PUBLIC INTERNATIONAL LAW

Q. What is International Law // Define Public International Law.

A. As no man is self-sufficient, no State can also be self-sufficient; mutual intercourse between

States becomes necessary. International Law is generally a body of rules and principles which
regulate the conduct of the States in their mutual intercourse. The object of International law has
been to produce an ordered rather than a just system of international relations, but recently,
attempts have also been made to ensure that it will also maintain just international relations,
The term 'international law' was coined by Bentham and has been defined by different jurists in
different ways.
Starke, in his Introduction to International Law, defines international law as "that body of law
which is composed for its greater part of the principles and rules of conduct which States feel
themselves bound to observe, and therefore do commonly observe, in their relations with each
other, and which includes also:
(a) the rules of law relating to the functioning of international institutions or organizations, their
relation with each other and the relations with States and individuals; and

(b) certain rules of law relating to individuals and non-State entities, so far as the rights or duties
of such individuals and non-States entities are the concern of the international community."

 Traditionally, international law has been defined as a system of rules governing the
relation between States only.
 For example, according to Oppenheim, international law is "the name for the body of
customary and conventional rules which are considered legally binding by civilized
States in their intercourse with each other."
 This definition of international law, it may be noted, restricts the scope of international
law, whereas Starke's definition takes into consideration the wider scope of international
law, as it has developed after the Second World War.

The various definitions of international law look at international law from four points of view:
firstly, from the point of view of its sources; secondly, from the point of view of its binding
nature on all civilized States;
  Thirdly, from the point of view of its scope; and lastly, from the point of view of the
sanction behind it. Starke's definition seems to satisfy all these four requirements.

Q. What is International Law? Compare International Law with Municipal law & discuss
if International Law is a true law // Why does Austin consider International law as weak
law.

A. The first school, led by Austin and others, defines law as the command of a determinate
superior authority, which is obeyed by subordinate individuals, and which is enforced by the
sanction of the physical force of such an authority. Having defined law thus, this school does not
consider international law to be law for the following reasons

i. There being no agency for international legislation, international law is not a command of
a superior determinate authority. At best, it is a limitation imposed by the sovereign State
upon itself. Self-limitation is no limitation. Therefore, international law is no law.
ii. There is also no organised force to enforce international law. The absence of such a
sanction, which would ensure obedience to international law, would reduce it to a state of
moral rules.
iii. According to this school, the very essence of law is the presence of a determinate
impartial third party which would interpret and enforce the law.
iv. In the case of international law, such a determinate impartial arbitrator is absent. Even in
the case of the International Court of Justice, the basis of the jurisdiction of the Court is
the consent of the States. The International Court of Justice cannot exercise jurisdiction if
a State which is a party to a dispute has not given its consent.

Though there is enough evidence in State practice and judicial decisions to accept that
international law is true law, yet one should not be blind to the fact that international law is weak
law. The existing international legislative machinery is inadequate, and international law is
mainly customary. Though the International Court of Justice has been established, still it does
not exercise universal compulsory jurisdiction for settling legal disputes between States. Further,
the rules of international law can only be formulated with difficulty. They are quite often
uncertain. However, there has been voluminous activity to remove uncertainty in international
law by filling the gaps.
Q. Sources of International Law.

The Statute of the International Court of Justice directs the Court to apply the following sources
for ascertaining international law:

(1) International treaties and conventions -

There are two kinds of treaties – Law making treaties and Treaty contracts. Law making treaties
are international legislations whereby rules of conduct are laid down and there is undertaking by
nation states to conform to such rules.

Treaty contracts on the other hand are special agreements between the parties to the treaty
intending to create special rights and duties between the parties.

(2) International custom // International Customary Law

According to Oppenheim, "As usages have a tendency to become custom, the question presents
itself, as to at what time does a usage turn into custom? This question is one of fact, not of
theory." As Oppenheim continues, "International jurists speak of a custom when a clear and
continuous habit of doing certain action has grown up under the aegis of the conviction that these
actions are, according to international law, obligatory or right".

Starke is of the opinion that before a usage may be considered as amounting to a customary rule
of international law, two tests must be satisfied: (i) The material test, and (ii) The psychological
test.

(i) Material Test

There must, in general, be a recurrence or repetition of the acts which give birth to the rule. Both
the frequency with which they recur and the length of time for which they have recurred, would
be relevant in ascertaining whether a rule of customary law is created.

(ii) Psychological Test (Opinio Juris Sive Necessitatis)

It is not merely the recurrence that creates a customary rule. What is also necessary, is that this
recurrence must be a result of a conviction that there is a compulsory rule behind such a
recurrence. This conviction, or opinio juris, is a convenient, if not an invariable, test for
ascertaining that a usage or a practice has crystallised itself into a custom. This opinio juris must
be inferred from all the circumstances, and not merely from the details which constitute the
material element of the alleged customary rule.

The following are illustrations of customary rules crystallizing from usages or practices:
(a) Diplomatic Relations between States - State practices, declarations by statesmen, bilateral
treaties, etc., have crystallized usages into custom in this branch of international law.

(b) Practices of International Organs - The practices of the international institutions has led to
crystalli zation of customary rules of international law regarding the status, powers and
responsibilities of such institutions.

(c) State Laws and State Military and Administrative Practices – If State laws or State practices
of several States at several times concur, such concurrence may indicate the general recognition
of a broad principle of law. This is fully illustrated by the case of the Scotia, which was decided
by the Supreme Court of the United States of America. In that case, a British ship "Scotia"
collied with "Berkshire". an American ship. As a result, the "Berkshire" sank. The "Berkshire"
was not carrying the lights which were required by a series of regulations adopted by the British
Government and also by the American Congress. The question to be decided was whether the
"Berkshire" was required to carry the lights according to the new regulations or whether it was
enough if it satisfied the old customary law. The Supreme Court of the U.S.A. held that by a
concurrence of these State laws, a new customary international law was evolved, and therefore
"Berkshire", being a defaulter according to the new customary law, could not recover damages.
This case fully illustrates how concurrences of State laws might crystallise a usage into custom.

(3) The general principles of law recognised by civilized nations.

The words "general principles of law recognised by civilised nations" have been interpreted in
the following seven ways: (i) General principles of justice. (ii) Natural law. (iii) Analogies
derived from private law. (iv) General principles of comparative law. (v) General principles of
International law. (vi) General theories of law. (vii) General legal concepts.

According to Starke, the provision for applying general principles has been regarded as sounding
the death-knell of positivism. The positivists view that custom and treaties alone are the sources
of international law is rejected by the Statute of the International Court of Justice, and the
general legal principles are recognised as the source of international law.

(4) Judicial or arbitral decisions

Decisions that might be sources of international law are of three types - (A) Decisions of the
international judicial tribunals (B) Judicial decisions of State Courts (C) Decisions of
international arbitral tribunals.

(5) Juristic works

Juristic works are not an independent source of law. They are only a means of throwing light on
the rules of international law and rendering their formation easier. The juristic works are
generally evidence of law, rather than the source of law. It is possible that the writing of a great
jurist may become a source of law if it is subsequently embodied in customary rules of
international law.

Q. Is an individual a subject of international law // Discuss how individual is a subject of

international law

A. Amongst those who hold that individuals are the subjects of international law, Professor
Kelsen stands foremost. According to him, the States have no personality of their own. They are
just artificial persons created by a fiction of law. Therefore, even when it is said that rules of
international law govern the conduct of States, the State being nothing but a collection of
individuals, the rules of international law govern only the conduct of individuals.

Westlake reflects a similar opinion when he observes: "The duties and rights of States are only
the duties and rights of persons who compose them." According to this view, there is no real
distinction between State law and international law. Both systems bind individuals. though
international law binds the individuals mediately and through the fiction of the State. As an
answer to this, it is said that though theoretically and logically, Kelsen's views may be correct,
yet, practically, international lawyers and statesmen always work on the realistic basis that they
are concerned solely with the rights and duties of States.

Apart from the theoretical discussion, there are many instances where it can be shown that
international law is concerned with individuals. As mentioned above, the outstaning instance is
that of the slaves and pirates. To say that the slaves and pirates are the objects of international
law, but not subjects, is just to indulge in verbal jugglery. The fact that the States are under a
duty to protect the slaves, must presuppose that the rights exist somewhere. Where do they exist,
if not in slaves? Who are slaves, if not individuals? It is true that where protection is denied, the
slaves have no international forum through which their rights can be enforced. But that is more a
question of procedural rules of international law, than of substantive rules of international law.

For example the Neuremberg and Tokyo trials of the War criminals after the Second World War
prove beyond doubt that individuals can be held responsible under international law. The
Genocide Convention adopted by the United Nations General Assembly in December 1943
clearly provided that persons committing certain acts should be punished "whether they are
constitutionally responsible rulers, public officials or private individuals". The Preamble to the
Charter of the United Nations stated that one of the important objects of the Charter is to reaffirm
faith in the fundamental human rights and in the dignity and worth of the human person. The
same object is repeated in Article 1, Para 3 which asserts that the purpose of the organisation is
to attain "respect for human rights and for fundamental freedoms".

Similarly, the argument that individuals cannot be parties to disputes before International
Tribunals and that they must always enforce their claims through the States only cannot be a
ground for holding that individuals are not subjects of international law. This disability, whether
it exists, is a procedural rule. It does not refer to any substantive rule. Inability to approach a
Court is not always the test of the non-existence of the rights and duties.

Q. What is Monistic theory?

A. According to this theory, international law and State law are the components of one system
of law in general. This theory regards that law is a single unity consisting of rules, whether those
rules are binding on States or on individuals or on entities other than States. According to this
theory, both State law and international law ultimately regulate the conduct of individuals. The
only difference is that, in the case of international law, as it is applicable to the international
sphere, the consequences of such conduct are attributed to the State. Prof. Kelsen maintains that
once it is conceded that international law is law, it is impossible to deny that both these legal
systems are parts of a unified system of law.
It is further maintained that the two legal systems must be considered to be essentially identical,
as many of the fundamental notions of international law cannot be understood, unless one starts
with the premises that the various systems of municipal law are, to some extent, derived by way
of delegation from international law. For example, the territorial jurisdiction of States, the
jurisdiction over persons, which are parts of municipal law, are essentially derived from
international law.

Q. What is Dualism // Note on Municipal Law and International Law // Compare

Municipal Law and International Law.

A. According to this theory, international law and State law are two legal systems which are
entirely different.

(i) Firstly, they differ as regards their source.

(ii) Secondly, they differ as regards the relations they regulate – Municipal Law regulates the
relations between the individuals who are under the sway of States, whereas international law
regulates relations between States.
(iii) Lastly, these two legal systems differ regarding the sanction which they possess. Municipal
Law, being a law of a sovereign over individuals subjected to his sway, has a strong sanction
behind it, whereas international law, not being a law above the States, but a law between the
sovereign States, has weaker sanction.

Though there is great truth in the statement that international law must be attributed with
superiority, it cannot be ignored that States are sovereign States and exercise great liberties.
Therefore, in conclusion, one can agree with Starke, who suggest that the best solution to this
question is to apply the analogy of a federal State. In a federal State, the regional States enjoy
autonomy, and therefore enjoy superiority in certain spheres, while the federal State enjoys
superiority in other spheres, and there is the constitutional law which claims superiority over the
law of both the regional States and the federal State, and determines the sphere of superiority of
the units and the federal State. Applying this analogy in the international sphere, it can be
concluded that the state laws are supreme in certain respects and international law is supreme in
other respects, and this division of supremacy is to be determined by what may be called an
international constitutional law.
Q. Name the four criteria of statehood // Define ‘state’ // What are the essentials of a state.

A. States are the principal subjects of international law. Though it is rather difficult to give an
exact definition of a "State”, the characteristics of a State are well-settled. The Montevideo
Convention of 1933 lays down the following qualifications of a State: The State, as a person of
international law, should possess the following qualifications:
(a) a permanent population;
(b) a defined territory;
(c) a Government; and
(d) a capacity to enter into relations with other States.'

 Amongst these four characteristics, some writers like Salmond maintain that the second
characteristic, namely, a defined territory, is not essential. There could be a State of
nomadic people. However, all modern States have this characteristic of a defined
territory.
 According to Starke, the fourth qualification, namely, a capacity to enter into relations
with other States is the most important. According to him, it is this qualification which
distinguishes a State from non-State entities like protectorates or members of federation.

Q. Explain the four mandates of a State. (Asked only once in 2013)

A. Those who advocate the doctrine of the basic rights consider the following rights of the States
to be basic:

(1) Sovereignty and independence of States - The following rights are associated with the State's
independence: (a) The power exclusively to control its own domestic affairs; (b) The power to
admit and expel aliens; (c) The privileges of its diplomatic envoys in other countries; (d) The
sole jurisdiction over crimes committed within its territory; The following are considered to be
the co-relative duties: (i) The duty not to perform acts of sovereignty on the territory of another
State. (ii) The duty to abstain and prevent agents and subjects from committing acts constituting
a violation of another State's independence or terrirorial supremacy. (iii) The duty not to
intervene in the affairs of another State.

(2) The equality of States - The equality of States before international law is a quality derived
from their international personality. According to the traditional doctrine, States are equal as
international persons in spite of inequality in their size, population, power, degree of civilization,
etc. This doctrine also finds recognition in the Charter of the United Nations. Article 1 refers to
'respect for the principle of equal rights', and Article 2 provides that the organization is based on
the principle of the sovereign equality of all its members.'

(3) The right of territorial jurisdiction

(4) The right of self-defence and self-preservation.

Q. What do you mean by non-intervention // What is international principle of non-

intervention.

A. There is generally a duty not to intervene in the affairs of another State, but that does not
mean that international law prohibits every kind of intervention. It is necessary, therefore, firstly
to understand what intervention is, and secondly, to determine when international law permits
intervention and when it does not.

Hyde defines intervention as a dictatorial interference in opposition to the will of a particular

State, and almost always serving, by design or implication, to impair the political independence
of that State. Therefore, to be intervention under international law, the following three
ingredients must be present:

(a) Dictatorial interference,

(b) in opposition to the will of the State affected, (c) in such a way as to impair the political
independence of the affected State.

Prof. Winfield has classified intervention into three groups:

(a) International intervention;

(b) External intervention; and
(c) Punitive intervention.
The following kinds of intervention are considered to be legitimate under international law, and
it would not be a breach of duty if a State intervenes under any one of the following
circumstances:

(a) Collective intervention, pursuant to the Charter of the United Nations;

(b) Intervention to protect the rights, interests, and the person safety of the State's citizens
abroad;

(c) Self-defence, if intervention is necessary to meet a danger armed attack;

(d) Intervention in the affairs of a Protectorate under the state’s dominion;

(e) If the State subject the intervention has been guilty of a gros breach of international law in
regard to the intervening State, for example, if it has itself unlawfully intervened.

Q. Sovereign Equality of States

A. The equality of States before international law is a quality derived in their international
personality. According to the traditional doctrine, states are equal as international persons in
spite of inequality in their population, power, degree of civilization, etc. This doctrine also is
recognition in the Charter of the United Nations. Article 1 refers respect for the principle of
equal rights', and Article 2 provides that organisation is based on the principle of the sovereign
equality of its members."

This doctrine, though modified in many respects, has the following four important consequences:

(1) Whenever a question arises, which has to be settled by consent, every State has a right, unless
it is agreed otherwise, to one vote only.

(2) Legally, the vote of the weakest and the smallest State, unless. otherwise agreed, has as much
weight as the vote of the largest and the most powerful.

(3) According to the rule, parin parem non habet imperium, no State can claim jurisdiction over
another. For example, though States can sue in foreign courts, they cannot, as a rule, be sued,
unless they voluntarily submit to the jurisdiction of the Court concerned.
(4) The Courts of one State cannot, as a rule, question the validity or legality of the official acts
of another soverign State.

Q. Explain State under the International Law. Enumerate different kinds of state.

A. The different types of States are –

1. Confederations: In A confederation is a union of several independent States bound together by

an international agreement. A confederation is not a State for the purpose of international law.
The member States alone are the members of the international community.

2. Federal State: A Federal State is different from a Confederation, as a Federal State exercises
jurisdiction over the territory of member States directly and simultaneously along with the
member States. The Confederation has no such direct jurisdiction. For purpose of international
law, it is the Federal State which is a real State. The member States have no international status
The only peculiar case is that of the U.S.S.R., which professes to be a Federation but at the same
time the member States of the U.S.S.R. like Ukrania, Bylo-Russia, maintain international status
under the Constitution of the U.S.S.R.

3. Protected and Vassal States and Protectorates: A vassal State is one which is completely
under the suzerainty of another State. Internationally, its independence is restricted so much, that
it can hardly be called "independent. The case of a Protectorate or a protected State arises in
practice when a State puts itself, by treaty, under the protection of a strong and powerful State, so
that the conduct of its most important international business and decisions of high policy are left
to the protecting State. Protectorates are not based on any uniform pattern. Each case depends on
its special circumstances and more specifically on:
(a) the particular term of the treaty of protection; and
(b) the conditions under which the Protectorate is recognised by third Powers as against whom it
is intended to rely on the treaty of protection.

4. Condominium: A condominium exists when two or more external powers exercise joint
dominion over a particular territory. An example is that of the New Hebredes. In a condominium,
the external powers exercise separate jurisdiction over its own respective subjects. This must not
be mistaken for division of a country into separate zones. In the case of the separate zones, a
territory is divided into separate parts, and separate States exercise their authority over each part.
There is no joint exercise of dominion as in the case of a condominium.

5. Commonwealth of Nations: The (British) Commonwealth of Nations is neither a super State

nor a Federation; it is just an association of free and equal States. The Commonwealth does not
exercise any direct jurisdiction over the territory of its member States. It operates primarily
through these States. So far as the member States of the Commonwealth are concerned, they are
fully sovereign States in every sense. In the field of foreign. affairs they enjoy unlimited
autonomy. They enter into treaties independently. Even the members of the Commonwealth may
enter into treaties among themselves. They enjoy rights of separate legislation. A High
Commissioner representing one member State in the territory of another enjoys almost the same
position as that of the diplomatic envoy of a foreign State. These member States can also be
subjects of international disputes.

6. Trust Territories: The Charter of the United Nations had introduced a new system of trust
territories. However, since most of these trust territories no longer. have this status, this topic
today assumes academic interest only. Under Chapter XII of the U.N. Charter, an International
Trusteeship System was established for supervision of "trust territories" placed under the U.N.
by separate agreements. This system applied to:
(i) territories held at that time under mandates established by the League of Nations after World
War I; (ii) territories detached from conquered enemy States after World War II; and
(iii) territories voluntarily placed under this System by the States responsible for their
government.

Q. What is Holy See?

A. The Holy See also called the See of Rome or Apostolic See, is the jurisidiction of the Bishop
of Rome, which includes the apostolic episcopal see of the Diocese of Rome with universal
ecclesiastical jurisdiction of the worldwide Catholic Church, as well as a sovereign entity of
international law, governing the Vatican City.
It refers to Pope being the Bishop of Rome. It is the supreme organ of the Catholic Church
together with the offices of the Roman Curia. Holy see is the sovereign state having population
of about 1000 persons residing therein since they are the office bearers in the land territory of
about half a kilometer known as Vatican. Vatican is represented at United Nation as an Observer
and it cannot vote. Generally the state is called by the name of Vatican City with the incumbent
of Holy See as its Head.

Q. What is meant by recognition?

A. Fenwick defines recognition as formal acknowledgement by the existing members of an

international community of the international personality of a State or political group, not hitherto
maintaining official relations with it. The Institute of International Law has defined recognition
as a free act by which one or more States acknowledge the existence of a defined territory of a
human society, politically organized, independent of any other existing State, and capable of
observing the obligations of international law, and by which they manifest therefore their
intention to consider it a member of the international community."

These two definitions suggest two elements of recognition:

(1) It implies that the new political community possesses the requirements of a State. That means
it recognizes the fact that the new State possesses the following qualifications:

(a) a permanent population;

(b) a defined territory:

(c) a Government and

(d) a capacity to enter into relations with other States.

(2) And it is, therefore, a normal subject of international rights and duties.

Q. Explain the theories of recognition.

A. There are two main theories of recognition:

(1) The Constitutive Theory, and

(2) The Declaratory or Evidential Theory.

(1) THE CONSTITUTIVE THEORY

According to this theory, it is the act of recognition alone, which creates statehood, or which
clothes a new Government with any authority or status in the international sphere. It is the
process by which a political community acquires personality in international law by becoming a
member of the family of nations. It is said that Hegel was the founder of this theory. There are
other writers who support this theor y. According to these writers, a State comes into existence
only when it is recognised, and not before. Anzilotti maintains that the State, as a subject of
international law, comes into existence only with the conclusion of the first agreement as
expressed by the treaty of recognition. Such a recognition is reciprocal and constitutive, creating
rights and obligations which did not exist before. Oppenheim attempts to solve the confusion
between natural status, which is beyond recognition, and membership of the international
community, which depends on recognition.

(2) THE DECLARATORY OR EVIDENTIARY THEORY

According to this theory, statehood or the authority of a new Government exists even prior to
and independent of recognition. Recognition is merely the declaration of an existing fact. It is
just the evidence of the State having already come into existence. According to this theory,
recognition is a political rather than a legal act. Its sole aim is to secure the establishment of
ordinary diplomatic relations between the recognising and the recognised States.
The bulk of international practice supports the Evidentiary theory of recognition. The
Evidentiary theory is also supported by the following rules of international law:
(1) When a question arises as to the date on which a State came into existence, the material date
will be the date on which the new State fulfilled the requirements of statehood and not the date
when treaties with other States recognising it came into operation.

(2) As already pointed out, recognition has retrospective effect, dating back to the day when the
new State fulfilled the requirements of statehood.
(3) The Declaratory or the Evidentiary theory is consistent with the rule of international law that
there should be continuity of State sovereignty or governmental authority and that there should
be no gap of time during which a State or Government is not in existence.

(4) As there is no duty in international law imposed on old States, and also as there is no
corresponding right to a new State to be recognised, the act of recognition might be withheld for
political reasons. If the Constitutive theory were true, the new State would not come into
existence at all. This would be a travesty of truth.

Q. Write a short note on modes of recognition.

A. Oppenheim enumerates the legitimate occasions for implying recognition. According to him,
the following are such occasions:
(a) the conclusion of a bilateral treaty, such as a treaty of commerce and navigation, regulating
comprehensively relations between the two States (as for example, the Treaty of Commerce
signed between Nationalist China and the United States in 1928);

(b) the formal initiation of diplomatic relations:

(c) the issue of a consular exequatur by the admitting state for a consul of an unrecognised state;

(d) in the case of recognition of belligerency, a proclamation of neu trality or some such
unequivocal act.

Following are Modes of recognition -

Recognition Subject to Condition:

Sometimes, there is reference to conditional recognition in interna tional law. But the term
conditional recognition must be clearly under stood. Here, the condition is not a condition
subsequent; it is just a condition collateral. In the case of a conditional recognition, failure to
fulfil the condition by the recognised State does not annul the recognition. Recognition once
given cannot be withdrawn. The breach of that condi tion on the part of the recognised State will
be treated as a breach of international law, and it may entitle the aggrieved State to the various
remedies known to international law against breach of an international obligation.
Collective Recognition

Recognition might be given individually by different States or by some collective international

act. This latter method has some advantages, and it often avoids the embarrassment that might be
caused to a new State or Government when some States recognise it and some do not.

Recognition of a Head of a State or a New Government

Recognition of a new State must not be confused with recognition of a new Head or Government
of an old State, Recognition of a change in the Head of a State or in the form of its Government,
or of a change in the title of an old State is different from the act of recognition of the State itself.
In fact, it has nothing to do with recognition of the State itself. If a foreign State refuses to
recognise a new head or the new Government of an old State, such old State does not lose
thereby its international personality. It may be that by such non-recognition, official inter course
between the two States may not be possible.

Q. When can the recognition of a government be withdrawn?

A. As a rule, recognition de jure, once given, is irrevocable. But it must be noted that recognition
is a declaration on the part of the recognizing State, that a foreign community or authority is in
the possession of the necessary qualifications of statehood or of govern-mental capacity, as the
case may be. These qualifications may not necessarily endure for all time. A State may lose its
independence. A Government may cease to be effective. In such cases, withdrawal of recognition
is both permissible and indicated. The Institute of International Law, while laying down, in a
resolution adopted in 1936, that recognition de jure of a State is irrevocable, qualified that rule
by adding that such recognition ceases to have effect in case of the disappearance of one of the
essential elements of statehood.

As noted above, in the case of de jure recognition, though there may be severance of diplomatic
relations, the recognition will not be lost and the status acquired in the international community
will not be destroyed. For example, Great Britain recognized the Soviet Government de jure in
1924. Subsequently in 1927, it broke off relations, and in 1939, participated in the expulsion of
the Soviet Union from the League of Nations. In this case, neither the breaking off of relations
nor the expulsion would annul the recognition of the Soviet Government.
Q. What is meant by de facto recognition // Write a short note on: De Facto Recognition.

A. In State practice, there is a difference between recognition de jure and recognition de facto.
Both the kinds of recognition accord international personality to the entity recognised. De jure
recognition is permanent and irrevocable; de facto recognition might be provisional and
revocable. De facto recognition may be a prelude to de jure recognition, or it may be just
withdrawn and the recognition might be annulled.

Purpose of De Facto Recognition - In the words of Oppenheim, "de facto recognition" of a State
or by Government takes place when, in the view of the recognising State, the new authority,
although actually independent and wielding effective power in the territory under its control, has
not acquired sufficient stability, or does not, as yet, offer prospects of complying with other
requirements or ability to fulfil international obligations. For example, after the First World War,
the Governments of Finland, Latvia and w Estonia which formerly were parts of the Russian
Empire, were D recognised in the first instance as de facto Governments, pending the final
territory settlement. The Government of Soviet Russia, though formally and effectively
established, was only recognised de facto by a number of States, on the ground that it was
unwilling to fulfil its international obligations.

EFFECTS OF DE FACTO RECOGNITION - Recognition de facto is in essence provisional and

liable to be withdrawn, if the absent requirements of recognition fail to materialise. But it must
be noted that, in other respects, it cannot be distinguished from de jure recognition, as all the
legislative and other internal measures of the de facto recognised authority are treated before the
Courts of the recognising State on the same footing as those of a State or Government recognised
de jure. Similarly, even a de facto recognised State or Government enjoys immunity from the
jurisdiction of the Court of the recognising State. The de facto recognition by Great Britain of a
foreign Government is as conclusively binding, while it lasts, upon an English Court, as de jure
recognition, for the reasons stated by Warrington L.J. in Aksionaimoye Obschestvo A.M. Luther
v. Sugor (James) and Co.: "In the latter case, as well as in the former, the Government in
question acquires the right to be treated by the recognising State as an independent Sovereign
State, and none the less than our Government does not pretend to express any opinion on the
legality or otherwise of the means by which its power has been obtained."
Q. Give two differences between De jure and De facto recognition.

A. Though generally the consequences of recognition de jure and recognition de facto are the
same, there are some material differences in the consequences of these two kinds of recognition:

(1) Only the de jure recognised State or Government can claim to receive property situated in the
territory of the recognising State. This principle was recognised in Emperor Haile Selassie v.
Cable and Wireless Ltd. (1938), though the Court of Appeal reversed the decision of the original
Court on the ground that the material circumstances had subsequently altered. The facts of the
case are as follows: The Cable and Wireless Ltd. had entered into a contract in 1935 with the
Director General of Posts, Telegraphs and Telephones of Ethiopia and was running a radio
telegraphic service between Great Britain and Ethiopia. As a result of the contract, a certain
amount of money became due to the Government of Ethiopia from the Company. After the
conquest of Ethiopia by Italy, Haile Selassie, Emperor of Ethiopia, went in exile to England
While there, the Emperor filed a suit against the Company for the realization of the money due.

The Company admitted that the amount was due, but it contended that It had recieved a letter
from the Italian Ambassador in London that the amount due should be paid to the Italian
Government and not to the Emperor, and had also maintained that Italy had annexed Ethiopia
and had also become the Sovereign of that country. The Italian Government had also been
recognised by the British Government as the de facto government of Ethiopia. The right to the
debt was the public debt payable to the power in Ethiopia and as such to the Italian Government.

The Italian Government did not agree to submit to the jurisdiction of the English Court for the
determination of the claim. The matter was referred to the Foreign Office of Great Britain by the
Court with a view to ascertain the status of Emperor Haile Selassie and the Italian Government in
Ethiopia. The reply of the Foreign Office was that the British Government recognized Emperor
Haile Selassie as the de jure Emperor of Ethiopia and the Italian Government as the de facto
Government of all parts of Ethiopia under its control The Italian Government was in effective
control of virtually the whole of Ethiopia. That status was accorded to the Italian Government in
December, 1936
Justice Bennet held that, in view of the facts of the case, the title to sue for the debt had been
vested in Emperor Haile Selassie as the sovereign of Ethiopia. The occupation of Ethiopia by the
Italian Army and the establishment of the Italian Government as the de facto Government of the
country deprived Haile Selassie of the actual power but that did not have the effect of divesting
him of his title.

The Company went in appeal against the decision of Justice Bennet on 3rd November, 1938. At
that time, the British Government announced in Parliament that it intended to recognise the King
of Italy as the de jure sovereign of Ethiopia. In view of this announcement, the Court of Appeal
adjourned the hearings of the case. On 30th November, 1938. a certificate from the Foreign
Office was produced before the Court of Appeal, to the effect that the British Government no
longer recognized Haile Selassie as the de jure Emperor of Ethiopia. Under the changed
circumstances, the Court of Appeal held that the right to sue passed from Haile Selassie to the
King of Italy. The transter of the right must be deemed to have taken place not later than
December 1936, when the British Government recognised the Italian Government as the de facto
government over Ethiopia. The claim of the plaintiff was dismissed and the appeal was allowed.

(2) Only the de jure recognised State can represent the old State for purposes of State succession.

(3) De facto recognition can be withdrawn on several grounds other than those normally
justifying a withdrawal of de jure recognition.

(4) There is another point of difference indicated by some cases of British practice that
representation of entities recognized only de facto are not entitled to full diplomatic immunities
and privileges. However, this view is not accepted by all jurists.

Conflict between De jure and De Facto Governments – Sometimes, a conflict of authority

between a displaced de jure Government and a newly recognised de facto Government may
arise. In such circumstances, the English law, it appears, would adopt the view that the rights of
States of the de facto Governments prevail. This rule of English law has been laid down in Bank
of Ethiopia v. National Bank of Egypt and Liguori (1937) decided by Clauson J., and the S. S.
Arantzazu Mendi v. The Government of Republican Spain (1939 A.C. 265), decided by the
House of Lords.

Q. What is state territory // Explain state Territory.

A. State territory is that definite portion of the surface of the globe which is subject to the
sovereignty of a State. Territory is one of the essential elements of a State. The concept of
territorial sovereignty signifies the fact that, within a particular territory, jurisdiction is exercised
by the State over persons and property, to the exclusion of other States. Max Huber described
territorial sovereignty in the Island of Palmas Arbitration Case, in the following terms:
"Sovereignty, in the relation between States, signifies independence. Independence, in reference
to a portion of the globe, is the right to exercise therein, to the exclusion of any other State, the
function of a State."

The concept of exercise of "the functions of a State" has been further elaborated by the
International Court of Justice in its Advisory Opinion in the Western Sahara, I.C.J. Reports
(1975), 12. The Court was of the opinion that legal ties of territorial sovereignty over people of
land must be distinguished from ties of allegiance, in the case of persons, and mere customary
rights, in relation to land. State activity on a sufficient scale indicating conclusively the exercise
of authority, is one mark of the existence of territorial sovereignty.

It is said that territorial sovereignty is indivisible. However, this statement must be accepted
subject to certain modifications. As already pointed out, it is possible that two or more powers
may exercise sovereignty over the same territory, as in the case of a condominium. Again, a
lease of territories is not unknown to international law. In such cases, the lessee State exercises
temporary sovereignty, while the lessor State possesses sovereignty in reversion.

Q. Explain modes of acquisition and loss of territory.

A. International law generally recognizes five modes of acquiring territorial sovereignty by a

State. They are: (1) Occupation, (2) Annexation, (3) Accretion, (4) Cessation, (5) Prescription.

(1) Occupation - When a particular territory is not under the authority of any other State, a State
can establish its sovereignty over such territory by occupation. Traditionally, the subject-matter
of occupation is terra nullius (territory not subject to the authority of any other State); but,
territory inhabited by tribes or peoples having a social and political organisation cannot be terra
nullius (Western Sahara case, cited above). Where land is inhabited by organised tribes or
peoples, territorial sovereignty can only be acquired by local agreements with the rulers or
representatives of the tribes and peoples.

To determine whether a State has occupied a particular territory or not, the principle of
effectiveness is applied. The Permanent Court of International Justice explained the elements of
effective occupation in the Eastern Greenland Case (1933). This case arose on account of the
disputes between Norway and Denmark over the title to Eastern Greenland. In this case, the
Permanent Court of International Justice held that the occupation, to be effective, must consist of
following two elements: (i) An intention on the part of the occupying State to act as sovereign;
and (ii) The adequate exercise or display of sovereignty by such State.

(2) Annexation - A State might acquire territorial sovereignty over a territory by annexation in
the following circumstances:

(i) Where a territory annexed has been conquered or subjugated by the annexing State (as was
sought to be done by Iraq, a few years ago.)

(ii) Where the territory annexed is in a position of virtual subordination to the annexing State,
even before the intention to annex is declared. In this case, there must be a formal declaration of
the intention to annex. If a territory is conquered during the course of war, the possession of the
power is only de facto and provisional. It becomes de jure only when there is a formal
declaration of annexation to all other interested powers.

(3) Accretion - Where a new territory is added mainly through natural causes to territory already
under the sovereignty of a State, acquisition by accretion takes place. In such circumstances, no
formal assertion of title is necessary.

(4) Cession - When a State transfers its territory to another State, acquisition by cession takes
place in favour of such latter State. The cession of territory may be voluntary or may be under
compulsion as a result of war. The act of cession may be even in the nature of a gift, sale,
exchange or lease. To constitute a valid cession in international law, any act which indicates an
intention to transfer sovereignty is sufficient. A cession once made is irrevocable and a State
cannot derogate from its grant.
(5) Prescription - When a State is, in exercise of continued sovereignty in a peaceable manner,
for a long period, over the territory of another State, then the former State acquires title by
prescription. According to D. H. Johnson, the following conditions must be fulfilled for a State
to acquire territory by prescription:

(a) The possession of such territory must be under a claim of sovereign title.
(b) Such possession must be peaceful and uninterrupted.
(c) It must be public.
(d) It must be for a considerable length of time. What is considerable length of time is a question
which can be decided by an International Tribunal. However, it must be noted that there is no
decision of any International Tribunal which conclusively supports the doctrine of prescription in
international law and which definitely prescribes a particular length of time for which the de
facto sovereignty must be exercised by the acquiring State.

Q. Write a short note on: Islands of Palmas Case.

A. The dispute concerned the sovereignty over the Island of Palmas, ceded by Spain to the
United States of America by treaty concluded in 1898, but claimed by the Netherlands as
forming part of its possessions on the basis of having exercised sovereignty there for more than
200 years. On January 23, 1925, the United States of America and the Netherlands referred their
dispute concerning sovereignty over the Island of Palmas to arbitration by a sole arbitrator. The
sole arbitrator was asked to determine whether the Island of Palmas (or Miangas) in its entirety
formed a part of the territory belonging to the United States of America or of the territory of the
Netherlands. In his award, the sole arbitrator attached limited significance to discovery as a basis
of title and elaborated on the legal effect of the peaceful and continuous display of state authority
over territory. The arbitrator further considered the role of acquiescence and recognition in
circumstances of competing acts of possession, and the principle nemo dat quod non habet in
relation to treaties of cession.

To determine the question of title it was necessary for the arbitrator to consider arguments about
the presentation of evidence in legal proceedings and the specific issue of maps. The arbitrator
adopted a liberal approach towards the production of evidence, but indicated that caution was
required when assessing the value of maps.
The arbitrator concluded that even if it had been possible for Spain to have ceded to the United
States of America its inchoate title derived from discovery or contiguity the inchoate title of the
Netherlands could not have been modified by a treaty concluded by third Powers; and such a
treaty could not have impressed the character of illegality on any act undertaken by the
Netherlands with a view to completing their inchoate title... at least as long as no dispute on the
matter had arisen. By the time a dispute had arisen, in 1906, the arbitrator found that the
establishment of Dutch authority had already reached such a degree of development, that the
importance of maintaining this state of things ought to be considered as prevailing over a claim,
possibly based either on discovery in very distant times and unsupported by occupation or mere
geographical position. For these reasons, the arbitrator held that the Island of Palmas (or
Miangas) formed in its entirety a part of Netherlands territory.

In this case the theory of contiguity was rejected by Max Huber on the ground that ‘it was only
lacking in precision’.

Q. What is a land-locked state? Discuss the rights and duties of land-locked states and
coastal state // What are landlocked states?

A. A state whose boundaries are entirely surrounded by land is called land-locked state. Art.
124(1) of the Convention on the law of the sea of 1982 defines land-locked state as a state which
has no sea-coast". Out of thirty landlocked states in the world, 14 states are in Africa. These
states have free access to & from sea and land. For instance, Nepal is a landlocked state. On 31st
July 1950, the treaty of Trade and Commerce was signed giving Nepal access to the sea through
India on reciprocal basis.

In the case concerning the Temple of Preah Vihear (Merits) Cambodia (Thailand) 1.C.J. Reports
(1962) 6, the disputed area was the region of a certain Temple sanctuary (Preah Vihear), and
there was a conflict between the frontier according to a Treaty of 1904, whereby it was to follow
a watershed line, and the frontier according to boundary maps completed in 1907, and
communicated in 1908 to the Siamese (New Thai) Government. As the Siamese Government,
and later the Thai Government, had by their conduct apparently accepted the map frontier line,
and had not shown that any special importance was attached to the watershed line, the Court held
that the map line should be preferred, and that the Temple area was under the Sovereignty of
Cambodia.

The United Nations Convention on the Law of the Sea 1982 provided rights for land-locked
states on the sea. More importantly, the convention provided them with the right of access to and
from the seas and freedom of transit. However, the law makes such rights subject to the
agreements to be made by land-locked and transit states. This, in turn, depends on the prevailing
relations between the concerned states. If they are not in a smooth relation, the transit states may
not be willing to negotiate and thereby put impediments on the land-locked states’ free transit.
The political will and commitment of transit states highly conditioned the rights of land-locked
states. The denial of free transit, in turn, affects the rights of land-locked states on the different
maritime regimes. Land-locked states have no absolute right of access to and from the seas and
freedom of transit.

Q. What is the term used for the state which allows its territory to be used by the
landlocked states? (2 marks)

A. Article 124 (b) of UNCLOS defines "a "transit State" as a State, with or without a sea-coast,
situated between a land-locked State and the sea, through whose territory traffic in transit passes.

Q. What is a territorial sea? Discuss the law relating to territorial sea.

A. Territorial waters consist of the waters contained in a certain zone or belt called the maritime
belt, which surrounds a State and thus includes part of the water in some of its bays, gulfs, and
straits. The territory of a State includes certain part of the sea, known as the territorial waters.
One of the important kinds of territorial waters is the maritime belt. The maritime belt comprises
a belt of coastal waters to a width of at least three miles measuring from the low-water mark of
other selected base lines. Amongst the writers on international law, there are two views on the
nature of the right of a littoral State on the maritime belt. According to one view, the maritime
belt is that part of the sea which is State property, though foreign States have a right of innocent
passage for their merchant vessels through the belt. According to the other view (which is a
minority view), the maritime belt is not considered to be the territory of the littoral State, but is
subject to certain supervisory powers of the littoral State. It appears that, by a long standing
practice of the States, the first view is accepted as a part of international law.

There was a time when maritime States had asserted their sovereign rights over open sea, but
gradually this claim of the States in was narrowed down, and today, the freedom of the high seas
is an established principle of international law. But in the interest of the security (and probably
economic advantages of the littoral State), the concept of maritime belt has developed along with
the concept of the freedom of the high seas.

Bynkershoek, in his book "Essay on Sovereignty over the Sea", gave a precise form to the
concept of maritime belt. He enunciated the cannon-shot rule. It was at a later stage that the
cannon-shot rule was expressed as a definite figures in miles. As probably the maximum range of
a cannon-shot was three miles, the width of maritime belt, over which a littoral State should
exercise complete sovereignty, was considered to be three miles. There is another theory that the
three miles rule has its own independent origin and that it was accidently blended with the
cannon rule. In the 19th century, the three mile-limit received recognition by the States in their
practice by the Courts and the Jurists.

Another controversy in connection with the maritime belt is regarding the basis on which the
base line of the coast must be drawn. There were two views on this question. The first view held
that the base line must necessarily be a line running across the indented coast. The other view is
that the base line need not be drawn parallel to the low-water mark on the coast, but it must
follow the general direction of the shore. This controversy was set at rest by the International
Court of Justice in the ANGLO-NORWEGIAN FISHERIES CASE (1951), which recognised the
second view. The facts of the case are the following: Norway, by its Decree of July 1938,
defined its fishing zone by reference to a base line, draw through 48 selected points on the main
land or on islands or rocks at a considerable distance from the main land. The sea, enclosed by
these lines and a line parallel to those lines at a distance of four miles, was to constitute the zone.
The result of this definition in the decree was that large stretches of sea came to be claimed as
the territorial waters of Norway, and other States were excluded from exercising rights of
fishing. Great Britain claimed that this definition of the base line was contrary to International
Law. The dispute was referred to the International Court of Justice. The Court held by a majority
that Norway's definition of the base line was not inconsistent with international law. This view
was based mainly on the fact that, traditionally, the waters covered by the decree of Norway.
were an exclusive preserve of Norwegian fishermen, and that the lengths fixed by the decree
were reasonable.

According to Starke, the three main points laid down in the Anglo Norwegian Fisheries case are
the following: (i) Provided that the littoral State can satisfy an international tribunal of the
reasonableness and justice of defining the territorial sea by reference to base lines, and provided
further that it has not acted arbitirarily, this method may be followed. (ii) Such base lines need
not be drawn parallel to the low-water mark on the coast, so long as the general direction the
shore is followed. (iii) The waters of bays and gulfs may be deemed part of the territorial waters,
notwithstanding that the distance between the headlands is greater than ten miles.

Another important contribution of the decision of the International Court of Justice in the Anglo-
Norwegian Fisheries Case is that it clarified the concept of the maritime belt. According to the
International Court of Justice, the maritime belt is not just a limited artificial extension of the
State's territorial sovereignty over the open sea; it is a contiguous area of the territory of the sea
over which the littoral State can exercise exclusive sovereign rights for safeguarding its
economic interests and security. The unique contribution of this decision was that it indicated the
rationale of the maritime belt to be not only security but also the economic interests of the littoral
State.

The following are the characteristics of the maritime belt rritorial sea): (i) The littoral State is the
supreme authority within the belt. It has sovereign jurisdiction over it. (ii) The merchant ships of
foreign States have the right of innocent passage in the maritime belt. The passage is innocent so
long as a ship does not use the territorial sea for committing any acts prejudicial to the security of
the coastal State or contrary to the rules of international law. (iii) Even the foreign warships have
a right of innocent passage through the maritime belt in time of peace. (iv) The littoral State may
reserve cabotage for own subjects. [Cabotage means intercourse between any two parts of the
country, whether on the same coast or the different coasts, provided that the different coasts are
the coasts of one and same country.] (v) It may reserve the fisheries within the belt for its own
subjects.
Q. What is innocent passage?

A. Though the littoral State has jurisdiction over the maritime belt, yet It is an established
principle of international law that the ships of non littoral States have a right of "inoffensive
passage through the waters of the maritime belt.

According to the Convention on the Territorial Sea and Contiguous Zone of 1958, the passage is
inoffensive so long as it is not prejudicial to the peace, good order or security of the coastal State.
The right of innocent passage is also enjoyed by Government vessels, including warships as well
as merchant ships. The right includes stopping and anchoring, but only when they are incidental
to ordinary navigation or are rendered necessary by force majure or by distress.

The question that often arises is that of the jurisdiction of the littoral State over the ships of other
States in the maritime belt. Under the Territorial Waters Jurisdiction Act in England, the English
Courts are given jurisdiction over offences committed within the maritime belt.

The right of foreign vessels passing through the territorial sea and the rights and treaties of the
littoral States are provided for in Arts. 19 22 of the Convention on the Territorial Sea and
Contiguous Zone, signed at Geneva on April 28, 1958. The following rules can be deduced
regarding the right of innocent passage: (i) The right of the Coastal State regarding crimes
committed on board a Foreign Merchant Vessel or Government vessel (ii) Ship bearing a
national flag of a State and (ii) Ports

Q. Write a short note on – Contiguous zone

A. The doctrine of contiguous zone is closely connected with the concept of territorial sea or
maritime belt in international law. States which felt that the three-mile territorial sea did not
provide adequate safeguards to the specific interests of the coastal State (in particular to its
revenue and health regulations) have claimed jurisdiction and control over some additional
"contiguous zone", in which limited powers of control could be exercised. The Geneva
Conference adopted a convention on the contiguous zone. aragraph 2 of Article 24 of Part II of
the Convention on the territorial sea, limits the extent of the contiguous zone to twelve miles
from the base line from which the breadth of the territorial sea in measured.
Para 1 of Article 24 of the Convention provides that in a zone of the high seas contiguous to its
territorial sea, the coastal State may exercise the control necessary to prevent and punish the
infringement of its customs, immigration, fiscal or sanitary regulations.

It must be noted that the coastal State has no sovereignty over the contiguous zone. This is the
difference between the contiguous zone and the territorial sea. Over the contiguous zone, the
State exercises the control necessary for the purpose mentioned above, but it exercises no
jurisdiction. In the words of Sir Gerald Fitzamaurice "the power is primarily that of the
policeman, rather than of the administrator or the judge."

Q. What is Continental Shelf // Write a short note on Continental shelf.

A. The continental shelf is the submerged belt of the sea contiguous to a continental land-mass,
and formed in such a manner as to be really an extension of or appurtenant to this land-mass, but
not situated at a greater depth beneath the sea level than six hundred feet. During years, the
States have claimed the exclusive control of the resources of such continental shelf. The United
States made this claim in 1945. Once this claim was communicated to a number of interested
powers, it was followed by declarations by South American States like Mexico, Argentina,
Chile, Peru and Costa Rica. The States claim an exclusive control of the resources of the
submerged belt of the sea in the continental shelf, though the water above such soil is accepted to
be high seas. The claim extends to huge areas, and therefore, the problem of the continental shelf
assumes immense importance in international law. The claims being recent, the doctrine of
continental shelf involves conceptions previously unknown to international law.

The problems involved in the doctrine of continental shelf are the following: (1) The delimitation
of the continental shelf. (2) The nature of the rights of the coastal State over the shelf. (3) The
status of the superjacent waters.(4) The right of the coastal States to lay down submarine cables
and to raise constructions and installations. (5) Where two or more States are contiguous to the
same continental shelf- the boundary of division. These questions have not been as yet
satisfactorily answered by definite rules of international law. However, the Geneva Conference
of 1958 on the Law of the Seas adopted a Convention on the continental shelf based on the draft
articles prepared by the International Law Commission. A summary of the Convention on the
Continental Shelf is given below.

The Geneva Convention defines the "Continental Shelf" as The term "continental shelf" is used
as referring follows:(a) to the seabed and subsoil of the submarine areas adjacent to the coast, but
outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the
depth of the superjacent waters admits of the exploitation of the natural resources of the said
areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.
The Convention further adopted the following rules regarding the continental shelf: (i) The
coastal State exercises, over the continental shelf, sovereign rights for the purpose of exploring it
and exploiting its natural resources. Such rights are the exclusive rights of the coastal State. (ii)
The rights of the coastal State over the continental shelf do not effect the legal status of the
superjacent waters as high seas or that of the air-space above that water. (iii) Such exploration or
exploitation of the natural resources must not result in any unjustifiable interference with
navigation, fishing or the conservation of the living resouces of the sea. (iv)The coastal State is
entitled to construct and maintain on the continental shelf, any installation necessary for the
exploration and explotation of the natural resources. (v) Due notice must be given of the
construction, and permanent means for giving warning of their presence must be maintained.

(vi) Where the same continental shelf is adjacent to the territories of two or more States whose
courses are opposite to each other, the boundary is the medium line, unless otherwise agreed.

(vii) Where the same continental shelf is adjacent to the territories of two or more adjacent
States, the boundary of equi-distance from the nearest point of the base line from which the
breadth of the territorial sea of each State is measured, unless otherwise agreed.

However, in the North Sea Continental Shelf case (I.C.J. Reports 1969, p.3), the International
Court of Justice held that the German Federal Republic was not bound by this Convention in
delimitation of the boundaries of the continental shelf, with the Netherlands, Denmark, on the
following grounds:
(1) The Federal German Republic was not a party to the Convention.

(2) It had not accepted the rule laid down in the Convention manifest manner.

(3) The equi-distance principle had not, through its application by a certain number of countries,
become a settled rule of customary international law.

The Court also added that the equi-distance principle could be applied only if there was an
agreement between the countries concerned. Otherwise, delimitation of continental shelf between
adjacent States must be on equitable principles.

Q. Write a short note on – Convention on Law of Seas (UNCLOS) // Explain importance of

UNCLOS in resolving the disputes amongst disputing states.

A. On 30th April 1982, the draft of the convention on the law of the sea was adopted wherein
117 states signed the convention. Later this number increased to 159. The convention basically
laid the rules for all parts and use of oceans to ensure that there were less disputes. The said
convention has 320 articles divided into XVII parts and IX annexes. It dealt with the deep-sea
bed mining and the regulations were found extremely stringent, especially by the United States.
United states were dissatisfied with the regulations since the convention also introduced revenue-
sharing obligations for deep sea-bed mining and despite these restrictions few states protested
since there was no protection to the investors. The convention has played a significant role in
curbing the industrialized states. These industrialized states are not allowed to exploit the ocean
floor beyond their national jurisdiction in accordance with their domestic law.

The Third United Nations Conference on the law of the sea (UNCLOGS) made an attempt to
identify the major features of a new code of the law of the sea and to enter into a comprehensive
Code. The Conference had six sessions. However, all that it achieved was the formulation of the
informal single negotiating text.

The Conference has been rather slow in its results, mainly for two reasons. Firstly, the
Conference was bent on creation of a complete and comprehensive international regime for the
high seas, the coastal seas and seabeds and the deep ocean floor. In addition to this, there was
also an inherent conflict between the developing countries and the developed countries, the
developing countries demanding greater rights to the coastal States and the developed countries
advocating freedom of venture.

In spite of the cross current of opinion, the achievements of Third Conference on the law of the
sea can be briefly stated as follows: (1) The concept of the 12-mile territorial sea has gained
general acceptance, though a few countries remain committed to a 200-mile rule. (2) The right of
innocent passage is to be defined more precisely and more explicitly. (3) There is also a general
acceptance of the concept of the two hundred-mile coastal "exclusive economic zone" to
appertain to the coastal State. The concept of the exclusive economic zone is that the coastal
States may have sovereign rights for the purpose of exploring, exploiting, conserving and
managing the industrial resources of the bed and sub-soil and superjacent waters while beyond
the territorial sea, the rest would be open free sea. (4) Notwithstanding the exclusive economic
zone, the concept of contiguous zone is to be retained to enable control by the coastal State for
the prevention and punishment by it of infringement of its customs. fiscal emigration,
regulations, etc. (5) There will be a special regime for straits used for international navigation.(6)
Qualified recognition will be given to the "archipelagic principle" under which all waters around,
between and connecting the outer island of the archipelago, are to form part of the internal
waters of the State having sovereignty over the archipelago. (7) The principle of anti-pollution
control of the marine environment is accepted. (8) The principle of co-operating between States
in the manage ment and conservation of living resources of the high seas areas is accepted. (9) A
special regime of access to the sea is to be established governing the relation between land-
locked States and transit States. (10) There is a general acceptance of the principle of
establishing international seabed authority to exercise powers of supervision and regulation in
regard to areas of high seas beyond the waters subject to national jurisdiction.

In the first half of 1977, the sixth session of the Third U.N. ference on the Law of the Sea was
held in New York. As a result of er deliberations, there was greater agreement. The Conference
epted the three major regimes regarding the territorial sea (and Eiguous zone), the continental
shelf and the high seas. There has been agreement regarding the two hundred-mile economic
zone.
Q. What is Exclusive Economic Zone? // Write a short note on EEZ.

A. The Conference on the Law of Seas adopted a resolution on 30th April, 1982. A significant
feature of this resolution is that the Convention accepted the concept of 12 nautical miles as the
territorial sea. The resolution by the Conference consists of 320 Articles. The resolution brings in
a new idea of contiguous zone of 24 nautical miles.

The resolution has accepted the concept of 200 nautical miles coastal as exclusive economic
zone to appertain to the coastal State. The concept of the exclusive economic zone is that the
coastal States may have sovereign rights for the purpose of exploring, exploiting, conserving and
managing the industrial resources of the exclusive economic zone. Such a State would also have
jurisdiction (with due regard to the rights of other States) as regards the establishment and use of
artificial islands and structures, protection and preservation of the marine environment, etc.

It may be noted that in the exclusive economic zone, the traditional freedoms of the high seas,
e.g., navigation, over-flight of aircraft, laying of cables and pipelines, are not affected. If any
conflict arises as to which State has the right or jurisdiction, such conflict is to be resolved "on
the basis of equity and in the light of all the relevant circumstances." The U.N. Convention also
deals with other practical aspects of the exclusive economic zone, e.g., construction of artificial
islands, installations and structures by the coastal State, conservation of living reosurces (like
migratory birds and marine animals) etc.

Q. Explain High Seas \\ Explain the freedom of high seas.

A. According to Oppenheim, "the open sea, or the high seas is the coherent body of salt water all
over the greater part of the globe, with the exception of the maritime belt and the territorial
straits, gulfs, and bays, which are parts of the sea, but not parts of the open sea." Therefore, the
open sea may be defined as all parts of the sea which are not: (1) the Territorial Sea; or (2)
internal Waters.

Although in ancient times, and the first half of the Middle Ages navigation on the open sea was
free to everybody, in the latter half of the Middle Ages, some maritime States began to claim
their sovereignty over parts of the open sea. For several hundred years, such claims were
asserted. It was Grotius who, for the first time, attacked this concept of maritime sovereignty. He
contended that the sea cannot be State property, because no State could really take into
possession through occupation such sea, and that consequently, the sea is by nature free from the
sovereignty for any State. Grotius was severely criticized by many authors of different nations.
But gradually, other writers followed Grotius and the concept of open sea acquired great support.
Besides, as Hall has pointed out, the principle of the freedom of the open sea began to develop
with the mutual and obvious interests of the maritime nations. The freedom of the open sea was
seen to correspond to the general interests of all States.

The concept of the freedom of the open sea signifies the following: (1) The open sea is not, and
never can be, under the sovereignty of any State whatever. (2) No State has, as a rule, a right to
exercise its legislation, administration, jurisdiction, or police power over parts of the open sea.
(3) No State has a right to acquire parts of the open sea through occupation. (4) There is absolute
freedom of navigation on the high seas for vessels of all nations, whether merchant men or
wareships. (5) No State may exercise jurisdiction over ships within the open sea not bearing its
flag. (6) A State may exercise jurisdiction over a ship sailing under its flag. (7) There is absolute
freedom of flight above the open sea for all aircrafts. (8) Every State and its citizens are entitled
to make use of the high seas for laying submarine cables and oil pipe lines. The above-mentioned
principles of the "freedom of the open sea must now be understood subject to the rules of
international law regarding the Continental Shelf and the Contiguous Zones.

Q. Limitations of the freedom of high seas.

A. LIMITATIONS OF THE FREEDOM OF OPEN SEA - Though there is freedom of the open
sea, certain rules to regulate the freedom of the open sea are recognised in the interest of
avoiding conflicts and creating a legal order in the open sea, namely, (1) All vessels, public or
private, on the high seas are subject to the jurisdiction, and entitled to the protection of the State
under whose maritime flag they sail. Therefore, no ship can sail under a particular flag, without
proper authority from the Flag State. There should be some "genuine link" between a vessel and
the State which grants the right to fly its flag. Vessels under an unauthorised flag are liable to
capture and confiscation by the State whose flag has wrongfully been raised, and the warships of
any State may call on suspicious vessels to show their flag. If there is reasonable ground for
suspecting that a merchant ship is engaged in piracy or the slave trade, it may be boarded and, if
necessary, searched.

(2) The Right of "Hot pursuit": When a foreign vessel infringes the laws and regulations of a
coastal State while in the territorial waters of such State, such State may pursue and arrest the
foreign ship even on the high seas. This right is known as the right of "Hot pursuit". This can be
exercised provided the following conditions are fulfilled:

(i) The pursuit must commence immediately while the foreign ship is still within the
territorial waters.

(ii) The pursuit must be continuous and uninterrupted.

(iii) A visual or auditory signal must have been given, asking the ship to stop.

(iv) The pursuing ship must be either a warship or a military aircraft or an authorized
patrol vessel.

(v) The regulation or the law infringed must be either a law regarding revenue or fishery
or a law affecting vitally the interests of the coastal State.

(3) When there is a grave suspicion that foreign vessel is a source of imminent danger to the
sovereignty or security of that State, in the interests of its protection, the coastal State may
exercise jurisdiction over foreign ships, even when they are in the open sea.

(4) Certain international conventions might confer rights on the States to exercise jurisdiction on
the high seas.

(5) During times of war, a belligerent State has a general right to search ships of neutral countries
to prevent the carriage of contraband.

Q. Define Ozone Depletion // Write a short note on Ozone Depletion.

A. In spite of these so many Conventions which are entered into by nation-states, what is needed
is full co-operation between all states, and probably one more international Convention attracting
the participation of a wide range of countries.

Ozone layer prevent the penetration of harmful UVB wavelength and ultra violet light that passes
through the earth's atmosphere. Exposure to such rays increases the problem of skin cancer, sun
burns, cataracts (eye problems) and it even affects the flora and fauna of the planet.

The Montreal protocol bans the production of ozone depleting chemicals such as carbon
tetrachloride and trichloroethane. 16th September is observed and voted by the United Nations
General Assembly as "World Ozone Day" since on that day the Montreal Protocol was signed in
the year 1987. The chlorofluorocarbons are released in the atmosphere due to increased use of
fire extinguishers, coolant, refrigerators, aerosol cans etc. if the ozone layer is not protected,
mankind would suffer from diseases which would affect the next generations too.

Q. Define Nationality.

A. Nationality, as defined by Oppenheim, is the quality of the individual of being a subject of a

certain State, and therefore, its citizen. It is a continuing relationship between the sovereign State
and the citizen." The fundamental basis of a person's nationality is his membership of an
independent political community. This legal relationship involves rights and corresponding
duties upon both the citizen and the State.

Oppenheim has defined nationality of an individual as his quality of being a subject of a certain
state". Nationality can be defined as the status of a natural person who is attached to a state by
the tie of allegiance. As per article 15 of the Universal Declaration of Human Rights of 1948
nationality is termed as "everyone has the right to a nationality treating it as a basic human right.
Determination of Nationality

The determination of nationality falls within the province of the municipal law of each State and
it is not the concern of international law. Each State determines for itself, and according to its
own constitution and law, what classes of persons become its nationals. Therefore, naturally,
there are several variations in the rules of different States regarding determination of nationality.
But at the same time, some common principles can be culled out of the rules of different States
on this point. Generally, States determine nationality on the basis of the following principles: (a)
On the basis of the nationality of the parents at the time of the birth of the person (jus sanguinis);
(b) By the State of the territory of his birth (jus soli); (c) By a combination of these principles.

This absence of uniformity of the basis on which nationality is deter-mined by different States,
has resulted in complicated problems of double nationality, statelessness and disputed nationality
of married woman.

Q. What are aliens? What are the rights of aliens? // Write a short note on Rights of aliens

A. Juristic opinion on this question is not uniform. At the one end, there is the extreme view that
a State is under a duty to admit all aliens. At the other end, there is another view that a State is
fully entitled to exclude all aliens at will. In between, some hold the view that a State is under a
duty to admit all aliens subject to some conditions and qualifications.

Thus, the following four views have been generally held by states as regards the admission of
persons into countries which are not of their nationality, that is, aliens:

(1) A State is under a duty to admit all aliens.

(2) A State is under a duty to admit all aliens, but has a right to exclude certain classes of persons
like drug addicts, persons with communicable disease, etc.
(3) A State is bound to admit aliens, but it may impose conditions with regard to their admission.
(4) A State is fully entitled to exclude all aliens at will.

As far as actual practice of States is concerned, the first view has never been accepted as a
general rule of international law. Most States purport to follow the last rule, claiming that an
unqualified right to exclude all aliens is an essential attribute of a sovereign government a view
which finds judicial support in some decisions of English and American courts, as for instance,
Musgrove v. Chung Teaong Toy (1891 A. C. 272) and Nishimura Ekiu v. U. S. (1892, 142 US
651).
State migration laws of many countries show that there is no duty at international law to admit
aliens. Though this is the theoretical position, in practice, States do freely admit aliens, subject to
certain conditions. Sometimes, the total prohibition of the citizens of one particular State may be
considered as an unfriendly act towards that State. Most States require all entrants to have
obtained in advance, a stamp on their passport, called a visa, certifying that the receiving State's
representatives abroad have certified that the holder of the visa is qualified to seek entry into that
country. However, a visa does not guarantee that entry will be allowed in a given State, and its
holder may yet be refused entry into the country. States often enter into agreements with other
States waiving the visa requirements for citizens of those states or enact laws allowing visa-free
entry for certain categories of travelers, as for instance, tourists in transit holding an onward
travel ticket. Again, citizens of the E, U. (European Union) can freely travel from one country of
the EU to another without the requirement of a visa.

With his entrance into the territories of a State, an alien falls, at once, under the territorial
supremacy of that State, unless he belongs to a privileged class like that of the diplomatic agents,
which enjoys immunity of so-called exterritoriality. But at the same time, an alien admitted into
a State continues to be under the personal supremacy of his own State. In the State he is
admitted, he is generally in the same position before law as the subject of that State. But some
States subject aliens to some kind of discriminations or restrictions. These discriminations or
restrictions, generally, are on voting rights and the practice of certain professions. The Economic
Committee of the League of Nations has classified the treatment of aliens abroad under the
following heads:

(1) Fiscal treatment - Every resident alien, unless he enjoys diplomatic immunity, is under an
obligation to pay the ordinary civil taxes or customs dues. Several judicial decisions have
affirmed that the State has a right at international law to tax any property of an alien which is
physically within its jurisdiction.

(2) Rights as to the exercise of professions, industries or occupations - As already pointed out,
aliens can be admitted subject occupations. to conditions, and one of the conditions may be by
way of restrictions on practising certain professions.
(3) Treatment in such matters as residence, the holding of property and civil privileges and
immunities - Regarding the right of an admitting State to confiscate or nationalise the property of
an alien, a detailed discussion is given in the Chapter on State Responsibility, and the position at
international law may be summed up as follows: (a) Discriminatory confiscations and
expropriations are opposed o priciples of international law. (b) Arbitrary confiscation or
expropriation without compensation is opposed to international law. (c) In case of such
discriminatory or arbitrary confiscation, the home State of the alien can intervene. (d) But,
nationalisation consistent with the general policy of the State, is not opposed to international law
and gives no ground for intervention by the home State. (e) The vested rights of an alien in his
country of residence are also entitled to protection. However, as clarified by the Permanent Court
of International Justice (in the Oscar China Case, 1934), protection of vested rights does not
mean that the country of residence of an alien has any obligation to abstain from providing
certain advantages to its local businessmen, which may cause loss to an alien in his business. (f)
Aliens, though they owe temporary allegiance or obedience to the State of residence, are yet
exempt from any compulsory obligation to serve in the armed forces of the country in which they
reside, unless the State to which they belong consents to waive the exemption. But this does not
exempt such aliens from compulsory service in a local police force.

Under the laws of but he has a right to opt out. In case the alien exercises this right (to opt out), if
he subsequently leaves the US, he is not allowed to return, and if he stays on in the US, he will
not be granted American citizenship.

(4) Conditions of admission and emigration. - Admission of aliens is is at the discretion of the
admitting states, and such a State might impose several conditions regarding both admission and
immigration.

Q. What is asylum? (2marks)

A. Asylum is derived from a latin word "asylia" which means inviolable place. The asylum
ensures that shelter and protection are provided by a state to a person who is denied the same in
his own country / nation. Generally, asylum is granted to a person when a free and fair trial is not
expected in his own country and therefore the said person should not be extradited.
In Corfu channel Case, the International court of justice stated that "asylum protects the political
offenders against the violent and disorderly action of irresponsible sections of the population".
Sometimes asylum can be viewed as an unfriendly act. For example, Taslima Nasreen, the writer
of Bangladesh or Dalai Lama and other Tibetans in India.

As already pointed out, asylum is inter-connected with extradition. Asylum stops where
extradition begins. Asylum is the right of every State to refuse to extradite in certain
circumstances. It also involves the elements of shelter and active protection on the part of the
authorities in control of the territory of asylum. Asylum is of two kinds: (i) territorial, and (ii)
extra-territorial.

Q. What is the European Convention on Human Rights concerned with? (2 marks)

A. The European Convention for the Protection of Human Rights and Fundamental Freedoms
was sponsored by the Council of Europe and signed by the Member States of the Council of
Europe at Rome on Novermber 4, 1960. It is an important regional Charter of Human Rights.
This Convention goes much beyond the Universal Declaration of Human Rights in the following
ways: (a) The European Convention imposes a binding commitment to provide effective
domestic remedies in regard to a number of rights specified in the Universal Declaration of
Rights. (b) It contains precise and elaborate definition of such rights along with the exceptions
to, and restrictions on, each of such rights. (c) It provides for the establishment of a European
Commission of Human Rights to investigate and report on violations of human rights, at the
instance of the State parties, or if the State against which complaint is made has so accepted-
upon the petition of any person, non-governmental organisation or group of individuals within
that State's jurisdiction.

The Commission became competent to receive applications in July 1955, after six States had
accepted the right of individual recourse. The Convention also provided for a European Court of
Human Rights, with compulsory jurisdiction to come into being upon at least eight States
accepting such jurisdiction. This was achieved in September 1958 and the Court was set up in
January 1959. It delivered its first judgment on November 15, 1960 in the Laweless case. It
should be accepted that though the European Convention for the protection of Human Rights and
Fundamental Freedoms has attempted to make fundamental rights enforceable at the
international level, there are serious limitations which restrict the exercise of jurisdiction by the
court referred to in the Convention.

Q. Write a short note on: United Nations Environment Program.

A. Since its inception in 1972, the United Nations Environment Programme (UNEP) has been
the global authority that sets the environmental agenda, promotes the coherent implementation of
the environmental dimension of sustainable development within the United Nations system and
serves as an authoritative advocate for the global environment.

UNEP’s mission is to provide leadership and encourage partnership in caring for the
environment by inspiring, informing, and enabling nations and peoples to improve their quality
of life without compromising that of future generations.

Headquartered in Nairobi, Kenya, UNEP works through its divisions as well as regional, liaison
and out-posted offices and a growing network of collaborating centres of excellence.

UNEP works closely with its 193 Member States and representatives from civil society,
businesses, and other major groups and stakeholders to address environmental challenges
through the UN Environment Assembly, the world’s highest-level decision-making body on the
environment.

The organization hosts the secretariats of many critical multilateral environmental

agreements and research bodies.

The Executive Director and Senior Management Team lead the implementation of
UNEP’s Medium-Term Strategy (MTS). The four-year MTS articulates UNEP’s role in
delivering the promises of the 2030 Agenda for Sustainable Development and the United Nations
Conference on Sustainable Development (Rio+20) as well as its outcome document, “The Future
We Want.”
UNEP supports Member States to ensure that environmental sustainability is reflected in
development and investment planning and provides countries with the necessary tools and
technologies to protect and restore the environment.

Through its campaigns, particularly World Environment Day, UNEP raises awareness and
advocates for effective environmental action.

UNEP categorizes its work into seven broad thematic areas: climate change, disasters and
conflicts, ecosystem management, environmental governance, chemicals and waste, resource
efficiency, and environment under review.

Its work is made possible by partners that fund and champion the mission. UNEP depends on
voluntary contributions for 95 per cent of its income.

Q. What was the main object of Stockholm conference?

A. The United Nations Conference on the Human Environment, which met at Stockholm from
June 5 to June 16, 1972, represented the first major effort to solve the global problem of
protection and improvement of the human environment by an international agreement. The
Conference worked in several Committees and made several recommendations in connection
with the problem. The Conference also established a Working Group to examine and consider
the draft declaration on human environment placed before it. The important decisions,
resolutions and recommendations of the Conference can be summed up as follows:
(1) A resolution was passed in the plenary session, condemning nuclear weapons tests, especially
those carried out in the atmosphere, and calling on States intending to carry out such tests to
refrain from doing so, as these might lead to further contamination of the environment.
(2) A unanimous recommendation was made that a World Environment Day be observed on June
5 each year.
(3) A so-called "Action Plan" for the protection and enhancement of the environment was
formulated. This Plan was in effect a grouping, in a more or less logical fashion, of all
recommendations for international action adopted by the Conference. The re-arrangement
involved three parts, an "Earthwatch" programme to identify problems of international
significance so as to warn against impending environmental crises; recommendations concerning
"environment management" or in other words the application in practice of what was shown to
be desirable or necessary in regard to the environment; and supporting measures" such as
education, training, public information, and finance. "Earthwatch" was to encompass, not only a
projected network of atmospheric monitoring stations, but also existing programmes of
international bodies for the detection of climatic changes and of marine pollution. An interesting
recommendation was that for an International Referral Service to provide liaison between those
persons or institutions seeding environmental information, on the one hand, and persons or
institutions, on the other hand, able to furnish the information desired.
(4) The Conference also adopted a "Declaration of the United Nations Conference of Human
Environment." An optimistic view prevails that this Declaration can very well be compared to
the Universal Declaration of Human Rights of 1948; and as the latter Declaration paved the way
for international legal guarantee to human rights in certain areas, the Environment Declaration
may also be productive. However, it should be noted that at present it is a non-mandatory
Declaration.
(5) Another important recommendation of the Conference was to create a new international
machinery. It suggested the setting up of a 54 member Governing Council for Environmental
programme, elected once in three years by the General Assembly, on the basis of equitable
geographical distribution. It is gratifying to note that following the recommendation, a 58-
member Governing Council has been established as the policy making body of the United
Nations Environment Programme. As a result of the recommendation and the resolutions of the
Stockholm Conference, the following Conventions have been adopted (a) The Convention for
the Protection of the World Cultural and Natural Heritage, adopted at Paris on November 16,
1972, under the auspices of the United Nations Educational, Scientific and Cultural Organisation
(UNESCO) (b) The Convention on International Trade in Endangered Species of Wild Fauna
and Flora, concluded at Washington on March 3, 1973. (c) The International Convention for the
Prevention of pollution. from ships, and its six Annexes and two protocols, concluded on
November 2, 1973, together with the related Convention on the Prevention of Marine Pollution
from Landbased Sources (d) The Action Plan adopted by the United Nations World Population
Conference at Bucharest, Romania, August 19-30, 1974, containing statements and
recommendations directed to the control of population growth, and related demographic goals,
and calling, inter alia, for the continuous monitoring of population trends by the United Nations,
but involving no binding commitments for States in this area (e) Mention also should be made in
this connection of the draft provisions for the protection and preservation of the marine
environment in Part III (Articles 1-47) of the Single Negotiating Text (SNT) adopted and revised
at the Third and Fourth Sessions of the Third United Nations Conference on the Law of the Sea.

Q. What do you mean by a treaty?

A. In accordance with the definition of the term adopted in Art. 2 of the Vienna Convention, a
treaty may be defined as an agreement whereby two or more States establish, or seek to establish,
a relationship between themselves governed by international law. As observed by Starke, so long
as an agreement between states is attested, any kind of instrument or document and even an oral
exchange between states involving undertakings – may constitute a treaty, irrespective of the
form or nomenclature or the circumstances of its conclusion, provided:

(i) it is not governed by domestic national law and

(ii) it is intended to create a legal relationship.

In the Eastern Greenland case, the Permanent Court of International Justice held that even an oral
declaration in the form of a promise by the Foreign Affairs Minister of one country to his
counterpart of another country within their respective competence and authority, can be as
binding as a formal treaty in writing. A treaty is thus an agreement of a contractual character
between States or between States and International Organisations, creating legal rights and
obligations between the parties.

Q. Difference between contractual treaties and law-making treaties.

A. Though treaties create international agreements and can be compared to contracts, treaties
which are agreements between States, or between States and International Institutions must be
distinguished from the contracts which a State might enter into with individuals or corporations.
The essence of a treaty is that it is an agreement between international persons, though it may
create contractual obligations. But in the case of contracts, at least one of the parties is not an
international person. He is an ordinary legal person according to the relevant law. However, to
consider a treaty as a mere agreement and nothing more would be to over-simplify its functions
and significance. As a matter of fact, a treaty is the main instrument which the international
community possesses today for the purpose of initiating and developing international co-
operation.

Though treaties create international agreements and can be compared to contracts, treaties which
are agreements between States, or between States and International Institutions must be
distinguished from the contracts a State might enter into with individuals or corporations. The
essence of a treaty is that it is an agreement between international persons, though it may create
contractual obligations. But in the case of contracts, at least one of the parties is not an
international person. He is an ordinary legal person according to the concerned law.

Q. Discuss significance of a treaty in international scenario.

A. (a) A SOURCE OF LAW - It has already been observed that certain kinds of treaties. known
as law-making treaties, are an important source of international law. In certain instances, even
the so-called treaty contracts could directly become a source of international law.

(b) A SOURCE OF INTERNATIONAL CONSTITUTIONAL LAW Of late, treaties,

particularly multipartite treaties, play the im portant role of making constitutions of International
Organisations. For example, the Charter of the United Nations, which is the outcome of an
international conference at San Fransisco in 1945, is in the nature of a multilateral or a
multipartite treaty. Similarly, the covenant of the League of Nations was a multilateral treaty.

(c) AN INSTRUMENT FOR IMPOSING BINDING OBLIGATIONS In international practice,

treaties perform various functions and are responsible for carrying on several international
transactions. A treaty, which is an agreement between States, or between States and International
Institutions, creates obligations of a binding nature. In this sense, treaties can be compared to
contracts in civil law.

Q. What are the different kinds of treaties?

A. Oppenheim classifies treaties into law-making treaties for any other purpose. McNair
classifies treaties under the following heads:
(a) Treaties having the character of conveyance
(b) Treaties having the character of contracts
(c) Law-making treaties, which are further subdivided into:
(i) Treaties creating constitutional law, and
(ii) Treaties creating other conventions.
(d) Treaties akin to charters of incorporations, like the Universal Postal Union.

Starke classifies treaties accordingly to the form in which they are concluded, namely:
1. Treaties between heads of States: In this form, the treaty is concluded between sovereigns or
heads of States.
2. Treaties between Governments: This form is usually used for technical or non-political
agreements.
3. Treaties between States.
4. Treaties between Ministers: A Treaty may be negotiated and signed between the Ministers of
the respective countries concerned.
5. Treaties between particular governmental departments.
6. Treaties between the actual political heads of two or more countries, as for instance, (i) the US
– Soviet Union Treaty on Anti-ballistic Missile Systems, signed at Moscow on May 26, 1972, by
President Nixon of USA and Leonid Brezhnev of the Soviet Union, and (ii) the Joint Declaration
of the Reversion of Hong Kong to Chinese sovereignty signed on December 19, 1984 by the
British Prime Minister, Mrs. Thatcher and Mr. Zhao Ziyang, the Premier of the People's
Republic of China.

Q. What do you understand by bilateral treaty? (2 marks)

A. A bilateral treaty is (as its name suggests) a treaty between two States, whereas a multilateral
treaty is one entered into by many States. Somewhere in-between are plurilateral treaties where
the number of States entering into such a Treaty is more than two, but not a great many as in the
case of multilateral treaties.
Q. Explain the various stages in the formation of an international treaty.

A. Starke enumerates the following steps in the conclusion of a treaty: 1. Accrediting of

representatives, 2. Negotiation, 3. Signature, 4. Ratification, 5. Accession and adhesion, 6.
Coming into force, 7. Registration and publication, 8. Application and enforcement.

1. Accrediting of Representatives - Each of the States participating in the treaty-making process

appoints a representative or a plenipotentiary for this purpose. The power of these representatives
is clearly defined and stated. Where the representative is empowered to participate in the
negotiation to conclude and sign the treaty, such powers are known as Full Powers. In
negotiation for bilateral treaties, each representative exhibits his Full Powers to the other. In the
case of negotiations or conferences for entering into multilateral treaties, there may be a
committee of Full Powers to which the credentials are presented.

2. Negotiations - In the case of bilateral treaties, negotiations are conducted through

"pourparlers", but in the case of multilateral treaties, negotiation will be conducted through
diplomatic conferences. The accredited representative will keep himself in touch with his
Government during the progress of the negotiations. A rapporteur is generally appointed to help
the conference in its work. The negotiations continue till such time as an agreement is arrived at
regarding the text of the proposed treaty.

3. Signature - After the completion of the negotiations, the final draft of the treaty is drawn up
and the instrument is ready for signature. The signature is affixed at a formal closing session.
Signature is essential for making a treaty legal and binding. A treaty generally comes into force
on being signed by plenipotentiaries of the contracting States, unless the States desire to subject
it to ratification. Generally, treaties and conventions are sealed, but this is not absolutely
essential.

4. Ratification - When the treaty expressly provides that signatures of the representatives are not
sufficient, and the treaty or the Convention should be confirmed by the States, a treaty will not
have any legal effect or sanction unless it is confirmed or ratified by proper authority under the
constitution of the country.
5. Accession and Adhesion - A third State can become a party to an existing treaty by means of
accession. This may be brought about by the formal entrance of the third State with the consent
of the original parties to the treaty. The term accession is generally used when a State which was
not an original party to the treaty becomes a party to the whole of the treaty. When a State
desires to adopt certain parts of the treaty, only then it is known as adhesion. But according to
Oppenheim, the distinction between accession and adhesion is made only in theory, but seldom
in practice.

6. Coming into force - When ratification is not stipulated in a treaty, it comes into force
immediately after signature. When ratification is necessary, a bilateral treaty comes into force
after the exchange of ratification by the signatory States. In the case of multilateral treaties,
where ratification is necessary, the treaty comes into force after a prescribed minimum number
of States deposit their ratifications.

7. Registration and publication - In traditional international law, registration was unknown. But
States would enter into secret treaties, quite often inconsistent with each other. To do away with
this evil, Article 102 of the Charter of the Uni-ted Nations provides that all treaties and
international agreements entered by a Member State shall, as soon as possible, be registered with
the Secretariat of the United Nations, and then the Secretariat shall publish it. The effect of non-
registration is that no party to a treaty would be able to invoke any unregistered treaty or
agreement before any organ of the United Nations. Article 102 of the Charter of United Nations
requires a treaty to be registered as soon as may be. The non-registration will not invalidate the
treaty, but such a treaty cannot be invoked before any organ of the United Nations.

8. Application and enforcement - The final stage of the treaty is its actual incorporation in the
municipal laws of the contracting States, where such incorporation is necessary.

Q. Explain the term ‘reservation’ in treaties.

A. States, very often, wish to conclude a treaty, stipulating that certain provisions of the treaty
might not bind them or that certain parts of the treaty might be modified. This can be done either
by express provision in the treaty itself or by a reservation made and accepted by the other
parties to the treaty. Starke defines a reservation "as a formal declaration by a State made without
signing, ratifying or acceding to a treaty, whereby as a condition of its willingness to become a
party to the treaty, it stipulates for exemption from one or more provisions of the treaty or the
modification of these provisions, or the interpretation of the provisions in a particular manner.
This privilege of the parties of a treaty to make reservation is regarded as an incident of the
sovereignty and equality of States. It is based on this principle that if a particular State cannot
accept the whole of the treaty, it is preferable that it might become a party to the treaty, at least in
a limited manner, and thereby a treaty may be accepted or approved unanimously.

A State can make a reservation at the time of the signature, only with the consent of the other
States which are parties to the treaties. In practice, States generally express their intention to
make reservation at an earlier stage, so that the other States may have time for deliberations, and
the treaty may be accordingly finalised. If the treaty is signed, and thereafter, at the time of
ratification, if a State wants to make reservations, then, naturally, the consent of other States
which are signatories to the treaties is necessary.

In practice, States very often ignore the requirements of obtaining the assent of the other States
for their reservations. This has created a number of complications. The international Court of
Justice considered the rules of international law on reservation in its advisory opinion on
Reservations to Genocide Convention, 1948 (1951). Starke summarises the views of the Court as
follows:

(a) Admissibility of Reservations - Reservations are allowable, notwithstanding the absence of a

provision in the Convention permitting them. There need not necessarily be an express assent by
other interested States to the making of reservations; such assent may be by implication,
particularly in the case of certain multilateral Conventions, where clauses are adopted by a
majority vote of the drafting Conference. If a reservation is compatible, objectively, with the
nature and purpose of a Convention, a State making it may be regarded as fully a party to the
instrument. This test of the compatibility is consistent with the principle that the Convention
should have as universal an operation as possible and also with the principle of "integrity of the
instrument.
(b) Effect of Reservations - The same test of compatibility applies, therefore, if a State rightly
objects that a reservation is incompatible with the Convention, it may legitimately consider that
the reserving State is not a party thereto.

(c) State entitled to object to Reservations - A State entitled to sign or accept a Convention, but
which has not done so, cannot validly object to reservations; nor is an objection by a signatory
State, which has not ratified the instrument, effective until its ratification.

Reservations and the Vienna Convention on Treaties - Article 20 of the Vienna Convention on
Treaties provides the following rules regarding reservations: (a) If a limited number of
negotiating States are involved, and it is clear from the object and purpose of the treaty that the
application of the treaty in its entirely is an essential condition of the consent of each State to be
bound by the treaty, the admissibility of the reservation will depend upon unanimous acceptance.
(b) If the reservation is one of the constituent instruments of an international organisation, the
prima facie acceptance by a competent organ of that institution is required, unless there is an
express provision to the contrary.
(c) Where the above rules do not apply, a reserving State may become party to the treaty vis-a-
vis a State accepting the reservation, while an objection to the reservation does not preclude the
treaty coming into the force between the reserving State and the objecting State, unless the
objecting State opposes this.

Q. What is Jus Cogens?

A. A treaty is void if, at the time of its conclusion, it conflicts with a premptory norm of general
international law. A pre-emptory norm of general international law is a norm accepted and
recognised by the international community of States as a whole as a norm from which no
derogation is permitted, and which can be modified only by a subsequent norm of a general
international law having the same character.

Under Art. 64 of the Vienna Convention, if a new peremptory norm of jus cogens emerges, even
an existing treaty which is in conflict with that norm becomes void. However, this is a highly
controversial provision and was strongly opposed at the time of its inclusion in the Convention.
The main objection to this rule is that no treaty can safely be entered into without being exposed
to a possible danger of subsequent invalidation by reason of some unanticipated future
development in the governing principles of International Law. Thus, this rule cannot be said to
contain any universally accepted rule of International Law.

Q. What is meant by Rebus Sic Stantibus? (2 marks) // Write a short note on Rebus Sic
Stantibus.

A. A party to a treaty may be justified in demanding to be released from the obligation of a

treaty. This is justified by many writers on the principle of conventio omnis intelligitur rebus sic
stantibus and assent that the treaties are concluded under the tacit condition rebus sic stantibus.

The meaning of the doctrine of rebus sic stantibus is that if by an unforeseen change of
circumstances, an obligation provided for in the treaty should imperil the existence or vital
development of one of the States, such a State should have a right to demand to be released from
the obligation concerned. It is the basic and implied condition of every treaty. This doctrine can
be compared to the doctrine of frustration known to the law of contracts of several countries.

Starke observes that "The Rebus sic stantibus doctrine is one of the enigmas of international
law". There are three views regarding the theoretical foundation of this doctrine:

(a) According to one view, the basis of the doctrine is that the original state of facts, as
contemplated by the parties to be a necessary pre-condition for the continuance of the treaty, has
disappeared. As the contemplated basis has disappeared, the treaty must be deemed to have come
to an end. The test here laid down is the subjective test. The International Court of Justice
approved of this test in the case of the Free Zones of Upper Savoy and Gex (1932).

(b) The second view is based on an objective test. According to this view, the basis of this
doctrine is that the original facts which were in fact fundamental to the existence of the treaty,
have disappeared. Therefore, such disappearance terminates the treaty.According to this theory,
whether there is sufficient justification for termination of the treaty or not is a question capable
of being objectively ascertained. Therefore, a third impartial party or International, tribunal alone
can decide whether there is sufficient justification for the operation of this doctrine.
(c) The third view is that the doctrine operates when a change in the original state of facts
existing at the time of the conclusion of the treaty makes continuance of the treaty injurious to
one of the parties. This is considered to be a very unsatisfactory explanation of the basis of the
doctrine.

Article 62 of the Vienna Convention provides as follows:

(1) A fundamental change of circumstances, which has occurred with regard to those
circumstances existing at the time of the conclusion of a treaty, and which was not foreseen by
the parties, may not be invoked as a ground and for terminating or withdrawing from the treaty,
unless: (a) The existence of those circumstances constituted as essential basis of the consent of
the parties to be bound upon the treaty; and (b) The effect of the change is radically to transform
the extent of obligations still to be performed under the treaty. However, the mere fact that the
change of circumstances makes the performance to the treaty and obligaitons burdensome is no
ground for terminating or withdrawing from the treaty.

(2) The fundamental change of circumstances may not be invoked as a ground for terminating or
withdrawing from the treaty (a) if the treaty establishes a boundary; or (b) if the fundamental
change is the result of a breach by the party invoking at either of an obligation under the treaty or
of any other international obligations owed to any other party to the treaty.

(3) if, under the foregoing paragraphs, a party may invoke a fundamental change of
circumstances as a ground for terminating or withdrawing from a treaty, it may invoke the
change as a ground for suspending the operation of the treaty. From the above Article (Art. 62),
it can be seen that now the subjective and objective tests have been combined.

Q. What is Pacta Sunt Servanda?

A. This means that the states are found to fulfill in good faith the obligations assumed by them
under the treaty.

As per Article 13 of International Law Commission every state has the obligation to carry out the
duties and obligations in good faith as per the terms of the treaty. The said idea is also
incorporated in Article 26 of Vienna Convention. It serves a very important function since there
is international co-operation. The International Court of justice admitted its effectiveness in the
case of 'Nuclear tests' (Australia v. France) by mentioning that principle of good faith is one of
the basic principles governing the creation and performance of legal obligations".

Q. What are the methods of peaceful settlement of disputes in International Law?

A. (a) Negotiation - Oppenheim defines negotiation as follows: "International negotiation is the

term for such intercourse between two or more States as is initiated and directed for the purpose
of effecting an understanding between them or settling a dispute" According to him, full-fledged
sovereign States alone can be regular parties to international negotiation.

(b) &(c) Good Offices and Mediation - In both these methods of settlement, usually a friendly
third State assists in bringing about an amicable solution of the dispute. The main difference
between good offices and mediation is that in the case of good offices, the third party assists to
bring about the solution of a dispute between two States by counselling of advice or suggesting
of a settlement without participating in the negotiation. In the case of mediation, the third party,
either at its own initiative or at the request of the disputing parties, plays an active role and
participates in the negotiations. Such mediating party or the party which tenders good offices
may be a State or an International Organ or even an individual. There are no definite rules of
procedure of international law regarding the conduct of either good offices or mediation.

(d) Conciliation - The term conciliation is used in two senses. In the general sense, it means the
great variety of methods whereby a dispute is amicably settled with the aid of other States or of
impartial bodies of enquiry or advisory committees. In the restricted sense, conciliation means
the reference of a dispute to a Commission or Committee to make a report, with proposals to the
parties for settlement. It must be noted that such proposals contained in the report are not of a
binding character.

Hudson defines conciliation as "a process of formulating proposals of settlement after an

investigation of the facts and an effect to reconcile opposing contentions, the parties to the
dispute being left free to accept or reject the proposals formulated".
The Hague Convention of 1899 and 1907 provided for the pacific settlement of disputes by
means of Conciliation Commissions. These Commissions were set up by the special agreement
of the parties which, after investigation of the disputes, made their report, indicating the way to
settle the dispute amicably. Though the value of the Conciliation Commission is doubted by
many, it must be accepted that the procedure of conciliation proved most useful and important
when the League of Nations Council employed it to settle international disputes. Conciliation
differs from mediation.

In mediation, the agency of a third party is used to carry on the negotiations, while in the case of
conciliation, such third party ascertains the facts and makes a report suggesting proposals for
settling international disputes.

(e) Enquiry – Enquiry is a form of amicable settlement of international disputes, whereby facts
are investigated and a way for Enquiry is a form of amicable settlement of a negotiated
adjustment is prepared. An enquiry differs from conciliation in that the object of an enquiry is
not to make any specific proposals for settling international disputes, but it is just to investigate
and establish facts. The Hague Conference of 1899 suggested the establishment of International
Commission of Enquiry for international disputes, involving neither them nor vital interests and
relating to points of facts. The Conference further provided that such a Commission might be
constituted by special agreements between the parties. The Conference also laid down a scheme
for selection of members of such Commission. The North Sea Incident Enquiry and the Ubantia
Enquiry are instances of such commissions of Enquiry. However, it must be noted that the
International Commissions of Enquiry have not been employed in practice as much as it was
expected they would be.

(f) Arbitration - Arbitration is a very important method of settling international disputes by

peaceful means. Its value rests in its quasi-judicial character. It signifies the reference of the
dispute to an individual or small group of individuals to whom the parties state their respective
cases and whose decision they are bound to obey, unless they can show that the arbitrator
exceeded his authority. The procedure of inter-national arbitration is the same as in municipal
law. But it is possible that several disputes involving purely legal issues are referred to
Arbitrators for settlement on a legal basis. Several treaties which provide for settlement of a
dispute arising out of a treaty, state that the Arbitrator may make his award according to justice
or equity or ex acquo et bono, or he might b specially directed to apply the rules of International
Law.

Q. What are the result of ceasefire violations under International Law?

A. Action with respect to threat to peace, breach of peace and acts of aggression. The powers and
functions of the Security Council can be broadly enumerated thus: (i) The Security Council must
determine the existence of any threat to the peace, etc. (ii) It must take certain provisional
measures to prevent an aggravation of the situation. (iii) It may decide what measures not
involving the use of the armed forces are to be employed. (iv) It may take measures involving the
use of the armed forces. These powers are discussed below.

(i) The Security Council shall determine the existence of any threat to the peace, etc.-The first
function of the Security Council regarding the preventive or enforcement action is to determine
the existence of any threat to the peace, breach of the peace or act of aggression. Thereafter, it
makes recommendations as to what measures are to be taken to maintain or restore international
peace and security.

(ii) Provisional measures. In order to prevent an aggravation of the situation, the Security
Council may, before making recommendations or deciding upon the measures to be taken, call
upon the parties concerned to comply with such provisional measures as it deems necessary or
desirable. Such provisional measures are, however, without prejudice to the rights, claims or
compensation of the parties concerned.

(iii) Measures not involving use of armed forces. The Security Council may decide what
measures, not involving the use of armed forces, are to be employed to give effect to its decision,
and it may call upon the Members of the United Nations to apply such measures. This may be in
the form of complete or partial interruption of economic relation and means of negotiation and
the severance of diplomatic relations.
(iv) Measures involving use of armed forces. If the Security Council considers that the above-
mentioned measures are inadequate, it may take such action by air, sea, or land forces, as may be
necessary to maintain or restore international peace and security. Such action may include
demonstration, blockade and other operations by air, sea or land forces of Members of the United
Nations. The Members of the United Nations are under an obligation to make available to the
Security Council, on its call and in accordance with special agreement or agreements, armed
forces, assistance, and facilities including rights of passage necessary for the purpose of
maintaining international peace and security.

Q. What do you understand by the term VETO Power of the Permanent Members of the
Security Council?

A. Though the Charter intended the General Assembly to be deliberative and recommendatory
body, yet certain development during the working of the Charter have given the General
Assembly greater importance than was intended in the Charter. On account the unfortunate cold
war atmosphere and the consequent vo exercised by certain powers, the Security Council has
almost been paralyzed regarding its ability to take action for either solving international disputes
or for maintaining international peace and security. This almost complete paralysis of the
Security Council gave additional importance to the General Assembly. As there is no veto in the
General Assembly, and as each Member State has one vote, the General Assembly has become,
to a greater extent, a forum of the opinion of the Member States.

The main consequences of the veto can be briefly summed up as follows:

(1) As the Security Council, which is to work continuously and which should be in a position
to take prompt steps when international peace and security are threatened, is incapable of
taking such prompt action on account of the conflict among the permanent Members, the
need for some organ of the United Nations which would be continuously in session and
which would take such action was felt. The General Assembly generally sits once in a
year.
(2) Therefore, the General Assembly created in 1947, an interim committee, popularly
known as the "Little Assembly" to assist the General Assembly in its duties in relation to
 maintaining peace and security. But it appears that this Little Assembly has not made any
significant contribution.

(2) As taking of any preventive or enforcement measure by the Security Council would be
impossible on account of veto, the General Assembly passed in November, 1950, a resolution
known as "Uniting for Peace resolution. (a) According to this resolution, a special session at 24
hours’ notice on the vote of any seven Members of the Security Council and a majority of the
Member States could be convened if the Security Council failed to act because of the veto. (b)
The resolution also provided for setting up a Peace Observation Commission to observe and
report on the situation in any area where international tension threatened international peace and
security. (c) The resolution also provided for a Collective Measures Commi ttee to consider
methods which might be used collectively to maintain and strengthen international peace and
security. It may be noted that the legality of this resolution is challenged by many writers. It is
argued that if the General Assembly can call upon the Member States to take collective
measures, such a step would amount to the use of force inconsistent with the purpose of the
United Nations Charter, as laid down in its Art. 2. It is also argued that both the Dumbarton Oaks
Proposals and the San Francisco Conference visualised unanimity amongst great powers for
taking collective measures. The resolution that goes contrary to this resolution is to strengthen
the United Nations in maintaining international peace and security and to relieve it of the
stultifying effect of the veto in the Security Council. It can be said that the resolution is not
illegal or contrary to the Charter.

(3) The General Assembly recommended, in 1950, the appointment of a Permanent Commission
of Good Offices.

(4) It also recommended setting up a panel of individuals to serve on the Commission of Enquiry
and Conciliation.

Q. Explain International Labour Organization, Composition and its role and function //
Write a short note on ILO // What is ILO? State the objects of ILO?

A. The International Labour Organization (ILO) was created under the Treaty of Versailles,
1919. Subsequently, the section dealing with the Organisation was disassociated with the treaty,
and it was re formulated as the constitution of the Labour Organisation. The constitution was
amended in 1945 and 1946, and now it is a specialised agency associated with the United
Nations.

Objects - The main object of the Organisation is to promote international co-operation in the
sphere of industry and labour, so that minimum as well as uniform labour standards could be
maintained throughout the world. In the absence of such an Organisation, economic competition
between States might result in the deterioration of the condition of the labourers. The
Organisation has accordingly directed its efforts to bring the legislation and practice of each
State into line with the idea of social justice and the treatment of labour according to enlightened
modern conception.

Composition – The International Organisation is represented by 11 organs of Governments,

employers and employees. In this sense, it 13 has a tripartite character. This structure of the
I.L.O. is of unique 5 significance in the development by States only, but in the I.L.O., other 5
groups or interests are also represented. The Organisation has three 6 main organs:

(a) The International Labour Conference.

(b) The Governing Body.

(c) The International Labour Office.

The International Labour Conference is a policy-making and legislative body. The Conference
promotes labour legislation in each State by adopting recommendations and conventions. The
Governing Body is the executive organ of the Organisation. It is also represented by the three
interests mentioned above: Government, employers and employees. The third organ, the
International Labour Office, representing the administrative or Civil service staff of the
Organisation, discharges functions similar to those of the United Nations Secretariat.

Since 1970s, the organization is involved in drafting laws and legislations for the betterment of
labour standards and working conditions. It has also concentrated on the hygienic working
environment and has given special importance to the welfare of women and children
employment. The organization was deemed successful in its efforts and was therefore awarded
the Nobel Prize for Peace in 1969. The member states are expected to follow the said rules and
the ILO acts as a supervisory body to monitor the member states. Such supervision ensures that
the member states do not violate the law and rules. Those members who have adopted the rules
and conditions of the ILO also make reports and submit them regularly with the ILO. The
member states are also required to make report and submit it with the organization.

Q. Write a short note on UNESCO

A. The United Nations Educational, Scientific and Cultural Organisation (the UNESCO)
concerns itself with the field of education, cultural knowledge and science. The objects of the
UNESCO have been described in these words: "The purpose of the organization is to contribute
to peace and security by promoting collaboration among nations, through education, science and
cultural effort, to futher universal respect for justice, for the rule of law and for the human rights
and fundamental freedoms which are affirmed for the peoples of the world, without distinction of
race, sex, language or religion by this Charter of the United Nations". The UNESCO prepares
plans and programmes for the progress of education, science and culture throughout the world
with the co-operation of the various states.

Q. Write a short note on International Court of Justice. // Write a short note on

Composition of the International Court of Justice.

A. International court of justice can be termed as the successor to the Permanent Court of
International justice. The main objective of the court is to settle international disputes or
situations as per the principles of justice and international law. And secondly, to it also acts as an
advisory body to opine on legal questions that are put forth by any institution or organization
recognized and authorized by the Charter of the United Nations.

The court consists of 15 judges which requires that two judges cannot be the nationals of the
same state. The judges of this court are required to be independent. The court has its president
and Vice-President. However, the International Court of justice has been criticized on the ground
that it is partial and the judges are not adequately qualified on legal issues like religion, culture of
the disputing states. The Court is sometimes also criticized for unfair appointment of judges.
The International Court of Justice at the Hague is a very important organ of the United Nations.
It has succeeded the Permanent Court of International Justice created under the covenant of the
League of Nations. This is the principal judicial organ of the United Nations. The rules
concerning the constitution, jurisdiction and procedure of the Court are set out in a Statute
annexed to the Charter. All Members of the United Nations are ipso facto parties to the Statute,
but even non-member States may become parties to it, on conditions to be laid down in each case
by the United Nations General Assembly, upon the recommendation made by the Security
Council.

Structure of the Court - The Court consists of 15 Members, but two or more Members cannot be
nationals of the same State. The Judges of the Court are elected by the General Assembly and by
the Security Council, from a list of persons nominated by the national groups in the Permanent
Court of Arbitration. The Judges of the Court are elected for 9 years and may be re-elected. They
retire by rotation. No Judge of the Court may exercise any political or administrative function or
engage in any other occupation of a professional nature. The Court elects its President and Vice-
President for three years. They may be re-elected. The Court remains permanently in session,
except during the judicial vacation; but a quorum of 9 Judges is sufficient to constitute the Court.
The Judges of the nationality of each of the parties retain their right to sit in the case before the
Court. If the Court includes upon the bench a judge of the nationality of one of the parties, any
other party may choose a person to sit as a Judge.

Q. Write the two famous cases decided by the ICJ.

A. (1) Albama Claims Arbitration (1872)

Facts: During the American Civil War, certain commerce destroying vessels were constructed
and fitted out in England for the Confederate Navy, the Navy of the party opposing the legally
constituted Government. The United States Government alleged a breach of neutrality on the part
of the British Government, as it had failed to exercise due care to prevent the construction of the
vessels and their despatch to the Confederates. The United States Government put forth its claim
for damages through the activities of the vessel in the Givil War. The Albama was one of those
vessels. The dispute was referred to arbitration. The arbitrators decided in favour of the United
States Government.
Significance: (a) This case was a landmark in the history of international law, as it proved
arbitration as a method of development of international law. (b) It was held in this case that a
breach of obligations by a neutral State will give rise to reparation in international law.

(2) The Ambrose Light (1885)

Facts: An armed vessel, the Ambrose Light, commissioned by Colombian insurgents, was seized
by the United States Government as a pirate, because there had been no express recognition of
the insurgents as belligerents. The American Confederal Court held that the seizure was proper.

Significance: According to this case, all unrecognised insurgents, if they were to operate on the
sea, will be considered to be pirates. However, it may be noted that the British view is different.
According to that view, insurgent vessels cannot be treated as pirates, so long as they abstain
from repeated or wilful acts of violence against the lives and properties of British subjects.

Q. Corfu Channel Case

A. It was held that the Security Council could not subject a Member State to the compulsory
jurisdiction of the International Court of Justice, by calling on the parties to adjust their
differences by judicial settlement, if either of the parties to the dispute had not accepted the
compulsory jurisdiction of the Court either under a treaty or under a convention or by a
declaration under Article 36 of the Statute.

Q. Write two issues of the Lotus Case.

A. Facts – The French mail steamer, the Lotus, collided on the high seas with a Turkish ship. It
was alleged that the collision was due to the gross negligence of the Officer of the Watch on
board the Lotus. The result was that the Turkish ship sank, and eight Turkish nationals on board
died. The collision took place on the high seas. Subsequently, the crew members of the Lotus
were taken to Constantinople. The Turkish authorities instituted proceedings against the Officer
of the Watch, basing their claim to jurisdiction on the ground that the act of negligence on board
the Lotus had produced effects on the Turkish ship, and according to the objective territorial
principle the Turkish authorities were justified in exercising the jurisdiction. France protested
against this exercise of jurisdiction by the Turkish authorities. The dispute was referred to the
Permanent Court of International Justice. By a majority decision, the Permanent Court held that
the action of the Turkish authorities was not inconsistent with international law.

Significance: (a) This case is also an authority on the floating island theory of a ship. The
International Court of Justice considered the effect c the negligence on the Turkish ship to be an
effect on an operation of Turkish authority, and therefore, the objective territorial principle was
applicable.

(b) It was also pointed out in this case that no presumption of immunity arises from the fact that
the person against whom the proceedings

(c) However, one of the judges in this case pointed out that an article of the Turkish Penal Code,
whereby jurisdiction was asserted over foreigners committing offences abroad "to the prejudice
of a Turkish subject, was contrary to international law. According to him. the passive nationality
principle of jurisdiction was not to be generally accepted. The same view is also supported in the
Cutting case.

(d) It may be noted that the objective territorial principle of jurisdiction as laid down in the Lotus
case was not generally acceptable to mariners, and it has been disapproved by the Conference at
Brussels in 1962, which adopted the Convention for the unification of certain rules relating to
Penal jurisdiction in matters of collision and other incidents of navigation.

(e) It may also be noted that the International Law Commission has disapproved of the rule laid
down in the Lotus case.

(f) This case is also significant in that the Permanent Court of International Justice had recourse
to juristic opinion for ascertaining the existence or non-existence of a customary rule.

(g) This is also significant in view of the fact that the Court refused to deduce a customary rule
where State judicial decisions on the point were divided.

It must be noted, however, that the principle laid down in the Lotus Case has not been approved
by the International Law Commission. The Brussels Convention for the Unification of Certain
 Rules relating to Penal Jurisdiction in Matters of Collision and other Incidents of Navigation,
now provides for the exclusive jurisdiction of the flag State in penal or disciplinary proceedings
out of collision cases, subject to penal and disciplinary jurisdiction being conceded to a non-flag
State over an accused person of its nationality.

HUMAN RIGHTS

1. Define Human Rights?

Human rights are the basic rights and freedoms that every person in the world is inherently
entitled to. Every person, by virtue of his or her being human, possesses certain basic and
inalienable rights, referred to as human rights. Such rights are vested in a person from the
moment of his birth and may therefore be considered to be his birthrights, irrespective of his
caste, creed, religion, sex or nationality. Every human being is entitled to some basic rights,
which no one can take away. As such rights are absolutely necessary for the moral and material
upliftment of a human being and for his wellbeing, they are also referred to as basic rights,
fundamental rights, inherent rights, natural rights and birthrights.

2. Kinds of human rights.

As human rights are generally indivisible and interdependent, it is often considered a fallacy to
talk of kinds of human rights. The Universal Declaration of Human Rights did not catagorise the
different kinds of human rights. Rather, it simply enumerated them in different Articles.
However, subsequent developments have given rise to the notion that all human rights can be
divided into two broad categories: (i) civil and political rights and (ii) social, economic and
cultural rights.
i. Civil and Political Rights: Civil rights are related to the protection if life and personal
liberty. They enable a person to live a dignified life. These rights include the right to life,
liberty and security, the right to privacy, freedom of movement, thought etc. Political rights
are those rights which allow a person to participate in the political activities of the state.
ii. Social, Economic and Cultural Rights: They guarantee minimum necessities of life to a
human being. These rights are based on the concept of social equality and include the right
to food, clothing etc.
 The UN has recognised both sets of rights in its different covenants.

3. Evolution of International Human Rights Law and the Role of UN in that process.

The end of the world wars and the creation of the UN were accompanied by extensive
development of human rights law. The sources of international human rights law also include
resolutions of the UNGA and official documentation of the UN and its subsidiary bodies such as
UNHRC reports etc. have contributed significantly to the development of international human
rights law.
UN has also recognised the types of human rights in separate covenants and recognised that all
human rights are indivisible and interdependent.

4. Define environment.

S. 2(a) of the Environment Protection Act, 1986, defines environment to include 'water, air and
land and the inter-relationship which exists among and between water, air and land and human
beings, other living creatures, plants, micro-organisms and property'.

5. State Indian laws relating to protection of environment.

In India, there are several laws and regulations which have been enacted to protect and preserve
the environment, as for instance, the Environment Protection Act, 1986, the Water (Prevention
and Control of Pollution) Act, 1974, the Air (Prevention & Control of Pollution) Act, 1981, the
Noise Pollution (Regulation and Control) Rules, 2000, the Indian Forest Act, 1927, the Wild Life
(Protection) Act, 1972, the Forest (Conservation) Act, 1980, etc.

6. Right to development.

The right to development was first recognized in 1981 in Article 22 of the African Charter on
Human and People's Rights, where it was declared that "All people shall have the right to their
economic, social and cultural development with due regard to their freedom and identity and in
the equal enjoyment of the common heritage of mankind."
 The right to development was subsequently proclaimed by the UN in 1986 in the Declaration on
the Right to Development (UN Declaration), which was adopted by a UN General Assembly
resolution to which India is a party. The right to development is a group right of people, as
opposed to an individual right, and was reaffirmed by the 1993 Vienna Declaration and
Programme of Action.

Right to development includes:

i. full sovereignty over natural resources;
ii. self-determination;
iii. popular participation in development;
iv. equality of opportunity; and
v. the creation of favorable conditions for the enjoyment of other civil, political, economic,
social and cultural rights.

7. Right to information.

The right to information denotes the right to request and obtain information and data of public
importance which is in possession of the government and its agencies. Every citizen has a right
to know how the Government is functioning. The right to information empowers every citizen to
seek any information from the Government, inspect any Government document and make copies
thereof.

In India, there is no explicit mention of the right to information in the Constitution. However,
Art. 19(1) (a) of the Constitution guarantees the fundamental right to free speech and expression.
The prerequisite for enjoying this right is knowledge and information. Therefore, the right to
information is considered to be a constitutional right, being an aspect of the right to free speech
and expression, which includes the right to receive and collect information.

In India, the Right to Information Act, 2005 was brought into force. The main object of the Act
is to empower the citizens, promote transparency and accountability in the working of the
Government, curtail corruption, and make Indian democracy work for the people in the real
sense. It goes without saying that an informed citizen is better equipped to keep necessary vigil
 on the government and make it more accountable to the governed. The Act is thus a giant step
towards keeping the citizens informed about the activities of the Government.

Chapter 2
8. Explain Article 16(1) of the constitution. (2 marks)

Art. 16(1) guarantees equality of opportunity to all citizens in matters relating to employment or
appointment to any office under the State. It also empowers the State to make reservations in
favour of any backward classes of citizens. It is also clarified that offices connected with
religious or denominational institutions may be reserved for members professing any particular
religion or belonging to a particular denomination [Art. 16(5)].

9. Article 19 (Right to freedom). (2 marks)

Article 19 guarantees seven important freedoms to all Indian citizens:

i. Freedom of speech and expression
ii. Freedom of assembly
iii. Freedom to form associations and unions
iv. Freedom to move freely throughout India
v. Freedom to reside and settle in any part of India
vi. Freedom to acquire, hold and dispose of property (after 1978, this is no more a
fundamental right)
vii. Freedom to practice any profession.

These freedoms are, however, not absolute, but subject to reasonable restrictions.

10. What is double jeopardy? (2 marks)

Article 20(2) offers protection against double jeopardy, that is, no person can be prosecuted and
punished for the same offence more than once.

11. Right to education under Article 21A.

 After the 2002 amendment of the constitution, the right to education is a fundamental right in
India. Article 21A provides that the state shall provide free and compulsory education to all
children between the age of 6 and 14 in such manner as the state may, by law, determine. The
Right of Children to Free and Compulsory Education Act, 2009, which represents the
consequential legislation envisaged under Article 21A, means that every child has a right to full
time elementary education of satisfactory and equitable quality in a formal school which satisfies
certain essential norms and standards.

12. Article 23 (2 marks)

Article 23 guarantees all citizens and non-citizens the right to protection from all forms of forced
labour, by private individuals as well as the State. It prohibits traffic in human beings and forced
labour. Contravention of Article 23 is an offence punishable by acts enforced under Article 35.

13. Article 32 (2 marks).

Art. 32 guarantees a right to move the Supreme Court for the enforcement of fundamental rights
and empowers the apex court to issue appropriate directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, certiorari and quo warranto, whichever may
be appropriate, for the enforcement of such rights.

14. Directive Principles of State Policies and Human Right.

The Directive Principles of State Policy, contained in Part IV of the Constitution, embody socio-
economic goals which the nation is expected to achieve. Although they are not enforceable in a
court of law, they are nevertheless fundamental in the governance of the country and it is the
duty of the State to apply these principles when framing laws.

The Directive Principles are indeed the precursor to the Economic, Social and Cultural Rights
specified in the International Covenant on Economic, Social and Cultural Rights, 1966
(ICESCR). They reflect the consensus on the intrinsic necessity of these means and envisage
State action which would facilitate the transfer and distribution of power -- leading to
transmission of power to the citizens and this is loosely called “empowerment” of the people.
 Democracy will become real when in practice there is sharing of power and responsibility by all
sections of the people and it becomes illusory when it is about pursuit of power by the dominant
sections alone. The Directive Principles act as guidelines for the State in law making.

Some directive principles laid down in the Constitution are as follows:

i. Securing a social order to promote the welfare of the people.
ii. Securing adequate means of livelihood to all citizens – men and women.
iii. Securing that there is equal pay for equal work for both men and women.
iv. Securing that children are given opportunities and facilities to develop in a healthy manner.

15. Right of workers under Indian constitution.

The Indian constitution contains several provisions which protect the right of workers. Article 23
guarantees all citizens and non-citizens the right to protection from all forms of forced labour, by
private individuals as well as the State. It prohibits traffic in human beings and forced labour.
Contravention of Article 23 is an offence punishable by acts enforced under Article 35.

In addition to these provisions, several directive principles also relate to the right of workers.
Article 41 recognises the right to work. Article 43 lays down that the state must secure to all
workers a proper wage, decent working conditions. ‘Right to work’ is an outcome of a
harmonious interpretation of both the fundamental rights and directive principles of state policy.
The right to work is also understood to be an important aspect of the right to life under article 21.

Hence, though not a fundamental right, the constitution lays down several provisions to secure
the rights of workers.

16. Right to healthy environment/Human rights and the environment + caselaws.

There are two views when environment is looked from the angle of human rights. The first is that
the right to healthy environment itself is a human right (as provided, for instance, in the
American Convention of Human Rights). The second – and more common – view is that human
rights related to the environment can be derived from other human rights like the right to life,
right to health etc. This second view found support in the Stockholm Conference and is reflected
in the Indian judiciary.
 Courts in India have always been anxious to protect the environment. Judicial activism is thus
seen at its best in this field. Although right to health is not specifically a fundamental right,
thanks to the verdicts of the Supreme Court and various High Courts, today the right to health
enjoys the status of a fundamental right. Some of these judgments are:

i. M. C. Mehta v. UOI - The SC ordered industries in Taj Trapezium Zone to stop functioning
and relocate to alternate sites as they were polluting the atmosphere by using coal and coke
as fuel.

ii. T. Damodar Rao v. Special Officer, Municipal Corporation of Hyderabad – Slow poisoning
via environmental pollution was held to be violative of Article 21.

iii. Sitaram Chhaparia v. State of Bihar – Patna HC held that protection of the environment is a
fundamental duty under Article 51A(g).

17. Role of Supreme Court in protection of human rights.

The right to enforce fundamental rights is itself a fundamental right under Art. 32 of the
Constitution. However, all such rights would remain "paper rights" unless there is an active
judiciary to protect and enforce these rights. It is here that judicial activism of the Supreme Court
is seen at its best. The Supreme Court has always stepped in to fill the lacuna left by the
legislature and the executive, and has come to the aid of the common man when the other two
organs of the government have failed to provide any relief.

In all cases where human rights have been sought to be enforced, the court has relaxed the
requirement of locus standi, allowing any public-spirited individual or organisation to file a writ
petition.

Few cases pertaining to the same are as follows:

i. D.K. Basu v. State of West Bengal - In D. K. Basu v. State of West Bengal, a telegram
addressed to the Chief Justice of India drew the attention of the Supreme Court to cases of
widespread custodial torture and custodial deaths in jails and police lock-ups. This telegram
was converted into a writ petition, and the apex court laid down eleven guidelines to be
followed in all cases of arrest and detention.
 ii. Prem Shankar Shukla v. Delhi Administration - despite a Magistrate's directions not to
produce a prisoner in court in handcuffs unless absolutely necessary, he was nevertheless
produced handcuffed on every occasion. He, therefore, addressed a telegram to the Judges of
the Supreme Court, who converted it into a habeas corpus petition, and granted the
necessary relief to the prisoner.

iii. P. A. Jacob v. Superintendent of Police, Kottayam - It has been held that the freedom of
speech does not include the freedom to use loudspeakers. In fact, freedom from tormenting
sounds is, in the opinion of the apex court, guaranteed by the Constitution of India.

(Refer to question 16 for more cases)

Chapter 3
18. Salient features of Protection of Human Rights Act, 1993.

The Protection of Human Rights Act came into force in 1993. The aim and purpose of the Act, as
contained in its preamble, is to provide for the constitution of a National Human Rights
Commission, State Human Rights Commissions in States and Human Rights Courts for better
protection of human rights.

Chapter 2 of the Act deals with the National Human Rights Commission (NHRC). NHRC
consists of 5 members. Chapter 3 contains the functions and powers of the NHRC. Chapter 4
lays down the procedure to be followed by the NHRC. Chapter 5 deals with State Human Rights
Commission while Chapter 7 deals with the Human Rights Courts.

19. National Human Rights Commission.

Section 3 of the Act provides for the establishment of a NHRC. The NHRC consists of the
following members:

i. A chairperson who is the former chief justice of the supreme court.

ii. 1 member who is or has been a judge of the supreme court
iii. 1 member who is or has been a chief justice of a High court
iv. 2 members being persons having knowledge of, or practical experience in, matters relating
to human rights.
These members (including the Chairperson) are appointed by the President of India on the
recommendation of a Committee headed by the Prime Minister of India. All members hold office
for a period of five years or until the age of 70 years, whichever is earlier. On ceasing to hold
office, such persons are not eligible for any further appointment under the Government of India
or of any State.

The first Chairperson of the NHRC was Justice Ranganath Mishra, a former Chief Justice of
India. The other Chief Justices of India who became Chairpersons of the Commission were
Justice Venkatachaliah, Justice Verma, Justice Anand and the rather controversial Justice
Balakrishnan (who came under a cloud for allegedly owning assets disproportionate to his
income). In February 2016, Justice H. L. Dattu, ex-Chief Justice of India, was appointed as the
Chairman of the NHRC.

When the NHRC discharges any function listed in clauses (b) to (j) of S. 12 (below), the
following three persons are also deemed to be members of the NHRC, namely,

(a) the Chairperson of the National Commission for Women;

(b) the Chairperson of the National Commission for Minorities; and
(c) the Chairperson of the National Commission for Scheduled Tribes and Scheduled Castes.

Under S. 12 of the Act, the functions of the NHRC are to:

i. Inquire, suo motu or on a petition presented to it by a victim or any person on his behalf,
into any complaint of violation of made human rights or abetment thereof, or negligence in
the prevention of such violation by a public servant;

ii. Intervene in any proceeding involving any allegation of violation of human rights pending
before a court, with the approval of such court;

iii. Visit, under intimation to the State Government, any jail or any other institution under the
control of the State Government, where persons are detained or lodged for purposes of
treatment, reformation or protection or to study the living conditions of the inmates and
make recommendations thereon;
 iv. Review the safeguards provided by or under the Constitution or any law for the time being
in force for the protection of human rights and recommend measures for their effective
implementation;

v. Review the factors, including acts of terrorism, that inhibit the enjoyment of human rights,
and recommend appropriate remedial measures;

vi. Study treaties and other international instruments on human rights and make
recommendations for their effective implementation;

vii. Undertake and promote research in the field of human rights.

Section 17 of the Act lays down the procedure to be followed by NHRC.

20. On whose recommendation, the President of India appoints the chairperson of NHRC? (2
marks)

The chairperson of the NHRC is appointed by the president of India on the recommendation of a
committee headed by the Prime Minister of India.

21. State Human Rights Commission.

S. 21 of the Act envisages the establishment of Human Rights Commissions at the state level, as
for instance, the Maharashtra Human Rights Commission, and provides that a State may
constitute a Human Rights Commission at the State level. Such a Commission consists of five
members as under:
i. Chairperson, who is an ex-Chief Justice of a High Court;
ii. One member who is, or has been, a Judge of a High Court;
iii. One member who is, or has been, a District Judge in that State; and
iv. Two members, being persons having knowledge of, or practical experience in, matters
relating to human rights.

The above appointments are made by the Governor of the state on the recommendations made by
a Recommendation Committee headed by the Chief Minister of the State.
 The State Commission is authorised to inquire into human rights violations only in respect of
matters which fall within List II (State List) and List III (Concurrent List) of the Seventh
Schedule of the Constitution of India. However, if any such matter is already being inquired into
by the NHRC or by any other Commission duly constituted under any law in force, a State
Commission would have no jurisdiction to inquire into such a matter.

Subject to what is stated above, the powers and functions of a State Commission are the same as
those of the NHRC.

From the language of the Act, it is clear that the establishment of a State Commission is not
mandatory, but is left entirely on the discretion of every State. So far, State Commissions have
been established in twenty-three States and Union Territories -although many of them are
currently not functional. Interestingly, some States have openly declared their inability to set up a
State Commission citing financial constraints or non-availability of judicial personnel.

Chapter 4
22. Universal Declaration of Human Rights.
December 10 is celebrated every year as the International Human Rights Day, because it was on
this day - in 1948 - that the Universal Declaration of Human Rights (UDHR) was adopted by the
General Assembly of the United Nations (UN) at Palais de Chaillot in Paris. This Declaration
represents the first global expression of rights to which all human beings are inherently entitled.

The UDHR was adopted by the UN by a vote of 48 (including India) in favour and 0 against.
However, eight countries (including USSR and Saudi Arabia) abstained from voting. This
document sets out, for the first time in human history, fundamental human rights which are to be
protected on a universal basis.

The UDHR is divided into two parts: the Preamble, which describes the reasons why this
Declaration was signed and 30 Articles that list basic human rights.

The Preamble states that the "disregard and contempt for human rights have resulted in
barbarous acts which have outraged the conscience of mankind". This seems to be a direct
reference to the atrocities committed in the course of the Second World War. The main objective
of the UDHR was to present ideal human rights and freedoms in order to inspire all persons and
 countries to work for their progressive realisation, so that such "barbarous acts" would remain a
thing of the past.

The aims and objectives of UDHR are reflected from its preamble which states that:

i. The recognition of the inherent dignity and of the equal and inalienable rights of all human
beings is the foundation of freedom, justice and peace in the world.

ii. It is essential that human rights should be protected by the rule of law.

iii. It is essential to promote the development of friendly relations between nations.

iv. The people of UN have reaffirmed their faith in equal rights for men and women and are
determined to promote social progress and better standards of life.

23. India and UDHR/Comparison of UDHR provisions vis-à-vis the Indian constitution.

The Constitution of India contains elaborate provisions for the protection of the rights contained
in the UDHR. Indian courts have relied on the UDHR when interpreting fundamental rights
guaranteed by the Constitution. Thus, the Supreme Court has to observed that although the
UDHR may not be legally binding it shows how India understood the nature of human rights
when the Indian Constitution was adopted. (Keshavananda Bhartiv State of Kerala, AIR 1973 SC
1461).
Likewise, the Supreme Court has observed that the applicability of the UDHR and the principles
contained therein can be read, if need be into the domestic jurisprudence of India. (Chairman,
Rly. Board v. Mrs. C. Das, AIR 2000 SC 988).
A similar approach was adopted by the Supreme Court in Bombay Education Society v. State of
Bombay (AIR 1954 SC 561) and in Maneka Gandhi v. Union of India (AIR 1978 SC 597).

24. International Covenant on Civil and Political Rights.

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted
by the UN General Assembly on December 16, 1966, which attempts to secure the protection of
civil and political rights. It came into force on March 23, 1976 (as at least thirty-five states had to
ratify it before it became operational). Today, it has more than 150 members, including India. Its
 main object is to commit the signatory states to respect the civil and political rights of
individuals, including the right to life, freedom of religion, freedom of speech etc.

The underlying aim and objective of the Covenant is to ensure the member states, that is, those
states which have signed and ratified ICCPR, make available to everyone, the basic social,
cultural, political and economic freedoms enumerated in the Covenant. Countries the have
ratified the Covenant are obliged to "protect and preserve the bas human rights and are
"compelled to take administrative, judicial, an legislative measures in order to protect the rights
enshrined in the treaty and to provide an effective remedy". Article 1 of the Covenant deals with
the right of self-determination conferred on all persons, and imposes a obligation on the state to
protect and respect this right and to promote its realisation. The rights included in the Covenant
are to be made available to all persons without any discrimination or distinction based on race,
religion, colour, sex, language, political opinion, national or socia origin, birth or other status.

The three international declarations, the ICCPR, the International Covenant on Economic, Social
and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR), are
often looked upon collectively as the International Bill of Human Rights.

The ICCPR is divided into six parts, containing 53 Articles. Later two Optional Protocols were
signed by some of the signatories to the original Covenant.

25. Optional protocols of ICCPR.

There are two Optional Protocols to the ICCPR. The first came into effect in 1976 and the
second in 1991. The First Protocol enables the Human Rights Committee to entertain individual
complaints and communications. The Second Protocol enjoins member states to take necessary
steps to abolish the death penalty.
i. First Optional Protocol - The First Optional Protocol, which came into force on March 2
1976, recognises the fact that the purposes of the ICCPR would be better achieved if the
Human Rights Committee (set up under the Covenant) is authorised to receive and consider
communications from individuals claiming to be victims of violations of the rights
guaranteed by the Covenant. It is, however, necessary that such an individual ha exhausted
all available domestic remedies before he files a complaint before the Committee.
The Committee cannot consider anonymous complaints or complaints which it considers to
be an abuse of this right or those which are incompatible with the provisions of the ICCPR.
 Likewise, the Committee cannot consider complaints from individuals in countries which
are not parties to this Optional Protocol.

ii. Second Optional Protocol - The Second Optional Protocol, which came into force on July
1991, aims at abolishing the death penalty in all countries which have signed and ratified
this Protocol. This Protocol is based on the conviction that abolition of the death penalty
would contribute to the enhancement of human dignity and progressive development of
human rights.

26. International Covenant on Economic, Social and Cultural Rights.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral
treaty adopted by the United Nations General Assembly on December 16, 1966, and it came into
force on January 3, 1976. India ratified the Covenant on April 10, 1979. The ICESCR commits
its signatory parties to work toward the granting of economic, social, and cultural rights to
individuals, including labour rights and the right to health, the right to education, and the right to
an adequate standard of living. The Covenant is monitored by the UN Committee on Economic,
Social and Cultural Rights, and is divided into the following five parts:
i. Part 1 recognises the right of all people to self-determination, including the right to freely
determine their political status, pursue their economic, social and cultural goals, and manage
and dispose of their own resources.
ii. Part 2 establishes the principle of progressive realisation. It also requires the rights to be
recognised without discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
iii. Part 3 lists economic, social and cultural rights covered by the covenant.
iv. Part 4 governs reporting and monitoring of the Covenant and the steps taken by the parties to
implement it.
v. Part 5 governs ratification, coming into force and amendment of the Covenant.

27. American Convention on Human Rights.

 The ACHR is a regional convention dealing with human rights. Also known as pact of Jose, it
was adopted in San Jose, Costa Rica on 22nd November, 1969. Membership to ACHR is open to
all member States of the Organisation of American States.
As per its Preamble, the main purpose and objective of the ACHR is to consolidate, within the
framework of democratic institutions, a system of personal liberty and social justice based on
respect for the essential rights of man.
Under its Chapter 2, the ACHR lays down a lost of rights available to all persons in its member
states such as right to life from moment of conception, right to personal liberty, right to fair trial,
right to humane treatment etc.

Implementation Machinery of ACHR - As stated above, the ACHR has established the Inter-
American Commission on Human Rights, based in Washington DC, USA. This Commission
consists of seven members who are persons of high moral character and recognised competence
in the field of human rights. The main function of the Commission is to promote respect for
human rights. In exercise of this mandate, the Commission seeks to develop an awareness of
human rights amongst American people.

The Inter-American Court of Human Rights, also set up by the ACHR, is based in San Jose,
Costa Rica and consists of seven Judges who are nationals of member States. These Judges are
elected in their individual capacity for a period of six years. However, no two Judges can be
nationals of the same State. Five of the seven Judges constitute the quorum for the Court.

State parties as well as the Inter-American Commission can submit a case to the Court, whose
judgement is final and is not subject to appeal. The Court also enjoys advisory jurisdiction. The
Court submits an Annual Report to the General Assembly of the OAS, and is required to specify,
in particular, the cases in which a Member State has not complied with its judgment, making
pertinent recommendations on such non compliance.

In 2012, Venezuela denounced the Convention, accusing the Court and the Commission of trying
to undermine the stability of the government of that country by interfering with its domestic
affairs.

28. European Convention on Human Rights.

The European Convention on Human Rights (ECHR) is a regional treaty for the protection of
human rights and fundamental freedoms in Europe. Earlier known as the Convention for the
Protection of Human Rights and Fundamental Freedoms, it was signed at Rome on November 4,
1950, and came into force on September 3, 1953. All member States of the Council of Europe
are parties to the Convention. The signatory states oblige themselves to secure certain rights to
persons within their jurisdiction.

The ECHR was formulated by the Council of Europe after the Conver Second World War and
drew its inspiration from the aftermath of this Human war. The guiding spirit behind this venture
was the British lawyer and MP, Sir David Maxwell-Fyfe, who had first-hand experience on how
international justice could be effectively implemented. With his assistance, the former French
Minister and freedom-fighter, Pierre-Henri Teitgen, submitted a Report to the Council's
Assembly, proposing a list of human rights, most of which were drawn from the Universal
Declaration of Human Rights.

Although a modern style of drafting is reflected in this document, its roots can be traced to
earlier documents on human rights, and in particular, the English Bill of Rights, the American
Bill of Rights and the French Declaration of the Rights of Man.

Some of the rights contained in the ECHR are that everyone’s right to life shall be protected by
law, no one shall be subjected to torture or to inhuman or degrading treatment as punishment, no
one shall be held in slavery or servitude etc.

The ECHR envisages the establishment of the European Court of Human Rights, based in
Strasbourg. A strong redress mechanism is provided under which even one individual in a
member State can file a complaint, alleging a violation of his rights guaranteed under the ECHR
A judgment of the Court finding such a violation is binding on the concerned State which is
obliged to execute the same. A Commission known as the European Commission of Human
Rights ("the Commission") is also set up for the effective implementation of the ECHR. The
establishment of a Court to protect individuals from human rights violation is a unique feature of
this Convention because it provides a platform to individuals of member States to redress their
grievances before a judicial forum.
29. European Social Charter.

The European Social Charter (ESC) is yet another regional treaty signed at Turin (in Italy) on
October 18, 1961, and came into force on February 26, 1965. It was adopted by the Council of
Europe to develop and protect social and economic rights and achieve greater unity among its
members for the purpose of safeguarding and realising the ideals and principles which are their
common heritage.

Part 1 of the charter contains a list of nineteen social and economic rights, some of which are,
everyone has the right to benefit from social welfare services, all workers have the right to safe
and healthy working environment, all workers have right to just conditions of work etc.

The ECS does not envisage any judicial body to implement its provisions. The implementation
system under the Charter consists of a biennial report to be filed by each Contracting Party with
the Secretary General of the Council of Europe, detailing the implementation of the rights under
the Charter. These reports are then examined and necessary recommendations are made to the
concerned State. It is clear that this procedure is practically less effective than the one under the
European Convention on Human Rights. Perhaps the only usefulness of this process is that
adverse public can be generated against a defaulting state which could nudge it into observing
the mandates of ESC.

30. ECOSOC.

The United Nations Economic and Social Council (ECOSOC), a principal organ of the UN
founded in 1945, has been directly concerned with the protection and promotion of human rights.
It is responsible for coordinating the economic, social and related work of fourteen specialised
agencies of the UN and their functional and regional commissions. ECOSOC has more than fifty
members, including India. The members are elected for a three year term by the General
Assembly of the UN. It holds a four-week session each year in July, held in alternate years in
New York and Geneva. The president is elected for a one-year term and chosen from the small or
mid-sized powers represented on ECOSOC.

With a view to effectively implementing human rights, ECOSOC has established a Commission
on Human Rights, with more than fifty member governments. The Commission meets in Geneva
annually (or more often, whenever necessary) and reports to ECOSOC, which in turn reports to
 the General Assembly of the UN. It prepares reports on matters like protection of minorities,
declarations and conventions on subjects like status of women, freedom of information etc.

The Commission has also been given the power to carry out studies, make suitable
recommendations and draft new international treaties. In the last two decades, the Commission
has also turned its attention to rendering advisory services and technical assistance to states
which need to overcome obstacles in securing the enjoyment of human rights by all persons.

ECOSOC has a broad responsibility for nearly 70% of the human and financial resources of the
entire UN system, including fourteen specialised agencies, nine Functional Commissions and
five Regional Commissions.

31. UN High Commissioner for Human Rights.

Center for Human Rights was established in Geneva to coordinate human rights activities. It
prepared reports and publications and gave technical assistance and advisory services to various
governments. In September, 1997, the Center lost its independent identity when it was merged
with the UN High Commissioner for Human Rights.

In December 1993, the General Assembly of the UN created the post of a UN High
Commissioner for Human Rights to promote and protect the effective enjoyment of civil,
political, economic, social and cultural rights by all persons.

The High Commissioner advises the Secretary-General of the UN on policies of the UN in the
area of human rights. It is his responsibility to ensure that substantive and administrative support
is given to all the projects and activities of human rights programmes.

The Commissioner is a person of high moral standing and personal integrity, possessing a great
amount of expertise in the field of human rights and an excellent knowledge and understanding
of diverse cultures. His name is approved by the General Assembly of the UN and his formal
appointment is made by the UN Secretary-General. His office is located at Geneva, with a
branch office in New York. The Commissioner holds office for a period of four years and a
geographical rotation is kept in mind when making appointments. The first UN High
Commissioner for Human Rights was Mr. Jose Lasso of Ecuador. The High Commissioner is
 assisted in the performance of his duties by a Deputy High Commissioner, who acts as the
Officer-in-charge in the absence of the High Commissioner.

The main functions of the High Commissioner include:

i. To promote and protect the effective enjoyment by all persons, of all civil, cultural,
economic, political and social rights, including the right to development.

ii. To provide advisory services, including technical and financial assistance in the field of
human rights to states which request such services.

iii. To co-ordinate UN educational and public information programmes in the field of human
rights.
iv. To play an active role in removing obstacles that comes in the way of the full realisation of
human rights and in preventing the continuation of violations of human rights all over the
world.

32. International Labour Organization.

The International Labour Organisation (ILO) was founded in 1919, in the wake of a destructive
war, to pursue a vision based on the premise that universal and lasting peace can be established
only if it is based on social justice. In 1946, it became the first and the only tripartite specialised
agency of the UN. Today, with 187 Member States, including India, the ILO brings together
governments, employers and workers' representatives to set labour standards, develop policies
and devise programmes promoting decent work for all women and men.

This unique tripartite structure of the ILO gives an equal voice to workers, employers and
governments, so as to ensure that the views of all three are closely reflected in labour standards
and in shaping policies and programmes. The rationale behind the tripartite structure is the
creation of free and open debate among governments and social partners.

The main aims of the ILO are to promote rights at work, encourage decent employment
opportunities, enhance social protection and strengthen dialogue on work-related issues. The ILO
is devoted to promoting social justice and internationally recognised human and labour rights
 and pursuing its founding mission that social justice is essential to universal and lasting peace in
the industrial world.

The ILO registers complaints against entities that violate international rules; however, it does not
impose sanctions on governments.

33. Stockholm Conference.

The United Nations Conference on the Human Environment was an international conference
convened under the auspices of the United Nations, and was held in Stockholm, Sweden, from
June 5 to June 16, 1972. Also referred to as the Stockholm Conference, it was the UN's first
major conference on international environmental issues. It marked a turning point in the
development of international environmental policies and laid the foundation for global
environmental governance. The meeting was the first major international gathering of nations to
address the world's environmental problems. The Stockholm conference lead to the creation of
UNEP.

Some principles accepted at the conference were as follows:

i. Natural resources must be safeguarded.

ii. Wildlife must be safeguarded.
iii. Damaging oceanic pollution must be prevented.
iv. Environment policy must not hamper development.

34. UNEP.

The United Nations Environment Programme (UNEP) is an international institution that

coordinates the environmental activities of the UN and assists developing countries in
implementing environmentally sound policies and practices. It was founded in June 1972, as a
result of the United Nations Conference on the Human Environment, and has its headquarters in
the neighbourhood of Nairobi, Kenya. UNEP also has six regional offices and various country
offices. Its regional offices are in Africa (Addis Ababa), Asia Pacific (Beijing), West Asia
(Cairo), Europe (Brussels, Moscow and Vienna), Latin America (Brazil) and North America
(New York).
 UNEP's mission is to provide leadership and to encourage partnership in caring for the
environment by inspiring, informing, and enabling nations and people to improve their quality of
life without compromising that of future generations.

35. Agenda 21. (2 marks)

Agenda 21 is a voluntary action plan developed by the United Nations and national governments
at the Earth Summit in Rio de Janeiro, Brazil, in 1992. It is a non-binding, voluntarily
implemented action plan of the United Nations with regard to sustainable development. It is an
action agenda for the UN, other multilateral organizations, and individual governments around
the world that can be executed at local, national, and global levels. The "21" in Agenda 21 refers
to the 21st century. It has been affirmed and modified at subsequent UN conferences.

36. UNESCO

The United Nations Educational, Scientific and Cultural Organisation (UNESCO) is a

specialized agency of the United Nations (UN). With its permanent headquarters in Paris,
France, UNESCO currently has 195 Members and 8 Associate Members. It is also a member of
the United Nations Development Group. India has been a member of UNESCO since 1946.

UNESCO's aim (in its own words) is "to contribute to the building of peace, the eradication of
poverty, sustainable development and intercultural dialogue through education, the sciences,
culture, communication and information".

Its main objectives include to address emerging social and ethical issues, to foster a culture of
peace etc. It has two governing bodies: the general conference and the executive board, both of
which meet twice a year.

37. UNICEF

United Nations International Children's Emergency Fund (UNICER is an international charity

programme, with headquarters in New York City in USA. It provides long-term humanitarian
and development assistance to children and mothers in developing countries.

UNICEF was created on December 11, 1946 to provide emergency food and medicine to the
children of war-ravaged Europe. After 1950 the fund directed its efforts toward general programs
 for the improvement of children's welfare, particularly in less-developed countries and in various
emergency situations. In 1954, UNICEF became a permanent part of the United Nations system.

Its mission is to advocate for the protection of children's rights, help meet their basic needs and
expand their opportunities to reach their full potential; to mobilize political will and material
resources to help countries; to respond in emergencies to relieve the suffering of children and
those who provide their care etc.

Some landmark achievements of UNICEF are:

i. 1953 - UNICEF began a successful global campaign against yaws, a disfiguring disease
affecting millions of children.
ii. 1982 - UNICEF launched the Child Survival and Development Revolution based on four
simple, low-cost techniques: growth monitoring, oral rehydration therapy, breastfeeding and
immunisation.
iii. 1990 - UNICEF organised the World Summit for Children with heads of State and
Government at the United Nations in New York City.

38. UNDP

The United Nations Development Programme (UNDP) was created by the General Assembly of
the UN in 1965, by merging of the United Nations Expanded Programme of Technical
Assistance (created in 1949) and the United Nations Special Fund (established in 1958).

UNDP assists its partners to achieve sustainable, people-centered development through an

integrated approach that links policy with planning and programming, for promoting results
based management, formulating quality safeguards and learning equally from failures and
successes. Headquartered in New York City, UNDP advocates change and connects countries to
knowledge, experience and resources to help people build a better life. It provides expert advice
and training, and grants support to developing countries, with increasing emphasis on assistance
to the least developed countries.

The status of UNDP is that of an executive board within the UN General Assembly. The UNDP
Administrator is the third highest-ranking official of the UN after the UN Secretary-General and
the Deputy Secretary-General.
 Chapter 5

39. Rights of women under the Indian constitution + caselaws.

Various provisions of the Constitution of India reflect the ideal of gender equality. Whereas
Article 14 of the Constitution guarantees equality to all (men and women), Article 15 ensures
that the State cannot discriminate against any citizen of India, inter alia, on grounds of sex.
Likewise, there can be no discrimination on the ground of sex with regard to access to shops,
public restaurants, hotels, places of public entertainment etc. Article 15(3) allows the State to
make special provisions for women.

Article 51A lays down the fundamental duty that all Indians must renounce acts which are
derogatory to the dignity of a woman. Even DPSP’s contained in Articles 42 and 44 seek to
ensure a status of equality for woman.

Courts in India have also played an important role in safeguarding the interests of woman
through various decisions such as:

i. Neera Mathur v. LIC - the Supreme Court held that LIC's act of collecting roving
information and unnecessary personal details of its female employees would amount to an
invasion of their right to privacy.

ii. Maya Devi v. State of Maharashtra - a requirement that a married woman required the
consent of her husband before applying for public employment was struck down as invalid
and unconstitutional. The court observed that such a requirement would be a complete
obstacle to the concept of women's equality.

iii. Pratibha Rani v. Suraj Kumar - The Supreme Court has also ruled that it cannot be said that
upon getting married, the stridhan property of the married woman has to be placed in the
custody of her husband.

iv. Vishaka case – The Supreme Court sought to redress the violation of the rights of working
women under Articles 14, 15 and 21 of the Constitution. By laying down a set of guidelines,
the court endeavoured to ensure a safe working environment for women. The Supreme Court
also stressed the urgent need for passing the necessary laws for the protection of the rights of
working women to fill the legislative vacuum in this regard in India. It was a result of this
 that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act was ultimately passed in 2012.

40. Law concerning prevention of sexual harassment at workplace with reference to Vishaka
case.

In Vishaka & Others versus State of Rajasthan & Others (A.I.R 1997 S. C. 3011), the Supreme
Court sought to redress the violation of the rights of working women under Articles 14, 15 and
21 of the Constitution of India, which, in the words of the court, had become a recurring
phenomenon". By laying down a set of guidelines, the court endeavoured to ensure a safe
working environment for women. The Supreme Court also stressed the urgent need for passing
the necessary laws for the protection of the rights of working women to fill the legislative
vacuum in this regard in India.

For more than thirteen long years, this 'legislative vacuum' remained unattended, and it was only
in 2010 that a Bill was introduced in Parliament and the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act was ultimately passed in 2012.

The Act defines ‘sexual harassment’ to include:

i. Physical contact and advances
ii. A demand or request for sexual favours.
iii. Making sexually coloured remarks.
iv. Showing pornography.
v. Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

The act further lays down that every employer of a workplace mist constitute an Internal
Complaints Committee where any aggrieved woman can file a complaint of sexual harassment at
workplace which must then be addressed by such committee. The committee shall present its
report to the employer within 10 days from the date of the complaint and if the respondent is
found guilty, the committee shall recommend that the employer take action against the
respondent.

The employer becomes punishable with fine which may extend to Rs. 50,000/- if he fails to set
up such committee or address a complaint of sexual harassment made by a female employee.
41. National Commission for women.

The National Commission for Women (NCW) is a statutory body set up in January 1992
pursuant to the provisions of the National Commission for Women Act, 1990, with a view to
review constitutional and legal safeguards for women, facilitate redressal of grievances, advice
on policy matters related to women.

The objective of the NCW is to represent the rights of women in India and to provide a voice for
their issues and concerns. It regular publishes a monthly newsletter, "Rashtra Mahila" in Hindi
and English Under S. 16 of the said Act, the Central Government must consult this Commission
in all major policy matters affecting women.

Functions of the NCW:

i. To investigate and examine all matters relating to the safeguards provided for women under
the Constitution and other laws.
ii. To present to the central government reports upon the working of those safeguards.
iii. To participate and advice on matters related to socio-economic development of women.
iv. To evaluate the progress on development of women in Union and states.

The NCW consists of a chairperson, a member-secretary and at least 5 members. It has wide
powers under the Act and also has powers equivalent to a civil court in matters like summoning
and enforcing the attendance of a person, examination of witnesses, documents etc.

In keeping with its mandate, the Commission has, in the past, initiated various steps to improve
the status of women and has worked for their economic empowerment ever since its inception.
The Commission has visited all the States after which it has prepared Gender Profiles to assess
the status of women and their empowerment.

42. CEDAW.

The Convention on the Elimination of All Forms of Discrimination against Women was adopted
by the UN General Assembly on December 18, 1979. It came into force on September 3, 1981,
after the required number of States (20) ratified it. Today, more than a hundred countries
(including India) are proud signatories to this Convention, familiarly referred to as CEDAW.
 The CEDAW spells out the real meaning of gender equality and lays down various ways in
which it can be achieved. It provides an action-agenda to be followed by its signatories to
achieve the notion of equality envisaged by it. All countries which are parties to the CEDAW
have given an undertaking to put its provisions into practice in their respective countries. Every
such country is also bound to submit a National Report, at least once in every four years,
specifying the steps taken by it to comply with the provisions contained in this Convention.

Its main objectives are to abolish all discriminatory laws, to establish principal of equality among
all men and women etc.

43. What is Magna Carta?

Magna Carta is a royal charter of rights agreed to by King John of England at Runnymede,
near Windsor, on 15 June 1215. First drafted by Archbishop of Canterbury Stephen Langton to
make peace between the unpopular king and a group of rebel barons, it promised the protection
of church rights, protection for the barons from illegal imprisonment, access to swift justice, and
limitations on feudal payments to the Crown, to be implemented through a council of 25 barons.

Chapter 6

44. Fundamental rights and DPSPs relating to protection of child rights.

Fundamental Rights:

i. Art. 15 of the Constitution prohibits any discrimination on the grounds of religion, race,
caste, sex or place of birth, and specifically empowers the State to make special provisions
for women and children.

ii. The right to free education has been made a fundamental right under Art. 21A of the
Constitution.

iii. No child below the age of fourteen years can be employed to work in any factory or mine or
engaged in any hazardous employment. (Art. 24)

DPSPs:
 i. The State shall direct its policy towards securing that the health and strength of workers and
the tender age of children are not abused. (Art. 39)
ii. The State shall direct its policy towards securing that children are given opportunities and
facilities to develop in a healthy manner and in conditions of freedom and dignity. (Art. 39)
iii. The State shall make provisions for securing just and humane conditions of work and for
maternity relief. (Art. 42)
iv. Art. 44 calls upon the State to endeavour to secure a uniform civil code for its citizens. If
implemented, this would bring about uniformity in personal matters like minority, adoption
and guardianship of children, etc.

45. National Commission for the Child.

The National Commission for Protection of Child Rights (NCPCR) was set up in March 2007
under the provisions of the Commission for Protection of Child Rights Act, 2005, where a child
is defined as a person under the age of eighteen years.

The basic aim of the Act is to protect children's rights by establishing Commissions for the
protection of the rights of children at the national and state levels.

Ss. 3 to 12 of the Act deal with the constitution of the Commission, which consists of a
Chairperson and six members, of whom at least two members should be women. The functions
of the Commission are set out in S. 13 of the Act, and include the following:

i. To examine and review the safeguards provided by laws in force in the country for
the protection of child rights and to recommend measures for their effective
implementation;
ii. To inquire into violations of child rights and recommend initiation of proceedings in
such cases;
iii. to inspect, or cause to be inspected, any juvenile custodial home or any other place or
residence or institution meant for children;
iv. to undertake and promote research in the field of child rights.

46. UN Convention on the Rights of the Child.

 In 1959 the UN adopted the Declaration of the Rights of a Child, which was the first major
international consensus in the fundamental principle of children’s rights. It is a historic document
since for the first time it recognised the existence of specific rights of children and responsibility
of adults towards them.

The Declaration inter alia recognised ten specific rights of the child, as for instance, the right to
equality, the right to special protection, the right to a name and nationality, the right to adequate
nutrition, housing and medical services, the right to free education and recreational activities, etc.

Countries which have ratified the CRC are bound by its provisions and such compliance is
monitored by the UN Committee on the Rights of the Child. Currently, 196 countries are parties
to the Convention.

Some important provisions of the convention are:

i. State Parties recognise that every child has the inherent right to life.

ii. State Parties shall ensure, to the maximum extent possible, the survival and development of
the child.

iii. States Parties shall take all appropriate measures to ensure that child is protected from all
sorts of discrimination.

iv. State Parties undertake to protect the child from all forms of sexual exploitation and sexual
abuse.

47. Human rights and child abuse.

'Child abuse' is a term which refers to physical, sexual or psychological maltreatment or

mistreatment of a child, often coming from a parent or a guardian or other caregiver.

The effects of child abuse on the victim are serious and long-lasting. It includes depression,
anxiety, mental illness, psychiatric problems, developmental problems, emotional insecurity,
sexual dysfunction, loss of self-esteem, sexually transmitted diseases like HIV, etc. Child
marriage, child labour, child neglect are all forms of child abuse.
 Art. 25(2) of the Universal Declaration of Human Rights provides that childhood is entitled to
special care and assistance. Likewise, the International Covenant on Civil and Political Rights
lays down that every child shall have the right to such measures of protection as are required by
reason of his physical and mental immaturity. These principles have been adopted by the Indian
Constitution which provides safeguards to children. All the international conventions and the
constitutional provisions have one common aim: To protect children by giving them specific
human rights, thereby putting an end to child abuse in all its forms.

India also has laws against child labour. Additionally, even verdicts of courts have safeguarded
rights of children and prevent child abuse in cases like MC Mehta v. UOI.

48. What is child labour? (2 marks)

Child labour is a form of child abuse and refers to the employment of children in factories and
hazardous industries. Such an act deprives a child of his childhood and is mentally, physically,
socially and morally harmful and dangerous. It also deprives the child from attending regular
school and comes in the way of his self-development. ILO has classified child labour as a form
of child abuse.

Chapter 7

49. Rights of prisoners/convicts and Indian Constitution.

The Indian Constitution does not expressly confer any specific or separate rights on prisoners.
However, several rights falling under Part Ill of the Constitution (Fundamental Rights) are also
available to those in jail - albeit with necessary modifications. The Supreme Court has observed
that prisoners retain all rights enjoyed by free litigants, except those necessarily lost by reason of
their confinement (Charles Shobraj V. Superintendent, Central Jail, Tihar (AIR 1978 SC 1514).
As Justice Krishna lyer observed in that case, "Imprisonment does not spell farewell to
fundamental rights'.

In other words, prisoners continue to enjoy all fundamental rights, including in particular, those
conferred by Arts. 14, 19, 20, 21 and 22 although to a limited extent.

50. Rights of prisoners + caselaws.

i. Right to legal aid - Art. 39 of the Constitution, though not enforceable in a court of law, inter
alia imposes a mandate on the State to provide free legal aid to ensure that opportunities for
serving justice are not denied to any citizen by reason of economic or other disabilities.

The right to free legal aid was considered for the first time by the Supreme Court in M. H.
Hoskot v. State of Maharashtra (AIR 1978 SC 1548), where the accused was charged with
forgery of a college degree certificate. The Court held that the right to legal aid is one of the
ingredients of fair procedure. The Court ruled that free legal assistance should be provided
to all accused who are poor, irrespective of the severity of the crime and that such assistance
should be given at very stage of the case - and not only at the trial stage.

ii. Right to speedy trial - The right to a speedy trial was elaborately explained by the Supreme
Court in several other cases also, as for instance, in Mathew Areeparmtil v. State of Bihar
(AIR 1984 SC 1895), Shaheen Welfare Asso. v. Union of India (1994 (6) SCC 731) and Raj
Deo Sharma v. State of Bihar (2000 (1) BLJR 37).

iii. Right against inhuman treatment, handcuffs and fetters - The Supreme Court has, in various
cases, taken a serious note of the inhuman treatment of prisoners and has issued appropriate
directions to the prison and police authorities to safeguard the rights of those in prison and
police lock-up.

In Kishore Singh v. State of Rajasthan (AIR 1981 SC 625), the vitiated on Supreme Court
has held that the use of third degree methods used by the police to extract confessions from
prisoners is violative of Art. 21 of o referred to the Constitution.

iv. Rights in matters of narco-analysis and brain mapping - With advances in scientific
technology, narco-analysis, brain mapping and polygraph tests have emerged as favorite
tools of investigation all over the world for eliciting the truth from accused persons, Human
rights organisations all over the world, however, protested strongly, saying that this is an
atrocity to the human mind and a breach of the right of privacy.

The Supreme Court had to consider the constitutional validity of such methods of
investigation in Prem Shankar Shukla v. Delhi Administration, (1980 3 SCC 526), where it
 was held that narco-analysis, brain-mapping and polygraph tests are unconstitutional and
violative of human rights.

v. Other rights - Right to reasonable wages, right to meet relatives, right to consult a lawyer
etc.

51. D. K. Basu case.

In D. K. Basu v. State of West Bengal (AIR 1997 SC 610), a case where a telegram addressed to
the Chief Justice was converted into a writ petition, the Supreme Court dealt with custodial
deaths and various forms of custodial torture and cruel, inhuman and degrading treatment of
prisoners and other persons being questioned by the police. It observed that custodial torture is a
naked violation of human dignity which destroys the individual.

The Court laid down important guidelines to be adhered to in all cases of arrest and detention.
They are:

i. The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name tags with their designations.
The particulars of all such police personnel who handle interrogation of the arrestee must be
recorded in a register.\

ii. The police officer carrying out the arrest must prepare a memo of arrest at the time of the
arrest and such memo is to be attested by at least one witness, who may be either a member
of the family of the arrestee or a respectable person of the locality from where the arrest is
made. Such a memo is also to be countersigned by the arrestee and must contain the time
and date of arrest.

iii. A person who has been arrested or detained and is being held in custody in a police station
or interrogation centre or other lock-up, is entitled to have one friend or relative or other
person known to him, informed, as soon as practicable, that he has been arrested and that he
is being detained at the particular place, unless the attesting witness of the memo of arrest is
himself such a friend or a relative of the arrestee.

iv. The time, place of arrest and venue of custody of an arrestee must be notified by the police,
in cases where the next friend or relative of the arrestee lives outside the district or town,
 through the Legal Aid Organisation in the District and the Police Station of the area
concerned, telegraphically within a period of eight to twelve hours after the arrest.

v. The person arrested must be made aware of his right to have someone informed of his arrest
or detention as soon as he is put under arrest or is detained.

vi. An entry must be made in the Diary at the place of detention regarding the arrest of the
person, which must also disclose the name of the next friend of the person who has been
informed of the arrest and the names and particulars of the police officials in whose custody
the arrestee is.

vii. The arrestee should, where he so requests, also be examined at the time of his arrest for
major and minor injuries, if any, present on his or her body. The "Inspection Memo" must be
signed both by the arrestee and the police officer effecting the arrest and its copy provided to
the arrestee.

viii. The arrestee should be subjected to medical examination every 48 hours during his
detention in custody by a doctor on the panel of approved doctors appointed by the Director,
Health Services of the concerned State or Union Territory.

ix. Copies of all the documents, including the memo of arrest referred to above, should be sent
to the Magistrate for his record.

x. The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.

xi. A Police Control Room should be provided at all district and State headquarters, where
information regarding the arrest and the place of custody of the arrestee should be
communicated by the officer causing the arrest, within twelve hours of effecting the arrest,
and such information should be displayed on a conspicuous notice board in the Police
Control Room.
 Chapter 8

52. Minorities Commission/National Commission for Minorities.

Several minorities constitute the rest of India's vast population. It was therefore thought fit to
constitute a National Commission for Minorities (NCM), by passing the National Commission
for Minorities Act in 1992. The basic object of the Act was to protect the interests of the
minority communities.

Under the National Commission for Minorities Act, the NCM is to consist of one Chairperson,
one Vice-Chairperson and five Members, all of whom hold office for three years at a time. These
persons, as well as the employees of the NCM, are deemed to be public servants within the
meaning of S. 21 of the Indian Penal Code.

Some functions of the NMC are as follows:

i. To evaluate the progress of the development of minorities under the Union and States;
ii. To make recommendations for the effective implementation of safeguards for the protection
of the interests of minorities by the Central Government or the State Governments;
iii. To cause studies to be undertaken into problems arising out of any discrimination against
minorities and recommend measures for their removal;
iv. To conduct studies, research and analysis on the issues relating to socio-economic and
educational development of minorities.

The recommendations made by the Commission are to be laid by the Central Government
before the Lok Sabha and the Rajya Sabha, along with a Memorandum explaining the action
taken, or proposed to be taken, on the recommendations of the Commission and the reasons for
non-acceptance, if any, of any such recommendations. If any such recommendation relates to a
matter with which a State Government is concerned, the recommendation must also be sent to
the Governor of that State, who must place it before the State Legislature with a similar
Memorandum.

53. National Commission for Scheduled Castes and Scheduled Tribes.

 The Constitution had originally provided for a single Commission for SCs and STs, namely, the
National Commission for Scheduled Castes and Scheduled Tribes. This Commission was to
consist of a Chairperson, a Vice-Chairperson and five other members, all to be appointed by the
President of India under his hand and seal.

The framers of the Constitution deemed it fit to set up this Commission as a national advisory
body to advise the government on broad policy issues and levels of development of these
neglected sections of the population.

Some powers and duties of the Commission, as enumerated in the Constitution are:

i. to investigate and monitor all matters relating to the safeguards provided for the SCs and
STs under the Constitution or under any other law for the time being in force or under any
order of the Government and to evaluate the working of such a safeguards;
ii. to inquire into specific complaints with respect to the deprivation of rights and safeguards of
the SCs and STs;
iii. to participate and advise on the planning process of socio economic development of the SCs
and STs and to evaluate the progress of their development under the Union and any State;

Chapter 9

54. Role of NGOs in Protection of Human Rights.

Several organisations around the world dedicate their efforts to protecting human rights and
ending the wide-spread abuse of human rights. Major human rights organisations maintain
extensive websites documenting violations and calling for remedial action, both at a
governmental and grass-roots levels. Public support and condemnation of abuses is important to
their success, as human rights organisations are most effective when their calls for reform are
backed by strong public opinion and advocacy.

A Non-Governmental Organisation (NGO) is a non-profit voluntary organisation of community

persons, volunteers, civilians and citizens. NGOS are registered under the relevant laws of the
country, but are managed by its members and associated persons, independently from
government control.
 At the global level, the champions of human rights have most often NGOS have played a
primary role in focusing the attention of the international community on human rights issues.
NGOs monitor the actions of governments and pressurise them to act according to human rights
principles.

55. NGOs in India.

i. The Centre for Development and Human Rights - It is a non-partisan NGO based in New
Delhi. It aims to promote social and global justice through human rights. It seeks to
strengthen the field of all human rights, developing the tools for achieving their respect,
protection and fulfillment. While it recognises the interdependence and indivisibility of all
human rights, its special focus is on economic, social and cultural rights, which concern
essential values for a life of dignity and freedom food, education, health, housing, social
security and work, among others.

ii. Vigil India - Vigil India Movement (or Vigil India) is a non-governmental organisation
based in Bangalore that aims to protect and promote human rights in India. Founded in
1977, it is one of the country's leading human rights organisations focusing on the rights of
Dalits, tribals, children and women.

iii. Confederation of Human Rights Organisation - The Confederation of Human Rights

Organisations (CHRO) is a human rights organisation based in Kerala, which keeps a close
watch on human rights and human rights violations all over India, and particularly in the
State of Kerala. It has published many research reports and papers with the help of other
international human rights organisations like Human Rights Watch International. CHRO
aims to protect, uphold and strengthen the rights of traditionally exploited and oppressed
social segments of tribals, Dalits. minorities, backward castes etc.

iv. Manab Adhikar Sangram Samiti - It is a regional non-profit human rights NGO in Assam. It
was founded in 1991 by Parag Kumar Das along with a group of intellectuals and journalists
of Assam. This NGO has been working on the protection and promotion of human rights
(both civil and political), human rights education and mass mobilisation, resistance and
documentation of human rights violations, etc. It has also challenged the human rights
violation in Assam by the Indian Army, paramilitary forces and the state police.
56. Amnesty International.

On November 19, 1960, when Peter Benenson, an English lawyer, was commuting in the
London Underground, he came across a newspaper article which reported that two Portuguese
students had been sentenced to seven years imprisonment for "having drunk a toast to liberty".

This inspiring moment gave birth to a unique movement and became the starting point of an
extraordinary social revolution in the field of human rights. It marked the birth of one of the most
successful global NGOs focused on human rights, and which has today a following of over seven
million members and supporters - Amnesty International - often referred to as Al or just
Amnesty.

Amnesty was founded in London in 1961, following the publication of Benenson's article, 'The
Forgotten Prisoners' in The Observer on May 28, 1961. Originally, it was the intention of Peter
Benenson to launch an appeal in Britain to obtain an amnesty for prisoners of conscience all over
the world. In course of time, however, A/ became a globally successful movement in the field of
human rights.

The stated objective of Amnesty is "to conduct research and erate action to prevent and end gross
abuses of human rights a demand justice for those whose rights have been violated".

ASYLUM CASE (COLOMBIA / PERU) – ICJ – DECIDED IN THE YEAR 1950

Overview:

Colombia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru.
Was Colombia entitled to make a unilateral and definitive qualification of the offence (as a
political offence) in a manner binding on Peru and was Peru was under a legal obligation to
provide safe passage for the Peruvian to leave Peru?

Facts of the Case:

Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the crime of
military rebellion” which took place on October 3, 1949, in Peru. 3 months after the rebellion,
Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that
Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention
on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the
Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the
same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and
refused to grant safe passage.

Questions before the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence
for the purpose of asylum under treaty law and international law?

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?

(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter
called the Havana Convention) when it granted asylum and is the continued maintenance of
asylum a violation of the treaty?

The Court’s Decision:

Relevant Findings of the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the
offence for the purpose of asylum under treaty law and international law?

1. The Court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence (for
example, as a political offence) and the territorial State has the right to give consent to this
qualification. In the Torre’s case, Colombia has asserted, as the State granting asylum, that it is
competent to qualify the nature of the offence in a unilateral and definitive manner that is
binding on Peru. The court had to decide if such a decision was binding on Peru either
because of treaty law (in particular the Havana Convention of 1928 and the Montevideo
Convention of 1933), other principles of international law or by way of regional or local
custom.

2. The Court held that there was no expressed or implied right of unilateral and definitive
qualification of the State that grants asylum under the Havana Convention or relevant
principles of international law (p. 12, 13). The Montevideo Convention of 1933, which
accepts the right of unilateral qualification, and on which Colombia relied to justify its
unilateral qualification, was not ratified by Peru. The Convention, per say, was not binding
on Peru and considering the low numbers of ratifications the provisions of the latter Convention
cannot be said to reflect customary international law (p. 15).

3. Colombia also argued that regional or local customs support the qualification. The court
held that the burden of proof on the existence of an alleged customary law rests with the
party making the allegation:

“The Party which relies on a custom of this kind must prove that this custom is established in
such a manner that it has become binding on the other Party… (that) it is in accordance with a
(1) constant and uniform usage (2) practiced by the States in question, and that this usage is (3)
the expression of a right appertaining to the State granting asylum (Colombia) and (4) a duty
incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute
of the Court, which refers to international custom “as evidence of a general practice accepted as
law(text in brackets added).”

4. The Court held that Colombia did not establish the existence of a regional custom
because it failed to prove consistent and uniform usage of the alleged custom by relevant
States. The fluctuations and contradictions in State practice did not allow for the uniform usage
(see also Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of
State practice). The court also reiterated that the fact that a particular State practice was followed
because of political expediency and not because of a belief that the said practice is binding on the
State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary
law (see North Sea Continental Shelf Cases and Lotus Case for more on opinio juris):

“[T]he Colombian Government has referred to a large number of particular cases in which
diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule of
unilateral and definitive qualification was invoked or … that it was, apart from conventional
stipulations, exercised by the States granting asylum as a right appertaining to them and
respected by the territorial States as a duty incumbent on them and not merely for reasons of
political expediency. The facts brought to the knowledge of the Court disclose so much
uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic
asylum and in the official views expressed on various occasions, there has been so much
inconsistency in the rapid succession of conventions on asylum, ratified by some States and
rejected by others, and the practice has been so much influenced by considerations of political
expediency in the various cases, that it is not possible to discern in all this any constant and
uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and
definitive qualification of the offence.”

5. The Court held that even if Colombia could prove that such a regional custom existed, it
would not be binding on Peru, because Peru “far from having by its attitude adhered to it, has,
on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933
and 1939, which were the first to include a rule concerning the qualification of the offence [as
“political” in nature] in matters of diplomatic asylum.” (See in this regard, the lesson
on persistent objectors. Similarly in the North Sea Continental Shelf Cases the court held ‘in
any event the . . . rule would appear to be inapplicable as against Norway in as much as she had
always opposed any attempt to apply it to the Norwegian coast’.)

6. The Court concluded that Colombia, as the State granting asylum, is not competent to
qualify the offence by a unilateral and definitive decision, binding on Peru.

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?

7. The Court held that there was no legal obligation on Peru to grant safe passage either
because of the Havana Convention or customary law. In the case of the Havana Convention, a
plain reading of Article 2 results in an obligation on the territorial state (Peru) to grant safe
passage only after it requests the asylum granting State (Colombia) to send the person granted
asylum outside its national territory (Peru). In this case the Peruvian government had not
asked that Torre leave Peru. On the contrary, it contested the legality of asylum granted to
him and refused to grant safe conduct.

8. The Court looked at the possibility of a customary law emerging from State practice where
diplomatic agents have requested and been granted safe passage for asylum seekers, before the
territorial State could request for his departure. Once more, the court held that these practices
were a result of a need for expediency and other practice considerations over an existence
of a belief that the act amounts to a legal obligation (see paragraph 4 above).

“There exists undoubtedly a practice whereby the diplomatic representative who grants asylum
immediately requests a safe conduct without awaiting a request from the territorial state for the
departure of the refugee…but this practice does not and cannot mean that the State, to whom
such a request for safe-conduct has been addressed, is legally bound to accede to it.”

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum
and is the continued maintenance of asylum a violation of the treaty?

9. Article 1 of the Havana Convention states that “It is not permissible for States to grant
asylum… to persons accused or condemned for common crimes… (such persons) shall be
surrendered upon request of the local government.”

10. In other words, the person-seeking asylum must not be accused of a common crime (for
example, murder would constitute a common crime, while a political offence would not).The
accusations that are relevant are those made before the granting of asylum. Torre’s accusation
related to a military rebellion, which the court concluded was not a common crime and as
such the granting of asylum complied with Article 1 of the Convention.

11. Article 2 (2) of the Havana Convention states that “Asylum granted to political
offenders in legations, warships, military camps or military aircraft, shall be respected to
the extent in which allowed, as a right or through humanitarian toleration, by the usages,
the conventions or the laws of the country in which granted and in accordance with the
following provisions: First: Asylum may not be granted except in urgent cases and for the
period of time strictly indispensable for the person who has sought asylum to ensure in
some other way his safety.”

12. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the
presence of “an imminent or persistence of a danger for the person of the refugee”. The court
held that the facts of the case, including the 3 months that passed between the rebellion and the
time when asylum was sought, did not establish the urgency criteria in this case (pp. 20 -23). The
court held:

“In principle, it is inconceivable that the Havana Convention could have intended the term
“urgent cases” to include the danger of regular prosecution to which the citizens of any country
lay themselves open by attacking the institutions of that country… In principle, asylum cannot
be opposed to the operation of justice.”

13. In other words, Torre was accused of a crime but he could not be tried in a court
because Colombia granted him asylum. The court held that “protection from the operation
of regular legal proceedings” was not justified under diplomatic asylum.

14. The Court held:

“In the case of diplomatic asylum the refugee is within the territory of the State. A decision
to grant diplomatic asylum involves a derogation from the sovereignty of that State. It
withdraws the offender from the jurisdiction of the territorial State and constitutes an
intervention in matters which are exclusively within the competence of that State. Such a
derogation from territorial sovereignty cannot be recognised unless its legal basis is
established in each particular case.”

15. As a result, exceptions to this rule are strictly regulated under international law.

An exception to this rule (asylum should not be granted to those facing regular prosecutions) can
occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such
would be the case if the administration of justice were corrupted by measures clearly prompted
by political aims.
Asylum protects the political offender against any measures of a manifestly extra-legal character
which a Government might take or attempt to take against its political opponents…

On the other hand, the safety which arises out of asylum cannot be construed as a protection
against the regular application of the laws and against the jurisdiction of legally constituted
tribunals. Protection thus understood would authorize the diplomatic agent to obstruct the
application of the laws of the country whereas it is his duty to respect them… Such a conception,
moreover, would come into conflict with one of the most firmly established traditions of Latin-
America, namely, non-intervention [for example, by Colombia into the internal affairs of another
State like Peru]….

16. Asylum may be granted on “humanitarian grounds to protect political prisoners against the
violent and disorderly action of irresponsible sections of the population.” (for example during a
mob attack where the territorial State is unable to protect the offender). Torre was not in such a
situation at the time when he sought refuge in the Colombian Embassy at Lima.

17. The Court concluded that the grant of asylum and reasons for its prolongation were not in
conformity with Article 2(2) of the Havana Convention (p. 25).

“The grant of asylum is not an instantaneous act which terminates with the admission, at a given
moment of a refugee to an embassy or a legation. Any grant of asylum results in, and in
consequence, logically implies, a state of protection, the asylum is granted as long as the
continued presence of the refugee in the embassy prolongs this protection.”

Enquiry as a mode of settlement of Dispute

One of the common obstacles preventing the successful settlement of a dispute by negotiation is
the difficulty of ascertaining the facts which have given rise to the differences between the
disputants. Most international disputes involve an inability or unwillingness of the parties to
agree on points of facts.

Herein lays the significance of the procedure of inquiry as a means of pacific settlement of
disputes. Many bilateral agreements have been concluded under which fact-finding
commissions have been set up for the task of reporting to the parties concerned on the
disputed facts.

In addition, the procedure of inquiry has found expression in treaties for the pacific settlement of
disputes. The two Hague Conventions of 1899 and 1907 established commissions of inquiry
as formal institutions for the pacific settlement of international disputes
. They provided a permanent panel of names from which the parties could select the
commissioners. The task of a commission of inquiry was to facilitate the solution of disputes
by elucidating the facts by means of an impartial and conscientious investigation.

The report of a commission was to be limited to fact-finding and was not expected to include
any proposal for the settlement of the dispute in question.

With the establishment of the League of Nations, the means of inquiry took on a new
significance. Inquiry and conciliation were viewed as integral parts of a single process for
bringing about a pacific settlement to a dispute.

It is in the light of this background that the Charter of the United Nations specifically lists
“enquiry” as one of the methods of pacific settlement of international disputes.

Enquiry as a separate method of dispute settlement has fallen out of favor.

It has been used as part of other methods of dispute settlement. Its purpose is to produce
an impartial finding of disputed facts and thus to prepare the way for settlement of dispute
by other peaceful methods. The parties are not obliged to accept the findings of the
enquiry; however, they always do accept them.

The utilization of enquiry has been evident in the practice of international organizations, such as
the United Nations and its specialized agencies. Enquiry has been used as part of other methods
of dispute settlement in the context of settlement of International disputes.

The Dogger Bank Incident

Russian and Japanese imperial ambitions had led to the Russo-Japanese War breaking out in
early 1904, with the two countries battling over control of areas of China and Korea.

Following a number of defeats in the South China Sea and the Sea of Japan Russia decided to
reinforce its navy by sending a large number of warships from Russia’s Baltic Fleet – including
some of their newest and most powerful battleships under the command of Admiral Zinovy
Rozhestvensky – to the Far East.

The planned route would take the fleet out of the Baltic Sea and through the North Sea and
English Channel. The fleet would then enter the Mediterranean and head through the Suez
Canal and Red Sea and then on to Japan through the Indian Ocean – a journey of many
thousands of miles.

From the outset of the journey the Russian crews were immensely nervous as there was
rumoures that the route is filled with mine.

The Russians believed that Japan had the ability to attack the Baltic Fleet before it had even left
European waters
, though this would have required Japan to have detailed and accurate intelligence on the
movements of the Russian fleet, and have the ability to send attack boats thousands of miles to
the other side of the world.

The Dogger Bank Incident (also known as the North Sea Incident or the Russian Outrange)
took place in 1904.

On the night of the 21st October 1904 the Gamecock fleet was fishing on the Dogger Bank –
an area of the North Sea approximately sixty miles off the east coast of England – in thick
fog.

Russia was at war with Japan and a number of Russian warships mistook British trawlers for
Japanese Navy ships and fired on them.

In the chaotic incident a number of Russian ships also fired at each other. The incident came
close to sparking a war between Britain and Russia.

The inquiry took place in early 1905. The Russians claimed that they were justified in firing
their cannons at sea as they had credible reports that Japanese torpedo boats were in the area
and therefore had to take action to defend themselves.

They also made the dubious claim that they were not aiming at the British trawlers and
indeed stopped firing when they realised that civilian vessels could be caught in the cross
fire.

The Russians also claimed that they did not recognise the flares and lights of the British
trawlers which identified the vessels as civilian fishing boats as these types of signal were
not used in Russia and also stated that they were justified in leaving damaged trawlers and
injured fishermen in the area as there were enough undamaged trawlers in the area to
rescue the wounded.

The Russians believed that they may still come under attack from additional Japanese torpedo
boats which they had not spotted

.Britain rejected all of the Russian claims and pointed out that the Gamecock fleet was engaged
in the legal business of fishing in grounds which they visited on a regular basis.

The Russians on the other hand were outside of their usual area of operations and on their way to
a war on the other side of the world and were also spooked by the incorrect intelligence of a
Japanese attack in European waters.
The British put forward the claim that the Russian actions were borne out of confusion and
incompetence and shelling civilian vessels could in no way be considered a justifiable act.

It was agreed that the trawlers were properly lit and were going about their legitimate
business when the Russians made the unjustifiable decision to open fire.

It was also found that the firing went on for longer than necessary, although the inquiry also
stated that Admiral Rozhestvensky did all he could to stop the shelling once it was established
that civilian trawlers were being fired upon.

The Russians paid a sum of £66,000 to Britain in compensation over the Dogger Bank Incident,
a fee equivalent to around £5,000,000 in 2014 when adjusted for inflation.

The PCA is available to provide administrative support in fact-finding / commissions of

inquiry involving various combinations of states, state entities, international organizations
and private parties.
Since 1899, the PCA has administered five fact-finding commissions of inquiry. The first
commission of inquiry involved the so-called Incident in the North Sea, or Dogger Bank
Case (Great Britain/Russia). The commission was created by agreement on 15 November
1904, following an incident in which the Russian Baltic fleet mistook British vessels for
Japanese war ships, resulting in British fatalities. The commission of inquiry, comprised of
a committee of five, investigated the facts of the incident and indemnified the British in a
report handed down on 26 February 1905.

The PCA administered a commission of inquiry following the “Red Crusader”

Incident (Great Britain/Denmark), which involved a British vessel that was arrested within
the waters of the Faroe Islands. The commission was created by agreement on 15
November 1961, and rendered its decision a few months later, on 23 March 1962.

To facilitate the constitution and administration of fact-finding commissions of inquiry, the PCA
has created the Permanent Court of Arbitration Optional Rules for Fact-Finding Commissions of
Inquiry. These Optional Rules can be downloaded from the PCA Rules and Founding
Conventions section. Model conciliation clauses for use in connection with these Rules can be
downloaded from the Model Clauses and Submission Agreements link below.
MEDIATION AND CONCILIATION & ARBITRATION DIFFERENCE
Conciliation as a method of peaceful settlement of dispute--
A method by which the differences between nations may be settled by means of a commission to
consider and report upon such differences.

Mediation and Conciliation are two methods of conflicts resolutions in which a third-party
is involved.
Mediation and Conciliation refer to the dispute resolution process in which two or more parties
attempt to reach an amicable agreement with the help of a third party.

His role (Third Party) varies from one method to another.

Unlike the conciliator who has an active role in the conciliation process (eg he can propose a
solution to end the conflict), whereas the mediation process to help them find a solution to
their dispute - the mediator assists the parties themselves.
When conciliation is used, a commission of inquiry is introduced to investigate and report on th
e facts surrounding a particular dispute.
The report need not be in the form of an award, and the parties involved
may freely decide whether or not they will give it any effect.

Mediators do not issue orders or awards or find faults, or reach any conclusions. Instead,
Mediators assist the parties to reach a settlement by assisting with the communications where
there is impasse between the parties, by obtaining relevant information, and developing options
to reach a mutually beneficial settlement..

Conciliation as a Diplomatic Means of Dispute Settlement comprises of an Institutionalized

and Impartial Commission which investigates dispute and recommends the possible solutions
for settlement.

Each Party to the dispute specifies whether it accepts or rejects Conciliation Commissions
proposal. If parties accept the proposal, Commission drafts an agreement, called Procés
Verbal, which includes conditions of the settlement.

Conciliation Commission can be established as a Permanent Commission or on Ad-Hoc

basis and its proceedings are confidential.
Decision which type of commission will be engaged depends on various factors, such as attitude
of opposing parties, contents of instrument that created commission, perception of Conciliators
about their function, etc.

The Treaty between France and Switzerland which was signed in the year 1925 contained
functions of Permanent Conciliation Commission, which later on became Model Treaty for
future treaties.

The Treaty stated that, “The Duty of the Permanent Commission shall be to elucidate the
questions in dispute, to collect with that object all the information by inquiry or otherwise, and to
endeavour to bring the parties to an agreement. It may after examining the case, intimate to the
parties the terms of settlement which seems to it suitable and lay down time limit within which
they are to reach their decision”.

This was followed by what came to be known as “Locarno Treaties” which were signed
between Belgium, France, Czechoslovakia and Poland, wherein except the parties agreed to
refer legal disputes judicial settlement, all the disputes between them should be subject to
Conciliation.

One of the examples of Conciliation is of between Finland and Norway from 1980 regarding
boundaries of Continental Shelf in Jan Mayen sector (a Norwegian volcanic island situated in the
North Arctic Ocean). Report of Conciliation Commission included recommendations which were
accepted by parties and led to an agreement in October 1981.

Conciliation is distinguishable from Arbitration in that the terms of a conciliation settlement

constitute mere proposals to the disputing powers, whereas an arbitration settlement is bin
ding.

A conciliator will provide advice on matters in dispute and options for resolution, but does
not make determinations.

While Mediation-based settlement is not a legally binding settlement, but the Arbitral Awards
made by an legally binding award. Thus, Mediation is non-binding process while Arbitration is a
Binding Process.
Difference between Arbitration and Mediation is that in Arbitration, arbitrator hears evidence
and then proceeds makes a Arbitral Award.
Arbitration is similar to Court proceedings as Parties provide testimony and give evidence
similar to a Trial, sent arguments and evidence to a dispute resolution practitioner, but it is
usually less formal.
While Mediation process is a negotiation with assistance of a Neutral Third Party. Parties
do not reach a resolution unless all sides agree.

GOOD OFFICE AND MEDIATION

Good offices and mediation are very similar and work hand in hand since they are both
undertaken voluntarily, as a diplomatic --- pacific phase of conflict management, if the parties
to the dispute so agree. No requirements on form, time, or procedure for them to exist. Any
party may initiate or terminate them at any time.
In both the cases a neutral third party assists the disputants to resolve their own conflict. The
process is voluntary and they (the good offices and mediator) do not participate in the outcome
of the mediation/negotiation process (agreement). The disputing parties themselves have control
over the agreements to be reached.
These two mechanism processes are non-adversarial, they are less-expensive, they assure
confidentiality, impartiality and neutrality, they are non-legalistic, they also avoid delays and are
very flexible.

Essential Principle

The presence of the disputant parties;

Willingness of the parties to act in good faith;

an impartial third-party facilitator and Confidentiality.

The term "Good Offices" connotes the bringing about the conflicting parties together and the
counseling of advice or the suggesting of a settlement without participating in the negotiation.
Such suggestions or advice may be disregarded by a party to a dispute without any compunction
or breach of the law.
The third state only brings the conflicting parties together in negotiation. The third party
plays a passive role. The good offices are passive, that is, being subjected to an action
Good office is a technique of peaceful settlement of an international dispute, in which a third
party, acting with the consent of the disputing states, serves as a friendly intermediary in an
effort to persuade them to negotiate between themselves without necessarily offering the
disputing states substantive suggestions towards achieving a settlement.
Typically, Good offices are low-key actions by a third party to bring opposing parties to dialogue
or negotiation.
It may include informal consultations to facilitate communication; offer of transportation,
security, or site of venue; or fact-finding.
The third party may suggest ways into negotiations and a settlement but usually stops short of
participating in negotiations.
For example, Norway’s role in the 1993 Oslo Accords concerning the Israeli-Palestinian conflict
is a classic example of good offices.
Mediation is the conducting of negotiation between the disputing States through the agency of
the third party. In simple words, when the third party participates in the discussion along with the
disputant States and also gives its own proposals or suggestions in resolving the dispute, it is
called as Mediation. In this case, the State mediating takes an active part in the deliberations
conducted for peaceful settlement of the dispute. The third State conducts the negotiations
between the parties. Mediation is active, that is, having the power or qualities to cause change
and communicate actions.

******Mediation, just like negotiation, inquiry and conciliation, is a diplomatic means of

dispute resolution. It is different from arbitration which is a judicial procedure in the sense
that the parties to the dispute are not bound to accept the mediator’s recommendation.

*****Strictly a State is said to offer ‘good offices’ when it tries to induce the parties to
negotiate among themselves. Mediation is a consequence of the tender of good offices.

***The Good offices and Mediation, as an affordable and accessible means of alternative
dispute resolution, have the following principles:

The presence of the parties; Willingness of the parties to act in good faith; an impartial third-
party facilitator and Confidentiality.

***Especially the willingness of the parties to act in good faith is an important principle of
mediation and good offices.

***Mediation and good offices, which are a voluntary process, would be successful if the
parties are willing to resolve their dispute in good faith

***Good faith means entering into the process with the intent to work towards a
resolution, taking reasonable efforts towards it and not using the process for ulterior
purposes, such as stalling for time or preparing for a major armed conflict.
**Most importantly, another principle is the involvement of an impartial third-party
facilitator, known as mediator,

The mediator, who makes the entire mediation process work, has to be acceptable to the
disputants, enjoy their confidence, to be neutral and not to be involved with any of the parties. A
biased mediator can never be an honest peace broker.

***Confidentiality --- lastly, confidentiality of the mediation is the final principles of

mediation proceeding.

Keeping the proceeding confidential is crucial in the sense that it gives the parties some
quiet and uninterrupted times to contemplate over the issues and try to find a common
ground in order to resolve the dispute.

It may also deny media speculation and prevent self-centred third parties who benefit from
the dispute to cause obstacles in the mediation proceeding.

The mediator should therefore carefully guard the confidentiality of the mediation
proceeding.

However, if the disputing parties wish to disclose the proceedings the mediator cannot do
anything about it. But it would be better, for the reasons mentioned earlier, the parties too
should ensure the protection of the confidentiality of the mediation proceeding.

Typically, Good offices are low-key actions by a third party to bring opposing parties to dialogue
or negotiation. it may include informal consultations to facilitate communication; offer of
transportation, security, or site of venue; or fact-finding.

Mediation on the other hand is defined as a confidential facilitated negotiation, substantially

controlled by parties, procedural controlled by neutral third parties but with no authority
to impose an out-come.

The Prime Minister of United Kingdom, Mr. Wilson provided his good offices to India and
Pakistan which resulted the parties to reach an agreement to refer Kutch issue to an Arbitral
Tribunal.

In the year 1949, the Security Council rendered good offices in the dispute between the
Netherland Government and Republic Indonesia.

Norway’s role in the 1993 Oslo Accords concerning the Israeli-Palestinian conflict is a classic
example of good office

The 1856 Declaration of Paris was one of the early international agreements that encouraged
member States to settle their maritime disputes by mediation. The Second Hague Conference of
1907 recognized the right of neutral states to acts as mediators in international disputes, this was
reaffirmed by the Covenant of the League of Nations (LoN). example of good offices.

Soviet Union President Kosygin mediated in the Dispute between India and Pakistan which
resulted in the conclusion of Tashkant agreement in 1966.

Mediation, as defined above, is basically a diplomatic process to find a peaceful and just solution
to a dispute by the help of a neutral third party who may be a third State, the UN or a well-
known, yet competent, individual. The United States (US) for example served as mediator
between Bolivia and Chile in 1882 and between Russia and Japan in 1905. The UN served,
though unsuccessfully, as a mediator in the dispute between Israel and Palestine in 1948.

Role of the Third Party in Mediation and Good Office

internal and external third party,
The internal is the mediation process because the mediator takes part in the negotiation
process, since the process of mediation is the intervention of an acceptable third party, who
has limited or no authoritative in decision making.

But in the process of good offices it is always external, a third party that gives
encouragement and make conflicting parties to see the neccessities to meet and resolve
conflict and is always not allowed to take part in negoatiation processes.

Another difference between the two is that mediation requires all parties being present to
negotiate, and relies usually on face-to-face negotiation. While good offices do not necessarily
see all parties at the same time and good offices may work with one party even if the other is not
ready or willing to participate.

Also, Mediation is a structured process that typically completes in one or a few sessions but good
offices tend to be ongoing, depending upon participants’ needs and progress.

The good offices, as a third party in conflict resolution, looks to me more of a body or institution.

While mediation, uses just an individual(s) known as mediator, who can either be a diplomat,
elderly state persons, representative of churches and mosque, university lecturers and conflict
manager officials, to facilitate negotiation process.

Although mediation and good offices tend to merge into one another, the roles do shift from
passive to active and vice versa, that is, a good office can take up the roles of a mediator (a
mediator can come from good offices) and likewise a mediator can be exempted from the
mediation processes if the parties in conflict so agreed, thus making him/her a good office. But
still the thin line remains uncomplicated.
To conclude,

*** Mediation and good offices have several advantages

They are both processes that give the parties an opportunity to express their views, to
compromise and to find, provided they acted in good faith, a satisfactory solution, a peaceful
solution that is acceptable to both parties. They are processes that help to avert serious armed
conflict.

Even if the conflict had already occurred mediation and good offices may help to put an end to it.
Good offices mediated solution is cheaper, quicker and safer.

As a peaceful, fast and cost-effective mode of dispute resolution, good offices and mediation
may help in maintaining or restoring world peace and security.

NEGOTIATION AS A METHOD OF PEACEFUL SETTLEMENT OF DISPUTES

1 Most frequently employed Method to settle international Disputes.
2 No involvement of Third party.
3 Important is getting to the table.
4 Agreed terms- agreed area- opposing interest
5 Steps to clear confusion - controversy
6 Three steps in the employment of the negotiation process
pre negotiated stage- Negotiation itself- between the conclusion of the negotiation and entry into
force of the negotiated obligation.
7 Negotiated settlement fully protected by law
8 VCLT -Every treaty in force is binding on the parties and must be performed in good faith.
OBSERVANCE OF TREATIES
Article 26. "PACTA SUNT SERVANDA"
Every treaty in force is binding upon the parties to it and must be performed by them in good
faith.
A party may not invoke the provisions of its internal law as justification for its failure to perform
a treaty.
This rule is without prejudice to article 46.
Article 46 of the Vienna Convention on the Law of Treaties (VCLT) 1969
TREATY Invalidity
This provision has seldom been invoked by states as a basis for a claim of invalidity.
When challenging the presumed boundary between Iraq and Kuwait in 1990, Iraq agreed that the
1962 Exchange of Notes, which established principles concerning the location of the boundary
was invalid because its approval by the Iraqi government had not been accompanied by the
approval of the Iraqi Parliament.
Ground
Constitutional incompetence.
9.Negotiations among states are generally conducted or set through diplomacy.
This form of negotiation through diplomacy may be carried out by respective foreign offices,
diplomats, delegations or competent authorities.
Such kinds of negotiations are sometimes conducted by heads of states or themselves in summit
meetings.
Competent Authorities
Article 7 of VCLT

Article 7
Full powers

1. A person is considered as representing a State for the purpose of adopting or authenticating the
text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:

(a) he produces appropriate full powers; or (b) it appears from the practice of the States
concerned or from other circumstances that their intention was to consider that person as
representing the State for such purposes and to dispense with full powers.

2. In virtue of their functions and without having to produce full powers, the following are
considered as representing their State:

(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of
performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the
purpose of adopting the text of a treaty between the accrediting State and the State to which they
are accredited; (c) representatives accredited by States to an international conference or to an
international organization or one of its organs, for the purpose of adopting the text of a treaty in
that conference, organization or organ.
 THE RED CRUSADER CASE
This case saw the pursuit of a British trawler by a Danish fisheries vessel, the Neils Ebbesen, in
1961.

The Danish vessel directed machine gun and 40 millimetre calibre gun fire into the mast, radar
scanner and lights, then the stem, of the Red Crusader after the initial use of warning shots from
the ship’s 127 millimetre calibre gun.
An Anglo-Danish Commission of Enquiry found that the Danish vessel:
Exceeded legitimate use of armed force on two counts:

a. firing without warning of solid [as opposed to explosive] gunshot;

b. creating danger to human life on board the Red Crusader without proved necessity, by the
effective firing at the Red Crusader…
The Commission is of the opinion that other means should have been attempted, which if duly
persisted in, might have finally persuaded Skipper Wood to stop and revert to the normal
procedure. 14

Illegal fishing—fishing vessel in the area governed by the Exchange of Notes dated 27 April
1959—arrest of vessel—firing without warning and creating danger to human life on board
without proved necessity exceeded legitimate use of force.
Government of the United Kingdom of Great Britain and Northern Ireland and the Government
of the Kingdom of Denmark (Exchange of Notes, London, 15th November, 1961) to investigate
certain incidents affecting the British trawler “Red Crusader” which occurred in the period of the
29th to the 31st of May, 1961.
The Commission was accordingly constituted on the 21st of November in The Hague, with
Professor Charles De Visscher, President, Professor André Gros and Captain C. Moolenburgh,
Members.

The Red Crusader affair

Red Crusader was a Scottish trawler, which was arrested in May 1961 by
the Danish frigate Niels Ebbesen, for having illegally fished within the boundaries of the
fisheries around the Faeroe Islands (Danish: Færøerne), a Danish semi-autonomous province.
A small Danish crew was put aboard the Red Crusader to guide it to port in the Faeroe Islands,
but the vessel nevertheless continued towards Aberdeen in Scotland, despite efforts on the part of
the Danish frigate to prevent this.
Among other things, the Danish frigate fired warning shots across the Red Crusader's bow.
 To resolve the legal and political chaos caused by the affair, the governments of Great
Britain and Denmark agreed to the appointment of a neutral commission at the Hague to uncover
the details of the affair.
The commission filed its report in March 1962, and found no definitive proof that Red
Crusader had been engaged in poaching, although it had been apprehended clearly within
the borders of the fishing limit, with its trawl out. The commission also found that the Niels
Ebbesen had exceeded the limits for the reasonable use of force as sanctioned by the principles
of international law.
The British and Danish governments subsequently agreed to settle the affair by dropping any and
all outstanding claims in the matter.

Hot Pursuit as per UNCLOS

 The doctrine of maritime hot pursuit is codified in art 111 of the 1982 United Nations
Convention on the Law of the Sea (UNCLOS).
 It recognizes that a vessel, if has committed a violation of the laws of a foreign state while in that
state’s sovereign or territorial waters, may be pursued onto the high seas and seized.

ARBITRATION TO SETTLE TERRITORIAL DISPUTES

Ever since Great Britain and a recently independent United States agreed to submit a border
dispute to arbitration in 1794, in accordance with the Jay Treaty,' international arbitration has
proved a useful method of settling limited territorial disputes between nations.
One of the most attractive features of arbitration is that the proceedings are generally conducted
in ad hoc courts of arbitration specifically designed to deal with a particular dispute.
The parties can participate in defining the issue to be adjudicated, and they have the
power to select the arbitrators, the forum, and the rules of procedure that will be used to
settle the dispute.
Arbitration also provides the parties with the option of holding hearings in secret.

Thus, arbitration provides an appealing forum for nations that have decided to resolve their
differences through peaceful means because it is much more flexible than a permanent court and
allows the parties to maintain more control over the proceedings.'

Arbitration has been used in the past, with much success, to settle limited issues of territorial
sovereignty. The official name of the Jay Treaty is the General Treaty of Friendship, Commerce
and Navigation It is commonly called the Jay Treaty after John Jay, the American Secretary
of State. The Treaty resolved various outstanding questions between the United States and
the United Kingdom that had arisen after the United States declared independence.
Those issues not resolved by the parties were referred to arbitration. Under Article 5 of the
Treaty, arbitration was used to determine part of the boundary between the remaining
British possessions and the United States.

. The Jay Treaty is considered to have revived the use of public international arbitration.

Arbitration is often compared to the use of judicial settlement.'

Both are legal means of settling disputes, and both presuppose an obligation of the parties to
accept the award (in the case of arbitration) based on rules of international law.

The most significant difference between arbitration and judicial settlement is the method
used to establish the tribunal.

While judicial settlement involves the reference of a dispute to a permanent court whose
composition is primarily fixed,' in arbitration the parties to the dispute select the arbitrators.'

USE OF ARBITRATION TO SETTLE TERRITORIAL DISPUTES

violence in the context of the secession and breakup of states currently poses one of the greatest
threats to public order and human rights. But these conflicts are not only about ethnic groups
seeking self-determination through political independence and statehood; they are fundamentally
issues about control over land. Thus, constructing effective means to peacefully resolve
territorial disputes is a matter of profound importance.
' The question remains, however, as to whether it , that is arbitration is an appropriate
dispute resolution mechanism to settle ethnic-based claims to land.
The use of arbitration to solve territorial disputes can be successful only where the parties
are committed to resolving the dispute peacefully through arbitration, and that such a
commitment is unlikely if the dispute involves an issue considered to be of vital national
importance
. For arbitration to successfully resolve such disputes, the parties must have a modicum of
trust in each other and be willing to accept the fact that they may lose. Thus, an arbitration
agreement imposed upon the parties by the international community will not work.

The composition of a tribunal can vary greatly, depending on the parties' wishes. The most
common form of arbitral tribunal presently used is a three or five member panel, with each
party appointing an equal number of members.

IMPORTANT ROLE OF THE NEUTRAL THIRD PARTY

The final member of the tribunal is a neutral third party. 'This type of tribunal usually
decides disputes by majority vote.

The appointment of the members of the arbitral tribunal is often contentious, particularly
the selection of the neutral arbitrator, because it is the decision of this neutral arbitrator
that often determines the arbitration's outcome.
Thus, arbitration agreements often provide that if the parties cannot agree upon Article 38 (2)
of the statute of the International Court of Justice permits the Court to decide a case ex aequo et
bono if the parties agree. In the case of arbitration, the parties to the dispute have the power to
instruct the Tribunal on what basis it should render its decision.
. This form of tribunal was first used in the Alabama Claims case (1871-2), which involved
Great Britain's responsibilities as a neutral during the American Civil War.

Among the other forms of arbitration that have been used historically are sovereign arbitration
where the dispute is referred to a single person, usually a head of state.
During medieval times, the Pope was often called upon to act as arbitrator. Other variations
include convening a tribunal composed of an equal number of national arbitrators and one
neutral member who decides the dispute if the national members cannot agree (the origins
of this form of arbitration can be traced back to the Treaty of Ghent (1814)) or selecting
only national arbitrators (this method was employed in Jay Treaty (1794)).
the neutral arbitrator, the President of the International Court or another disinterested party shall
make the selection."'

COMPROMIS
When formulating an arbitration proceeding, the parties to the dispute usually define the
composition of the tribunal through either an ad hoc agreement (compromis) or by
reference to a prior agreement between the parties in which they had agreed to submit
future disputes to arbitration.'"
In addition to establishing the form of the tribunal, the compromis or treaty that refers the
dispute to arbitration should include the applicable rules of procedure.
Among these procedural arrangements are the location of the proceedings, how they are to
be paid for, the time limit within which the award shall be rendered, the number and order
of the pleadings, how the tribunal will obtain evidence, and the majority required for the
award.
Each procedural arrangement can be negotiated separately, or the parties may elect to
adopt standard procedural provisions such as those followed by the International Court of
Justice ("I.C.J.").
Any procedural matter not provided for in the compromis must be determined by the
tribunal, which "has the inherent power to determine its procedures in a way not
inconsistent with the compromis.' '
The compromis also incorporates the issues to be decided by the tribunal. The parties may
define the issues broadly, but more often the questions presented to the tribunal are
narrowly defined.
Because the tribunal is limited in its function, it must only address the controversy before it
and may not delve into any deeper issues that may exist between the parties.
The definition of the issue is important because it determines the scope of the tribunal's
authority; thus, it is almost always a matter for negotiation by the parties.
° If the tribunal exceeds its authority by answering questions not presented to it, the
parties may challenge the award as a nullity.
The doctrine of nullification is a problem unique to arbitration.
Although it is similar in effect to the problem of enforcement, common to all international
awards or judgments, nullification asserts that there is not even a valid award to enforce.

Two SUCCESSFUL ARBITRATIONS

Two successful application of international arbitration to two divisive conflicts: the Rann of
Kutch and the Taba Area disputes.
Arbitration can be effective when invoked in well-defined, fact-oriented territorial disputes.
The Rann of Kutch Arbitration

The dispute between India and Pakistan over the Rann of Kutch ("The Rann") has been
heralded as "one of the major instances of international arbitration in the post-war period."'
The object of the arbitral tribunal was to determine a sector of the boundary between the territory
that, in British times, was known as Sind (now part of the Islamic Republic of Pakistan) and the
State of Kutch and other Native Indian States (now part of the Province of Gujarat in the
Republic of India).
The Rann (or marsh) of Kutch spans approximately 200 miles across the southern portion of
the Indo-West Pakistan border. It has been described as a "desolate wasteland '
because it is practically uninhabited and has little economic or strategic value.

. Background
The territorial dispute had century-old origins, but it became acute shortly after India and
Pakistan emerged as independent states in 1947.
India claimed the Rann as part of its territory, while Pakistan insisted that the boundary
ran through the "middle of the Rann or approximately along the 24th parallel."'
Early in 1965, India, claiming that Pakistan illegally patrolled the Rann north of the 24th
parallel, posted border guards along the line.
Pakistani troops fired upon and cleared India's outposts in April.
Hostilities increased and during the next several weeks Pakistani and Indian forces engaged in
battles involving several thousand troops. Shortly after the fighting began, Britain began
negotiations, and soon afterwards, in an agreement dated June 30, 1965, both parties agreed to a
cease fire and to submit the dispute to settlement by arbitration."
In accordance with the agreement, Pakistan and India each nominated a non-national as
member of the tribunal, and the Secretary General of the United Nations appointed the
Tribunal's Chairman.
Prior to the commencement of oral hearings, and in accordance with the rules of the Tribunal
pertaining to discovery, a delegation from Pakistan visited New Delhi to inspect and obtain
copies of maps and documents in Indian Government archives.
A delegation from India visited Islamabad for the same purpose. The terms of the cease-fire
agreement provided that the parties would undertake "to implement the findings of the Tribunal
in full as quickly as possible," and the parties agreed that the Tribunal should remain intact until
its findings had been implemented.

Issues and Arguments

The first issue to be decided by the Tribunal was "whether the boundary in dispute [was] a
historically recognised and well-established boundary."

The Tribunal examined voluminous documentary evidence, including British maps and surveys
dating largely from the period between 1870 and 1947.
The Tribunal concluded that "there did not exist ... a historically recognised and well-
established boundary in the disputed region. '
The second main issue was whether Great Britain should be held, by its conduct, to have
recognized, accepted, or acquiesced in the claim of the former State of Kutch (now part of
India) that the Rann was Kutch territory. Such a determination would preclude Pakistan,
as successor of Sind and thus of the territorial sovereign rights of Great Britain in the region,
from successfully claiming any part of the disputed territory. The Tribunal relied primarily on
maps published by the British Government in India of a conterminous boundary roughly
coinciding with India's claim. This boundary had become a constant feature on all maps
produced as surveys of India after 1907.
. After the Tribunal rendered its award, the parties jointly demarcated the boundary, and the
Tribunal was dissolved on September 22, 1969. The entire process, from the cease-fire to the
implementation of the award took a little more than four years
India also offered into evidence the fact that assertions of the Rao (Ruler) of Kutch that
the Rann was his territory had not been contradicted by the British authorities for
approximately seventy-five years prior to independence.
Further, India presented reports in which both the Rao and the British had stated that the
Rann was Kutch territory.
The Tribunal concluded that these three grounds of India's case were all acts of relinquishment
by the British, and that they had the effect of leaving "the disputed territory, or the greater part
thereof, in the hands of the sovereign or sovereigns who by reason of geographical proximity
were there to receive it. ''
The Tribunal then looked at further evidence of British acquiescence. Specifically, the Tribunal
sought to determine whether the British Administration in Sind ... performed acts.., in
assertion of rights of territorial sovereignty over the disputed tract which were of such a
character as to be sufficient in law to confer title ... upon Sind, and thereby upon its successor,
Pakistan, or, conversely, whether such exercise of sovereignty on the part of Kutch and the
other States abutting upon the Great Rann, to whose rights India is successor, would instead
operate to confer title on India ....
The Tribunal noted that evidence relating to acts of sovereign rights over the territory must be
evaluated with the nature of the territory in mind.

Exercise of sovereign authority

 Two facts were crucial in the understanding of what would constitute sovereign functions
in this situation: (1) much of the territory in dispute was uninhabitable; and (2) the two
entities were agricultural societies at the time relevant to the proceedings.
' Thus, the activities and functions of government were limited to the imposition of customs
duties and taxes on land, livestock and agricultural produce, and to the maintenance of
peace and order.'

The Tribunal found that the activities of neither Kutch nor Sind authorities within the
majority of the Rann were sufficient to constitute continuous and effective exercise of
sovereign authority.

The Tribunal concluded, however, that Sind did exercise sovereign control over certain
portions of the territory known as Dhara Banni and Chhad Bet, areas that are raised above
the level of the Rann and were used by Sind inhabitants as grazing pastures.
Based on Sind's acts of sovereignty over Dhara Banni and Chhad Bet, the Tribunal
awarded these areas to Sind's successor, Pakistan.
The Tribunal also awarded a peninsula of land, known as Nagar Parkar, to Pakistan, even
though Pakistan had not established legal title to it. The Tribunal based this decision on the
fact that the area was wholly surrounded by Pakistani territory. Thus, the Tribunal
reasoned that awarding the area to India would inevitably lead to friction and conflict.

With regard to the remainder of the territory, the Tribunal concluded that the evidence of
Sind sovereignty over the majority of the Rann was insufficient to establish sovereignty.

The Tribunal thus relied primarily on the evidence produced by India of British
relinquishment of rights over the Rann, and awarded the remainder of the territory,
approximately ninety percent of the Rann, to India.

The Rann of Kutch Arbitration was extremely successful in resolving a territorial dispute
between two nations with a history of conflict.

Throughout the proceedings, the parties cooperated with each other and with the Tribunal.
Neither side questioned the authority of the Tribunal, and both sides worked together to
implement the decision.
Reasons for the success of kutch dispute

This success can be attributed to several factors.

First, the issues before the Tribunal were well-defined. Additionally, the parties had previously
agreed that the boundary was conterminous between the two nations and that, therefore, the
territory in dispute had to belong to one or the other, which further limited the scope of
Tribunal's authority.

Second, as the Tribunal noted, the dispute was essentially factual in nature. The parties did not
focus their arguments on complex legal issues, but relied instead on testimony and documentary
evidence.

The Tribunal, in turn, relied on the weight of this evidence and the relative strength of the parties'
arguments in rendering its decision. Other than incidentally, the Tribunal did not have to
enunciate or expound potentially contentious principles of international law.

More important to the success of the arbitration was that the dispute over the Rann did not
represent a major political dispute between the two countries.

The Rann had little economic or strategic value and was sparsely populated. Thus,
although large-scale fighting preceded the arbitration proceedings, the dispute was more
symbolic than substantive.
Furthermore, shortly after the cease fire, both nations had shifted their attention to
disputes over Kashmir and Punjab, areas more vital to the interests of both countries..

The Taba Area Arbitration

The successful arbitration of the dispute over the Taba area between Egypt and Israel
"represent[ed] a significant milestone in the development of relations between the two
formerly warring nations."'
The objective of the arbitral tribunal was restricted to deciding the location of fourteen boundary
pillars of "the recognized international boundary between Egypt and the former mandated
territory of Palestine,"' thus deciding the status of the Taba area, a strip of land in the Sinai on the
shore of the Gulf of Aqaba.
. Background The origins of the dispute can be traced to 1906, when Turkish forces
occupied the coastal settlement of Taba but were forced to withdraw under British
pressure.
After negotiations between Anglo-Egyptian and Turkish representatives, a territorial agreement
was reached("the 1906 Agreement") and the border between Egypt and the Ottoman Empire was
fixed as running through Taba
. In 1915, however, a British military survey produced a map that showed the border as running
along a line approximately three-quarters of a mile to the north-east of the 1906 line.
The 1915 line became the boundary with Egypt under the British Palestine Mandate and
remained as such when Israel proclaimed itself an independent state in May 1948.
In the June 1967 war between Israel and Egypt, Israel captured the Sinai peninsula from Egypt,
bringing the Taba area under Israeli control.
In the March 1979 Treaty of Peace between Israel and Egypt, Israel agreed to withdraw its
troops from the Sinai and to recognize "the full exercise of Egyptian sovereignty up to the
internationally recognized border between Egypt and mandated Palestine."
Pursuant to the Treaty of Peace, a joint commission was formed to demarcate the boundary.
When survey teams reached the Taba area, the parties could only agree on the placement of
three boundary pillars.' Despite negotiations, the parties failed to agree on the placement of the
remaining pillars.
Thus, the parties agreed to submit the dispute to arbitration, in accordance with the 1979
Treaty.
The Tribunal consisted of five members, one national of each state nominated by the
respective parties and three non-nationals acceptable to both sides.
The Tribunal's task was extremely limited: it was to decide the location of fourteen boundary
pillars, but it was not authorized to establish a location of a boundary pillar other than at a
location advanced by Israel or by Egypt.
"At stake were several hundred meters of shoreline, corresponding territorial water rights and a
resort hotel complex."
Israel maintained that the Tribunal should refer to the boundary defined by the 1906
Agreement because Great Britain, as mandatory power, and Egypt had explicitly
recognized this as the boundary between Egypt and Palestine in declarations in 1926.
The Tribunal refused, stating that the 1979 Treaty of Peace referred to the "recognized
international boundary between Egypt and the former mandated territory of Palestine"
and not to the 1906 Agreement.
The Tribunal thus established the period of the Palestinian Mandate' as the critical period'
' and relied on the location of the boundary pillars as they were understood during this period as
the basis for its decision.'
In support of their respective claims, the parties introduced maps, surveys, and photographs of
the area indicating the erection, wear, removal, or replacement of the pillars at issue.
With regard to the nine northernmost pillars, situated in an uninhabited desert region involving
"apparently no essential interests of the Parties,"" the Tribunal found the arguments of both sides
unpersuasive.
It therefore decided in favor of the proposed locations of the pillars that came closest to
establishing a straight line connecting adjacent agreed pillar locations. °
The Tribunal thus awarded five of these pillar locations to Egypt and four to Israel." With regard
to the location of four other pillars, the Tribunal concluded, based on the factual evidence before
it, that the locations advanced by Egypt established the recognized boundary during the critical
period." In reaching its decision regarding the final and most contested pillar location, the
Tribunal relied primarily on photographs introduced by Egypt indicating the existence of a
marker known as the "Parker pillar," which was erected by commissioners implementing the
1906 Agreement .
The Tribunal rejected Israel's argument that the Parker pillar was not intervisible with the agreed
location of the adjacent pillar to the north, and that this lack of intervisibility contradicted the
1906 Agreement."
The Tribunal relied on evidence that Egypt and Turkey may have ignored the intervisibility
requirement of the 1906 agreement when constructing the pillars in the area of the Parker pillar."'
The Tribunal also rejected Israel's argument that the pillar 100. On July 24, 1922, the Council of
the League of Nations approved the Mandate for Palestine with Great Britain to act as mandatory
power.

This Mandate entered into force on September 29, 1923 and lasted until May 14, 1948, when the
State of Israel came into exist. The critical period has been defined as the time when the
dispute crystallizes into a concrete
The Tribunal concluded that the Parker pillar existed at the location advanced by Egypt, and that
the Parties had recognized this pillar as a boundary throughout the critical period. Thus, Israel
could not at this point challenge its location on the basis of an alleged error.
In its Award, the Tribunal commended the parties for the "spirit of cooperation and courtesy
which permeated the proceedings in general and which thereby rendered the hearing a
constructive experience.""
On March 15, 1989, following negotiations and the conclusion of an agreement, Israel
transferred to Egypt sovereignty over the Taba area in its entirety, including the resort
facilities located there.
Thus Arbitration successfully resolved a territorial dispute between nations that had a history of
violent conflict.
The two proceedings attest to the value of international arbitration as a procedure to
demarcate boundaries between states. They also have other important similarities.
For example, the dispute to be resolved by the Tribunal in the Taba Area Arbitration, like
that in the Rann of Kutch Arbitration, was well-defined.
The Tribunal had limited authority, authorized only to establish the pillar locations in
accordance with one or the other of the party's claims."
Furthermore, the two disputes, although complex, were primarily factual in nature.
Thus, after determining the critical period, the Tribunal relied almost exclusively on testimony
and documentary evidence in rendering its decision as opposed to relying on international legal
theories."
Unlike the Rann of Kutch, however, the Taba area was economically valuable. The area
included a multi-million dollar hotel complex and accompanying tourist village.
In addition, after the award was issued, the Israeli government faced fierce and emotional
opposition to the decision from citizens who worked in Taba.' In agreeing to arbitration,
however, the parties had already decided that control of the Taba was not worth undermining the
1979 peace treaty, (1988).
The parties reached an agreement in which Egypt bought the hotel for $37 million and the
adjacent village for $1.5 million.
In other words, "[o]nce the prospect of a meaningful agreement became real, both parties
appreciated that the issue was strategically meaningless and that under no circumstances could it
be permitted to disrupt the peace relationship that was, by then, seen as serving their common
interests."''
JUDICIAL SETTLEMENT

Judicial Settlement Judicial settlement involves the reference of the dispute, by the consent of
the parties, to a permanent judicial body, such as the International Court of Justice.

Judicial settlement and arbitration are often grouped together in discussions of third party
dispute resolution mechanisms, because both usually apply international law as the basis for
adjudication. They are therefore distinguishable from mediation and negotiation, in which the
political aspects of a dispute often determine the outcome

l . The advantages and disadvantages of referring a dispute to a permanent court are similar to
those of arbitration.

Among the potential advantages of adjudication is that it is dispositive, and thus, ideally, should
put an end to the dispute.
As there is often a long delay before disputes are adjudicated, adjudication may also help to "'de-
politicize' a dispute [by] reducing tensions or buying time." Adjudication also allows the parties
to blame the tribunal for any unfavorable outcome, which may be an important "face saving"
technique.
In addition, since adjudicated decisions are based on neutral principles of law and equity rather
than power or bias, adjudicated decisions may be preferable to negotiated settlements, especially
to a state in a weaker bargaining position.
There are, however, a number of disadvantages to adjudication. For example, adjudication may
decide the legal issues at stake but fail to address the underlying political problems. The absence
of political solutions may render any outcome untenable. In addition, adjudication does not foster
compromise since only one side will win, and any decision reached is imposed on the parties.
The ability of two disputing states to compromise is often crucial to the implementation of a
decision and, perhaps more importantly, to future peaceful relations. Furthermore, any
adversarial proceeding may serve to exacerbate the dispute.
States have rarely agreed to submit territorial disputes to a permanent court for adjudication.

The primary reason for this reluctance is that states often view territory, or their claim to
that territory, as a matter of vital national concern and are unwilling to risk losing that
territory or their claim to it.
Thus, states may be more willing to agree to refer their disputes to a permanent court-. The
parties may agree to an advisory opinion, however, if the court's rules so allow. Arbitral tribunals
may also issue advisory opinions with the parties' consent.

Although infrequent, states have occasionally agreed to have their territorial disputes
decided by permanent courts such as the I.C.J. For example, in the Frontier Dispute case,
Burkina Faso and Mali asked the I.C.J. to resolve a boundary dispute that less than ten
years before had caused a war between them. Frontier Dispute (Burk. Faso v. Mali), 1986
I.C.J. 554 (Dec. 22 As discussed above, states have more often consented to arbitration
because it provides many of the benefits of a permanent court but is a more flexible
procedure.

As with arbitration, however, parties are more apt to agree to judicial settlement in relatively
apolitical disputes where they can agree on the nature of the dispute and the appropriate means to
resolve it. Where the dispute is more contentious, however, a state may still prefer a judicial
settlement to the prospect of going to war. Furthermore, if a state believes it has a superior legal
claim, it may prefer to be heard publicly by a permanent court in the hope that the strength of its
arguments and commitment to peaceful settlement may strengthen domestic and international
support for its cause.

.. No single method, however, is appropriate for resolving every territorial dispute

. To be effective, the third party or parties recommending a technique for resolution must first
understand the nature of the dispute, the value of the territory at issue (whether strategic,
economic, or symbolic), and the parties' willingness to compromise
. Most importantly, third parties must understand that, to be effective, all of these dispute
resolution techniques require a commitment to peaceful resolution by the parties involved in the
dispute.
Arbitration has proved most productive in relatively apolitical disputes where the parties' claims
to the land are based on historical arguments and documentary evidence. The Rann of Kutch and
the Taba Area arbitrations provide examples of such situations. The disputes in theses
arbitrations were either not highly sensitive or the parties had previously decided to subordinate
their interests in the territory to more profound national concerns.

The parties in both disputes were, therefore, willing to cooperate and participate in the
resolution of their respective disputes within the arbitral forum.
This is not to say that arbitration could never be used effectively to resolve more contentious
claims to territory, , negotiators should first evaluate the nature of the dispute and then, if
appropriate, secure a meaningful agreement to submit the dispute to arbitration. The parties can
then work together to determine the precise issue to be adjudicated and the limits on the
tribunal's authority

MEDIATION
The function of the mediator, often a third state or an international organization, is to bring the
parties together and facilitate their negotiations.

The mediator may also offer specific suggestions for settlement.30 8 States may be more willing
to request or consent to mediation, as opposed to other third party dispute resolution mechanisms
such as adjudication, primarily because any decision reached is not legally binding.T
YThus, as with bilateral negotiations, states have no obligation to reach a settlement or to
implement one. Mediation also has the advantage of flexibility in that the mediator is not bound
by legal considerations. The mediator is free to assess the interests of both sides and devise
whatever compromise it deems appropriate.

In addition, mediation allows the participating parties to interpret the process in "face saving"
ways for the benefit of public opinion and encourages parties to find politically United States and
Mexico);.

Mediation and good offices are often put in the same category in discussions of third party
international dispute resolution. In the case of good offices, the role of the third party is usually
limited to bringing the parties together and facilitating their negotiations

With mediation, however, the third party usually plays a somewhat more active role and is
sometimes allowed to advance proposals for resolution of the dispute. In practice, however, such
distinctions are often blurred, and a third party that offers its assistance in the form of good
offices will, in essence, serve as mediator.
Mediation has been most effective at forestalling or ending hostilities, but it has often fallen short
of reaching a fundamental resolution for political and territorial questions involved in border
disputes. This is due, at least in part, to the fact that states involved in territorial disputes will
usually only agree to some form of negotiation when the conflict has developed to such a point
that negotiation is advantageous to both sides.
For example, if hostilities have occurred, but prolonging them has become too difficult or costly,
some form of negotiation is more likely. States are unlikely to agree to any form of negotiation if
they believe they can gain their objectives through force at an acceptable cost.
Thus, mediation rarely occurs except when such conflicts have been "exacerbated nearly to, or
beyond, the point of military engagement."
Therefore, mediation may be most effective where the main objective is not to resolve the
underlying dispute but to pacify the parties and to avoid or to put an end to hostilities.

Once the parties have stopped fighting, they may be able to agree on an appropriate forum for the
resolution of the underlying dispute.
For example, in the territorial dispute between India and Pakistan over Kashmir in 1965,
the mediation of the Soviet Union was instrumental in securing a ceasefire between the two
warring nations. The United Kingdom served as mediator between India and Pakistan
after hostilities erupted over the Rann of Kutch. Although the mediation did not resolve the
issue, the two sides did agree to a cease-fire and to submit the dispute to arbitration
Thus, the effectiveness of mediation, as with any form of negotiation, will be limited by the
parties' willingness or ability to compromise. The fact that disputing parties have agreed to third
party involvement, however, may, in and of itself, suggest that they are ready to make
concessions.

CONCLUSION

In view of the danger and cost that the use of force poses for all in the international community,
it is important to develop every conceivable peaceful means of resolving international conflicts.
Increasingly, international conflicts involve complex issues of territorial control based on
ethnicity. The inclusion in peace treaties of such dispute resolution mechanisms as arbitral
clauses may be one way to peacefully solve such disputes. Such clauses may not only provide a
peaceful means of settlement, but may also allow negotiators to defer a final decision on a
politically sensitive issue until the parties have had time to cool off and the issue is no longer in
the public eye.

PIL – JAMNADAS – NEW JHABH

1. What is International Law?
Ans. : International Law is generally a body of rules and principles which
regulate the conduct of the States in their mutual intercourse. The object of international
law has been to produce an ordered rather than a just system of international relations, but
recently, attempts have also been made to ensure that it will also maintain just international
relations.

2. Define International Law according to Starke.

Ans. : Starke, in his Introduction to International Law, defines international law as “that
body of law which is composed for its greater part of the principles and rules of conduct
which States feel themselves bound to observe, and therefore do commonly observe, in
their relations with each other, and which includes also:
(a) the rules of law relating to the functioning of international institutions or organisations,
their relation with each other and the relations with States and individuals; and
(b) certain rules of law relating to individuals and non-State entities, so far as the rights or
duties of such individuals and non-States entities are the concern of the international
community."

3. How does Oppenheim defines the International Law?

Ans. : According to Oppenheim, international law is "the name for the body of customary
and conventional rules which are considered legally binding by civilized States in their
intercourse with each other".

4. What are the different points of view regarding International Law?

Ans. : The various definitions of international law look at international law from four points
of view:
1. from the point of view of its sources 2. from the point of view of its binding nature on
all civilized states.
3. From the point of view of its scope
4. From the point of view of the sanction behind it.
5. What are the general regional rules of international law?
Ans: international law may be general or regional. Thus, rules of international law which
are of universal application are called the general rules of international law, and those rules
which have developed in a particular region of the world as between the states located
there, without having universal characteristics, are regional rules of international law.

7. Is International Law true Law?

Ans. : This is one of the most debated questions in international law. There been two
distinct schools of thought on this oft-debatedquestion.
(1) The first maintains that international law is no law; at best, it resembles the rules of
law; it comprises of only the rules of positive morality.
(2) The other school, however, maintains that international law is not a set of rules of
positive morality, but it is as much a legal system as any other municipal legal system.
These two schools have widely differed mainly because their approach to the definition of
law has been different. It is contended that international law lacks all the essential
characteristics of law, and therefore, it is no law.

8. Give the reasons to explain that International Law is 'no law' given by Austin and others?
Ans. : The first school, led by Austin and others, defines law as the command of a
determinate superior authority, which is obeyed by subordinate individuals, and which is
enforced by the sanction of the physical force of such an authority. Having defined law
thus, this school does not consider international law to be law for the following reasons:
(i) There being no agency for international legislation, international law is not a command
of a superior determinate authority. At best, it is a limitation imposed by the sovereign
State upon itself. Self-limitation is no limitation. Therefore, international law is no law.
(ii) There is also no organised force to enforce international law. The absence of such a
sanction, which would ensure obedience to international law, would reduce it to a state of
moral rules.
(iii) According to this school, the very essence of law is the presence of a determinate
impartial third party which would interpret and enforce the law. In the case of international
law, such a determinate impartial arbitrator is absent. Even in the case of the International
Court of Justice, the basis of the jurisdiction of the Court is the consent of the States. The
International Court of Justice cannot exercise jurisdiction if a State which is a party to a
dispute has not given its consent.

9. Explain Starkes' point of view about the International Law being True
Ans. : Starke criticises Austin's criticism of the nature of international law within a on the
following grounds:
(i) Modern historical jurisprudence has disproved that force is the sanction behind law. It
is now proved beyond doubt that there are many communities which have a system of law
without a formal legislative authority, and law is equally obeyed as if it was enforced by a
formal authority.
(ii) Starke further points out that the argument that there is no international legislature
might have been true of Austin's time, but in modern times, international legislation
through lawmaking treaties and ultipartite conventions, has come into vogue. Therefore,
the argument that there is no formal legislative authority has lost all its force.
(iii) The main test of law is the practical test. Citing the opinion of Pollock Starke says that
States always refer to legal arguments. They justify themselves on the basis of law. Moral
arguments do not generally find a place. Therefore, each State expects other States to obey
international law, and maintains that its conduct has been in conformity with law. As
observed by Professor Oppenheim, it is wrong to deny the legal character of international
law.

10. How does Prof. Oppenheim define and explain the International Law Professor
Oppenheim defines being True law or Not?
Ans. : law as a body of rules for human conduct within a community which, by the common
consent of the community, is enforced by an external power. Thus, according to him, the
three important requisites are:
(1) A community
(ii) A body of rules for human conduct.
(iii) Consent of that community for the enforcement of those rules by external power.
He maintains that all these three essentials are to be found in international law. In the world
today, there exists a community of nations. Science, art, culture, commerce, economic
interest, communications are all international, Interests of the people of different countries
are so interdependent that a world community has come into existence.
Secondly, there exist rules of conduct which have grown up for hundreds of years as a
result of custom, international agreements, and a vast number of lawmaking treaties.
Thirdly, one can also see the existence of a common consent of the community of States
for the enforcement by external power of international conduct. Both the government of
the States and public opinion agree that rules of International law can be enforced by an
external authority.

11. What is Austin's opinion about International Law?

Ans. : It must be noted that international law must be distinguished from the rules of
international comity”. The rules of international law are legally binding, while the rules of
international comity are, for the most part, rules of goodwill and civility. Austin might have
been right in describing rules of international comity to be of purely moral quality, but that
is not true in the case of rules of international law, which are legally binding.

12. Why is International Law a weak Law?

Ans. : Those who maintain that international law is not true law do not take into
consideration the emphatic assertions of the binding force of international law by various
Courts and International Conferences. the Court of Justice of appropriate jurisdiction, as
often as questions of right depending International law is part of our law, upon it are duly
presented for their determination". Though there is enough evidence in State practice and
judicial decisions to accept that international law is true law, yet one should not be blind to
the fact that international law is weak law. The existing international legislative machinery
is administered by inadequate, and international law is mainly customary. Though the
International Court of Justice has been established, still it does not exercise universal
compulsory jurisdiction for settling legal disputes between States. Further, the rules of
international law can only be formulated with difficulty. They are quite often uncertain.
However, there has been voluminous activity to remove uncertainty in international law by
filling the gaps. Hence it can be said that International Law is a weak Law.

13. What are the two sources of International Law according to Oppenheim?
Ans. : According to Oppenheim there are two sources of international law:
(1) Express consent of the States, and
(2) Tacit consent of the States.
14. What is Starke's approach to the sources of International Law?
Ans. : Following the practical approach adopted by Starke, it may be said that by
international law is meant the actual materials from which an international lawyer
ascertains the rule applicable to a given situation. The materials from which he tries to
collect these rules are generally the following:
(i) Custom
(ii) Treaties
iii) Decisions of judicial Tribunals or arbitral Tribunals
(iv) Writings or determinations of the organs of International Institutions (v) Decisions or
determinations of the organs of International Institutions.

15. What are the sources of International Law?

Ans. : The Statute of the International Court of Justice directs the Court to apply the
following sources for ascertaining international law:
(1) International treaties and conventions
(2) International custom
(3) The general principles of law recognised
(4) Judicial or arbitral decisions
(5) Juristic works
(6) Decisions and determinations of the organs of international organisations.

16. Which are the two kinds of Treaties?

Ans. : There are two kinds of treaties:
(a) The law-making treaties - which lay down general rules binding on the majority of
States; and
(b) Treaty-contracts, which deal with special agreements between parties to the treaty
The law-making treaties are a direct source of international law, whereas treaty contracts
are not generally sources of international law, as they are intended to create special rights
and duties only between the parties to the treaty.

17. What do Law-making Treaties involve?

Ans.: Law-making treaties involve two distinct operations:
(1) The legislative operation, whereby rules are laid down.
(ii) The undertaking by the States to conform to such rules.

18. What is a Treaty - Contracts?

Ans. : Although treaty-contracts are not generally regarded as sources of international law,
yet, in the following three cases, they may laydown rules of international law:
1. A series of treaty-contracts or repetition of the same rule in several treaty contracts might
produce a principle of custom, and thus become a source of law.
2. Originally, treaty-contracts may be entered into between a limited number of States, but
subsequently if several States accept or imitate them, then such treaty-contracts may
develop into customary rules of international law,
3. A treaty contract might operate as evidence of the existence of a rule of law which has
been developed by an independent process.

19. What is International Customs?

Ans. : International custom was considered to be almost the sole source of international
law for quite a long time. These customary rules of international law have been evolved by
a long historical process, and they are recognised as such by the international community.

20. Explain Customs as a source of International Law.

Ans.: Though the terms custom and usage are often used to mean the same thing, there is
a fine distinction between them. Usage is a prior state in the development of custom. When
a usage crystallizes itself, it becomes a custom. Custom begins where usage ends. Usages
may be conflicting. These usages become custom when they become unified and self-
consistent.
21. What are the two tests for customs as source of International Law?
Ans. : Two tests for customs as source of International Law are -
(ii) The psychological test.
(i) The material test, and

22. Explain what are Juristic Works?

Ans. : Juristic works are not an independent source of law. They are only a means of
throwing light on the rules of international law and rendering their formation easier. The
juristic works are generally evidence of law, rather than the source of law. It is possible
that the writing of a great jurist may become a source of law if it is subsequently embodied
in customary rules of international law.

23. What is the Principle of Jus Cogens?

Ans. : Recently, it is increasingly being recognised that there are certain peremptory
principles of international law from which there could not be any derogation. The
peremptory norm of general international law is a norm accepted and recognised by the
international community of States as a whole as a norm from which no derogation is
permitted. Such a norm can be modified only by a subsequent norm of general international
law having the same character. Article 53 of the Vienna Convention on the Law of Treaties
confirms this view. The principle prohibiting unlawful use of force contrary to the United
Nations charter, is an illustration of Jus cognes. Article 53 of the convention also provides
that a treaty is void at the time of its conclusion if it conflicts with Jus Cognes.

24. Is an individual a subject of International Law?

Ans.: Amongst those who hold that individuals are the subjects of international Professor
Kelsen stands foremost. According to him, the States have no personality of their own.
They are just artificial persons created a fiction of law. Therefore, even when it is said that
rules of international law govern the conduct of States, the State being nothing but a
collection of individuals, the rules of international law govern only the conduct of
individuals.
The question as to whether international law binds individuals is no longer of mere
theoretical significance. Neuremberg and Tokyo trials of the War criminals after the
Second World War prove beyond doubt that individuals can be held responsible under
international law. This view of the Neuremberg and Tokyo International Tribunals has also
been accepted by the International Commission of the United Nations. The Commission,
in its draft Code on Offences against the Peace and Security of Mankind, did provide that
persons could be guilty of crimes against the peace and security of mankind. There have
been other instances also where international law has inflicted direct responsibility on
individuals. The Genocide Convention adopted by the United Nations' General Assembly
in December 1943, source of ler her clearly provided that persons committing certain acts
should be punished "whether w and render they are constitutionally responsible rulers,
public officials or private individuals”.

25. What is the relationship between the International law and State Law?
Ans. : The question of the relation between international law and the State law is not only
of theoretical importance, but also of immense practical importance.
1. The law of treaties, which affect the State law, cannot be clearly understood unless the
relation between the two legal systems is clearly appreciated.
2. Very often, the municipal courts will be confronted with the problem of giving effect to
rules of international law. Sometimes, these rules may be in conflict with the municipal
law of the Courts. In such cases, it is necessary to have a clear grasp of the relation between
international law and State law.
3. International courts and tribunals may have to determine the effect of a rule of municipal
law in the international sphere. Here again, the relation between international law and State
law becomes very important.

26. What is Monistic Theory?

Ans. : According to Monistic theory, international law and State law are the components
of one system of law in general. This theory regards that law is a single unity consisting of
rules, whether those rules are binding on States or on individuals or on entities other than
States. According to this theory, both State law and international law ultimately regulate
the conduct of individuals. The only difference is that, in the case of international law, as
it is applicable to the international sphere, the consequences of such conduct are attributed
to the State. Prof. Kelsen maintains that once it is conceded that international law is law, it
is impossible to deny that both these legal systems are parts of an unified system of law. It
is further maintained that the two legal systems must be considered to be essentially
identical, as many of the fundamental notions of international law cannot be understood,
unless one starts with the premises that the various systems of municipal law are, to some
extent, derived by way of delegation from international law.

27. What is Dualism Theory?

Ans. : Oppenheim, was inclined to support the Dualistic theory. Triepel, an eminent writer
on international law, maintained the Dualistic theory for the following reasons:
(a) The subjects of State Law are individuals, whereas the subjects of international law are
exclusively States.
(b) Their judicial origins are also different. The source of State Law is the will of the States,
whereas the source of international law is the common will of the States.
Starke points out that the first of the above propositions is wrong, particularly, in the
modern context. Today, the subjects of international law are not exclusively States, but
individuals and entitles other than States can also be its subjects. Starke further points out
that the second proposition of Triepel is misleading.

28. Compare International Law and State Law.

Ans. : International law and State law are two legal different.
(1) Firstly, they differ as regards their source.
(ii) Secondly, they differ as regards the relations they regulate, Municipal Law regulates
the relations between the individuals who are under the sway of States, whereas
international law regulates relations between States.
(iii) Lastly, these two legal systems differ regarding the sanction which they possess.
Municipal Law, being a law of a sovereign over individuals subjected to his sway, has a
strong sanction behind it, whereas international law, not being a law above the States, but
a law between the sovereign States, has a weaker sanction.

29. Why are International Laws and State Laws different according to Anzilotti?
Ans.: Anzilotti, another eminent jurist, maintains that these two systems are different for
the following reasons:
(i) State law is based on the fundamental principle that State legislation is to be obeyed,
whereas international law is based on the principle, pactasuntservanda, that is, agreements
between States are to be respected.
(ii) These two systems being entirely different, no conflict between them is possible.

30. What are the qualifications or criteria of a State?

Ans.: The State, as a person of international law, should possess the following
qualifications:
(a) a permanent population;
(b) a defined territory;
(c) a Government; and
(d) a capacity to enter into relations with other States.

31. Which are the basic rights of the States?

Ans. : The basic rights of the State are
(1) Sovereignty and independence of States.
(2) The equality of States.
3) The right of territorial jurisdiction.
(4) The right of self-defence and self-preservation.

32. Which are the co-relative duties of the States?

Ans. : The Co-relative duties of the States are -
(1) Duty of not resorting to war.
(2) Duty of carrying out treaty obligations in good faith.
3) Duty of not interfering in the affairs of other States.

33. What are the attributes of a State?

Ans. : A State is supposed to possess independence and sovereignty within its territorial
limits over both its subjects and its affairs. But the term “sovereignty" must not be
understood in the way it was understood in the 18th or 19th centuries. In these days of
international interdependence, the so-called sovereign power of the State is subject to
various restrictions. Today, sovereignty of a State can be defined as the residue of power
which it possesses within the limits laid down by international law. But there are other
writers who deny any legal efficacy of international law, and consider sovereignty in its
old sense to be a reality.

34. What are the rights associated with the States independence?
Ans. : The term independence of a State suggests the existence of certain rights and certain
co-relative duties. The following rights are associated with the State's independence:
(a) The power exclusively to control its own domestic affairs;
(b) The power to admit and expel aliens;
(c) The privileges of its diplomatic envoys in other countries;
(d) The sole jurisdiction over crimes committed within its territory.

35. what is meant by Intervention?

Ans. : Hyde defines intervention as a dictatorial interference in opposition to the will of a
particular State, and almost always serving, by design or implications, to impair the
political independence of that State. Therefore, to be intervention under international law,
the following three ingredients must be present:
(a) dictatorial interference,
(b) in opposition to the will of the State affected,
C) in such a way as to impair the political independence of the affected State.

36. When are Interventions permitted under International Law?

Ans. : Interventions are permitted under the following circumstances:
(a) Collective intervention, pursuant to the Charter of the United Nations;
(b) Intervention to protect the rights, interests, and the personal safety of the State's citizens
abroad;
c) Self-defence, if intervention is necessary to meet a danger of armed attack;
(d) Intervention in the affairs of a Protectorate under the state's dominion.
37. What do you mean by the principle of Sovereign Equality?
Ans.: The equality of States before international law is a quality derived from their
international personality. According to the traditional doctrine, States are equal as
international persons in spite of inequality in their size, population, power, degree of
civilization, etc. This doctrine also finds recognition in the Charter of the United Nations.
Article 1 refers to 'respect for the principle of equal rights', and Article 2 provides that the
organisation 'is based on the principle of the sovereign equality of all its members'.

38. Name the different kinds of States?

Ans.: The different kinds of States are
1. Confederations
2. Federal State
3. Protected and Vassal States and Protectorates
4. Condominium
5. Commonwealth of Nations
6. Trust Territories.

39. What is Holy See?

Ans. : It refers to Pope being the Bishop of Rome. It is the supreme organ of the Catholic
Church together with the offices of the Roman Curia. Holy see is the sovereign state having
population of about 1000 persons residing therein since they are the office bearers in the
land territory of about half a kilometer known as Vatican Vatican is represented at United
Nation as an Observer and it cannot vote. Generally the state is called by the name of
Vatican City with the incumbent of Holy See as its Head.

40. What is meant by Recognition of States?

Ans. : The Institute of International Law has defined recognition as “a free act by which
one or more States acknowledge the existence of a defined territory of a human society,
politically organised, independent of any other existing State, and capable of observing the
obligations of international law, and by which they manifest therefore their intention to
consider it a member of the international community".

41. Name the Theories of Recognition.

Ans. : There are two main theories of
(1) The Constitutive Theory, and recognition:
(2) The Declaratory or Evidential Theory.

42. What is Constitutive Theory?

Ans.: According to this theory, it is the act of recognition alone, which creates statehood,
or which clothes a new Government with any authority or status in the international sphere.
It is the process by which a political community acquires personality in international law
by becoming a member of the family of nations.

43. When can the Recognition of government be withdrawn?

Ans.: As a rule, recognition de jure, once given, is irrevocable. But it must be noted that
recognition is a declaration on the part of the recognizing State, that a foreign community
or authority is in the possession of the necessary qualifications of statehood or of
governmental capacity, as the case may be. These qualifications may not necessarily
endure for all time. A State may lose its independence. A Government may cease to be
effective. In such cases, withdrawal of recognition is both permissible and indicated. The
Institute of International Law, while laying down, in a resolution adopted in 1936, that
recognition de jure of a State is irrevocable, qualified that rule by adding that such
recognition ceases to have effect in case of the disappearance of one of the essential
elements of statehood.

44. What is meant by 'de jure recognition'?

Ans.: Recognition de facto is in essence provisional and liable to be withdrawn, if the
absent requirements of recognition fail to materialise. But it must be noted that, in other
respects, it cannot be distinguished from de jure recognition, as all the legislative and other
internal measures of the de facto recognised authority are treated before the Courts of the
recognising State on the same footing as those of a State or Government recognised de jure.
Similarly, even a de facto recognised State or Government enjoys immunity from the
jurisdiction of the Court of the recognising State.

45. Compare De Facto & De Jure Recognition.

Ans.: Though generally the consequences of recognition de jure and recognition de facto
are the same, there are some material differences in the consequences of these two kinds
of recognition:
(1) Only the de jure recognised State or Government can claim to receive property situated
in the territory of the recognising State.
2) Only the de jure recognised State can represent the old State for purposes of State
succession.
(3) De facto recognition can be withdrawn on several grounds other than those normally
justifying a withdrawal of de jure recognition.
4) There is another point of difference indicated by some cases of British practice that
representation of entities recognized only de facto are not entitled to full diplomatic
immunities and privileges. However, this view is not accepted by all jurists.

46. What is the purpose of De Facto Recognition?

Ans. : In the words of Oppenheim, "de facto recognition" of a State or Government takes
place when, in the view of the recognising State, the new authority, although actually
independent and wielding effective power in the territory under its control, has not acquired
sufficient stability, or does not, as yet, offer prospects of complying with other
requirements or ability to fulfil international obligations.

47. Territorial sovereignty

Ans. : The concept of territorial sovereignty signifies the fact that, within a particular
territory, jurisdiction is exercised by the State over persons and property, to the exclusion
of other States.

48. The Territorial Sovereignty is indivisible' Explain.

Ans. : It is said that territorial sovereignty is indivisible. However, this statement must be
accepted subject to certain modifications. As already pointed out, it is possible that two or
more powers may exercise sovereignty over the same territory, as in the case of a
condominium. Again, a lease of territories is not unknown to international law. In such
cases, the lessee State exercises temporary sovereignty, while the lessor State possesses
sovereignty in reversion.

49. What are the various modes of acquisition of territorial sovereignty? Ans. :
International law generally recognises five modes of acquiring territorial sovereignty by a
State. They are:
(1) Occupation
(3) Accretion
(2) Annexation
(4) Cession
(5) Prescription

50. What is Territory of a State?

Ans. : The territory of a State consists in the first place of the land within its
boundaries, and if the State is one with a sea-coast, certain waters which are within or
adjacent to its land boundaries.

51. What is a Land Locked State?

Ans.: A state whose boundaries are entirely surrounded by land is called land locked state.
Art. 124(1) of the Convention on the law of the sea of 1982 defines land-locked state as "a
state which has no sea-coast".

52. How are Boundaries classified?

Ans. : Boundaries may be classified either as natural boundaries or artificial boundaries.
Natural boundaries consist of mountains, rivers, sea-shore, forests, etc., where these divide
the territory of two or more States. Artificial boundaries consist either of signs erected for
the purpose of parallel of longitude or latitude. When a river constitutes the boundary of
two States, it will be difficult to draw the boundaryl ine. In the case of a non-navigable
river, the boundary line generally runs down the middle of the river. This line is known as
the "median line". In the case of navigable rivers, the boundary line generally runs through
the middle line of the deepest navigable Channel, otherwise known as-the Thalweg. If the
boundary is constituted by lakes or land-locked seas, the boundary line depends on the
nature of the lake or the sea concerned.

53. What are Territorial Waters?

Ans. : Territorial waters consist of the waters contained in a certain zone or belt called the
maritime belt, which surrounds a State and thus includes part of the water in some of its
bays, gulfs and straits.

54. Distinguish between National and Territorial Waters.

Ans. : National waters and territorial waters differ in three important ways:
(1) In territorial waters, foreign States can claim for their ships a certain right of passage,
whereas in national waters, no such right exists.
(2) In matters of jurisdiction, the municipal laws of certain States draw a distinction
between the two.
(3) The measurement of territorial waters will be from a base line where waters of the gulf
or bay cease to be national.

55. What are National Rivers?

Ans.: A river which lies wholly within the boundaries of one and the same State is known
as a national river. There is no rule of international law which grants a foreign State the
right of admission for their pubic or private vessels to navigation on national rivers. In the
absence of a treaty, every State can exclude foreign vessels from its national rivers, or
admit them conditionally.

56. What are Boundary Rivers?

Ans. : Rivers which separate two different States from each other are known as boundary
rivers. In the case of boundary rivers, the riparian States can regulate navigation on such
part of these rivers as they own. They can exclude vessels of non riparian States, unless
there is a special treaty to the contrary.
57. What are Non National Rivers?
Ans.: Rivers which run through several States are described as non- national rivers. Such
rivers are owned by more than one State. Each State owns that part of the river which runs
through its territory. The right of the riparian States to exclude vessels of the non-riparian
States in the case of the non-national rivers is similar to their rights in the case of boundary
rivers.

58. What are International Rivers?

Ans. : International rivers are those rivers which are navigable from the open sea, and at
the same time either separate, or pass through several States between their sources and their
mouths. Though these rivers belong to the territories of the different States concerned, yet
they are named International rivers.

59. What are the characteristics of Maritime Belt or Territorial Sea?

Ans. : The following are the characteristics of the maritime belt
(1) The littoral State is the supreme authority within the belt. It has sovereign territorial
jurisdiction over it.
(ii) The merchant ships of foreign States have the right of innocent passage in the maritime
belt. The passage is innocent so long as a ship does not use the territorial sea for committing
any acts prejudicial to the security of the coastal State or contrary to the rules of
international law.
(iii) Even the foreign warships have a right of innocent passage through the maritime belt
in time of peace.
(iv) The littoral State may reserve cabotage for its own subjects.
(v) It may reserve the fisheries within the belt for its own subjects.

60. What is Contiguous Zone?

Ans. : The doctrine of contiguous zone is closely connected with the concept of territorial
sea or maritime belt in international law. States which felt that the three mile territorial sea
did not provide adequate safeguards to the specific interests of the coastal State (in
particular to its revenue and health regulations have claimed jurisdiction and control over
some additional "contiguous zone", in which limited powers of control could be exercised.
61. What is Continental Shelf?
Ans. : The continental shelf is the submerged belt of the sea contiguous to a continental
land-mass, and formed in such a manner as to be really an extension of or appurtenant to
this land-mass, but not situated at a greater depth beneath the sea level than six hundred
feet. During recent years, the States have claimed the exclusive control of the resources of
such continental shelf. The Geneva Convention defines the "Continental Shelf" as follows:
The term "continental shelf” is used as referring
(a) to the seabed and subsoil of the submarine areas adjacent to the coast, but outside the
area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth
of the superjacent waters admits of the exploitation of the natural resources of the said
areas;
(b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.

62. What is Territorial Sea or Maritime Belt?

Ans.: Though the littoral State has jurisdiction over the maritime belt, yet it is an
established principle of international law that the ships of non littoral States have a right of
“ inoffensive passage” through the waters of the maritime belt.
According to the Convention on the Territorial Sea and Contiguous Zone of 1958, the
passage is inoffensive so long as it is not prejudicial to the peace, good order or security of
the coastal State. The right of innocent passage is also enjoyed by Government vessels,
including warships as well as merchant ships. The right includes stopping and anchoring,
but only when they are incidental to ordinary navigation or are rendered necessary by force
majeure or by distress.

63. What is meant by High Seas or Open Sea?

Ans.: According to Oppenheim, "the open sea, or the high seas is the coherent body of salt
water all over the greater part of the globe, with the exception of the maritime belt and the
territorial straits, gulfs, and bays, which are parts of the sea, but not parts of the open sea.”
Therefore, the open sea may be defined as all parts of the sea which are not:
(1) the Territorial Sea; or
(2) internal Waters
64. What are the rights of the freedom of the Open Sea?
Ans. : Although in ancient times, and the first half of the Middle Ages, navigation on the
open sea was free to everybody, in the latter half of the Middle Ages, some maritime States
began to claim their sovereignty over parts of the open sea. For several hundred years, such
claims were asserted. It was Grotius who, for the first time, attacked this concept of
maritime sovereignty. He contended that the sea cannot be State property, because no State
could really take into possession through occupation such sea, and that consequently, the
sea is by nature free from the sovereignty for any State. Grotius was severely criticized by
many authors of different nations. But gradually, other writers followed Grotius and the
concept of open sea acquired great support. Besides, as Hall has pointed out, the principle
of the freedom of the open sea began to develop with the mutual and obvious interests of
the maritime nations. The freedom of the open sea was seen to correspond to the general
interests of all States.

65. What is the significance of the concept of Open Sea?

Ans. : The concept of the freedom of the open sea signifies the following:
(1) The open sea is not, and never can be, under the sovereignty of any State whatever.
(2) No State has, as a rule, a right to exercise its legislation, administration, jurisdiction, or
police power over parts of the open sea.
(3) No State has a right to acquire parts of the open sea through occupation.
(4) There is absolute freedom of navigation on the high seas for vessels of all nations,
whether merchant men or wareships.
(5) No State may exercise jurisdiction over ships within the open sea not bearing its flag
(6) A State may exercise jurisdiction over a ship sailing under its flag.

66. What are the Limitation of the freedom of Open Sea?

Ans. : Limitations of the freedom of open sea is as follows:
1. When there is a grave suspicion that a foreign vessel is a source of imminent danger to
the sovereignty or security of that State, in the interests of its protection, the coastal State
may exercise jurisdiction over foreign ships, even when they are in the open sea.
2. Certain international conventions might confer rights on the States to exercise
jurisdiction on the high seas. 3. During times of war, a belligerent State has a general right
to search ships of neutral countries to prevent the carriage of contraband.

67. What is the Right to Hot Pursuit?

Ans. : When a foreign vessel infringes the laws and regulations of a coastal State while in
the territorial waters of such State, such State may pursue and arrest the foreign ship even
on the high seas. This right is known as the right of "Hot pursuit".

68. What is Ozone Depletion?

Ans. : Ozone layer prevent the penetration of harmful UVB wavelength and ultra violet
light that passes through the earth's atmosphere. Exposure to such rays increases the
problem of skin cancer, sunburns, cataracts (eye problems) and it even affects the flora and
fauna of the planet. The Montreal protocol bans the production of ozone depleting
chemicals such as carbon tetrachloride and trichloroethane. 16th September is observed
and voted by the United Nations General Assembly as "World Ozone Day” since on that
day the Montreal Protocol was signed in the year 1987. The chlorofluorocarbons are
released in the atmosphere due to increased use of fire extinguishers, coolant, refrigerators,
aerosol cans etc. if the ozone layer is not protected, mankind would suffer from diseases
which would affect the next generations too.

69. What is 'Nationality'? di

Ans. : According to Starke, nationality is the status of membership of the collectivity of
individuals whose acts, decisions and policy are vouchsafed through the legal concept of
the State representing those individuals.
Nationality, as defined by Oppenheim, is the quality of the individual of being a subject of
a certain State, and therefore, its citizen. It is a continuing relationship between the
sovereign State and the citizen".
As per article 15 of the Universal Declaration of Human Rights of 1948 nationality is
termed as "everyone has the right to a nationality" treating it as a basic human right.

70. How is Nationality defined?

Ans.: The determination of nationality falls within the province of the municipal law of
each State and it is not the concern of international law. Each State determi for itself, and
according to its own constitution and law, what classes of persons become its nationals.
Therefore, naturally, there are several variations in the rules of different States regarding
determination of nationality. But at the same time, some common principles can be culled
out of the rules of different States on this point
Generally, States determine nationality on the basis of the following principles:
a) On the basis of the nationality of the parents at the time of the birth of the person (jus
sanguinis);
(b) By the State of the territory of his birth
c) By a combination of these principles.

71. How is Nationality acquired?

Ans. : Nationality may be acquired in the following three ways:
(1) By birth, according to jus soli, i.e., the territory of one's birth, or according to the
nationality of the parents at birth, or according to both.
(2) By naturalisation:
a) by marriage
b) by legitimation
(c) by official grant on application to the State authority.
(3) By conquest or cession, the inhabitants of these areas may acquire the nationality of the
new acquiring State.

72. How is Nationality lost?

Ans. : Nationality may be lost in the following ways:
(1) By release – Some States grant their citizen the right to ask to be released from
nationality; or, such release may be granted by virtue of declaring that one has acquired a
foreign nationality.
(2) By deprivation – For example, according to the municipal law of some States, the fact
that a citizen enters into foreign civil or military services without permission of his
sovereign, deprives him of his nationality. The legislations of many States recognise
numerous grounds of deprivation of nationality.
(3) By expiration - Some States have provided by legislation that citizenship
expires in case of those citizens who have left the country and stayed abroad for a certain
length of time.
4) By renunciation — In the case of double nationality of children, the municipal laws of
certain States give them a right, on coming of age, to declare whether they wish to cease to
be a citizen of a State.
In such circumstances, they cease to be citizens of the State other than that of their choice.

73. What is an 'asylum'?

Ans. : The word Asylum is derived from a latin word "asylia" which means inviolable
place. The asylum ensures that shelter and protection are provided by a state to a person
who is denied the same in his own country /nation. Generally asylum is granted to a person
when a free and fair trial is not expected in his own country and therefore the said person
should not be extradited. Asylum protects the political offenders against the violent and
disorderly action of irresponsible sections of the population”. Sometimes asylum can be
viewed as an unfriendly act.

74. There are how many types of Asylums?

Ans. : Asylum are of two kinds :
(i) territorial, and
(ii) extra-territorial

75. What does the European Convention on Human Rights Concerned with?
Ans. : 1. The European Convention imposes a binding commitment to provide effective
domestic remedies in regard to a number of rights specified in the Universal Declaration
of Rights.
2. It contains precise and elaborate definition of such rights, along with the exceptions to,
and restrictions on, each of such rights.
3. It provides for the establishment of a European Commission of Human Rights to
investigate and report on violations of human rights, at the instance of the State parties, or
if the State against which complaint is made has so accepted upon the petition of any
person, non-governmental organisation or group of individuals within that State's
jurisdiction.

76. How does the Environmental Pollution occur?

Ans. : Technical and industrial advancement has resulted in the pollution of the air and the
water around man, and there has been a large scale degradation of rural land. The
pesticides, insecticides and the other biocides have terribly upset the balance of nature. The
pollution of the environment is mostly due to the following factors:
(a) Accelerated population growth;
(b) Increased urbanisation;
(c) The expansion and growth of new technology.

77. What are the Important Decisions/ Resolutions/ recommendations of the Stockholm
Conference 1972?
Ans. : The important decisions, resolutions and recommendations of the Conference can
be summed up as follows:
(1) A resolution was passed in the plenary session, condemning nuclear weapons tests,
especially those carried out in the atmosphere, and calling on States intending to carry out
such tests to refrain from doing so, as these might lead to further contamination of the
environment.
(2) A unanimous recommendation was made that a World Environment Day be observed
on June 5 each year.
(3) A so-called "Action Plan" for the protection and enhancement of the Sam environment
was formulated. This Plan was in effect a grouping, in a more or less logical fashion, of all
recommendations for international action adopted by the Conference. The re-arrangement
involved three parts, an "Earthwatch" programme to identify problems of international
significance so as to warn against impending environmental crises; recommendations
concerning “environment management"
(4) The Conference also adopted a "Declaration of the United Nations Conference of
Human Environment." An optimistic view prevails that this Declaration can very well be
compared to the Universal Declaration of Human Rights of 1948; and as the latter
Declaration paved the way for international legal guarantee to human rights in certain
areas, the Environment Declaration may also be productive. However, it should be noted
that at present it is a non-mandatory Declaration.

78. What do you mean by a Treaty?

Ans. : A treaty may be defined as an agreement whereby two or more States establish, or
seek to establish, a relationship between themselves governed by international law. A treaty
is thus an agreement of a contractual character between States or between States and
International Organisations, creating legal rights and obligations between the parties.

79. What is the difference between Contract and treaties?

Ans. : Though treaties create international agreements and can be compared to contracts,
treaties which are agreements between States, or between States and International
Institutions must be distinguished from the contracts which a State might enter into with
individuals or corporations. The essence of a treaty is that it is an agreement between
international persons, though it may create contractual obligations. But in the case of
contracts, at least one of the parties is not an international person. He is an ordinary legal
person according to the relevant law.
Though treaties create international agreements and can be compared to contracts, treaties
which are agreements between States, or between States and International Institutions must
be distinguished from the contracts a State might enter into with individuals or
corporations. The essence of a treaty is that it is an agreement between international
persons, though it may create contractual obligations. But in the case of contracts, at least
one of the parties is not an international person. He is an ordinary legal person according
to the concerned law.

80. How are Treaties classified?

Ans. : Different writers classify treaties on different bases.
Oppenheim classifies treaties into law-making treaties and treaties for any other purpose.
MaNair classifies treaties under the following heads:
(a) Treaties having the character of conveyance.
(b) Treaties having the character of contracts.
(c) Law-making treaties, which are further subdivided into:
(i) Treaties creating constitutional law, and
(ii) Treaties creating other conventions.
(d) Treaties akin to charters of incorporations, like the Universal Postal Union. Starke
classifies treaties accordingly to the form in which they are concluded, namely:
1 Treaties between heads of States: In this form, the treaty is concluded between sovereigns
or heads of States.
2. Treaties between Governments: This form is usually used for technical or non-political
agreements.
3. Treaties between States.
4. Treaties between Ministers: A Treaty may be negotiated and signed between the
Ministers of the respective countries concerned.
5. Treaties between particular governmental departments.
6. Treaties between the actual political heads of two or more countries

81. What do you understand by Bilateral Treaties?

Ans.: A bilateral treaty is a treaty between two States, whereas a multilateral treaty is one
entered into by many States. Somewhere in-between are plurilateral treaties where the
number of States entering into such a Treaty is more than two, but not a great many as in
the case of multilateral treaties.

82. What do you mean by Plurilateral Treaty?

Ans. : A plurilateral treaty is a special type of a multilateral treaty. It is a one made between
a limited number of States which have a particular interest in the subject-matter of that
treaty. One example of such a treaty is the Antarctic Treaty, which came into force in 1961
and currently has 49 signatory States.

83. What is the difference between Multilateral Treaty and Plurilateral Treaty?
Ans. : The main difference between a multilateral treaty and one which is plurilateral is
that due to the limited nature of the plurilateral treaty, the treaty cannot work without the
full co-operation of all the parties. For this reason, reservations are not allowed in
plurilateral treaties unless all the other parties to the treaty give their consent.

84. What are the various steps involved towards the conclusion of a treaty?
Ans. : The steps involved towards the conclusion of a treaty are -
1. Accrediting of representatives
2. Negotiation
3. Signature
4. Ratification
5. Accession and adhesion
6. Coming into force
7. Registration and publication
8. Application and enforcement.

85. Explain the term ' Reservation' in a treaty?

Ans. : Starke defines a reservation "as a formal declaration by a State made without signing,
ratifying or acceding to a treaty, whereby as a condition of itswillingness to become a party
to the treaty, it stipulates for exemption from one or more provisions of the treaty or the
modification of these provisions, or the interpretation of the provisions in a particular
manner". This privilege of the parties of a treaty to make reservation is regarded as an
incident of the sovereignty and equality of States. It is based on this principle that if a
particular State cannot accept the whole of the treaty, it is preferable that it might become
a party to the treaty, at least in a limited manner, and thereby a treaty may be accepted or
approved unanimously.

86. What is JUS COGENS?

Ans. : Treaties conflicting with a pre-emptory norm of general International Law is called
Jus cogens.

87. What is meant by 'rebus sic stantibus'?

Ans. : The meaning of the doctrine of rebus sic stantibus is that if by an unforeseen change
of circumstances, an obligation provided for in the treaty should imperil the existence or
vital development of one of the States, such a State should have a right to demand to be
released from the obligation concerned. It is the basic and implied condition of every treaty.
This doctrine can be compared to the doctrine of frustration known to the law of contracts
of several countries. Starke observes that "The Rebus sic stantibus doctrine is one of the
enigmas of international law".

88. What is PactaSuntServanda?

Ans. : PactaSuntServanda means that the states are found to fulfill in good faith the
obligations assumed by them under the treaty. As per Article 13 of International Law
Commission every state has the obligation to carry out the duties and obligations in good
faith as per the terms of the treaty. The said idea is also incorporated in Article 26 of Vienna
Convention. It serves a very important function since there is international co-operation.
The International Court of justice admitted its effectiveness in the case of 'Nuclear tests'
(Australia v. France) by mentioning that principle of good faith is one of the basic
principles governing the creation and performance of legal obligations'.

89. What are the methods of peaceful Settlement of disputes in International Law?
Ans. : International disputes can be settled by the following methods:
(a) Negotiation
(b) Good offices
(c) Mediation
(d) Conciliation
(e) Enquiry
(f) Arbitration
(g) Judicial settlement
(h) Settlement under the auspices of the United Nations Organisation.

90. What are the methods of forceful settlement?

Ans. : The following are the principal forcible modes of settlement:
(a) Retorsion
(b) Reprisals
(c) Pacific Blockade
(d) Intervention
(E) war

91. What do you mean by Mediation?

Ans. : In the case of mediation, the third party, either at its own initiative or at the request
of the disputing parties, plays an active role and participates in the negotiations. Such
mediating party or the party which tenders good offices may be a State or an International
Organ or even an individual. There are no definite rules of procedure of international law
regarding the conduct of either good offices or mediation.

92. What are the Peaceful means of Settlement?

Ans. : The various modes of Peaceful Settlement are —
1. Negotiation
2. Good Offices and Mediation
3. Conciliation
4. Arbitration.

93. What is International labour Organisation?

Ans. : The International Labour Organisation (ILO) was created under the Treaty of
Versailles, 1919. Subsequently, the section dealing with the Organisation was
disassociated with the treaty, and it was reformulated as the constitution of the Labour
Organisation. The constitution was amended in 1945 and 1946, and now it is a specialized
agency associated with the United Nations. The International Organisation is represented
by organs of Governments, employers and employees. The Organisation has three main
organs:
(a) The International Labour Conference.
(b) The Governing Body.
(c) The International Labour Office.

94. What are the objects of ILO?

Ans. : The main object of the Organisation is to promote international co operation in the
sphere of industry and labour, so that minimum as well as uniform labour standards could
be maintained throughout the world. In the absence of such an Organisation, economic
competition between States might result in the deterioration of the condition of the
labourers. The Organisation has accordingly directed its efforts to bring the legislation and
practice of each State into line with the idea of social justice and the treatment of labour
according to enlightened modern conception.

95. What is UNESCO?

Ans. : The United Nations Educational, Scientific and Cultural Organisation (the
UNESCO) concerns itself with the field of education, cultural knowledge and science. The
objects of the UNESCO have been described in these words: "The purpose of the
organization is to contribute to peace and security by promoting collaboration among
nations, through education, science and cultural effort, to further universal respect for
justice, for the rule of law and for the human rights and fundamental freedoms which are
affirmed for the peoples of the world, without distinction of race, sex, language or religion
by this Charter of the United Nations." The UNESCO prepares plans and programmes for
the progress of education, science and culture throughout the world with the co-operation
of the various states.

96. What is International Court of Justice?

Ans. : International court of justice can be termed as the successor to the Permanent Court
of International justice. The main objective of the court is to settle international disputes or
situations as per the principles of justice and international law. And secondly, to it also acts
as an advisory body to opine on legal questions that are putforth by any institution or
organization recognized and authorized by the Charter of the United Nations. The court
consists of 15 judges which requires that two judges cannot be the nationals of the same
state. The judges of this court are required to be independent. The court has its president
and Vice-President. However, the International Court of justice has been criticized on the
ground that it is partial and the judges are not adequately qualified on legalissues like
religion, culture of the disputing states. The Court is sometimes also criticized for unfair
appointment of judges. The International Court of Justice at the Hague is a very important
organ of the United Nations. It has succeeded the Permanent Court of International Justice
created under the covenant of the League of Nations. This is the principal judicial organ of
the United Nations. The rules concerning the constitution, jurisdiction and procedure of the
Court are set out in a Statute annexed to the Charter. All Members of the United Nations
are ipso facto parties to the Statute, but even nonmember States may become parties to it,
on conditions to be laid down in each case by the United Nations General Assembly, upon
there commendation made by the Security Council.

PIL/ HR

Principle of Jus Cognes (Pg. 45, Q. 18)

A treaty in conflict with the general principle of international law can be declared invalid. Article
53 provides for the invalidity of a treaty on the ground of Jus Cognes. Thus, on all the grounds a
treaty can be declared invalid as per Vienna Convention a treaty can be declared word on the
ground of coercion or conflict with Jus Cognes an invalid treaty have no force of law.

Recognition of States. Essentials and Theory (pg. 23, Q. 11)

The term state has different meaning in constitutional law and that international law. Under
international law state means a territory occupied by the Society of men where the members of
society are governed by the government , and search government has capacity to enter into
relations with other entities.
Montevideo convention on the rights of duties of state, 1993 laid down certain qualification for an
entity to be called as state
Permanent population
The term population means people people are those individuals who live together as a community.
The people may belong to different races, Chris or cultures. The population maybe permanent
riches the people must be linked to a specific territory on a permanent basis, who can be said to be
inhabitants of that territory. A territory in which the population exists in a haphazard way is not
the state . The state should have a permanent population feature

A defined territory
And entity to be called as state it must have a defined territory . The size of a territory does not
matter a directory can be either small or large. Even though Montevideo convention laid down the
territory should be a defined territory define directory does not mean that the territory of the state
must be certain. At present there is a dispute between the members of the state over the extent of
border of the state but they are still defined as state

government
the entity having population and territory must be governed by a government . The state should
have a government . If the state does not have a government it shall not be called as state senior
all the activities of the state are carried out by the government clear it is not necessary that the
government should be an effective government.

Capacity to enter into relations with other state

In order to be called as the state under international law and entity must have the capacity to enter
into relations with other states. If the state is not capable of entering into relations with other states
then it shall not be called as a state.

Types of recognition of state (pg 30, Q. 13)

A formal acknowledgement made by the existing state known by international law of the
international personality of the new state is called as a recognition of state. Thus, By recognizing
the state the existing states recognize the international personality of new state .
When recognition is granted to a state it establish that
State possesses all the attributes of statehood required under international law
State is an international person having rights and duties imposed under international more at
present the rules are not fixed as to which state should be given
Recognition.

Theories
Constitutive theory
In this theory state by acquiring all the attributes of statehood does not become a state. In order to
acquire international personality of a state state must be recognised by other existing states . Does
it can be said that with the grant of recognition by existing states the international personality of
this state comes into existence . This theory was propounded by Anzilotti and Holland. According
to this theory an act of recognition is very important for the international personality of new state.
Declaratory theory according to this theory as soon as all the attributes of a statehood is acquired
by the state , a state comes into existence on an international platform which means it gets the
international personality. A state exist in fact when it possesses all the attributes of a state.
Recognition by the existing state is the evidence of the fact of existent of state. Thus, an act of
recognition is just a declaration made by the existing state that a new state assesses all the attributes
of statehood. Recognition is necessary only because it enables the state to enter into relations with
other states the effect of recognition is that it helps in creating the relationship between states .
This theory is better than constitutive theory.

Right to Development (pg. 88)

Non intervention, non use of force

Corfu Channel Case (pg 29

Rights of workers and Children

Peaceful Settlement (pg 47 – 51

A dispute between 2 persons can arise on either legalor political grounds. Legal disputes may arise
on the grounds recognize by international court . Other disputes may be political disputes
international law provides for the settlement of legal disputes.
Settlement of legal disputes are of 2 types
Amicable settlement of dispute also known as specific means of settlement of disputes and new
line compulsive settlement of disputes also known as cosives means of settlement of disputes.

Amicable means
this is a peaceful means of settlement of dispute. Peaceful means of settlement of dispute is one of
the principle of United Nations recognize by the charter of United Nations . The principle cast a
duty on the state to settle the dispute by peaceful means. This principle has the status of customary
rule of international law.

Peaceful means of settlement can be divided into 2 category

Extrajudicial peaceful means of settlement of dispute

Negotiations in line when a dispute between 2 states is settled by discussion or by adjusting the
differences that lead to the dispute the procedure of settlement of dispute between disputant state
is called as negotiation. The dispute between 2 state can be negotiated by the following:
Heads of the state , or
By their credited representative, or
By a diplomatic agent .
Any correspondence made between the state is also included under negotiation
Examples:
1974 boundary dispute between India and Sri Lanka was settled by negotiation
In 1977 the farakka barrage issue between India and Bangladesh was settled by Negotiation

Mediation
In case of a settlement of old dispute by mediation, 3rd party participants in the discussion with
the states having dispute. It gives its own suggestion to settle the dispute. It is necessary that the
mediator should be neutral and impartial. Mediator should meet the states, discuss the disputes
with them, and should try to reach a compromise between them . If the settlement is reached
between the states the mediator can sign on the Treaty of settlement reached between the states.
Example
In 1966 a dispute between India and Pakistan , Soviet Premier Kosygym was the mediator. The
dispute is settled by Tashkent Agreement.

Good Office
To settle a dispute between 2 states by negotiation, a meeting is arranged by the 3rd party this act
of 3rd party is called good office or when the act of the 3rd party is such that a peaceful solution
can be reached between the disputants states then the act of the 3rd party is called good office. In
case of settlement of dispute by good office, 3rd party does not participate in the meeting . No
suggestions are given by 3rd party to settle the dispute, a good office of the 3rd party only brings
the party to dispute together . The only duty of 3rd party is to offer to bring the parties to dispute
together for the purpose of settling the dispute.
Example
In 1947 to settle the dispute between Netherlands and Republic of Indonesia, Security Council
offered the good office

Conciliation
Conciliation is a process where a dispute is referred to a Commission or committee for the purpose
of determining the basis of dispute between the states . After finding out the facts and Commission
or the committee has to submit the report together with the proposals for settlement of dispute .
But the proposals made by the Commission for settling the disputes are not binding upon the
disputed state. The conciliation Commission can be either permanent or ad hoc. The composition,
terms of formation and procedure of conciliation, Commission are determined by the treaties in
which provision for settlement of dispute by conciliation is incorporated.
Example
In 1956 Greeco - Italian conciliation Commission was appointed for the settlement of dispute.

Inquiry
For a certain in the facts of the dispute Commission appointed which consists of impartial
investigators. This process is called inquiry. The duty of the Commission is only to a certain the
facts of the dispute . Inquiries conducted for judicial purpose to determine the question of law or
question of law and fact Igor hey convention 1899 gave rise to the procedure of inquiry for
settlement of disputes , inquiry can be conducted by making a special agreement between the
parties to the dispute
Example
In Nogger bank incident , the process of inquiry was used.

By United Nations
One of the principles of the United nation is the peaceful settlement of dispute. The General
Assembly and the Security Council have powers to settle the dispute by peaceful means

Member of united nation when the matter is brought before General Assembly, a discussion is
made on the dispute the General Assembly then makes the recommendation to the disputed parties,
to take measures for the peaceful adjustment of the situation which is likely to disturb the general
welfare of regulations among nations . No specific means of settlement of dispute is imposed on
General Assembly. The General Assembly has a power to settle the dispute by peaceful means.
Security Council
The Security Council is responsible for maintenance of international peace and security the
Security Council has powers to settle the dispute which are likely to endangered international
peace and security. Security Council can settle the dispute by following ways
to all the parties to settle the dispute amicably
By investigating the dispute
By making recommendation to adapt appropriate procedures or methods for adjustment on issues
relating to dispute
By recommending the terms of settlement of dispute

Judicial means of settlement of dispute:

Under judicial means of settlement of disputes, the disputes are settled by a legal process, as per
the national law, by a 3" party who should be impartial. The outcome of the settlement of dispute
by decimal means is binding on the disputant parties. Under judicial settlement, the disputes are
settled by the national Tribunal. According to the rules of international law, International Court of
Justice is an international tribunal.

Settlement of disputes by judicial modes are of two types -- I) Arbitration, and

2) Settlement of dispute, by International Court of Justice.

1) Arbitration:
As per international law commission attaining it is settlement of disputes between the states, in
which an award is made on the basis of law, which shall be binding on the parties. Which has
voluntarily undertaken the submission of dispute to arbitration. Thus, a process in which a dispute
is referred by the parties to dispute to a tribunal or to a body or persons, to determine the dispute
legally so that the dispute can be settled between them, is called as arbitration. To submit a dispute
to arbitration, consent of the parties should be obtained. Such consent can be obtained either before
a dispute arose or after a dispute has arisen between the parties. The state can give consent by a
specific agreement, after dispute has arisen. Such special agreement is known as compromise. The
state can give consent to submit the dispute to arbitration before the dispute arises by concluding
the general arbitration treaty. In such treaties, parties undertake to submit all or any class of
disputes that may arise in future, to arbitration. Example:
To refer the Kutch dispute to Arbitral Tribunal, special agreement was executed between India and
Pakistan. The law and procedure to be applied by the arbitrators is laid down in the treaties of
arbitration itself.

The decision i.e. the award passed by the arbitrators is binding on the parties to the dispute. Thus,
the dispute can be settled by the arbitration by referring the dispute to arbitrators.

2) Settlement of dispute by International Court of Justice:

Before the establishment of International Court of Justice, the disputes were settled by Permanent
Court of Justice. With the dissolution of the League of Nations the permanent court of justice was
dissolved. After the dissolution of permanent court of justice, international court of justice was
established. The international court of justice is permanent court which is governed by a statute.
Before the dispute can be submitted to the international court of justice for settlement, the consent
of the parties is required. When the parties to dispute refer the dispute to international court of
justice for settlement of dispute. The international court of justice adjudicate upon the dispute and
the judgment is given by international court of justice. The judgment of the international court of
justice is binding upon the parties to dispute.

Thus, the dispute can be settled by the international court of justice. These are the peaceful means
of settlement of disputes.

a) American Convention on Human Rights.

Answer: The American Convention on Human Rights (also known as the "Pact of San Jose”) is an
international human rights instrument. It was adopted by the nations of the America in the meeting
held at San Jose, Costa Rica, in 1969. it came into force after the eleventh instrument of ratification
(that of Grenada) was deposited on 18th July, 1978.

The bodies responsible for overseeing compliance with the Convention are, the Inter-American
Commission on Human Rights and the Inter-American Court of Human Rights, both of which are
organs the Organization of American States (OAS). According to its Preamble, the purpose of the
Convention is "to consolidate in this hemisphere, within the framework of democratic institutions,
a system of personal liberty and social justice based on respect for the essential rights of man”.
Right to Development
which proclaims the following Declaration on the Right to Development

Article 1.
a) The right to development is an inalienable human right. Every human person is entitled Article
I- participate in, contribute to, and enjoy economic, social, cultural and political development

b) The right to development also implies the full realization of the right of peoples to w
determination which includes the exercise of the inalienable right to full sovereignty their natural
wealth and resources

Articlw 2
a) The human person is the central subject of development and beneficiary of the rights over
development.
b) All human beings have a responsibility for development, individually and collectively
c) States have the right and the duty to formulate appropriate national development policy

Article 3 -
a) The realization of the right to development requires full respect for the principles States have
the primary responsibility for the realization of the right to development b)States have the duty to
as well as to encourage the observance and realization of the human international law.

Article 4-
a)States have the duty to facilitating the full realization of the right to development. b) Sustained
action through effective international co-operation is essential to foster comprehensive
development. foster their

Article 5
States shall take resolute steps to eliminate the massive and flagrant violations of the human rights.

Article 6
a) All states should co-operate in promoting observance of all human rights and fundamental
freedoms for all without any distinction as to race, sex, language or religion. b) All human rights
and fundamental freedoms are indivisible and interdependent, All States must Promote and protect
of civil, political, economic, social and cultural rights.
c) States should take steps to eliminate obstacles to development

Article 7
All States should promote comprehensive development.

Article 8
a) States should undertake eradicating all social injustices. b) States should encourage full
realization of all human rights.

Article 9
a) All the aspects of the right to development are invisible and interdependent. b) Nothing in the
present Declaration shall be construed aimed at the violation of the rights set forth in the UDHR
and in the International Covenants on Human Rights.

Article 10
Steps should be taken to ensure the full exercise and progressive enhancement of development.

Corfu Channel Case (1949)

Corfu Channel (Merits) Case (1949) The Corfu Channel constitutes a frontier between Albania
and Greece. The British warships through the same channel were seriously damaged by mines in
the Albania territorial waters. This done on 22 October, 1946, not only caused damage to the
warships, but also resulted in the of and injuries to several persons. In November, 1946, the Units
of the British Navy, without the the Government of Albania, conducted mine sweeping operations
in the channel. A dispute between Great Britain and Albania. The matter was taken before the
Security Council. Then, the was referred to the International Court of Justice. The preliminary
question arising in the matter is under Case No. 14, below. Apart from this preliminary question,
two questions were raised case:

Was Albania responsible under the International Law for the damage caused and loss of human
life explosions in its territorial waters? If so, was Albania liable to pay compensation to Great
Britain? Had Great Britain violated the sovereignty of Albania, by carrying on the mine sweeping
operations the territorial waters of Albania? held that, carrying on the mine sweeping operations
in the territorial waters of Albania, without consent, the United Kingdom had violated the
sovereignty of Albania and thereby was guilty of The International Court of Justice stated this case

(a) It was "generally well-recognised principle that every State under an obligation not to
knowingly its territory be used for acts contrary the rights of other (b) Warships are, times
of peace, entitled right inoffensive passage through such parts of the allow territorial sea
as form an international highway and cannot be prohibited from exercising this right. (c)
The decisive criterion of strait highway was its geographical situation, connecting two parts
of the open sea and the fact of its use for international navigation and not whether there
considerable volume of traffic passing through it.

Fisheries Case
Human Rights

Im and Law

1) Anglo Iranian Oil Co. (Jurisdic Facts On April, 1933, the Iranian Cover printed a concession to
the An

62) period of 60 years. All difFerences related to the Concession were to be sulite Arators, one
each to be painted by the unpany and by the Goverment a Arbitrators jointly If there wa ant n the
point, either party could apply to World Court to make the appointment Similarly, if one of the
paties failed to make an ap other party could apply to the President of the World Court to appoint
a Sole Arbitrator W. r agreed that the performance of the agreement would be based on

faith

Metal

principles of good will and good whilst on reasonable interpretation of the agreement, and the
Government of tran greed diat the Concession "shall not be annulled and the terms shall not be
altered either by general and special Legislation in the future, or by administrative measures or
any other Acts whatever of the Executive
Authority"

2) Anglo-Norwegian Fisheries Case (1951)

Facts: A decree of the Norwegian Government fisheries zone, by reference to base line drawn
through 48 selected points on the main land. The sea was promulgated in 1935, purporting enclosed
by these lines and the adjoining seaward belt of water to a width of four miles was to constitute
the one. The result of the decree was to include large stretches of sea, including coastal indentation
which normally would have been open sea in which other States would have been entitled Great
Britain challenged the validity of the decree on the ground that it was contrary to international law.
The dispute was referred to the International Court of Justice. The International court of Justice
gave its decision in 1951, holding that the method followed in the decree and the actual lines
themselves did not to define its

Significance: The decision or be International Court of Justice in this case in considered a landmark
in the development of law regarding territorial waters. The International Court of Justice held in
this case (a) That if a littoral State defines its territorial waters by reference to base lines comprising
of points on the main land and the islands drawing of the lines is reasonable, just and not arbitrary
(b). That such base lines need not be drawn parallel to the low water mark on the coast, so long as
the general direction of the shore is followed.

(c ) That the waters of bays and gulfs may be deemed part of the territorial waters, notwithstanding
that the distance between the head lands is greater than ten miles Apart from this principle
regarding the baseline, the case has other far-reaching consequences

(1) The International Court of Justice held, in this case, that the maritime belt is not so much a
limited artificial extension of a State's territorial domain, but is a contiguous area wherein, for
economic security and geographical reasons, the coastal State is entitled to exercise exclusive
sovereign rights. According to this decision, a State might take even its economic interest into
consideration while defining the maritime belt.

(ii)Another contribution of this case is that, by implication, it defined the seas or the open sea as
all parts of the sea which are not
(ii) (a) The territorial sea, or (b) Internal waters Further, this case shows that the International Court
of Justice is free to develop international law, without being tied by the weight of practice and
authority. But the decision has been criticised by many of the failure of the International Court of
Justice to pay proper regard to the weight of practice and judicial precedence,

Custom as a source of International Law

Custom is the oldest and the original source of international law. The modern international oil is
based on custom. A major part of international law consists of customary rules. Customary rules
are practiced by many states. Through ages, and as such, they had become a habit. Custom is code
of conduct to be followed in a community. It had an accent of the community for the binding nature
of custom. The custom has a binding nature as it is followed by states over a sufficient duration of
time. Custom is different from usage. Usage does not have a legal obligation, but, custom has a
binding effect on states. Custom consists of those habits which are binding upon the states. Thus,
when a habit or usage occupies the obligatory nature upon the state, it becomes a custom. The
violation of any usage is not illegal, but violation of any customary law, is regarded as illegal act.

How custom is formed ?

When a general practice is followed consistently by the states and acquires a range of legal
obligation, it gives rise to customary international law. Customary rules are not formed by itself
when a state initiates a practice, it shows that it is bound by that practice, it is deemed that the
customary rules as evolved. A customary rule emerges when it can be shown by sufficient evidence
that the rule has been accepted by the states and is legally binding upon the other party.

Case Law:

Asylum Case:

The International Court of Justice held that, if a party relies on custom, then such party must prove
that the custom has become binding on the other party. or practice must have the following
elements:

In order to become an international custom, a custom

a) Duration;

b) Continuity;

c) Generality.

a) Duration:

When a particular usage is practiced for a long duration between the states, it can become a custom.
The international custom may be observed for a long duration by the states in their intercourse
with each othe and must have legal obligation. How much long duration is required for a usage to
become a custon cannot be determined. An immemorable practice is not necessary for a usage to
become a custom. usage can become an international custom even in a short time. It all depends
upon the circumstances the case and the nature of the usage which is involved.

Examples:

i) Practice relating to continental self has become custom within a short period.
Sometimes, even afte long period of time, a practice cannot become a custom.
ii) The diplomatic asylum is practiced by some states over a prolonged period, but it has not
become custom acceptability of a custom by the states. If a custom is widely accepted by the
states, then passage of a long There is no fix period of time for a usage to transform into a
custom. The time period period of time is not necessary. That, duration is an important element
for the transformation of the usage or practice into custom.

b) Consistency: It is an important element of an international custom. A practice must be

followed consistently in or become an international custom. The international custom must be
followed uniformly and by the states. The uniformity in following of custom need not be
complete, it can also be at substance uniformity. If there is a substantial inconsistency in the
following of a practice, it shall not become custom. But, a minor inconsistency shall not affect
the transformation of a practice into a custom.

Case Law:
Fisheries Case - In this case, the Court refused to accept the 10 miles rule, because, the practice
was not followed consistently. The consistency in the following practice can very according to
the subject matter of the rule in dispute Thus, a practice must be followed consistently in order
to become a custom.

c) Generality:

For a usage to become a custom, it should be followed by most members of states of

international community. When usage is followed generally by all the states, it becomes a
custom. Consent of all the

states is not required for the formation of customary rule. It is sufficient, if the rule is followed
generally by all the states.

Case Law:

Fisheries Case -

In this case, the Court said that, the expression “generally accepted" means, a customary rule
must be

accepted generally by all the states. If any usage is practiced only by few states, then such
usage cannot

become a custom. Thus, for a usage to become a custom, it is essential that it is accepted
generally by all the states. Custom or customary rules are of three types, they are --

1) General customary rules;

2) Particular customary rule; and 3) Exceptional customary rules.

 1) General customary rules:

These are those customary rules which are binding on all the states. General customary rules
are no applicable to the state who has refused to recognize them. Examples: 1) Rules of the
treaties; 2) Rules of diplomatic intercourse; and 3) Law of sea are the genera customary rules.

2) Particular customary rules:

They are also known as local customary rules. When a practice is developed between the two
states, give rise to particular customary rules. These rules are binding only upon those states.

3) Exceptional customary rules:

A customary rules which are binding on the whole on a regional community of state in relation to
on few subjects of international law, are called as exceptional customary rules. These rules are an
excep for the benefit of one or more states. This is known as custom or customary rules of
international law.