Education Academy

UNIT – III:
PUBLICINTERNATIONAL LAW AND IHL

Education
Academy

Education Academy. Call/WhatsApp : 6375942802

Education Academy Public International and IHL

CONTENTS
TOPIC NAME
Public International and IHL ............................. …………………………………

3.1 Public International Law.................................................................................

3.2 Sources of international Law ..........................................................................

3.3 Recognition of States and Governments .........................................................

3.4 Nationality, Immigrants, Refugees and Internally Displaced Persons (IDPs)....

3.5 Extradition and Asylum ...................... ……………………………………

3.6 United Nations and Its Organs ..........................................................................

3.7 Settlement of International Disputes...................................................................

3.8 World Trade Organization (WTO)......................................................................

3.9 International Humanitarian Law (IHL) ...............................................................

3.10 Implementation of IHL – Challenges.................................................................

Page 2
 UNIT - 3
PUBLIC INTERNATIONAL LAW

3.1 PUBLIC INTERNATIONAL LAW

3.1.1 Definition
The term international law has been defined in a variety of ways by different jurists.
Some of the definitions may be given as under :
1. By Oppenheim : "Law of Nations or international law is the name for the body
of customary law and conventional rules which are considered binding by civilized
states in their intercourse with each other."
2. Lauterpacht : Law of Nations or International law is the name for the body of
customary and treaty rules which are considered legally binding by the States in
their intercourse with each other.
3. J.L. Brierly : The Law of Nations or International Law may be defined as body
of rules and principles of action which are binding upon civilized states in their
relation with another.
4. Torsten Gihl : The term International Law means body of rules governing the
rules of law which apply within international community or society of States.
5. Hackworth : International Law consists of a body of rules governing the
relations between States. It is system of jurisprudence.
6. Queen vs. Keyn The Franconia : In this case, Lord Coleridge: The law of
nations is that collection of usages which civilized states have agreed to observe in
their dealings with one another
7. West Land Central Gold Mining Ltd. v. King : The form of the rules accepted
by civilized States as determining conduct towards each other and towards each
other's subject
8. Phillip C. Jessup : International Law or Law of Nations must be defines as law
applicable to States in their mutual relations with States.
9. Gray : International law or Law of Nations is the name of body of rules which
according to the usual definition regulate the conduct of States in their intercourse
with each other.
10. Hall : International Law consists of certain rules of conduct which modern
civilized States regard as binding on them in their relations with one another with a

Page 3
force comparable in nature and degree to that binding the conscientious person to
obey the laws of his country.
11. By Alf Ross : Alf Rose defines the term international law as under:
"International law is the body of legal rules binding upon states in their relations
with one another."
12. By Lawrence : According to him, "international law is the rules which
determines the conduct of the general body of civilized state in their mutual
dealings."
13. Modern Definition : International law has always been in a continuous state of
change. In modern period the term International law may rightly be defined as
under; "That body of legal rules which regulates the relationship of the Nation
States with each other, as well as, their relationship with other international actors."
Beside the above definitions there are at least forty well definitions of international
law.
Major Kinds of International Law : There are following two major kinds of
international law - Private International Law, and Public International Law.
Private International Law : The term private International law may be defined as
under: "That branch of International law which determines that which law is to be
applied to a specific case containing a foreign element is called Private International
law." Explanation: - From the above definition it is evident that private international
law is to regulate those cases where a foreign element involves in the matter and the
difficulty arose that which law shall be applicable to the case, in other words when
it becomes difficult for a domestic court that the law of which state shall be
applicable to a certain case because the case contains an element of a foreign
state/states law. In such a case private international law comes to help because it
determines that which law shall be applicable to a certain case.
Public International Law : The term Public International Law may be defined as
under: "A body of legal rules which regulates the relation of states inter se as well
as their relations with other non-state entities is said to be Public International law."
Explanation: - From the above definition it may be concluded that Public
International law is a set of legal rules which not only regulates the relations
between the Nation States but also regulates their relations with other non-state
entities. In other words it is a body of rules which regulates the relationship of the
international actors with each other. These international actors may be given as
under: States, individuals, NGO's, IGO's, Multi-National Corporations and
Movements.
3.1.2 Nature of International Law
Introduction

Page 4
Austin in his definition of law has given more importance to sanction and fear in
compliance of law. In case of International law there is neither sanction nor fear for
its compliance hence it is not law in proper sense of the term. But now the concept
has changed and International Law is considered as law. There is no consideration
of fear or sanction as essential part of law. If fear and sanction are considered
necessary then there are sufficient provisions in UNO charter for compliance of the
International Law as Law :
According to Bentham's classic definition international law is a collection of rules
governing relations between states. Two of the most dynamic and vital elements of
modern international law.
1. In its broadest sense, International law provides normative guidelines as well as
methods, mechanisms, and a common conceptual language to international actors
i.e. primarily sovereign states but also increasingly international organizations and
some individuals.
2. Although international law is a legal order and not an ethical one it has been
influenced significantly by ethical principles and concerns, particularly in the
sphere of human rights, International is distinct from international comity, which
comprises legally nonbinding practices adopted by states for reasons of courtesy.
e.g. the saluting of the flags of oreign warships at sea.)
International Law as Really Law
According to Oppenheim, International Law is law in proper sense because :
. In practice International Law is considered as law, therefore the states are bound to
follow them not only from moral point of view but from legal point of view also.
. When states violate international law then they do deny the existence of
international law but they interpret them in such a way so that they can prove their
conduct is as per international law.
Starke while accepting International Law as Law has said, "that in various
communities law is in existence without any sanction and legal force or fear and
such law has got the same acceptance as the law framed and enacted by state
Legislative Assemblies.
With the result of international treaties and conventions International Law is in
existence.
. U.N.O. is based on the legality of International Law. According to Prof.Briely,
"To deny the existence and legal character of International Law is not only
inconvenient in practice but it is also against legal thoughts and principles."

Page 5
. The states who are maintaining the international relations not only accept
International Law as code of conduct but has also accepted its legal sanction and
force.
Prof. Hart, "There are many rules in practice which are honoured by states and
they are also bund by them, now the State Government accept the existence of
International Law."
Jus Cojens, "International Law may now properly be regarded as a complete
system."
It is pertinent to mention here that from the above noted contents it is clear that the
following grounds are supportive for accepting the International Law as law : .
. Now so many disputes are settled not on the basis of moral arguments but on the
basis of International Treaties, precedents, opinions of specialists and conventions.
. States do not deny the existence of International Law. On the contrary they
interpret International Law so to justify their conduct.
. In some states like USA and UK international Law is treated as part of their own
law. A leading case on the point is the, Paqueta v/s Habanna-1900. Justice Gray
observed that the international law is a part of our law and must be administered by
courts of justice."
. As per statutes of the International Court of Justice, the international court of
Justice has to decide disputes as are submitted to it in accordance with International
Law. International conventions and conferences also treat international Law as Law
in its true sense.
. The United Nations is based on the true legality of International Law.
. That according to article 94 of UNO charter, the decisions of the International
Court of Justice are binding on all Parties (States).
. Customary rules of International Law are now being replaced by law making
treaties and conventions. The bulk of International Law comprises of rules laid
down by various law making treaties such as, Geneva and Hague conventions.
On the basis of above mentioned facts and arguments, the International Law is law
in true sense of the term. United States and U.K., treat International Law as part of
their law. In a case of West Rand Central Gold Mining Company Ltd., v/s Kind-
1905, the court held the International Law has considered it as a part of their law.
From the above analysis it is revealed that the International Law is law. The
International Law is law but the question arises as to what are the basis of
International Law.
There are two theories which support it as real law :

Page 6
1. Naturalist Theory : The Jurists who adhere to this theory are of the view that
International Law is a part of the Law of the Nature. Starke has written, "States
submitted to International Law because their relations were regulated by higher law,
the law of Nature of which International Law was but a part." Law of nature was
connected with religion. It was regarded as the divine Law. Natural Laws are
original and fundamental. They incorporate the will of the Governor and governed
and advance their consent or will. That is why international law is also based on
natural law.
Vattel Furfendorf, Christain, Thamasius, Vitona are the main supporters of
this theory. It was viewed that natural law is uncertain and doubtful but it is
accepted that Natural Law has greatly influenced the growth and has given the birth
to International Law and its development. Most of its laws are framed from Natural
Law.
2. Positivist Theory : This theory is based on Positivism i.e. law which is in the
fact as contrasted with law which ought to be. The positivists base their views on
the actual practice of the states. In their view customs and treaties are the main
sources of International Law.
Heagal, "International Law is the natural consent of states. Without the consent of
states, no law can bind the states. This consent may be express or implied."
Starke, "International Law can in logic be reduced to a system of rules depending
for their validity only on the fact that state have consented to them."
Brierly, "The doctrine of positivism teaches that International Law is the sum of
rules by which states have consented to be bound."
Bynkershoek, "The basis of International Law is the natural consent of the states.
Without the consent of states no law can bind the states."
The critics of the above views say that consent is not always necessary for all.laws.
There are some laws which are binding on states irrespective of their consent e.g.
Vienna Convention on the Law of Treaties. Article 36 of the Treaty says that the
provisions of the Treaty may be binding on third parties even if they have not
consented to it.
Gossil Hurst, "That International Law is in fact binding on states, because they are
states." This is very much correct because every state in the world wants peace,
Law and order and that is possible only through existence of International Law.
Therefore it is in natural interest of States to accept the existence of International
Law.
International Law is the vanishing point of Jurisprudence.
Holland has remarked that International Law is the vanishing point of
jurisprudence in his view, rules of international law are followed by courtesy and
Page 7
hence they should not be kept in the category of law. The international Law is not
enacted by a sovereign King. It has also no sanctions for its enforcement which is
the essential element of municipal law. Holland further say that International Law
ass the vanishing point of Jurisprudence because in his view there is no judge or
arbiter to decide International disputes and that the rules of the I. Law are followed
by States by courtesy.
Austin also subscribes to this view, Justice V.R.Krishna lyer formally member of
Indian Law Commission has also remarked, "It is a sad truism that international law
is still the vanishing point of jurisprudence. This view is not correct. It is now
generally agreed that Holland's view that international law is the vanishing point of
jurisprudence is not correct.
But now it is well settled that International Law is law. It is true that International
Law is not enacted by sovereign and has no agency for its enforcement. But it is
true that it is a weak law. A majority of International lawyers not subscribe to this
view is based on the proposition that there are no sanctions behind international
Law are much weaker than their counterparts in the municipal law, yet it cannot be
successfully contended that there are no sanctions at all behind international law.
The jurists who do-not consider international law as the vanishing point of
jurisprudence say that there is difference between state law and International Law.
International Law cannot be enacted by the state but still there is agency for its
enforcement.

3.2 SOURCES OF INTERNATIONAL LAW

Introduction
The term sources refer to methods or procedure by which international law is
created. A distinction is made between the formal sources and material sources of
law. The formal, legal and direct sources consist of the acts or thing which gives
that the content its binding character as law. The material sources provide evidence
of the existence. The sources of international law may be classified into five
categories :
1. International Conventions : In the modern period international treaties are the
most important source of international law. This is because the reason that states
have found in this sources. Article 2 of the Vienna Convention on the law of
treaties 1969, a treaty is agreements whereby two or more states establish or seek to
establish relationship between them govern by international law. Prof.
Schwarzenberger, "Treaties are agreements between subjects of international law
creating a binding obligation in international law." .
International treaties may be of the two types : .

Page 8
(a) Law Making Treaties : These are the direct source of international law and the
development of these treaties was changing of the circumstances. Law making
treaties perform the same functions in the international field as legislation does in
the state field.
The law making treaty may further be divided into two types :
(i) Treaties enunciating rules of Universal International Law (e.g. UN Charter)
(ii) Treaties laying down general principles.
The inter agency agreements i.e. those between international organizations and in
addition, even the agreement between an international organization and a State are
also law making treaties in that sense but they may laid down norms of general
applications in certain areas. Such treaties are also called normative treaties.
(b) Treaty Contracts (Vertrage) : As compared to law making treaties treaty
contracts are entered into by two or more States. This may happen when a similar
rule is incorporated in a number of treaty contracts. It is not direct source of
International law. but they may help in the development of International law in
following three ways :
(a) A series of recurrence of treaties laying down similar rules may produce a
principle of customary international law to the same effect.
(b) It may happen with a treaty originally concluded between limited number of
parties only but a rule in it be generalized by subsequent independent acceptance or
limitation. In this case the treaty represents the initial stage in the process of
recurrence of usage by which customary rule of International Law has emerged.
E.g. Paris Peace Pact. But in North Sea Continental Shelf Case, the ICJ said that
such treaty should be of a norm creating character. So as to be capable of maturing
into a general rule of law. A non party is not automatically governed by a treaty,
they have to show their adherence by conduct.
(c) A treaty may be of considerable evidentiary value as to the existence of a rule
which has crystallized into law by an independent process of development.
Anglo Iranian Oil Co. Case (United Kingdom v. Iran) (1951)
Jus Cogens : The rules of jus cogens (also known as peremptory norm) are derived
from the customary international law, and it is a rule or principle which is so
fundamental that it binds all states and does not allow any exceptions. They are
'accepted and recognized by the international community
of States as a whole ... which can be modified only by a subsequent norm of general
international law having the same character'. Article 53 of the Vienna Convention
on the Law of Treaties (VCLT) 1969 states that, 'a treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of general international law'.

Page 9
 Public International and IHL

Article 64 of the VCLT 1969 further enhances its importance by giving it

retrospective effect - existing treaty which is in conflict becomes void and is
terminated.
The concept of jus cogens was said to be popularised by Verdross. He defined it as
the 'ethical minimum recognized by all the states of the international community',
which includes the obligation to undertake certain 'moral task', such as 'maintenance
of law and order within states, defense against external attacks, care for the bodily
and spiritual welfare of citizens at home, [and] protection of citizens abroad'. It, as
pointed out by Lauterpacht, also operates as a concept superior to both customary
international law and treaty.

Cases Principles

Lotus case
international law
emanates from the free
will of States as

Education
expressed in conventions
or "by usages generally
accepted as expressing
principles of law”. It

Academy
emphasized the
distinction between the
two constitutive elements
of customary
international law,
stressing the need for
both to be present in
order to ground a finding
of such law:
Page 10
 North Sea Continental The classic statement of
Shelf cases:| the International Court of
Justice on the processes
of formation and
evidence of rules of
customary international
law.

Military and Paramilitary in order to consider what

Activities in and against rules of customary
Nicaragua, international law were
applicable it "has to
direct its attention to the
practice and opinio juris
of States"

Gulf of Maine case customary international

law "comprises a limited
set of norms for ensuring
the co-existence and vital
co-operation of the
members of the
international community,
together with a set of

Education
customary rules whose
presence in the opinio
juris of States can be

Academy
tested by induction based
on the analysis of a
sufficiently extensive and
convincing practice, and
not by deduction from
preconceived ideas.

Germany v. Italy identifying a rule of

customary international
law.

Page 11
 Anglo Norwegian The Court referred to (1)
Fisheries of Case (UK vs positive State practice
Norway) and (2) lack contrary
State practice as a
confirmation of an
existing rule of
customary international
law.

The Paquete Habana case • There was opinio juris

that commercial fishing
vessels were exempt.
• Opinio juris = a
subjective element that is
used to judge whether the
practice of a state is due
to a belief that it is
legally obliged to do a
particular act. . This case
lays out the important
factors that courts use to
determine if something
has become customary
international law.
• Customary
international law can be
thought of as a kind of
international common
law. It is not explicitly
defined anywhere,
however everyone seems
to agree with it.

The use of force against the other territory was held by the International Court of
Justice in Nicaragua v USA as wrongful act under the jus cogens rules. Slave trade,
genocide, racial discrimination and apartheid are also categorised as wrongful acts
within the contemporary of jus cogens rules. In the case of Prosecutor v Anto
Furundzija, which, the court ruled that jus cogens has a 'deterrent effect, in that it
signals to all members of the international community and the individuals over
Page 12
Education Academy . Public International and IHL

whom they wield authority that the prohibition... is an absolute value from which
nobody must deviate'.
2. International Customs : International customs have been regarded as one of the
prominent sources of international law for a long time. However even today it is
regarded as one of the important sources of international law. Usage is an
international habit which has yet not received the force of law. STRAKE Says,
"Usage represents the twilight stage of custom, custom begins where usage ends.
Usage is an international habit of action that has yet not received full legal
attestation." A custom in the intendment of law is such usage as that obtained the
Force of law i.e. :
(i) It is not necessary that the usage should always precede a custom.
(ii) In certain cases usage gives rise to international customary law.
(iii)When a usage is combined with a rule of customary law exists.
(iv) It is an important matter to see as to how international custom will be applied in
international law. Refer a case of West Rand Central Gold Mining Company.v/s R-
1905, court held that for a valid international customs it is necessary that it should
be roved by satisfactory evidence that the custom is of such nature which may
receive general consent of the States and no civilized state shall oppose it. Portugal
v/s India-1960, ICJ pointed out that when in regard to any matter or practice, two
states follow it repeatedly for a long time, it becomes a binding customary rule. Still
other resolutions amount to an interpretation of the rules and principles which he
charter already contains and which are in binding upon States,

Cases on Customary Rule

3. General Principles of Law Recognised by Civilized States : Art.38 of ICJ

provides that the Statute of International Court of Justice lists general principles of
law recognised by civilised States as the third source of international law. In the
modern period it has become an important source. This source helps international
law to adapt itself in accordance with the changing time and circumstances. On the
basis of this view the general principle of law recognised by civilized States have
emerged as a result of transformation of broad universal principles of law
applicable to all the mankind. Following are some important cases relating to the
general principles of law recognised by civilized States :
1. R. v/s Keyn-1876, that I. Law is based on justice, equality and conscience which
have been accepted by practice of States.
2. U.S v/s Schooner held that I. Law should be based on general principles.

Page 13
4. Decisions of Judicial or Arbitral Tribunals and Juristic Works :
(i) International judicial Decisions : In the modern period international court of
justice is the main international judicial tribunal. It was established as a successor of
the permanent court of I. justice. Art.59 of the statute of ICJ makes it clear that the
decisions of the court will have no binding force except between the parties and in
respect of that particular case. While in principle it does not follow the doctrine of
precedent. Thus judicial decisions unlike customs and treaties are not direct sources
of law; they are subsidiary and indirect sources of international law.
State Judicial Decisions : These decisions may become rules of international law
in the following two ways :
1. State judicial decisions are treated as weighty precedents.
2. Decisions of the state courts may become the customary rule of l. Law in the
same way as customs are.
Decisions of International Arbitral Tribunals : Jurists have rightly too pointed
out that in most of the arbitral cases arbitrators act like mediators and diplomats
rather than as judges as in Kutch Award-1968.
Juristic Works. Juristic Works : Art.38 of ICJ, the work of high qualified jurists
are subsidiary means for the determination of the rules of I. Law. In Paquete
Habana and Lola fishing vessels with Spanish flags on them in 1898 during war
between America and Spain, held that they could not be seized or apprehended
during the state of blockade.
5. Decisions or Determinations of The Organs of International Institutions :
Art.38 of 1CJ incorporated these sources and also introduced one new source
namely general principles of law. In view of the strong reasons the decisions and
determination of organs are now recognised as an important source of I. Law. The
resolutions of the organs may be binding on the members in regard to the internal
matters. Organs of international institution can decide the limits of their
competence.
6. Some other sources of International Law : Besides the above sources of I.
Law, following are some of the other sources of international law :
1. International Comity : mean mutual relations of nations.
2. State Paper : In modern period diplomats send letters to each others for good
relations are also the sources of I. Law.
3. State Guidance for Their Officers : Numbers of matters are resolved on the
advice of their legal advises.
4. Reasons : has a special position in all the ages.

Page 14
5. Equity and Justice : It may play a dramatic role in supplementing the law or
appear unobtrusively as a part of judicial reasoning.
.
3.3 RECOGNITION OF STATES AND GOVERNMENTS
Introduction
It can be said that through recognition, the recognising state acknowledges that the
recognised state possesses the essential conditions of Statehood, a Government and
Sovereignty, a definite territory and has a complete control over his territory. The
community is independent. So recognition has an important place in International
Law. By recognition only the state is accepted as a member of International
community.
Definition
Many of the Jurists has define 'Recognition' in different ways. Some of them have
opined as under :
Prof. L. Oppenheim : "In recognising a State as member of International
community, the existing states declare that in their opinion the new state fulfils the
conditions of statehood as required by International Law."
Fenwick : "That through recognition the members of the International community
formally acknowledge that the new state has acquired international personality."
In the words of Phillip C Jessup : By recognition is such a function of a state by
which she accepts that any political unit contains the essential elements of
nationality."
According to Prof. Schwarzenberger : "Recognition can be absorbed easily by a
procedure developing International law by which the state have accepted the
negative sovereignty of each other and willing to develop their legal relations on the
basis of their natural relations."
According to Kelson : "A community to be recognised as an International person
must fulfil the following conditions :
(i) The community must be politically organised.
(ii) It should have control over a definite territory.
(iii) This definite control should tend towards performance.
(iv) The community thus constituted must be independent.
Thus the conditions of statehood are, People, a territory, a government and
sovereignty.
Theories of Recognition

Page 15
International law is dominated by two competing theories of state recognition, with
the "declaratory" view currently in prominence but possibly just beginning its
decline in favor of the "constitutive" view. However, if indeed the constitutive view
is gaining ground, then its slow and partial re-emergence is forcing us to rethink the
nature of the state in international law.
1. Constitutive Theory : The constitutive theory states that recognition of an entity
as a state is not automatic. A state is only a state when it is recognized as such and
other states have a considerable discretion to recognize or not. Moreover, only upon
recognition by those other states does the new state exist, at least in a legal sense.
Some practice in contemporary situations may evidence the application of the
constitutive theory rather than the declaratory. Numerous classical scholars have
weighed in support of the constitutive theory, and many modern scholars are
beginning to reexamine the constitutive theory, considering whether it provides a
firmer foundation for the determination of statehood status.
2. Declaratory Theory : The declaratory theory looks to the purported state's
assertion of its sovereignty within the territory it exclusively controls to determine
if it can access the international plane. It is the opposite of the constitutive theory in
that it holds that recognition is almost irrelevant because states have little to no
discretion in determining whether an entity constitutes a state. The status of
statehood is based on fact, not on individual state discretion. The majority of
contemporary scholars and commentators favor this theory.
There is considerable support for the argument that recognition is irrelevant for
whether a state exists as such or not. The Montevideo Convention of 1933 states:
"The political existence of the state is independent of recognition by the other
states."
The International Court of Justice has held in the Genocide Convention case that it
adheres to the declaratory view, in the sense that the failure to maintain effective
control over territory does not extinguish the legal entity in the eyes of the United
Nations.
It has also held in the South West Africa cases that the state as an entity with rights
and obligations does not cease to exist. This opinion on the declaratory theory was
also supported by the Arbitration Commission of the European Communities
Conference on Yugoslavia, chaired by Robert Badinter, discussing the
independence and status of states of the successor to the S.F.R. Yugoslavia.
Furthermore, many national courts have recognized international rights in states that
accrued before international recognition of the entity as a new state, suggesting a
rejection of the notion that the state did not exist before recognition] Many
commentators have held that state practice clearly favors the declaratory model, that
is, that the entity exists as a state before recognition.

Page 16
On the other hand, we have the alternate view which is that states only exist upon
recognition and there is support for this perspective, although we may need to read
between the lines to see it.
Some authorities who claim to support the declaratory view appear to also endorse
the constitutive theory in practice.
. The Badinter Commission initially adopted declaratory language but seems to
have applied a constitutive approach to balance major tensions between the various
European states.
. Milenko Kreca, the ad hoc Judge in the Genocide Convention case implied in his
critical dissent that the Court was applying the constitutive theory.
. The Permanent Court of International Justice, the predecessor to the International
Court of Justice, appeared to endorse the constitutive theory in two opinions: the
Lighthouses case, where effectiveness was disregarded for the fiction of continued
sovereignty of the Turkish Sultan, and the Rights of Nationals of the United States
of America in Morocco case, regarding the continued sovereignty of Morocco
although under the French Protectorate.
. The International Criminal Tribunal for the former Yugoslavia, the International
Court of Justice's neighbor in The Hague is also supportive of the constitutive
theory.
In the Celebici case, the I.C.T.Y. held that the conflict within the former
Yugoslavia was only of an international nature after international recognition of the
independent statehood of Croatia and Bosnia and Herzegovina.
In the Tadic case also at the I.C.T.Y., Judge Li, in a separate opinion, criticized the
majority for applying the constitutive theory. Judge Li argued that the conflict
should have been seen as international from the moment of Slovenia's and Croatia's
declarations of independence, not because of recognition by others
In addition to these decisions of international tribunals or commissions, the act of
recognition seems to increasingly be attributed with constitutive effect within the
international legal system. States such as Croatia, Eritrea, and Central and Eastern
European states arising from Woodrow Wilson's dismemberment of the Habsburg
and Ottoman Empires, have survived extinction or been revived from extinction by
the international community.
Bosnia-Herzegovina and Croatia arguably did not fully satisfy the criteria for
declaratory recognition, so the recognition of those entities as new states may have
had constitutive effect despite the supposed intended application of the declaratory
theory. For some microstates, their relatively recent admission to the U.N., as well
as recognition by other states, may have clarified their position in international law,

Page 17
crystallized their rights, and assisted in their constitution, regardless of the intended
effect of their recognition.
We can also see situations where the existence of emerging states was blocked by
other, more powerful states, which would only be possible if statehood was in the
control of existing states. Also, we can see situations where states, that had lost all
factual qualification as such, were maintained as essentially legal fictions by the
international community. This suggests that recognition both constitutes and
maintains the legal personality of other states whose reality would suggest that they
no longer existed, or existed in a fictitious state.
Although this finding is usually argued because of the illegality of the occupation of
the state, if statehood was truly declaratory, then the ending of effective control and
independence would necessarily mean the extinction of the state.
These cases are significant because they evidence that entities only receive
international rights and obligations when they are recognized by other states as
states. It is commonly observed that "only states sit on the United Nations Security
Council, only states petition the International Court of Justice and only states
participate in the Nuclear Non-Proliferation Treaty regime." Recognition of
statehood changes the range of actions available to an entity and also changes the
expectations of the international community regarding the behavior of the new
state.
It would appear that the support for the declaratory theory is partly legal and partly
the more politically correct position. The constitutive theory does still attract some
legitimacy, possibly partly due to the way it appears to be applied surreptitiously by
tribunals. The difficulty with the either/or approach is that there is an interrelation
of the two sides of the question. The declaratory theory concentrates on the internal
factual situation and the constitutive theory concentrates on the external legal rights
and duties. They both miss a portion of the analysis.
Furthermore, the two sides of the issue interact between themselves. By having
rights a collective group may become more cohesive and may begin to have an
internal political dialogue. Recognition alone does not create the internal factual
situation of statehood, but may help to inspire such coalescence. Nationalism is not
unknown in many apparently highly artificial states. However, recognition of the
factual situation merely acknowledges facts and does not mean there are necessarily
international rights, although it can lead to it.
Forms of Recognition
Express and Implied Recognition
Recognition is essentially a matter of intention. It is founded upon the will and
intention of a State. It may be express or implied. The mode by which recognition is

Page 18
accomplished is of no special significance. It is essential, however, that the act
constituting recognition must give a clear indication of the intention either to deal
with the new State as such, or to accept the new government as the effective
government of the State and to maintain relation with it, or to recognize in case of
insurgents that they are entitled to belligerent rights.
Express recognition indicates the acknowledgment of the recognized State by a
formal declaration. In the practice of States, this formal declaration may happen by
either a formal announcement of recognition, a personal message from the head of a
State or the minister of foreign affairs, a diplomatic note, or a treaty of recognition.
Recognition needs not to be express. It may be implied in certain circumstances.
There are circumstances in which it may be possible to declare that in acting in a
certain manner, one State does by implication recognize another State or
government. However, because of this possibility, States may make an express
declaration to the effect that a particular action involving another State is by no
means to be regarded as inferring any recognition. This position, for example, was
maintained by Arab States with regard to Israel.
implied recognition is recognition of a State or a government through actions other
than official declarations or actions intended to grant recognition. The required
actions for implied recognition must be unequivocal, leaving no doubt of the
intention of the State performing them to recognize the State or government and to
deal with it as such. There is a variety of actions undertaken by a State in regard to
an unrecognized State or government. Some actions are conclusively regarded
implying recognition, while others are not. Included in the first category are the
official congratulatory statements upon independence, the formal establishment of
diplomatic relations and the conclusion of a bilateral treaty. The actions that do not
conclusively imply recognition are the participation in multilateral treaty, the
membership in international institutions, the common participation in international
conference, the maintenance of informal and unofficial contacts, the initiation of
negotiations with an unrecognized state, and the making of claims against an
unrecognized State.
Types of Recognition
• Recognition is of two types, De facto and de jure recognition. The practice of
States shows that in first stage the State generally give de facto recognition. Later
on when they are satisfied that the recognised state is capable of fulfilling
International obligations, they confer de jure recognition on it, that is why
sometimes it is said that de facto recognition of state is a step towards de jure
recognition. The detail of de facto and de jure recognition is as under :
1. De Facto Recognition

Page 19
Education Academy Public International and IHL

According to Prof. G. Schwarzenberger : "When a state wants to delay the de

jure recognition of any state, it may, in first stage grant de facto recognition."
The reason for granting de facto recognition is that it is doubted that the state
recognized may be stable or it may be able and willing to fulfil its obligations under
International Law. Besides this it is also possible that the State recognised may
refuse to solve its main problems.
De facto recognition means that the state recognized possesses the essentials
elements of statehood and is fit to be a subject of International Law.
According to Prof.L.Oppenheim : "The de facto recognition of a State or
government takes place when the said State is free state and enjoys control over a
certain fixed land but she is not enjoying the stability at a deserved level and
lacking the competence to bear the responsibility of International Law."
For Example : De jure recognition had not been given to Russia by America and
other countries for a long time because Russia was not having competence and
willingness to bear responsibility of International Law. The same position was with
China.
In view of the Judge Phillips C Jessup, "De facto recognition is a term which has
been used without precision when properly used to mean the recognition of the de
facto character of a government; it is objectionable and indeed could be identical
with the practice suggested of extended recognition without resuming diplomatic
relations."
The de facto recognition is conditional and provisional. If the state to which De
Facto recognition is being given is not able to fulfil all conditions of recognition
then that recognition is withdrawn.
2. De Jure Recognition
De jure recognition is granted when in the opinion of recognizing State, the
recognized State or its Government possesses all the essential requirements of
statehood and it is capable of being a member of the International Community.
According to Prof.H.A.Smith : "The British practiced shows that three conditions
precedent are required for the grant of de jure recognition of a new State or a new
Government. The three conditions are as under :
1 A reasonable assurance of stability and performance.
2. The government should command the general support of the population.
3. It should be able and willing to fulfil its international obligations.
Further Recognition de jure results from an expressed declaration or from a positive
act indicating clearly the intention to grant this recognition such as the
establishment of diplomatic relations.
Page 20
MCQ
(1) Provisions of Municipal Law:-
(a) are enforceable in international
relations without any qualification
(b) are enforceable in international -
relations if they are not in conflict
with international law;
(c) are not at all enforceable in
international relations.
ANS = B
(2) Select one of the following: -
(a) Public International
Organizations are subjects of
International Law;
(b) both Public and Private
International organizations are
subjects of International Law
(c) None of the above is subject of
International Law.
ANS = C
(3) Foreign diplomatic envoys enjoy
absolute immunity from local
jurisdiction in;
(a) Civil matters;
(b) Criminal matters;
(c) both civil and criminal matters.
ANS = C
(4) The Right of innocent passage is
available to:
(a) Foreign Aircrafts;
(b) Foreign ships;
(c) all foreign vehicles.
ANS = B
(5) Non-permanent members of the
U.N. Security Council are elected for
a period’ of:
(a) five years;
(b) three years;
(c) two years.
ANS = C
(6) A successor state is legally bound
to:
(a) fulfill all the obligations of its
predecessor state;
(b) only selected obligations;
(c) No obligation at all..,
ANS = B
(7) A lower riparian state:
(a) Has no right to share water
resources of an International River;
(b) Has exclusive right
(c) Has right to share water on an
equitable basis.
ANS = C
(8) The Charter of the U.N. was
drawn up by:-
(a) London Declaration 1943.;
(b) Moscow and Tehran
Conference1943;
(c) San Francisco Conference 1945.
 [UNIT – III: PUBLIC INTERNATIONAL LAW AND IHL MCQS]

ANS = C (a) the U.N.

(b) the States
(9) Universal Declaration on Human (c) Both
Rights was adopted in: ANS = C
(a) 1978
(b) 1958 (14) A state is exempted from the
(c) 1948 2 jurisdiction of the local courts in
ANS = C another state:
(a) if an agreement has been made
(10) The judges of the I.C.J. are to that effect;
elected by: (b) by virtue of its sovereign status;
(a) the U.N. Security Council (c) if such an exemption is granted
(b) the U.N. General Assembly by the local authorities.
(c) both ANS = B
ANS = C
(15) The offence of piracy is subject
(11) Territorial Waters are: to the jurisdiction of:
(a) Waters within the territorial (a) the flag state;
limits of a state; (b) the offenders state
(b) Waters dividing the territory of (c) all the states.
two or more states; ANS = C
(c) None of the above.
ANS = A (16) A Continental Shelf is situated
beneath the sea level at the
(12) A state is admitted to the approximate depth of:
membership of the’ U.N. by: (a) 200 meters
(a) the Security Council; (b) 300 meters
(b) the General Assembly; (c) 500 meters
(c) Both ANS = A
ANS = B
(17) Foreign sovereign ships
(13) Advisory opinion from the I.C.J. sailing/anchoring in the coastal
can be sought by: waters of another state are:
 [UNIT – III: PUBLIC INTERNATIONAL LAW AND IHL MCQS]

(a) subject to the law of the flag (c) N.G.O. for the uplift of economic
state; and social standards of the people of
(b) subject to the law of the coastal the world.
state; ANS = B
(c) subject to the law of both states.
ANS = C (21) Subject of International Law
are:
(18) In case an alien is injured in a (a) States
foreign state, it is the right of the: (b) Individuals
(a) injured alien to bring a claim (c) Both
against the wrongdoer state before (d) None of these
arrival international forum; ANS = C
(b) state of the nationality of the
injured alien; (22) The General Assembly is:
(c) none of the two has aright to do (a) The Principle Organ of UNO
so. (b) An ordinary Organ of UNO
ANS = B (c) A check on the Security Council
(d) None of theseANS = A
(19) Extradition is the process of: -
(a) providing asylum to the person (23) League of Nations was not
who needs it; joined by:
(b) handing over a person accused (a) USA
or convict of a crime by a state to (b) France
the demanding state; (c) UK
(c) None of the two. 3 (d) None of these
ANS = B ANS = A

(20) The Economic and Social Council (24) Judges of the ICJ are:
is: (a) Elected by the Security Council
(a) a specialized agency of the U.N. (b) Elected by the General Assembly
(b) an organ of the U.N. and the Security Council
 [UNIT – III: PUBLIC INTERNATIONAL LAW AND IHL MCQS]

(c) Appointed by the Secretary (28) Rights of hand-locked states are

General in consultation with the five governed by
permanent members of the Security (a) Rules of customary international
Council. law
(d) None of these (b) Convention on the Law of Sea
ANS = B (c) Mutual Consent
(d) None of these
(25) Under the Convention of the ANS = B
Law of the Sea, the breadth of the
Territorial Sea is: (29) Vienna Congress took place in:
(a) 6 nautical miles (a) 1815
(b) 8 nautical miles (b) 1919
(c) 12 nautical miles (c) 1945
(d) None of these (d) None of these
ANS = C ANS = A

(26) A state can use force: (31) Universal Declaration of Human

(a) In its own defence Rights was signed in:
(b) By entering into a treaty with (a) 1966
another state (b) 1968
(c) At its own discretion (c) 1948
(d) None of these (d) None of these
ANS = A ANS = C

(32) The United Nation is:

(27) Diplomatic relations are (a) A Supra-State organization
established by: (b) A creation of Member States
(a) Mutual agreement (c) Has no link with States after its
(b) Unilateral action establishment
(c) Decision of neighboring States 4 (d) None of these
ANS = A ANS = B

(33) Territorial asylum is:

 [UNIT – III: PUBLIC INTERNATIONAL LAW AND IHL MCQS]

(a) An exercise of territorial (b) Provide moral support to an issue

sovereignty in dispute
(b) An impingement of territorial (c) Furnish legal substance to an
Sovereignty issue in dispute
(c) Granted by mutual consent (d) None of these
(d) None of these ANS = B
ANS = A
(38) The concept of State immunity
(34) A state is is:
(a) Bound to recognize a new state (a) An attitude of territorial
(b) Not bound to do so sovereignty
(c) Requited to enter into dialog (b) A derogation-form the
with the new state for recognition sovereignty of state
ANS = B (c) Not concerned with territorial
sovereignty
(35) Minquires and Ecrehos case was (d) None of these
decided by ANS = A
(a) ICJ (1950)
(b) PCIJ (39) The Continuity of states us
(c) Europe Court of Human Rights International Legal Persons is:
(d) None of these (a) Affected by change of
ANS = A government
(b) Not affected by change of
(36) The eruption of war government
termination: (c) Depends of the recognition of
(a) All treaties new government
(b) Only political treaties (d) None of these
(c) No treaty ANS = B
ANS = B
(40) Harmon Doctrine is:
(37) International Law can: (a) Part of International Law
(a) Compel a state to settle a (b) Was renounced before it could
dispute take roots in International Law

Education Academy. Call/WhatsApp : 6375942802

 [UNIT – III: PUBLIC INTERNATIONAL LAW AND IHL MCQS]

(c) Is attempting to earn general (c) In cases involving personal

acceptance property
(d) None of these (d) None of these
ANS = B ANS = A

41. The Indian Red Cross Society was (45) Haronon Doctrine means
established in the year (a) A state cannot interfere in the
1932 internal affairs of other States
1920 (b) A state is not bound to recognize
1945 a government installed by a foreign
1890 power
ANS = B (c) A State has the right to use force
for the protection of its nationals.
(42) Vital change of circumstances (d) None of these
(a) Renders a treaty invalid ANS = D
(b) Terminates the treaty
(c) Has no affect on the treaty (46) The Universal Declaration of
(d) None of these Human Rights was adopted in:
ANS = A (a) 1917
(b) 1945
(43) In Pakistan the limit of the (c) 1948
territorial waters is: (d) None of these
(a) 24 ANS = C
(b) 12
(c) 36 (47) Contiguous Zone in Pakistan is
(d) None of these adjacent to and beyond the
ANS = B territorial waters and extending
seawards to a time
(44) A diplomatic agent is immune (a) 12
from local jurisdiction: (b) 24
(a) In all cases (c) 48
(b) In criminal cases (d) None of these
ANS = B