a.

Nature and Development of International Law

Abstract

International law serves as the cornerstone for regulating interactions among sovereign
states in the global arena. This abstract delves into the intricate nature and evolution of
international law, exploring its fundamental principles, sources, and mechanisms of
development. The nature of international law is characterized by its unique blend of
customary practices, treaties, general principles, and judicial decisions that guide state
behavior and cooperation. Rooted in the principle of sovereign equality, international law
seeks to balance the autonomy of states with the necessity of fostering cooperation to
address transboundary challenges.

The development of international law is a dynamic process influenced by historical

events, shifts in global power dynamics, and evolving societal norms. From its origins in
ancient civilizations’ treaties to the modern multilateral agreements, international law
has adapted to address a wide range of issues, including diplomacy, armed conflict,
human rights, environmental protection, and trade. The nature and development of
international law reflect its evolving response to the challenges posed by an
interconnected world. As states continue to navigate political, economic, and social
transformations, international law remains a vital framework for promoting peace,
cooperation, and justice on a global scale. Understanding its nature and evolution is
essential for diplomats, legal scholars, and policymakers working towards a more just
and orderly international system.

Keywords: law, International, Nation, States, Justice, Judicial.

Introduction
Law is an important part of society and helps to establish a framework within which rig
hts and obligations are established. The world today needs a way for relations between
states, and international law is filling the void. The purpose of the United Nations in est
ablishing international law is to promote international peace and security.
Countries come together to create binding laws that they believe will benefit their citize
ns. International law promotes peace, justice, and social and economic development.
Countries work together to support international law because of its important role in so
ciety. International law is influenced directly and indirectly by the writings of lawyers a
nd defenders, the instructions given to the representatives’ representatives, the tables of
critical discussion (although not yet agreed upon), and forensic examination.

Definition of international law

According to Oppenheim, international law is “the name given to the system of univers
al law or customary law, which is determined to be binding on citizens in their relations
with each other”.
International law can be regarded as a collective agreement, a set of rules and agreemen
ts between States. International law regulates how states interact with other states.
It is useful for managing decision-
making problems that arise when people do business between different countries. The
main purpose of international law is to promote justice, peace and

Impact and function of international law

International law has been deemed inappropriate. As international cooperation increase
d, international law expanded. International law is the simplest form of managing the w
orld order in today’s world. International law aims to ensure international peace and se
curity, to ensure fundamental rights, freedoms and human rights, to prevent these state
s from using force or threat against the territory of other states, and gives the right to sel
f-determination

Principles of International Law

International law is based on the following two principles:
Laws : These laws are not part of the law, but it is the cooperation that governs the relati
onship between the two countries.
Interstate law: It refers to the treaties and agreements between two states.
International law offers an effective method for the resolution of disputes. In general, th
e rights, obligations and interests in the contract

International distribution
International law can be divided into two groups:

1. International civil law:

There are two types of recognized international law, the first is international law. Public
international law deals with the rights and obligations of states towards each other. Stat
es are referred to as “states” in international civil law.
These laws apply to international organizations such as the United Nations (UN) and th
e World Trade Organization (WTO). Public international law often governs issues that a
ffect humanity as a whole, including the environment, human rights, and the oceans.

2. Private International Law:

Private international law, as the name suggests, deals with relations between citizens be
longing to different countries. For example, an American man and a French woman got
married in the United States and now live in Quebec.
If they wish to divorce, rules in private international law will dictate whether they must
go to a court in the United States, France, or Quebec to obtain a marriage.
Sources of international law
Sources of international law include: treaties, customs, internationally recognized legal
principles, judicial decisions, and publishers’ advice. The
Treaties The concept of the
treaties are based on a legal right, pacta sunt servanda (ahda fidelity), which means that
promises made must be kept. In treaties, states voluntarily establish rights and obligati
ons, so they are similar to treaties. Thus, a treaty is an agreement between two or more s
tates that determines what each state will do in its relations with the other participating
states. Sometimes, instead of treaty, other terms such as statute, declaration, convention,
and statute are often used.
However, these terms have a slightly different meaning. Law No.
Law No.is an important part of international law. In international law, it is considered p
articularly important because of its decentralized nature. In order for the state’s behavio
r to be lawful, two conditions must be met:
First, the state’s behavior is itself and the state’s behavior does not have to be good. The
practice of the State must be broad, uniform, and consistent, and must win, at least for a
time, to be consistent with the character of the State.
The second point, opinio juris, is the State’s mental belief that its actions provide a legal
basis for it.
It should be noted, however, that not all activities of the State need to undermine constit
utional rights. For example, if a country uses the model of a problem in the General Ass
embly, this shows the rules of thinking about the law.

General principles of law

As with international law, no legislature or court has executive power, so it is not establi
shed as a national law. Article 38 of the Statute of the International Court of Justice stipu
lates “general principles of law recognized by civil society” as a rule of law. In the case
of Factory
Chorzów, the general principles of the International were rejected.
The nature of international law
International law is a separate body of law that operates in different parts of the domest
ic system. It is important for states to consider international law when responding to a si
tuation. Rules of international law are generally respected, so it is not good practice to e
nforce them with military or financial sanctions. The rule of law is based on the principl
e of unity and interest. Countries that violate international law do not recognize and cre
ate discrimination in the eyes of others that harms their well-
being in the rest of the world.
The value of this process brings clarity, predictability and a sense of purpose to every co
untry in international operations. International law provides rules and regulations and
procedures for international interaction

Development of international law

Principles guiding world war, peace international society is concerned only with initial
problems, economic problems, but since it has expanded so much, organizations such a
s the United Nations General Assembly and the International Court of Justice, It is resp
onsible for resolving conflicts affecting international relations between states. This bega
n with the first meeting of the International Law Commission in 1947 to promote the de
velopment of international law and to understand its codification. Committee members
have influence over the management of relations between various states and interact re
gularly with the ICRC, the International Court of Justice – ICJ and UN agencies. General
ly, the governing body is responsible for formulating many aspects of international law.
Issues of international law are formed by the Committee and sent to the General Assem
bly, attended by the international conference, to put the draft into the Convention. A me
eting was then scheduled about which countries were invited to become parties – which
countries had to agree to abide by the terms of the treaty. Here are some examples, in o
rder:
The Convention on the Nonnavigational Uses of International Waterways, adopted by t
he General Assembly in 1997, aims at the fair and reasonable use of a waterway by two
or more States.
Convention on the Law of Treaties between States and International Organizations or In
ternational Organizations, adopted at a conference in Vienna in 1986;
Convention on the Prevention and Punishment of Crimes Against Internationally Prote
cted Persons, including Diplomatic Agents, adopted by the General Assembly in 1973. I
nternational humanitarian law also includes the principles and rules of war, as well as t
he protection of civilians, sick and wounded, and above all prisoners of war.
The United Nations volunteers to play an important role in the advancement of internat
ional human rights law. The UN Security Council is also concerned with the protection
of civilians in conflict, the promotion of human rights and principles, and the protection
of children in war. Arbitration of disputes.

International Court of Justice

The central and largest organ of the United Nations for the settlement of disputes is the
International Court of Justice. Also known as the World Court. It was created in 1946.
Since its establishment, the Court has heard more than 170 cases and made many decisi
ons and recommendations based on the concept of “humanity”. Its role is to respond to
requests from United Nations agencies. Most cases are heard by the Court, but since 198
1 six cases have been transferred to private chambers, including the appropriate claims
of both parties to the dispute. In all of the decisions numbered
, the Court considers commercial rights disputes, the number of adoptions, non-
intervention in the internal affairs of neighbors, social relations, international conflicts, e
tc. touched upon international problems such as Insurance, asylum and “citizenship”. St
ates have the right to take these complaints to the Supreme Court and seek a fair solutio
n to their legal differences.
Court proceedings must ensure the peaceful resolution of disputes between land border
s, maritime areas and territorial sovereignty, and the court has been successful in preve
nting disputes.

Jurisdiction
According to article 38, arbitration is considered a service to legal proceedings. Article 5
9 of the Constitution of the International Court of Justice states that the court decision is
only a guide and does not interfere with the court. Right. Therefore, the principle of cas
e law is not in line with international law. Article
The International Court of Justice plays an important role in the legal process through t
he legislature, advisory opinions and the role of judges. Nicaragua v. The United States
is the best example.
The United States recognizes the prohibition against the threat or use of force. This law i
s now recognized as part of international law. In another judicial decision regarding Ala
bama’s claims, the ICJ recognized the arbitration of international disputes. In this proces
s, arbitration and arbitration are used to resolve disputes.
Writings of Commentators
According to article 38, the recommendations of competent writers of international law
such as Gentile, Grotius and Vittel are considered to serve the legal decision.
Authors play an important role in providing structure and integrity to the field of intern
ational law. Books are used as a tool to study the law of any subject, even the writings o
f the most respected international lawyers cannot establish law. They are accepted as le
gal evidence as they enable the understanding and interpretation of the principles of int
ernational law. Article
There are many disputes on this subject.
Some people answered no to this question, while others answered yes. Some believe tha
t international law lacks certainty, stability and predictability.
No Law
The famous English writer John Austin supports the view that international law is not l
aw. According to him, international law is nothing but a code of ethics and behavior. Ac
cording to him, there is no punishment after international law or from law-
making institutions.
He defines international law as the law formed by international morality and the thoug
hts or feelings that nations follow voluntarily.
Hobbes and Pufendorf also argued that international law is not true law because true la
w is not given and is not supported by the above orders.
Holland argues that international law is very different from common law and is not sup
ported by state power. According to him, private law is clear. He described internationa
l law as a missing element of the rule of law.
According to him, international law, which is the main source of national law, cannot be
included in the category of real law because it does not have jurisdiction. Chapter
True Law Chapter
Hall and Lawrence believe that international law is true law. According to them, interna
tional law derives from law and precedes law, and it is a law that should be considered
as a kind of good law.
Sir Frederick Pollock pointed out that the only necessary condition for international law
to be binding on member states is the existence of a political community and that its me
mbers accept established rules that bind them within their capacity. International law m
eets these conditions.
What is the difference between international law and national law?
The basis of the two laws differ in many ways.
First, international law generally deals with relations between States. Municipal law, on
the other hand, regulates the relations between individuals and the state and individual
s within the state.
Second, according to international law, law does not apply to people, it is created by sta
tes and the states themselves.
In international law, states often break the law or create laws for their own benefit. How
ever, in the Constitution, the law is held above the person, just as in the law of many co
untries, the law is held above the person.
Three, two different laws. Article 38 of the Statute of the International Court of Justice is
considered the most authoritative document of international civil law. Customs recogni
zed by citizens constitute sources of law, such as conventions, treaties, legal principles a
nd decisions, regrets and recommendations of what to expect.
And in the case of municipal law, the hierarchy of legal rights determines which law ha
s more authority than others. For example, in many countries a hierarchy of courts has b
een established where the decisions of the higher courts are more authoritative and ther
efore in the central court.

International Law and Indian Law

International law always concerns the domestic law of a country, but is not considered
part of a customary law. Therefore, experts are of the opinion that the former is more im
portant in the dispute over whether there is a conflict between national law and internat
ional law. In the case of India, the Court has played an important role in resolving dispu
tes and even in India’s fulfillment of its international obligations.
Besides the traditions in international law, both treaties were discussed on human right
s violations and even legal issues, most recently at Kulbhushan Jadhav. Article 51 of the
Charter requires respect for international law, although it is not constitutional. Article 2
53 of the Indian Constitution gives the Parliament special powers (substantial or otherw
ise) in international affairs. But there is nothing in the constitution that tries to clarify th
e relevance and status of international law in the Indian courts. The “silent design” of th
e legal front provides courts with prudent flexibility and openness to interpretation, wh
ile keeping abreast of progress in international law.

Conclusion
International law is a necessary system for controlling the behavior of nationstates for th
e peace and prosperity of the international community. It helps to resolve ethnic conflict
s. International law can also influence and become part of national law.
International law cannot be sealed in treaties. Modern international law has come a long
way and the International Court of Justice is considered an important institution for up
holding the principles of international law.

b. Subject of International Law

Table of Contents
• Introduction
• What is Legal personality
o International personality
• Subject of international law
o Who are subjects of international law?
o ● Realist theory
o ● Fictional theory
o ● Functional theory
• 1. States
• 2. Individuals
• 3. Non state entities
o Various types of international organisations
o Rights of international organisation
• Conclusion
• Reference
o
▪ Websites
▪ Books
▪ Articles

Introduction

According to the United Nations website, International law defines the legal
responsibilities of States in their conduct with each other, and their treatment of
individuals within State boundaries.

International law’s domain encompasses a wide range of issues of international concern,

such as human rights, disarmament, international crime, refugees, migration, problems
of nationality, the treatment of prisoners, the use of force, and the conduct of war, among
others.
International law also regulates the global commons, such as the environment and
sustainable development, international waters, outer space, global communications and
world trade.[1]

In the modern world where globalisation is at its peak which, if disturbed can cause a lot
of damage to the countries and its economy this is where international law plays an
important role not just in global trade but national security and in world health too.

But how do we differentiate who does and who does not have a legal right under
international law with so many different countries with different positions in the globe?

What is Legal personality

To be a legal person is to be the subject of rights and duties. To confer legal rights or to
impose legal duties, therefore, is to confer legal personality.[2]

In any legal system, certain entities, whether they be individuals or companies, will be
regarded as possessing rights and duties enforceable at law. Thus an individual may
prosecute or be prosecuted for assault and a company can sue for breach of contract. They
are able to do this because the law recognises them as ‘legal persons’ possessing the
capacity to have and to maintain certain rights, and being subject to perform specific
duties.[3]

A legal ‘person’ is also defined in section 3(42) of the general clause act as “person” shall
include any company or association or body of individuals, whether incorporated or not.
Inanimate objects can also be considered legal person such as, hindu idols who are not
human beings are also considered as legal person under hindu law. Similarly, slaves who
are human beings are not considered legal person as they do not have any rights.

International personality

‘what (being an international person) means is that it is a subject of international law

capable of possessing international rights and duties, and that it has the capacity to
maintain its rights by bringing international claims.’This implies that the international
legal system through attribution of rights can provide legal personality.[4]

International law is based on rules made by states for states. States are sovereign and
equal in their relations and can thus voluntarily create or accept to abide by legally
binding rules, usually in the form of a treaty or convention. By signing and ratifying
treaties, states willingly enter into legal, contractual relationships with other state parties
to a particular treaty, which observance is normally controlled by the reciprocal effects of
non-compliance. The capacity of states to enter into such relationships with other states
and to create legally binding rules for themselves, is a result of states’ international legal
personality, a prerogative attributed to all sovereign states.[5]

International personalities enjoy rights and duties conferred on them as they have rights
to enter treaties and agreements imposed by international law, which if breached can also
claim for damages and enjoy immunities and privileges. These include states,
international organisations, regional organisations, non-governmental organisations,
public companies, private companies and individuals. Not all such entities will constitute
legal persons, although they may act with some degree of influence upon the
international plane.[6]

Not every entity is considered to have an international personality, it also depends upon
the type of personality under question given in certain circumstances.

Subject of international law

The term subjects of international law refer to entities endowed with legal personality,
capable of exercising certain rights and duties on their account under the international
legal system. Personality in international law necessitates the consideration of the
international system and the capacity to enforce claims.[7]

According to Starke, the team “subject of international law” means:[8]

1. An incumbent of rights and duties under international law

2. The holder of procedural privileges of prosecuting a claim before an international
tribunal.
3. The possessor of interests for which provision is made by international law.

In simple terms, entities who are vested with rights and duties and can also claim for
damages and are endowed with legal personality, have capacity to become subject of
international law.

Who are subjects of international law?

Conflicting opinions have divided people into groups as to what can be considered
subject of law and which broadly speaking has given rise to three popular theories.

● Realist theory

This theory emphasises on the traditional and rather a narrow view that States alone, as
sovereign political entities, irrespective of the individuals composing them, are bearers
of rights and duties under International Law. They rely upon that International Law came
into existence for reforming conduct of only nation States and nobody else.[9]
The jurists of this school believe that states are the only subject of law and the individuals
composing them are not. This is the reason for the criticism of this theory as in modern
international law international organisation, corporation, and non state entities are also
recognised as subjects. Individuals also have rights to claim and can also be punished for
their offences under international law. Example-Rights bestowed upon slaves,
punishment to pirates etc.[10]

● Fictional theory

Contrary to the traditional view, supporters of this theory believe that on ultimate
analysis of International Law, it will be evident that only individuals are the subjects of
International Law. The reason given to support this theory is that a State is an abstract
concept & does not have the ability to manifest its will. A State is nothing except the
aggregate of the individuals. Though the rules of International Law relate expressly to
the Nation States but actually the States are the fiction for the individuals composing
them.[11]

The chief exponent of this theory, Prof. Kelson held the view that the notion of State is
purely a technical legal concept serving to embrace the totality of legal rules applying to
a group of persons living in a defined territorial area. He concluded that the difference
between state laws and International Law stood dissolved as both laws apply to the
individuals and they are for them alone. The former is binding on them directly whereas
the latter bind indirectly, through States.[12]

Prof.Westlake states that the rights and duties of the States are only the rights and duties
of men who compose them.”

This theory is also criticised because of its extreme school of thoughts, states are
composed of individuals, but in most of the cases claims are made under state’s name not
just the individual. Saying states are just fiction is incorrect as the primary source of
claims under international law is state although there are quite a lot of cases regarding
individual claims.

● Functional theory

This theory broadened the scope of International Law and criticised the extreme and
narrow views given by the other two theories. This theory not only clubbed the other two
theories but also went a step ahead to include international organisations and certain
other non-state entities as subjects of International Law. The current position of
International Law, therefore, is that besides States, individuals, public international
organisations and some non-state entities are subjects of International Law.[13]
This theory is moderate and more practical as it combines both the theories and is
relevant with the evolving modern international law. It states that states, international
organisations, individuals and non state entities play an important role under
international law.

1. States

Despite the increasing range of actors and participants in the international legal system,
states remain by far the most important legal persons and despite the rise of globalisation
and all that this entails, states retain their attraction as the primary focus for the social
activity of humankind and thus for international law.[14]

Prof. oppenheim stated four conditions for the existence of states: people, territory,
government and sovereignty.

Article 1 of the Montevideo Convention on Rights and Duties of States, 193310 lays
down the most widely accepted formulation of the criteria of statehood in international
law. It notes that the state as an international person should possess the following
qualifications:[15]

(a) a permanent population– The existence of a permanent population is naturally

required and there is no specification of a minimum number of inhabitants, as examples
such as Nauru and Tuvalu demonstrate.[16]

(b) a defined territory- The need for a defined territory focuses upon the requirement for
a particular territorial base upon which to operate. However, there is no necessity in
international law for defined and settled boundaries.[17]

(c) government- For a political society to function reasonably effectively it needs some
form of government or central control. However, this is not a precondition for recognition
as an independent country. It should be regarded more as an indication of some sort of
coherent political structure and society, than the necessity for a sophisticated apparatus
of executive and legislative organs.[18]

The aaland island case 1920, the question was when did finland became a state. Finland
was part of the soviet union but after the Russian revolution countries broke out and
became independent. There was friction among people of Finland and violence broke out
and they had to take help from foreign troops. The international committee of jurists
recognised Finland as an independent country when it became capable of asserting
themselves without help from foreign troops.
(d) capacity to enter into relations with other states- an aspect of the existence of the
entity in question as well as an indication of the importance attached to recognition by
other countries. It is a capacity not limited to sovereign nations, since international
organisations, non- independent states and other bodies can enter into legal relations
with other entities under the rules of international law.[19]

2. Individuals

Individuals were a partial subject of international law, dormant always being the states.
Individuals were considered an object of international law rather than the subject but
after world war 1 with the foundation of united nations, countries became aware of the
need to have individual rights under international law.

In P.Mohammad khan versus State of andhra pradesh, 1977 the court stated that

THE passages in Halsbury’s Laws of England,fourth Edition,volume 18 under “foreign

Relations Law” may usefully be referred. Para 1421 at page 730:”states: The typical or
normal subject of international law, namely, an entity which possesses rights and bears
duties under that system, is the independent sovereign state. “para. 1424 at page
732:”individuals: It has been contended on the basis of one decision of the permanent
Court of International justice that individuals may, by treaty, be constituted subjects of
international law in the sense of beneficiaries of rights under that system of law. . . . . . . .
. . . . . . . . ‘however, this classical rule is to some extent qualified by treaty provisions for
the protection of human rights’. “[20]

A number of rights have been given to individuals through the adoption of international
convention.[21]There are also certain rights and duties granted to individuals under
conventions and treaties so that they can claim damages from states.

• Crime against peace and humanity

• War criminals
• Crime of genocide
• Aircraft hijacking
• Kidnapping of diplomatic personnel
• Prevention of drug trafficking

There is a general rule that individuals have no locus standi or access to international
court or tribunals, most international tribunals are not open to individuals. But there is
an exception: individuals may be given the right to appear before an international
tribunal, European convention on human rights and fundamental freedom states that any
private individual who are national or state parties can bring an action before the
European court of human right against their own government for violation of human
right.[22]

In nottebohn corporation case, corporation or companies are usually treated as

individuals and their relationship with the states are governed by the domestic law.
However, it is possible that a contractual relationship between a corporation and state be
governed by international law.[23]

3. Non state entities

Before only states were considered the dormant subject of international law but with the
evolving international law, international organisations are also considered as subjects of
international law especially after the foundation of united nations.

Non-state actors are “derivative subjects” of international law. But at the end of the day,
all traditional and new subjects are derivatives from the one original subject of man-made
law, the human being. De facto, non-state subjects might be “second-class” subjects when
compared to the state, but that does not mean that they do not play a role in making new
rules of international law while “creating rights and obligations left, right and centre,
however useful perhaps in itself, does not add up to sort of paradigm shift that
international law might need in order to truly accommodate entities other than states”,
but these developments indicate that such a change is – while not yet realized – at least
possible.[24]

These are organisations established by inter-governmental agreement and having wide

international responsibilities in economic, social, cultural and other fields that have been
brought into relationship with the United Nations.[25]

Various types of international organisations

• Universal organisations

which are otherwise called open organisations. Enrollment of such an organisation isn’t
limited to any locale however is available to all States fulfilling its participation
necessities. A model is the UN.[26]

• Regional organisations

These are organisations made by States that share a typical geographic or strategy
security. Participation is confined to a specific gathering of States model States of a
specific area like the AU, or States with a typical strategy like NATO.[27]
 • Supranational organisations

These are crossover organisations made out of States. They are organised in a manner
like government States. They settle on choices restricting straightforwardly on part States
and their nationals, and their laws have incomparability over, and abrogate clashing,
public laws of part States.[28]

Rights of international organisation

• The treaty making power

• Privileges and immunities
• Right to bring international claim
• The right to protect their agent acting in their official capacity

In reparation’s case, the court established two criteria for determining international
legal personality: the intention of a state to establish an organisation having a distinct
personality separate from its members can be inferred from various factors. May also be
expressly mentioned in the constituted instrument of the organisation and actual
exercising and enjoying of functions and rights which can only be explained on the basis
of possession of a large measure of international personality.[29]

Conclusion

International law is evolving and modern international law is very different from what it
used to be. It has become more practical and keeps becoming more accessible to even
individuals and with the growth of the position of UN lots of international organisations
have started holding a stronger position in the world. There are also debates about giving
an international legal personality to not so traditional or talked about organisations and
will keep becoming a growing field in law.

c. Relationship Between International Law and Municipal Law

Introduction:

It is necessary to consider the relationship between International Law and Municipal Law
in order to comprehend the relationship between the two. The issue of the relationship
between international and municipal law rules is one of the most contentious issues in
legal theory, and determining their relationship has now taken on practical significance.
While international law is applicable to state relations and other international law topics,
national or state law, also known as municipal law, is applied within a state to the persons
and corporate bodies that bear rights and obligations under it.

Initially, the relation between the two laws was purely theoretical, i.e., if the Law of
Nations and Municipal Law are parts of a single legal order or two separate legal systems.
The most important issue before an international tribunal is whether international law
takes precedence over municipal law or the other way around. The relationship between
the two systems has gained prominence in contemporary international law, in part
because so much of it is concerned with the actions of persons who fall under the
authority of municipal courts. As a result, a growing portion of International Law is
applied in municipal courts.

International Law:

International law is also known as public international law and law of nations.[1] It is a
collection of laws, norms, and principles that are widely accepted in international
relations, and it provides normative guidelines and a common conceptual structure to
direct states in a variety of areas, including war, diplomacy, trade, and human rights.
International law refers to a collection of laws that are widely recognized and
acknowledged as binding in international relations. Many national legal systems accept
international tradition, treaties, and general principles of law as origins of international
law.

“Law of nation or international law is the name for the body of customary and convention rules
which are considered legally binding by civilized states in their relation with each other, within a
community which by common consent of this community shall be enforced by external
power.”[2] – Oppenheim

“That body of law which is composed for its greater part of its principles and rules of conduct
which states feel themselves bound to observe, and therefore, do commonly observe in their
relations with each other.”[3] – G Starke

“The legal system governing the relationship between nations; more modernly the law of
International relations; embracing not only nations but also such participants as International
organizations and individuals.”[4] – Black Law’s Dictionary
Municipal Law:
The Black Law’s Dictionary defined International Law as “the ordinances and other laws
applicable within a city, town or other local Government entity”[5]

In contrast to international law, municipal law is a sovereign state’s national, domestic,

or internal law. Municipal law encompasses not only national law but also federal,
provincial, tribal, municipal, and local law. It refers to the laws that regulate a specific
city or nation, as well as the political bodies that govern certain cities or countries. As a
result, municipal law refers to legislation enacted by a state’s legislature or law-making
body that is only applicable to that state.

Relationship between International Law and Municipal law:

International law, in theory, exists only at the international level, not within domestic
legal frameworks, which is consistent with positivism’s recognition of international and
municipal law as separate and autonomous systems. No municipal rule can be used as
an excuse for violating international law, according to a concept accepted both in
International case laws[6] and treaties[7]. International law’s position in municipal law is
more complicated, and it is determined by a country’s domestic legislation.

It’s critical to comprehend how international law concepts are incorporated into domestic
law, as well as what happens when the laws clash. The two key theories that describe the
relationship between international and municipal law are monism and dualism.

Theories:

1. Monistic Theory: According to this theory, the domestic civil order is the only legal
structure that exists. The proponents of this theory deny that international law is a
separate and self-contained body of law. Kelson, an Austrian jurist, founded the monistic
theory. Monists believe that both municipal and international law are members of a single
universal legal framework that serves the interests of the human race in some way. As a
result, the law of nations is indistinguishable from state internal or municipal law, and it
is only relevant as part of the universal legal order. As a result, they are both genus-law
organisms. Monistic theorists refuted Dualists’ claims that the two structures differed in
terms of origins, substance, concepts, and subject matter.

2. Dualistic theory: The law of nations and the municipal laws of the various states,
according to Dualistic theory, are two different, distinct, and self-contained legal
structures. International Law does not form part of a state’s domestic law since it is a
separate framework. Since they have no common grounds or subjects of application, such
a view eliminates any debate over which form of law is superior to the other. Each is
supreme in its own domain. The dualists argue that since international law can only
address States and not persons, States are free to govern their internal affairs as they see
fit and that international law has little or no influence over municipal law.

Triepel, a well-known German scholar, proposed this idea in 1899. Later on, Italian jurists
Anzilotti and Starke adopted the idea. The two systems of law, according to the writers,
differ in terms of sources, subjects, law substance, principles, and subject-matter
dynamicism.

3. Specific Adoption Theory: It is based on the dualist philosophy. According to this

principle, no laws of international law can claim to be enforced by municipal courts on
their own force unless they are transformed and implemented directly by municipal
courts and systems. Only if they are expressly adopted, international law laws become
part of national law.

4. Transformation Theory: The laws of international law are transformed, according to

proponents of this theory, for the application of international law in the field of municipal
law. When international law becomes more widely accepted, it undergoes changes. It
cannot be extended to local law until it is converted. States use a special
“transformational” device to integrate treaties and norms into their municipal rules.

5. Delegation Theory: This theory states that the rules of international law known as
“Constitutional rules of international/treaties” delegate a right to each state constitution,
allowing each state to decide or determine for itself how and when the provisions of an
international treaty or convention come into force, and how they are implemented or
embodied in statutes.

6. Consent Theory: John Locke defined the development of this principle and coined the
term “everyone is equal” from it. There were some issues with this, including the fact that
treaties and customs were not the only origins of international law. In this principle, any
party to a contractual arrangement will recognize all provisions of the international legal
framework. The basis of International Law, according to Article 38(1) of the Tribunal
Statutes, is “General Principles of Law Accepted by Many Civilized Countries.”[8] It
assists judges in developing international legal material. This demonstrates that for
International Law to work, agreement is not always needed. When it comes to treaties,
the consent principle isn’t entirely applicable. Although having an agreement with any
other country is relevant, having the consent of a third country is not. So no third party
will intervene in any of the States’ affairs.

Differences between International Law and Municipal Law:

The origins of law, its topics, and subject matter are thought to be the key differences
between foreign and municipal law.

1. International law is primarily concerned with state relations, although it is not

exclusively so. Municipal legislation regulates the interactions of individuals within the
state as well as between individuals and the state.

2. International law governs relations between members of the States family of nations.
Municipal law, on the other hand, governs the relationships between individuals who
are subject to the jurisdiction of a particular state, as well as the relationships that exist
between this state and the individuals who are subject to it.

3. The law of the nation is a law that governs the relationship between sovereign states
rather than above them. Municipal law, on the other hand, is the law of the sovereign
over persons as subjects.

4. International law is derived from states’ common will, its objects are the states
themselves, and its subject matter is international affairs. Domestic law is derived from
the sovereign’s or state’s will, its subjects are persons within the state, and its subject
matter is the relationships between individuals and government.

Position in India:

The Rules of International Law are only referred to in the most general terms in the Indian
Constitution, implying that the drafters of the Indian Constitution were highly
ambiguous in describing the status of International Law in the municipal sphere. The
relationship between foreign and municipal law is not well described in our Constitution.
India has not deviated from the common law status, according to a composite reading of
Articles 51(c) 253, and 372[9]. As a result, India will continue to treat customary
international law as part of the law of the land, as long as it does not conflict with current
constitutional provisions or the national charter.

In several cases, including Vishakha vs. State of Rajasthan[10], Randhir vs. Union of
India[11], and Unnikrishnan vs. State of Karnataka[12], the Supreme Court has held that
India’s domestic rules, including the constitution, are not to be read as violating
international law. In the event of any misunderstanding, an attempt should be made to
read domestic law as being in accordance with international law. Nonetheless, the
constitution remains the supreme rule of the nation, and in the event of a direct dispute,
the constitution will take precedence. In the case of BehramKhurshid v. State of
Bombay[13], it was determined that Privy Council rulings were not entirely binding on
Indian courts; instead, the court would examine the case’s rules and evidence to
determine whether or not they were valid. The Indian legal system would recognize
international laws as long as they did not supersede local laws and respected and adhered
to international rules and norms.

Conclusion:

It is commonly seen that National and International legal structures operate in their own
jurisdictions and they did not pose any threat of retribution and retaliation with each
other. Both structures are necessary and often helpful, and they also interact with one
another in a current context in relation to a variety of issues. Since Monist theorists claim
that International Law can fix any problems that have arisen within any State,
International Law is thought to be higher than Municipal Law. International Law was
earlier considered as the law between nations, but the position does not hold true today.
Now, it also embraces individuals. International Law gradually headed towards a human
commonwealth encompassing individuals, states and other aggregates cutting across
state boundaries.

It was also believed and argued by Kelsen that International law is such a law which
applies to any aspect of human life. International Law, according to monistic theorists, is
not covered by any law; rather, Municipal Laws are a part of International Law. Unless
the nation-state agrees to do so, it is not required to follow international law. Despite the
fact that both ideas have a position in international law, only a few countries in the world
practice pure dualism or monism. When international law is in the favor, they obey it;
when it is not, they do not. The doctrine’s central tenet is to keep all national and
international laws in order. It eliminates the distinction between foreign and municipal
law and establishes interdependence between the two for a more efficient judicial
process.

COUNTRIES

U. S.

Apart from the requirement to consider the Constitution, the American view on the link
between municipal law and customary international law appears to be very similar to
British practice. As a general concept, it is, of course correct that the United States has a
fundamental national interest in complying with international law,’ the US Supreme
Court stated in Boos v. Barry. The Constitution, on the other hand, applied to
international law. As in the United State, an early endorsement of the incorporation
doctrine was eventually amended. International law is part of our law, according to the
Paquet Habana case, and it must be established and administered by courts of
appropriate authority as often as problems of right relying on it are duly filed for
judgment. The current consensus is that customary international law in the United States
is federal law and that the federal courts’ decisions are binding on state courts. The
doctrine of precedent and the requirement to act following previously decided cases bind
US courts, and they, too, must apply the statute against any norms of customary
international law that conflict with it. In the Commission of United States Citizens Living
in Nicaragua v. Reagan case, the Court of Appeals reiterated that an act of Congress
might be challenged because it breaches customary international law. It has been
emphasized that the US legislative and judicial branches have the authority to disregard
international law when doing so is authorized by a statute or a “controlling executive
act.” This, like the wider relationship between custom and conflicting pre-existing
statutes, has sparked a lot of debate. However, it is now widely understood that statutes
replace older treaties or international law customary principles.

China

Despite the growing interest in Chinese studies in the United States, little, if any,
emphasis has been dedicated to the study of Communist China’s international law
perspective. Some may believe that, as a socialist country, Communist China cannot do
anything except follow the Soviet understanding of international law or that of socialist
countries in general. This viewpoint may contain some truth, but it does not reveal the
entire picture. Communist China accepts many of the principles of international law
promulgated or applied by the Soviet Union or Soviet jurists but given the growing
divergences in viewpoints between the two countries in dealing with many international
issues and conducting the international Communist movement, it is reasonable to
conclude that Communist China and the Soviet Union have developed differing
perspectives on international law. In this regard, Wu T6Feng, a prominent Communist
Chinese jurist and President of the China Political Science and Law Association, recently
published a study in which he harshly condemned the Soviet understanding of
international law.

India

Articles 51, 73, 245& 246 of the Indian Constitution have dealt with “international laws”
and “treaties,” but clause “c” of Article 51 specifically mentions “International law” and
“treaty obligation,” but art. 51 does not provide any clear guidance regarding the position
of international laws in India or the relationship between municipal laws and
international law, but Prof. C.H. If international law does not clash with any legislative
action, it is incorporated into municipal laws in India. The enactment or provision of the
constitution. Indian courts can use international law if it is not in contradiction with
domestic law. The Indian constitution’s “dualistic” doctrine allows foreign laws to be
incorporated into local law. International treaties are not immediately incorporated into
Indian law. To be incorporated into the legal system, an act of parliament must be passed.
The court will first look at local legislation, and if the municipal legislation is silent on an
issue, the court will turn to Customary International for help; the SC has done this before,
and the court did the same thing in the case of Jolly George Varghese and an. V. The Bank
OF Cochin.

U. K.

The United Kingdom’s public policy is that courts should, in general, give regard to
recognised international law standards. Various hypotheses have been proposed to
explain why international law laws are applicable within the jurisdiction. The doctrine of
transformation is one manifestation of the positivist dualist perspective. This is based on
the 9 perceptions of two distinct systems of law that operate independently, and
maintains that before any rule or principle of international law can have any effect within
the domestic jurisdiction, it must be expressly and specifically “transformed” into
municipal law using the appropriate constitutional machinery, such as the Constitutional
Court as an act of Parliament, Another viewpoint, known as the doctrine of incorporation,
says that foreign law instantly becomes part of municipal law without the need for a
constitutional ratification mechanism. The most famous proponent of this theory is the
eighteenth-century lawyer Blackstone, who wrote in his Commentaries that “the law of
nations, wherever any question arises which is properly the subject of its jurisdiction, is
here adopted in its full extent by the common law, and it is held to be a part of the law of
the land.”

d. Codification of International Law

Introduction

This article attempts to discuss the evolution of international law with time, while
focusing on the history of the process of codification of international law, which seems to
have made much of the concepts of international law of relative importance. But before
that we will have a brief intro to what international law is.

“International law, or public International law or law of nations is the body of legal rules,
norms, and standards that apply between sovereign states and other entities that are
legally recognized as International actors.”[1]

The term international law was first coined by, Jeremy Bentham. Simply defined, it is a
set of laws, agreements and treaties binding on different nations, which came together to
make them as they thought would favour their people. Increased interstate interaction
led to the creation of international law. Its key goal is to keep world peace and stability
between nations.

Though the standard definitions omit to justify that international law is more than just a
set of laws but rather “constantly evolving complex of rules, principles and procedures,
many of which are accompanied by progressively sophisticated framework.”[2]

Meaning and History of Codification

Codification can be defined as the method of reducing the commonly established

principles of a branch of law into a written code capable of enactment and reference. It
seeks to bring together the rules of law on a given topic, in a structured manner, making
their provisions simpler by filling in any loopholes, and also updating the rules to reflect
changing circumstances.

“In the restricted sense, it denotes the creation of codes, which are a collection of written
statutes, rules and regulations that inform the public of acceptable and unacceptable
behaviour. Thus, codification does not give birth to rules or principles of a branch of law
but only assists to consolidate, compile or give shape to the existing rules of a particular
branch of law or in general”[3]
Codification and progressive development of international law has gained widespread
acceptance as an important activity for states and a distinct legislative mechanism in the
contemporary international community. “According to Article 13, paragraph (1)(a), of the
Charter of the United Nations, the General Assembly is mandated to encourage the
progressive development of international law and its codification.”[4]

The drafting of legal rules in fields that have not yet been covered by international law or
adequately addressed in State practise is part of the progressive growth of international
law.

Sir H. Lauterpacht has narrowly defined the codification of international law. According
to him “The task of codifying international law, if it is to mean anything, must be
primarily one of bringing about an agreed body of rules already covered by customary
or conventional agreement of States”. Lauterpacht’s view only refers to the codification
as giving a written form to the unwritten principles/rules of international law. As
opposed to this, a wider point of view is codification of international law along entails
alteration and amendment of existing rules and principles of international law in order
to keep up with the changing times and provide for new developing concepts.

The efforts to codify international law dates back to 18th century. The first failed effort, to
draught up a Declaration of rights, 1792 was made by the French Convention. Later
Jeremy Bentham, a British philosopher, Jurist and a social reformer, conceived the idea
of codification of international law. Following that, eminent jurists like Oppenheim, Hall,
Phillimore, and Hyde sought to codify the laws of international law into a structure.

Treaty of Paris, 1856

The Treaty of Paris, 1856 holds a prominent place in the growth of codification of
International Law. The treaty was signed between Russia on one side and France, Great
Britain, Sardinia-Piedmont, and Ottoman Empire on the other. “The Plenipotentiaries
signed the present Declaration on the 30th of March 1856, at the conclusion of the Treaty
of Paris, which ended the Crimean War (1853-1856).It was the result of a modus vivendi
signed in 1854 between France and the United Kingdom, which was meant to be used
during the Crimean War.”[5]

The declaration laid down certain principles to resolve the maritime law, in times of war,
which has been subject to dreadful disputes. The following was adopted in the
declaration:
• “Privateering is, and remains, abolished;
• The neutral flag covers enemy's goods, with the exception of contraband of war;
 • Neutral goods, with the exception of contraband of war, are not liable to capture
under enemy's flag;
• Blockades, in order to be binding, must be effective, that is to say, maintained by
a force sufficient really to prevent access to the coast of the enemy.”[6]

Hague Conventions

The Hague Conventions held in Netherlands in1889 and then in 1907 at The Hague
relating to the laws of war and neutrality were the most significant achievement prior to
the First World War.

“The first conference was convened at the invitation of Count Mikhail Nikolayevich
Muravyov, the minister of foreign affairs of Tsar Nicholas II of Russia. The conference
met from May 18 to July 29, 1899; represented by 26 nations.”[7]While the conference did
not accomplish its primary goal of limiting military weapons and equipment, it followed
conventions specifying the conditions of engaging in war and other rules relating to land
and sea warfare. Most importantly, adopting the Convention for the Pacific Settlement of
International Disputes, creating the Permanent Court of Arbitration.

The second conference was formally convened by Nicholas II. Representatives from 44
states attended the meeting, which took place from June 15 to October 18, 1907. The
conference adopted number of conventions such as the use of force to collect contract
debts, rights and responsibilities of neutral forces/ individuals in wars, laying of
automatic submarine contact mines, enemy merchant ships status, naval bombardment
during wart, and creation of international court.

Declaration of London, 1909

Ten naval forces gathered in London from 1908 to 1909 to draught an agreement, on
belligerent controls on neutral trade and recognized and formalized the right of neutral
convoy. “The resulting Declaration of London classified goods as:
• Absolute contraband; First class, military equipment, was subject to seizure on its
way to any enemy territory.
• Conditional Contraband; Items such as food, clothing, and rolling stock, which
were to be treated as contraband only if in transit to the government or armed
forces of an enemy.
• Unrestricted. The third class listed goods were not subject to capture.”[8]

The declaration came pretty close to general agreement to be accepted by both sides when
in 1914, World War I broke out, even though it was never ratified. Items like Rubber,
cloth, and soap, were transferred from Unrestricted list to total contraband due to the
demands of total war. In 1916, the declaration was expressly rejected because it had
become obsolete.

League of Nations

With the resolution of the Assembly of the League of Nations of September 22, 1924,
envisaging the establishment of a Committee of Experts for the Progressive
Codification of International Law, the attempt to encourage the codification and
advancement of international law made another significant step forward. “The
committee consisted of seventeen experts who were to create a list of sufficiently ripe
objects, the regulation of which by International agreement was most desirable and
realizable. In 1927, the Assembly voted to call a diplomatic conference to codify three of
the five issues that the Committee of Experts had deemed ripe for international
negotiation, namely:
1. nationality,
2. territorial waters, and
3. the liability of states for harm to foreigner person or property caused on their
territories.”[9]

“The Codification Conference, which convened in The Hague from March 13 to April 12,
1930, drew delegates from forty-seven countries, but the only International instruments
that emerged from its work were on the subject of Nationality. After 1930, the League of
Nations did not try any further codification experiments. However, on September 25,
1931, the League Assembly passed a significant resolution on the codification system,
with the main theme being the expansion of government power at all stages of the
codification process.”[10]

United Nations

With the foundation of the United Nations, efforts to codify international law gained
momentum.

The goal of codifying international law was not only present, but also found a place in
the fundamental document establishing the United Nations under Article 13, paragraph
1 (a), of the Charter of the United Nations. The General Assembly was entrusted with this
role under the United Nations Charter.
“The General Assembly at its first session in 1946 established a committee on the
progressive development of International Law and its codification which convened from
May to June 1947 and advocated the creation of the International Law Commission.”[11]

The International Law Commission (ILC) first met on April 11, 1949 in Lake Success, New
York, United States. The agenda for the session consisted of six items:
1. “Planning for the codification of international law: survey of international law
with a view to selecting topics for codification.
2. Draft declaration on the rights and duties of States
3. Formulation of the principles recognized in the Charter of the Nuremberg
Principles and the concept of a crime against humanity.
4. Desirability and possibility of establishing an international judicial organ for the
trial of persons charged with genocide or other crimes.
5. Ways and means for making the evidence of customary international law more
readily available.
6. Co-operation with other bodies of United Nations.”[12]

The founding of the International Law Commission under United Nations General
Assembly was a watershed moment in the Codification Drive, a movement for the
systematic presentation of International Law in the form of written rules that either
restate existing norms of International Customary Law or formulate new ones.

Conclusion

Because of the nuanced nature of growing foreign affairs, which necessitate specific
formulation and affirmation, the task of Codification and Progressive Development
assumes great significance. The object of codification has been misunderstood as having
a progressive trend or as simply codifying state law, but in fact, the codification exercise
has proven to be beneficial.
Table of Contents

• Introduction
• Conventional sources
o International conventions and treaties
▪ Kinds
▪ Validity
▪ Formation or conclusion of treaties
▪ Reservation, declarations, and derogations
▪ Invalidity
▪ Termination
▪ Rebus Sic Stantibus
o Customary international law
▪ Meaning of custom
▪ Difference between custom and usage
▪ Tests of an international custom
▪ How does a practice or custom become customary
international law
o General principles of international law
▪ Reparation and remedies
▪ Prescription
▪ Res Judicata
▪ Estoppel
o Judicial decisions and juristic writings
o Ex Aequo Et Bono
o Hierarchy of norms
• Modern/ unconventional sources
o United Nations
 ▪ Resolutions of UNGA
▪ Resolutions of UNSC
• Conclusion
• References

Introduction

The term ‘sources’ is very vague. Many scholars and jurists opined differently as to what
is the meaning of the word ‘sources’ and what can be termed as actual and valid sources.
Lassa Oppenheim, a renowned jurist whose work was mainly focused on analysing
international law, observed in his book ‘International Law, a Treatise’, that sources of law
is the name for a historical fact out of which rules of conduct came into existence.
International law is comparatively a new branch of law. It has two sources: conventional
and modern. However, since international law is dynamic and ever-changing, the list is
open-ended. Many new sources have emerged with time. In this article, the author will
discuss both the kinds of sources of law in detail and draw the connection between them.

Conventional sources

The conventional sources of international law are enumerated under Article 38(1) of
the Statute of the International Court of Justice. These sources can be classified as ‘formal’
or ‘material’. Treaties, custom, and general principles are formal sources. They are
obligatory in nature and legally binding on the parties who are involved in their
constitution. Therefore, they are also known as hard laws. Material sources, on the other
hand, are the interpretation of those obligatory rules. They involve judicial decisions and
juristic teachings. However, with the evolution of international law, the accuracy of these
sources are now in question. The conventional sources are further explained below in
detail.

• International conventions and treaties

Article 38(1)(a) of the Statute provides convention as one of the formal sources of
international law. It states that, while deciding any case, the court shall apply general or
particular international treaties that are expressly recognized by the contracting party.
They are a binding written agreement between two or more parties, creating mutual
rights and obligations. Thus, a treaty or convention is contractual in nature. They are also
known as a pact, agreement, covenant, charter, and memorandum of understanding.
 • Kinds

For a treaty to be a source of law and not just a source of obligation, it shall be universal
and affect even the non-parties of the contract. Accordingly, treaties are divided into two
types, that are as follows:

1. Law-making treaties: These kinds of agreements have a large number of parties.

Thus, they are also called multilateral treaties. They can be used directly as a
source of international law. Further, these treaties have a general legal standing,
rather than being specific to the parties in a contract. They may lay down
general rules or enunciate universal rules. Some examples of multilateral
treaties are the United Nations Charter , Vienna Convention on the Law of
Treaties, 1969 (VCLT), etc.
2. Treaty contracts: Treaty contracts or bilateral treaties are generally contracted
between two parties. They are drafted in a way that they only suit the object,
and establish the rights and obligations against the parties in the contract.
Further, a treaty which is originally between two States can later be converted
into a multilateral treaty by adding more parties that will be universally
accepted by all. The Simla Agreement of 1972 between India and Pakistan is an
example of a bilateral agreement.

• Validity

The validity of the treaties or conventions is founded upon the maxim, Pacta Sunt
Servanda, which means promises once made shall be kept. It is one of the oldest principles
of international law. A treaty is not valid if it is not executed in good faith. The signatories
of the agreement, in the absence of any provision, shall act in good faith. It is a governing
principle of any convention, without which the contract is void. Further, it is enshrined
in Article 2(2) of the UN Charter as well. The doctrine is also included in the General
Principles of International Law. However, it is not an absolute principle, and there are a
few exceptions to this rule. This principle is not binding on the State that emerged from
an existing State, that is a part of the treaty. It is an exception to the rule of Rebus Sic
Stantibus, which is explained in detail in the subsequent section of the article.

• Formation or conclusion of treaties

Treaties are generally between the head of the States however, a few agreements
addressing minor issues can be between government departments. There is no codified
procedure regarding the formation or conclusion of an international treaty. Nonetheless,
there are a few steps given under VCLT that are to be followed while forming any
convention.

• Accrediting of representatives
Each State appoints a representative with the necessary authority to conduct negotiations
and conclude treaties. They are given formal instruments by the head of the State or by
the Ministry of Foreign Affairs namely, ‘full powers.’ It provides the person the authority
to negotiate and adopt the covenant. Article 7 of the Vienna Convention regulates this
procedure.

• Negotiation and adoption

Negotiation is conducted in a multilateral treaty through, ‘diplomatic conference’, and in
a bilateral agreement through ‘discussions’. All the accredited persons shall present their
proposals in the conferences, which are either accepted or rejected, and counter proposals
are made. The final proposals approved by all the parties is called a draft treaty.
According to Article 9 of the Vienna Convention, the draft treaty shall be adopted with
the consent of all the participating parties and by the vote of two-thirds of the States
present at the conference or by any other rule decided by the parties.

• Expression of consent
The VCLT provides several modes of expressing consent to become a party to a treaty.
The agreement might expressly state the method of granting a consent or, it might be
silent. When it is silent, either of the modes can be adopted by the parties.

1. Signature: A State can grant consent through the signature of its representative
or accreditor. In practice, the signature is not considered as the final phase of
demonstrating consent, and ratification of the treaty in the State is mandatory.
2. Ratification: A ratification is a final form of expression of consent, after which
the State is bound by a treaty. Very few Constitutions give the power to directly
ratify the convention to the Parliaments. In most cases, approval from
Parliament is required before it is ratified and applied to the Constitution. VCLT
does not assign any time limit to ratify the treaty however, it shall be executed
in a ‘reasonable time.’
3. Accession: In certain circumstances, a State may become a party to the treaty,
in which it has neither participated in negotiations nor is a signatory. It has the
same legal effect as ratification.
 • Entry into force
A treaty will have a binding effect on a State when it enters into force according to the
provision of the contract. A multilateral covenant normally comes into force when a
stipulated number of ratifications or accessions is received.

• Registration and publication

According to Article 102 of the UN Charter, every international agreement has to be
registered with the Secretary-General of the United Nations.

• Reservation, declarations, and derogations

1. A State often ratifies an agreement with the condition that it shall not be bound
to specific provisions, which it expressly states in the treaty itself, or by an
agreement between the contracting parties, or by a reservation made regarding
those provisions. Reservation is defined under Article 2(1) of the Vienna
Conventions. For example, reservation to the Genocide Convention was made
by various countries. The reservations or unilateral declarations are binding,
however whether they are a part of treaty, custom, or an independent source of
international, is still debatable.
2. Declaration slightly differs from reservations, as it does not affect any legal
obligations mentioned in the treaty. It merely clarifies the State’s position
regarding a provision. It is given at the time of signature, which then is annexed
to the treaty.
3. Lastly, derogations are applied to the International Human Rights Law, which
allows a State to temporarily suspend the exercise of certain treaties or
conventions during armed conflict or national emergency.

• Invalidity

Article 42 of the Vienna Convention talks about the invalidity of treaties. It is analogous
to that of the invalidity of a contract. The article states that a treaty can only be invalidated
according to the grounds enumerated under this convention. Articles 46-53 stipulate
various grounds, that are as follows:

1. Lack of proper authority to represent the State

2. A mistake in the treaty
3. Coercion of the State and/or representative
 4. Corruption of the representative
5. Jus Cogens

• Termination

Termination of a treaty means when a treaty ceases to exist or ends. It can still exist after
its termination however, it will not be binding on the parties who defected from it.
According to Part IV of the Vienna Convention treaties can be terminated by:

1. Consent
2. A subsequent agreement
3. Denunciation, that is, when a time-bound treaty comes to an end.
4. Material breach
5. Jus Cogens
6. Rebus Sic Stantibus

• Rebus Sic Stantibus

The principle of Rebus Sic Stantibus provides that when there has been a fundamental
change in the circumstances since the enactment of a treaty or convention, a party can
withdraw or terminate the agreement. The object of this doctrine is that sometimes due
to some significant changes in a State, drastic measures have to be adopted that might be
restricted under the treaty. Article 62 of the Vienna Treaty captures the essence of the
doctrine. According to the Article, ‘fundamental change of circumstances’ cannot be
invoked as a ground for terminating from a treaty in the following cases:

1. If the treaty establishes a boundary

2. If the fundamental change is due to a breach by the party acting in
contravention of the agreement against another party of the same treaty or of
any other State.

• Customary international law

Custom is known as one of the oldest sources of international law. Before the emergence
of treaties, customs were the sole source of international law. In fact, various conventions
are the product of customs that have evolved with the changing needs of society.
International custom is encapsulated under Article 38(1)(b) of the Statute of the
International Court of Justice. It is regarded as the general practice accepted by law.
However, it is difficult to establish the existence of an international custom in the court
of law. That is the reason why the importance of custom has declined over time, and
treaties and UN charters have replaced them.

• Meaning of custom

Custom is a habitual or accustomed course of conduct. In a primitive society, when the

laws were not codified, rules of approved behaviour were laid down. They were assumed
to be accepted by every person in the community by birth. As the society became
complex, it became pertinent to lay down a few rules that were recognized as the right
rule of conduct. The practices that got legal backing in the international plane are now
known as the international custom laws. The ICJ in the Asylum Case described custom
as, “a constant and uniform usage accepted as law.”

• Difference between custom and usage

Usage can be understood as behaviour that may be executed as a courtesy. Unlike

custom, a person does not have any legal obligation to comply with the usages.
According to J.G. Starke, an expert on international law remarked in his famous book,
‘Introduction to International Law’, that usage is the prior stage of custom. Custom
begins when usage ends. It is the kind of rule that does not have any legal backing as of
yet. Moreover, many usages do not require any legal attestation as its non-compliance
does not lead to any dire consequences. They are done merely as social consciousness.

• Tests of an international custom

The existence of customary rules can be gathered from the practice and behaviour of the
States. However, it is difficult to distinguish whether the rule adopted by the State was a
custom or usage. Thus, Starke laid down two tests that should be conducted before giving
any State rule legal attestation in the international platform.

• Material test
The material test refers to the practice of the State. It is the objective element of the custom
that is key to the establishment of a customary rule. It should be uniformly accepted by
the citizens of the state. The duration and frequency of the practice should also be taken
into account before announcing it as customary international law.
 • Psychological test
This test comes into being when the material test is unambiguous. The subjective element
of the custom or the opinio juris helps in distinguishing custom from an action followed
as a matter of choice or for other reasons. It must be inferred from all the circumstances
and not merely from the details that constitute the material element of the customary
rule.

• How does a practice or custom become customary international law

The International Court of Justice in the North-Sea Continental Shelf Case laid down four
pre-requisites that must be satisfied for a practice or custom to become law under Article
38(1)(b):

• Uniformity and consistency of practice

In the Asylum Case the ICJ recognised the need for custom to be uniform and consistent.
This is interpreted from Article 38(1)(b) which refers to international custom ‘as evidence
of a general practice accepted as law.’

• Generality of practice
For a rule to be recognised as an international custom it is not necessary for it to be
uniform however, it should be generally observed by numerous States. There has to be a
sufficient degree of participation by the States whose interest depends upon the
enactment of the customary law. Following are the State Practices that are generally
accepted as evidence of custom:

1. Treaties between States

2. Judicial decisions of the municipal and international court
3. Juristic opinions
4. Similar provisions in the national laws
5. Practice of international organs
6. Diplomatic relations between states

• Long duration with wide acceptance

Duration plays a significant role in determining the standing of a custom in municipal
law. However, immemorial antiquity is not given much emphasis in international law,
provided generality and opinio juris of the practice are proved. Customs regarding space
law and continental shelf was given legal backing on the global platform somewhat
quickly.

• Opinio juris et necessitatis

The State practice, even when it is consistent and widely accepted, is not a customary
law, unless it is accompanied with the ‘psychological element’, that is opinio juris et
necessitatis, meaning, an opinion of law or necessity. It is the thin line that connects usage
to custom. The International Court of Justice in the Nicaragua case held that if the opinio
juris or legal obligation of usage can be proved, it will turn into an international custom.
Further, a custom can only bind a few States, as they are ‘regional legal traditions.’ In the
case of Right of Passage over Indian Territory, the claim of Portugal over the right of passage
between the Portuguese enclaves in India was upheld by the court, as there existed a
general and uniform practice that allowed free passage. Moreover, the practice was
accepted as law by both the parties, until it was challenged by India. This custom only
applies between India and Portugal, and no other State can benefit from this rule.

• General principles of international law

The general principles of international law is the third source of international law
recognised under Article 38(1)(c). This provision comes into picture when other
traditional sources, such as the treaties or customary law does not provide a rule of
decision. However, the term ‘general principles of international law as applied to the civil
nations’ is vague, and many scholars have tried to interpret it. It has been debated for
long whether or not they constitute a valid source of international law. Professor
Schlesinger refers to general principles as “a core of legal ideas which are common to all
civilized legal systems.” In the North Sea Continental Shelf Cases, the ICJ opined that the term
‘civilized nations’ should not be added as a legal element to evidence General Principles.
Such a phrase would be discriminatory and against the United Nations Charter that
promotes the equality of all members and non-members. However, there are a few
principles that have been employed by the courts while pronouncing judgements. They
can be considered as the general principles of international law.

• Reparation and remedies

Reparation means the damages paid to the injured party caused by an unlawful act of the
other party. The purpose of reparation is to re-establish the situation that existed before
such harm occurred. International courts in various judicial decisions have recognised
reparation as a part of general principles. In the case of AMCO Asia Corporation & Ors. v.
The Republic of Indonesia, the Permanent Court of Arbitration while awarding damnum
emergens or reparations to the injured party, held that it is a common principle of
municipal law and, hence it is also considered as a source of international law through
general principles.

• Prescription

Prescription refers to the acquisition of territory by an adverse holding, peacefully

without protest continuously for a long time. It is recognised both in domestic and
international law cases. The principle has been used in multiple cases by the international
courts. In the Island of Palmas case, the Arbitration Court applied this principle while
pronouncing the judgment. The United State in 1928 argued that the Island of Palmas
was rightfully theirs since at the end of the Spanish-American war in 1898, Spain ceded
the territory to the USA. However, the territory was undisputed for a long time, and thus
the contention of the USA was rejected by the court, and Netherland was awarded the
Island.

• Res Judicata

The principle of Res Judicata is encompassed in municipal as well as international law. It

is a Latin maxim which means, ‘a matter decided’, or ‘the thing has been judged’. In legal
terms, once a case is finally adjudged by the court, it will be deemed conclusive and the
established fact of the case shall not be disputed by either of the parties again in the higher
courts. The doctrine was applied by the ICJ in the Chorzow Factory case, wherein an appeal
by Poland to reopen the issue of fact of the case was rejected by the court on the ground
of rule of res judicata.

• Estoppel

Estoppel is a rule of national as well as international law that bars a party from leading
evidence that is inconsistent with his prior conduct and facts against the opposite party.
A person should not benefit from his own inconsistency and prejudice of another party.
However, the principle is not applicable in those cases where the person seeking it
benefits from such discrepancy. In the Tinoco Concessions Arbitration Case, Costa Rica
benefited from the inconsistency of statements by Great Britain, and thus the Arbitration
Court rejected the plea of estoppel by Costa Rica.

• Judicial decisions and juristic writings

These are the subsidiary or secondary sources of international law that are regarded as
the interpretations of the primary sources. They are recognised under Article 38(1)(d) of
the Statute of the International Court of Justice. However, according to Article 59, the
decisions of the ICJ are not binding, except on the parties involved and in respect of that
particular case only. Thus, the doctrine of precedent that is applicable in the national
courts, is not applicable in the international courts. Moreover, every juristic writing is not
accepted as a source of law. The teachings of most highly qualified publicists are regarded
as the subsidiary source of international law. They are generally accepted as evidence of
the law, rather than the source of law.

Ex Aequo Et Bono

The maxim Ex Aequo Et Bono encapsulated in Article 38(2) implies that a case can be
decided on merit, or based on equity and good conscience of the court, rather than the
law specified under Article 38(1). It allows the court to go outside the realm of the codified
edict. This maxim is applied only with the mutual agreement of all the parties and not
otherwise.

Hierarchy of norms

Whether there is a hierarchy of norms in international law is arguable, as there is no such

hierarchy according to Article 38 of the Statute of ICJ. However, certain principles in
international law are of utmost importance and should be observed by all States. These
rules gain the status of jus cogens, which is peremptory norms from which no derogation
is allowed. Article 53 of the Vienna Convention recognizes the principle of jus cogens. It
states that a treaty which departs from the doctrine of peremptory norms of international
law shall be void. Three principles that must observe the rule of jus cogens are as follows:

1. Those exist in the common interest of the whole international community.

2. Those created for humanitarian purposes.
3. Those introduced by the UN Charter against the threat of use of force in
international relations.

Modern/ unconventional sources

International law is dynamic and fast-changing with time. The list of sources of
international law codified in the statute of ICJ is not exhaustive. It takes into account the
changes in the international law community and recognizes the emerging modern
sources. These sources act as evidence of the existence of traditional sources. The modern
sources include decisions of the United Nations and its organs, and other international
organisations.

• United Nations

The United Nations is an international organization formed in 1945 that comprises 193
members. The organization aims to maintain international peace and security and
develop friendly relationships among the nations. It has six organs, namely, the General
Assembly (UNGA), the Security Council (UNSC), the Trusteeship Council, the Economic
and Social Council, the International Court of Justice, and the Secretariat. The decisions
and resolutions of the UNGA, UNSC, and ICJ are the key sources of law. While ICJ is
considered as a traditional source, UNGA and UNSC are categorized under
unconventional sources.

• Resolutions of UNGA

The General Assembly is the principal organ of the UN that comprises all the State
members, each having one vote. The resolutions passed by the UNGA are not considered
to have an authentic legislative character, meaning it does not have any binding force on
the State members or the ICJ. However, the resolutions and decisions may have
normative value. They sometimes provide significant evidence to establish the existence
of a rule or an opinio juris, without which international custom is not recognized.

• Resolutions of UNSC

The Security Council is responsible to preserve global peace and safety. There are 15
members in the Council, including five permanent members. The meeting of the Council
takes place only when the members feel that world peace is at risk. According to Article
25 of the UN Charter, the resolutions of the UNSC that enforces the measures in Chapter
VII of the Charter, are legally binding upon the State members. However, there are
controversies regarding the binding force of other resolutions. The advisory opinion of
ICJ regarding the issue of Namibia states that Article 25 applies to all the resolutions
adopted in consonance with the Charter and not just to the measures in Chapter VII
otherwise, the object of the Article goes unfulfilled. Since it was an advisory issued by the
Court, it was opposed by some States. Thus, the applicability of Article 25 is still in
question, nevertheless, the underlying binding principle of the provision is unanimously
upheld by all the State members and the international courts.
 5. Teachings of the Most Highly Qualified Publicists

As for the teachings of the most eminent scholars, it should be noted that these teachings
are also called juristic works or doctrines. These juristic works are not binding law,
however, many of them have been of tremendous significance in the development of
international law. For example, Gidel's opinion on additional zones at sea was followed
by many scholars and eventually became customary international law. Later,
Alfred Pedro's opinion on the concept of the common heritage of mankind became a
recognized concept in the high seas zone and deep ocean seabed.

Conclusion

The sources of international law cannot be isolated into separate water-tight containers.
They interact closely and influence each other. A treaty, which is a set of codified rules
now is a product of long evolution that might involve custom, discussion and
deliberations by the international organizations. Many times customary international
laws are turned into treaties through codification. The covenants are then interpreted and
implemented by the world court and municipal courts, which becomes another source of
international law. Various new sources have also emerged from the interactions between
the existing sources of law. Thus, the key to understanding one source is to study it in
relation to other sources.
a. Recognition

Table of Contents

• Introduction
• Recognition of a State
o Essentials of Recognition of a State
o Kelson’s view on the recognition of states
o Process of Recognition
o Israel-Palestine Dispute
o China-Taiwan Dispute
• Political Recognition of State
o Montevideo Convention
• Theories of Recognition
o Constructive Theory of Recognition
▪ Criticism
▪ Oppenheim’s View on Recognition of State
o Declarative Theory of Recognition
▪ Criticism
• Modes of Recognition
o Recognition of a new State
 oRecognition of a new government
▪ Objective Test
▪ Subjective Test
o Recognition of belligerency
• Forms of Recognition
o De Facto Recognition
o De Jure Recognition
o Difference between De Facto and De Jure Recognition
o Express Recognition
o Implied Recognition
o Conditional Recognition
• Withdrawal of Recognition
o Withdrawal of De Facto Recognition
o Withdrawal of De Jure Recognition
• Conclusion
• References

Introduction

A new state is born out from an existing State or an old State which disappeared and
comes with a new name or by splitting an existing State into two States. If a new state
enjoys certain rights, privileges and obligations then it must get recognition as a state,
which is very essential. However, there are some minimum criteria required before a
State is considered to be a State. A State must get the De Jure (when a state is legally
recognized) recognition for considering a State as a sovereign State. Political thought
plays an important role in this decision whether to grant recognition or not. For
recognition as a State, it must enter into relations with the other existing States. The
elements, theories, and processes are reflected in this article.

Recognition of a State

Under International Law, recognition of a State can be defined as:

A state acknowledgment or acceptance as an international personality by the existing

State of the international community. The declaration to fulfill certain essential conditions
of Statehood as required by International Law.

Essentials of Recognition of a State

 • Population;
• Territory;
• Government;
• Sovereignty;
• Control should tend towards permanency.
If these conditions are fulfilled, then the State can be recognized.

Kelson’s view on the recognition of states

For a state to be recognized the following conditions must be fulfilled-

• Must be politically organised.

• Have control over definite territory.
• Must be permanent.
• Must be independent.

Process of Recognition

• State is not only an institution with international legal standing but they are the
primary subjects of International Law and possess the greatest range of rights
and obligations.
• Mixture of fact and law and the establishment of particular factual conditions
and compliance with relevant rules are the process of creating new States.
• States are not bound to recognise new claimants of Statehood and make it a
positive duty to recognize a State.
• Recognition is mainly a matter of intention.

Israel-Palestine Dispute

In this dispute, India did not recognize Israel till 1999 and also South Africa till 1991 due
to racism. Even though India got military support from Israel, still it didn’t recognise
Israel. Where both the countries had all the parameters under Montevideo Convention.
But Palestine got limited recognition by countries because they had large number of
Zewish population.

China-Taiwan Dispute

In this dispute, 15 countries recognised Taiwan as a state all over the world. Taiwan was
officially known as the Republic of China and is recognised by 19 member states of the
UN. Other countries have business relations with Taiwan but they don’t recognise it as a
state. Taiwan unofficially maintains diplomatic relations with 57 other members of the
UN.

Political Recognition of State

• Political act in recognition is used to support or to reject a state or a government

which is new in an international community.
• Mixture of fact and law and the establishment of particular factual conditions
and compliance with relevant rules are the process of creating new States.
• Criteria of Statehood is laid down in the Montevideo Convention, which
provides that State must have a permanent population, a defined territory and
a government and the capacity to conduct International relations.
• Recognition of State is a political act based on interest and assessment made by
States individually, but legal arguments are important.

Montevideo Convention

To consider a State as an international person, State should adhere to following

qualifications-

• Permanent Population;
• Definite Territory;
• Government;
• Capacity to enter into relations with other States.

Theories of Recognition
There are two theories of recognition-

• Constructive Theory,
• Declarative Theory.

Constructive Theory of Recognition

• This theory is coined by Hegel and Oppemheim.

• According to this theory, the State is considered as an international person. This
theory views that after the recognition a State gets its status of an International
person and becomes a subject to International Law.
• This doesn’t mean that State doesn’t exist unless recognised, but in this theory
State gets the exclusive rights and obligations and becomes a subject to
International Law after its recognition by other existing States.

Criticism

This theory is criticized by many of the jurists, few of them are-

• That except the State which is recognised by other existing States, rights, duties,
and obligations of Statehood community under International Law is not
applicable to this theory.
• It also comes into confusion when a new State is recognised by some of the
existing States and not recognised by other States.

Oppenheim’s View on Recognition of State

• A State is and will only be an international person if recognised as

extraordinary. There is no agreement that countries have to give recognition to
a State, there is no obligation on the countries, obligation lies under
international law who will give recognition to a new State.
• Existing countries recognised a country as a member of the international
community and believe that the State meets the requirements of international
law outside the country.

Declarative Theory of Recognition

 • Declarative Theory is coined by Hall Wagner and Fisher.
• This was developed in the 20th Century to address shortcomings of constitutive
theory.
• Before the recognition of the State, a new State has the right to defend its
integrity and independence under International Law.
• This theory is laid down under Article 3 of Montevideo Conference of 1933
• Followers of this theory consider this process of recognition as merely a formal
existence of Statehood by other States

Criticism

This theory has also been criticized. It is criticized on the grounds that this theory cannot
be applicable for recognition of the State.

When the essential characteristics are fulfilled by a State then it comes into existence. If
international rights and obligations are exercised by the State then declarative theory
applies. But when the State gets the legal rights of recognition then constructive theory
applies.

Modes of Recognition

Recognition of a new State

Recognition specifies the willingness of recognizing State. Existing State is a member of

the International Community who will deal with a new State.Under International law it
allows the recognized State to exercise the rights and duties of the State. Recognition of
the Government automatically involved in recognition of a new State.

Recognition of a new government

Through the medium of the government a State participates in the benefits of

International Law largely. To recognise the government, recognising the State is
important.
Objective Test

• Is there any opposition or not?

• Whether the new government has effective territory?

Subjective Test

• Whether fulfilled the International Obligations?

Recognition of belligerency

Belligerency exists when a portion of the States territory and population is under the de
facto control of the people who are fighting against the government to establish a separate
State or to overthrow the existing government.

A civil war may turn into a real war if the rebels are in possession of a substantial part of
territory.

Recognition of belligerency was granted during most of the civil wars of the 19th
Century, such as the American civil war and war during the Independence of the
Twentieth Century.

Forms of Recognition

De Facto Recognition

• De Facto Recognition is mostly granted to governments.

• It is a temporary recognition of a State, this can be conditional or without any
condition.
• This mode of recognition is granted when a new State holds a sufficient
territory or control over a particular territory, but the other existing State
consider that when they don’t have enough stability or any other unsettlement
issues. So we can take it as a test of control for newly formed States.
• The UK first recognized Soviet Government as de-facto recognition in 1921 and
later recognised as de-jure in 1924.
De Jure Recognition

• De Jure Recognition is given to a new State when a new State fulfills all the
essential characteristics of a State.
• De Jure recognition can directly be granted to a State who has or has not granted
de-facto recognition.
• Newborn States grant the permanent status as a sovereign State through de-
jure mode of recognition.

Difference between De Facto and De Jure Recognition

De Facto Recognition De jure Recognition

De Facto recognition is temporary and De Jure recognition is a permanent and legal

factual recognition. recognition.

De Facto recognition is granted to a De Jure recognition is granted to a State when all

State when it fulfills the essential the essentials are fulfilled along with the
conditions of State. permanent control of that essentials.

De Facto recognition is the primary De Jure recognition can directly be granted

step to grant De Jure recognition. without De Facto recognition.

De Facto recognition can easily be

De Jure recognition can never be revoked.
revoked.

The States having De Facto recognition The States having De Jure recognition can enjoy
cannot enjoy diplomatic immunities. diplomatic immunities.

The States having De Facto recognition The States having De Jure recognition have
have only few rights and obligations absolute rights and obligations against other
against other States. States.

Express Recognition
 • When an existing State identifies a new State expressly by official declaration
or notification, then it is considered to be a expressed form of recognition.
• Express recognition can be expressed through formal means such as sending or
publishing declaration or statement to the opposite party.
• It can also be expressed through personal messages from the head of State or
from the minister of foreign affairs.

Implied Recognition

• When an existing State identifies a new State through any implied act then it is
considered as implied recognition. There is no formal statement or declaration
issued.
• The recognition through implied means may vary from case to case. The actions
required for implied recognition must be ambiguous and there shouldn’t be
any doubt in the intention of the State who recognises a new State.

Conditional Recognition

• Some conditions are attached to the recognition of the State to obtain status as
a sovereign State. The conditions attached may vary from State to State such as
religious freedoms, the rule of law, democracy, human rights etc.
• The recognition of any State which is already associated with the essential
conditions are needed to be fulfilled for the status of sovereign State, but when
any additional condition is attached then it is Conditional Recognition.
• Jurists criticise conditional recognition. It was criticized on the ground that
recognition is a legal procedure and nothing additional condition can be
attached unless the conditions are recognised by law.

Withdrawal of Recognition

Withdrawal of De Facto Recognition

• Under International Law, when a State having De Facto recognition but fails to
obtain or fulfill the essential conditions then the recognition can be withdrawn.
 • The recognition can be withdrawn through declaration or through
communicating with the authorities of the recognised State. It can also be
withdrawn by issuing a public Statement.

Withdrawal of De Jure Recognition

• Withdrawal of De Jure recognition is a debatable topic under International Law.

Withdrawal of this recognition comes under as an exception.
• This recognition can be withdrawn when a State loses the essentials elements
or other circumstances.

Retroactive Effect of Recognition

While discussing it firstly it is important to know the literal meaning of retroactive effect.

According to Merriam-Webster Dictionary “Retroactive Effect” means extending in

scope or effect to a prior time or to conditions that existed or originated in the past made
effective as of a date prior to enactment, promulgation, or imposition. Or in simple words
if a law or decision, etc. is retroactive, it has effect from a date before it was approved.

So, applying this meaning to recognition concept then what does it means?

It is considered by various jurists that de jure recognition has retroactive effect. In other
words, after a state is recognized, its acts done prior to recognition are also recognized.

According to J.M. Jones, “this rule is based on policy of the States, rather than on any
juristic logic.”

In simple words, Retroactive effect of recognition means when a state recognizes another
state it often recognizes the past acts of such a state with view to establish friendly
relations with such a state.

Also, it is important to note that the retroactive effect of recognition and its extent depend
on the intention of recognizing state.

Case: – Civil Air Transport Incorporated Co. v/s Central Air Transport Corporation,
1953 A.C. 70

This is leading case law on the concept of Retroactive Effect of Recognition.

Facts: – the appellants in this case were a registered corporation in Delaware State of the
United States of America and the respondent corporation was an institution under the
national government of China.

After the revolution in China Chiang Kai Shel fled away to Formosa. Also, the chairman
of the respondent corporation also fled away from Hongkong to Peking and declared his
loyalty towards the Peking Government. The Peking government declared respondent
corporation was its property. After fleeing away from China, the government of Chiang-
Kai-Shek established its headquarters in Formosa and sold the property of the respondent
corporation to an American firm. This property included 40 air-crafts which were lying
at an airfield in Hongkong. The court had to decide whether the Chiang-Kai-Shek
government was entitled to sell it property.

Question: – Whether past act of de jure government can be valid only if such a
government is the same which had been granted de facto recognition previously.

Held: – Court in this case held that

• Intention determines retroactivity.

• Where a specific date is specified, recognition begins on that day. As a result, it is
an exception to the usual norm of retroactivity.
• Acts of prior de jure governments cannot be rendered null and void by later de
jure recognition of new governments.
• Primarily, recognition purports to legitimate the actions of a de facto government,
which has now taken the place of the previous de jure government, rather than to
invalidate the actions of the prior administration. The impact of recognition begins
on the day of de facto recognition, even in cases when a State receives de jure
recognition later and de facto recognition at first. It might be seen as a rule by
appearances.

Conclusion

The recognition of the State is an essential procedure, so that the State can enjoy the rights
and privileges as an independent community under International law. The recognition
be it De Facto and De Jure, both provides rights, privileges and obligations.

When a state gets De Facto recognition, its right, privileges and obligations are less but
when De Jure is recognised by the State it gets absolute rights, liabilities and privileges.
The recognition of the State has some political influence on the International Platform.
There are many situations where powerful States create difficulties in recognition of a
newly formed State. This can be withdrawn when any State does not fulfill the conditions
for being a sovereign State. De Jure and De Facto recognition may vary from case to case.
De Jure recognition can be given directly to the State, there is no necessity of De Facto
recognition even if De Facto is considered as the primary step to achieve De Jure
recognition.

b. Extradition and Asylum

Table of Contents

• Introduction
• What is extradition
• The philosophy behind extradition
• Purpose of extradition
o To prevent escape from punishment
o Extradition as a deterrence
o To maintain peace in the territorial state
o To reciprocate diplomatic kindness
o To enhance international cooperation
• Principles of extradition
o Principle of Reciprocity
o Principle of Double Criminality
o Principle of Double Jeopardy
o Principle of Speciality
• Prerequisites for extradition
o Extraditable persons
▪ Territorial state’s own nationals
▪ Political offenders
▪ Persons already punished
o Extraditable crimes
▪ Religious offences
▪ Military Offences
• International Model Laws on extradition
o The United Nations Model Treaty on Extradition (1990)
o The United Nations Model Law on Extradition (2004)
• Challenges in Extradition Law
• Extradition under Indian Laws
o The Extradition Act (1962)
• Restrictions on surrender under Indian Law
 • Procedure for extradition in India
o Procedure for extradition from India
o Procedure for extradition to India
• Landmark cases on extradition
o Savarkar’s case
o Vijay Mallaya’s case
o Nirav Modi’s case
o Re Castioni’s case
o Re Meunier’s case
• Conclusion
• Frequently Asked Questions (FAQs)
• References

Introduction

A person who committed or allegedly committed an offence is usually tried in the

country where it is committed or allegedly committed. However, what happens when
the person flees such a country to evade facing the trial? Or, what if a convict runs from
the territory of such a nation to escape the conviction? In such cases, the country from
which the convict or accused fled officially requests the country to which fled to return
him. The process of returning the convict or accused to the nation he escaped from is
called extradition.

What is extradition

The term ‘extradition’ originates from two Latin words- ‘ex‘ meaning ‘out’ and ‘tradium‘
meaning ‘give up’. It is based on the Latin legal maxim “aut dedere aut judicare” meaning
“either extradite or prosecute”.

As Oppenheim defined, “extradition is the delivery of an accused or a convicted

individual to the State on whose territory he is alleged to have committed or to have been
convicted of, a crime by the state on whose territory he happens for the time to be”.

As Chief Justice Fuller observed in the case of Terlinden v. Ames (1902), “extradition is the
surrender by one nation to another of an individual accused or convicted of an offence
outside of its own territory and within the territorial jurisdiction of the other which, being
competent to try and punish him demands the surrender”.

There are two states involved in extradition- the territorial state and the requesting state.
The “territorial state” is where the accused or convict flees to escape the trial or
punishment. On the other hand, the “requesting state” is the one where the offence is or
is allegedly committed. The requesting state formally demands the surrender of the
accused or convict through diplomatic channels and in conformity with any treaty.

The philosophy behind extradition

The concept of extradition is based on the contention that an accused or convict can be
tried or punished with utmost efficacy at the place where the cause of action arose or the
crime took place. This is because it is much more advantageous to prosecute the offender
in the country where he committed the offence; for instance, procuring the relevant
evidence is more convenient in the country where the offence was committed than in any
other country. Also, such a country has a significant amount of interest in punishing the
offender.

Moreover, the concept of state sovereignty kicks in while dealing with extradition. State
sovereignty refers to the ultimate authority of the concerned state over its own citizens
and territorial jurisdiction. So, technically speaking, no state is required or bound to hand
over to another state any person (either its own citizen or a non-citizen) currently present
within its territorial jurisdiction.

However, the mutual interests of both the territorial state and the requesting state for the
maintenance of law and order and the administration of justice require that the nations
should cooperate with each other in returning the accused person or convict to the
requesting state. Hence, to avoid the clash between state sovereignty and administration
of justice, most states enter into various treaties governing extradition. Also, various
countries incorporate provisions for extradition in their penal codes.

As far as India is concerned, the Indian Penal Code, 1860 does not explicitly mention
extradition but implies it in the Sections related to jurisdiction. The Extradition Act,
1962 explicitly deals with it.

Purpose of extradition

An accused or convict is extradited by the territorial state to the requesting state for the
following purposes:

• To prevent escape from punishment

Most fugitive convicts or accused persons run from the competent jurisdiction to other
countries hoping to escape from the impending punishment for the offence they are
convicted or accused of. Such unjustifiably motivated accused persons or convicts should
be extradited so that their offences may not go unpunished.

• Extradition as a deterrence

Every successful extradition acts as a red flag to the criminals intending or planning to
flee from the territory of the juridically competent state. So, extradition has a deterrent
effect on criminals.

• To maintain peace in the territorial state

If the convicts or accused persons are not extradited by the territorial state, it will send a
wrong message to the criminals intending or planning to escape from the territorial
clutches of the juridically competent state. If the territorial state refuses to extradite the
convicts or accused persons residing within its territory, it will further motivate more
such persons to flee into it. Thus, such a country may end up becoming a haven for
international criminals, ultimately threatening the safety and peace within its territory.

• To reciprocate diplomatic kindness

Extradition is also one of the best ways to reciprocate the diplomatic support of the
requesting state. It welds diplomatic ties between the territorial and requesting states.

• To enhance international cooperation

The extradition through bilateral or multilateral treaties on extradition act as examples of

international cooperation in international dispute resolution.

Principles of extradition

There are generally four principles of extradition, as explained below:

• Principle of Reciprocity

The principle of reciprocity is well-founded under various aspects of international law.

It provides that every act of favour, respect, benefit or penalty that a country bestows on
the citizens or legal entities of another country, should be returned (reciprocated) in the
same manner. It provides for the mutual expression of international support. As far as
extradition is concerned, the principle of reciprocity applies that the territorial state must
extradite the accused persons or convicts in exchange for any diplomatic kindness shown
by the requesting state. Such diplomatic kindness may be any act, ranging from tariff
relaxations or enforcement of foreign judgments to military or economic aid. This
principle may also operate for the mutual extradition of accused persons or convicts of
the respective countries.

• Principle of Double Criminality

The principle of double criminality provides that the act for which the accused person or
convict is requested to be extradited by the requesting state, must be a crime in the
territorial state as well. Meaning, the fugitive’s activity must constitute a crime in both
the territorial state and the requesting state. For instance, if an individual is convicted of
‘perjury’ under English Law, but his acts do not constitute ‘perjury’ under American Law,
then America can reject the request by England to extradite him.

• Principle of Double Jeopardy

The principle of double jeopardy is also called ‘non-bis in-idem’. It provides that a person
who had already been tried and punished can not be extradited if the request pertains to
the same crime. No criminal tried and convicted once can be extradited for the same
offence, except for the expired period of punishment.

• Principle of Speciality

The principle of speciality provides that the requesting state is bound to try or punish the
extradited offender only for the offence for which he is extradited. For instance, in the
case of United States v. Rauscher (1886), a fugitive offender was extradited from Great
Britain to the United States of America to be tried for a murder committed on board an
American ship. Upon the extradition, the offender was convicted for the offense of
grievously hurting a man, and not for the alleged murder for which he was extradited.
This was because there was no substantial evidence to prove him guilty of the alleged
murder. The Supreme Court held that it was a violation of the Extradition Treaty and set
aside the conviction.

Prerequisites for extradition

The following conditions must be satisfied to grant extradition:

• Extraditable persons

The accused persons or convicts must not fall under the ambit of the following three
categories to be extraditable.

• Territorial state’s own nationals

Most countries refuse to extradite their own nationals allegedly committing a crime in
the requesting State; such countries claim their right to exercise State sovereignty over
their nationals, even though the offence was committed in another country.

• Political offenders

One of the most controversial aspects of extradition is that many countries refuse to
extradite political offenders.

• Persons already punished

Most countries follow the principle of double jeopardy and refuse to extradite the persons
tried and punished for the same offence for which the extradition is requested.

• Extraditable crimes

The principle of double criminality applies to determine the extraditable crimes;

meaning, the fugitive’s activity must constitute a crime in both the territorial state and
the requesting state. Generally, except for the following categories of offences, most
crimes specifically mentioned in the extradition treaty existing between both the states
are extraditable.

Religious offences

Religious offences including religious disrespect are not extraditable.

Military Offences

Military offences like desertion, disobedience of higher officials’ orders, etc. are non-
extraditable.
International Model Laws on extradition

The Geneva Conventions and their Additional Protocols (1949) were some of the earliest
conventions that dealt with extradition to some extent; it recognised the state’s
cooperation in extradition. Thereafter, most countries have signed several multilateral
and bilateral treaties on extradition. For instance, the United States of America has signed
extradition treaties with over 100 countries. Various countries have also incorporated
provisions for extradition in their penal codes.

The United Nations Model Treaty on Extradition (1990)

The UN Model Treaty on Extradition firmly emphasised international cooperation in

extradition-related matters. It has 18 Articles, dealing with the grounds for refusal of
extradition requests, Rule of Speciality, etc. However, it prioritises the discretion of the
territorial State.

The United Nations Model Law on Extradition (2004)

The UN Model Law on Extradition is inspired by the UN Model Treaty and aims to
enhance international cooperation in extraditions. It also aims to act as a supplementary
statute in cases of countries where extradition treaties are absent. Sections 5 and 6 of the
Model Law explicitly provide that extradition shall not be granted if, in the view of the
territorial State, the extradition is requested for torturing or punishing the fugitive on the
basis of his caste, ethnic origin, race, etc.

Challenges in Extradition Law

The following are some of the challenges in extradition law:

1. The requirement of double criminality is often misused by fugitive criminals.

They usually flee to a country where their act does not constitute an offence.
2. Most fugitive offenders who are connected to politics in some way use it as an
excuse to escape extradition, as most countries avoid extradition of political
offenders.
3. Extradition procedures are highly time-consuming due to the requirement of
various paperwork.
4. As far as India is concerned, one of the major challenges is that India has
extradition treaties with only a limited number of countries.
Extradition under Indian Laws

In British India, extradition was regulated by the United Kingdom’s Extradition Act
(1870), followed by the Extradition Act (1903). Presently, the Extradition Act
(1962) (hereinafter referred to as ‘the Act’) regulates extradition in India.

The Extradition Act (1962)

The Act provides for the extradition of fugitive criminals both from and to India. The
extradition may take place in accordance with any extradition treaty with the requesting
or territorial state. However, the Act also provides that, in absence of any such treaty, any
Convention to which India and such requesting or territorial state are parties can be
treated as the extradition treaty for that matter. (Section 3)

The Act imposes no explicit restriction on the extradition of Indian nationals to the
requesting State; however, the bar on extradition varies from treaty to treaty.

Currently, India has extradition treaties in force with the following 48 countries.

Further, currently, India has extradition arrangements with the below-mentioned 12

countries. Extradition arrangements refer to the agreements between the requesting and
territorial states, wherein it is agreed that the extradition will take place as per the local
laws of the territorial state and international regulations instead of the local laws of the
requesting state.

Restrictions on surrender under Indian Law

As per Section 31 of the Act, the fugitive criminal shall not be surrendered:

1. If the offence committed or alleged to have been committed by him is of political

nature;
2. If the offence committed or alleged to have been committed by him is time-
barred as per the requesting state’s laws;
3. If no provision exists in the extradition treaty or arrangement stating that he
shall not be tried for any offence other than for which he is extradited;
4. If he has been accused of any offence in India not being the one for which is
extradition is sought; and
 5. Until after fifteen days from the date of his being committed to prison by the
magistrate.

Procedure for extradition in India

• Procedure for extradition from India

The process for the extradition of a fugitive criminal from India begins when the
requesting state sends a request along with relevant evidence through diplomatic
channels to the Consular, Passport and Visa (CPV) Division of the Ministry of External
Affairs (MEA), Government of India (GOI). Upon receiving it, the GOI requires the
Magistrate of Extradition (usually a Magistrate of First Class) to issue an arrest warrant.

The Magistrate issues the arrest warrant on the conclusion of the following aspects, based
on the evidence put forth before him:

• Establishment of the fugitive criminal’s identity;

• That the fugitive criminal is extraditable; and
• That the crime committed or alleged to have been committed is extraditable.
Upon the arrest, the fugitive criminal undergoes judicial inquiry, the report of which is
submitted to the GOI. If satisfied by the report, the GOI may issue a warrant for the
custody and removal of the fugitive criminal. He is then delivered to the requesting State
at the place specified in the warrant.

• Procedure for extradition to India

The process for the extradition of a fugitive criminal to India from the territorial state
begins when the juridically competent Magistrate in India sends a request to the CPV
Division of MEA, GOI, upon the prima facie establishment of a case against the fugitive
criminal. The Magistrate sends the request along with relevant evidence and an open-
dated arrest warrant.

The request is then formally sent to the territorial state through diplomatic channels, from
where it is forwarded to an Inquiry Magistrate. Such a Magistrate will ascertain:

• The identity of the fugitive criminal;

 • Whether the offence committed or alleged to have been committed is
extraditable;
• Whether the fugitive criminal is extraditable.
Upon such determination, the Inquiry Magistrate in the territorial state issues a warrant
to arrest the fugitive criminal. His arrest is intimated to the CPV/ Indian Embassy. Finally,
concerned Indian law enforcement personnel travel to the territorial state to escort the
fugitive criminal back to India.

Landmark cases on extradition

Savarkar’s case

In 1910, Vinayak Damodar Savarkar was being brought to India from Britain via a vessel
named Morea, for his trial on a charge of treason and murder (Emperor v. Vinayak
Damodar Savarkar (1910)). He escaped to France while the vessel was harboured at
Marseilles. However, a French policeman, in a mistaken execution of his duty, caught
and surrendered Savarkar to the British authorities without following the extradition
proceedings. Later, France demanded Britain hand over Savarkar to formally carry out
his extradition procedure. Britain refused France’s demand, and the case was laid before
the Permanent Court of Arbitration in Hague. The Court agreed with the happening of
irregularity on the part of the French policeman. However, France’s demand for a fresh
extradition procedure was rejected owing to the absence of international law regarding
such circumstances.

Vijay Mallaya’s case

The case of Mr. Vijay Mallaya, the business tycoon and owner of Kingfisher Airlines and
United Breweries Holdings Ltd., is arguably the most well-known extradition case in
India (Dr Vijay Mallya v. State Bank Of India (2018)). He owed a whopping debt of over
₹6,000 crores to 17 Indian banks including the State Bank of India and the Indian Overseas
Bank. Fearing an impending arrest, Mallaya fled from India to the United Kingdom in
2016. His extradition was sought by India in 2017. Mallya’s extradition case was laid
before the Westminster Magistrate’s Court in London. In 2018, the Court ordered his
extradition to India. His appeal at the High Court in London was rejected; however, he
has not been brought back to India yet due to ongoing legal procedures. It’s also worth
noting that in 2019, he was declared a ‘Fugitive Economic Offender’ under the Fugitive
Economic Offenders Act, 2018.
Nirav Modi’s case

Mr Nirav Modi was a luxury diamond jewellery merchant. In 2018, the Punjab National
Bank (PNB) filed a complaint before the Central Bureau of Investigation (CBI), alleging
Nirav, along with his wife Mrs Ami Modi, of fraudulently obtaining fake Letters of
Understanding (LoU) worth ₹11,400 crores. The money was then channelised to his
fifteen overseas sham companies. Following a CBI probe, the Enforcement Directorate
(ED) confiscated Nirav’s assets in India. He fled India and sought asylum in the United
Kingdom. Interpol issued a Red Corner Notice against him in 2018. Following an
extradition request from India, a Westminster Court issued an arrest warrant against
Nirav. The Court ordered his extradition to India in 2021.

Re Castioni’s case

In this case of 1891, a murderer escaped from Switzerland to England. The government
of England rejected the extradition request of Switzerland. The court held that the
accused murdered in order to cause political disturbance, which constitutes a crime of
political nature. Hence, England was not obliged to extradite him.

Re Meunier’s case

In this case of 1894, a fugitive criminal escaped from Paris to England after blasting a
bomb in a public place in Paris. The government of England refused France’s request for
extradition. The court ordered the government of England to accept the request for
extradition, as the fugitive was not a political offender.

Conclusion

Extradition is an essential tool not only to render justice but also to test diplomatic ties.
However, the absence of extradition treaties with many countries becomes the loophole
that fugitive criminals exploit. There is a need to bring about a comprehensive
international law relating to extradition. It is this lacuna which may not only cause
economic or judicial issues in the fugitive’s origin country but also pose far-fletching
implications like security threats in the country where takes refuge.
c. Law of The Sea
Table of Contents

• Introduction
• Codification of the Law of the sea
• What is UNCLOS?
o What is the role of this convention?
o What is the history of this convention?
• Territorial rules with regard to the law of the sea
o India’s position on territorial waters
o Case dispute
▪ The South China dispute
▪ Facts
▪ After Judgement
• Contiguous Zone
o India’s position on contiguous zone
• Continental Shelf
o India’s position on the continental shelf
• Exclusive Economic Zone
o India’s position on EEZ
• Flag State rule
o Case
▪ Fact
▪ Judgement
• Rights of the coastal States
• High Seas
• Conclusion
• References

Introduction

Shipping and fishing are the main areas of the sea. Depending on human development,
there were many cases of the use of technology, and sometimes they attempted to satisfy
the needs of human beings. Many other resources and minerals, natural gas, oil, sand and
gravel, diamonds, gold and other resources were made from the seabed. With the
development of trade in the 20th century and the inexhaustible realization of sea use, the
classic principle of “Freedom of the Sea ” was pushed into the background.

Codification of the Law of the sea

After 1945, once the UN was set up, it was decided by the UN security council and the
Secretariat that there was a need to codify existing rules especially with regards to the
Law of the seas and to come out with permanent solution vis-a-vis the maritime territorial
limit of any country.

With this view, the UNCLOS was passed, which codified the existing customary rules,
and it came into force in 1999, even though the agreement was signed in 1982.

Since 1945, almost all the countries of the World have replaced the “cannon-shot rule”
with 12 nautical miles rule under which an area of 12 nautical miles from a country sea
coast is presumed to be the exclusive maritime limit of one country, and these rules are
also acknowledged and accepted under the UNCLOS rules and regulations.

A classified example of maritime disputes, existed between India and Sri Lanka,
commonly known as the Ram Setu Bridge, connecting Dhanushkodi in India to
Talaimannar in Sri Lanka.

What is UNCLOS?

UNCLOS stands for the United Nations Convention for the Law of the Sea. It is also
known as the Law of the Sea. It is an international agreement or treaty which establishes
rules and guidelines for using the world’s oceans and seas, so as to use and conserve
marine resources and to secure the preservation and protection of all the living beings of
the sea. The treaty was signed on 10 December 1982 in Montego Bay, Jamaica, as a result
of the United Nations Conference on the Law of the Sea, which took place from 1973 to
1982, and came into force in 1994.

What is the role of this convention?

The convention defines several maritime zones. Namely the baseline, the territorial
waters, the contiguous zone, the exclusive economic zone, the continental shelf, the
international seabed area.

The exclusive economic zone is international water, which can be accessed and used by
each country for economic purposes. It is currently the dominant law of the sea.

There is no limit or boundary set for commercial or marine business in these International
waters.
What is the history of this convention?

Several countries have expressed a desire to expand national maritime information, use
natural resources, protect fish stocks and reduce pollution. For this purpose, the League
of Nations held a conference at The Hague in 1930 but failed to reach an agreement. In
the 20th century, technological development in fisheries and oil production have
increased the maritime scope in which countries can find and use natural resources.

This motivated the President of the United States, Harry S. Truman, in 1945 to increase
the U.S. jurisdiction outside of all of its continental shelf natural resources, far beyond the
Country’s territorial waters.

Grotius’s concept “Freedom of the Sea” became practically universal in the 20th century
due to the global dominance of European navies. National rights and jurisdiction over
oceans are limited to certain water belts that stretch from the Country’s coast, usually 3
miles (5.6km), according to Bynkershoek’s “cannon fire” rules. According to the maxim
“Mare Liberum” all water outside the Country’s border is considered as the International
waters which is free for all countries, but not for anyone.

Responding to British lawyer Grotius, John Seldon argued in a saying called “Mare
Clausum” that the sea was able to seize sovereign power like land and territory. Seldon
rejected Grotius’s assumptions, arguing that there was no historical system for treating
the sea differently from the mainland, and there was nothing inherent in the nature of the
sea that prevented the State from controlling its parts. Basically, International Law can
frame the National jurisdiction that appears above the sea.

Territorial rules with regard to the law of the sea

Under Customary International Laws, the Law of the seas were not codified only because
of the fact that at that time the ocean was considered as an important maritime property,
through which countries could claim their sovereignty, open up new trading rules and
also capture new territories with the help of either trading companies or powerful navels.

Nevertheless, by the 17th century, a Customary International Law started evolving

amongst countries, which categorically laid down the fact that a country’s territorial limit
from the coastal sea shall be limited to 3 nautical miles, under which the Country shall
exercise absolute jurisdiction and no foreign vessels or ships will be allowed within that
territory, except for certain restricted conditions.
This 3-mile rule was known as the “cannon-shot rule” and the restrictions given for
foreign ships to enter into the territorial waters at a host was known as the “Doctrine of
innocent passage” and if a foreign vessel was exercising to the innocent passage, then no
conditions were allowed to run any over or over operations against the territorial
integrity of the host State.

India’s position on territorial waters

India’s position in relation to the Law of the sea is generally governed by Article 297 of
the Indian constitution and laws on waters, continental shelf, EEZ and other maritime
zones. Maritime zone Law defines Indian sovereignty over the waters and the seabed, as
well as the land and airspace above those waters. An area of the boundary line is where
each point is 12 nautical miles from the closet point to the baseline. All foreign vessels
have the right pass that is innocent passage through territorial waters.

Case dispute

The South China dispute

Facts

5000 years ago, China was governed by the Ming dynasty, who were also famous as
Terracotta warriors.

In a navel map, at the times of the Ming period, the entire region, boarding the south
China sea along the coast of Vietnam, Indonesia and the Philippines were shown to be
Chinese territory.

In the present times, the Chinese government has claimed these areas under the South
China sea, coming within the territorial waters of many southeast Asian Nations as its
own territory.

The Chinese called this new boundary as the (nine-dash line) territory.

In 1988, the Imperial Chinese navy with the support of the Chinese air force repeatedly
intruded into the territory of water of the Philippines and started the construction of
artificial islands called the Spratly and johnson group of islands.
The Philippine government strongly protested this movement on the grounds that the
disputed territory was within the maritime limit of Philippine sea waters and China had
violated the territorial sovereignty of Philippine.

Repeated requests were made by the Philippino government to the Chinese authority to
stop construction in the disputed territories, but it was openly ignored by the communist
party of China and since1988, the Chinese government has built a series of smaller
artificial islands, military installations, air force and naval bases to further strengthen the
Spratly and Johnson islands.

In 2015, the Philippino government approached the PCA (Permanent Court of

Arbitration) to resolve the South China Sea dispute, where the Chinese government did
not appear before the PCA. The PCA categorically held that (nine-dash line) theory of
China was grossly inaccurate, construction of Spratly and Johnson islands were illegal,
China had violated almost all its treaty and obligations, which are coming under
UNCLOS and violation of Customary International Law and more specifically in Article
2(4) of the UN Charter.

After Judgement

China refused to agree to the decision. After the decision of the PCA, the Chinese navy
started building large seaports in the Spratly harbour, so that Chinese naval aircraft
carrier fighter squadrons of the Chinese air force can be permanently posted in the Spratly
armed forces base.

Since 2016, China has started building more islands in the territorial waters of even
Vietnam, Indonesia and Malaysia and is now claiming that the nine-dash rule is actually
correct and they would actually keep on building more islands in the south China sea.

Contiguous Zone

The contiguous zone is the part of the sea that is outside and adjacent to the territorial
waters of a coastal country. This is not the object of a subsidiary, but in this coastal
country, they can exercise certain jurisdictional rights. The concept of an adjacent zone
develops because countries cannot effectively protect all their interests because of the
limited interference on the territorial sea. The 1982 convention established the concept of
an exclusive economic zone (EEZ) which fully covers the contiguous zones.
According to Article 33 of the 1982 Convention, Contiguous zone must not be more than
24 nautical miles from the baseline where the territorial sea area is measured. Thus the
area of the contiguous area is 12 miles from the territorial sea.

India’s position on contiguous zone

India has claimed the contiguous zone to the extent of 24 nautical miles by enacting the
Maritime Zones Act of 1976.

Continental Shelf

According to W.Friedman, the continental shelf can be defined as the zone around the
continent that extends from a low water line to depth and usually marked towards
greater depth. What is commonly referred to as a “continental shelf” is a sloping platform
that covers continents and islands? This is a submerged seabed that borders continental
landmass and is found as an extension or part of that land. It usually extends to a depth
of about 200 meters.

The coastal countries have limited sovereignty rights on the continental shelf to explore
and use “natural resources”, not sovereignty.

India’s position on the continental shelf

The Maritime Zone Act defines India’s position that India has declared a continental shelf
200 nautical miles from land. Indian rights and obligations under this command are
similar to those in other countries, as stipulated in international conventions. But, the
government can declare the continental shelf and its magical waters for a certain area and
take action to regulate it.

Exclusive Economic Zone

An exclusive economic zone is a sea zone prescribed by UNCLOS, over which a State has
several rights regarding the exploration and use of marine resources including energy
production from water and wind. It stretches from the baseline, until 200 nautical miles
(370.4 km) from its coast. In geographical terms, the EEZ may also include the continental
shelf.
The main difference between the territorial sea (12-mile rule) and the exclusive economic
zone is that while territorial sea confers full sovereignty over the waters, EEZ is merely a
sovereign right which refers to coastal State right below the surface of the sea.

An example of an exclusive economic zone is the Bombay High, between 73 to 74 nautical

miles of the Indian coast which is used for oil exploration by the Indian government.

India’s position on EEZ

Section 7 of the Maritime Act of 1976 provides exclusive rights for the purpose of
exploring and exploiting the natural resources within EEZ.

Flag State rule

For legal purposes, a vessel, ship, aircraft, the submarine has to be registered in a
particular country, and for all practical purposes, it must fly or display the flag of the
registered country.

The Flag State rule is applicable for both military and commercial ships, also for all kinds
of oil tanks and even cruise ships.

As of now, Liberia and Panama are the two countries which have a maximum number of
ships registered but most of the ships are broken down and sold as junk in Alang, Gujarat.

The Flag State rule principal has also been implemented under Part VII Article 92 of
UNCLOS and even in environmental disputes, the Flag State rule can be implemented
under Article 217(1) of UNCLOS, 1982.

Case

S.S Lotus case (France Vs. Turkey, 1927)

Fact

In 1925, after Mustapha Kemal pasha started liberalising the Turkish economy, Turkey
started to expand the trade abroad with other countries. Unfortunately, a French vessel
S.S lotus and Turkish ship S.S Bozkurt collided, because of which the Turkish ship
damaged and killed 8 Turkish Nationals on board of Turkish vessel. The remaining
survivors of the Turkish ship were taken to Turkey onboard S.S lotus.

In Turkey, the captain of the French ship, and the first watch officer, Monsiver Demons,
were charged with manslaughter and Demons was sentenced to imprisonment and fine.
The French government demanded the release of Monsieur Demons and the transfer of
his case to the French Court. Turkey and France agreed to refer the dispute to the
PCIJ(Permanent Court of International Justice).

Judgement

The French and the Turkish government were strongly blaming each other and Monsieur
Demons was being charged by the Turkish government of knowingly causing the
accident. The French government further contended that only they have a right to trial
the individual because the incident involved a French ship and a French National.

The PCIJ held that Turkey had violated no norms of International Law by instituting a
case against Monsieur Demons and also had no rights to prosecute him.

After this judgement, there was a huge criticism and after the formation of the United
Nation, certain changes were brought in the Flag State rule.

Rights of the coastal States

The States cannot exercise sovereignty over coastal State. They will exercise sovereignty
rights to explore and exploit minerals, non-living resources of the ocean floor and soil
when the primary 5 years of production at that place. The speed shall increase by 125th
of the value of each resulting year till 12 years and shall stay seven-membered thereafter.
If coastal States don’t explore or exploit shelf resources no alternative State could
undertake these activities without its specific consent.

However, the rights of the coastal State over the seabed don’t have an effect on the regime
freedom of navigation on the high seas or that of the airspace higher than the
superimposed waters.

High Seas
The high seas mean, all the parts which are not coming under EEZ, territory or inland
waters of a country. This rule was formulated by Grotius in his maxim on “Mare
Liberum” in 1609 and claimed that the sea could not be owned by anyone.

As a result, all States supported that ships can go and use freedom of navigation, fight,
fishing and building artificial islands etc. But, the command has been considerably
changed under the convention on the Law of the sea of 1982.

Article 87(2) of the convention lays down the limitation of the general nature on the
freedom of high seas by stating that the freedom of the high seas “shall be exercised with
due regard to the interests of other States in their exercise of the freedom of high seas”.

Conclusion

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) creates a
comprehensive command to govern the rights of nations in respect of the world’s oceans.
International Maritime Organization (IMO) is a specialized agency of the United Nations
responsible for improving maritime safety and preventing pollution from ships.

Life itself arose from the oceans. Even now, when the continents have been mapped and
their interiors made accessible by road, river and air, most of the people in the world live
no more than 200 miles from the sea and relate closely to it.
Contemporary Issues in International Law is concerned with the critical knowledge of
the fundamental rules and principles of Public International Law, its law making process
and its institutions. It covers issues relating to Sources and Subjects of International Law,
the relationship between International Law and Municipal Law, International
Institutions, Economic Development, Sovereignty, Jurisdiction and Territory, State
Responsibility, Use of Force and Dispute Settlement.

Prohibition Of The Use Of Force

The provisions in the UN Charter relating to the prohibition on the use of force by States
in their relations with each other has been discussed under this topic. One of the primary
goals of the UN, according to Article 1(1) of the UN Charter, is to maintain international
peace and security. In order to achieve this aim, Article 2(4) contains a prohibition on the
use of force. A system of collective sanctions against any offending State that resorts to
the use of force protects this prohibition. These sanctions are found in Articles 39-51 of
the UN Charter.

Exceptions To The Prohibitions:

Provisions Relating To The Use Of Force: The Prohibition And The Exceptions Article
1(1) of the UN Charter says that one of the purposes of the Charter is to:
To maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of:

1. threats to the peace, and for the

2. suppression of acts of aggression or
3. other breaches of the peace, and to bring about by peaceful means. adjustment or
settlement of international disputes or situations which might lead to a breach of
the peace.
In order to maintain international peace and security and to prevent future wars:

1. Article 2(3) places an obligation on member States to settle their disputes

peacefully.
All Members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered.
2. Article 2(4) prohibits member States from using force in their international
relations.
All Members shall refrain in their international relations from the threat or use of
forceagainst the territorial integrity or political independence of any state, or in
any other manner inconsistent with the Purposes of the United Nations.
3. The prohibition is safeguarded by a system of collective sanctions against any
offending State that uses force. This is found in Articles 39-51 of the UN Charter.

Articles 39, 40 and 41 operate to offer sanctions against a member State that has threaten
or used force in a way that it amounts to a threat to or breach of peace or an act of
aggression.
Article 39 says: The Security Council shall determine the existence of any threat to the
peace, breach of the peace, or act of aggression and shall make recommendations, or
decide what measures shall be taken in accordance with Articles 41 and 42, to maintain
or restore international peace and security.

Article 41 allows the Security Council to impose sanctions (trade and economic sanctions,
arms embargoes): The Security Council may decide what measures not involving the use
of armed force are to be employed to give effect to its decisions, and it may call upon the
Members of the United Nations to apply such measures. These may include complete or
partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio,
and other means of communication, and the severance of diplomatic relations.

Article 42 gives the Security Council the power to authorize the use necessary force to
maintain international peace and security. Because the Security Council does not have a
military force of its own, the Security Council authorizes member States to use force.

The Security Council] may take such action by air, sea, or land forces as may be necessary
to maintain or restore international peace and security.

Article 51 provides for a member State to use force in self defence when there is an armed
attack against that State.

Nothing in the present Charter shall impair the inherent right of individual or collective
self defence if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and
security.

In addition to this, States have invoked customary international law of self defence and
humanitarian intervention (for example in the 11 day NATO bombing of Kosovo) and
implicit authorization under SC Resolutions (for example, NATO bombing of Kosovo
and US invasion of Iraq) as a justification to use force against another State.

Prohibition To Use Of Force And Threats:

The United Nations Charter in article 2(4) controls the use of force by member states. The
UN Charter states that; "All members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the purposes of the United Nations."

and Article 51which states that, "Nothing in the present Charter shall impair the inherent
right to individual or collective self-defence if an armed attack occurs against a state." In
addition, other cited reasons that permit the use of force include humanitarian
intervention, though this is still controversial, reprisals, and states' protection of their
nationals in other states.

The United Nations Charter and the International Military Tribunal Statute have been
created with regard to international law. These laws were created by the UN member
states in order to protect succeeding generations from scourges of war. Members resorted
that the use of armed forces was not allowed, save in the interest of all.

Collective Action
The UN Security Council is mandated to identify the existence of, and even take action
to curb, any threat to peace and security among the members' states. However, this power
has not been used as expected since other measures such as the use of sanctions are taken
short of the traditional armed forces by some of its members. The time that the UN used
force was in 1950 to 'force' North Korea to withdraw from South Korea. Initially it had
been envisaged by the creators of the UN Charter that the organisation would have its
own forces.
However, much of the command of these forces has been from the United States. The UN
Security Council for also authorized the use of armed forces in 1960 during the Iraq's
invasion of Kuwait. During this time, the Council passed Resolution 678 which requested
all members to support a forceful operation in collaboration with Kuwait to ensure Iraqi's
withdrawal from Kuwait.

This very resolution was never revoked until 2003, when the Council passed Resolution
1441 which authorized Iraq's invasion due to its non-compliance with the manufacture
of atomic weapons-a threat to global peace and security. The UN also authorized the use
of force in countries like Sierra Leone, Yugoslavia and currently Somalia.

Self Defence
This is provided for in article 51. The inherent right to individual or collective self-defence
in case of an armed attack allowed until the UN Security Council has intervened. The
steps taken by members in the exercise of self-defence must be reported to the Security
Council and must not in any way affect the mandate of the Council under the current
Charter.

The article states that:

Nothing in the present Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and
security. Measures taken by members in the exercise of this right of self-defence shall be
immediately reported to the Security Council and shall not in any way affect the authority
and responsibility of the Security Council under the present Charter to take at any time
such action as it deems necessary in order to maintain or restore international peace and
security".

The right to self defence is still provided for in the customary international law, as seen
in the International Court of Justice (ICJ), the best example is the Nicaragua Case . Article
51 preserves the right to self defence and outlines the procedures to be followed in case
of an armed attack. It has also been observed that, an irregular forceful attack can prompt
the use of force as in the case of 9/11 attacks where the Security Council allowed the US
to use force against the terrorists.

Responsibility To Protect (R2P)

Responsibility to Protect (R2P) is not a legal concept; it creates no legal change as it is
embedded within the existing international law order. R2P is 'best understood as a
reaffirmation and codification of already existing norms' and as a political concept having
political effects. This is not criticism of R2P, but is instead its greatest strength. It allows
R2P to command wider support from the international community, especially from states
suspicious of changes to the fundamentals of international law.

R2P has experienced a rapid growth, moving from mere 'passionate prose' in the ICISS
report in 2001 to quickly becoming a 'mainstay of international public policy debates'.
This support has shown resilience in the face of a backtracking from influential states a
few months after the World Summit, as well as an attempt from avowed opponents of
the concept to destroy it. As well as the significant support shown by states, the response
from civil society has been encouraging and instrumental to this success; NGOs from all
over the world have joined together to support and develop R2P, creating the influential
International Coalition for the Responsibility to Protect.

Due to these factors R2P can be seen as one of the most 'most dramatic' developments in
international affairs and consequently there are 'not many ideas that have the potential
to matter more for good, not only in theory but in practice'.

The reason for R2P's rapid adoption is that it provides a satisfying response to Annan's
challenge to reconcile sovereignty and the need for action to prevent atrocities. Overall it
achieves this by moving away from the language of a right to humanitarian intervention
which dominated the debates surrounding the Kosovo intervention to focus on the
'perspective of the victims of human rights violations' R2P expresses a responsibility to
protect populations from atrocities as an inherent part of state sovereignty. Building on
this the Canadian Permanent Representative at the World Summit persuasively argued
that R2P strengthens, not weakens, state sovereignty.

This is because outside non-military intervention will help states to discharge the
responsibilities which sovereignty entail. From this, a state's failure to prevent atrocities
does not fall under the 'domaine r�serv� that excludes interferences from outside';
should a state fail to exercise their sovereignty in this way the responsibility falls to the
rest of the international community.

This aspect is clearly influenced by the failure over Rwanda. The international
community's responsibility to protect is to be achieved through primarily non-military
means, such as developing a better 'early warning capacity', using 'appropriate
diplomatic, humanitarian and other peaceful means' to protect populations with a focus
on vulnerable states 'which are under stress' to prevent crises from breaking out and to
help them 'build capacity to protect their populations'.

This approach is more effective than military methods; they are 'easier to initiate and
sustain' and avoid the huge risks, costs, and destruction which military action brings.
This effectiveness was demonstrated in the response to postelection violence in Kenya.
Diplomatic efforts helped prevent the violence from escalating, described by Annan as 'a
successful example of R2P at work', notwithstanding the lack of military intervention.

Furthermore this focus fits in with the Third World Approach to International Law,
described by Anghie and Chimni, which looks at international law from the perspective
of those in the Third World, aiming to develop it 'from a language of oppression to a
language of emancipation'. R2P achieves this by focusing on the plight of those suffering
and entails 'taking Third World development seriously', potentially leading to significant
transfers of 'wealth, expertise and opportunity' from affluent to developing nations in
order to build their preventative capacity. If R2P were too heavily linked with military
intervention it would be a 'clear barrier to consensus' due to fears that humanitarian
justifications would be abused by large and powerful nations, as was the concern with
Kosovo.

There is less concern of this happening theoretically with R2P's primary focus being on
non-military preventative measures; military intervention is a complete last resort.
Furthermore a well understood focus on non-military methods should avoid the
complicated and controversial questions about the legality of the use of force, which will
be analysed in detail below. All this together renders R2P more acceptable to the wider
international community, and is the reason why R2P has been heralded as causing a
'significant conceptual shift'.

Conclusion:
The use of force has been a long-standing phenomenon in international relations and has
been considered to be directly linked to the sovereignty of states-the limitless power
wielded by states to use all possible means to guard and protect their interests. However,
the longer period that war has been associated with sovereignty of state, the more the
issue has turned into a legal institution by itself. Developed social awareness has
expanded the limits (and even led) to the right to resort to war.

This indeed has abolished the use of force or any form of threats in relation among
nations, this has become a rule of law in international criminal law-its violation comes
with criminal responsibility in the eyes of the international community. However, there
are certain situations in which it is allowed to use force such as for self defence purposes,
humanitarian intervention, and pre-emptive power inter alia.