STUDY MATERIAL FOR INTERNAL

CIRCULATION
COURSE & SEMESTER: 5 YEAR B.A., LL.B. VII SEMESTER

SUBJECT: PUBLIC INTERNATIONAL LAW

UNIT-IV

Prepared By
Ms. Sahana Florence
Asst. Prof.
BMSCL

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 UNIT-IV
States and Individual: Extradition, Asylum and Nationality; the agents of
international business; diplomatic envoys; consuls and other representatives; the
law and practice as to treaties.

EXTRADITION
Extradition is the conventional process in which a person is surrendered by one state to another
on the basis of a treaty, or comity, or some bilateral arrangement between the two sovereign
states. This request of extradition made by a sovereign state is usually initiated at first place
because the individual demanded by the state is charged with a crime but not tried, or tried and
convicted yet the accused escaped and reached the territory of the other sovereign state.

This process is also known as Rendition, which is handing over or surrendering of a convicted
person or accused from one state jurisdiction to another where the accused is alleged to have
committed a crime.

The term extradition has been derived from two Latin words “ex” meaning from/out of and
“tradition” means handing over.

Extradition involves two states

• Territorial state: where the accused is found

• Requesting state: where crime was committed

According to Oppenhiem “it is the delivery of an accused or a convicted individual to the state
where he is accused of by the state on whose territory he happed to be for the time”.

In Black’s Law Dictionary, extradition has been defined as “The surrender by one state or
Country to another of an individual accused or convicted of an offense outside its own territory
and within the territorial jurisdiction of the other, which, being competent to try and punish
him, demands the surrender.” Hence it can be summarised that Extradition is the act of sending
a person from one jurisdiction to another where he/she is accused of committing a crime and
is being demanded to get them tried as per the legal procedure in the sovereign demanding such
person.

According to Starke-The term extradition denotes the process whereby under the treaty or upon
a basis of reciprocity one state surrenders to another state at its request a person accused or
convicted of a criminal offence committed against the laws of the requesting state, such
requesting state is competent to try the alleged offender. According to Grotius-It is the duty of

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each state to punish the criminals or to return them to the states where they have committed the
crime.

The purpose of extradition is to make sure that criminals are surrendered from one country to
another which leads to mutual cooperation between states in control, prevention, and
suppression of international and domestic criminality. At present in this era of globalization,
where certain groups and individuals are conducting trade and business by various means and
channels at an unprecedented manner, most of the crimes have become cross-border in nature
& thus the obligation on part of the states to extradite has gained enough significance and value
over the years.

In the Supreme Court case of Abu Salem Abdul Qayoom Ansari vs. State of Maharashtra
[(2011) 11 SCC 214], Justice Sathasivam was of the view that with the tremendous increase in
the international transport and communication, extradition has taken prominence since the
emergence of the 21st century.

Purpose of Extradition

The purpose of extradition is to prevent crimes and to punish the criminals who have escaped
from their punishment and started to reside in another country. As we know it would be easier
for the country to punish the offender where he had committed the offence and it would be easy
to gather evidence against him for that particular offence even if the country is unable to punish
him due to technicalities of law or lack of jurisdiction then he can be taken back to home
country through the process of extradition. Thus, the object of the process of extradition is to
prevent and reduce the crimes in the international field. Thus the role of extradition is to prevent
crimes and punish criminals as it is the interest of all countries to punish the criminals and
prevent the crimes because the country in which a person of criminal character resides, it is in
the interest of such country to ensure extradition of such a person but it also depends on bilateral
treaty and upon the principle of reciprocity but where there is no treaty or agreement then the
country can request the other country where the offender is residing to extradite the fugitive or
offender and it is in the interest of security and law and order of such country to extradite the
accused.

In view of the increasing crimes in the international field in recent years, the importance and
prevalence of the extradition have increased. In recent years, the provisions relating to
extradition find mention in international treaties. The universal recognition of human rights has
enhanced the prevalence and importance of extradition. International cooperation is most
essential in cases of extradition because there is hardly a country which has an extradition treaty
with all the other countries of the world.

PURPOSE OF EXTRADITION
1. Suppression of crime
2. Warning to criminals, that they cannot escape punishment
3. Safeguard interest of territorial state
4. Reciprocity. A state which is requested to surrender the criminal today may have to request
for extradition of a criminal on some future date.

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 5. It’s a step towards achievement of international co-operation in solving international
problems
6. Requesting state is in better position to try offender because evidence is easily available
there.

RULES OF EXTRADITION/ SOME ESSENTIAL CONDITIONS OF EXTRADITION

1. Extradition treaties-
the first and the foremost important condition of extradition is the existence of an
extradition treaty between the territorial state and the requesting state, some states such
as US, Belgium and Netherlands require a treaty as an absolute pre condition. The strict
requirement of an extradition treaty may be regarded as the most obvious obstacle to
international co-operation in suppression of crimes. It is therefore, desirable that states
conclude extradition treaties with as many states as possible to suppress the crime.
2. Extradition of political offender-
it is a customary international law that political offenders are not extradited. In other
words, they are granted asylum by the territorial state. During the days of monarchs,
extradition of political offenders was very common but the practice underwent a
complete change with the beginning of French revolution. The French constitution
under Art 120 made a provision for granting asylum to those foreigners who exiled
from their home country for the cause of liberty. At present, non-extradition of political
offenders has become a general rule of international law and therefore it is one of the
exceptions of extradition.

Basis of non-extradition of political offender

i. Humanity
ii. Fear of not being treated fairly
iii. Political offenders are not dangerous for the territorial state
iv. The object of the political offender to take shelter in another country is not the same as
those of the ordinary criminals.
Exceptions of political offenders
i. Genocide convention
ii. Convention on apartheid
iii. Crimes against humanity.
iv. Hijacking, torture or hostage
v. There is no protection for former government officials guilty of human rights abuses.

What is a political offence?

One of the most complicated questions which arises is, the meaning of the term “political
offence”. In few cases, judges did not consider it necessary to lay down an exhaustive definition
of the term political offence. Hence, they did not make any attempt to define the term.

Re Castioni case:

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Castioni killed a Switzerland govt. officer and escaped to England. Lord Denman held, “for an
offence, to be political it must at least be shown that
i. Act was done in furtherance of, or
ii. With the intention of assistance of, or
iii. An overt act
In the course of acting in political matter or a political rising, or a dispute between two parties
in a state as to which is to have the government and it should be clear that the man was acting
as one of the many engaged in acts of violence of a political character, political struggle or
disturbance, during which two or more parties in the state are contending each other to impose
government. This view which was also observed in Re Meunier case is very narrow. Sometimes
a group of people may force the government to do or not to do any particular act and in their
course of persuasion they may commit crimes that are also political in nature even though their
object is not to overthrow the government.

Ex Parte Kolczynski Case:

In this case the definition of political offence was widened. Political offence must always be
considered according to the circumstances existing at the time when they have to be considered.
The crime need not be committed by an organised party to overthrow the government.
Membership of a political party is not required and if any ordinary crime is committed in the
course of committing any offence against the state, that would be considered political because
of its close association with the politics of the state.

3. Doctrine of double criminality-

Double criminality is a requirement in the extradition law of many countries. It states that a
suspect can be extradited from one country to stand trial for breaking a second country's laws
only when a similar law exists in the extraditing country. Example: if Country A has no laws
against blasphemy, double criminality could prevent a suspect being extradited from Country
A to face blasphemy charges in another country. In order to ensure that a crime is recognized
in both states, a list of extraditable offences is attached in the extradition laws of some states.
The rule of double criminality has put a state into difficult situation when it has to request
another state for extradition in respect of those offences which do not find place in the list of
crimes embodied in a treaty. In order to overcome the above difficulty it is desirable that instead
of laying down the names of various crimes specifically in the treaty. Some general criterion
should be adopted.

4. Rule of specialty-
according to this principle, a fugitive maybe tried by the requesting state only for that offence
for which he has been extradited. In other words, the requesting state is under a duty not to try
or punish the fugitive criminal for any other offence than that for which he has been extradited.
The rule has been made to provide safeguard to the fugitives against fraudulent extradition. In
US vs. Rauscher, the accused was extradited on the charge of murder, but he was tired and
convicted in US on a minor charge of causing cruel and unusual punishment on a member of
the crew. He made an appeal before the supreme court of the US which quashed the conviction
and ordered the release of the prisoner on the ground that unless otherwise provided for the

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treaty, the prisoner could only be charged with the offence for which he was extradited unless
he was given reasonable time to return to the country which surrendered him.

5. Prima facie evidence-

there should be a prima facie evidence of the guilt of the accused. Before a person is extradited,
the territorial state must satisfy itself that is a prima facie evidence against the accused for
which extradition is demanded. The purpose of laying down the rule of prima facie evidence
is to check fraudulent extradition.

6. Time-barred crimes-
a fugitive criminal shall not be surrendered, if he has tried and has served sentence for the
offence committed in the territorial state. Thus extradition is not granted if the offence for
which extradition has been made has become time-barred.

7. Extradition of own nationals-

in many cases a person after committing a crime in a foreign country flees back to his own
country. Whether a state would extradite such persons to a where crime has been committed is
a controversial point and practice differs on it. Extradition or non-extradition of its own
nationals depends upon the wording of the extradition treaties.

8. Military offenders- extradition treaties generally exclude military offences.

ASYLUM
The word asylum is Latin and is derived from a Greek word ‘Asylia’ which means inviolable
place. The term is referred to those cases where the territorial state declines to surrender a
person to the requesting state, and provides shelter and protection in its own territory. By
asylum we mean shelter and active protection extended to a political refugee from another State
by a State which admits him on his request. Thus, asylum involves two elements. Firstly,
shelter, which is more than a temporary refuge and secondly, a degree of active protection on
the part of the authorities in control of the territory of asylum. A person enjoying asylum may
be referred to as an asylee.

A state has a right to grant asylum to a person on the principle that it has sovereign right to
control over the individuals found on its territory. This right is exclusive in the sense that other
states are excluded to exercise the jurisdiction over the same territory. The draft convention on
territorial asylum adopted by the general assembly in 1974 has recognized under article 1 that
the grant of asylum is a sovereign right of a state. Although states have a right to grant asylum
to a person found on its territory, the right presently is not absolute. The present trend is that
states are under a duty not to grant asylum to those who have planned, facilitated or committed
terrorist acts.

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 If extradition for a crime is included in a treaty then states cannot grant asylum for it. The right
grant asylum is not absolute, the Security Council by adopting resolution on September 28th
2001 held that “all states shall deny safe haven to those who finance, plan, support or commit
terrorist acts.

BASIS OF ASYLUM

A state has right to grant asylum because of the principle that it has a sovereign right to control
over individuals found within its territory and other states cannot interfere within a states
jurisdiction.

RIGHT TO ASYLUM

According to Article 14 of the Universal Declaration of Human Rights: “Every one has a right
to seek and enjoy in other countries asylum from prosecution”. It may however, be noted that
the Declaration simply recognises the right to asylum, it does not grant right to receive asylum.
A state which grants asylum might be necessary to place him under surveillance, or even to
intern him at some place to make his entry subject to condition. For it is the duty of every state
to prevent

REASONS FOR GRANTING ASYLUM

A state may grant asylum to a person because of many reasons:

i. It is granted to save a person from the jurisdiction of the local authorities. It is feared
that he would not get fair trail, if extradited, because of the difference in views as to
his political or religious activities.
ii. It may be granted on extra-legal grounds or to as on humanitarian grounds. The ICJ in
the Corfu channel case stated that “asylum may be granted on humanitarian grounds in
order to protect political offenders against the violent and disorderly actions of
irresponsible sections of the population.
iii. National security also plays an important part in granting asylum. The offender who
may be a rebel today may become the ruler in future date. In such a case relationship
would be strained if he is extradited.

TYPES OF ASYLUM

A state may grant asylum to a person in two ways. They are:

1) Territorial asylum-
when asylum is granted by a state on its territory, it is called Territorial asylum. The right
to grant asylum by a state to a person on its own territory flows from the fact that every
state exercises territorial sovereignty over all persons, on its territory, whether they are its
subjects or aliens. A state has a right to admit or expel any person found in its territory.
The grant of territorial asylum therefore depends upon the discretion of a state which is not
under a legal obligation to grant asylum to a fugitive.

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

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 NATIONALITY
Introduction

The concept of nationality is important since it determines the benefits to which person may be
entitled and the obligation such as conscription which they must perform. The problem is that
there is no coherent accepted definition of nationality in international law and only confliction
description under the different municipal laws of states, not only that but the rights and duties
attendant upon nationality vary from state to state.

By the virtue of nationality, a person becomes entitled to a series of rights ranging from
obtaining a valid passport enabling travel abroad to being able to vote, and nationals are also
entitled to the protection of their state and to various benefits prescribed under international
law.

Nationality is a legal relationship between an individual person and a state. Nationality affords
the state jurisdiction over the person and affords the person the protection of the state. What
these rights and duties are varies from state to state.

By custom and international conventions, it is the right of each state to determine who its
nationals are. Such determinations are part of nationality law. In some cases, determinations of
nationality are also governed by public international law—for example, by treaties on
statelessness and the European Convention on Nationality.

Nationality differs technically and legally from citizenship, which is a different legal
relationship between a person and a country. The noun national can include both citizens and
non-citizens. The most common distinguishing feature of citizenship is that citizens have the
right to participate in the political life of the state, such as by voting or standing for election.
However, in most modern countries all nationals are citizens of the state, and full citizens are
always nationals of the state.

Definitions of Nationality

Charles G. Fenwick - Nationality may be defined as a bond which unites a person to a given
State, which constitutes his membership in the particular State, which gives them a claim to
the protection of that state and which subjects him to the obligations created by the laws of that
State.

J.G Starke - Nationality may be defined as the legal status of membership of the collectively
of individuals whose acts, decisions and policy are vouchsafed through the legal concept of the
State representing those individuals.

NATIONALITY AND CITIZENSHIP

Nationality and Citizenship are often considered to be synonymous with each other. But the
term nationality differs from citizenship. Nationality has reference to the jural relationship
which may arise from consideration under International Law. On the other hand, citizenship

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has reference to the jural relationship under municipal law. In other words, nationality
determines the civil rights of a person, natural or artificial, particularly with reference to the
International law, whereas citizenship is intimately connected with civil rights under the
municipal law. Hence all citizens are nationals of a particular state, but al nationals may not be
citizens of the State. In other words, citizens are those persons who have full political rights as
distinguished from nationals, who may enjoy full political rights and are still domiciled in that
country.

A case which illustrates the point on one of the many incidences of nationality is that of
Nottebohm. The International Court of Justice (ICJ) has dealt with Nottebohm cases which
have some relevance to the question of the nationality of ships.

Nottebohm case concerned the question of whether Liechtenstein could exercise diplomatic
Protection on behalf of one of its nationals, Mr. Nottebohm, in respect of certain acts committed
by Guatemala against him which were alleged to be breaches of international law.

In brief Nottebohm had been born in Germany in 1881. He possessed German nationality, but
from1905 had spent much of his life in Guatemala which he had made the headquarters of his
business activities. He obtained Liechtenstein nationality through naturalization in 1939. His
connections with that country were slight, being limited to a few visits to a brother who lived
there. At the outset the Court made it clear that it was not concerned with the law of nationality
in general, but only with the question of whether Liechtenstein could exercise diplomatic
protection in respect of Nottebohm vis à vis Guatemala.

The Court noted that while under international law it was up to each State to lay down rules
governing the grant of its nationality, a State could not claim that, The rules it has thus laid
down are entitled to recognition by another state unless it has acted in conformity with this
general aim of making the legal bond of nationality accord with the individual’s genuine
connection with the State which assumes the defense of its citizens by means of protection as
against other States.

The Court said in this case that nationality is a legal bond having as its basis a social fact of
attachment, a genuine connection of existence, interests and sentiments, together with the
existence of reciprocal rights and duties. The Court found on the facts that there was insufficient
connection between Nottebohm and Liechtenstein for the latter to be able to exercise
diplomatic protection on Nottebohm’s behalf vis a vis Guatemala.

Modes of Acquiring Citizenship

According to Oppenheim there are five modes of acquiring of Nationality are as follows

1) By Birth - The first and the most important mode of acquiring nationality is by birth.
Nationality is conferred to a person by many States on the basis of birth. All those persons take
birth within territorial limit of a State acquire the nationality of the State. This principle is called
jus soli. United States, U.K and many other States of Latin American follow the principle of
jus soli. Section 3 of the Indian Citizenship Act 1955 had provided nationality on the basis of
birth.

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2) By Naturalization - The second mode of acquiring a Nationality is by naturalization. A
person requires nationality at birth. However, his nationality may later on change. When the
nationality of a person changes subsequently, and he acquires the nationality of some other
State, the process of acquisition is known as naturalization. A person may acquire nationality
through naturalization in different ways. There are six ways which are as follows –

(1) through marriage. Example wife assuming her husband's nationality.

(2) Legitimation,

(3) Option.

(4) Acquisition of domicile,

(5) Appointment as Government official

(6) Grant on the application of the state. Adoption of the child by parents who are nationals of
the other States also entitled the children to acquire the nationality of his parents. Section 6 of
Indian Citizenship Act 1955 provides that a person make acquire citizenship by naturalization
upon fulfillment of certain conditions.

3) By Resumption – The third mode of acquiring Nationality is by resumption. Sometimes a

person may lose his nationality because of certain reasons. Subsequently, He may resume,
recover his original nationality after fulfilling certain conditions. Section 20 of the Citizenship
rules 1956 provides a procedure for restoration of nationality.

4) By Subjugation – The fourth mode of acquiring nationality is subjugation. Section 7 of the

Indian Citizenship Act 1955 Lays down that if any territory becomes a part of India those
persons from such territory shall automatically become Citizen of India.

5) By Cession – The fifth mode of acquiring Nationality is Cession. When a part of the
territory of a state is ceded to another State. All Nationals of the former acquires the nationality
of the latter State.

6) By Option – The Sixth mode of acquiring Nationality is by Option. When a state is

proportioned into two or more States, the nationals of the former state have an option to become
the nationals of any of the successor States. The same principle applies in the case of exchange
of territory.

7) By Registration – A person may acquire the nationality of a State through Registration. The
process of registration may be different from one State to another depending upon the laws of
that State. It takes place when a person becomes the subject of a state to which he was before
an alien.

MODES OF LOSS OF NATIONALITY

According to Oppenheim, there are five Modes of losing Nationality are as follows:

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 1) By Release: Some States, such as Germany., Law provides that the citizens may lose the
nationality by release. In the loss of nationality by release it is necessary to submit an
application for the same. If the Application is accepted, the person concerned is released from
the nationality of the State concerned.

2) Deprivation: Certain States have framed some municipal laws the breach of which by its
nationals results in the deprivation of their nationality. Under the American laws, service in the
armed forces of a foreign State also results in deprivation of citizenship.

3) Expiration: In certain States, on account of legislation citizenship expires due to long stay
abroad. A naturalist American citizen loses his nationality by having s continuance residence
for three years in the territory of a foreign state of which he was formerly a national or in which
the place of his birth is situated.

4) Renunciation: A person may also renounce his nationality. The need for renunciation arises
when a person acquires the nationality of more than one State. In such a condition he has to
make a choice as to of which country he will remain national. Finally, he has to renounce the
nationality of one State. In the case of double nationality of children, the municipal laws of
certain States like Great Britain give them a right on coming of age to declare whether they
wish to cease to be citizens of one State. The British nationality Act of 1948 permits such a
child to make a declaration of the renunciation of citizenship of the United Kingdom, but the
registration of such a declaration may be withheld by the Secretary of State if made during any
war in which the United Kingdom be engaged.

5) Substitution: Some States provide for the substitution of nationality. According to this
principle, a person may get nationality of a state in place of the nationality of another State.
This is called nationality by substitution whereby he loses nationality of state and acquires the
nationality of another State. The British nationality Act 1948 does not automatically entail loss
of British nationality on the naturalization of a British subject in a Foreign State. The United
States Nationality Act of 1952, however, entails loss of American nationality on the voluntary
naturalization of an American National in a foreign country. In certain States, law provides that
if the national of that State without seeking permission of the government obtains employment
in another State, then he may be deprived of his nationality.

STATELESSNESS
Definition, Types and Causes

Art 1 of the Convention relating to the Status of Stateless Persons, 1954 defines a stateless
person as one “who is not considered as a national by any State under the operation of its law.”
This definition is helpfully concise and to the point, but at the same time is also very limited
and somewhat legalistic, referring to a specific group of people known as de jure stateless, not
encompassing the de facto stateless persons who have a nationality but don’t enjoy the
protection of any Government. It has been thought useful to approach the notion of
statelessness in its broader sense, to denote all those people who lack what has become known

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as an ‘effective nationality’, and who are consequently unable to enjoy the rights that are
associated with nationality. In fact, in 1949, the UN expanded the definition of statelessness to
include de facto stateless persons, or those who, “having left the country of which they were
nationals, no longer enjoy the protection and assistance of their national authorities, either
because these authorities refuse to grant them assistance and protection, or because they
themselves renounce the assistance and protection of the countries of which they are nationals.”

While considering the causes for statelessness, it is important to make a distinction between
statelessness which is original or absolute and that which is relative or subsequent because
different factors underlie both these types of statelessness. Original statelessness, from its very
definition can arise either due to faulty administrative practices, the failure or refusal of a state
to ensure the registration of births or because of conflicts in the nationality laws of different
countries, particularly when one adheres to the principle of jus sanguinis (nationality on the
basis of descent) and the other adheres to the principle of jus soli (nationality on the basis of
the place of birth). States have the exclusive power to make laws concerning nationality and,
by definition, all States try to enumerate which persons have nationality and which persons do
not. Although it is the fundamental right of every child to acquire a nationality, strict adherence
to jus sanguinis, or nationality based upon descent can be a cause for statelessness. Jus
sanguinis, when applied without modifications based on residency or other factors, confers on
children the status of their parents. This may mean that statelessness is inherited, passed from
generation to generation, regardless of place of birth, residency, or other factors reflecting the
genuine effective link. Another possible situation wherein statelessness may arise is when a
child is born in a strictly jus sanguinis country whose parents are nationals of a State adhering
to the jus soli principle.

However, States do not make this determination in precisely the same way or in consultation
with other States. Hence, instances continue to arise in which individuals not granted
nationality by any State are leading to the phenomenon of statelessness. These are all cases of
individual statelessness which generally arise from a lack of coordination of national legislation
with regard to the basic principles governing acquisition and loss of nationality or the laws
relating to marriage. Marriage may also be a cause of statelessness, where the nationality law
of one State imposes loss of nationality upon marriage to an alien, with no provision for
automatic acquisition of the alien’s nationality in his country, upon marriage.

In all such cases statelessness is generally involuntary for the individual concerned. Yet
statelessness may also occur voluntarily, e.g., the legislation of a given state may allow for
unilateral renunciation of its nationality or may entitle an individual to a release without having
regard to his future nationality. This provides the transition for looking into the next category
of statelessness i.e., relative or subsequent statelessness for all cases of voluntary statelessness
are necessarily subsequent. However, all subsequent or relative statelessness need not be
voluntary and most of it generally arises due to conflicts between or within States, transfer of
territory or as a consequence of legislative or executive action prompted by political tensions,
varying ethnic and racial notions of national identity and social or economic challenges.

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Under most of the above circumstances, a mass of people are rendered statelessness. Mass
statelessness may result due to territorial changes encouraging the Predecessor State to
denationalize the populations concerned, even though the Successor State may not be willing
to confer its own nationality, sometimes even expelling parts of the population concerned or
through a State’s legislative or executive action. Instances of the latter kind may be found in
the Soviet decree of mass denationalization of December 15, 1921, or in the national-socialist
legislation to deprive German Jews of their nationality, or the Czechoslovak legislation to
denationalize persons of German origin. Governments may also amend their nationality laws
and denationalize whole sections of society in order to punish or marginalize them or to
facilitate their exclusion from the state’s territory.

Instances of the former kind could be said to have occurred due to the emergence of newly
independent States after World War I as well as due to the process of decolonization or
disintegration of a federal polity leaving thousands or even millions of people stateless or with
a disputed claim to nationality. The dissolution of multinational or multiethnic federal states
and the formation of new political entities and the statelessness arising there from is associated
more with developed regions, especially the ex-Communist Bloc, where States are undergoing
an “unmixing of peoples,” bringing with it levels of insecurity and uncertain citizenship status
to substantial numbers of people.

A third factor responsible for mass statelessness is ‘war’, leading to forced displacement and
loss of nationality by a large number of people. Such persons might by virtue of belonging to
a particular racial, ethnic or religious group be subject to negative State action of expulsion or
deprivation of nationality. Statelessness in such kinds of situation is inevitable and of the most
shocking kind for it deprives a vast section of the human population of its inherent right to
nationality, in violation of its basic human rights without any reason or logic, reflecting clear
callousness and gross discrimination by the State concerned.

It can be seen that whereas some cases of statelessness arise as oversights or conflicts in legal
approaches, there are others which are the result of discrimination or deliberate denial of human
rights. It is these deliberate attempts at rendering people stateless that generally cause mass
statelessness and are the most problematic for not only is the impact which is felt, the
maximum, it is also discriminatory, being deliberately targeted towards a particular ethnic,
racial or religious minority.

While considering the various options available for eliminating or at least reducing the problem
of statelessness, it is often debated whether nationality questions fall within the exclusive
domain of each State, touching on the sensitive area of State sovereignty or can be the subject
of regulation by international norms and standards. In 1923, the Permanent Court of
International Justice decided that in the absence of treaty obligations, each State has the right
to decide who its nationals are. The court exercised its general obligation to presume that the
sovereign nation state is not limited unless there is specific evidence of its express or implied
consent. Major twentieth-century problems of statelessness, dual nationality and refugees
developed because of this principle. At the Sixth (Legal) Committee of the General Assembly,
while some delegates opined that the draft Convention on the Reduction of Future Statelessness

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and another on the Elimination of Future Statelessness prepared by the International Law
Commission of the United Nations encroached on the domestic jurisdiction of States which
alone were competent to regulate questions of nationality, several other delegates seemed to
think that though nationality questions fall within the domestic jurisdiction of each State,
stateless is a problem which transcended national boundaries and hence it was plausible to enter
into a Convention whereby States could voluntarily enter into international obligations in this
field, entailing amendment of their national legislation to resolve problems of conflict with
corresponding nationality legislation in other countries. In the context of contemporary
developments, the broad powers enjoyed by the States in the area of conferral and regulation
of nationality cannot be deemed to be within their sole jurisdiction and are circumscribed by
the obligation to ensure the full protection of human rights.

Difficulties for Stateless Persons

The consequences of the lack of ‘effective nationality’ are the most worrisome and adverse for
the stateless person, the reason being that nationality is the principal link between an individual
and international law, a bond establishing mutual rights and duties between them. It is a
fundamental element of human security and apart from providing people with a sense of
belonging and identity; it entitles the individual to the protection of the state and provides a
legal basis for the exercise of many civil and political rights.

Stateless persons have often been referred to as “anomalies”, falling outside legal and social
constructs. This legal vacuum created by lack of nationality, in the social context, translates
into a lack of secure identity, belonging, and sense of place. Frequently, stateless persons
cannot work, own property, access education or health care, public services, travel, register
births, marriages or deaths, participate in the political process, seek national protection or have
access to the judicial system. Positive developments concerning the rights of resident
nonnationals are not always applied to stateless persons, in particular to those who cannot
establish a legal status in any country. In other words, organization of the entire legal, social
and economic life of the individual residing in a foreign country depends upon his possession
of a nationality and the lack, loss or deprivation of it can lead to adverse consequences for the
individual.

The major impact felt by stateless persons due to absence of the crucial link of nationality is
that such a person cannot claim the benefits arising from international law for it implies lack
of the possibility of diplomatic protection or of international claims being presented in respect
of harm suffered by him at the hands of another State. In situations of statelessness , an
individual is considered to be a mere object of international law for whom no subject of
international law is internationally responsible – thus, being a notable twentieth-century
contribution to the category of res nullius. This, in effect places him in an abnormal and inferior
position which reduces his social value and destroys his own self-confidence.

Whereas, earlier, a stateless person could lead a more or less normal existence, without his
legal disability causing him any serious difficulties, since the First World War, in Europe, the
situation has completely changed. With the re-establishment of the passport and visa system,

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the increased control over foreigners and the regulations governing all aspects of social life, a
stateless person finds himself in constant contact with the authorities, thereby making him
conscious of his handicapped status.

International Legal Regime Governing Statelessness

It is clear that in cases of statelessness, the inherent right to a nationality as outlined in the
Universal Declaration of Human Rights, 1948 has been rendered void. The challenge
essentially is in determining which nationality a person may have a right to. The aspiration of
Article 15 was given concrete form by way of two international instruments concerning
statelessness, the 1954 Convention relating to the Status of Stateless Persons and the 1961
Convention on the Reduction of Statelessness. These Conventions form a part of the legal
regime governing statelessness.

The Convention Relating to the Status of Stateless Persons, 1954

The 1954 Convention relating to the Status of Stateless Persons is the primary international
instrument adapted to date, to regulate and improve the legal status of stateless persons. It
contains provisions regarding stateless persons’ rights and obligations pertaining to their legal
status in the country of residence. The primary aim is to set out the legal framework to ensure
that a minimum standard of protection is available to persons who are stateless but who cannot
demonstrate a well-founded fear of persecution and who are not, therefore, covered by the 1951
Convention relating to the Status of Refugees or its Protocol. In other words, the 1954
Convention outlines a legal framework for international protection in cases where national
protection is not available. While the Convention does serve the purpose of providing a legal
status and extending basic entitlements to the ‘stateless’, in practice, all it amounts to is a certain
limited degree of protection, even so in the area of diplomatic protection and does nothing to
solve the very problem of statelessness as such. The Convention places the State Parties under
no absolute obligation to naturalize a recognized stateless person.

DIPLOMATIC AGENTS
Diplomacy in international law means the methods by which states establish or maintain mutual
relations and carry out political or legal transactions based on their policies. Diplomatic agents
are the persons who reside in foreign countries as representatives of the state by whom they are
despatched. They provide an important link between the country that despatch them and the
country which they are accredited to.

The practice of sending and receiving diplomatic agents by states is followed since the ancient
times. But they were sent temporarily, the practice of sending diplomatic agents permanently
started from the 17th century. They were given rights, duties and privileges by the states which
were almost identical in nature. This led to the development of some customary rules of
international law. The congress of Vienna 1815 for the first time codified the customary rules
of international law. After the establishment of UN, the task of codifying the law relating to

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diplomatic agents was given to international law commission. The Vienna Convention on
diplomatic relations came into force on 24th April 1964. It codified a significant part of
customary international law relating to diplomatic relations and immunities.

FUNCTIONS OF DIPLOMATIC AGENTS

Vienna Convention U/A 3(1) lays down the various functions of diplomatic functions, which
are as follows:

1. Representation: Diplomatic Agents represent the state by which they are sent in the state
where they are accredited. Oppenheim says that, “Diplomat is the mouth piece of the head of
the state and its foreign minister for communication to be made to the state to which he is
accredited.”

2. Protection: Diplomatic Agents protect the interest of the sending state and also its nationals
within the limits permitted by municipal law.

3. Negotiation: This is the most important function, they negotiate on various aspects on behalf
of the sending state with the state to which they are accredited in order to maintain friendly
relationship between the two. They are required to communicate the outcome of negotiation to
the sending state from time to time.

4. Observation: They are required to observe those happing’s and events which may take place
in the state where they are accredited especially those which may have effect in the state by
which they are sent.

5. Promotion of friendly relation: They are required to promote friendly relation in the
sending state and receiving state. They also have a function to develop economic, cultural and
social relation between the two states.

Diplomatic Immunity

Diplomacy comprises of any means by which states establish or maintain mutual relations,
communicate with each other or carry out political or legal transactions. It involves the
exchange of permanent diplomatic missions between sates such that both the receiving and the
sending state have representatives.

BASIS OF DIPLOMATIC IMMUNITIES

1. Extra Territorial Theory: According to this theory, diplomatic Agents are deemed
not to be within the territorial jurisdiction of the state where they are accredited but to
be at all times within the jurisdiction of the sending state. This theory is also called as
Fictional Theory. This theory has been discarded by modern jurists, according to them
the basis of giving immunities is not that of extra territoriality – it is a fiction, thus it is
only of limited usefulness.
2. Representational Theory: According to this theory, the diplomatic agents are
regarded as personal representatives of the sovereign of the sending state, they therefore
are given the same degree of privileges which are given to the sovereign. However this

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 theory is subject to criticise in the sense that extension of immunities of the sovereign
to the diplomatic agents by no means is logical.
3. Functional Theory: According to this theory, immunities are given because of the
nature of their function. The duties which the diplomat are required to perform are in
many cases far from easy. They are allowed immunities from the league and other
processes of the state where they are accredited so that they perform their function
freely. It may be concluded that the basis of giving immunity is the combination of
representational theory as well as functional theory.

Rationale of privileges and immunities

The essence of diplomatic relations is to allow the exercise by the sending government, of state
functions, on the territory of receiving state by license of the latter. The explanation for this,
though not supported by the legal position, was that the diplomatic premises were
“exterritorial”, that is, they acquired the territorial jurisdiction of the sending state. However
the legal position is that the diplomat acts as an agent of a sovereign state which in this case is
the sending state.

IMMUNITIES AND PRIVILEGES

Vienna Convention of 1961 lays down the different immunities and privileges which are
granted to diplomatic agents. They are as follows:

1. Inviolability of Diplomatic Agent

i. Diplomatic Agents are inviolable: it is a principle which was recognized in International

Law way before the adoption of the 1961 Convention. Article 29 of the Convention lays down
that the person of a Diplomatic Agent shall be inviolable, he shall not be liable to any form of
arrest or detention. The receiving state shall treat him with due respect and take appropriate
steps to prevent any attach on his person freedom or dignity. However, this immunity is not
absolute, the receiving state may arrest or detain Diplomatic Agents in exceptional cases and
he must be sent on due time safely back home.

ii. Inviolability of the staff of mission: Immunities are also given to the staff of mission. Para
2 Article 27 of the Convention lays down regarding the immunities by stating that members of
administrative and technical staff together with the members of their families forming part of
their respective household shall if they are not nationals of or permanently resident in the
receiving state enjoy immunities.

iii.Inviolability of the family members: Article 37 states that the immunities and privileges
to the family members of the Diplomatic Agent having diplomatic ranks maybe given if firstly,
they are not nationals or permanent residents of the receiving state. Secondly, so long as they
form part of their household. The first restriction implies that even if wife or children of
diplomat happen to be nationals of receiving state, shall not enjoy the immunities. The second
restriction implies that those family members who are not living with the diplomat under the
same roof and are not dependent shall not be given immunities. Thus married children of
diplomat who come for sojourn with their parents cannot enjoy the immunities as they do not

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form the part of household. Divorced daughter of the diplomat shall be entitled as immunities
if she has been permanently staying with her parents.

1. Inviolability of Premises

Article 22 of the Vienna Convention states that the premises of the mission shall be inviolable.
Article 30 provides that the private residence of the Diplomatic Agent shall enjoy the same
inviolability and protection as the premises of the mission. The agents of the receiving state
may not enter it except with the consent of the head of the mission.

2. Immunity from local jurisdiction

Diplomatic Agents enjoy immunity from the jurisdiction of the local court.

i. Criminal Jurisdiction Article 31 of the Convention provides that, Diplomatic Agent

shall enjoy immunity from criminal jurisdiction of the receiving state. Thus the
receiving state has no right in any circumstances to prosecute and punish the
Diplomatic Agents. However this does not mean that the Diplomatic Agent has the
right to do whatever he likes, if he conspires against the receiving state he will be
immediately expelled, but no prosecution or punishment is possible.
ii. Civil & Administrative Jurisdiction No civil action of any kind as regards deaths
and the like can be brought against them in the civil courts of the receiving state.
However the convention specifies situation where immunity from civil and
administrative jurisdiction does not apply:
i. Private immovable property situated in the territory of receiving state unless
he holds it on behalf of the sending states
ii. Succession in which the Diplomatic Agent is involved as a private person
and not on behalf of the sending state.
iii. Any professional or commercial activity exercised outside his official
function.
3. Immunity from giving witness
Diplomatic Agents are immune from being presented as witness in civil, criminal, or
administrative court of the state to which they are accredited. He is also immune from
giving evidence before a commissioner sent to his house, however, he may appear before
the courts after waiving this immunity.
4. Immunity from tax and custom duty
Article 34 lays down that Diplomatic Agents shall be exempted from all dues and taxes,
personal or real, national, regional or municipal but they are not immune from paying
indirect tax and taxes and dues on private property, private immovable property situated in
the territory of the receiving state.
5. Immunity from inspection of personal baggage
Article 27 states that diplomatic bag shall not be opened or detained. The bag is used by
the diplomatic mission for sending letters or articles to the receiving state. However,
customs inspection can be conducted in the presence of the Diplomatic Agent or his agent
if there are serious grounds for suspecting that the articles are not for official use.

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6. Freedom of communication
Article 27 of the convention lays down that, Diplomatic Agents have freedom of
communication which includes the usage of courier and code messages.
7. Freedom of movement and travel
Article 26 provides that the Diplomatic Agents are free to move and travel in the territory
of the receiving state, but this is subject to laws and regulations made by the receiving state.
8. Right to worship
Diplomatic Agents have right to worship any religion they like within the premises, but
they cannot invite the nationals of the receiving state to take part in the worship (no right
to preach their religion)
9. Immunity from social security provision
Article 33 states that the Diplomatic Agent shall with respect to services rendered for the
sending state be exempted from social security provision which maybe in force in the
receiving state.
10. Immunity from local and military obligation
Article 35 stipulates that Diplomatic Agents are exempt from local and military obligation
of the receiving state.

TERMINATION OF DIPLOMATIC MISSION

1. Termination of head of mission

The head of mission maybe terminated in any of the following ways:

i. Expiring of time – if the letter of credence is given to any diplomat for a limited
period, his mission terminates at the expiration of the period.
ii. Recall of the Diplomatic Agent – Recalling a diplomat is a power vested in the
sending state, when a diplomatic agent is recalled by the sending stated generally
the mission comes to an end.
iii. On the request of receiving state – Request maybe made by the receiving state in
this regard when the relation between the two states become unfriendly.
iv. Notification upon fulfilment of Diplomatic Agents function
v. Persona non grata – the head of the mission maybe terminated if the diplomat has
been declared as not acceptable by the receiving state. Declaring a diplomat person-
non-grata is a right of the receiving state, which it can exercise without giving any
reasons.
2. Termination of mission as a whole
A state has the right to terminate the diplomatic mission as a whole, such a situation
may arise when war breaks out between the sending and receiving state. The diplomatic
mission terminates ipso facto when the sending or receiving state is extinguished by
voluntary merger into another state. Upon termination of a mission, the functions of
concerned persons come to an end.

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Consular Relations

A consul is defined as an official appointed by a government to reside in a foreign country

herein the host and represent his or her government’s commercial interests and assist in the
welfare of its citizens in that host country. Their functions are varied and include the protection
of the sending states and its nationals, development of economic, cultural relations, issuing of
passports among other functions .The current term consul began use in the 18th century and is
based upon law rather than the general usage. There is a special treaty known as the Vienna
Convention on Consular Relations of 1963 A consul must have the authority of sending state
and authorization of receiving state which must give consular officials and premises special
protection.

The premise of consular immunity is enshrined in the Vienna Convention on Consular

Relations of 1963 (VCCR). Consular immunity is a principle in international law that shields
consuls from legal action or prosecution in their host country. Consular immunity basically
offers protections similar to diplomatic immunity, but the herein said protections are not as
extensive, given the functional differences between consuls and diplomats. Together with the
Vienna Convention on Diplomatic Relations (VCDR), VCCR forms the core of international
diplomatic and consular law. The two treaties codified most modern consular and diplomatic
practices including the famous immunity principle under discussion here. Unlike diplomats
there may be many consul offices set up in one host country. There are two types of consuls:
career consuls and honorary consuls

Consuls: are professional salaried diplomats that are posted by the government of their native
countries in host countries. They further enjoy immunity honorary consuls: they don’t make a
living as diplomats. They usually live and work and pay taxes in the host country that they
operate on a voluntary/not salaried basis until their appointment is revoked. In some cases, they
might not be citizens or origin of that country

The Concept of Consular Immunity

The essence of immunity is very important and core to the functions of the consuls since it
provides a workable environment for the consuls without the interruption by the host states in
the discharge of their duties. However, host states have the power to declare a consul or a
diplomat persona non grata (‘an unwelcome person’) of which now the home country has to
replace him or her with another consul or diplomat. This is the most serious form of censure a
state can apply to foreign consuls and diplomats who are otherwise protected by consular and
diplomatic immunity from arrest and normal prosecutions.

The immunity is provided according to the consular officer’s rank in a consular post and
according to the need for immunity in performing their duties. Consular officers are not
however accorded absolute immunity from a host country’s criminal jurisdiction; they may be
tried for certain local crimes upon action by a local court and are immune from local jurisdiction
only in cases directly relating to consular functions.

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Consuls serve in consulates hence have special protections and privileges in the places they are
posted. However, they have a lower level of criminal and civil immunity than that of diplomatic
officers. They are only immune to as far as acts performed as part of their official duties are
concerned. The various such consular immunities given to the consular officials among the
career consuls include, (a) Criminal and civil suit immunities, (b) Exemption from tax, work
permit social security, custom duties and inspection (c) Immunity from arrests by the law
enforcement agencies (d) Exempted from all public services including military obligations.

Further the premises of consular are not inviolable from entry by agents of the receiving state
in respect to acts performed in the exercise of consular functions. However, the premises are
to receive protection and security from the host country.

Princess Zizianoff v Khan & Bigelow

In 1926, a Princess Zizianoff, originally of Russia, sued Consul Bigelow for defamation of
character in a French court. Mr. Bigelow was an American official working for the American
Consulate General in Paris and in charge of passports and visas. After turning down the
Princess for a visa to enter the United States, he shared his rationale for the visa denial with the
press, including the accusation that Princess Zizianoff was an international spy. Bigelow, along
with persons associated with the Paris office of the Boston Sunday Post, was successfully sued
by the Princess in 1927 at the bar of the Conventional Tribunal of the Seine. On Bigelow’s
appeal, the case made its way to the Court of Appeal of Paris in 1928. The court ruled that the
1853 Consular Convention did not protect him from what the court called a “private act,”
providing negative information about the Princess to the public via the public press. The
question for the court was whether Bigelow’s action fell outside the purview of his official
duties, and it ruled that his action did so. Undoubtedly, the 1963 Consular Convention would
not protect a consular officer performing an injurious private act.

Situations of Impunity versus Immunity

There have been recent actions by consuls and diplomats that have cast the spotlight on the
meaning and role of ‘immunity’. This has involved consular officers and diplomats who use
immunity as a ‘Get out of jail free’ card after murders, drug trafficking and sexual crimes. The
concept has been dragged through many more mud of evils including;
(a) Drug trafficking
(b) Sexual crimes
(c) Murders
(d) Reckless and dangerous driving
(e) Human slavery
(f) Firearm trafficking

The consuls involved have left trails of unpaid bills and sexual crimes which have become the
most common results of the abuse of the concept of consular impunity. The increased public
cries for more monitoring and usage of the concept to prevent abuse have led to Mr. Joshua
Muravchik, a UN critic of the American Enterprise Institute comment concerning this

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increasingly alarming abuse of the concept. Immunity, he says, ‘Invites abuse. And sure
enough, the invitation has been accepted’ In almost every continent, the countries in one way
or the other experienced the mixture of impunity and immunity. An example in the USA,
consular are accused of getting tax-exempt real estates as part of the immunity they get from
the host state only for some unscrupulous consuls to use the property to turn a profit.
Reckless and drunk driving and drug trafficking have been too common of the diplomats and
the consular officers. The culprits always don’t end up facing suits since they are often let go
because of the protection by the consular immunity.

TREATIES
States transact a vast amount of work by using the device of the treaty, in circumstances which
underline the paucity of international law procedures when compared with the many ways in
which a person within a state’s internal order may set up binding rights and obligations. For
instance, wars will be terminated, disputes settled, territory acquired, special interests
determined, alliances established and international organizations created, all by means of
treaties. No simpler method of reflecting the agreed objectives of states really exists and the
international convention has to suffice both for straightforward bilateral agreements and
complicated multilateral expressions of opinions. Thus, the concept of the treaty and how it
operates becomes of paramount importance to the evolution of international law.

The fundamental principle of treaty law is undoubtedly the proposition that treaties are binding
upon the parties to them and must be performed in good faith, this rule is termed pacta sunt
servanda and is arguably the oldest principle of international law. It was reaffirmed in article
26 of the 1969 Convention,8 and underlies every international agreement for, in the absence of
a certain minimum belief that states will perform their treaty obligations in good faith, there is
no reason for countries to enter into such obligations with each other.

The term ‘treaty’ itself is the one most used in the context of international agreements but there
are a variety of names which can be, and sometimes are, used to express the same concept,
such as protocol, act, charter, covenant, pact and concordat. They each refer to the same basic
activity and the use of one term rather than another often signifies little more than a desire for
variety of expression.

There are no specific requirements of form in international law for the existence of a treaty,
although it is essential that the parties intend to create legal relations as between themselves by
means of their agreement. This is logical since many agreements between states are merely
statements of commonly held principles or objectives and are not intended to establish binding
obligations.

Definition of Treaty

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The term Treaty means a written agreement by which two or more states or International
Organizations create or intend to create a relation between themselves operating within the
sphere of International Law.

The Vienna Convention on the Law of Treaties of 1969 (VCLT) is the main instrument that
regulates treaties. It defines a treaty and relates to how treaties are made, amended, interpreted,
how they operate and are terminated. It does not aim to create specific substantive rights or
obligations for parties – this is left to the specific treaty (i.e. the Vienna Convention on
Diplomatic Relations creates rights and obligations for States in their diplomatic relations).

VCLT governs treaties irrespective of its subject matter or objectives – e.g.: treaties to regulate
conduct of hostilities (Geneva Conventions on 1949); treaties setting up an international
organisation (UN Charter of 1945); and treaties regulating matters between States and other
parties on the law of the sea (UN Convention on the Law of the Sea of 1982).

Article 2(1) (a) of the VCLT defines a treaty as: “treaty” means an international agreement
concluded between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever its
particular designation

KINDS OF TREATIES

Treaties may be distinguished as unilateral and bilateral, accordingly as they bind on one party
or both the parties. There are also multilateral treaties which bind more than two states as
parties. Such treaties may be either political or non-political

1) Bilateral Treaties
There are the treaties in which participation and rights and obligations arising from the
treaty is limited only to two parties. They are sometimes called bipartite treaties and
sometimes refer as treaty contract.
2) Plurilateral Treaties:
Those treaties where the participation is open to a restricted number of State are
described as plurilateral treaties. The purpose of such treaties varies from treaty to
treaty, e.g, it may be either to maintain peace and security within a specific region or to
promote and develop the commerce among the participating members etc. Article 52
of the United Nations Charter provides for the national arrangements and are included
under this category. Organization of Petroleum Exploring Countries (OPEC), North
Atlantic Treaty Organization (NATO), League of Arab States, South Asian Association
for Regional Co-operation (SAARC)are some of the examples of Plurilateral Treaties.
3) Multilateral Treaties:
Multilateral Treaties are those which are open to participation for all the states without
any restrictions. Some multilateral treaties set up an International organization for a
specific purpose or a variety of purposes. United Nations Charter is an example of a
multilateral treaty. These treaties sometimes described as law making treaties.

FORMATION OF TREATIES

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Formalities

Treaties may be made or concluded by the parties in virtually any manner they wish. There is
no prescribed form or procedure, and how a treaty is formulated and by whom it is actually
signed will depend upon the intention and agreement of the states concerned. Treaties may be
drafted as between states, or governments, or heads of states, or governmental departments,
whichever appears the most expedient. For instance, many of the most important treaties are
concluded as between heads of state, and many of the more mundane agreements are expressed
to be as between government departments, such as minor trading arrangements.

Where precisely in the domestic constitutional establishment the power to make treaties is to
be found depends upon each country’s municipal regulations and varies from state to state. In
the United Kingdom, the treaty-making power is within the prerogative of the Crown, whereas
in the United States it resides with the President ‘with the advice and consent of the Senate’
and the concurrence of two-thirds of the Senators. International law leaves such matters to
domestic law. Nevertheless, there are certain rules that apply in the formation of international
conventions.

In international law, states have the capacity to make agreements, but since states are not
identifiable human persons, particular principles have evolved to ensure that persons
representing states indeed have the power so to do for the purpose of concluding the treaty in
question. Such persons must produce what is termed ‘full powers’ according to article 7 of the
Convention, before being accepted as capable of representing their countries. ‘Full powers’
refers to documents certifying status from the competent authorities of the state in question.
This provision provides security to the other parties to the treaty that they are making
agreements with persons competent to do so. However, certain persons do not need to produce
such full powers, by virtue of their position and functions. This exception refers to heads of
state and government, and foreign ministers for the purpose of performing all acts relating to
the conclusion of the treaty; heads of diplomatic missions for the purpose of adopting the text
of the treaty between their country and the country to which they are accredited; and
representatives accredited to international conferences or organizations for the purpose of
adopting the text of the treaty in that particular conference or organization.

Consent

Once a treaty has been drafted and agreed by authorized representatives, a number of stages
are then necessary before it becomes a binding legal obligation upon the parties involved. The
text of the agreement drawn up by the negotiators of the parties has to be adopted and article 9
provides that adoption in international conferences takes place by the vote of two-thirds of the
states present and voting, unless by the same majority it is decided to apply a different rule.

This procedure follows basically the practices recognized in the United Nations General
Assembly and carried out in the majority of contemporary conferences. An increasing number
of conventions are now adopted and opened for signature by means of UN General Assembly
resolutions, such as the 1966 International Covenants on Human Rights and the
1984Convention against Torture, using normal Assembly voting procedures. Another

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significant point is the tendency in recent conferences to operate by way of consensus so that
there would be no voting until all efforts to reach agreement by consensus have been exhausted.
In cases other than international conferences, adoption will take place by the consent of all the
states involved in drawing up the text of the agreement.

A state may regard itself as having given its consent to the text of the treaty by signature in
defined circumstances noted by article 12, that is, where the treaty provides that signature shall
have that effect, or where it is otherwise established that the negotiating states were agreed that
signature should have that effect, or where the intention of the state to give that effect to the
signature appears from the full powers of its representative or was expressed during the
negotiations. Although consent by ratification is probably the most popular of the methods
adopted in practice, consent by signature does retain some significance, especially in light of
the fact that to insist upon ratification in each case before a treaty becomes binding is likely to
burden the administrative machinery of government and result in long delays. Accordingly,
provision is made for consent to be expressed by signature. This would be appropriate for the
more routine and less politicized of treaties.

 Consent by exchange of instruments

Article 13 provides that the consent of states to be bound by a treaty constituted by instruments
exchanged between them may be expressed by that exchange when the instruments declare that
their exchange shall have that effect or it is otherwise established that those states had agreed
that the exchange of instruments should have that effect.

 Consent by ratification

The device of ratification by the competent authorities of the state is historically well
established and was originally devised to ensure that the representative did not exceed his
powers or instructions with regard to the making of a particular agreement. Although
ratification (or approval) was originally a function of the sovereign, it has in modern times been
made subject to constitutional control.

 Consent by accession

This is the normal method by which a state becomes a party to a treaty it has not signed either
because the treaty provides that signature is limited to certain states, and it is not such a state,
or because a particular deadline for signature has passed. Article 15 notes that consent by
accession is possible where the treaty so provides or the negotiating states were agreed or
subsequently agree that consent by accession could occur in the case of the state in question.
Important multilateral treaties often declare that states or, in certain situations, other specific
entities may accede to the treaty at a later date that is after the date after which it is possible to
signify acceptance by signature.

Reservations to treaties

A reservation is defined in article 2 of the Convention as: A unilateral statement, however

phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding

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to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of
the treaty in their application to that state.

Stages of formation of treaties

There is no specific form for the conclusion of treaties. An oral agreement between the
representatives of the States charged with the task of conducting negotiations and empowered
to bind their respective countries is sufficient to have a binding effect if it is the intention of
the representative to conclude a legally binding transaction. The enormous importance of the
issue involved in such agreements however necessities the compliance of formal requirements
and reducing the agreements into a document.

Various Stages of formation of the treaties:

According to Starke the various Stages of formation of the treaties are as follows –

1. Accrediting of Representatives:
Each of the State Conducting negotiation appoints a representative or plenipotentiary
for this purpose. He is provided with an instrument given by the Minister for Foreign
Affairs showing his authority to conduct such negotiations, which is known as the full
power.
2. Negotiation
It is a bilateral process, sometimes multilateral. There are proposals as to negotiation.
In our commercial transaction, there is a bargain there are proposals and counter
proposals. Ultimately leading towards the concluded Contract. In respect of two or
more States, so as to have the discussion with Pleni Potentials. These negotiations are
depended upon the terms of credentials and powers of the representatives. In practices,
before signing the text after negotiation the delegates obtain fresh instruction to sign
the treaties with or without Reservation. If the proposal is accepted, then it is said to be
a draft treaty. In draft treaties, the Conclusion of discussions is put together in the
precise statement and reduced into writing the commonly agreed terms in various
proposals. It is a premature stage of the final draft.
3. Signature
When the final draft of a treaty is drawn up, the instrument is ready for signature. The
signature is affixed at a formal closing session. A treaty generally comes into force on
signature by plenipotentiaries of the Contracting States unless the States desire to
subject it to ratification. Treaties and conventions are generally always sealed.
4. Ratification
It is an act of adopting an international treaty by the parties thereto. In other words,
ratification implies the confirmation of the treaty entered into by the representatives of
the different states. States may be bound by the treaties only when they have given their
consent. There are number of ways in which a State may express its consent to a treaty.
It may be given either by signature, exchange of instruments, ratification or accession.
When there are no full powers, conferred on the representatives when the parties are
representatives in absence of Pleni Potentials then such treaties are negotiated by the

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 representatives by their signature subject to ratification. When they have limited power
then treaty can be reserved for ratification by the state Pleni Potentials. It is the basic
term stipulated in the credentials itself. Thus, ratification is a sort of confirmation by
Pleni Potentials or Head of the states. The Head of State may ratify the Treaty contract
made by their representative on their behalf. Pleni Potentials may ratify or refuse the
treaty contract, but generally, ratification is the rule and refusal is an exception.
Ratification of a Treaty may withhold on the following grounds
i) If the representative or plenipotentiary has exceeded his powers;
ii) If any deceit as to matters of fact has been practiced upon him
iii) If the performance of treaty obligations becomes impossible
iv) If there has not been consensus ad idem (meeting of mind) e.g. there has not been
agreed as to the same thing.
5. Accession and Adhesion
A third state can become a party to an already existing treaty, by means of accession.
Accession and Adhesion is a consequential part of the treaty. Accession is a process
when a non-party state joins the already concluded treaties. They are not the original
members of such treaty. Adhesion is a process when a non-party State accepts the terms
and conditions of the already concluded treaty.
6. Entry into force:
There can be a specific provision in a treaty as to the effective date or date of application
of the treaty. It can be by signing process or by ratification. If the treaties are signed by
the Plenipotentiary then it will come into force. Multilateral treaties come into operation
on the deposit of a prescribed member of ratifications and accessions.
7. Registration and Publication:
After the treaty has been so ratified, it has to be registered at the headquarters of the
international organization. According to Article 18 of the Covenant of the League,
every treaty or international engagement should be registered with the Secretariat of the
League and published by it as soon as possible. No such treaty or international
engagement was binding on any state until it was so registered. This means that in case
of any dispute, the treaty could not be relied upon if it was not registered. To the same
effect are the provisions in the United Nations Charter. Article 102 of the Charter reads:
Every treaty and every international agreement entered into by any Member of the
United Nations after the present Charter comes into force shall as soon as possible be
registered with the Secretariat and published by it. No party to any such treaty or
international agreement which has not been registered in accordance with the provisions
of paragraph 1 of this Article may invoke that treaty or agreement before any organ of
the United Nations.
8. Incorporation of treaty into State Law:
Incorporation of the treaty into State Law: The final stage of the treaty is actual
incorporation in the multiple law of the Contracting State where such incorporation is
necessary in order to assume a binding character.

GENERAL PRINCIPLES OF TREATIES

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1) Pacta sunt servanda:
it is a Doctrine borrowed from Roman law and has been adopted as a principle growing
treaties in International Law. According to Anzilloti, the binding force of International
Law is based on the Fundamental principles known as Pacta Sunt Servanda Which
means that the agreement entered into by the States must be followed by them in good
faith. According to this doctrine, the parties to a treaty are bound to observe its terms
in good faith.
2) Free consent of the parties:
a treaty shall be binding only upon those states which has given their its consent. Mutual
consent of the parties is necessary. The consent of a state to be bound by a treaty may
be expressed by signature, exchange of instruments, ratification, acceptance etc. It is
one of the principles of treaties that the consent of a state to be bound by a treaty should
be free. If a state has not given free consent a treaty shall be void.
3) Reservations:
a state may give its consent to be bound by a treaty, yet it may accept a treaty in part.
When a state accepts a part of a treaty and thereby excludes the legal effect of certain
provisions of the treaty in its application, it is known that a state has accepted a treaty
with reservations. U/A 2(1)(d) of Vienna convention defines the term reservation as “a
unilateral statement, however phrased or named, made by a state, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude
or to modify the legal effect of certain provisions of the treaty in their application to
that state. Thus a state may accept a treaty subject to certain conditions unless the
reservation is prohibited by the treaty.
4) Pacta tertis nec nocent nec prosunt:
means only the parties to the treaty are bound by it and not third part without its consent.
A treaty may create rights and obligations to a third state in certain:
i. Where a treaty provides for obligation for third state- a treaty may impose
obligation on a third party which is not a party to the treaty, if it gives its consent
in writing.
ii. Where a treaty provides rights for third state- a treaty may provide right to a
third party which is not a party to the treaty, if it gives its consent in writing.
iii. Treaties creating international customs are binding on third party.
5) Jus cogens
According to this principle a treaty may be declared void if it conflicts with the general
principles of International Law. Article 53 of the Vienna Convention on the Law of
Treaties 1969 lays down that a treaty is void if, at the time of its formation, it conflicts
with a peremptory norm of general International Law, which is a norm accepted and
recognized by the international community of states as a whole, as a norm from which
no derogation is permitted and which can be modified only by a subsequent norm of
general International Law having the same character.
There are Certain Principles of International Law which all the States must observe.
Their nonobservance may affect the very foundation of the Legal system to which they
belong. They, therefore, cannot be altered by concluding treaties. These rules possess

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 the rule 'of Jus Cogens. If a treaty is concluded which is violative of these principles
shall be regarded as invalid.
On an objection raised to the claim of invalidity of the treaty by any other party, the
parties will have to seek a solution by negotiation, inquiry, mediation, conciliation,
arbitration, judicial Settlement, resort to regional agencies or arrangements or other
peaceful means of their choice as enshrined in Article 33 of the United Nations Charter.
6) Part performance of a treaty:
article 60 of Vienna convention says that material breach of a bilateral treaty by one of
the parties entitles other party to terminate the treaty.
7) Rebus sic stantibus:
a treaty may be terminated if there occurs a fundamental change in the circumstances
under which it was concluded.

TERMINATION OF TREATIES

Treaties may terminate on any of the following grounds:

1) Expiry of Specific Period:

When a treaty is concluded for a particular period, which expressly provided in treaty
contract then after the expiry of that period, treaty ipso facto comes to an end.
2) Where the main purpose/object of the treaty is fulfilled:
In case of treaties imposing no continuing obligations, they cease to operate on the
fulfilment of the object.
3) Termination by Mutual Consent:
It is an outcome of consensus. Treaty comes into existence by the consent of the party
State. So it can come to an end by mutual Consent.
4) One of the Party State Extinct:
When the existence of one of the party state comes to an end, generally in case of the
merger of one state into another state, the treaty stand terminated.
5) When that obligation of the treaty becomes incompatible with the Charter of United
Nations:
Article 103 specifically provides that in the event of a conflict between the obligations of
the members of the United Nations and their obligations under any other agreement, their
obligations under the Charter shall prevail.
6) War between Party States:
In a War, if the Party States are the enemy against each other, then contractual obligations
come to an end and treaty ipso facto stand terminated.
7) Dissolution by Withdrawal by Notice:
The treaties can be dissolved by a notice by either party to the other party. If no period of
the existence of the treaty is prescribed by the parties, then treaty can be determined by the
requisite period of the termination of treaties by a notice. When a prescribed period of
notice is given expressly in the treaty then it is to be strictly complied with
8) Terms of treaty becoming injurious to State:
By such treaty either wholly or partly the terms of treaty become injurious to one of the
party state, thereby interest of one party state, likely to be adversely affected. In such

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 circumstances, there is conflict as to term and sovereignty of the state, whereby sovereignty
of that state is in danger. Its survival is more important than such obligations. In such cases
of conflict, the law makes it very clear and contractual obligation comes to an end.
9) Non- Performance of certain Essential Conditions:
If the Treaty grants a unilateral right of denunciation to one or all of the consenting States
in case of failure of certain essential conditions, the treaty comes to an end on the
happening of such contingency.
10) Doctrine of Rebus sic stantibus:
The meaning of doctrine Rebus sic stantibus is if by any unforeseen change, or
circumstances an obligation provided for in the treaty should imperil the existence of one
of the State. And such state has a right to demand and to be released from the contractual
obligations. It means when the terms of the agreement are injurious to one of the party
State, or the purpose of treaty is over or there are changes in the circumstances, or there is
conflict with the status of or existence of one of the party State, or when the object of treaty
is no more there, then in such cases doctrine of Rebus Sic Stantibus is made applicable and
Treaty concluded comes to an end. This is based on the basic principle of self-Preservation
and Development in accordance with the growth and requirement of the nation.
11) Doctrine of Jus Cogens:
Lastly, a treaty may be declared void if it conflicts with a peremptory norm (it also called
Jus Cogens) of general International Law.

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Introduction
Extradition is needed when an individual charged with a crime in one state flees to another. In
this case, the requesting state requests its citizen to be sent back so that he/she can stand trial
for their crimes.
Asylum is when a person, who is afraid of being prosecuted in his home state, runs away to
another state for protection.

What is Extradition?
Extradition is the process of bringing back a criminal to the state where he has committed the
crime when he has absconded for such a country.
Many may ask the question of why it is important to bring him back to the country where he
has committed the crime. Why can’t he just be tried in the country he has been caught in? The
reason, it is important to bring him back is because there are different legal proceedings in
different countries.
The country in which he has committed the crime may try him differently. It may also be the
case that he had absconded or run away in the middle of legal proceedings. Thus it is essential
to bring him back in order to finish the trial. The evidence and the witnesses are also present in
that country.
This is also to prevent the trend of international criminals. Some criminals hop from country
to country committing crimes. Through extraditions, justice can be brought by bringing them
back to the countries they have committed the crime and punishing them.
It is also imperative for that country to get rid of that certain individual for security.

No extradition of a Political Criminal

The trend of no extradition of political criminals started during the French revolution. After
that, other countries followed suit.

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No commission or organization has defined what a political crime is. This word is also not
defined under international law. But in our own words, we can say that if a person commits a
crime with political motives, then that crime can be said to be a political crime.
In the case of Re Castioni case (1891), a prisoner was charged with the murder of Luigi Rossi.
The murderer escaped from Switzerland to England. The government of England rejected
Switzerland’s request for extradition. The court held that the accused murdered in order to
cause political disturbance and is thus a crime of political nature. Due to the fact, he was a
political criminal and England was not obliged to extradite him.
But on the contrary, In Re Meunier 1894, a fugitive who blasted a bomb in a public place in
Paris, fled to England. Paris wanted him back but England refuses their request to extradition.
The court ruled his intentions were not purely political and he had thus, not committed a
political crime.

D’attentat clause
The d’attentat or the clause Belge states that murders of heads of governments or states will
not be considered as a political crime and they can be extradited for such a crime.

Rule of Speciality
The doctrine of speciality is a doctrine under international law. It states that a person who is
extradited to a country to stand trial for certain criminal offences may be tried only for those
offences and not for any other pre-extradition offences.
This principle was restated in the case of U.S. vs Rauscher (1886), which stated that he can
only be tried for offences which have been criminalised by the treaty and/or the offence for
which extradition has been requested for.

Double criminality
Double criminality is a principle that states that a criminal can only be extradited to another
country if the offence he has committed is criminalized by the laws of both the countries
involved. For example, if a murderer has run away from Bangladesh and is hiding in India, he
can be extradited as the laws of both the countries criminalize murder.

Position of the State in International Law

It must be noted that the state has no duty to extradite an individual. But, there can be a treaty
between that states that they will extradite any criminals that run away to their country and vice
versa. They can also voluntarily extradite a person without any treaty. States should keep in
mind that during extradition, they should not violate their own municipal laws i.e- the laws of
their own countries and international conventions.
However, countries do not have to give the fugitive back if proper extradition procedure was
not followed. In the case of Sarvarkar (1911), Mr Vinayak Donador Savarkar was under french
navy custody. He was then extradited to England, but England obtained him through incorrect
extradition procedures. Due to the violation of procedures, the French wanted him back. The
court held that there is no provision under international law that states if extradition procedures
are not followed then the country must return him back.

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The state can also not extradite citizens of their own state. So, if a citizen of England comes to
India and commits a crime and then runs off to England then it is very difficult to get the citizen
back. They usually ensure that they will punish the criminal according to their own laws.
In Regina vs Wilson (1878), a treaty can happen between the two states, states will not extradite
people and the fugitive that will be punished according to their own laws.

India
Usually, each country has its own laws regarding the process of extradition. In India, The
Extradition Act of 1962 governs the process of extradition. It was amended in 1993 by Act 66.
Section 2(d) of the Act talks about treaties fo extradition and allows foreign states to make such
arrangements with India. These treaties are usually bilateral in nature i.e- they are between two
countries, not more. These treaties embody five principles-

 Extradition of a fugitive will happen for offences set down by the treaty.
 The offence must be criminalized under the laws of both countries, not just one.
 There must be a prima facie case made.
 The country should try the criminal for only the offence he was extradited for.
 He must be tried under a fair trial.
Usually, requests for extradition on behalf of India can only be made by the Ministry of
External Affairs and not anyone in the public.
Countries who have a treaty with India can request for extradition of someone from India. A
non- treaty country must follow the procedures set down by Section 3(4) of the Extradition Act
of 1962.
According to the page of The Ministry of External Affairs, below are the following bars or
restrictions to extradition-

 India is not ‘obliged’ to extradite someone unless there is a treaty.

 India is not ‘obliged’ to extradite someone unless that offence constitutes a crime
under the treaty.
 Extradition may be denied for purely political and military offences.
 The offence must constitute a crime in both India and the country requesting
extradition.
 Extradition may be denied when the procedure set down by Section 3(4) of the
Extradition Act of 1962 is not followed.

Asylum

What is asylum?
Asylum is when a country gives protection to individuals who are being prosecuted by another
sovereign authority. Most of the times, it is their own government. While everyone has the
right to seek asylum, asylum seekers do not have the right to receive it.
It must be noted that asylum deals with refugees (individuals who are being prosecuted by their
own government).

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Article 14 of the Universal Declaration of Human Rights
Article 14 of the Universal Declaration of Human Rights recognises the right of individuals to
seek protection from prosecutions of the sovereign authorities. Everyone can go to another
country and seek asylum. This right is also available for fugitives who have committed political
crimes. But this is subjected to the condition that if your crime is against the principles of the
UN, then you do not have the right to asylum. It also must be noted that one has the right to
seek asylum but you do not have the right to receive asylum.

Types of asylum

Territorial Asylum
Territorial asylum is granted within the territorial boundaries of the country offering asylum.
This is most commonly used for people accused of offences of political nature such as treason
and sedition. It must be noted that murderers of heads of states, criminals accused of certain
terrorist activities and people accused of war crimes are some examples where one can not be
offered asylum.

Extra-Territorial or Diplomatic Asylum

Extraterritorial asylum refers to asylum granted in embassies, legations, consulates, warships,
and merchant vessels in foreign territory and is thus granted within the territory of the state
from which protection is sought.
International law has not recognised diplomatic asylum as a right as it can be areas for
dispute. For example, the asylum was granted to József Cardinal Mindszenty during the
uprising against the communist government in 1956. He refused to Roman Catholic schools to
be secularized which prompted him to be arrested but he got protection from the government
of the United States for 15 years. This caused great controversy.

Neutral Asylum
This type of asylum is shown by neutral states during times of war. These countries may be
considered asylum places for prisoners of war. It provides asylum to troops of countries who
are a part of the war. This is under the condition that they are subject to internment during the
time. It is important to note that while troops may be allowed, airforces of such countries cannot
land in these areas and will be subjected to interrogation.

Asylum in India
Different countries have different laws about asylum-seeking. India has laws regarding
immigration and asylum-seeking. The most recent law with asylum seeking that has caused the
most controversy is the Citizen Amendment Act with regards to refugees.
Organisations like the UNHCR, help individuals register for asylum. People who wish to apply
must come for registration with all of your family members who are present in India. According
to them, the following documents are needed-

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  Case numbers of immediate family members who have been registered with
UNHCR (in India or elsewhere),
 Passport/nationality document/identity document,
 Birth certificates/vaccination cards for children,
 Marriage/divorce/death certificates,
 Any other documents you may have.
The candidate will be asked to explain why you left your country and why you cannot go back
on a form. They will be interviewed by a Registration Officer.

Conclusion
Thus, in this article, we have discussed the difference between extradition and asylum, their
processes, the various rules they are subjected to, and how they are executed in India. These
processes play a great part in international relationships. The topics discussed above are also
very essential to understand international law.

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