continental regime applies to shelf resources of
States that have claimed an EEZ as well as States that have not
done so, and applies to the shelf resources beyond the 200 mile
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Public International Law (Karnataka State Law University)

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stage in the continuing development of public international law

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single act. The delegation theory is incomplete for it does not

Delegation Theory: According to this theory there is the

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important elements. Firstly, law is command enacted by

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different subjects change according to their status and

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Chamizal Arbitration (US vs Mexico)(1911)

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Soviet Russia split into many individual countries Cession

Bangladesh declared its independence

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Operation of Nature Colonies generally acquire new and separate

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connection to territory, nationality or special State

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duties of the former state.

No Succession takes place in respect

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Kinds of Asylum:- (iii) Asylum on Warships.

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1. The negotiations after Accrediting of Persons by the

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In a nutshell, these are: Functions of the WTO:

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Judicial Decisions and Legal Scholarship. The last two

Especially influential are judicial decisions, both of the

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form of political association is its most abstract quality: it is

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Constitutive Theory Palestine is recognized as country by 80 nations

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