UNIT- 1 4

EVOLUTION OF INTERNATIONAL LAW 4

DEFINITION OF PUBLIC INTERNATIONAL LAW 7
DIFFERENCES BETWEEN PUBLIC INTERNATIONAL LAW AND MUNICIPAL OR
DOMESTIC LAW 8
DIFFERENCES BETWEEN PUBLIC INTERNATIONAL LAW AND PRIVATE
INTERNATIONAL LAW 8
SCHOOLS 9
THEORY OF CONSENT 13
THEORY OF AUTO-LIMITATION 14
TWAIL- Third World Approach to International Law 15

UNIT 2 17

Sources of international law 17

2 sources- 17
1. Formal- from which legal rules derives its legal validity, conventions, customs and GPL 17
Customs- 18
1. State practice- This is also known as the material element- 19
2. Opinio Juris – 22
General Principles of Law 23
RIGHT TO PASSAGE CASE - 28
LIBYA v. MALTA (Continental Shelf dispute) - 26
ERGA OMNES 31
JUS COGENS 31
LEX SPECIALIS DEROGATE LEX GENERALI 33
LEX POSTERIOR DEROGAT PRIORI 33
PERSISTENT OBJECTOR AND SUBSEQUENT OBJECTOR 34
ANGLO-NORWEGIAN FISHERIES CASE – PERSISTENT OBJECTOR Facts 34
SS LOTUS CASE- 21

UNIT - 3 37

MONISM/INCORPORATION 37
MONISM/INCORPORATION IN USA 􏰆 CASES LA GRAND CASE 33
DUALISM/TRANSFORMATION 34
DUALISM AND INDIA 35
JOLLY GEORGE VARGHESE 􏰆. BANK OF COCHIN Fa􏰆􏰆􏰆 35

UNIT 4 - TREATY LAW 43

1
 Definition of a treaty 43
Basics of Treaties 46
Consent 48
● Ratification 49
RESERVATION ● 2(1) (d) 51
GENERAL RULE OF INTERPRETATION Article 31 54
Amendment and Modification 55
Invalidity/ Suspension/ Withdrawal/Termination 56

UNIT – 5 60

STATEHOOD AND RECOGNITION 60

International Legal Personality 60
Subjects of International Law- 60
STATES AS SUBJECT OF INTERNATIONAL LAW 62
INDIVIDUALS AS A SUBJECT OF PUBLIC INTERNATIONAL LAW 65
INTERNATIONAL ORGANISATIONS AS A SUBJECT OF INTERNATIONAL LAW 66
NON STATE ACTORS AS A SUBJECT OF INTERNATIONAL LAW 68
RECOGNITION 71
1. De facto Recognition 75
2. De jure Recognition 75
Theories of recognition 76

The recognition of a new entity as a sovereign state is based on two main theories: 76
RIGHTS AND DUTIES OF STATE 78
RECOGNITION OF INSURGENCY AND BELLIGERENCY 80

UNIT – 6 STATE TERRITORY AND STATE SUCCESSION 82

Specific Categories of State Succession 82
Modes of acquisition of territory 85
MODES OF LOSS OF TERRITORY 89
STATE SUCCESSION 91
CONSEQUENCES OF STATE SUCCESSION 93
Meaning & Definition of State Succession: 83
The India-Pakistan Scenario 96

UNIT – 7 STATE JURISDICTION AND RESPONSIBILITY 97

STATE JURISDICTION 97
STATE JURISDICTION PRINCIPLES/THEORIES 98
S.S Lotus case – 98
IMMUNITIES FROM JURISDICTION 101
STATE RESPONSIBILITY 105
WHAT PRECLUDES STATE RESPONSIBILITY 110

2
 Effective Test Control Test laid down in Military and Paramilitary Activities in and against
Nicaragua 117
(Nicaragua v. United States of America) 117

UNIT 8- LAW OF THE SEA 119

● UNCLOS - 1 - 119
Maritime zones – normal waters 120
ANGLO- NORWEGIAN FISHERIES CASE 121
DELIMITATION OF MARITIME ZONES BETWEEN OPPOSITE OR ADJACENT STATES
122
Juridical Nature of the Territorial Sea- 123
Enrica Lexie- 125
LANDLOCKED COUNTRIES 129
Jurisdiction of coastal state over the foreign ships- 120
Flag state Jurisdiction over the High Seas- 133

Right to Hot Pursuit- (exception to exclusive flag state jurisdiction) 135

THINGS TO BE CONSIDERED BEFORE ENTERING INTO A TREATY- 138

UNIT – 9 NATIONALITY, EXTRADITION AND ASYLUM 139

NATIONALITY 139
ACQUISITION OF NATIONALITY 140
MODES OF LOSS OF CITIZENSHIP 142
NOTTEBOHM CASE AND NATIONALITY 144
EXTRADITION 145
PRINCIPLES THAT GOVERN EXTRADITION 146
ASYLUM 148
RIGHTS OF REFUGEES 148

UNIT – 10 SETTLEMENT OF DISPUTES 152

PACIFIC MEANS OF SETTLEMENT 152
ROLE OF ICJ- 154
JURISDICTION OF ICJ 154
NORTH SEA CONTINENTAL SHELF CASE 157
S.S LOTUS CASE 159
RIGHT TO PASSAGE CASE 161
ASYLUM CASE Columbia v. Peru [1950] ICJ 6 Facts 162
CHORZOW FACTORY CASE Germany v. Poland 163
THE CORFU CHANNEL CASE UK v. The Republic of Albania 164
ANGLO- NORWEGIAN FISHERIES CASE 165
REPARATION CASE - 166
LIBYA v. MALTA 166

3
UNIT- 1

EVOLUTION OF INTERNATIONAL LAW

In the Hebrew Bible and in other ancient records and inscriptions, there are evidences of the
observance of certain usages as to international intercourse, such as embassies and rules of warfare.
But in those remote ages it was the struggle of one warlike people to dominate all the rest, and
consequently rights of nations were little respected. Two events in the first half of the seventeenth
century had an important influence in promoting this condition of international relations. The first
was the publication of the great work of Grotius, De Jure Belli ac Pacis, in 1625, and the second,
the Congress and Treaty of Westphalia, 1648.

17th Century
Thirty Years’ War, (1618–48), in European history, a series of wars fought by various nations for
various reasons, including religious, dynastic, territorial, and commercial rivalries. Its destructive
campaigns and battles occurred over most of Europe, and, when it ended with the Treaty of
Westphalia in 1648. The important provisions of the Treaty were the recognition of the
independent sovereignty of the States of Europe; their right to exercise exclusive jurisdiction
within their own territory; the regulation of the intercourse of these States; the right of each State
to negotiate its own treaties; and the establishment, nominally at least, of religious toleration. The
Congress of Westphalia in this treaty demonstrated the possibility of adjusting great disputes
among nations by means of mutual discussion. During the Thirty Years' War and inspired by its
terrible ravages came Grotius' great work, De Jure Belli ac Pacis in 1625, to which he had given
twenty years of study and research. It was largely a compilation from the works of others who had
essayed to advocate or establish certain rules for the conduct.
Following the Treaty of Westphalia great reforms were introduced into the practices of war;
prisoners began to be exchanged; the lawlessness of the soldiery was restrained; the sack of cities
and the indiscriminate destruction of private property diminished; and through the eighteenth and
nineteenth centuries steady progress was made in the amelioration of war.

18th Century

4
The most important events in the international relations of the eighteenth century were: the
admission of Russia under Peter the Great, to full membership in the circle of European states; the
rise of Prussia under Frederick the Great as a first-rate Power; the (declaration and achievement of
American independence; and the outbreak of the French Revolution. The colonization of America
by the leading nations of Europe was begun on a large and effective scale during the seventeenth
and continued till the eighteenth century. The outbreak of the French Revolution and the successful
inauguration of the American Union, based on principles of democracy, nationality and federalism,
m-ark a new epoch in the history of international relations, as of civilisation in general.
-
Napolean era
France entered upon a career of aggression and conquest which culminated in the short-lived
Napoleonic empire (1804-14), embracing the greater part of central and southern Europe. Great
Britain headed a series of coalitions against Napoleon I which ended in his downfall and the
reduction of France to her former boundaries at the end of battle of Waterloo. The Congress of
Vienna, also called Vienna Congress, was a meeting of ambassadors of European held in Vienna
from November 1814 to June 1815. The objective of the Congress was to provide a long-term
peace plan for Europe by settling critical issues arising from the French Revolutionary Wars and
the Napoleonic Wars. The balance of power in Europe was once more restored at the reactionary
Congress of Vienna in 1815 upon the principle of legitimacy. It defined the relative rank of
ministers, envoys and ambassadors; declared in favor of abolition of the African slave trade; and
agreed upon general principles intended to secure freedom of navigation on great international
rivers.

Treaties – 19 Century
A major European conflict of the 19th century, the Crimean War (1853–56) saw an alliance led by
Britain and France challenge Russian expansion. Russia lost and battle and Declaration of Paris in
1856 was signed.
In 1871 the Conference of London solemnly proclaimed "that it is an essential principle of the law
of nations that no Power can liberate itself from the engagements of a treaty, or modify the
stipulations thereof, unless with the consent of the contracting Powers by means of an amicable
agreement.”

5
The First Hague Peace Conference
With a view of "seeking, by means of international discussion, the most effectual means of insuring
to all peoples the benefits of a real and durable peace, and above all, of putting an end to the
progressive development of the present armaments," the First International Peace Conference was
convened at The Hague on May 18, 1899. The First Hague Peace Conference soon realized that
even a limitation of the increase of military and naval expenditures was impracticable at that time,
and devoted its chief energies to the secondary purpose for which it had been called, viz., to devise
means of securing "the maintenance of general peace.” The British and American plan of a so-
called "Permanent Court of Arbitration was adopted in spite of the objections of the German
Government.

20 Century
The First World War marked the close of a dynamic and optimistic century. European empires
ruled the world and European ideologies reigned supreme, but the1914–18 Great War undermined
the foundations of European civilisation. The most important legacy of the 1919
-
Peace Treaty from the point of view of international relations was the creation of the League of
Nations. The old anarchic system had failed and it was felt that new institutions to preserve and
secure peace were necessary. The League consisted of an Assembly and an executive Council, but
was crippled from the start by the absence of the United States and the Soviet Union for most of
its life and remained a basically European organisation.
After the trauma of the Second World War the League was succeeded in 1946 by the United
Nations Organisation, which tried to remedy many of the defects of its predecessor. It established
its seat at NewYork, reecting the realities of the shift of power away from Europe, and determined
to become a truly universal institution. The advent of decolonization satisfied this expectation.
Many of the trends which came to prominence in the nineteenth century have continued to this
day. The vast increase in the number of international agreements and customs, the strengthening
of the system of arbitration and the development of international organisations have established
the essence of international law as it exists today.

6
DEFINITION OF PUBLIC INTERNATIONAL LAW
According to Dias, “International Law is obeyed and complied with by the states because it is in
the interests of states themselves.”
According to Bentham “International law is a collection of rules governing relations between
states.” The term International Law was coined by the English philosopher Jeremy Bentham
According to Gray "International Law or the Law of Nations is the name of body of rules which
according to the usual definitions regulate the conduct of the States in their intercourse with one
another.”
Oppenheim defined of Public International Law as "The Law of Nations or International Law is
the name for the body of customary and conventional rules which are considered legally binding
by civilised States in their intercourse with each other".
CRITICISMS – The following are ignored as subjects of international law by Oppenheim;
1. International Organisations 2. Individuals
3. General Principles of Law
-
New Definition of International Law in Latest Edition of Oppenheim's Book - The editors of
the ninth edition of Oppenheim's book (1992), Sir Robert Jennings and Sir Arthur Watts, have
revised Oppenheim's definition of International Law in the following words :
"International Law is the body of rules which are legally binding on states in their intercourse
with each other. These rules are primarily those which govern the relation of States, but States are
not the only subject of International Law. International organisations, and to some extent, also
individuals may be subjects of rights conferred and duties imposed by international law."
● MOST ACCEPTED DEFINITION
In the words of J G Starke : “ International law may be defined as that body of law which composed
for its greater part of the principles and rules of conduct which states feel themselves bound to
observe, and therefore, do commonly observe in their relations with each other, and which includes
also :
(a) The rules of law relating to the functioning of international institutions or organisations, their
relations with each other, and their relations with states and individuals; and
(b) certain rules of law relating to individuals and non-state entities so far as the rights or duties of
such individuals and non-state entities are the concern of the international community.

7
DIFFERENCES BETWEEN PUBLIC INTERNATIONAL LAW AND
MUNICIPAL OR DOMESTIC LAW
PUBLIC INTERNATIONAL LAW
Laws of Nations or International Law is the name for the body of customary and treat rules which
are considered legally binding by the states in their intercourse with each other.
No sovereign authority
All the states are equally sovereign
No direct sanctions
MUNICIPAL OR DOMESTIC LAW
The national, domestic, or internal law of a sovereign state defined in opposition to International
law is known as Municipal law. It also includes law at national level, state level, and provincial
level, and territorial level, regional or local levels.
Existence of sovereign authority State is Sovereign
In case of violation of law, direct sanctions shall be imposed.

DIFFERENCES BETWEEN PUBLIC INTERNATIONAL LAW AND

PRIVATE INTERNATIONAL LAW
PUBLIC INTERNATIONAL LAW
Followed by Nations to regulate their relations
Law of Nations
Public International law rules are outcome of International custom and treaties.
In public International Law there is no Predetermined Court.
Public International Law is same for all the States.
Jurisdiction – applicable to all states who have consented
PRIVATE INTERNATIONAL LAW
When there is a foreign element
Conflict of Laws

8
Private International law rules are framed by the State legislature.
In private International Law courts are predetermined.
Private International Law differ from state to state.
Jurisdiction – Choice as to which Court or which law to apply.

SCHOLARS AND THEIR CONTRIBUTION TOWARDS INTERNATIONAL LAW /

TRUE BASIS OF INTERNATIONAL LAW/
The following notes upto positive law can be also written for WHETHER
INTERNATIONAL LAW IS TRULY A LAW?

SCHOOLS
Various doctrines exist regarding the basis for the binding authority of international law. The two
most prominent schools of thought are naturalism and positivism. Many other doctrines are either
derived from or founded upon these two doctrines.
NATURALIST SCHOOL - In the 17th and 18th centuries and earlier times, under the influence
of theology and the "law of nature," the science and study of international law was dominated by
the naturalist school. This school maintained that the validity of international law was based upon
the will of God and that sovereigns were subject not only to divine law, but also to the laws of
nature established by God. The naturalist school generally negates the necessity, and denies the
existence, of positive law. It proposes that besides natural law (jus naturae), there is no room for
any other law and that international law and other systems of law all belong to the system of the
law of nature. They also advocated that jus cogens are to followed in public international law. Any
public international law that is in violation of jus cogens are held to be null and void, according to
the naturalists.
Early writers that can be labeled as "naturalists" include the two well-known Spanish theologians
and jurists, Francisco de Vitoria and Francisco Suirez. For Vitoria, the law of nations "was founded
on the universal law of nature."' Similarly, Sudrez believed that international law was the
derivation from or extension of natural law, and that natural law was the basis of international law.
Pufendorf denied the existence of any positive rule, holding that only natural law contained legally
binding norms. Pufendorf and his followers not only considered that the basis of international law

9
was the law of nature, but also viewed international law as part of natural law or completely
identified the two as the same.
CRITICISMS

1. First, each naturalist uses the "law of nature" as "a metaphor for some more concrete
conception such as reason, justice, utility, the general interests of the international
community.
2. A second criticism of naturalism involves it's disconnection with reality. By denying the
existence of rules of positive law, extreme naturalists espouse a doctrine that many modern
scholars view as simply not being supported by reality.
3. Critics contend that the so-called notions of ''natural law,' ''inherent human rights" and the
like are purely artificial creations of theoreticians and that such concepts do not exist in the
absence of positive law-making.
Hugo Grotius – Natural Law
Hugo Grotius (1583-1645) was a Dutch scholar and jurist whose legal masterpiece, De Jure Belli
ac Pacis (On the law of war and peace [1625]), contributed significantly to the formation of
international law as a distinct discipline. Grotius's primary contribution to international law is his
suggestion that a rational system governs international relations. He began his analysis with natural
law. Unlike brute creation, he reasoned, human nature is characterized by the desire for a peaceful
and orderly society. From this foundation he developed his system of international law. Grotius
claimed that just as the desire for community necessitates certain laws and principles to hold
society together for mutual benefit, so the community of nations is held together by certain natural
principles.
Among the issues addressed by Grotius in his various writings were:
(1) Jus ad Bellum (right to war): Grotius represented a divergence from the ancient just war theory,
which gave little attention to the doctrine of self-defense. He believed that actions taken in self-
defense fell within the realm of just war.
(2) Jus in Bello: Greatly disturbed by the brutality of war, Grotius centralized the notion of jus in
bello (rights in war) by making it part of the obligations found under just war theory. He believed
states were not unlimited in the ways in which they could pursue war, and that they were obligated
to act justly and prudently when conducting and concluding war. Most notably the Hague
Conventions of 1899 and 1907 embraced his notion of a prohibition on unnecessary suffering.

10
(3) Rights of Individuals: Because Grotius endorsed a society of mankind and considered
individuals to be actors in international society, he wrote extensively on human law, a precursor
of what is today known as international human rights law. He presupposed certain fundamental
human rights, such as the right to life, food, and medicine.
(4) Humanitarian Intervention: In general, Grotius was a non-interventionist. However, he did
argue that states might be able to act on behalf of individuals who were victims “of injuries
which...excessively violate the law of nature or of nations in regards to any person.”
(5) Freedom of the Seas: Grotius firmly believed that no state could claim exclusive ownership
over any part of the seas, although he did acknowledge the sovereignty of coastal states. In his
view, freedom of the seas meant freedom of navigation. There is a direct link between Grotius’
concept of freedom of the seas and the 1982 UN Convention on the upon Grotius’ ideas and
expanded freedom of the high seas to include, in addition to basic navigation, scientific research,
and clearer responsibilities of jurisdiction, protection, and enforcemen
Samuel von Pufendorf – Natural Law
Samuel von Pufendorf was a seventeenth century German jurist, historian, philosopher, and
statesman renowned for his influential writings on international and natural law. He was
-
born the son of a Lutheran minister in Saxony in 1632. In 1672 appeared De iure naturae et
gentium. This work took largely the theories of Grotius and many ideas from Hobbes, adding to
them Pufendorf's own ideas to develop the law of nations. Pufendorf argues that natural law does
not extend beyond the limits of this life and merely regulates only external acts. He also challenges
the Hobbesian thesis of a state of nature which is a state of war or conflict. For Pufendorf too there
is a state of nature, but it is a state of peace. This natural peace, however, is weak and uncertain.
In terms of public law, which recognizes the state (civitas) as a moral person (personamoralis)
,Pufendorfarguesthatthewillofthestateisneverthelessnothingmorethan the sum of the individual
wills that are associated within it; hence the state needs to submit to a discipline essential for human
safety. This 'submission', in the sense of obedience and mutual respect, is for Pufendorf the
fundamental law of reason, which is the basis of natural law. He adds that international law should
not be limited or restricted only to the Christian nations, but must create a common link between
all peoples, since all nations are part of humanity.

11
NOTE – Differences between naturalist and positivist schools also can be written here.
POSITIVE SCHOOL
In direct opposition to the naturalist theories are positivism and various derivative positivist
theories. Positivism generally teaches that the law of nations is the aggregate of positive rules by
which States have consented to be bound, exclusive of any concepts of natural law such as "reason"
and "justice." For the positivists, nothing can be called "law" among States to which they have not
consented. The proponents of the positivist doctrines maintain that the will of the State is
absolutely sovereign and that it is the source of the validity of all law. The validity of all laws,
whether domestic or international, depends upon the supreme will of the State.
According to Austin “Law is the command of the sovereign”. He considers it to be law only if it
emanates from the sovereign. Since, there is no sovereign authority in public international law to
pass laws, he calls public international law as illegitimate and also considers it as Positive Morality.
According to HLA Hart law consists of primary and secondary rules. Primary rules are those rules
which confer rights and duties to citizens and the secondary rules are those which recognize those
rules. Since, Rule of Recognition is absent in public international law, he as well like Austin fails
to consider public international law as law. Kelson consider “Sovereignty” as grundnorm, i.e. the
rest of the norms in the international dervies its validity from the Grundnorm.
Alberico Gentilis (1552-1608), the English writer of Italian origin, and Richard Zouche (1590-
1660), another English writer, may be said to be the originators of the school of positive law.
Although Gentilis formulated the school of the so-called "jus naturae et gentium" (natural law and
international law), his doctrine had already departed from theology or naturalist philosophy. He
opposed to the idea of identifying international law with natural law, advocated
-
the interpretation of international law from the perspective of reality, recognized the existence of
different nation-States, believed that every nation-State in reality had equal rights and for the first
time attributed the basis or foundation of international law to the practice (and will) of the State,
as reflected in treaties, voluntary obligations, custom and history.
Further another prominent positivist, Bynkershoek emphasized the importance of the practice of
modern States, custom and treaties, completely ignored the "law of nature" and held (1) that the
rules of international law were established through the consent of States, and (2) that all agreements
between States were the products of their sovereign wills.

12
CRITICISMS
The positivist doctrine of the will of the State represents a major theoretical progress in that it
recognizes the objective linkage between the basis of validity of international law and the will of
States. It is inaccurate, however, to state that the binding force of international law depends simply
on the will of the State or the common will of the States. If the will of the individual State
determined the validity of international law, then each State might have easily renounced a given
rule of international law merely on the ground that such rule was against its supreme will, thus
resulting not in the affirmation but in the very negation of the validity of international law. If "the
will of States" denoted the common wills of all States upon which the binding force of international
law were founded, then one must say every rule of the law ought to be based on such "common
wills." But this is not the case in real international life either.

THEORY OF CONSENT
The exponents of the doctrine of consent also maintain that the will of the State is the controlling
element of the binding force of international law, but their emphasis is on the mechanism of State
consent through which the will of the State is expressed. For them, the rules of international law
become positive law when the will of the State consents to being bound by them whether expressly
or impliedly. According to the consent doctrine, it is the sovereign and supreme will of the State
that commands obedience. This will of the State is said to be expressed in the case of domestic law
through State legislation and in the case of international law through consent to international rules.
Being a main theory of positivism, the doctrine of consent generally teaches that the consent or
common consent of States voluntarily entering the international community constitutes the basis
of validity of international law. States are said to be bound by international law because they have
given their consent.
An extreme faction of the consent theory, on the one hand, professes that a State is not bound by
any legal norm to which it has not explicitly consented. On the other hand, another faction of the
consent doctrine holds that if a State (especially a newly created or newly independent State) has
not openly and expressly objected to a certain norm of international custom, it may be said to have
given its implicit consent to such norm." In other words, the consent of States to a given rule of
international law may be either explicit as indicated in a
-

13
treaty, or tacit as implied in the acquiescence in a customary rule. In the case of custom it is the
implied consent and in the case of treaties it is the express consent that is said to serve as the basis
for the validity of international law. When States exercise their wills to explicitly or implicitly
accept and consent to be bound by certain rules of law, those rules become positive rules of
international law and acquire legally binding validity.
As far back as early 18th century, Bynkershoek took the position that the basis of obligations in
international law derived from either the express consent or implied consent of States, and that
there was no room for the existence of inter-State law beyond what States had accepted as binding
by means of express or implied consent.

THEORY OF AUTO-LIMITATION
The consent theory as originally propounded was later modified in certain respects by followers
of the positivist school. It later developed into the auto-limitation or self limitation doctrine (also
known as "voluntarist positivism" or "voluntarism"). Some proponents of the auto-limitation
doctrine attribute a will to States, clothe that will with full sovereignty and authority, and maintain
that international law consists of those rules which the wills of the various States have accepted by
a process of voluntary self-restriction. The doctrine of States' auto-limitation or self-limitation is
thus another traditional theory of the positivist school. It teaches that international law is the
outcome of the exercise of self-limitation by States, and that the basis of its validity is the wills
and voluntarism of States. The self-limitation doctrine proclaims that States are sovereigns, whose
wills reject any type of external limitation, and if their sovereignty is in any way limited, that
limitation cannot be from any external force, but only be imposed by the States themselves.
Voluntarism stemmed from the teaching of Hegel and was put forward and fully developed by the
Austrian, Georg Jellinek (1851-1911), on the basis of the main postulates of positivism. In the
view of Jellinek, the supra will of the State by consenting to be bound by customary and
conventional rules of international law places limitations on its sovereignty. The rules of
international law derive their binding force by self-limitation of the sovereign will of States
through consent. The will of the State being sovereign could not be subordinated to any external
power unless it consented to it.
Emmerich de Vattel – Theory of Automation

14
One of the most influential early writers on the subject of the law of nations was the Swiss jurist
and philosopher, Emmerich de Vattel. His most famous work, Droit des gens; ou, Principes de la
loi naturelle appliqués à la conduite et aux affaires des nations et des souverains (in English, The
Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of
Nations and of Sovereigns) published in 1758, established Vattel as a major authority on the
subject.
-
Vattel’s ultimate aim was to produce a treatise on international law that could provide practical
guidance. His work reflects that his goal is to apply the principles of natural law to the conduct
and affairs of nations and sovereigns. The scope of The Law of Nations is actually much broader
than its stated topic. It addresses both international and internal affairs of states. Vattel
statesthat“thispoliticalauthorityisthesovereignty”and“heortheywhoareinvestedwithit are the
sovereign.”
Thus, “every nation that governs itself, under what form so ever, without dependence on any
foreign power, is a sovereign state. Its rights are naturally the same as those of any other State. He
draws out the consequences of the principle of state sovereignty. Vattel argues that “each sovereign
State claims, and actually possesses an absolute independence on all the others.” Vattel provides
an analogy: “Nations being free and independent of each other, in the same manner as men are
naturally free and independent, the second general law of their society is, that each nation should
be left in the peaceable enjoyment of that liberty which she inherits from nature. The natural
society of nations cannot subsist, unless the natural rights of each be duly respected. Vattel makes
it clear that “no foreign power has a right to interfere” in the internal affairs of other states.

TWAIL- Third World Approach to International Law

The regime of international law is illegitimate. It is a predatory system that legitimizes, reproduces
and sustains the plunder and subordination of the Third World by the West. Neither universality
nor its promise of global order and stability make international law a just, equitable, and legitimate
code of global governance for the Third World. The construction and universalization of
international law were essential to the imperial expansion that subordinated non-European peoples
and societies to European conquest and domination.

15
The first TWAIL meeting was held in March 1997 at Harvard University. The primary objective
– one that has marked the work of TWAILers since then – was to cross-examine international
law’s assumed neutrality and universality in light of its longstanding association with imperialism,
both historical and ongoing.
The Third World is a political reality. It describes a set of geographic, oppositional, and political
realities that distinguish it from the West. It is a historical phenomenon that has a dialectic
relationship with Europe in particular and the West in general. The Third World is more truly a
stream of similar historical experiences across virtually all non-European societies that has given
rise to a particular voice, a form of intellectual and political consciousness. The term Third World
is different from less-developed, crisis-prone, industrializing, developing, underdeveloped, or the
South because it correctly captures the oppositional dialectic between the European and the non-
European, and identifies the plunder of the latter by the former. It places the state of crises of the
world on the global order that the West has created and dominates.

Objectives of TWAIL
-
1. End the domination of European Countries in the international sphere. 2. Alternate legal order
wherein the Third World has a say.
3. Scholarship (research) and politics to eradicate underdevelopment.
TWAIL is not a recent phenomenon. It stretches back to the decolonization movement that swept
the globe after World War II. This confrontation has its roots in the anti-colonial movement.
TWAIL is a response to decolonization and the end of direct European colonial rule over non-
Europeans. It basically describes a response to a condition, and is both reactive and proactive. It is
reactive in the sense that it responds to international law as an imperial project. But it is proactive
because it seeks the internal transformation of conditions in the Third World.
The United Nations, formed after World War II by the dominant Western powers, aimed to create
and maintain global order through peace, security, and cooperation among states.24 The new
global order had two important legitimating features. Non-European powers were now recognized
as having the right to self-determination, which was a repudiation of direct colonialism. Second,
states were to be governed by human rights. Ostensibly, the United Nations was the neutral,
universal and fair guardian of the new order. But in reality, European hegemony over global affairs

16
was simply transferred to the big powers; the United States, Britain France, the Soviet Union, and
China which allotted themselves permanent seats at the Security Council, the most powerful UN
organ. The primacy of the Security Council over the UN General Assembly, which would be
dominated by Third World states, made a mockery of the notion of sovereign equality among
states.
Any TWAIL scholarship or political action must be fundamentally oppositional to an important
question in international law. Such disagreement must be related to an issue that is of significance
to, or affects in an important way, the Third World. The purpose of such scholarship or work must
be to eliminate or alleviate the harm or injury that the Third World would likely have suffered as
a result of the unjust international legal, political, and economic order. Such scholarship or political
action will be concerned with justice or the fairness of norms, institutions, processes, and practices
in the transnational arena. Its overriding purpose must be the elimination of an aspect of Third
World powerlessness.

UNIT 2

Sources of international law

2 sources-

1. Formal- from which legal rules derives its legal validity, conventions, customs and GPL

2. Material sources- denotes the derivation of the substantive content of the rule, judicial
decisions and writings of publicists.

Article 38 (1) of Statute of ICJ, 1945:

17
Article 38(1) of the statute of international court of justice is widely recognised as the most
authoritative and complete statement as to the sources of international law.

The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:

1. international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;
2. international custom, as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the determination
of rules of law.

This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto.

Article 59 states that the court has no binding force except between the parties and in respect of
the particular case.

- A distinction can be made in between formal and material sources, the former it is
claimed, conferred upon the rules an obligatory character while the latter comprises
the actual content of the rules.

CUSTOMS-

- International custom is the oldest and most original source of international law.
- Customary rules of international law are the rules which have been developed in a long
process of historical development in order to understand the meaning of custom' it is
necessary to know the meaning of the word ‘usage’.
- Usage means those actions which are often repeated by the States;

18
 - Custom on the other hand emerges, when a clear and continuous habit of doing certain
actions grows up under the aegis of the conviction that these actions are right.
- Custom is such a usage as has the force of law. Usage is an international habit which has
yet not received the force of law.

- There are two essential elements of a custom-

1. State practice- This is also known as the material element-

- There are a number of points to be considered concerning the nature of a particular

practice by states, including its duration, consistency, repetition, and generality.
- The concept of duration usually has a time scale recognised by customary rule in the
particular municipal system but in the case of international law there is no such rigid time
element it depends on the circumstance of the case and the nature of usage in question.
Hence, duration is not the most important component of state practice.
- The rule regarding continuity and repletion was laid down in the Asylum case ( ICJ,
1950) in which the court declared that the customary rule must be in accordance with the
constant and uniform usage practiced by the states in question.

Facts of Asylum case

- Haya de la Torre, a Peruvian was sought by his government after an unsuccessful revolt.
- Granted Asylum by Columbia in its embassy in Lima, but Peru refused to issue a safe
conduct to permit Torre to leave the country.
- Colombia brought the matter before ICJ, requesting a decision recognising that it was
competent to define Torres offence and decide as to whether it was criminal as Peru
maintained or political in which case asylum and a safe conduct could be allowed.

Judgement
- While characterising the nature of customary rule the court held that it has to constitute
the expression of a right appertaining to one state (Col) and a duty incumbent upon another
(Peru).
- The court also held that in the case the state practice had been so uncertain and

19
 contradictory as to not to amount to a continued and uniform usage regarding the
unilateral qualification of the offence in question.
- The court also said that in this case the issue dealt with a regional custom pertaining to
only Latin America and it can be argued that the same approach need not be followed if
general custom is alleged.

In the Anglo-Norwegian Fisheries Case (Rule of persistent Objector) the ICJ emphasised its
views on that some degree of uniformity amongst state practices was essential before a custom
could come into existence.

Judgment
-UK in its arguments against the Norwegian way of measuring the breath of the territorial sea, they
referred to an alleged rule of custom whereby a straight line may be drawn across bays of less than
ten miles from one projection to another , which can be regarded as the baseline for measurement
of the ter sea.
- The court dismissed
- Actual practice of states did not justify the creation of any such custom( insufficient
uniformity of behaviour.

● A similar approach occurred in the North Sea Shelf case in which the ICJ in accordance
with Art 6 of the Geneva Convention on the Continental Shelf 1958 provided that in a
situation an agreement could not be reached and unless in special circumstances justified
a diff approach, the boundary line was to be determined in accordance with the
principle of equidistance from the nearest point of the baseline from which the
breadth of the territorial sea of each state is measured.
● The question thus was whether a case could be made out that the equidistance principle
had been absorbed into customary law and was in accordingly binding upon Germany.
● The court concluded in negative and held that the provision in the Geneva Convention
did not reflect an already existing custom. The issue turned to whether the practice
subsequent to the convention had created a customary rule. (Court answered in negative)

20
 ● The ICJ remarked the state practice including that of states whose interests are specially
affected, had to be both extensive and virtually uniform in sense of the provision
invoked.
● The court in the Nicaragua case maintained the approach and noted that for a new
customary rule to be formed they must also be accompanied by opinio juris sive
necessitatis. (state acted in a belief that this action is obligatory by the existence of a
rule of law requiring it.
● Was reaffirmed in Germany v. Italy.
● Court has maintained a high threshold with regard to overt proving of substantive
constituent of customary law formation

In the Nicaragua v. United States case the court emphasized that it was not necessary that the
practice in question had to be in absolute rigorous conformity with the purported customary
law. To deduce the existence of customary rules, the court deems it sufficient that the conduct of
the states should in general be consistent with such rules and in case of an inconsistency it
should be treated a breach of the rule and not as indications of new rules.

In the Lotus Case the PCIJ laid down a high standard by declaring that abstention could only give
rise to the recognition of a custom if it was based on a conscious duty to abstain. (states had
actually to be aware that they were not acting a particular was because they were under
definite obligation not to act in a way.

SS LOTUS CASE-
International Justice in the SS Lotus case between France and Turkey. A French steamer and a
Turkish Collier collided on the High seas. As a result the Turkish collier sank and a part of its
crew and passengers lost their lives. But the French steamer having been put into Court in turkey
voluntarily the officers on the watch on board at the time of collision were arrested tried,
convicted of involuntary man slaughter by the ruling authority of the flag state. France
protested against the Turkish exercise of jurisdiction on the basis that this was in violation of the
international law.
The question before the court was whether Turkey had the jurisdiction to try the French
officers of a French Merchant ship for the collision.

21
France argued that Turkey had no right to institute criminal proceedings because the flag state of
the vessel alone had jurisdiction over act performed on board of the vessel on the High seas.
Turkey argued in response that vessels on the high seas form part of the territory of the flag state
and further that the criminal legislation of a sovereign state is not bound to keep within the limits
of territorial and personal jurisdiction.
It therefore asserted that in the absence of a rule to the contrary there was a permissive rule
empowering it to try the officers. France however argued that there was a customary rule
imposing a duty on Turkey not to try the officers because previous practice showed that,
“questions of jurisdiction in collision cases are but rarely encountered in the practice of
criminal courts---in practice prosecutions only occur before the court of the state whose flag is
drawn.
In rejecting the French argument the court stated, “ even if the rarity of judicial decisions to be
found among the reported cases were sufficient to prove the circumstances alleged by the French
government it would merely show that states, had often, in practice abstained from instituting
criminal proceedings and not that they recognize themselves as being obliged to do so; for only
if such abstention were based on their being conscious having a duty to abstain would it be
possible to speak of an International custom. The alleged fact does not allow one to infer that
states have been conscious of having such a duty.”
The court found that there was no customary rule conferring exclusive penal jurisdiction in
matters of collision on the high seas on the flag state because state laws were inconsistent,
decisions of municipal courts conflicted on uniform trends and would be deduced from
treaties and publicists were divided in their views.

2. Opinio Juris –

- How state views its own behaviour.

- Opinio Juris or the belief that a state activity is legally obligatory is a factor which turns
the usage unto a custom and renders it as a part of international law.

S.S LOTUS CASE

22
France v. Turkey, P.C.I.J. (ser. A) No. 10 (1927) Facts:

A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel –
Boz- Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel.
The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus.
In Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were
charged with manslaughter. Demons, a French national, were sentenced to 80 days of
imprisonment and a fine. The French government protested, demanding the release of Demons or
the transfer of his case to the French Courts. Turkey and France agreed to refer this dispute on the
jurisdiction to the Permanent Court of International Justice (PCIJ). Turkey was not a member of
League of Nations. Hence, submitted a written document accepting the PCIJ jurisdiction before
hearing.

Issues:

1. Did Turkey violate international law when Turkish courts exercised jurisdiction overa crime
committed by a French national, outside Turkey?

Contentions of France:

International law does not allow a state to take criminal proceedings against the foreign offender
by reason of the victim’s nationality. International law, apart from express or implied agreement,
does not entitle a state to extend the criminal jurisdiction of its courts to include offences against
its citizens committed outside its territory. Acts performed on the high seas in the relevance of
criminal proceedings are subject to the courts of the nationality of the ship. Jurisdiction cannot be
transferred to the nationality of the vessel sunk.

The Turkish courts cannot exercise jurisdiction of an extra territorial sort, such as claimed in the
Lotus case, unless they can point out some evidence that such exercise of jurisdiction is allowed
in the International Customary Law.

Contentions of Turkey:

S.S Boz-Kourt was with Turkish flag, and so Turkish Courts have jurisdiction of the offence.
Vessels on the high seas form part of the territory of the nation whose flag they fly, and in the

23
principal case the offence occurred on the Turkish vessel, Boz-Kourt, where the effects were felt.
Turkish government has jurisdiction because of international customary law. Turkey has
jurisdiction and therefore no reparation should be paid by the Turkish government to the French
government.

Decision: Turkey, by instituting criminal proceedings against Demons, did not violate
international law.

Findings:

There is no customary practice in international law that criminal proceedings occurring from
collisions at sea are exclusively within the jurisdiction of the state on whose flag the vessel is
flown. The Court observed that, “the offence for which Lieutenant Demons appears to have
been prosecuted was an act – of negligence or imprudence – having its origin on board the
Lotus, whilst its effects made them felt on board the Boz-Kourt. It is only natural that each
should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is
therefore a case of concurrent jurisdiction.”

THE TWO PRINCIPLES WHICH EVLOVED IN THIS CASE

● Outside its territory – 1st Lotus Principle

It may not exercise its power in any form in the territory of another State. In this sense jurisdiction
is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a
permissive rule derived from international custom or from convention.

● Within its territory – 2nd Lotus Principle

State may exercise its jurisdiction, in any matter, even if there is no specific rule of international
law permitting it to do so. In this case, the Court equated the Turkish vessel to Turkish territory.
The Court held that the “... offence produced its effects on the Turkish vessel in which the
application of Turkish criminal law cannot be challenged, even in regard to offences committed
there by foreigners.”

CRTITICISM/DISSENTING OPINION

24
Judge Loder characterized Turkey's position as "based on the contention that underinternational
law everything which is not prohibited is permitted. In other words... every door is open unless it
is closed by treaty or by established custom.”

Judge Weiss claimed that the majority opinion meant that Turkey "can do as she thinks fit as
regards persons or things unless a specific provision in a treaty or established custom in
international relations prevents her from so doing. This power is thus in its essence unlimited ....”

CURRENT SCENARIO

Article 11 of the High Seas Convention, Geneva, 1958

1. In the event of a collision at the high seas, no penal or disciplinary proceedings may beinstituted
against the master or any service person of the ship other than the flag state of the shipor the
nationality of the person.

NOTE - The exact wording of Article 11 is also included in the convention's successor, UNCLOS
(United Nations Convention of the Law of the Sea of 1982) under Article 97.

Regional And Local Customs:

Requirement of standard proof

Asylum case

Right of Passage over territory case- the court stated that when a clear practice is established by
states which have been accepted by both parties as to govern the relation between them the court
must attribute decisive effect to that practice fie the purpose of determining their specific rights
and obligations and such practice must prevail over any general rule.

3. General Principles of Law-

- There are two major opinions-

(1) Embraces general principles in domestic jurisprudence that can be applied to
international legal questions – GPL = fair hearing

25
(2) Transformation of natural law of universal principles of law applicable to all of
mankind into specific rules of IL
CHORZOW FACTORY CASE Germany v. Poland
Facts-
After the 1st World War, bilateral agreement was entered between Poland and Germany
according to which Upper Silesia area was transferred by Germany to Poland and Poland
agreed not to confiscate any of the German properties situated in Upper Silesia. But later,
Poland confiscated two German Companies. Aggrieved by this Germany filed a case
against Poland before PCIJ.
Issues-
1. Whether Poland has violated the agreement?
2. If Poland has violated the agreement, should Poland be made to pay reparation to
Germany?
Decision-
Poland was also held to be in violation of the agreement entered with Germany and made
liable to repair any loss suffered by Germany due to the forfeiture of the two companies as
they violated the obligation that Poland had towards Germany in observance of
International law.
Principle-
It is a general conception of international law that every violation of an engagement
between two independent states ensue an obligation to make reparation, adopted from
municipal law. The core principles which are common to the legal systems are
considered as general principles of law. When there is breach of any contract, the
common principle that is followed by the nations is to claim for damages or
compensation. The ICJ accepted this principle and applied it in international law.

- THE CORFU CHANNEL CASE UK v. The Republic of Albania Facts-

On May 15th 1946 the British warships passed through the Channel without the approval
of the Albanian government and were shot at. Later, on October 22nd, 1946, a squadron of
British warships (two cruisers and two destroyers), left the port of Corfu and proceeded
northward through a channel previously swept for mines in the North Corfu Strait. Both

26
destroyers were struck by a mine and were heavily damaged. This incident resulted also in
many deaths. After the explosions of October 22nd, the United Kingdom Government sent
a note to the Albanian Government, in which it announced its intention to sweep the Corfu
Channel shortly. The Albanian reply, which was received in London on October 31st,
stated that the Albanian Government would not give its consent to this unless the operation
in question took place outside Albanian territorial waters.
Issues-
1. Whether Albania has acted in violation of international law by keeping mines in
theterritotrail waters?
2. Whether innocent passage as claimed by the British Government subjected to the prior
consent of Albania?
3. If Albania has violated the international law, can UK claim reparation?
Decision-
According to the principle of state responsibility, they should have done all necessary steps
immediately to warn ships near the danger zone, more especially those that were
approaching that zone. In fact, nothing was attempted by the Albanian authorities to
prevent the disaster. These grave omissions involve the international responsibility of
Albania. The Court also held that UK had right to innocent passage and there was no need
to seek prior permission from Albania. The Court, therefore, reached the conclusion that
Albania is responsible under international law for the explosions which occurred on
October 22nd, 1946, in Albanian waters, and for the damage and loss of human life which
resulted from them, and that there is a duty upon Albania to pay reparation to the United
Kingdom.

4. Judicial decisions-
Secondary sources
- The teachings of the most qualified publicist of various nations.
- Art 38- Subsidiary means , immense imp
- Article 59- no binding force except for between parties and in respect of that particular
case

27
Elements of customary law
i) Duration (for how long must the custom be practiced)
ii) Uniformity generality
iii) Opinio juris et neccesitatis sive
iv) Proof of custom

NORTH SEA CONTINENTAL SHELF CASE ASYLUM CASE- In the North Sea
Continental Shelf cases, the ICJ stated that there is no precise length of time during which
the practice must exist. It is simply that it must be followed long enough to show that other
requirements of a custom are satisfactory. The court stated, “ although the passage of a short
period of time is not necessarily, or of itself, a bar the formation of a new rule of customary IL
on the basis of which what was originally purely conventional rule, and indispensable
requirement will be that within the period within question short though it might be , state
practice including that of states whose interest are specially affected, should have been both
extensive and virtually uniform the sense of the position invoked- and should moreover have
occurred in such a way as to show general recognition that a rule of law or legal obligation is
invoked.”

RIGHT TO PASSAGE CASE -

The Portuguese possessions in India included the two enclaves of Dadra and Nagar-Aveli which,
in mid-1954, had passed under an autonomous local administration. Portugal claimed that it had a
right of passage to those enclaves and between one enclave and the other to the extent necessary
for the exercise of its sovereignty and subject to the regulation and control of India; it also claimed
that, in July 1954, contrary to the practice previously followed, India had prevented it from
exercising that right and that that situation should be redressed.
Does Portugal have a right to free passage over Indian territory to access its enclaves?
A right of passage for non-military civilians exists as a rule of regional customary
international law between India and Portugal. India argued before the Court that practice
between only two states was not sufficient to form a local custom. The Court rejected this
reasoning, finding no reason why a century and a quarter of practice based on mutual rights

28
and obligations was insufficient for local custom to arise. This local practice, thus, prevailed
over any general rules. Local customary law can exist as long as the elements in the North Sea
Continental Shelf case are made out

EQUITY AND INTERNATIONAL LAW- (NOT IN IMP QUESTIONS): LIBYA v. MALTA

Facts

Libya and the Republic of Malta, submitted a dispute concerning delimitation of continental shelf
to the International Court of Justice on July 26, 1982. Both States had granted petroleum
exploration concessions in their continental shelves, leading to disputes due to application of
different principles of international law in its delimitation. Essentially, while Malta strictly applied
the ‘equidistant’ principle, Libya preferred to modify the principle in light of relevant
circumstances. The two States entered into a ‘Special Agreement’, Article I of which, requests ICJ,
to determine applicable principles of international law for delimitation and practical application in
the instant case. Libya believed the Court’s duty was restricted to identification of appropriate
principles of international law for delimitation, while Malta believed that the Court’s role extended
to practical application of the identified principles, including, drawing the line, to which the Court
rightfully agreed, deriving authority from Article I of the Special Agreement. Amongst the
numerous principles in international for delimitation, Malta contended that the equidistant
principle must apply, while Libya called for sufficient modifications based on relevant
circumstances.

Issues

1. Whether the countries are bound by Equidistance Principle?

2. Whether customary law is to be considered in delimiting continental shelf? Judgment

The Court determined the applicable law as customary international law for twofold reason; firstly,
while Malta is a party to Geneva Convention on Continental Shelf 1958, Libya is not and secondly,
while both are parties to United Nations Convention on the Law of the Sea (UNCLOS) 1982, it
had not entered into force. Court allowed Libya’s contention and held that equidistance principle
needed not be followed.

29
Findings

Parties agreed that the law applicable for delimitation of continental shelf must be customary
international law, requiring it to be affected by application of equitable principles, giving
due consideration relevant circumstances, therefore rejecting Malta’s contention of strict
application of the equidistant principle, but conceding that distance remains the primary
criterion. The Court applied principles of customary international law such as; non-
refashioning of geography; non- encroachment by one party on appertaining areas of the
other; consideration of all relevant circumstances; noting “equity does not necessarily imply
equality.

RIVER MEUSE CASE

Facts

Belgium and Netherlands entered into a treaty to settle water dispute once for all permanently.
They entered into a treaty to govern water diversions of river Meuse and feeding that water to the
irrigation canals. Netherlands proceeded to construct and complete the Juliana Canal, the
Boschveld Lock and the Borgharen barrage. On its part, Belgium began the construction of the
Albert Canal, unfinished at the time of the judgment, a barrage at Monsin and a lock at Neerharen.
Netherlands filed a case against Belgium to stop the canal construction.

Analysis

The principles of equity form a part of international law. Under Article 38 and independently of
that statute, this Court has some freedom to consider principles of equity. The maxim “He who
seeks equity must do equity” is derived from Anglo-American The Court also referred to Roman
law. In Roman law, a similar principle made the obligations of a vendor and a vendee concurrent.
Neither could compel the other to perform unless he had done, or tendered his own

Writers

Emergence of comprise system of IL

Absence of any leg body

30
To dev the scope and content

Substantive law increased, influence of writers decreased Imp role in developing new areas

ERGA OMNES

- In international law, the concept of erga omnes obligations refers to specifically determined
obligations that states have towards the international community as a whole.
- In general legal theory the concept “erga omnes” (Latin: ‘in relation to everyone’) has
origins dating as far back as Roman law and is used to describe obligations or rights
towards all.
- In its Obiter dictum on the Barcelona Traction case, the International Court of Justice, as
the primary judicial organ of the United Nations, gave rise to the concept of erga omnes
obligations in international law.
- The World Court specifically enumerated four erga omnes obligations:
1. the outlawing of acts of aggression;
2. the outlawing of genocide;
3. protection from slavery; and
4. protection from racial discrimination.
- In this judgment the Court drew a distinction between the erga omnes obligations that a
state has towards the international community as a whole and in whose protection all
states have a legal interest, and the obligations of a state vis-à-vis another state. Such
obligations, as enumerated above, have been determined by the Barcelona Traction case.

JUS COGENS

- Article 53 of the Vienna Convention on the Law of Treaties of 1969 (VCLT). As is

well known, this article determines that “a treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general international law. For the purposes of the
present Convention, a peremptory norm of general international law is a norm
accepted and recognized by the international community of States as a whole as a

31
 norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character.”
- In accordance with Article 53 VCLT, a treaty is null and void if it is concluded in conflict
with a peremptory norm of general international law (i.e. jus cogens).
- To give a concrete example, a treaty between two countries aimed at committing genocide
against a particular ethnic group on one or both of their territories would be null and void.
- The definition in Article 53 VCLT does not identify any norms having peremptory
status. The threshold for gaining peremptory status is high, for although it does not
require a consensus amongst all states (and one single state would not be able to block the
recognition of a peremptory norm), it does require the acceptance of a large majority of
states.

RELATIONSHIP BETWEEN JUS COGENS AND ERGA OMNES

- Jus Cogens are the pre-emptive norms which cannot be derogated either by a treaty or by
a customary law. Erga Omnes are basically the obligation or the duty which a state has
against the rest of all the nations. So, there exist a close relationship between jus cogens
and erga omnes.
- Jus cogens creates norms and erga omnes deals with the obligation. The Barcelona
Traction decision of the ICJ provides authority for the conclusion that jus cogens
obligations would have erga omnes effect.
- Without expressly referring to jus cogens the ICJ implied as much by the types of
obligations it mentioned as examples of erga omnes norms.
- Given the fact that these same prohibitions come widely regarded as being of a peremptory
nature, it follows that when an obligation is recognized as one from which no
derogation is permitted due to its fundamental nature, all states (and other subjects
of international law) have a legal interest in its protection.
- A jus cogens rule creates an erga omnes obligation for states to comply with a rule.
An erga omnes obligation is therefore the consequence of a rule being characterized as jus
cogens.
- Breach of an erga onnes norm in theory makes the party which has breached obliged to
all. Jus cogens are a set of legal norms that cannot be contracted out by any agreement.

32
 The breach of such norms does not always make the party breached obliged to all but
it is the case when an erga omnes norm is breached; the state which breaches erga
omnes is obliged to all.

LEX SPECIALIS DEROGATE LEX GENERALI

- The maxim lex specialis derogat legi generali is widely accepted as constituting a general
principle of law. It entails that, when two norms apply to the same subject matter, the
rule which is more specific should prevail and be given priority over that which is
more general.
- In the international legal system, the concept is frequently resorted to by courts and
tribunals as a tool of legal reasoning in order to resolve real or perceived antinomies
between norms.
- A first manner in which the lex specialis principle has been used is in order to explain the
point that, in general—and to the extent that the relevant customary rule does not constitute
jus cogens—States are free by entering into a treaty to modify the obligations which would
otherwise be applicable between them under customary international law. In other words,
as a general matter, a treaty obligation, being more specific, will prevail over
customary international law, as it is more general.
- The application of the principle in this manner is qualified, in the sense that a treaty will
only apply as lex specialis if and to the extent that the relevant treaty obligations
between the parties.
- The second manner in which the lex specialis principle may be used is as a means for
articulating the relationship between norms contained in the same treaty, or in
connected instruments, which are potentially applicable to the same subject-matter.

LEX POSTERIOR DEROGAT PRIORI

- Under the rule of lex posterior derogat lege anterior, a later rule is presumed to trump
an earlier rule. A later rule abrogates an earlier rule of similar status, unless otherwise
stated in the provisions implementing the later rule.
- If customary and treaty law are equivalent sources over a subject-matter, what should
prevail over what becomes the question of interpretation. What happens when treaty law

33
 and customary law comes into conflict regarding a particular issue wherein applying each
of these leads to contradictory result? One probable solution is applying this maxim and
accordingly the law which has later formed will overrule the former one.
- Again, there would be difficulty in ascertaining whether customary law prevailed initially
or the treaty law. To determine such issues, the Court should look into facts and
circumstances of each and every case.

PERSISTENT OBJECTOR AND SUBSEQUENT OBJECTOR

The basic rule of general customary international law (as opposed to a local custom) is that it
binds all States. New states are bound by old customary law, in spite of the fact that they did not
consent to the custom at the time of its formation or thereafter. States that are silent during the
formation of customary law are bound by their silence – we call this tacit acceptance or
acquiescence. States can express its intention to be bound by customary law through public
declarations, much like the signature appended to treaties.
In customary international law,
(1) a state may refuse to be bound by the customary international law at its inception – a persistent
objector or
(2) a state may refuse to be bound by customary international law after it comes into force – a
subsequent objector.

ANGLO-NORWEGIAN FISHERIES CASE – PERSISTENT OBJECTOR

Facts

Due to the dented coast of Norway, they followed baseline method. (Baseline method is where all
the coastal ends are joined, and then territorial waters are determined) Norway did not follow the
10 miles principle from the low tide; rather it followed 4 miles principle from the baseline. England
questioned this before ICJ.
In Anglo-Norwegian Fisheries case, held that even if a customary law rule existed (on a ten-mile
rule relating to straight base-lines), “...the ten-mile rule would appear to be inapplicable as
against Norway inasmuch as she has always opposed any attempt to apply it to the
Norwegian coast.”

34
Issues

1. Whether the baseline that is drawn by the Norway is in consistent with International Law?

Decision

Generally, ICJ do not follow doctrine of precedent, in this case the Court deviated from previous
judgments and upheld the legitimacy of the baseline principle of Norway owing to its geographic
indentation, islands and islets. The international customary law has been a law of reference in the
court arguments. Customary international law does not recognize the rule according to which belts
of territorial waters of coastal states is to be measured. The court dismissed UK’s petition stating
that Actual practice of states did not justify the creation of any such custom(insufficient uniformity
of behavior).

When it is considered as Persistent Objector?

(1) A state objects to the practice at the initial stages of the formation of customary law and
continue to object in a sustained manner; or
(2) A state adopts a contrary practice at the initial stages of the formation of customary law and
continue to do so a sustained manner.

Subsequent Objector
The consequence of a subsequent objector – one who objects after the formation of the
customary law rule – is clear. The state that objects continue to be bound by the customary law.
If it acts in contrary to the law, it violates the law. The state can be held responsible for the
violation under international law.
If a number of states agree to the deviation then these states could create another customary
law rule, either as a local custom or, if a sufficient number of affected states participate, a
general custom.
For a subsequent objector to develop a new customary law rule an existing norm must be broken.
A state wishing to change customary law must either
(1) violate the law and hope other states would acquiesce to it (and if, and until such time the state
would be in breach of a customary international law); or

35
(2) without violating the existing law the state must get a sufficient number of states to accept a
new customary law.

REPARATION CASE - Advisory opinion case – advice was by General Assembly

Facts

The newly formed United Nations had appointed Bernadotte as the mediator in the first Israeli-
Arab conflict, with Israel fighting for independence. With his first partition plan, Bernadotte
angered many extremist forces within Israel. He came to be seen as an enemy of Israel, and was
assassinated in Jeruzalem at point blank range by the Jewish group LEHI. Because Bernadotte was
in the service of the United Nations, the new organization sought to improve security for its agents
like Bernadotte. The ICJ was for the first time called upon to decide whether UNO is a legal person.

Issue

1. Whether UNO a legal person?

Decision

In the opinion of the Court, the Organization was intended to exercise and enjoy, and is in fact
exercising and enjoying, functions and rights which can only be explained on the basis of the
possession of a large measure of international personality and the capacity to operate upon an
international plane. It must be acknowledged that its Members, by entrusting certain functions to
it, with the attendant duties and responsibilities, have clothed it with the competence required to
enable those functions to be effectively discharged.” So, in order for the UN to be effective, the
UN’s founders must have ’clothed it’ with legal personality, and so it such legal personality. You
can question whether the Court means to say that legal personality must be assumed in order to be
effective, or that it must be assumed because the founder’s must have found it necessary to be
effective. There were neither customs nor treaties to attribute legal personality to the
international organizations. But in this case the Court held that UNO is a legal person.

36
UNIT - 3

MONISM/INCORPORATION

In States with a monist system international law does not need to be translated intonational law.
The act of ratifying an international treaty immediately incorporates that international lawinto
national law. The monist theory supposes that international law and national law are simply two
components of single body of knowledge called ‘law’. ‘Law’ is seen as a single unit of which
‘national’ and ‘international’ versions are simply particular expression.5 In the case of conflicts
between the two systems, international law is said to prevail. In this view, the international law is
supposed to be supreme, but in cases of conflicts there are several different explanations to prove
this statement.

“Monist systems” do differ in their approach.

● Under some Constitutions direct incorporation of international obligations into the

domestic law occur on ratification.
● In other States direct incorporation occurs only for self-executing treaties.

Monists consider municipal law and international law as the same branches of legal systemwhich
serves the needs of human society. International Law and Municipal Law are the twofacets of law.
According to them International laws are directly applicable into National Legal order. There is
no need to give effect or to implement international law.

KELSON’s PERSPECTIVE OF MONISM

● Municipal Law and International law are not separate but are branches of law. ● Municipal Law
derives its legal system from international law.

● International Law delegates its functions to Municipal Law.

● International Law is supreme.

COUNTRIES THAT FOLLOW MONISM

37
USA – Article VI - This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under theAuthority of the United
States, shall be the supreme Law of the Land; and the Judges inevery State shall be bound thereby,
anything in the Constitution or Laws of any State to the Contrary notwithstanding.

Germany – Article 25 - General rules of International law shall be an integral part of federal land.
They shall take precedence over the laws and directly create rights and duties to the inhabitants.

France – Article 55 - Treaties or agreements duly ratified or approved, upon their publication
have an authority superior to that of laws.

MONISM/INCORPORATION IN USA – CASES

LA GRAND CASE

Facts-

German nationals Walter and Karl LaGrand, who were arrested for committing murder and
other crimes in connection with an attempted bank robbery in 1982 in the US state Arizona.
In the following years, the LaGrand brothers were tried, convicted and sentenced to death.
Undoubtedly, the US authorities had failed to notify the LaGrand brothers of their right,
protected by article 36 (1) of the Vienna Convention on Consular Relations, to receive
consular assistance during the ensuing

38
 criminal trial.

Issue-

1. Whether USA had violated 36(1) of Vienna Convention of Consular Relations?

Judgment-

The Court rejected USA’s Contention that there was no domestic law in their country which
provides for consular relations and held that USA had violated Article 36(1) of Vienna
Convention on Consular relations by not informing the accused of their consular help. The
Court also held that USA cannot argue that lack domestic law as a reason to violate
International Law. USA being a monist country, a treaty that is duly ratified will become there
law of the land as they follow the doctrine of monism/incorporation.

DUALISM/TRANSFORMATION

Contrary of monism theory, dualism denies that international law and national law operate in the
same sphere, although it does accept that they deal with the same subject matter, but the
international and national laws are two different and separate systems, which are based not only
upon different jurisdictions and sanction bodies, but also upon the different sources and different
subjects of the matter. Proponents of dualism considered that between internal and international
provisions there cannot be any kind of conflicts since these provisions doesn’t have the same object
– internal provisions are applied exclusively between the state’s borders, and cannot intervene in
the international legal system.

1. The subjects of the state law are individuals, while the subjects of the international law are States
solely and exclusively

39
2. Their juridical origins are different the source of State law is the will of the State itself while the
source of the international law is the common will (Gemeinwille) of States.

The theory of dualism rests upon the principles of sovereignty of State and its powers to make law
pertaining to the domestic matters as well as international. The consent of the State plays a vital
role in implementation of international law. The States with their power of supremacy and
sovereignty create a wall and fix the limit for international law to peep inside only to the extent
allowed by the States

The theory of dualism is also known by the name of "pluralistic theory and further paves the way
for other theories which are considered to be part of dualism such as specific adoption theory,
transformation theory and delegation theory.

If a state accepts a treaty but does not adapt its national law in order to be similar to the treaty or
does not create a national law explicitly incorporating the treaty, then it violates the international
law. Dualism considers international law and national as independent from each other, and both
systems are regarded as mutually exclusive and are therefore generally not able to get into conflict
with each other. Similarly, “The systems are so different, that no conflict between them is possible,
however, most of the dualists would assume that domestic law would be applied”

ANZILOTTI AND DUALISM:

For him international law and state law equally constitute two distinct normative orders.

"The former are binding by reason of the principle 'pacta sunt servanda', and cannot be repealed
except as laid down by international law. The latter are binding by reason of the rule which enjoins
obedience to the legislature's prescriptions, and can only be repealed in the manner provided by
the public law of the particular community concerned."

TRIEPEL AND DUALISM:

Triepel' treats the two systems of state law and international law as entirely distinct in nature. He
contends first that they differ in the particular social relations they govern; state law deals with

40
individuals, international law regulates the relations between states, who alone are subject to it.
Secondly, he argues, their juridical origins are different; the source of municipal law is the will of
the state (Common will of People) itself, the source of international law is the common will of
states.

Indian practice

After an unprecedented revolution and a never before struggle India got independence in 1947
Previously it was just a colony which was subject to the brutal rule of the British Thus it was
quite

obvious for the Indians to walk upon the shadow of the British at least for some period of
time. This dependence gave birth to Article 372 of the Indian Constitution which validated
some laws to remain in force unless repealed by the Indian Parliament.

Article 51(c) directly and specifically mandates the State to foster respect towards
international law

and treaty obligations in the dealings of organised people with one another.

Similarly, Article 253 of the Indian Constitution empowers Parliament to make laws for
implementing any treaty, agreement or convention with any other country or any other body.

By virtue of the powers instilled in Parliament courtesy Art 253 the Indian Parliament has
legislated on thousands of international provisions and laws for the betterment of society.

Art 51, 372 and 253 of the Indian Constitution finds its application and enforcement in India.
However, one should also take note of the fact that Art 51 falls within Part 4 i.e. DPSP. DPSP

41
contains a deadly virus in the form of Art 37 which paralyses everything which is mentioned in
Part 4 by making its provision unenforceable in the court of law.

Jolly George Varghese v Bank of Cochin

Facts

The judgement-debtor (appellants) suffered a decree against them in a sum of Rs. 2.5 lakhs,
wherein the respondent-bank was the decree-holder. There were two other money decrees against
the appellants, the total sum payable by them amounting to over Rs. 7 lakhs. In execution of the
decree in question (arrears of Rs. 2.5 lakhs), a warrant was issued to the appellants on 22-6-1972
for arrest and detention in civil prison under Section 51 and Order 21 Rule 37 of the Civil
Procedure Code.

There had earlier been a similar arrest warrant for execution of the same decree. Besides this
process, the decree holders had also proceeded against the properties of the judgment-debtors and
in consequence, all these immovable properties had been attached for the purpose of sale in
discharge of the decree debts. It is stated that the execution court has also appointed a Receiver for
the management of the properties under attachment. The enjoyment or even the power to alienate
the properties by the judgment-debtors has been forbidden by the court direction keeping them
under attachment and appointing a Receiver to manage them. Nevertheless, the court has issued a
warrant for arrest because, on an earlier occasion, a similar warrant had been already issued.

Related Issue-

Whether it is justified to imprison a person merely for failure to perform a contractual obligation
(Article 11 of International Covenant on Civil and Political Rights)?

Judgment-

Article 11 of the Covenant on Civil and Political Rights - “No one shall be imprisoned merely on
the ground of inability to fulfil a contractual obligation.” On the issue of International Law, it was
held through various examples that the remedy for the breach of an International Law cannot be
found in Municipal courts. This is because, for an International law to become enforceable it must
take up the form of a Municipal law. The process involves the legislation on a law, drawing

42
inspiration from the International law and its objective so as to retain the intended essence. Unless
the International law takes a Municipal form, it does not constitute a part of the ‘corpus juris’ of
the State (India).

West Bengal v. Kesoram Industries Ltd. And Ors , Appeal (civil) 1532 of 1993

• It is true that the doctrine of 'Monism' as prevailing in the European countries does not prevail in
India. The doctrine of 'Dualism' is applicable. But, where the municipal law does not limit the
extent of the statute, even if India is not a signatory to the relevant International Treaty or
Covenant, the Supreme Court in a large number of cases interpreted the statutes keeping in view
the same.

UNIT 4 - TREATY LAW

Definition of a treaty

● Treaties today are the most common source of international law norms
● Certain areas of international law, such as international environmental law, are almost
exclusively regulated by treaties.
● A brief definition of a treaty is contained in Art. 2(1)a VCLT 1969. However, this definition
is only for the purpose of the Convention, although it is assumed to reflect a general
definition
● - ‘“Treaty” means an international agreement concluded between States in written form
and governed by international law, whether embodied in a single instrument or two or more
related instruments and whatever its particular designation.
● Between States: VCLT, 1969 is limited to treaties where the States are parties
● It does not cover treaties to which International Organizations are parties

43
● Individuals and Transnational Corporations: Both these parties do not have the capacity to
enter into a treaty as per VCLT, 1969
● Written form: According to VCLT, writing is an essential element to be considered as a
treaty, VCLT does not apply to oral agreements
● Governed by International Law: Agreements between States regulated by the municipal
law of one of the parties or by conflict of laws principles do not fall under VCLT VCLT is
confined to the formation and execution of the treaty which is governed by International
Law
● Instrument – Single or two or more related instruments: Classic form for a treaty is a single
instrument
● Modern practice treaties are made in less formal ways, such as ‘exchanges of notes’ or
‘exchange of letters’
- An exchange of notes usually consists of an initial note (by one State) and a reply note
(by the other State) - consists of two related instruments.
- Designation:
- Convention is the term used for a formal instrument of a multilateral character
- Protocol is an instrument which is subsidiary or ancillary to a convention or is
a supplementary treaty
- ‘Exchange of Notes (or of letters)’ is an informal method, whereby States
recognize certain obligations as binding upon them. Pacta Sunt Servanda (Basis of
the binding force of Treaties)
- Starke, “In nearly all the cases the object of the treaty is to impose binding obligations
on the States who are parties to it”
- The binding effect of that rule rests in the last resort on the fundamental assumption
which is neither consensual nor necessarily legal, of the objective binding force of
international law.
- This assumption is frequently expressed by the form of principle - pacta sunt servanda,
which means ‘ States are bound to fulfil in good faith the obligations assumed by them
under treaties’.
- The principle of sanctity of contracts is an essential condition of life of any social
community.

44
 - No economic relations between States and foreign corporations can exist without this
principle. It is a positive norm of international law.
- ICJ in its advisory opinion of 1951 on the Reservation to the Genocide Convention
stated that, “None of the contracting parties is entitled to frustrate or impair by- means of
unilateral decisions or particular agreements, the object and raison de etre of the
Convention.
- In North Atlantic Fisheries case (1910) the PCIJ pointed out the central position of the
good faith principle in the concept of pacta sunt servanda.
- The binding force of treaties is evident from the fact that treaties are pieces of
international legislation and. therefore, possess legislative authority Accordingly.
- The preamble to the Convention notes that the principle of pacta sunt servanda is
universally recognized Art.27 of the Convention strengthens pacta sunt servanda rule by
providing that no party to a treaty might attempt to justify its failure to perform any of its
international treaty obligations by invocation of its internal law.
- Exceptions to the principle - Although the principle is observed by the “States in
respect of all the treaties, there are exceptions to this rule. When a new State comes into
existence as a result of revolt, it does not consider itself to remain bound by the treaties
concluded by the predecessor State. The principle is also not applied when the obligations
arising from the treaty is related to that part of the territory which has been
ceded/merged with other States.
- Rebus sic stantibus is an important exception to the principle of pacta sunt servanda.
According to it, there is an implied clause in every treaty that provides that the agreement
is tending only so long as the material circumstances on which it rests remain unchanged.
Finally, pacta sunt servanda is not an absolute principle for it fails to explain the binding
force of customary rules of international law.
● VCLT is confined to the formation and execution of the treaty - Exceptions to the principle
- Although the principle is observed by the “States in respect of all the treaties, there are
exceptions to this rule. When a new State comes into existence as a result of revolt, it does
not consider itself to remain bound by the treaties concluded by the predecessor State. The
principle is also not applied when the obligations arising from the treaty is related to that

45
 part of the territory which has been
ceded/merged with other States.

Basics of Treaties

● Written form

● Between states

● No prescribed format

● Non- retroactivity.

● VCLT- not applicable:-

● Treaties between states and international organisation

● Questions of state succession

● Effect of war on treaties

Treaties between states and international orgs
● Vienna Convention on the Law of Treaties between States and International Organizations or
Between International Organizations (VCLTIO), 1986
● Article 85 of the Convention provides that it enters into force after the ratification by 35 states
(international organizations may ratify, but their ratification does not count towards the number
required for entry into force). As of February 2019, the treaty has been ratified by 32 states and
12 international organizations. As a result, the Convention is not yet in force.
Terminologies

● Signature

● Ratification

● Full power

● Pleni-potentiary

46
● Formalities

● No prescribed form or formalities. It is left to the discretion of the parties.

● U.S- President with the aid and consent of the Senate and the concurrence of 2/3rd of the Senate.

● U.K- Crown

● But there can be treaties related to trade which may be signed by government heads or heads of
State. Full Power CHRIST Deemed to be University
● Full Power - Meaning ● Article 2 (1) (c) - "Full powers" means a document emanating from the
competent authority of a State designating a person or persons to represent the State for
negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State
to be bound by a treaty, or for accomplishing any other act with respect to a treaty.
Full Powers –A.17
CHRIST Deemed to be University

● A person is considered as representing a State for the purpose of adopting or authenticating

the text of a treaty or for the purpose of expressing the consent of the State to be bound by
a treaty if:
● ● (a) He produces appropriate full powers; or (b) It appears from the practice of the States
concerned or from other circumstances that their intention was to consider that person as
representing the State for such purposes and to dispense with full powers..
● 17 (2)- In virtue of their functions and without having to produce full powers, the following
are considered as representing their State:
1. (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose
of performing all acts relating to the conclusion of a treaty;
2. (b) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between
the accrediting State and the State to which they are accredited;
3. (c) Representatives accredited by States to an international conference or to an
international organization or one of its organs, for the purpose of adopting the text of a
treaty in that conference, organization or organ.

47
● Article 9. ADOPTION OF THE TEXT
(1) The adoption of the text of a treaty takes place by the consent of all the States participating in
its drawing up except as provided in paragraph 2.
(2). The adoption of the text of a treaty at an international conference takes place by the vote of
two thirds of the States present and voting, unless by the same majority they shall decide to apply
a different rule.

Consent

● Consent by signature – not significant these days

● To lessen the burden on governments

● Applicable only to less politicised treaties.

● But if there is a condition in the treaty or convention itself as to how a treaty or a convention
can be accepted, then such procedure will apply.

Consent

1. Consent by exchange of instruments

● Article 13

● The consent of States to be bound by a treaty constituted by instruments ex changed between

them is expressed by that exchange when:

● (a) The instruments provide that their exchange shall have that effect; or

● (b) It is otherwise established that those States were agreed that the
exchange of instruments shall have that effect.

2. Consent by ratification

● Delay between signature and ratification is helpful to consider the treaty.

48
● Monism and dualism - RATIFICATION

● Ratification
● Article 14
1. The consent of a State to be bound by a treaty is expressed by ratification when:
(a) The treaty provides for such consent to be expressed by means of ratification;
(b) It is otherwise established that the negotiating States were agreed that ratification should be
required;
RATIFICATION
14(c) The representative of the State has signed the treaty subject to ratification; or
(d) The intention of the State to sign the treaty subject to ratification appears from the full powers
of its representative or was expressed during the negotiation.

Ratification of Treaty

- When a treaty signed by the representative of the State is confirmed or approved

by the State, the act of confirmation or approval is called ‘ratification’.
- ‘ratification’ is an international act whereby a State establishes on the
international plane its consent Jo be bound by a treaty.
- It is generally agreed that ratification becomes effective from the day when it is
made. It has no retroactive effect The rights and obligations of the treaty become
applicable to the ratifying State only as from the date of ratification and not from
the date of signature.
- Ratification of a treaty by the States is done only in those cases where it is so
required by the provisions of a treaty.
- According to Art. 14 of the Vienna Convention, ratification of a treaty is
necessary when (a) the treaty provides such consent to be expressed by means of
ratification, (b) it is otherwise established that the negotiating States agreed that
ratification should be required, (c) the State representative has signed the treaty
subject to ratification, or (d) when the intention of ratification is evident from the
circumstances and talks during negotiations.

- It may be noted that the process of ratification is confined only to the signatory States, thus,
when a State becomes a party through accession no ratification is required.

Purpose or significance of ratification

49
 - Generally all the treaties are required to be ratified. Purpose of ratification of a treaty
may be many.
- A State ratifies a treaty on the basis of sovereignty.
- A State may require to amend its own laws in order to give an effect to the provisions
of a treaty.
- it is one of the principles of the democratic set up that the Government should consult
public opinion either in Parliament or elsewhere as to whether a particular treaty should
be confirmed
Mode of ratification
Ratification of a treaty is an internal procedure, determined by the internal laws and
usage of each State. In USA, a treaty must be ratified by President with the advice and
consent of Senate. In U.K., ratification is done by the Crown on the advice of the minister
concerned. In India, President ratifies the treaty on the advice of the Central Cabinet.
Refusal of ratification
- States are not bound to ratify a treaty.
- International law does not impose any duty upon the States to ratify those treaties
which
have been signed by their representatives.
- Nor it is necessary for the States to explain the reason for not ratifying the treaty.
- The above rights flow from the concept of State sovereignty.
- Arts. 39 and 41 of the U.N. Charter, the Security Council is empowered to exert
pressure against a State for the ratification of a treaty which is related to the
maintenance of international peace and security.
- International law does not prescribe any time within which ratification must be given.
In the case of certain German Interests in Polish Upper Silesia [PCIJ (1928) Ser. A. No.
7], it was pointed out that a signatory States’ misuse of its rights in the interval before
ratification may amount to a breach of treaty (It implies that with the signature of a treaty,
a certain limited status is conferred upon the signatory State with respect to treaty).

Consequences of non-ratification

- State parties are not bound by treaties until they ratify them.
- it is not necessary in all cases for a treaty to be binding with ratification only.
- Much depends upon the intention of the State parties. If a State party has intended that
ratification was essential then the treaty becomes enforceable in law only after
ratification.

● Article 15. CONSENT TO BE BOUND BY A TREATY EXPRESSED BY ACCESSION

WHEN
(a) The treaty provides that such consent may be expressed by that State by means of accession;
(b) It is otherwise established that the negotiating States were agreed that such consent may be
expressed by that State by means of accession; or

50
(c) All the parties have subsequently agreed that such consent may be expressed by that State by
means of accession.

RESERVATION ● 2(1) (d)

● "Reservation" means a unilateral statement, however phrased or named, made by a State,

when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports
to exclude or to modify the legal effect of certain provisions of the treaty in their application
to that State.
● ● Reservation – refusal to accept certain provisions
● ● Accepts the rest of the treaty
Why Reservations ?

● ● To encourage states to become parties to the Convention

● ● To increase the number of ratifications
● If states are allowed to reserve articles, there can be maximum participation.
● ● Reservations are provided basically because of the various differences that exist between
states.
● ● As a principle to uphold of Sovereignty.
● ● To avoid conflict with domestic laws.
When reservation is problematic?

● ● Reservation in bilateral treaty is not possible.

● ● Reservation is possible only in Multi-lateral treaties.
● ● Reservations might dilute the treaty.
● Procedure under VCLT for Reservation

● Article 19 - FORMULATION OF RESERVATIONS

A State may, when signing, ratifying, accepting, approving or acceding to a
treaty, formulate a reservation unless:
(a) The reservation is prohibited by the treaty;

51
(b) The treaty provides that only specified reservations, which do not include the reservation in
question, may be made; or
(c) In cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the
object and purpose of the treaty.
Article 20 - ACCEPTANCE OF AND OBJECTION TO RESERVATIONS
20(1) A reservation expressly authorized by a treaty does not require any subsequent acceptance
by the other contracting States unless the treaty so provides.
2. When it appears from the limited number of the negotiating States and the object and purpose
of a treaty that the application of the treaty in its entirety between all the parties is an essential
condition of the consent of each one to be bound by the treaty, a reservation requires acceptance
by all the parties.
● 20 (3) - When a treaty is a constituent instrument of an international organization and unless it
otherwise provides, a reservation requires the acceptance of the competent organ of that
organization.

Article 21. LEGAL EFFECTS OF RESERVATIONS AND OF OBJECTIONS TO

RESERVATIONS
● 1. A reservation established with regard to another party in accordance with articles 19, 20 and
23 (Procedure):
(a) Modifies for the reserving State in its relations with that other party the provisions of the treaty
to which the reservation relates to the extent of the reservation; and
(b) Modifies those provisions to the same extent for that other party in its relations with the
reserving State.
2. The reservation does not modify the provisions of the treaty for the other parties to the treaty
inter se.
21(4) - When a State objecting to a reservation has not opposed the entry into force of the treaty
between itself and the reserving State, the provisions to which the reservation relates do not apply
as between the two States to the extent of the reservation.
example
● Vienna Convention on Diplomatic Relations, 1961

● ● Libyan Reservation to check the bags of diplomats with the consent of the other state.

52
 ● ● England did not oppose to this reservation.
● ● So, it is implied that England also could do the same with Libyan diplomat bags.
● INDIA and RESERVATION ● Genocide Convention 1948
● Article 9 of the convention states that the disputes shall be heard by ICJ. But India made a
reservation so as to restrict its implication.
● ● With reference to Article IX of the Convention, the Government of India declares that,
for the submission of any dispute in terms of this article to the jurisdiction of the
International Court of justice, the consent of all the parties to the dispute is required in each
case.

Doctrines governing Reservation

● ● Compatible Doctrine
● ● Unanimous Consent doctrine
● ● Back to Compatible doctrine

Withdrawal of Reservation
● Article 22
C1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the
consent of a State which has accepted the reservation is not required for its withdrawal.
2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any
time
● 22 (3) - Unless the treaty otherwise provides, or it is otherwise agreed:
(a) The withdrawal of a reservation becomes operative in relation to another contracting State only
when notice of it has been received by that State;
(b) The withdrawal of an objection to a reservation becomes operative only when notice of it has
been received by the State which formulated the reservation.
Article 23 – Procedure to make Reservation ● Reservation and objection to reservation to be in
writing.
● Reservation made during signing a treaty but is subjected to ratification, then reservation must
formally be consented before ratification.
When treaty comes into force????

53
C●Article - 24 Treaty will come into force on the date that is fixed by the negotiating states.

● If no such date is fixed by the states in the treaty, it comes into force after the consent of
all the negotiating parties.
● When a state accedes to a treaty, the treaty will be enforced on that state on the date the
state has acceded to it.
● Interpretation of Treaties ●

A.26 – Pacta Sunt Servanda

“Every treaty in force is binding upon the parties to it and must be performed by them in good
faith.”
According to Anzilloti, the binding force of International Law is based on the Fundamental
principles known as Pacta Sunt Servanda which means that the agreement entered into by the
States must be followed by them in good faith. According to this doctrine, the parties to a treaty
are bound to observe its terms in good faith.
Jus Cogens as a limitation to Pacta Sunt Servanda
Interpretation of Treaties

GENERAL RULE OF INTERPRETATION Article 31

CHRIST Deemed to be University
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the
text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all the parties in connection with
the conclusion of the treaty;
(b) Any instrument which was made by one or more parties in connection with the conclusion of
the treaty and accepted by the other parties as an instrument related to the treaty.
31 (3) There shall be taken into account, together with the context: (a) Any subsequent agreement
between the parties regarding the interpretation of the treaty or the application of its provisions;

54
(b) Any subsequent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32 - SUPPLEMENTARY MEANS OF INTERPRETATION

CHRIST Deemed to be University
● Recourse may be had to supplementary means of interpretation, including the preparatory work
of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting
from the application of article 31, or to determine the meaning when the interpretation according
to article 31 :
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or unreasonable.

Article33 - INTERPRETATION OF TREATIES AUTHENTICATED IN TWO OR MORE

LANGUAGES
33 (1) - When a treaty has been authenticated in two or more languages, the text is equally
authoritative in each language, unless the treaty provides or the parties agree that, in case of
divergence, a particular text shall prevail.
The treaty shall have equal value in all languages.

Amendment and Modification

● When few parties try to change the terms of the treaties and such changes is effecting only
those parties, then it is termed as modification.
● When all the parties to a treaty or convention agree to change the terms of the treaty, it is
considered as amendment. Amendment is applicable to all the states.
Amendment – Article 40
40 (1) If the treaty does not provide for the amendment procedure, this provision is applicable.
(2) Proposal to amend a treaty should be made known to all the contracting parties and they have
right to express their opinion;
(a) The decision as to the action to be taken in regard to such proposal;

55
(b) The negotiation and conclusion of any agreement for the amendment of the treaty.
40 (3) All states are entitled to be parties to the amended treaty.
40 (4) But there is no rule that all the parties of the unamended treaty shall become parties to the
amended treaty.
40(5) Any state which becomes party to the treaty after the treaty is amended, such a state is bound
by the amended treaty unless otherwise provided.
(a) – If expressly not provided, a newly contracting party will be considered as a party to the
amended treaty.
(b) – be considered as a party to the unamended treaty for those states who have not consented for
the amended treaty.
Modification – Article 41
Article 41 (1) - Two or more parties may modify the treaty terms between them if;
(a) – if such modification is allowed in the treaty.
(b) – the modification is not prohibited by the treaty and;
(i) – such modification does not affect the rest of the
(ii) – such modification is not against the object and of the treaty.
parties. intention

Invalidity/ Suspension/ Withdrawal/Termination

● (1) Differences between Suspension and Termination Article – 42
The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only
through the application of the present Convention.
(2) The termination of a treaty, its denunciation or the withdrawal of a party, may take place only
as a result of the application of the provisions of the treaty or of the present Convention. The same
rule applies to suspension of the operation of a treaty.

Article 43 - OBLIGATIONS IMPOSED BY INTERNATIONAL LAW INDEPENDENTLY

OF A TREATY
● The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the
suspension of its operation, as a result of the application of the present Convention or of the

56
provisions of the treaty, shall not in any way impair the duty of any State to fulfill any obligation
embodied in the treaty to which it would be subject under international law independently of the
treaty.

INVALIDITY OF TREATIES

● ● Article 46 – Consent was given in violation of internal law. A treaty cannot be

invalidated for the same unless the violation is concerned with the fundamental internal
law of the country.
● ● Article 47- Consent was subjected to restrictions and such restrictions was not expressed
by the representative. A treaty cannot be invalidated on this ground unless such restriction
was made known to the negotiating parties before giving consent.
● ● Article 48 – Error in the treaty can be invoked as a reason to invalidate a treaty provided
that such an error relates to fact or a situation that existed at the time of the formation of
treaty.
● ● Article 49 – Fraud
● ● Article 50 – Corruption
● ● Article 51 – Coercion of a representative of a State
● ● Article 51 – Coercion of a State by threat or by use of force
● Article 52 – If treaty is against pre-emptory norm. Pre-emptory norms can be replaced only by
new pre-emptory norms.

Termination and Suspension

Article – 54
The termination of a treaty or the withdrawal of a party may take place: (a) In conformity with the
provisions of the treaty; or
(b) At any time by consent of all the parties after consultation with the other contracting States.
● Article 55. REDUCTION OF THE PARTIES TO A MULTILATERAL TREATY
BELOW THE, NUMBER NECESSARY FOR ITS ENTRY INTO FORCE
Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of the
fact that the number of the parties falls below the number necessary for its entry into force.
WHEN TREATY IS SILENT ON TERMINATION /WITHDRAWAL

57
● Article 56 - A treaty which contains no provision regarding its termination and which does not
provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:
(a) It is established that the parties intended to admit the possibility of denunciation or withdrawal;
or
(b) A right of denunciation or withdrawal may be implied by the nature of the treaty.
2. A party shall give not less than twelve months' notice of its intention to denounce or withdraw
from a treaty under paragraph 1.

Article 57. SUSPENSION OF THE OPERATION OF A TREATY

● The operation of a treaty in regard to all the parties or to a particular party may be suspended:
(a) In conformity with the provisions of the treaty; or
b) At any time by consent of all the parties after consultation with the other contracting States.

Article – 58 Suspension of multi-lateral treaty between one or more states.

It does not affect the relations of other parties inter se.

Article 59. TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY

IMPLIED BY CONCLUSION OF A LATER TREATY
● 1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating
to the same subject-matter and:
(a) It appears from the later treaty or is otherwise established that the parties in tended that the
matter should be governed by that treaty;
(b) The provisions of the later treaty are so far incompatible with those of the earlier one that the
two treaties are not capable of being applied at the same time.
CHRIST Deemed to be University
Article 60 - TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY
AS A CONSEQUENCE OF ITS BREACH
1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach
as a ground for terminating the treaty or suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles:

58
(a) The other parties by unanimous agreement to suspend the operation of the treaty in whole or in
part or to terminate it either:
(i) In the relations between themselves and the defaulting State, or
(ii) As between all the parties;

● ● Article 61 - Supervening Impossibility of Performance

● ● Article 62 – Res Sic Standibus

Article 62. FUNDAMENTAL CHANGE OF CIRCUMSTANCES

1. A fundamental change of circumstances which has occurred with regard to those existing at the
time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked
as a ground for terminating or withdrawing from the treaty unless:
(a) The existence of those circumstances constituted an essential basis of the consent of the parties
to be bound by the treaty; and
(b) The effect of the change is radically to transform the extent of obligations still to be performed
under the treaty.
● 2. A fundamental change of circumstances may not be invoked as a ground for terminating or
withdrawing from a treaty:
(a) If the treaty establishes a boundary; or
(b) If the fundamental change is the result of a breach by the party invoking it either of an obligation
under the treaty or of any other international obligation owed to any other party to the treaty.
Article 63. SEVERANCE OF DIPLOMATIC OR CONSULAR RELATIONS
(1) The severance of diplomatic or consular relations between parties to a treaty does not affect
the legal relations established between them by the treaty except in so far as the existence of
diplomatic or consular relations is indispensable for the application of the treaty. CHRIST Deemed
to be University
Article 64. EMERGENCE OF A NEW PRE - EMPTORY NORM OF GENERAL
INTERNATIONAL LAW ("JUS COGENS")
(1) If a new peremptory norm of general international law emerges, any existing treaty which is in
conflict with that norm becomes void and terminates.

59
UNIT – 5

STATEHOOD AND RECOGNITION

International Legal Personality

International Personality refers to the capacity to be a bearer of rights and duties under
International Law.
To be an international legal person the entity must satisfy 4 basic elements.
1) The entity must have duties and hence incur responsibilities for any behaviour which is a
variant with that prescribed by the international law system.
2) The entity must be capable of claiming the benefits of rights conferred by the rules of
International Law. This is more than being a mere beneficiary of a right because a
considerable number of rules may serve the interests of groups of individuals or entities who
do not have a legal claim to the benefits conferred by the particular rules.
3) The entity must possess the capacity to enter into contractual or other legal relations with
other legal persons recognized by that other legal system of law.
4) The entity must possess the capacity to enjoy some or all of the privileges and immunities
from the jurisdiction of the municipal courts or states, these being an attribute of an
international legal person as distinct from one governed by Municipal Law.

Subjects of International Law-

A subject of international law is an entity possessing international rights and obligations and
having the capacity
(a) to maintain its rights by bringing international claims; and
(b) to be responsible for its breaches of obligation by being subjected to such claims.

60
THEORIES OF SUBJECTS UNDER PUBLIC INTERNATIONAL LAW

REALIST THEORY ( States)

- Traditional theory supported by Corbett. States alone are the subjects of
International Law.
- They rely that Nation States are the only entities for whose conduct the international
law came into existence. The Nation States, irrespective to the individuals
composing them, are distinct and separate entity capable to have rights, duties
and obligations and can possess the capacity to maintain their right under
international law.
- Individual people are objects of it. Individuals lack judicial personality under
International Law because they do not have rights or duties under it.

FICTIONAL THEORY (Individuals)

- Kelsen and Westlake support this theory. League of Nations supports this theory.
- According to the supporters of this theory the only subjects of international law
are the individuals. For the reason, that both the legal orders are for the conduct
of human beings and for their good well. And the Nation States are 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. Due to
this reason individuals are the ultimate subjects of International law.
- Universal Declaration of Human Rights, Convention on the Settlement of
Investment Disputes between States and Nationals of other States etc. are examples
for the recognition of individuals in international law.
FUNCTIONAL THEORY (States and Indivudals_
- This is a modern theory and coordinates the prior two theories.
- According to this, legal functionality is given to those who have the capability to
perform legal functions internationally. States, individuals and international
organisations are subjects of public international law.

61
STATES AS SUBJECT OF INTERNATIONAL LAW
- States are the original and major subjects of International Law. International Law is
primarily concerned with the rights, duties and interests of States. The moment an entity
becomes a State (once a state gets statehood), it becomes an international legal person
and acquires international legal personality. States are the original subjects of
international law – i.e. international law was created to regulate relations between States.

When does a state attain STATEHOOD?

Article 1 of Montevideo Convention on Rights and Duties of States, 1933
1. A permanent population - no specific number
2. A defined territory – no minimum sq.kms
3. Government
4. Capacity to enter into relations with other states.

Permanent Population
- A state cannot exist without a population. The requirement for a ‘permanent population’
refers to a politically stable community.
- There is no prescribed legal minimum number of people making up the number of the
population.
- For instance, the Vatican City has an estimated resident population of 750; Tiny Nauru
has a population of 20,000 and the Maldives Island has a population of 350,000.
- The criterion of population is not affected if the population of a state is nomadic.
International law does not require the population to be homogenous.
- The criterion of a stable community refers to a group of individuals living within a
certain geographical area.

Defined Territory
- A fixed territory constitutes a basic requirement for statehood. The stable political
community must be in control of a certain area.
- The criterion of territory is connected with that of permanent population and constitutes
the physical basis for the existence of a state. There is no requirement that the

62
 frontiers of the state be fully defined or undisputed at the time it comes into being or
subsequently.
- For instance, the state of Israel was admitted to the U.N in 1949 although the final
delimitation of its boundary had not been settled. What is important is the effective
establishment of a political community within an identifiable territory.

Deutsche continental Gas – Gesselschaft vs. Polish State (1929) 5 AD 11 -

- The german polish tribunal held that in order to say that a state exists and can be
recognized as such it is enough that its territory has a sufficient consistency even
though its boundaries have not yet been accurately been delimited.
- The tribunal was called upon to decide if Poland was comprised among the expression
“German’s enemies” and this involved a determination whether Poland could have
existed before 1919 treaty of Versailles came into operation.
- The tribunal held that recognition in article 87 of the Treaty was only declaratory of the
state which was in existence before the treaty. The fact that the former sovereigns of
Poland had not recognized her and the fluid nature of the polish-Russian border
were held to be irrelevant to the existence.
- The tribunal said, “Whatever may be the importance of the delimitation of boundaries,
one cannot go so far as to maintain that as long as the delimitation has not been legally
effected the state in question can be considered as having any territory whatsoever.
- The practice of international law and historical precedence point to the contrary. In order
to say that a state exists and can be recognized as such, it is enough that the territory has
sufficient consistency even though its boundaries have not been accurately been
delimited and that the state actually exercises independent public authority over
that territory.

- Besides, international law does not require any minimum size of a territory. For
instance, the Vatican occupies only 0.44 square kilometers; Nahuru in the south pacific
occupies 8 square miles while the Principality of Monaco is a sovereign state forming an
enclave of French territory and covering an area of 105 hectares of which 35% has been
claimed from the sea.

63
 - Neither does international require geographical unity of the territory. The state may
consist of territorial areas but are separated and distinct from each other. What is
needed is unity under a common legal system. For instance, the Republic of Kiribati is
an archipelagic state comprising several islands some of which are as far as 1000 Km
from the other.

Government
- A government or at least some governmental control is required for qualification of an
entity as a state. The existence of an effective and independent government with
centralized administrative and legislative organs is generally the best evidence of a
stable political community.
- In certain cases however, the presence of effective government alone is insufficient to
support statehood. But once a government has been established, the absence of
governmental authority does not affect the existing state’s right to be considered as a
state. This is because states have often survived periods of anarchy, civil war and hostile
occupation.
- However, in order for a territory which has not already achieved a status of a state
to be considered as such, it must have a government of its own and not be subject to
the control of another state. In other words, a puppet state is not a state in
international law.
- In order to ascertain a degree of governmental authority one must consider in whose
interest and for what legal purpose the government is affected. In other words, the
territory in question must be under an independent and sovereign government and no
other authority than that of international law.
- It must not be subordinate to the will or legal authority of another state except
international law.
- The form of government and its legality or legitimacy are not decisive for the criteria
of a state. That belongs to the domestic affairs of states.

Capacity to enter into relations with other states

64
 - Although the new entity may have a government capable of acting on its behalf, in order
for its claim to be a state to succeed the entity itself must be capable of entering into
relations with other states.
- The capacity of an entity to enter into relations with other states derives from the
control the government exercises over a given territory which in turn is based on the
actual independence of that state.
- The state must be independent of other states’ legal orders or any international
agency and must be based on a title of international law.
- International law identifies two elements evidencing the existence of independence.

Firstly, the entity exists separately within established boundaries. This emphasizes the
link between territory, population, government and independence
Secondly, the entity is not subject to any other authority except international law.

- Accordingly, if an entity has its own executive and other organs conducts its foreign
relations through its own organs; has its own legal system and nationality law, then
there is prima facie evidence of statehood. External control through political and
economic blackmail directed at weaker members of the international community does
not affect statehood.

INDIVIDUALS AS A SUBJECT OF PUBLIC INTERNATIONAL

LAW

Fictional Theory – objective of PIL is to serve humans

Treaty of Versailles, 1919 – Article 304 (b)
- Individuals of Allied and associated powers can bring cases against Germany before the
Mixed Arbitration Tribunal.

Case law- Danzig Railway Employees case

65
Facts-

There was a treaty between Poland and Danzig regarding the conditions of employment of railway
officials. Danzig citizens had to pass Polish civil service to take up the employment for Danzig
Railways. There was a breach in the treaty by Poland and the breach resulted in the pecuniary
damage to the railway officials of Danzig. So, Danzig railway officials filed a case against Poland
before PCIJ.

Contentions of Poland
In case of breach of treaty by Poland, it is liable only to Danzig as a State and not to its officials.
Agreement is entered between Poland and Danzig. So, railway officials of Danzig have no locus
standi to file a case.

Decision of the Court

But the Court held that, the agreement intended to create legal rights which could be
enforced by the private citizens as well.

INTERNATIONAL ORGANISATIONS AS A SUBJECT OF

INTERNATIONAL LAW

Reparation case-

Indeed, the International Court of Justice recognized the diversity of International

personality in the Reparations case by stating that,

“the subjects of law in any legal system are not necessarily identical in their nature or in
the extent of their rights.”
In its advisory opinion, in the reparations case, the I.C.J stated that, “In the opinion of the
court the UNO was intended to exercise and enjoy ---functions and rights which can only
be explained on basis of the possession of a large measure of International personality

66
 and the capacity to operate upon an International claim. It is a present the supreme type
of International organization and it could not carry out the intentions of its founders if
it was devoid of international personality. It must be acknowledged that its members, by
entrusting certain functions to it, with the attendant duties and responsibility, have
clothed it with the competence required to enable those functions to be effectively
discharged. Accordingly, --- the organization is an International person. That is not the
same thing as saying that it is a state --- or that its legal personality and rights and
duties are the same as those of a state. --- what it does mean is that it is a subject of
International Law and capable of possessing International rights and duties, and that
it has capacity to maintain its rights by bringing International claims.”
States increasingly find it convenient to establish international machinery for the purpose of
carrying out tasks of mutual interests. They therefore institute distinct centres of action for the
furtherance of common goals designed to perform only those activities that states delegate to
them e.g. African states established the OAU for purposes of carrying out mutual interests.
The object of the constituent instrument (like the UN charter) of such international machinery
must be to create a new subject of law endowed with a certain autonomy to which the states
parties entrusts the task of realizing common goals.

An international organization must satisfy at least 3 conditions in order for it to qualify as an

international law personality. Namely:
1) It must be a permanent association of states created to attain certain common objectives and
having its own administrative organs.
2) It must exercise some power that is distinct from the sovereign power of its member states.
3) Its competences must be exercisable on an international level and not confined exclusively
to the national system of its member states.

- It must be noted however that when states create an international organization they set it
up for specific purposes and in this respect the organization’s legal personality must be
treated as being relative to those purposes.
- Consequently, the question whether an international organization possesses international
legal personality can only be answered by examining its functions and powers

67
 expressly conferred by or to be implied from its constituent instrument and
developed in practice. In other words, unlike states, International Organizations have a
limited competence and field of action.

As the ICJ stated in its advisory opinion on The Legality of the Threat or Use of Nuclear
Weapons (1996) ICJ Rep 90, para 25
“International organizations are subjects of international law which do not, unlike states, posses
a general competence. International organizations are governed by the principle of specialty,
that is to say, they are invested by the states which create them with powers, the limits of
which are a function of the common interests whose promotion those states entrust to them.”

Privileges and Rights-

As international legal persons, International Organizations enjoy a number of privileges and
rights.
1) They have the right and capacity to enter into international agreements with members and
non-member states on matters within their progress. These agreements are all legally binding
effects of international treaties proper.
2) They have the right to enjoy immunities and privileges from the jurisdiction as well as
execution of state courts for acts and activities performed to attain the goals laid down to
their constituent instruments.
3) They have the right to protection for all their agents acting in authority of their 3rd states in
their official capacity as international civil servants.
4) They have the right to bring an international claim with a view to obtaining reparation
for any damage caused by member states or by 3rd states to their assets or their officials
acting on their behalf.

NON STATE ACTORS AS A SUBJECT OF INTERNATIONAL

LAW

68
Non-Governmental Organizations and Trans-National Organizations
- Non-governmental organizations are not only visible on the international plain that also
play a vital role in different areas of international concern ranging from politics, social
economic arena, human rights, humanitarian relief and education, to women and the
environment.
- Examples include: Amnesty International, ICRC, World Conservation Communion, and
Green Peace International.
- The role of non-governmental organizations in the world order is basically informal in
that they add additional expertise and they make international procedures more
transparent. They also engage in fact finding especially in the implementation of the
international norms in the area of human rights.
- The relevant law governing establishment and status of NGOs is that of the state
where the NGO is registered and based. Although international intergovernmental
organizations may agree to grant NGOs consultative or observer status and thereby a
limited international status NGOs do not thereby become subjects of international law.
- Article 71 of the UN charter empowers the Economic and Social Council to make
suitable arrangements of consultation with NGOs such as ICRC, MSF, and Amnesty
International which are concerned with matters within the competence of the Council.

Entities Sui Generis

- The role played by politically active entities such as belligerent communities indicates
that, in the sphere of personality, effectiveness is an influential principle.
- As elsewhere (and subject to compliance with any relevant peremptory norm),
acquiescence, recognition, and the incidence of voluntary bilateral relations may
prevail.

In a Treaty and Concordat of 1929, Italy recognized ‘the Sovereignty of the Holy See in the
international domain’ and its exclusive sovereignty and jurisdiction over the City of the
Vatican. Numerous states recognize the Holy See and have diplomatic relations with it and the
Holy See is a party to many treaties. Functionally, and in terms of its territorial and
administrative organization, the Vatican City is proximate to a state. However, it has no

69
population, apart from resident functionaries, and its sole purpose is to support the Holy
See as a religious entity. Some jurists regard the Vatican City as a state but its special functions
make this doubtful. It is widely recognized as a legal person with treaty-making capacity. Its
personality rests partly on its approximation to a state, in spite of the peculiarities,
including the patrimonial sovereignty of the Holy See, and partly on acquiescence and
recognition by existing legal persons.

- Two other political animals require classification. ‘Governments-in-exile’ may be

accorded considerable powers within the territory of most states and be active in various
political spheres.
- Apart from voluntary concessions by states and the use of ‘governments in exile’ as
agencies for unlawful activities against established governments and states, the status of
a ‘government-in-exile’ is consequential on the legal condition of the community it
claims to represent, which may be a state, belligerent community, or non-self-
governing people.
- Its legal status will be established the more readily when its exclusion from the
community of which it is an agency results from acts contrary to a peremptory norm.
- Lastly, there is the case of territory title to which is undetermined, which is inhabited
and has an independent administration. Communities existing on territory with such a
status may be treated as having a modified personality, approximating to that of a
state.
- In one view, this is the situation of Taiwan. Since 1972 the UK, like most other
governments, has recognized the Government of the People’s Republic of China (PRC)
as the sole government of China, and it acknowledges the position of the PRC that
Taiwan is a province of China. No government has managed to sustain a recognition
policy based on two Chinese states. The question whether Taiwan is a ‘country’ may
nevertheless arise within particular legal contexts it is also a ‘fishing entity’ for law
of the sea purposes and as a separate customs territory it is a WTO member.
Though not recognized as a state, it has an international legal identity.

70
RECOGNITION

- Recognition is a discretionary function exercised unilaterally by the government of a

state acknowledging the existence of another state or government or belligerent
community.
- Malcolm Shaw says that, “recognition is a statement by an international legal person as to
the status in international law of another real or alleged international legal person.”
It is an acknowledgment of the international legal status of the entity in question.
- With respect to a state, recognition is the acknowledgment that the entity fulfills the
criteria of statehood. On the other hand, recognition of a government is the
acknowledgment that the regime in question is in effective control of a state.

LEGAL CONSEQUENCES OF RECOGNITION IN MUNICIPAL LAW

Recognition is essentially a matter of intention and might be accomplished through several
modes. The act or recognition must however give a clear invitation of an intention to
a) treat the new state as such
b) accept the new government as having authority to represent the state it purports to govern
c) Recognize in the case of belligerents that they are entitled to exercise belligerent rights.
A number of legal consequences flow from recognition within ML.
1. Recognition has the effect of giving the recognized state or government access to the courts
of the recognizing state.
In other words, an unrecognized state or government cannot sue or be sued in the state of the
non-recognizing state. Neither can its laws be recognized for the purposes of the conflicts of law.
We will allow the Ugandan government to maintain a civil suit in Kenya.
This is illustrated by the case of Luther v Sagor.
In June 1918 the Russian Socialist Federal Sovereign Republic passed a decree declaring all
mechanical saw mills and good working establishments belonging to private or limited
companies to be nationalists. In 1919, in pursuance of the decree the plaintiff’s mill together with
its stocks of wood was ceased on behalf of the republic. In august 1920 the representative of the
Russian Commercial Delegation in London contracted with the defendants for the sale and
delivery of a quantity of timber which included some which have been ceased from the plaintiffs.

71
The plaintiff sought inter alia a declaration that the timber was their property and injunction
restraining the defendants from selling pledging or in any way dealing with it. The defendants
argued that the decree of June 1918 being the act of a sovereign government was valid to deprive
the plaintiffs of their title to the timber and not been impugned not challenged. The KB division
decided in favour of the plaintiff. However on appeal on the basis of certificates issued by the
UK foreign office stating that the soviet government was recognized by the UK as the de facto
government of Russia before the confiscation. The court of appeal confirmed the defendant’s
title with the wood. Lord justice Bankes stated, ‘the courts of these country will not inquire into
the validity of a foreign government which has been recognized by the government of this
country…the government of this country having recognized the soviet government as the
government really in possession of the powers of sovereignty in Russia, the act of that
government must be treated by the courts of this country with all the respect due to the acts of a
duly recognized foreign sovereign state.
Similarly in the case of The Republic of Somalia v Wood house Drake and Carey Suisse (1992)
3 WLR 734
The QB division of the UK Supreme Court refused to allow the representative of the interim
government of Somalia to bring a claim before it on the ground that it was not a recognized
government on international law. In January 1991 the incumbent government of Somalia
purchased a cargo of rice for delivery at the port of Mogadishu. In the period between the
purchase and delivery conflict broke up in the country the government was overthrown and a
provisional government established. In the meantime the cargo of rice could not be delivered at
the port of destination due to the fighting. Since the cargo could not be delivered the provision of
government raised an action for recovery of the price of the undelivered cargo. The ship onus
issued a summons against the republic of Somalia. The court ordered the original bills of lading
to be lodged with the court pending the settlements of the dispute. One of the issues the court had
to consider was whether the provisional government had the locus standii to bring the action. The
court held that on the evidence the provisional government of Somalia had not been recognized
and hence had no lawful standing in the English court. Its claim to the price of the consignment
was rejected.
Transporters Airos de Angola v Ronair

72
2. A recognized state of government enjoys sovereign immunity from suits in the court of
recognized state and cannot be sued without its consent.
The plea of immunity may be raised by an authority recognized as being in de facto control even
if the proceedings are brought by the de jure sovereign.
The Arantzazo Mendi 1939
3. The legislative and administrative acts of the recognized states or governments will be given
effect to the recognizing states.
Sago case
4. Recognition once granted is retroactive.
It is backdated to the establishment of the authority in question and does not related to the time in
which it is accorded. For instance in the Luther case the British recognition of the Soviet
government was backdated to 1917 and all the legislative and administrative acts of the soviet
government had to be recognized as well

LEGAL CONSEQUENCES IN INTERNATIONAL LAW

- An important legal consequence flowing from the recognition of an entity as a state or
government of another state is the doctrine of ‘act of state’. The acts of a recognized
state and or government are not justiciable by the court of the recognizing state.
This flows from the IL concept of the sovereign equality of states.
- Every sovereign state is bound to respect the independent of every other sovereign
state and the courts of one state will not sit in judgment on the acts of the
government of another state done within its own territory.
- In other words the doctrine of act of states precludes the courts of one state from
enquiring into the validity of the public act of a recognized foreign sovereign power
within its own territory. Kenyan Supreme Court cannot sit or review on judgments of
the court of UG.
- This is illustrated in the case of Underhill v Hernandez. In august 1892 an army party
under the defendants command took power in a Bolivar Venezuela. During the
engagement, all of the local officials left and all the vacant positions were filled by the
defendants who from that date and during the period of the transactions complained of
was the civil and military chief of the city and district. In October, the party in revolt had

73
 achieved success generally and on October 23 1892 the government then in control of the
territory was formally recognized as the legitimate government of Venezuela by the US.
The plaintiff was a US citizen who had constructed a water work system for the City of
Bolivar under a contract with the government and was engaged in supplying the place in
water.
Sometime after the entry of Hernandez, he applied to him as the office in command for a
passport to leave the city. The defendant refused his request, it was not until October 18 th when a
passport was given and Underhill left the country. When he got to the US he filed this action to
recover damages for the detention caused by the refusal to grant the passport.
The US supreme court dismissed the action holding; ‘the acts complained of were the acts of a
military commander representing the authority of the revolutionary party as a government, which
afterwards succeeded and was recognized by the US…the acts of the defendant were the acts of
the government of Venezuela, and as such are not properly subject of adjudication in the courts
of another government…every sovereign state is bound to respect the independence of every
other sovereign state, and the courts of one country will not sit in judgment on the act of
the government of another than within its own territory. Redress of grievance by reason of
such acts must be obtained through the means open to the avail of by sovereign powers as
between themselves.’
Kenyan who has an interest in UG…and one has suffered redress. One can only do so in the HC
of Uganda. One cannot leave UG and file a claim with the HC of Kenya. When one lives to UG
and comes to Kenya one can appeal in exercise of the right of diplomatic relations to expound
this to the ICJ so that it becomes a state to state claim.
Besides, diplomatic relations as established with recognized states and governments. Although
the establishment of diplomatic relations is one of the manifestations of recognition it is not a
necessary consequence thereof because an entity can be recognize as a state even in the absence
of diplomatic relations of a recognized state. However by acknowledging the full status of hither
to in determinate communities the recognizing states make possible the regularizing of relations
between them on the basis of the international law.

TYPES OF RECOGNITION
1. De Jure Recognition – cannot be withdrawn

74
 2. De facto recognition – can be withdrawn

De jure recognition is given only when a State has the attributes of statehood that are given under
Article 1 of Montevideo Convention on Rights and Duties of States, 1933 whereas de facto
recognition is granted only on conditional basis. Upon fulfilment of stipulated conditions, de
jure recognition is granted. If the state is unable to meet the conditions stipulated, then the de
facto recognition may be withdrawn. In other words, de facto recognition may be granted when
not all the attributes of statehood are met and if all the attributes are fulfilled, then de jure
recognition may be granted but failing to fulfil the requirements might result in the withdrawl
of de facto recognition.

1. De facto Recognition

De facto recognition is a provisional recognition of statehood. It is a primary step to de jure

recognition. It is a temporary and factual recognition as a state, and it can either be
conditional or without any condition.

This mode recognition is granted when a new state holds a sufficient territory and control over
a particular territory, but the other existing states consider that it does not have enough
stability or any other unsetting issues. So, we can consider it as a test of control for newly
formed states. De facto recognition is a process of acknowledging a new state by a non-committal
act.

The state having de facto recognition are not eligible for being a member of the United Nations.
e.g., Israel, Taiwan, Bangladesh.

2. De jure Recognition

De jure recognition is the recognition of a new state by the existing state when they consider
that the new state fulfils all the essential characteristics of a state. The de jure recognition can

75
be granted either with or without granting de facto recognition. This mode of recognition is
granted when the newly formed state acquires permanent stability and statehood. The De jure
mode of recognition grants the permanent status of a newborn state as a sovereign state.

Legal Effects of such recognition

When a state acquires recognition, it gains certain rights, obligations and immunities such as.

1. It acquires the capacity to enter into diplomatic relations with other states.

2. It acquires the capacity to enter into treaties with other states.

3. The state is able to enjoy the rights and privileges of international statehood.

4. The state can undergo state succession.

5. With the recognition of state comes the right to sue and to be sued.

6. The state can become a member of the United Nations organisation.

Theories of recognition

The recognition of a new entity as a sovereign state is based on two main theories:

● Consecutive Theory

● Declaratory Theory

1. Consecutive Theory

The main exponents related to this theory are Oppenheim, Hegal and Anziloti.

76
According to this theory, for a State to be considered as an international person, its recognition
by the existing states as a sovereign required. This theory is of the view that only after
recognition a State gets the status of an International Person and becomes a subject to
International Law. So, even if an entity possesses all the characteristics of a state, it does not get
the status of an international person unless recognised by the existing States.

This theory does not mean that a State does not exist unless recognised, but according to this
theory, a state only gets the exclusive rights and obligations and becomes a subject to
International Law after its recognition by other existing States.

2. Declaratory Theory

The main exponents of the Declaratory Theory of Statehood are Wigner, Hall, Fisher and Brierly.

According to this theory, any new state is independent of the consent by existing states. This
theory has been laid down under Article 3 of the Montevideo Conference of 1933. This theory
states that the existence of a new state does not depend on being recognised by the existing
state. Even before recognition by other states, the new state has the right to defend its integrity
and independence under International law.

The followers of theory consider the process of recognition as merely a formal acknowledgement
of statehood by other states.

Functions of formal recognition: (need of recognition)

1. Acceptance as a state
2. Establishment of legal relations

How can a State recognise other state? (modes of recognition)

1. Implied/tacit recognition

77
 - Exchange of diplomats
- Entering into treaty
2. Express recognition
- Formal message
- Is a State bound to recognise?
NO. Recognition is a political act and there is no legal duty for a state to recognise.

LAW GOVERNING RECOGNITION

Montevideo Convention, 1933

ARTICLE 3 - The political existence of the state is independent of recognition by the other states.

ARTICLE 6 - The recognition of a state merely signifies that the state which recognizes it accepts
the personality of the other with all the rights and duties determined by international law.
Recognition is unconditional and irrevocable.

ARTICLE 7 - The recognition of a state may be express or tacit. The latter result from any act
which implies the intention of recognizing the new state.

ARTICLE 8 - No state has the right to intervene in the internal or external affairs of another.

RIGHTS AND DUTIES OF STATE

DRAFT DECLARATION ON RIGHTS AND DUTIES OF STATES, 1949

RIGHTS OF THE STATE

Article 1 – Right to Independence

Every State has the right to independence and hence to exercise freely, without dictation
by any other State, all its legal powers, including the choice of its own form of
government.

78
Article 2 – Jurisdiction
Every State has the right to exercise jurisdiction over its territory and over all persons
and things therein, subject to the immunities recognized by international law.

Article 3 – Policy of non -intervention

Every State has the duty to refrain from intervention in the internal or external affairs of
any other State.

Article 4 – refrain from fomenting

Every State has the duty to refrain from fomenting (inciting) civil strife in the territory
of another State, and to prevent the organization within its territory of activities calculated
to foment such civil strife.

Article 5 – Equality
Every State has the right to equality in law with every other State.

DUTIES OF STATES

Article 6 - Every State has the duty to treat all persons under its jurisdiction with
respect for human rights and fundamental freedoms, without distinction as to race, sex,
language, or religion.

Article 7 - Every State has the duty to ensure that conditions prevailing in its territory
do not menace international peace and order.

Article 8 - Every State has the duty to settle its disputes with other States by peaceful
means in such a manner that international peace and security, and justice, are not
endangered.

Article 9 - Every State has the duty to refrain from resorting to war as an instrument of
national policy, and to refrain from the threat or use of force against the territorial integrity
or political independence of another State, or in any other manner inconsistent with
international law and order.

79
 Article 10 - Every State has the duty to refrain from giving assistance to any State which
is acting in violation of article 9, or against which the United Nations is taking
preventive or enforcement action.

Article 11 - Every State has the duty to refrain from recognizing any territorial
acquisition by another State acting in violation of article 9.

Article 12 - Every State has the right of individual or collective self-defence against
armed attack.

Article 13 - Every State has the duty to carry out in good faith its obligations arising
from treaties and other sources of international law, and it may not invoke provisions
in its constitution or its laws as an excuse for failure to perform this duty.

Article 14 - Every State has the duty to conduct its relations with other States in
accordance with international law and with the principle that the sovereignty of each
State is subject to the supremacy of international law.

RECOGNITION OF INSURGENCY AND BELLIGERENCY

● Insurgency
Insurgency means rebellion, riot or mutiny by portion of the citizens of a State against the
established government. It indicates armed struggle by dissident forces against the established
government in a state.

The Conditions for recognition of insurgents

Some essential conditions for recognition of insurgency can be listed as follows:

a) The insurgents need to have control over a considerable part of the territory;
b) Most of the people living in the territory must support the rebels for their own accord and not
as a result of the enforcement actions taken by the insurgents;

80
c) The insurgents must be able and willing to comply with international obligations.

● Belligerency
On the other hand 'Belligerent signifies a stage of the civil war in which there are two contenders
for power that can be placed on a platform and there is something like a state of war, and not only
civil conflicts.

The Conditions for Recognition of belligerency are as follows:

1) There should exist within the state a status of armed conflict
2) The belligerents must administer and occupy a major portion of national territory
3) The hostilities must be conducted in accordance with the rules of war and through organized
armed forces acting under a responsible authority.

LEGAL CONSEQUENCES OF RECOGNITION TO THE BELLIGERENTS

1. One of the legal consequences of the recognition is that the laws and customs of war can be
applied to the insurgents or belligerents and the legitimate government. It includes Protection
of civilians against internal armed conflicts and Provision of rights to the belligerents soldiers
against each other.
2. The protection and security of civilians against internal armed conflicts is dealt by the
Additional Protocol II to the Geneva Conventions of 1949, of 1977. This convention sets
standard regulations prohibiting the belligerents of intentionally causing civilian casualties on the
other side.
3. Using poisoned weapons on arms as projectiles that cause suffering are prohibited.
4. The belligerents can have bilateral trade with the recognizing state
5 .The belligerents can enter into treaties with the recognizing state.
6. A recognized belligerent state becomes entitled to sue in courts of the recognised state.

81
UNIT – 6 STATE TERRITORY AND STATE
SUCCESSION
State Territory is an attribute of statehood. There will be no state without a territory. The
sovereignty of the state can be exercised in its territory. Oppenheim stated that state Territory is
the space within which the State exercises its supreme authority. Territory of the state is the
property of that state.
State territory includes

1. Land Territory
2. National Waters
3. Territorial Sea
4. Air Space
5. Subsoil under earth

Specific Categories of State Succession

1. Cession of Territory

With regard to cession of territories the so-called moving treaty frontiers principle, as codified in
Art. 15 VCSS-T, applies. This principle, which is also somewhat reflected in Art. 29 Vienna
Convention on the Law of Treaties (1969) (‘VCLT’), represents one of the most settled aspects of
the law of State succession with regard to treaties. Accordingly, treaties of the predecessor State
cease to be in force in respect of the ceded territory while treaties of the successor State
generally extend ipso facto to this territory. This approach was followed with regard to the
transfer of Hong Kong, Macau, and Walvis Bay.

2. Unification of States: Incorporation of One State into Another and Merger of Two States

Where one State voluntarily decides to be incorporated into another, as was the case with the
German Democratic Republic, which became part of the Federal Republic of Germany as of 3

82
October 1990, the former ceases to exist as a subject of international law (Subjects of International
Law), while the treaties of while the territory of the latter extends to that of the incorporated
State. In such a scenario, which was not envisaged in the VCSS-T, the treaties of the
incorporating State extend to the absorbed territory the incorporated State, with the notable
exception of localized treaties, ipso facto lapse unless the parties involved decide otherwise.

In contrast, where two States merge to form a new State, as was the case with regard to the
Yemenite unification, the model provided for in Art. 31 VCSS-T, at least by and large, applies.
Accordingly, all treaties entered into by either of the two predecessor States, both of which cease
to exist as of the time of unification, continue to be in force, albeit with the territorial scope of
application of such treaties being limited to the territory to which they had already been
applied beforehand (in accordance with Art. 31 (2) VCSS-T). Together, Art. 31 (1) and (2)
create a split treaty regime which potentially results in diverging obligations for the State and
unequal rights for individuals within the same territory. However, the practical effect of these
provisions is limited, with Yemen remaining the sole example of succession of this kind,
preventing any determination as to their customary status.

3. Complete Dissolution of a State

When a part or parts of the territory of a State separate to form one or more States, whether
or not the predecessor State continues to exist, Art. 34 VCSS-T provides that, as a matter of
principle, the treaties of the predecessor State automatically continue in force in respect of
each successor State. State practice, and in particular that concerning the dissolution of the
Socialist Federal Republic of Yugoslavia, as well as that concerning the CSFR, at least somewhat
tends to confirm the customary law nature of this rule. In addition, the Arbitration Commission
of the Peace Conference on the Former Yugoslavia (Badinter Commission [for the Former
Yugoslavia]), set up under the auspices of the Peace Conference for the former Yugoslavia,
considered the principles of international law embodied in the VCSS-T to constitute at least a
starting point for its considerations.

4. Separation

83
Unlike in the case of a complete dismemberment, a mere separation presupposes that one of the
entities existing on the territory of the predecessor State continues its legal personality and is, as
such, identical, although in a limited geographical way, with that predecessor State. A prominent
example in this regard is the case of the USSR, where the Russian Federation was generally,
including by the International Court of Justice (ICJ), considered to continue the legal personality
of that State. Accordingly the continuing State automatically continues all treaty relations of
the predecessor State unless such treaties are localized on the territory of a successor State,
a result enshrined in Art. 35 VCSS-T.

It is less clear, however, whether the successor States which separated from the rump State are
automatically bound by all treaties previously entered into by their predecessor State. Recent State
practice, including that of South Sudan, is even less uniform than that in cases of complete
dissolution of a State. Such practice has cast doubt upon the application of Art. 34 VCSS-T and
precludes any claims with regard to its having achieved customary status. In any case such
a successor State has the right, by way of a unilateral declaration of succession, to become ex
tunc a party to multilateral treaties of its predecessor State unless such treaty membership
is in one way or another limited to a certain group of States.

5. Newly Independent States

The VCSS-T, in line with previous State practice, defined the category of so-called newly
independent States in its Art. 2 (1) (f) by referring to such a State as ‘a successor State the
territory of which immediately before the date of the succession of States was a dependent
territory for the international relations of which the predecessor State was responsible’. The
concept thus covers former colonies (Colonialism). In line with the post-independence practice of
many former dependent territories Art. 16 VCSS-T, applying the clean slate or tabula rasa
principle, provides that any such newly independent State is not bound to maintain in force,
or to become a party to, any treaty of its predecessor State, but that it may establish its status
as a party to any such treaty by way of a unilateral declaration. The relatively few dependent
territories which came into existence after 1978 have, by and large, followed the model prescribed
by the convention and have in particular claimed a right to apply the terms of individual treaties

84
inherited from their predecessor provisionally until such time as they inform the depository or (in
the case of bilateral treaties) the respective other party otherwise. With the definite end of the
historical process of decolonization, the very concept of newly independent States has however
lost its relevance.

MODES OF ACQUISITION

1. Cession
2. Occupation
3. Accretion
4. Subjugation, and
5. Prescription.
MODES OF LOSS

1. Cession
2. Subjugation
3. Revolt
4. Prescription
5. Secession
6. Dereliction / renunciation
7. Operation of nature

Modes of acquisition of territory

1. Cession -
- Cession of the state territory is the transfer of sovereignty over state territory by
the owner state to another state. The cession may comprise a portion of the
territory of the ceding State or the totality of its territory.

85
 - Cession is the transfer of territory usually by treaty from one state to another. And
since cession is a bilateral transaction, the parties involved are states. The cession
of territory maybe voluntary or maybe under compulsion as a result of war.
- The act of cession maybe even in the nature of a gift, sale, exchange or lease.
- ● In 1803, France sold Louisiana to the US for 60 million
- ● In 1867, Russia sold Alaskan territory in America to the US for 7,200,000
dollars
- ● In 1899, Spain sold the Caroline Islands to Germany

2. Occupation -
- When a particular territory is not under the authority of any other state, a state can
establish its sovereignty over such territory by occupation. The territory may
never have belonged to any state, or it may have been abandoned by the previous
sovereign.
The PCIJ (Permanent Court of International Justice) held that the occupation to be effective
must consist of the following two elements;
(i) Intention to occupy. Such intention must be formally expressed and it must be
permanent.
(ii) Occupation should be peaceful, continuous.
Mere act of discovery by one state is not enough to confer a title by occupation. There are
two requirements;
(i) the territory subject to claim must not be under the sovereignty of any state
(terra nullius)
(ii) The state must have effectively occupied the territory.

There are two elements of effective occupation.

(i) One is the intention and will to act as sovereign (animus), and
(ii) Second one is the peaceful and continuous display of state authority (factum).

Legal Status of Eastern Greenland Case (Norway v Denmark) PCIJ Rep1933

86
 ● Norway occupied Eastern Greenland in July 1931,claiming that it was terra nullius,
while
Denmark insisted that Danish sovereignty existed over all
● Greenland from about 1721, at the time when Denmark and Norway were one State
● Until 1931 there was no claim by any power other than Denmark to the sovereignty
over
Greenland.
● Further, up till 1921 no power disputed the Danish claim to sovereignty, the Court held
that
Denmark had a valid title to Eastern Greenland
Island of Palmas case
● As a result of Spanish-American war of 1898, Spain ceded the Philippines to US by
Treaty of Paris;
● In 1906, officials of US while visiting the Island found Dutch flag flying there;
● Island of Palmas 2 miles long & less than a mile wide;
● In 1928, it had population less than 1,000 & was of negligible economic , military or
other
importance;
● Mere discovery by one state is not sufficient to confer title by occupation;
● “Long continuous exercise of effective authority can confer title at international law”
● Spain discovered the island but Netherlands had exercised continuous effective
authority
over it;

3. ACCRETION
- Accretion refers to the physical expansion of an existing territory through the
geographical process. It is the name for the increase of land due to some new formations.
- It is a customary rule of international law that enlargement of territories by new formations,
takes place ipso facto by accretion, without the state concerned taking any special step
for the purpose of extending its sovereignty. Hence, accretion too is a direct mode of
acquisition of territory.

87
 - Accretion can be;
1. Natural – by operation of nature.
2. Man –made – artificial creation of islands

Chamizal Arbitration

a. ● Treaty of 1848 specified the middle of Rio Grande as border

b. ● The river continually shifted between 1852 and 1868, with the radical shift in
the river
● after a flood in 1864
● By 1873 the river moved around 600 acres cutting off the land that was in effect made
US
Territory
● Newly exposed land came to be known as Chamizal tract and incorporated in EI Paso
● Both US and Mexico claimed the land Dispute was settled as per the treaty stipulations
● Part of the tract that resulted from gradual process of accretion belonged to US but that
part
resulted from a flood in 1864 belonged to Mexico

4. SUBJUGATION
- Subjugation means to incorporate (territory) into the domain of a country. Subjugation is a
unilateral act where territory is seized by one state. Subjugation is the acquisition of
territory by conquest followed by annexation.
- This direct mode of acquisition is often called title by conquest i.e waging of wars. The
new sovereign is the successor of the former.

5. PRESCRIPTION
It means continued occupation over a long period of time by one state of territory actually and
originally belonging to another state. The requirements of prescription are as follows;
(i) the possession must be peaceful
(ii) the possession must be for a long period of time.

88
Case law – Temple preah vihear case
- Cambodia complained that Thailand had occupied a piece of its territory surrounding the
ruins of the Temple of Preah Vihear, a place of pilgrimage and worship for Cambodians,
and asked the Court to declare that territorial sovereignty over the Temple belonged
to it and that Thailand was under an obligation to withdraw the armed detachment
stationed there since 1954.
- Thailand filed preliminary objections to the Court’s jurisdiction, which were rejected in
a Judgment given on 26 May 1961. In its Judgment on the merits, rendered on 15 June
1962, the Court noted that a Franco-Siamese Treaty of 1904 provided that, in the area
under consideration, the frontier was to follow the watershed line, and that a map based on
the work of a Mixed Delimitation Commission showed the Temple on the Cambodian
side of the boundary.
- Thailand asserted various arguments aimed at showing that the map had no binding
character. One of its contentions was that the map had never been accepted by
Thailand or, alternatively, that if Thailand had accepted it, it had done so only
because of a mistaken belief that the frontier indicated corresponded to the watershed
line.
- The Court found that Thailand had indeed accepted the map and concluded that the
Temple was situated on Cambodian territory. It also held that Thailand was under an
obligation to withdraw any military or police force stationed there and to restore to
Cambodia any objects removed from the ruins since 1954.

● Note - Prescription is the acquisition of territory which belonged to another state, whereas
occupation is acquisition of terra nullius.

MODES OF LOSS OF TERRITORY

Note – when there is acquisition, there is also loss of territory but this is always not the rule. Only
cession, subjugation and prescription fall under both acquisition and loss of territory. So,
cession, subjugation and prescription can be written for both.
1. Secession
When a state secedes from the political union to which it belonged. o Republic of Yugoslovia

89
 - After the demise of USSR, Recognition of the independence of the Baltic States followed
quickly, partly perhaps due to their anomalous legal position within the USSR: recognised
by many as de facto, but not de jure, part of the Soviet Union. The situation was, however,
nuanced by the claim of the Russian Federation to be the continuing State of the former
USSR. This claim meant that the Russian Federation guarantees the continuity of all rights
and obligations of the USSR under international law, was soon accepted by the
international community.
- Breaking down of Socialist Federal Republic of Yugoslavia, following proclamations of
independence by some of the constituent republics. Croatia, Slovenia, and Bosnia and
Herzegovina had met with general recognition, and had been admitted as new members of
the United Nations. Serbia and Montenegro too had created a new State, the Federal
Republic of Yugoslavia; the claim was denied as the FRY was similar to the continuation
of SFRY and the FRY was to be admitted as one of the five successors of SFRY

2. Revolt
- When a state revolts and gains independence, the former state which had control over the
state would lose its state territory.
- Revolt, on the other hand, has been accepted as a mode of losing territory to which there is
no corresponding mode of acquisition.There is no hard and fast rule regarding the time
when a state which has broken off from another can be established permanently as another
state. A revolt, however, seems to be more of a political issue than a legal mode of loss of
territorial sovereignty.

3. Dereliction / renunciation
- It is dereliction when a state renounces its sovereignty over the territory. There is a close
relation with dereliction and occupation.
- A territory can be occupied when the state has renounced its sovereignty.

90
 - Dereliction frees a territory from the sovereignty of the present state possessor.When the
owner state completely abandons a territory with the intention of withdrawing from it
permanently and relinquishing sovereignty over it dereliction is effected.
- Actual abandonment alone cannot amount to dereliction as it is assumed that the owner
will and can retake possession. Hence, just like occupation there has to be an abandonment
of territory (corpus) and an intention (animus) to withdraw too.

4. Operation of nature-
- The disappearance of land due to natural factors is ipso facto a loss of state territory. Thus,
if an island submerged or a river changes its course so as to eat into part of the territory of
the state there is a loss of territory.
- This has led to the threat of submergence of several island nations. These nations are facing
severe issues and are looking for support from other countries as their territory is under the
threat of completely vanishing altogether.
- Vanuatu, Marshall Islands, Fiji etc are some of the countries that have already lost major
portions of their territory due to rising sea levels and have started asking neighboring
countries to provide their subjects with the territory to live. These residents have now
formed a class of people called environmental refugees and their rights under international
law are a subject of wide discussion.

STATE SUCCESSION
State succession is where one state succeeds the other.

- According to Professor Starke, the term "State Succession" means transmission of rights
and obligations from States which have altered or lost their identity to other States or
entities, such alteration or loss of identity to other State or entities, occurring primarily
when complete or partial changes of sovereignty takes place over portions of territory.
- Under Article 2 of the Vienna Convention, 1983, on Succession of States, it has been
defined that Succession of States means the replacement of one State by another in the
responsibility for the international relations of territory.

91
 - A State may succeed another State by incorporating a certain portion of the latter's
territory; it may be spilt up into two or more States, or new States may emerge out of the
territory of a dismembered State as happened to the territory of the Austo-Hungarian
Monarchy as a result of the first world war or to the territory of German Reich as a result
of the Second world war

TYPES
Universal Succession
– whole territory is lost or destroyed.
Subjugation
Voluntary merger
Cessation/dismemberment/Break up

This is also referred to as Total Succession. When the entire identity of the parent State is
destroyed and the old territory takes up the identity of the Successor State, it is known as Universal
Succession. This can happen in cases of:

- Mergers- when one existing state merges with another existing state; after WWII germany
divided into east and west Germany and later formed unified Germany in 1990. UAE was
formed by the merger of Syria and Egypt in 1959
- Annexation
- Subjugation- When a state s annexed by another existing state; Taiwan annexed by China,
Korea annexed by Japan

In certain cases of universal succession, the old State gets divided into multiple States. The
dissolution of Czechoslovakia is an example of universal succession. The new States of the
Czech Republic and Slovakia are both successor States.

Partial Succession
– surrenders some part of territory but retains personality and legal responsibility.

92
Partial Succession occurs when a part of the territory of the State gets severed from the parent
State. This severed part now becomes an independent State. This can occur when there is a civil
war or a liberalization war.

There are two important examples of partial succession.

● One is the separation of Pakistan from India.

● The other is the separation of Bangladesh from Pakistan.

The existing States continued with their legal obligations and duties while the new States got their
own recognition and carried no rights or duties of the parent States.

- Cession – when some part is surrendered. Cession of one part of state to another state
i.e. of California to the USA in 1874
- Achieving Independence
- Treaties

CONSEQUENCES OF STATE SUCCESSION

Where a State merges voluntarily into another State or where it is subjugated by another State, the
Successor State remains one and the same International Person, while the predecessor State which
has merged or been subjugated becomes totally extinct as an International Person. Hence, the
treaties are not binding on the successor state unless otherwise provided.
● Membership of International organisations
Membership of the International organizations and the obligations incidental
thereto do not pass to a successor State.
● India and Pakistan – UNO
• ● Public Property

93
When one State Succeeds de facto to another, it succeeds to all the public and proprietary rights of
the extinct State. The successor State takes all the assets of the vanquished State, including such
assets as State funds, funds invested abroad, movable and immovable property.
• ● Private Property
The rights of the individual over their property remain the same.
• ● Private laws
Private law remains the same until abrogated.
• ● Contractual Liability
Unless otherwise provided, successor state is liable for all the contracts.
• ● TORTS- No liability
• ● Nationality – changed to the successor state.

.Consequences of State Succession:

Consequences of State Succession are as folllows-

(1) Treaty Rights and Obligation:

Where a Staten merges voluntarily into another State or where it is subjugated by another
State, the Successor State remains one and the same International Person, while the predecessor
State which has merged or been subjugated becomes totally extinct as an International Person.
Political treaties and alliances and rights and obligations occurring thereunder, in the absence of a
substantial continuity of personality, become extinct and invalid and the Successor State does
not succeed to such rights and duties of the extinct State.

(2) Membership: (India- Pakistan)

Membership of the International organizations and the obligations incidental thereto do not
pass to a successor State. The Irish free State applied for its admission, and was admitted, to the
League of Nations; Iceland did not inherit any part of the membership of Denmark and was
admitted to International Labour Organization in 1944.

94
(3) Public Property and Public Rights:
When one State Succeeds de facto to another, it succeeds to all the public and proprietary
rights of the extinct State. State Property State railways and fiscal funds pass to the annexing
State.
The successor State takes all the assets of the vanquished State, including such assets as
State funds, funds invested abroad, movable and immovable property. It also acquires the
right to collect taxes due to the replaced State.

(4) Private Rights:

A cession of territory from one State to another, however, affords no title to the successor
State to private property in the soil for succession merely refers to public rights of
sovereignty and not to private proprietary rights. The private rights of inhabitants, and their
relations to each other, unless specially altered by the conqueror, remain the same.

(5) Private Property:

"A cession of territory does not operate as a cession of the property belonging to its
inhabitants."
It is a general rule of public law that whenever political jurisdiction and legislative
power over any territory are transferred from one nation or sovereign to another, the
municipal laws of the country that is laws which are intended for the protection of private
rights, continue in force until abrogated or changed by the new government or sovereign.

(6) Contractual Liability:

The Successor State is bound by the contract of the extinct State. The new State becomes
Liable for all local and contractual obligations.

(7) Torts
The Succeeding States, whether by conquest or voluntary absorption, are under no liability
for the deficits of the extinct States.

95
(8) Public Debts
In the case of succession to public debts of a State which ceded part of a territory only but
continues to exist, the question assumes greater difficulty. It was observed by Arbitrator Eugene
Borel in the Ottoman Public Debt Arbitration on 18 April 1925 that, "it is impossible despite
existing precedents to say that a Power which acquires territory by cession is legally obligated to
assume a corresponding part of public debt."

(9) Nationality :
As regards nationality, the inhabitants of the ceded or vanquished territory become
subjects of the annexing State and lose the citizenship of the former State.

(10) Laws:
The civil law of the former sovereign continues unless changed by the successor State;
public law, however, changes simultaneously with the transfer of sovereignty: Philippine Sugar
Estate Development Co.Ltd. v. United States. whenever public law continues to remain in
operation after a territorial transfer derives its force as positive law owing to its acceptance by the
acquiring State.

The India-Pakistan Scenario- UNO

United Nations first faced such a situation just two years after its founding, on August 15, 1947,
when Great Britain granted independence to British India, an original member of the United
Nations, and divided its territory into the separate Dominions of India and Pakistan. (3)

Prior to India's independence, the sub-continent of India consisted of two distinct entities: British
India & Princely States. The Indian Independence Act, 1947, provided for the fragmentation of
the sub-continent into three separate entities viz., (1) the Dominion of India, (2) the Dominion of
Pakistan, and (3) the Princely States.
The Dominion of India had been defined in the Act as the territory of the old British India minus
the territory detached from it for the creation of Pakistan.
The Dominion of Pakistan would consist of East Bengal, West Punjab, Sind, the Chief
Commissioner's Province of British Baluchistan and the North-West Frontier Province. The

96
Princely States had the option either to join India or Pakistan on the basis of geographical
contiguity, composition of population and the economic factors.
The underlying assumption of the Act, however, was that the Dominion of India would be regarded
as the parent State and would, therefore, continue the personality of "India". But the Act does not
expressly say so.

So the dispute arose whether both the dominions will be treated as successor states or not. The
basic problem, therefore, was to examine whether the Dominions of India and Pakistan are both
successor States of "India" or whether Pakistan alone is the successor state.

Therefore, following the theory of state succession, Pakistan was regarded as having broken off
and become a new state and, as a new non-member state, must seek admission to the United nations
pursuant to the provisions of Article 4 of the Charter. While India would thus stand as the successor
state, there was precedent in diplomatic practice that India should be requested to furnish her
representatives with new credentials issued by the proper authorities of the Dominion of India.
Can write USSR example also- General idea is new membership has to be applied. In these
two cases continuation was allowed

UNIT – 7

STATE JURISDICTION AND RESPONSIBILITY

STATE JURISDICTION

I. capacity of a State under International Law to prescribe and enforce the rules of law
II. it is derived from State sovereignty and constitutes its vital and central feature.
III. it is the authority of a State over persons, property and events which are primarily within its
territories (its land, its national airspace, and its internal and territorial water) - it involves the
powers to prescribe the rules of law, to enforce the prescribed rules of law and to adjudicate

Corollaries of sovereignty and equality of states are

97
1. Jurisdiction over territory and its population
2. Duty of non-intervention in the area of exclusive jurisdiction
3. Honouring customary law and enforcing the treaty law on consent.

STATE JURISDICTION PRINCIPLES/THEORIES

1. Territorial Principle (Place of crime scene)

2. Nationality Principle (Person committing the crime)
3. Protective Principle (National interest that is injured by the offence)
4. Universality Principle (Custody of person committing the crime)
1. Territorial Principle - A state has the primary jurisdiction over all events taking place in its
territory regardless of the nationality of the person responsible.

S.S Lotus case – Concurrent jurisdiction was determined in S.S lotus case.
A collision occurred in the high seas between a French vessel and a Turkish vessel. Victims were
Turkish nationals and the alleged offender was French. Could Turkey exercise its jurisdiction over
this French national under international law?
The Court laid down two principles

The first principle of the Lotus Case is that a state cannot exercise its jurisdiction outside its
territory unless an international treaty or customary law permits it to do so. This is what
we called the first principle of the Lotus Case. The Court held that: “Now the first and foremost
restriction imposed by international law upon a State is that — failing the existence of a permissive
rule to the contrary — it may not exercise its power in any form in the territory of another State. In
this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory
except by virtue of a permissive rule derived from international custom or from a convention”.

The second principle of the Lotus Case is that within its territory, a State may exercise its
jurisdiction, in any matter, even if there is no specific rule of international law permitting it to
do so. In these instances, States have a wide measure of discretion, which is only limited by the
prohibitive rules of international law. The Court held that: “It does not, however, follow that international
law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates
to acts which have taken place abroad, and in which it cannot rely on some permissive rule of

98
international law. Such a view would only be tenable if international law contained a general
prohibition to States to extend the application of their laws and the jurisdiction of their courts
to persons, property and acts outside their territory, and if, as an exception to this general
prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case
under international law as it stands at present. Far from laying down a general prohibition to the effect
that States may not extend the application of their laws and the jurisdiction of their courts to persons,
property and acts outside their territory, it leaves them in this respect a wide measure of discretion,
which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains
free to adopt the principles which it regards as best and most suitable. This discretion left to States by
international law explains the great variety of rules which they have been able to adopt without
objections or complaints on the part of other States… In these circumstances all that can be required
of a State is that it should not overstep the limits which international law places upon its jurisdiction;
within these limits, its title to exercise jurisdiction rests in its sovereignty”

“What is not prohibited by customary law or by treaty law is permitted under international
law.”

• Subjective territorial principle – crimes that are committed within its territorial borders.
Under the subjective aspect of territorial jurisdiction a sovereign is recognized as having the power
to adopt criminal laws that apply to crimes that are physically committed within his territorial
borders.
• Objective territorial principle – crimes that have affected the nationals of another state. Under
the objective aspect of territorial jurisdiction a sovereign is recognized as having the power to
adopt a criminal law that applies to crimes that take effect within its borders even if the
perpetrator performs the act outside of its borders.

2. Nationality principle -The nationality principle permits a country to exercise criminal

jurisdiction over any of its nationals accused of criminal offenses in another state. Historically,
this principle has been associated more closely with civil-law systems than with common-law
ones, though its use in common-law systems increased in the late 20th century (e.g., the adoption
in Britain of the War Crimes Act in 1991 and the Sex Offenders Act in 1997). Ships and
aircraft have the nationality of the state whose flag they fly or in which they are registered

99
and are subject to its jurisdiction.. It is based on a personal link between accused & the state
claiming jurisdiction.

3. Protective principle - State may exercise jurisdiction over an alien who commits an act
abroad but prejudicial against the State’s security & interest. Protective principle is based on
“Effect Doctrine”, whereby States enacted legislation to give themselves jurisdiction over any
matters producing “effect” in their territory. In this situation, the crime is committed abroad
and neither the person who committed the crime, nor the victims, were nationals of that
State. In this case, jurisdiction is asserted on the basis that the security or the interests of the State
is affected by an act committed abroad. The principle is justifiable on the basis of protection of
a state’s vital interests, since the alien might not be committing an offence under the law of
the country where he is residing and extradition might be refused if it encompassed political
offences.

4. Universal principle- Any state can exercise jurisdiction over the crime irrespective of that
person’s nationality and the place of commission of crimes. Crimes which fall under universal
principle are; Genocide Torture Slavery War crimes

5.Passive personality principle: The passive personality principle allows states, in limited cases,
to claim jurisdiction to try a foreign national for offenses committed abroad that affect its
own citizens. This principle has been used by the United States to prosecute terrorists and even to
arrest (in 1989–90) the de facto leader of Panama, Manuel Noriega, who was subsequently
convicted by an American court of cocaine trafficking, racketeering, and money laundering. The
principle appears in a number of conventions, including the International Convention
Against the Taking of Hostages (1979), the Convention on the Prevention and Punishment
of Crimes Against Internationally Protected Persons (1973), and the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).

100
IMMUNITIES FROM JURISDICTION

Principles of international law that is often relied on by states to claim that the particular court or
tribunal does not have jurisdiction over it, or to prevent enforcement of an award or judgment
against any of its assets.

1. Sovereign immunity – immunity that a state can enjoy. In IL state immunity is the legal
rules and principles determining the conditions under which a foreign state may claim freedom
from the jurisdiction of another state.
In practice, problems of state immunity arise at two different levels:
i) Immunity of a foreign state from jurisdiction of municipal courts of another state to
adjudicate a claim against arising from e.g. a contract or tort
ii) The exemption of a foreign state from enforcement measures against its property
especially to execute a municipal court decision.
The principle of state immunity is a of the principle IL. This has the consequence that should a
state fail to apply it in an appropriate case, it will be responsible under international law.

Sovereign immunity has two facets;

a) Absolute immunity – A state can claim absolute and complete immunity in exercising its
functions. But it is not practised. Schooner Exchange v. Mc Fadden: The jurisdiction of the
nation within its territory is necessary exclusive and absolute. It is susceptible of no limitation not
imposed by itself…this full and absolute territorial jurisdiction being aligned to the attribute of
every sovereign, and being incapable of conferring extra territorial power, would not seem to
contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no
respect amenable to another, and being bound by obligations of the highest character not to degrade
dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another,
can be supposed to enter a foreign territory only under an expressed license or in the confidence
that the immunities belonging to his independent sovereign station, though not expressly
stipulated, are reserved by implication, and will be extended to him….This perfect equality and
absolute independence of sovereign and these common interests inhaling them to mutual

101
intercourse and an interchange of good offices with each other, have given rise to a class of cases
in which every sovereign is understood to waive the exercise of a part of that complete exclusive
territorial jurisdiction which has been stated to be the attribute of every nation.”

b) Restrictive immunity – A state can claim only restrictive immunity in exercising sovereign
functions and not commercial function. This is widely followed in international law. Case law-
Trendtex corporation v Central Bank of Nigeria – Court held that the purpose of a contract is
irrelevant to its destination as attracting absolute or qualified immunity.

Diplomatic & Consular Immunity

Diplomatic relations have traditionally been conducted through the medium of ambassadors.
With the advent of technology, the burden that was there on the ambassadors has been reduced.

I. Diplomatic immunity – immunity that a diplomat duly appointed can enjoy.

Vienna Convention on Diplomatic Relations, 1961 came into force in 1964.

Article 2 - The establishment of diplomatic relations between States, and of permanent
diplomatic missions, takes place by mutual consent.
Article 3 – Functions of a diplomat
1. The functions of a diplomatic mission consist, inter alia, in:
(a) Representing the sending State in the receiving State;
(b) Protecting in the receiving State the interests of the sending State and of its nationals, within
the limits permitted by international law;
(c) Negotiating with the Government of the receiving State;
(d) Ascertaining by all lawful means conditions and developments in the receiving State, and
reporting thereon to the Government of the sending State;
(e) Promoting friendly relations between the sending State and the receiving State, and developing
their economic, cultural and scientific relations.

102
Article 27 - immunities
The diplomatic bag shall not be opened or detained.
The diplomatic courier with the valid seal also enjoys the same protection.
Article 29 – Immunity from arrest
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form
of arrest or detention.
The receiving State shall treat him with due respect and shall take all appropriate steps to
prevent any attack on his person, freedom or dignity.

Article 30 – Immunity given to his residence

1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as
the premises of the mission.
2. His papers, correspondence and his property, shall likewise enjoy inviolability.

Article 31 – Immunity under civil matters

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case
of:
(a) A real action relating to private immovable property situated in the territory of the receiving
State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions.
(d) A diplomatic agent is not obliged to give evidence as a witness.
The immunity of a diplomatic agent from the jurisdiction of the receiving State does
not exempt him from the jurisdiction of the sending State.
Article 32 – Waiver of Immunity
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under
article 37 may be waived by the sending State.
2. Waiver must always be express.

103
To try a diplomat in the receiving state, the sending state should waive the immunity expressly.
To try a diplomat in a sending state, the requesting state should label him as “persona non grata”
and send him back to the sending state where he can be tried.

Other privileges – Article 34

1. No taxes can be levied. Only indirect taxes.
2. Tax on his private property but not on the property he holds for the State.
3. Registration and court fees may be levied if such transfer of property is not carried on
behalf of the sending state.

CONSULAR ACCESS/IMMUNITIES-

The Vienna Convention on Consular Relations is an international treaty that defines a framework
for consular relations between sovereign states. It codifies many consular practices that originated
from state custom and various bilateral agreements between states.

Consuls have traditionally been employed to represent the interests of state's or their nationals
at an embassy or consulate in another country. The Convention defines and articulates the
functions, rights, and immunities accorded to consular officers and their offices, as well as the
rights and duties of "receiving States" (where the consul is based) and "sending States" (the state
the consul represents).

VIENNA CONVENTION ON CONSULAR RELATIONS, 1963 Came into force in 1967

Article 2 - Establishment of consular relations
1. The establishment of consular relations between States takes place by mutual consent.
2. The consent given to the establishment of diplomatic relations between two States implies,
unless otherwise stated, consent to the establishment of consular relations.
3. The severance of diplomatic relations shall not ipso facto involve the severance of consular
relations.

Article 31- Inviolability of consular premises

104
1. Authorities of the receiving State shall not enter the consular premises unless they have
taken prior permission from the head counsel or his designee or by the diplomatic head of the
mission.
2. During emergency situations– authorities can enter without permission
3. If they commit grave crime – detain them.
4. Exempt from civil and criminal liabilities
5. No taxes can be levied.

STATE RESPONSIBILITY

It provides that whenever one state commits an internationally unlawful act against another state,
in- ternational responsibility is established between the two. A breach of an international
obligation gives rise to a requirement for reparation. The essential - characteristics of
responsibility hinge upon certain basic factors:

- first, the existence of an international legal obligation in force as between two particular
states;
- secondly, that there has occurred an act or omission which violates that obligation and
which is imputable to the state responsible, and
- Finally, that loss or damage has resulted from the unlawful act or omission.
- The law of State responsibility determines the consequence of a State’s failure to
comply with its international obligation to cease the violation and provide
reparations for any harm caused to another State.

Whenever a duty established by any rules of international law has been breached by act or
omission, a new legal relationship automatically comes into existence. The relationship is
established between the subject to which the act is imputable, who must respond by making
adequate reparation, and the subject who has a claim to reparation because of the breach of duty.
Thus, when a state has failed to comply with an international obligation and cause harm to
another State by invading its territory, refusing to grant privilege and immunities to its diplomats
detaining its citizens illegally, or sinking its ship – it is obliged to make reparations. If it refuses

105
to make good the damage or give full satisfaction, the injured State had a legal right to impose
military or economic sanctions. If the State is in breach to impose military or economic sanction.

Concept-

State Responsibility is the principle which establishes an obligation to make good any
violation of international law producing injury. As States are the conventional subjects of
international law, technically the principle of State responsibility applies only on the State-
to-State level. Duties owned to citizens are left out. Grotius – Maxim – “every fault creates
the obligation to make good the losses” -

United Kingdom Vs Spain

Responsibility is the necessary corollary of a right. All rights of an international character involve
international responsibility. If the obligation in question is not met, responsibility entails the duty
to make reparation.

Corfu Channel case

ICJ placed Albanians liability to Great Britain for failure to notify British Ships about mines in
the Albanian waters of the Corfu channel which exploded and damaged the ships on what the court
refers to as, “Certain General and Well recognized principles” including “every states obligation
not to allow knowingly its territory to be used for acts contrary to the rights of other states.

Chorzow Factory case

The Permanent Court of International Justice (PCIJ) observed that any breach of an engagement
involves an obligation to make reparation. Reparation is the indispensable complement of a failure
to apply a Convention, and there is no necessity for this to be stated in the Convention itself.

Law on state responsibility

ILC has adopted the Draft Article on the Responsibility of States for Internationally
Wrongful Act.

106
Objectives

● To formulate by way of codification and progressive development, the basic rules of

international law concerning the responsibility of the states for their internationally wrongful acts.

● State to be considered responsible for wrongful actions or omissions and legal consequences.

The Draft article divided into 4 part

1. The internationally wrongful act of a State; - deals with the requirements for the
international responsibility of a state to arise.
2. Content of International responsibility of a State; - deals with the legal consequence for
the responsible state of its internationally wrongful act in particular as they concern
cessation and reparation.
3. The implementation of the international responsibility of a State;- It identifies the state
or states which may react to an internationally wrongful act and specifies the modalities
by which this may be done, including in certain circumstances, by the taking of
countermeasures as necessary to ensure cessation of the wrongful act and
reparation for its consequences.
4. Part 4 contains certain general provisions applicable to the articles as a whole.

Responsibility of States for Internationally Wrongful Acts , 2001

● Article 1 - Every internationally wrongful act of a State entails the international
responsibility of that State.
● Article 2 - Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct consisting of an action or
omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.

Chapter II – Attributes of Conduct to a State

107
 ● Article – 4 - The conduct of any State organ shall be considered an act of that State under
international law, whether the organ exercises legislative, executive, judicial or any
other functions, whatever position it holds in the organization of the State.
● Article - 5 - Conduct of persons or entities exercising elements of governmental
authority
The conduct of a person or entity which is not an organ of the State under article 4 but
which is empowered by the law of that State to exercise elements of the governmental
authority shall be considered an act of the State under international law, provided the
person or entity is acting in that capacity in the particular instance.
● Article 8 - Conduct directed or controlled by a State-
The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact acting on the instructions of,
or under the direction or control of that State in carrying out the conduct.
● Article 9 - Conduct carried out in the absence or default of the official authorities
Any person performing governmental functions but there is absence or default of
official authorities.
● Article 11 - Conduct acknowledged and adopted by a State as its own
Conduct which is not attributable to a State under the preceding articles shall
nevertheless be considered an act of that State under international law if and to the extent
that the State acknowledges and adopts the conduct in question as its own.
Organs of State – Legislature, executive and judiciary Institutions empowered by law
Persons under the control of law- Performing governmental functions in absence of authority
Acknowledging and adopting the conduct by the state.

108
HOW TO ASCERTAIN STATE RESPONSIBILITY?

The law of state responsibility is concerned with the determination of whether there is a
wrongful act for which the wrong doing state is to be held responsible, what the legal
consequences are and how such as an obligation on the part of the wrong doing state to
restore the previous situation of to pay compensation and how such International
responsibility may be implemented as for instance through counter measures adopted by
the victim state such as reprisals or restorations.

Circumstances under with a state may be held responsible:

IL makes no distinction between tortious and contractual liability. The breach of a treaty
or customary obligation will give rise to the same remedy usually an award of damages
or a declaration. 1) An act of commission or omission that violates an obligation
established by a rule of IL in

force between the state responsible for the act and the state injured thereby.

The responsibility of the state does not require an act of malice, negligence or
carelessness on the part of any individual state agent. Fault on the part of the state or
any of its organs is all that is required. In Corfu Channel case the Court imposed liability
on Albania due to violation of a pre- existing obligation.

2) The wrongful or unlawful act must be imputable to the state as a legal person.
Immutability or aributability has the effect of indicating that the act in question is
an act of the state concerned.

(Responsibility of States for Internationally Wrongful Acts (ARSIWA) – refer above).

Summarily, in some cases, acts of private individuals accompanied by some acts or

omission on the part of the state for which the state becomes liable. (Article 8&11
ARSIWA)

1) Encouraging individuals to attack foreigners

109
 2) Failing to take reasonable care to prevent the individuals when an attack is
imminent
3) The obvious failure to punish the individuals concerned
4) Failure to provide the injured foreigner with an opportunity of obtaining
compensation from the wrong doers in the local court i.e. denial of justice
5) Obtaining some benefit from the individuals wrongful act, i.e. the police not
repossessing stolen property of an international and returning it to the rightful
owner.
6) Express ratification of the individuals’ act namely expressly approving it and
stating that the person was acting in the name of the state.

3) Loss or damage must have resulted from the unlawful act

WHAT PRECLUDES STATE RESPONSIBILITY

Justifiable acts causing loss or damage

An important consideration to be taken into account on establishing the responsibility of
a state is whether they are circumstances precluding wrongfulness. State practice and
state law as codified in the ILCDA show that there are certain circumstances in which
an act causing loss or damage may be justifiable in IL and consequently not actionable.
1. Consent
Consent to carry out activities that would otherwise be prohibited by IL renders those
activities lawful. This consent must be given before or at the same time as the violation.
Retrospective consent would constitute a waiver of the right to claim reparation.
However consent is not valid if it is directed to permitting activities contrary to jus cogens
such as consent for the foreign armed forces to enter the territory of another state to
massacre civilians or a specific ethnic group.
Consent will furthermore be vitiated by error, coercion or fraud. According to article 20
of the International Law Commission Draft Articles, valid consent by a state to the

110
commission of a given act by another state precludes the wrongfulness of that act in
relation to the former state to the extent that the act remains within limits of that consent.
2. Defense
International law recognizes that certain acts which would otherwise be unlawful are
when committed in exercise of the right of self-defense legitimate and do not give rise to
responsibility.
The law of self-defense finds expression in article 51 of the UN Charter which provides
that nothing in the charter shall impair the inherent right (by virtue of its sovereignty) of
the individual or collective self-defense if an armed attack occurs against a member of the
UN until the Security Council has taken measures necessary to maintain International
peace and security.
Self-defense can be resorted to on the violation of the right of territorial integrity, the
right for political independence, right to protection over nationals as well as some
rights of an economic nature.
Self-defense must limit itself to rejecting the armed attack and must not go beyond this
purpose.
State practice is not yet universally accepted but it is pre-empting.

Article 21 of the ILCDA provides that the wrongfulness of the act of a state is precluded
if the act constitutes a lawful measure of self- defense taken in conformity with Charter
of the UN.

Consequently
1. The victim of the violation must not occupy the violator state territory unless this
is quickly required by the need to hold the aggressor in check and prevent the
continuation of aggression by other means.
2. Self-defense must come to an end as soon as the security council comes in and
takes over the task of putting to an end of the violation

111
 3. Self-defense must cease as soon as its purpose i.e. to repel the armed attack has
been achieved
Military action over stepping mere rejection of the aggression is neither authorized nor
condoned by article 51 of the charter and general IL.

● Self-defense is normally a reaction to attack by another state. What about the case
of al Shabab on their attack in Kenya? Al Shabab is not supported by state of
Somalia yet we attack Somalia territory.
● Article 21 of the ILCDA simply provides that the wrongfulness of the act of a state
is precluded if the act constitutes a lawful measure of self-defense taken in
conformity with Charter of the UN.
● In the event of a breach of IL, the injured state as an individual state is legally
entitled to disregard an international obligation owed to the delinquent state by
taking counter measures.

A counter measure
In the event of a breach of IL the injured state as an individual state is legally entitled to
disregard an international obligation owed to the delinquent state by taking counter
measures. A counter measure is an illegal act that is rendered lawful as a response to a
prior illegal act. Counter measures must fulfill some basic conditions and in addition
subject to a number of limitations.

The conditions are that

1. The injured state is not allowed to resort to taking counter measures as soon as a
wrong occurs. It must first call upon the responsible state to discontinue
wrongful action or to make reparation.
2. If the secession of the wrong is not obtained or no reparation is made i.e. there is
an unsatisfied demand, the injured state must endeavor to obtain through
negotiations pursuan to the general obligation under the UN Charter for

112
 Peaceful Settlement of the Dispute( read article 33 UN Charter). Only when the
author of the wrong doing refuses to engage in negotiations or willfully or
malafide hampers the working of other means of settlement can the injured
state consider in good faith that no other choice is available except
countermeasures.

The taking of counter measures is subject to a no. of limitations

1. Counter measures may not involve the threat or use of force contrary to the UN
Charter.
2. Counter measures may not disregard International rules for the protection of
human rights or the dignity and welfare of human beings in general.
3. Counter measures may not disregard implications imposed by jus cogens
4. Countermeasures may only target the state responsible for an international

wrongful act and must not breach the rights of 3rd states.
5. Counter measures must not be out of proportion with the breach by the

delinquent state. In other words the counter measures must be balanced against
the injury cause by the wrong doing state.

Article 22 of the ILC

Draft Articles
provides that the wrongfulness of the acts of a state not in conformity to an international
obligation towards another state is precluded if and to the extent that the act constitutes
a countermeasure against the latter state.

Articles 49-54 provide for the conditions of and limitations to which counter measures
are subject. Closely related to but different is the application of a sanction authorized by
an international or regional organization pursuant to its statutory mandate, whereas
counter measures are taken by individual states, sanctions are collective responses and
are taken within an international framework. The imposition of sanctions will not give

113
rise to the responsibility with the result and cause of damages thus the preventive
enforcement actions by the UN organs of other regional organizations does not create
any responsibility for the ensuing loss or damages.

Force Majeure
Force majeure will preclude the wrongfulness of an act or omission by one state in
violation of its obligation owed to another. Article 23(1) ILCDA defines force majeure as the
occurrence of an irresistible force or of an unforeseen event beyond the control of the state
making it materially impossible in the circumstances to perform the obligation.

Under article 24 of the ICDL the wrongfulness of an act of a state not in conformity with the
international obligation of that state is precluded if the author of the act in question has no other
reasonable way in a situation of distress of saving the author's life or the other lives entrusted to
the authors care. Under Paragraph 2 force majeure does not apply if
a. The occurrence of force majeure either alone or in combination with other factors
from the conduct of the state in invoking it
b. If the state has assumed the risk of that occurrence
In state practice force majeure is generally invoked to satisfy involuntary or at least an
intentional conduct and relates to the irresistible force or an unforeseen event against
which the state has no remedy and which makes it “materially impossible” for the state to
act inconformity with its obligations.

It is often asserted that if a state coerced by necessity to save itself from great and imminent
danger which it has not itself induced and which it cannot in any other way escape takes action
violating the rights of another state such action does not engage its international responsibility.
The danger it is to avoid must be of such a nature as to put on jeopardy the existence of the state,
its territorial or personal statute, its government or form of government or to limit or even make
disappear its independence or International capacity. Necessity is defined in article 25 (1) of
the ILC Drafts Articles as the condition where an otherwise unlawful act is performed and such
act

114
a. Is the only means for the state to safeguard an essential interest against a grave and
imminent peril
b. Does not seriously impair an essential interest of the state or states towards which
the obligation exists or of the international community as a whole.

Under Paragraph 2 necessity may not be invoked by a state as a ground for precluding
wrongfulness if
a. The international obligation in question excludes the possibility of invoking
necessity or
b. The state has contributed the situation of necessity
c. Distinction between distress and necessity is that while in distress the wrongful act
is justified by the urgent necessity to save the life of the person performing the act or the
lives of other individuals entrusted to the state necessity aims at warranting a breach of
IL imposed by the need to avert a serious danger for the whole state or the population of
part thereof of the state.

Problem Based Question- Relevant Points for Unit 7

ARSIWA-
Art. 1- Every International Wrongful Act entails International Responsibility of State

Art. 2 Elements of Wrongful Act (WA) - an act/omission; attributable to state;

constitutes breach of an international obligation

Art. 4 Conducts of Organs of a State

1. Acts attributable to organs of a government/ territorial unit of a state

115
 2. Organs include Person/Entity in accordance with internal laws of the State

Article 8 Conduct Directed/ Controlled by a State - imp to write this provision

● The conduct of a person or group of persons shall be considered an act of a State
under international law
● if the person or group of persons is in fact acting on the instructions of, or
● under the direction or control of, that State in carrying out the conduct.

Article 11 Conduct Acknowledged/Accepted by the State

Article 13 Bound by an international obligation in force at the time of the act

Circumstances Precluding Wrongfulness

Art. 20 Consent
Art. 21 Self Defence- Art 51 of UN Charter
Art. 23 Force Majeure
Art. 25 Necessity
Art. 26 Compliant to Peremptory Norms - relevant
Article 42
Invocation of responsibility by an injured State A State is entitled as an injured State to
invoke the responsibility of another State if the obligation breached is owed to:
(a) that State individually; or
(b) a group of States including that State, or the international community as a whole, and
the breach of the obligation:
(i) specially affects that State; or
(ii) is of such a character as radically to change the position of all the other States to which
the obligation is owed with respect to the further performance of the obligation

Art. 49 and Art. 53- Countermeasures to be temporary and revocable

116
Art. 50, Obligations not affected - Human Rights; Humanitarian Law; Diplomatic
relations
Art. 51 Countermeasures to be proportional to the gravity of the Wrongful Act
Art. 52 Notify the state and negotiate
Art. 54 Other interested states can also invoke countermeasures

3 Control Tests for Attribution under Art. 8 : 1 in Nicaragua and 2 in Tidac:

Effective Test Control Test laid down in Military and Paramilitary Activities in
and against Nicaragua

(Nicaragua v. United States of America)

It required for such attribution a very exacting test, namely that of ‘ effective control ’ by
the US over contras ’ actions in breach of international humanitarian law, a test the Court
held had not been met in the case at bar. By such ‘ effective control ’ , the Court meant
that the US should have ‘ directed or enforced the perpetration of the acts contrary to
human rights and humanitarian law alleged by the applicant State.

---It seems clear from these words that by ‘ effective control ’ the Court intended either
(1) the issuance of directions to the contras by the US concerning specific operations
(indiscriminate killing of civilians, etc.), that is to say, the ordering of those operations by
the US, or (2) the enforcement by the US of each specific operation of the contras , namely
forcefully making the rebels carry out those specific operations. ---

Prosecutor v. Tadic : The Tadic Test

117
Two degrees of control :
(i) one for acts performed by private individuals engaged by a state to perform specific
illegal acts in the territory of another state (or for individuals commissioned to carry out
legal actions, who act however ultra vires breaching international
law);
for such actions specific instructions concerning the performance of each action were
required in order to attribute the action to the instructing state, or else subsequent public
approval of each specific action or conduct was required; this was clearly the ‘ effective
control ’ test set out by the ICJ in Nicaragua .

(ii) another degree of control over actions by organized and hierarchically structured
groups , such as military or paramilitary units; in this case overall control by the state
over the group was sufficient, hence specific instructions were not required for each
individual operation.
Such ‘ overall control ’ resided not only in equipping, financing or training and
providing operational support to the group, but also in coordinating or helping in the
general planning of its military or paramilitary activity.

Nicaragua case test - supported by General Practice, upheld in Tidac case and in recent
Bosnian Genocide Judgement

India – Pakistan Issue:

The India-Pakistan conflict has been largely conducted via proxies raising issues of state
responsibility and the taking of legitimate countermeasures. As to establishing Pakistan’s
international responsibility, India states that Pakistan uses organisations based in
Pakistan to perpetrate terrorism/attacks in India (eg: 2008 Mumbai terrorist attacks
(26/11)). Without the active support of certain elements of Pakistani authorities to LeT,
the attack would not have been possible.Adopting ‘strategic restraint’, the then Indian
government did not militarily respond to 26/11 despite evidence of Pakistani

118
involvement making the latter responsible in international law for those attacks. But due
to continued attacks by Pakistan-based groups, India is willing to impose
countermeasures in a manner that, Pakistani exports to India will attract duties, India
may repudiate key aspects of Indus Waters Treaty, 1960 post the Pulwana attack, etc. The
lawfulness of any such countermeasure (if taken) deserves careful analysis for it must be
proportionate (Draft Article 51).

Crucially, countermeasures should not amount to the use of force (Draft Article 50(1)(a));
so the laws on the use of force will continue to govern situations of armed conflict.

Souce: http://www.ejil.org/pdfs/18/4/233.pdf - has extra stuff, if required, open it during

the exam

UNIT 8- LAW OF THE SEA

The law of the sea is a body of customs, treaties, and international agreements by which
governments maintain order, productivity, and peaceful relations on the sea.

● UNCLOS - 1 -
The First United Nations Conference on the Law of the Sea (UNCLOS I) from February 24 until
April 29, 1958. UNCLOS I adopted the four conventions, which are commonly known as the 1958
Geneva Conventions:
1. The Convention on the Territorial Sea and Contiguous Zone;
2. The Convention on the High Seas;
3. The Convention on Fishing and Conservation of the Living Resources of the High Seas;
and
4. The Convention on the Continental Shelf.

119
● UNCLOS - 2 - The Second United Nations Conference on the Law of the Sea (UNCLOS II)
from March 17 until April 26, 1960. UNCLOS II did not result in any international agreements.
The conference failed to fix a uniform breadth for the territorial or establish consensus on
sovereign fishing rights.

● UNCLOS - 3 - The Third United Nations Conference on the Law of the Sea (UNCLOS III)
from 1973 to 1982.
Over 160 nations participated in the 9-year convention, which finally came into force on November
14, 1994, 21 years after the first meeting of UNCLOS III and one year after ratification by the
sixtieth state. The first sixty ratifications were almost all developing states. A major feature of
the convention included the definition of maritime zones- the territorial sea, the contiguous
zone, the exclusive economic zone, the continental shelf, the high sea, the international sea-
bed area and archipelagic waters. The convention also made provision for the passage of ships,
protection of the marine environment, freedom of scientific research, and exploitation of resources.

Maritime zones – normal waters

1. Internal Waters – Water that exists up to baseline.
2. Territorial Sea – 12 Nautical miles from the baseline
3. Contiguous zone – 24 nautical miles from the baseline or 12 nautical miles from territorial
waters.
4. Exclusive economic zone – 200 nautical miles from the baseline.
5. Continental Shelf – 200 nautical miles that can be extended up to 350 nautical miles after
the territorial waters.
6. High Seas- Under no state’s control.

NOTE - THE DIFFERENCE BETWEEN MARITIME ZONES OF NORMAL COASTAL

STATE AND ARCHIPELAGO IS THAT THE EEZ IN ARCHIPELAGO EXTENDS FROM
TERRITORIAL WATERS AND SO IS THE CASE EVEN WITH CONTINENTAL SHELF
WHERAS IN NORMAL COASTAL STATE THE EEZ EXTENDS FROM BASELINE AND
CONTINENTAL SHELF EXTENDS AFTER TERRITORIAL WATERS.

120
1. TERRITORIAL WATERS
Part II of UNCLOS III deals with territorial waters.
Article 2 -
- Legal status of the territorial sea, of the air space over the territorial sea and of its bed and
subsoil
- The sovereignty of a coastal State extends, beyond its land territory and internal waters
and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt
of sea, described as the territorial sea.
- This sovereignty extends to the air space over the territorial sea as well as to its bed and
subsoil.
- The sovereignty over the territorial sea is exercised subject to this Convention and to other
rules of international law.

Article 3 - Breadth of the territorial sea

- Every State has the right to establish the breadth of its territorial sea up to a limit not
exceeding 12 nautical miles, measured from baselines determined in accordance with this
Convention.

Article 7 - Straight baselines.

- In localities where the coastline is deeply indented and cut into, or if there is a fringe of
islands along the coast in its immediate vicinity, the method of straight baselines
joining appropriate points may be employed in drawing the baseline from which the
breadth of the territorial sea is measured.

ANGLO- NORWEGIAN FISHERIES CASE

UK v.Norway (can also be used for persistent objector)

Facts

121
The parties involved in this case were Norway and the United Kingdom, of Great Britain and
Northern Ireland. The implementation of the Royal Norwegian Decree of the 1935 was met with
resistance from the United Kingdom. The decree covers the drawing of straight lines, called
“baselines” 4 miles deep into the sea. This 4 miles area and 10 miles from the coast are reserved
fishing exclusive for Norwegian nationals. UK contested the drawing of baselines and so filed a
case before ICJ.

Issues

1. Whether the baseline that is drawn by the Norway is in consistent with International Law?

Decision

Generally ICJ do not follow doctrine of precedent, in this case the Court deviated from previous
judgements and upheld the legitimacy of the baseline principle of Norway owing to its
geographic indentation, islands and islets. The international customary law has been a law
of reference in the court arguments. Customary international law does not recognize the rule
according to which belts of territorial waters of coastal states is to be measured. More so
public international law has been relied upon in this case. It regulates relations between states; the
United Kingdom and Norway.

DELIMITATION OF MARITIME ZONES BETWEEN OPPOSITE OR ADJACENT

STATES

- Difficult for States at times to extend their jurisdiction as far seawards as international law
permits because of the claims of the opposite or adjacent coastal states due to the
overlapping maritime zones.

Article – 15 - baseline method

- In the absence of agreement to the contrary, states may' not extend their territorial seas
beyond the median, or equidistance line, unless there are historic or other (special'
circumstances that dictate otherwise. This (equidistance/ special circumstances' rule

122
 has been accepted by the ICJ as customary international law and only in exceptional cases
will the equidistance line not form the basis of the boundary between overlapping territorial
seas.
- In the North Sea Continental Shelf case (1969) the ICJ held that article 6 of the 1958
Convention on the Continental Shelf “did not embody or crystallize any pre-existing or
emergent rule of customary law, according to which the delimitation of continental shelf
areas between adjacent States must, unless the Parties otherwise agree, be carried out on
an equidistance/special circumstances basis” and insisted that “delimitation must be the
object of agreement between the States concerned, and that such agreement must be
arrived at in accordance with equitable principles”

Juridical Nature of the Territorial Sea-

- The territorial sea forms a part of the territorial sovereignty of the costal state automatically.
A newly form independent state with a cost will be entitled to a territorial sea automatically.
The territorial sea forms an undeniable part of the land territory to which it is bound
- The coastal states sovereignty over the maritime belt and extensive jurisdictional control is
indisputable and must be in accordance with international law
- The only restriction upon sovereignty arises from the right of the other nations to
innocent passage through the territorial sea. The coastal states have unrestricted
jurisdiction over their internal waters on the other hand.
- Article 1 and 2 of the Convention on the Territorial Sea 1958- coastal state has
sovereignty over the territorial sea, airspace, seabed and subsoil, subject to
international provisions of the convention and of international law.
- The coastal states may desire to exclude foreign nationals and vessels from fishing
within its territorial sea and (subject to agreements to the contrary) from costal
trading (known as cabotage), reserve these activities for its own.
- Coastal states exercise their power extensively with regards to security and customs matter.
But the exercise of the jurisdiction and sovereignty with regards to international law will
depend on municipal legislations.

123
●Article 8 - Internal waters
1. Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea
form part of the internal waters of the State.
2. Where the establishment of a straight baseline in accordance with the method set forth in
article 7 has the effect of enclosing as internal waters areas which had not previously been
considered as such, a right of innocent passage as provided in this Convention shall exist in
those waters.

Rights -
Article 17 Right of innocent passage-
Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of
innocent passage through the territorial sea.
Article 18 Meaning of passage
1. Passage means navigation through the territorial sea for the purpose of:
(a) traversing that sea without entering internal waters or calling at a roadstead or port facility
outside internal waters; or
(b) proceeding to or from internal waters or a call at such roadstead or port facility.
2. Passage shall be continuous and expeditious.
However, passage includes stopping and anchoring, but only insofar as the same are incidental to
ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of
rendering assistance to persons, ships or aircraft in danger or distress.
Article 24 Duties of the coastal State
1. The coastal State shall not hamper the innocent passage of foreign ships through the territorial
sea except in accordance with this Convention. In particular, in the application of this Convention
or of any laws or regulations adopted in conformity with this Convention, the coastal State shall
not:
(a) impose requirements on foreign ships which have the practical effect of denying or impairing
the right of innocent passage; or
(b) discriminate in form or in fact against the ships of any State or against ships carrying cargoes
to, from or on behalf of any State.

124
2. The coastal State shall give appropriate publicity to any danger to navigation, of which it has
knowledge, within its territorial sea.
Article 25 Rights of protection of the coastal State
1. The coastal State may take the necessary steps in its territorial sea to prevent passage which is
not innocent.
2. In the case of ships proceeding to internal waters or a call at a port facility outside internal
waters, the coastal State also has the right to take the necessary steps to prevent any breach of
the conditions to which admission of those ships to internal waters or such a call is subject.
3. The coastal State may, without discrimination in form or in fact among foreign ships, suspend
temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such
suspension is essential for the protection of its security, including weapons exercises. Such
suspension shall take effect only after having been duly published.

CONTIGUOUS ZONE
● Article 33
- In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal
State may exercise the control necessary to:
(a) Prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea;
(b) Punish infringement of the above laws and regulations committed within its
territory or territorial sea.
- The contiguous zone may not extend beyond 24 nautical miles from the baselines from
which the breadth of the territorial sea is measured.
- Right of Innocent Passage

Enrica Lexie Award

- The convention is silent if criminal laws can be extended to the contiguous zone.
For India, the 1976 Maritime Zones Act and a 1981 Home Ministry notification
extends India’s criminal jurisdiction all the way up to 200 nm. When the matter was

125
 raised before the tribunal, Italy argued that India’s laws were contrary to the
provisions of the UNCLOS.
- As per UNCLOS, roughly stated, the extent of the Contiguous Zone is earmarked
at 24 nautical miles from the coastal ‘baselines’, of which the initial 12 nautical
miles forms part of the Territorial Sea of a coastal state. Thus, for any such coastal
state, its ‘criminal jurisdiction on board a foreign ship’ extends to only the
Territorial Sea and not the extended Contiguous Zone (Article 27 UNCLOS).
- In fact, concerning the Contiguous Zone, the UNCLOS explicitly lays down
(Article 33 UNCLOS) that a coastal state may only exercise necessary control
and punish infringement of its customs, fiscal, immigration or sanitary laws
and regulations as may have occurred within its territory or within the above-
outlined Territorial Sea; making it manifest that India only exercises ‘sovereign
rights’ over zones beyond the Territorial Sea and that ‘sovereignty of India’ only
extends till its territorial waters.

EXCLUSIVE ECONOMIC ZONE

● Article 55- Specific legal regime of the exclusive economic zone
- Extends beyond the territorial sea
- the range of matters reserved for the coastal State are so extensive that the Zone is
comprised of neither territorial nor high seas but is considered to be 'sui generis',
and subject to a distinct jurisdictional framework.

● Article 56- Rights, duties and jurisdiction of the coastal state over EEZ

- In the exclusive economic zone, the coastal State has:

(a)sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living and other activities for
the economic exploitation and exploration of the zone, such as the production of energy
from the water, currents and winds.
(b) jurisdiction as provided for in the relevant provisions of this Convention with regard
to:

126
 (i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(c) the protection and preservation of the marine environment;
(d) other rights and duties provided for in this Convention.

- As regards jurisdiction over the resources of the seabed and subsoil, it is aligned with the
continental shelf (Article 56(3))

● Article 57 - Breadth of the exclusive economic zone

- The exclusive economic zone shall not extend beyond 200 nautical miles from the baseline.

Article 58 -
- Three of the freedoms of the seas expressly mentioned in the convention-navigation,
overflight, and laying cables and pipelines, and related activities-are to be exercised
by all States within an EEZ in accordance with the general convention framework
provided for in Articles 87-116 for the high seas

Article 59-

- whether a matter falls within the jurisdiction of the coastal State 'should be resolved on the
basis of equity and in the light of all the relevant circumstances, taking into account the
respective importance of the interests involved to the parties as well as to the international
community as a whole’
- EEZ also known as patrimonial sea- mutual regard to be followed by coastal state in
reference to other states.

CONTINENTAL SHELF
Article 76 - Definition of Continental shelf
- Consists of the seabed and subsoil of the shelf, the slope and the rise extends from 200
nautical miles from the territorial waters.
- It recognizes a 200nm breadth limit as an independently valid criterion, and provides
complex guidelines for locating the ‘outer edge of the continental margin’, if that feature
lies beyond 200nm from the relevant baselines. Article 76(5) sets maximum limits for the

127
 outer continental shelf, either 350nm from the relevant baselines or ‘100 nautical miles
from the 2,500 metre isobath’.

Article 77 - Rights of the coastal state over continental shelf

- The coastal State exercises over the continental shelf sovereign rights for the purpose of
exploring it and exploiting its natural resources.
- The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does
not explore the continental shelf or exploit its natural resources, no one may undertake
these activities without the express consent of the coastal State.
- The term ‘sovereignty’ was deliberately avoided, as it was feared that this term, redolent
of territorial sovereignty (which operates in three dimensions), would prejudice the status
as high seas of the waters over the shelf.

Article 78-

- While the area within a claimed 200nm EEZ is not designated ‘high seas’, UNCLOS
Article 78(1) provides that ‘the rights of the coastal State over the continental shelf do not
affect the legal status of the superjacent waters or of the airspace above those waters’.
- In the absence of the acclaimed EEZ and also when the shelf extends beyond 200nm, the
superjacent waters will be legally considered the high seas. When an EEZ exists, the
superjacent waters remain subject to most high seas freedoms in accordance with custom
and UNCLOS Article 58.
- Article 78(2) provides that ‘the exercise of the rights of the coastal State over the
continental shelf must not infringe or result in any unjustifiable interference with
navigation and other rights and freedoms of other States as provided for in this Convention’

Article 81-

- The coastal state ‘shall have the exclusive right to authorise and regulate drilling on the
continental shelf for all purposes.

A major objective has been to provide a stable basis for operations on the seabed and to avoid
squatting by offshore interests. Thus ‘sovereign rights’ inhere in the coastal state by law and are
not conditioned on occupation or claim. They are indefeasible except by express grant. While

128
coastal states apply various parts of criminal and civil law to activities in the shelf area, it is by no
means clear that they do this as an aspect of their territorial or other rights in the shelf area.

Landlocked Countries

● Covered only by land.

● Article 69
- All landlocked countries have the right to participate on an equitable basis considering
relevant geographical location and economic conditions shall enter into bilateral, sub
regional or regional agreements.
- Eg- Mauritius- seychelles agreement

HIGH SEAS
Art. 86
Includes All parts of the sea that are not included in the exclusive economic zone, in the territorial
sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.

Article 87 Freedom of the high seas

1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas
is exercised under the conditions laid down by this Convention and by other rules of international
law.
It comprises, inter alia, both for coastal and land-locked States:
(a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and
pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations
permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the
conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the interests of other States
in their exercise of the freedom of the high seas, and also with due regard for the rights under this
Convention with respect to activities in the Area
Article 88 Reservation of the high seas for peaceful purposes

129
Article 90 Right of navigation Every State, whether coastal or land-locked, has the right to sail
ships flying its flag on the high seas.

The Right of Innocent Passage- write Corfu Channel Case

Article 45 Innocent passage 1. The regime of innocent passage, in accordance with Part II, section
3, shall apply in straits used for international navigation: (a) excluded from the application of the
regime of transit passage under article 38, paragraph 1; or (b) between a part of the high seas or an
exclusive economic zone and the territorial sea of a foreign State. 2. There shall be no suspension
of innocent passage through such straits.
· The right of foreign merchant ships, distinct from warships) to pass unhindered through
the territorial sea of a coast has been a customary international law, notwithstanding
the sovereignty over the territorial sea of the costal state.
· Article 17 of the 1982 Convention lays down that ships of all states, whether coastal or
land-locked, enjoy the right of innocent passage through the territorial sea.
· Article 14 of the Convention on the Territorial Sea 1958 further elaborates this by stating
that the coastal state must not hamper innocent passage and must publicize any danger
to navigation in the territorial sea of which it is aware.
· Article 18 of the 1982 Convention refers to passage as the navigation through the
territorial sea for the purpose of crossing the sea without entering internal waters or of
proceeding to or from that sea without entering internal waters or of proceeding to or
from internal waters, and includes temporary stoppages, but only if they are incidental
to ordinary navigation or necessitated by distress or force majeure. These do not include
coastal trade (cabotage) or fishing. Under Article 18(2), passage must be ‘continuous
and expeditious’.
· Article 17 of the 1958 Convention states that foreign ships must comply with the coastal
states regulations, in so far as they are in accordance with international law with regards
to navigation and transportation, which was further elaborated under Article 21(1) of
the 1982 Convention and about designated sea lanes under Article 22– breach of these
laws do not constitute non innocent passage but merely makes the violating states liable
for prosecution, unless Article 19 has been infringed.

130
 · Article 14(4) of the 1958 Convention states that a passage ceases to be innocent if is
prejudicial to the peace, good order or security of the coastal state and in case of foreign
fishing vessels fail to adhere to the laws and regulations as established by the coastal
states, the coastal states may make and publish to prevent these ships from fishing in
the territorial sea.
· Coastal states can temporarily suspend the passage of foreign vessels if it is essential
for security reasons, provided that such suspension as been published and does not
cover international straits.
· Article 19(2) of the 1982 Convention, in accordance with Article 14(4) of the 1958
Convention provides what constitutes prejudicial passage and activities that are not
having direct bearing on passage.
· Furthermore, in this case, the burden of proof was shifted from the coastal state to other
party with regards to establishing that the passage was innocent.
· Article 24 of the 1958 Convention further states that the coastal states shall not hamper
the innocent passage of the foreign ships by imposing requirements that are equivalent
to denying or impairing their right to passage or by discrimination.
· The provision is exhaustive as the ship passing through the territorial sea is in innocent
passage as long as it is not engaged in any activities laid down in article 19(2) and is in
conformity with the coastal state laws and regulations adopted according to Article 21,
22, 23 and 25 of the 1982 Convention.
· Warships are therefore viewed to have indeed a right of innocent passage through the
territorial sea and one that does not necessitate prior notification or authorization.
Article 30 of the 1982 Convention specifies that the coastal state may require the
warship to leave the territorial sea immediately, upon non-compliance of the laws and
regulations of the Coastal state.

Jurisdiction of coastal state over the foreign ships-

· The criminal jurisdiction can only be exercised by the coastal states over the foreign
ships passing through the territorial sea, with regards to the arrest of any person or the

131
 investigation of any matter connected with a crime committed on board ship, as
provided under Article 27(1) of the 1982 Convention and reaffirmed in Article 19(1)
of the 1958 Convention.
· Article 27(1) provides that jurisdiction over a foreign ship passing innocently through
the coastal state’s territorial waters can only be exercised if: (a) the consequences of
the crime extend to the host state; (b) the crime is of such a nature as to disturb the
peace of the coastal state or the good order of its territorial sea; (c) the assistance of the
coastal state has been requested by the master of the foreign ship or a diplomatic or
consular official of its flag state; or (d) such measures are necessary for the suppression
of illicit traffic in narcotic drugs or other psychotropic substances.
· The coastal state does not lose its right to arrest the foreign ship upon notifying the flag
state, if the foreign ship has entered the territorial sea from the coastal state’s internal
waters.
· Article 28(1) of the 1928 Convention provides that the coastal state should not stop or
divert a foreign ship passing through the territorial sea for the purpose of exercising its
civil jurisdiction in relation to a person on board. Likewise, Article 28(2) provides that
the coastal state may not levy execution against or arrest the foreign ship for the pursuit
of any civil proceedings, except in cases where the liability is incurred by the ship
during the passage.
· But if the foreign ship is passing through the territorial sea after leaving internal waters
or has dropped anchor in the territorial sea in a manner inconsistent with innocent
passage, jurisdiction may be exercised under Article 28(3).
· As to foreign warships or government vessels operating for non- commercial purposes,
Article 32 of the 1928 Convention preserves their customary immunity. Such vessels
must still comply with the rules applicable to all ships in exercising innocent passage
but in the event of violation the most that the coastal state can do is require the
offending vessel to depart its territorial sea under Article 30. In the event that the non-
compliance of such a vessel results in any loss or damage to the coastal state, the flag
state bears responsibility under Article 31.
· Navigation- Not regulated by UNCLOS under internal waters- in case of territorial
waters applicable in deciding innocent passage

132
 · Overfishing and laying submarine cables- not allowed in both internal and territorial
waters??
· Scientific Research- not allowed by foreign ship in internal water but with the Costal
States consent, can be conducted in territorial waters
· Imposition of International legislations over the territorial waters can be done only by
the Costal states and this must not hamper the innocent passage.

Flag state Jurisdiction over the High Seas-

- Flag States have been given the right to sail ships on the high seas and the right to fix
conditions for registering ships under their flag and giving their nationality to these ships,
vide Art. 90 and 91 of UNCLOS
- The UNCLOS1 Article 92(1) says that the flag State has “exclusive jurisdiction” over ships
on the high seas. This means that the flag State may legislate over the ship, adjudicate over
it, and use force on or against it. No other State may exercise jurisdiction over the ship.
The goal of the
- Maintenance of order on the high seas has rested upon the concept of the nationality of the
ship, and the consequent jurisdiction of the flag state over the ship. It is, basically, the flag
state that will enforce the rules and regulations not only of its own municipal law but of
international law as well.
- A ship without a flag will be deprived of many of the benefits and rights available under
the legal regime of the high seas. The nationality of the ship will depend upon the flag it
flies, but article 91 of the 1982 Convention also stipulates that there must be a ‘genuine
link’ between the state and the ship,
- This was intended to check the use of flags of convenience operated by states such as
Liberia and Panama, which would grant their nationality to ships requesting such because
of low taxation and the lack of application of most wage and social security agreements.
requirement of a ‘genuine link’ really only amounts to a duty to exercise jurisdiction over
the ship in an efficacious manner, and is not a pre-condition for the grant, or the acceptance
by other states of the grant, of nationality.
- The tribunal has also confirmed that the requirement of a genuine link was in order to
secure effective implementation of the duties of the flag state and not to establish criteria
by reference to which the validity of the registration of ships in a flag state may be
challenged by other states.
- Ships are required to sail under the flag of one state only and are subject to its exclusive
jurisdiction (save in exceptional cases). Where a ship does sail under the flags of more than

133
 one state, according to convenience, it may be treated as a ship without nationality and will
not be able to claim any of the nationalities concerned.

A ship that is stateless does not fly a flag, mayb be boarded and seized on the high sea. This point
was accepted by the Privy Council in the case of Naim Molvan v. Attorney-General for
Palestine, which concerned the seizure by the British navy of a stateless ship attempting to convey
immigrants into Palestine.

The basic principle relating to jurisdiction on the high seas is that the flag state alone may exercise
such rights over the ship. This was elaborated in the Lotus case where it was held that ‘vessels on
the high seas are subject to no authority except that of the state whose flag they fly. This exclusivity
is without exception regarding warships and ships owned or operated by a state where they are
used only on governmental non-commercial service. Such ships have, according to articles 95 and
96 of the 1982 Convention, ‘complete immunity from the jurisdiction of any state other than the
flag state.

As per Art. 94 UNCLOS, the flag State is under the duty to exercise effective jurisdiction and
control over administrative, technical and social matters on their ships on the high seas

Article 94(2) expands on the obligations that the flag State needs to fulfill when allowing
ships to fly its flag

• Maintain register of ships containing particulars of ships flying its flag – Art. 94(2)(a)
• Assume jurisdiction over the ship, the master, officers and crew - Art. 94(2)(b)

• Take measures regarding safety of navigation and seaworthiness of the ship, in particular with
respect to:

- construction and equipment of the ship -Art. 94(3)(a)

- radio communications and prevention of collision -Art. 94(3)(c)

- the pre-registration and post registration surveys of ships by approved surveyors - Art. 94(4)(a)
- the presence on board of appropriate nautical charts and publications - Art. 94(4)(a)
- labor conditions and safe manning of the ship -Art. 94(3)(b) - training and certification of officers
and crew -Art. 94(4)(b)
• Ensure that the measures taken for exercising jurisdiction and control over the ships plying its
flag conform to international rules and practices –Art. 94(5)

134
• Carry out an investigation whenever another state reports inadequate exercise of control or
jurisdiction over any ship flying its flag and take any remedial action where appropriate – Art.
94(6)
• Carry out or cooperate with other States in the carrying out of investigations in any case of marine
casualty or incident of navigation – Art 94(7)
• Flag State duties, with respect to ships registered under a particular flag, as listed under Article
94 are not meant to be exhaustive.
Article 97

Penal jurisdiction in matters of collision or any other incident of navigation

1. In the event of a collision or any other incident of navigation concerning a ship on the high seas,
involving the penal or disciplinary responsibility of the master or of any other person in the service
of the ship no penal or disciplinary proceedings may be instituted against such person except before
the judicial or administrative authorities either of the flag State or of the State of which such person
is a national.

2. In disciplinary matters, the State which has issued a master's certificate or a certificate of
competence or licence shall alone be competent, after due legal process, to pronounce the
withdrawal of such certificates, even if the holder is not a national of the State which issued them.
3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any
authorities other than those of the flag State

Right to Hot Pursuit- (exception to exclusive flag state jurisdiction)

Maritime hot pursuit evolved as a customary international law doctrine' before being first codified
into an international treaty by art 23 of the 1958 Geneva Convention on the High Seas (the High
Seas Convention).' It now has sanction of state practice and opinio juris.
Article 23 of the High Seas Convention was carried forward to art 111 of UNCLOS in 1982, and
contains a number of procedural requirements for the pursuit to be considered legitimate. The
International Tribunal for the Law of the Sea (ITLOS) held in the M/V Saiga (No 2) 2) (Saint
Vincent and the Grenadines v Guinea) case that these procedural requirements are cumulative
and that "each of them has to be satisfied for the pursuit to be legitimate under the Convention".

The doctrine of maritime hot pursuit, codified in art 111 of the 1982 United Nations Convention
on the Law of the Sea (UNCLOS),' recognises that a vessel, if it has committed a violation of the

135
laws of a foreign state while in that state's sovereign or territorial waters, may be pursued onto the
high seas and seized.
The right to pursue a vessel and seize it on the high seas is an exception to two fundamental
principles of international law: first, the freedom of navigation upon the high seas, and secondly,
the principle that a ship is subject to the exclusive sovereignty of the state whose flag it flies.

Article 111
- Article 111(1) Hot pursuit may be undertaken when the authorities of the coastal state have
good reason to believe that a foreign ship has violated applicable laws and regulations of
that state. Such pursuit must be commenced when the ship or one of its boats is within the
internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the
pursuing state and may only be continued outside that zone if the pursuit has not been
interrupted.
- Article 111(2) applies the right of hot pursuit mutatis mutandis to violations of the laws of
the territorial state in the EEZ or the continental shelf, including safety zones around
continental shelf installations.
- Article 111(3) the right of hot pursuit is exhausted as soon as the ship pursued enters the
territorial waters of another state, whether or not the flag state.
- Article 111(4) stipulates the conditions under which hot pursuit may commence, requiring
the pursuing ship to confirm that the pursued ship—or any craft using the pursued ship as
a mother ship—is within its territorial waters, contiguous zone or EEZ before giving chase.
It further requires that a visual or auditory signal to stop (the proverbial ‘shot across the
bow’) is given prior to commencing pursuit

Use of Force in Hot Pursuit

In the case of I'm Alone, the Commission held:

The United States was permitted to use necessary and reasonable force for the purpose of
effecting the objects of boarding, searching, seizing and bringing into port the suspected
vessel; and if sinking should occur incidentally, as a result of the exercise of necessary and
reasonable force for such purposes, the pursuing vessel might be entirely blameless.

Doctrine of constructive presence is that while an act may have physically occurred
outside a state's jurisdiction, the act is considered to have occurred within that state's
jurisdiction if its effects are felt within that state.

- Under Article 111(5) only military or clearly identifiable government ships or aircraft are
capable of giving hot pursuit.

136
 - Under Article 111(8), if it turns out that the right of hot pursuit has been exercised
mistakenly, the ship and its owners must be compensated for loss or damage which may
have resulted.

Hot Pursuit in Different Zones

Contiguous Zone- Article 33 provides that the coastal state may, in its contiguous zone, exercise
the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws
within its territory or territorial sea, and punish infringement of those laws and regulations
committed within its territory or territorial sea.

EEZ - 56(1) of UNCLOS provides: In the exclusive economic zone, the coastal State has ...
sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural
resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed
and its subsoil, and with regard to other activities for the economic exploitation and exploration of
the zone …

Continental Shelf - Article 77(1) of UNCLOS provides that the coastal state "exercises over the
continental shelf sovereign rights for the purpose of exploring it and exploiting its natural
resources".

Art. 111(1) - Hot pursuit , if uninterrupted, can be pursued to the high seas.

Conditions:

● The right of hot pursuit may be exercised only by warships or military aircraft".
● Pursuit Must Be Immediate
● The Pursued Vessel Must Be Given a Signal to Stop
● Pursuit Must Be Continuous - This continuity of pursuit provides the jurisdictional link to
the fleeing vessel that permits the non-flag state to interfere on the high seas.
● Pursuit in Relay and Multilateral Hot Pursuit- Cooperative hot pursuit, joined in by other
states along with the injured state

- The right of hot pursuit of a foreign ship is a principle designed to ensure that a vessel
which has infringed the rules of a coastal state cannot escape punishment by fleeing to the
high seas. In reality it means that in certain defined circumstances a coastal state may
extend its jurisdiction onto the high seas in order to pursue and seize a ship which is
suspected of infringing its laws. It notes that such pursuit may commence when the
authorities of the coastal state have good reason to believe that the foreign ship has violated
its laws.

137
 - The pursuit must start while the ship, or one of its boats, is within the internal waters,
territorial sea or contiguous zone of the coastal state and may only continue outside the
territorial sea or contiguous zone if it is uninterrupted. However, if the pursuit commences
while the foreign ship is in the contiguous zone, then it may only be undertaken if there has
been a violation of the rights for the protection of which the zone was established. The right
may similarly commence from the archipelagic waters.
- The right of hot pursuit ceases as soon as the ship pursued has entered the territorial waters
of its own or a third state. The International Tribunal for the Law of the Sea has emphasised
that the conditions laid down in article 111 are cumulative, each one of them having to be
satisfied in order for the pursuit to be lawful. In stopping and arresting a ship in such
circumstances, the use of force must be avoided if at all possible and, where it is
unavoidable, it must not go beyond what is reasonable and necessary in the circumstances.

THINGS TO BE CONSIDERED BEFORE ENTERING INTO A TREATY-

The convention also provides the circumstances which are to be considered before entering into a
treaty between a landlocked country and a coastal state;
(a) the need to avoid effects detrimental to fishing communities or fishing industries of the coastal
State;
(b) the extent to which the land-locked State, in accordance with the provisions of this article, is
participating or is entitled to participate.
(c) the extent to which other land-locked States and geographically disadvantaged States are
participating in the exploitation of the living resources of the exclusive economic zone of the
coastal State and the consequent need to avoid a particular burden for any single coastal State or a
part of it.
(d) the nutritional needs of the populations of the respective States.
● Developed land-locked States shall, under the provisions of this article, be entitled to participate
in the exploitation of living resources only in the exclusive economic zones of developed coastal
States of the same subregion or region

COMPARISION CHART
Martitime Zone UNCLOS I UNCLOS III

138
Territorial waters Equidistance principle Equidistance principle
Contiguous zone Equidistance principle Equidistance principle
EEZ Equidistance principle ICJ
Continental shelf Equidistance principle ICJ

UNIT – 9 NATIONALITY, EXTRADITION AND ASYLUM

NATIONALITY
Nationality – relationship of a person with his nation with respect to international law.
Citizenship – relationship of a person with his nation with respect to his domestic law.

STATELESS

The 1954 Convention relating to the Status of Stateless Persons (1954 Statelessness
Convention) was drafted in order to guarantee the protection of these individuals’ fundamental
rights.

- Article 1(1) of the 1954 Statelessness Convention defines a stateless person as

“a person who is not recognized as a national by any State under the operation of its law.”
India is not a party to this convention and so this convention is not binding on India.

NATIONALITY-

- Article 15 of the Universal Declaration of Human Rights states that

“everyone has the right to a nationality” and that “no one shall be arbitrarily deprived
of his nationality nor denied the right to change his nationality.”

139
 - Article 7 of the Convention on the Rights of the Child states that “every child has the
right to acquire a nationality.”
- Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination
requires States to “prohibit and to eliminate racial discrimination in all its forms and to
guarantee the right of everyone, without distinction as to race, colour, or national or
ethnic origin, to equality before the law, notably in the enjoyment of the following rights
. . . the right to nationality.”

Importance of nationality
1. Entitlement to exercise diplomatic protection
2. State responsibility for nationals
3. Determine enemy national
4. Settle jurisdictional disputes
5. Duty to admit nationals
6. Extradition of nationals

ACQUISITION OF NATIONALITY
1. Jus Soli – by birth. Literal meaning of soli is soil. (US)
2. Jus Sanguini – by descent or by blood (UK and India follow all three)
3. Naturalisation

JUS SOLI
By Birth-
- The first and most important mode of acquiring nationality is by birth. The vast majority
of mankind acquires nationality by birth.
- It may be according to jus soli (right of soil), that the citizenship of a child is determined
by the place of birth.
- It may be according to jus sanguinis (right of blood), that nationality is determined by
having one or both parents who are citizens of the nation.
e.g a child born in the U.S of French parents has American nationality.

140
JUS SANGUINIS IN INDIA
By Blood-
- European countries follow the principle of Jus sanguinis. In general, citizenship is
conferred by birth to a parent who is already a citizen of that country, or by
naturalization in that country. This is contrary to Jus Soli because the mere fact that a
person is born there does not, in and of itself doesn't confer citizenship.
- If a country follows the "jus sanguinis" or right of blood system, you inherit a parent’s
citizenship. So, if your father and mother were each from a different jus sanguinis nation
and you were born in a jus soli jurisdiction, you would be able to claim citizenship in
three countries.

1. Mother Indian citizen - Father Indian Citizen - Child Born in India gets Indian citizenship
2. Mother Not Indian citizen - Father Indian Citizen - Child Born in India gets Indian
citizenship
3. Mother Illegal Migrant - Father Indian Citizen- Child Born in India the child so born will
not get Indian citizenship
4. Father Indian citizen at the time of his child’s birth - Father renounces Indian citizenship
after the birth of his child - as long as the child is a minor,the child will get the citizenship
of his father, but on attaining majority, the child through resumption can obtain indian
citizenship.

NATURALIZATION-
- The most important mode of acquiring nationality besides by birth is that of naturalization.
- When a person living in a foreign state acquires the citizenship of that state then it is said
to be acquired through naturalization.
- Through naturalization, an alien by birth acquires the nationality of the naturalizing
state. Naturalization may take place through different acts.
(i) Marriage-- marriage to a foreign national
(ii) legitimation or adoption of children
(iii) acquisition of domicile

141
 (iv) appointed as govt. official
- The conditions for naturalization found in municipal laws vary from country to country.
Residence for a certain period of time is the most common requirement.

OTHER MODES OF ACQUISITION OF CITIZENSHIP

Resumption
- Sometimes it so happens that a person may lose his nationality because of certain reasons.
- Subsequently he may resume his nationality after fulfilling certain conditions.
By Subjugation
- When a state is defeated or conquered, all the citizens acquire the nationality of the
conquering state.
Cession
- When a state has been ceded in another state, all the people of the territory acquire the
nationality of the state in which their territory has been merged.

MODES OF LOSS OF CITIZENSHIP

By Release:
- Some States, such as Germany, provide that the citizens may lose their nationality by
release.
- In the loss of nationality by release it is necessary to submit an application for the same. If
the Application is accepted, the person concerned is released from the nationality of the
State concerned.
Deprivation:
- Certain States have framed some municipal laws the breach of which by its nationals
results in the deprivation of their nationality.
- Under the American laws, service in the armed forces of a foreign State also results in
deprivation of citizenship.
Expiration:
- In certain States, on account of legislation citizenship expires due to long stay abroad.

142
 - A naturalist American citizen loses his nationality by having s continuance residence for
three years in the territory of a foreign state of which he was formerly a national or in
which the place of his birth is situated.
Renunciation:
- A person may also renounce his nationality. The need for renunciation arises when a
person acquires the nationality of more than one State.
- In such a condition he has to make a choice as to which country he will remain national
and he has to renounce the nationality of one State.
- In the case of double nationality of children, the municipal laws of certain States like
Great Britain give them a right on coming of age to declare whether they wish to cease
to be citizens of one State.

4. By residing abroad; Many States laws provide that if a person resides for a long period of time
abroad (such period of time being specified), his nationality ends.

5.

By substitution: Some States also provide for the substitution of nationality. As the name suggests
under this rule, a person may get the nationality of a State in place of the nationality of another
State Thus, he loses the nationality of one State and acquires the nationality of another. Section 9
of the Indian Citizenship Act provides for the automatic termination of Indian citizenship when an
Indian citizen voluntarily acquires the citizenship of another country.

6. Involuntary Loss of nationality - Compulsory expatriation of individuals from their country

leads to loss of nationality, and in most of the cases, in statelessness. Large number of Jews lost
their nationality during Hitler’s rein; also, refugees from Eastern European countries.

● An individual is associated to a state as a nation of the state but sometimes a person

might not possess the nationality of any state. Such a situation is known as statelessness.
● A person does not possess the nationality of any nation cannot exercise the right
conferred upon him by international law.
● Stoeck Vs Public trustee held that if a person is not a citizen of nay state, he shall be
called stateless.

143
Statelessness

In this case it is also observed that what state a person belongs to must ultimately be decided by
the municipal law of the state to which he claims to belong or to which it is alleged that he belongs.

● Oppenhiemer Vs Cattermole in this case it incorporated Hague Convention of 1930

Article 2 provides that any question as to whether a person possesses the nationality of a
particular state shall be determined in accordance with the law of that State.
● Convention on the Reduction of Statelessness 1961

NOTTEBOHM CASE AND NATIONALITY

Authority for the proposition that a genuine and close link between the individual and the national
State is necessary if nationality is to be effective: ie, if other States are to be obliged to accept it as
an adequate basis for the State to treat the individual as its national

FACTS
Nottebohm was born in Germany, and was a German citizen, although he lived in Guatemala since
1903, and conducted a prosperous business there, but never became a citizen of Guatemala.
Germany and the USA were enemies in the World War II. So, in October 1939, he applied for
Liechtenstein citizenship to protect his property and life from Guatemala. He chose Liechtenstein
because it was a neutral country in the war and also his brother lived in that place. He proved that
he was a continuous visitor as he frequently visited his brother who resided in Liechtenstein. He
paid tax for a year and later got citizenship of Liechtenstein through naturalisation. He returned to
Guatemala in the early 1940. But he was not allowed to enter and Guatemala confiscated his
property. The issue arose when Liechtenstein argued that Guatemala has not honoured its
citizenship.

ISSUES
- Whether Guatemala is under obligation to honour the citizenship granted by Liechtenstein?
- Whether Guatemala should pay reparation to Liechtenstein and Nottebohm?

144
DECISION
The International Court cannot interfere in the domestic law and so the court cannot enquire into
the domestic process or domestic law of any country in granting citizenship. But when two
countries recognise him as their national, then public international law comes into picture. The
Court upheld the principle of meaningful nationality which involved the intention to reside
and settle. Citizenship needs to be honoured only when the person has intention to reside and
settle in the country. In the present case, Notttebohm acquired Liechtenstein citizenship only to
escape the threat in Guatemala.

- In this connection the Court stated the essential facts of the case and pointed out that
Nottebohm always retained his family and business connections with Germany and that
there is nothing to indicate that his application for naturalization in Liechtenstein was
motivated by any desire to dissociate himself from the Government Of his country.
- His actual connections with Liechtenstein were extremely tenuous. If Nottebohm went to
that country in 1946, this was because of the refusal of Guatemala to admit him. There is
thus the absence of any bond of attachment with Liechten- stein, but there is a long-
standing and close connection between him and Guatemala, a link which his
naturalization in no way weakened. That naturalization was not based on any real prior
connect:ionwith Liechtenstein, nor did it in any way alter the manner of life of the person
upon whom it was conferred in exceptional circumstances of speed and accom- modation.
In both respects, it was lacking in the genuineness requisite to an act of such importance
- The Court held the claim of Liechtenstein to be inadmissible.

EXTRADITION
Ex and traditum - means delivery of criminals.
Oppenheim -
- According to Oppenheim, "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

145
 been convicted of a crime, by the state on whose territory the alleged criminal happens
for the crime to be."

- Extradition is the delivery of an accused or a convicted individual to the state on whose

territory the alleged crime has taken place or he has been convicted of a crime, by the state
on whose territory the alleged criminal happens to be residing for the time being.
- Countries are not bound by legal obligation to extradite. Treaty is not a prerequisite to
ask for extradition. In the absence of a treaty, it is left to the discretion of the executive
authorities whether to extradite or not.

Countries involved
Requesting State – the state that requests for extradition
Territorial State – the state to where the accused has fled to

PRINCIPLES THAT GOVERN EXTRADITION

Influence of nationality on extradition - ‘Aut dedere, aut judicare’ (either extradite or judge) –
If a national of one country commits a crime in another country and flies back to his country, his
native country should either try him or extradite to the other country where he has committed
crime.
Principle of extraditable offences – The extradition treaty should mention the list of offences to
which extradition is allowed.
The principle of double criminality - The crime for which request is made by the country for
extradition that must also be a crime in the country from where the accused is being extradited.
Rule of specialty - An accused is extradited for a particular offence and the country which requests
the extradition is entitled to prosecute that person only for the crime for which he was extradited
i.e. he cannot be punished for any other offence but can only be punished for the offence for which
he is being extradited.
Proportional punishment – Extradition may be refused on the ground that the punishment is not
proportionate to the crime that is committed. If the territorial state believes that the accused would
be given capital punishment, then territorial state could refuse extradition.

146
Principle of fair hearing – Extradition is made on the condition that the accused would be given
fair trial in the requesting state.

- Many states will not allow the extradition of nationals to another state, but this is usually
in circumstances where the state concerned has wide powers to prosecute nationals for
offences committed abroad. Further, the relevance of human rights law to the process
should be noted in that extradition to a state that may torture or inhumanely treat the person
concerned would, for example, violate the European Convention on Human Rights.

APPROACHES TO EXTRADITION
1. NON-ENQUIRY APPROACH – U.S.A
1. Extradition is in the hands of executive
2. Executive authorities not to inquire much into other country’s domestic laws and courts
3. Based on the presumption that one day that country may need the favor returned.
4. Based on the assumption that the accused would have fair trial.
5. Based on the principle of reciprocity

2. JUDICIAL APPROACH – INDIA AND UK

- The judiciary asserts an active role in determining whether particular cases merit
extradition.
- Not decided on per se manner.
- India - Extradition Act, 1962
Section 4 – Application to Central government from the requesting state
Section 5 – Magisterial enquiry if the government thinks it fit.
Section 7 – Extradition only if that is a prima facie case.

147
ASYLUM
- Article 1(A)(2) of the 1951 Convention defines a refugee as an individual who is outside
his or her country of nationality or habitual residence who is unable or unwilling to
return due to a well-founded fear of persecution based on his or her race, religion,
nationality, political opinion, or membership in a particular social group.
- Stateless persons may also be refugees in this sense, where country of origin (citizenship)
is understood as ‘country of former habitual residence’.
- The refugee must be ‘outside’ his or her country of origin, and having crossed an
international frontier is an intrinsic part of the quality of refugee, understood in the
international legal sense.
- However, it is not necessary to have fled by reason of fear of persecution, or even
actually to have been persecuted. The fear of persecution looks to the future, and can
emerge during an individual’s absence from their home country, for example, as a result
of intervening political change.
- Articles 31 and 33 refer to threats to life or freedom, so clearly it includes the threat
of death, or the threat of torture, or cruel, inhuman, or degrading treatment or
punishment.
- The persecuted do not enjoy the protection of their country of origin, while evidence of
the lack of protection on either the internal or external level may create a presumption
as to the likelihood of persecution and to the well-foundedness of any fear.
- However, there is no necessary linkage between persecution and government authority.
- Article 14(1) of the Universal Declaration of Human Rights (UDHR), which was
adopted in 1948, guarantees the right to seek and enjoy asylum in other countries.

RIGHTS OF REFUGEES
Non- refoulement
Freedom of movement
Right to liberty and security of that person
Right to life

148
Non-refoulement-
- The Convention also accepts specific obligations which are crucial to achieving the goal
of protection, through the principle of non-refoulement. As set out in the Convention, this
prescribes broadly that no refugee shall be returned in any manner whatsoever to any
country where he or she would be at risk of persecution.
- The basic principle of refugee law, non-refoulement refers to the obligation of States
not to refoule, or return, a refugee to “the frontiers of territories where his life or
freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.” 1951 Convention
relating to the Status of Refugees, art. 33(1). Non-refoulement is universally
acknowledged as a human right.
- Article 33 of the Refugee Convention contains the non-refoulement obligation.
- There are two important restrictions to this principle. Persons who otherwise qualify as
refugees may not claim protection under this principle where there are “reasonable
grounds” for regarding the refugee as a danger to the national security of the host
country or where the refugee, having been convicted of a particularly serious crime,
constitutes a danger to the host community. 1951 Convention, art. 33(2).

Freedom of movement-
- Freedom of movement, however, is also a key right for refugees within their host country,
International Covenant on Civil and Political Rights, art. 12.
- Article 26 of the 1951 Convention provides that States shall afford refugees the right to
choose their place of residence within the territory and to move freely within the State.
- Meanwhile, Article 28 obliges States parties to issue refugees travel documents permitting
them to travel outside the State “unless compelling reasons of national security or public
order otherwise require.”
- Freedom of movement is an especially important issue with regard to protracted refugee
situations in countries with limited national resources and/or limited legal frameworks for
protecting refugees who nonetheless host large refugee populations. In such countries,

149
 refugee warehousing – in which refugees are confined to refugee camps, thereby restricting
their access to employment and education – is commonly practiced.

Right to liberty and security of that person-

- The right to liberty and security of the person is important in the context of how asylum
seekers are treated within the intended country of refuge.
- The national laws of several countries provide for the detention of asylum seekers at
one point or another during the adjudication of their claims.
- The detention of asylum seekers is a contentious issue because of the conditions found in
the detention facilities of several countries. The European Court of Human Rights
(ECtHR) has held in a number of cases that the conditions in the Greek detention centers
violate individuals’ rights to humane treatment and dignity under the European Convention
on Human Rights.

Right to life? Right to family life-

- The family is seen as the “natural and fundamental group unit of society and is entitled
to protection by society and the State.” See, e.g., International Covenant on Civil and
Political Rights, art. 23(1).
- In respect of this right, a number of countries provide for the granting of derivative status
to dependent relatives.
- Thus, where an individual is granted asylum, his or her dependent relatives will also
receive protection through him or her. However, should that individual’s refugee status
be terminated, the status of dependent relatives will also be terminated.

Columbia v. Peru [1950] ICJ 6

Facts

Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the

crime of military rebellion” which took place on October 3, 1949, in Peru. 3 months after the
rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador

150
confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana
Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently,
the Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the
same as the Refugee Convention of 1951). Peru refused to accept the unilateral

qualification and refused to grant safe passage.

Issues

● Is Colombia competent, as the country that grants asylum, to unilaterally qualify the
offence for the purpose of asylum under treaty law and international law?
● In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?
● Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928
(hereinafter called the Havana Convention) when it granted asylum and is the continued
maintenance of asylum a violation of the treaty?
Decision
The court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence (for
example, as a political offence) and the territorial State has the right to give consent to
this qualification. In the Torre’s case, Colombia has asserted, as the State granting
asylum, that it is competent to qualify the nature of the offence in a unilateral and
definitive manner that is binding on Peru. The court had to decide if such a decision was
binding on Peru either because of treaty law (in particular the Havana Convention of
1928 and the Montevideo Convention of1933), other principles of international law or by
way of regional or local custom. The court looked at the possibility of a customary law
emerging from State practice where diplomatic agents have requested and been granted
safe passage for asylum seekers, before the territorial State could request for his
departure. Once more, the court held that these practices were a result of a need for
expediency and other practice considerations over an existence of a belief that the act
amounts to a legal obligation.

151
UNIT – 10 SETTLEMENT OF DISPUTES
‘International’ disputes, however, are not restricted to those between states: also applicable are
those disputes involving other entities, including international organizations, ‘de facto regimes,
ethnic communities enjoying a particular kind of status under international law.

PACIFIC MEANS OF SETTLEMENT

• ● Article 33 (1) the ICJ Charter states that any dispute that is likely to endanger the
maintenance of international peace and security should first be addressed through negotiation,
mediation or other peaceful means, and states that the Council can call on the parties to use such
means to settle their dispute.
• ● Article 2(3) of the UN Charter states that all Member States have to settle their
international disputes by peaceful means in such a manner that international peace and security,
and justice, are not endangered.
Negotiation
The tool of negotiation enjoys a special place among the pacific measures listed in Article 33 (1)—
not least because negotiations are a universally accepted method of dispute resolution and possess
several advantages. One important feature is flexibility: negotiations can be applied to conflicts of
a political, legal, or technical nature. Moreover, since only the concerned states are involved,
negotiation empowers the parties themselves to steer the process and shape its outcome to deliver
a mutually accepted settlement. It involves only the States parties to the dispute, those States can
monitor all the phases of the process from its initiation to its conclusion and conduct it in the way
they deem most appropriate. The degree to which the negotiating parties trust each other to
implement the negotiated solution is a major factor in determining whether negotiations are
successful.
Inquiry
Two parties to a dispute may initiate a commission of inquiry or fact-finding to establish the basic
information about the case, to see if the claimed infraction was indeed committed, to ascertain

152
what obligations or treaties may have been violated, and to suggest remedies or actions to be
undertaken by the parties. These findings and recommendations are not legally binding, and the
parties ultimately decide what action to take. A commission of inquiry may usefully be employed
in parallel with other methods of dispute resolution—for instance, negotiation, mediation, or
conciliation—as factual clarity is an important factor in any dispute resolution strategy.
Mediation and Good Offices
Mediation refers to the offer by a third party of its good offices to the parties to a dispute in the
interest of seeking a resolution and preventing an escalation of the conflict. The third party
mediator may be an individual, a state or group of states, or an international or regional
organization. The function of the mediator is to encourage the parties to undertake or resume
negotiations. The mediator may also proffer proposals to help the parties identify a mutually
acceptable outcome. These good offices may be offered by the mediator, or solicited by one or
both conflicting parties. A fundamental prerequisite is that all parties accept the mediator.
Conciliation
Conciliation combines fact-finding and mediation. A conciliation commission functions not only
to engage in enquiry—to set out clearly the facts of the case—but also to act as a mediator, to
propose solutions mutually acceptable to the disputing parties. Such commissions may be
permanent, or temporarily established by parties to a particular dispute. The commission’s
proposals are not binding, but each party has the option of declaring unilaterally that it will adopt
the recommendations.
Arbitration
The most concrete achievement of the 1899 Hague Peace Conference was the establishment of the
Permanent Court of Arbitration (PCA), located in the Peace Palace in The Hague. Parties agree to
submit disputes to arbitration, and thereby commit to respect in good faith the outcome, which is
binding. The PCA, which is always accessible, has competence in all arbitration cases submitted
to it by agreement of the parties involved. The PCA provides a list of arbitrators, appointed by
states parties to the Hague Convention, from which parties submitting a dispute to arbitration can
choose.
Adjudication
The term ‘international tribunals’ refers to the International Court of Justice and other courts with
international jurisdiction. Depending on the definition employed, there are currently between

153
seventeen and forty international courts and tribunals. Normally, the decisions of an international
tribunal are definitive and cannot be appealed. Normally, cases brought to the ICJ cover: the
interpretation and application of treaties; sovereignty over territory and border disputes; maritime
borders and other matters related to the law of the sea; diplomatic protection afforded to foreigners;
the use of force; violations of contracts; and principles of customary international law.

ROLE OF ICJ-
One of the purposes of the United Nations is to bring about by peaceful means, and in conformity
with the principles of justice and international law, adjustment or settlement of international
disputes or situations which might lead to a breach of the peace. In order to achieve the above
purpose, it was essential to establish a judicial arm of the organization. It was therefore decided to
establish a court named the International Court of Justice. The International Court of Justice (ICJ)
was established in 1945 as the successor to the Permanent Court of International Justice. Since its
establishment, the ICJ has become the principal judicial organ of the UN entrusted with the
resolution of legal disputes between sovereign states. The court consists of fifteen judges elected
by the UN General Assembly and confirmed by the Security Council.
The ICJ has a dual role: to settle in accordance with international law the legal disputes submitted
to it by States, and to give advisory opinions on legal questions submitted to it by the UN General
Assembly and the Security Council and other duly authorised organs and agencies.

JURISDICTION OF ICJ
(a) Special agreement
Article 36, paragraph 1, of the Statute provides that the jurisdiction of the Court comprises all
cases which the parties refer to it. Such cases normally come before the Court by notification to
the Registry of an agreement known as a special agreement, concluded by the parties specially for
this purpose
(b) Matters provided for in treaties and conventions
Article 36, paragraph 1, of the Statute also provides that the jurisdiction of the Court comprises all
matters specially provided for in treaties and conventions in force. Such matters are normally
brought before the Court by means of a written application instituting proceedings

154
(c) Compulsory jurisdiction in legal disputes
The Statute provides that a State may recognize as compulsory, in relation to any other State
accepting the same obligation, the jurisdiction of the Court in legal disputes. Such cases are
brought before the Court by means of written applications.
The States parties to the present Statute may at any time declare that they recognize as compulsory
ipso facto and without special agreement, in relation to any other State accepting the same
obligation, the jurisdiction of the Court in all legal disputes concerning:

(a) the interpretation of a treaty;

(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an international
obligation;
(d) the nature or extent of the reparation to be made for the breach of an international obligation.

ADVISORY JURISDICTION
Legality of use of nuclear weapons advisory jurisdiction case
Background
The General Assembly of the United Nations asked the Court to provide its legal opinion
on the following question “Is the threat or use of nuclear weapons in any circumstances
permitted under international law?” In 1993, two years previously, the World Health
Organization had asked the Court a similar question on the legality of the use nuclear
weapons under international law. The Court declined to answer because the Court held
that the World Health Organization did not have the competence to ask the Court that
particular question.
Issue
● Did the Court have the competence to give an advisory opinion based on a request
of the General Assembly? In other words, did the General Assembly have the
competence to ask the Court for an advisory opinion on the above question?
● If yes, were there any reasons that would compel the Court to decline to exercise
its jurisdiction?
● Did treaty or customary law authorize the use of nuclear weapons?

155
● Did treaty or customary law contain a “comprehensive and universal” prohibition on the
threat and use of nuclear weapons?
● Will the threat or use of nuclear weapons be lawful in self defense in situations where the
very survival of the State is at stake?
LAW INVOLVED
● Article 65 (1) of the Statute of the ICJ to provide an advisory opinion, when it is
requested by a “competent organ of the United Nations”.
● The Court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the United
Nations to make such a request.
● Secondly, the General Assembly is a “competent organ” because it is authorized by
Article 96 (1) of the United Nations Charter to request an advisory opinion from the
Court. The Court says that: The General Assembly or the Security Council may request
the International Court of Justice to give an advisory opinion on any legal question
JUDGEMENT
The Court concludes that it had the jurisdiction to respond to the question as per the law
mentioned above. The Court agrees that even if it has the competence to give an opinion,
it can still refuse to respond to an advisory opinion based on the discretion it has under
Article 65 (1) of the Statute. If you recall, Article 65 (1) says that “the Court may give an
advisory opinion...”
On the use of nuclear weapons, the Court decided that neither customary law, nor treaty
law, explicitly authorizes the use of nuclear weapons. The Court concludes that there is
no comprehensive and universal prohibition on the threat or use of nuclear weapons
either in treat or customary law. The Court upheld the decision of S.S Lotus case and held
that what is not prohibited in international law by treaties or customary international law,
it is permitted. Applying this ratio, the Court held that since there are no customary laws
and treaties prohibiting use of nuclear weapons, it is permitted to use but on one
condition; self defense.

156
NORTH SEA CONTINENTAL SHELF CASE
Denmark and Netherlands v. Germany I .C.J. Reports 1969, p.3 Background
The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for the
formation of customary international law: (1) State practice (the objective element) and (2) opinio
juris (the subjective element). In this case, the Court explained the criteria necessary to establish
State practice – widespread and representative participation. It highlighted that the practices of
those States whose interests were specially affected by the custom were especially relevant in the
formation of customary law. It also held that uniform and consistent practice was necessary to
demonstrate opinio juris – opinio juris is the belief that State practice amounts to a legal obligation.
The North Sea Continental Self Cases also dispelled the myth that duration of the practice (i.e. the
number of years) was an essential factor in forming customary international law.
Facts
The case involved the delimitation of the continental shelf areas in the North Sea between Germany
and Denmark and Germany and Netherlands beyond the partial boundaries previously agreed upon
by these States. Denmark and Netherlands intended to extend their boundaries based on
equidistance principle as per Article 6 of the Geneva Convention on Continental Shelf, 1958.
Germany opposed to this since its coast was concave and feared that it would much of the
continental shelf which would be an inequitable result to Germany. Hence, a case was filed by
Denmark and Netherlands against Germany.
Issue
1. Is Germany under a legal obligation to accept the equidistance-special circumstances principle,
contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a
customary international law rule or on the basis of the Geneva Convention?
Contentions of Denmark and Netherlands
The delimitation as between the Parties of the said areas of the continental shelf in the North Sea
is governed by the principles and rules of international law which are expressed in Article 6,
paragraph 2, of the Geneva Convention of 1958 on the Continental Shelf.
Equidistance Principle is now international customary law since it is being followed by majority
of states. Equidistance principle has acquired the status of international custom.. So, Germany is
bound by the principle irrespective of not being a member to the convention.
Contentions of Germany

157
The delimitation of the continental shelf between the Parties in the North Sea is governed by the
principle that each coastal State is entitled to a just and equitable share.
The method of determining boundaries of the continental shelf using equidistance method is not a
rule of customary international law.
Germany has signed the Convention but has not ratified the same. So, Germany is not bound by
the Convention
Decision
The use of the equidistance method had not crystallised into customary law and the method was
not obligatory for the delimitation of the areas in the North Sea related to the present proceedings.
Findings
The Court held that Germany had not unilaterally assumed obligations under the Convention. The
court held that equidistance principle is not customary International Law because of Article 12
which allowed reservation to any article except Article 1, 2 & 3. The court also took notice of the
fact that even if Germany ratified the treaty, it had the option of entering into a reservation on
Article 6 as per Article 12 of the Geneva Convention of Continental Shelf, 1958. Further the Court,
also opined that the Framers of this convention did not intend to make equidistance principle, an
international custom as they allowed reservation under Article 12. In conclusion,
the Court held that Germany had not acted in any manner so as to incur obligations contained in
Article 6 of the Geneva Convention. The equidistance–special circumstances rule was not binding
on Germany by way of treaty law.
Note – The above case can be written under International Convention as a source of PIL. The same
case is continued below which can be written for International customary law.
NORTH SEA CONTINENTAL SHELF CASE for INTERNATIONAL CUSTOMARY LAW
For a customary rule to emerge the Court held that it needed: (1) very widespread and
representative participation in the Convention, including States whose interests were specially
affected (in this case, they were coastal States) (i.e. generality); and (2) virtually uniform practice
(i.e. consistent and uniform usage) undertaken in a manner that demonstrates (3) a general
recognition of the rule of law or legal obligation (i.e. opinio juries). In the North Sea Continental
Shelf cases the court held that the passage of a considerable period of time was unnecessary (i.e.
duration) for the formation of a customary law. In North Sea Continental Shelf case, the Court
observed that;

158
• ● The Court examined 15 cases where States had delimited their boundaries using the
equidistance method, after the Convention came into force wherein 39 states had ratified the
convention. So, the Court held that there was no widespread of equidistance principle to call it a
custom.
• ● The court concluded, even if there were some State practice in favour of the equidistance
principle, the court could not deduct the necessary opinio juris. The North Sea Continental Shelf
Cases confirmed that both State practice (the objective element) and opinio juris (the subjective
element) are essential pre-requisites for the formation of a customary law rule.

S.S LOTUS CASE

France v. Turkey, P.C.I.J. (ser. A) No. 10 (1927) Facts
A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel –
Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel.
The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus.
In Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were
charged with manslaughter. Demons, a French national, was sentenced to 80 days of imprisonment
and a fine. The French government protested, demanding the release of Demons or the transfer of
his case to the French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to
the Permanent Court of International Justice (PCIJ). Turkey was not a member of Legaue of
Nations. Hence, submitted a written document accepting the PCIJ jurisdiction before hearing.
Issues
Contentions of France
International law does not allow a state to take criminal proceedings against the foreign offender
by reason of the victim’s nationality.
International law, apart from express or implied agreement, does not entitle a state to extend the
criminal jurisdiction of its courts to include offences against its citizens committed outside its
territory.
Acts performed on the high seas in the relevance of criminal proceedings are subject to the courts
of the nationality of the ship. Jurisdiction cannot be transferred to the nationality of the vessel sunk.
1. Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime
committed by a French national, outside Turkey?

159
The Turkish courts cannot exercise jurisdiction of an extra territorial sort, such as claimed in the
Lotus case, unless they can point out some evidence that such exercise of jurisdiction is allowed
in the International Customary Law.
Contentions of Turkey
S.S Boz-Kourt was with Turkish flag, and so Turkish Courts have jurisdiction of the offence.
Vessels on the high seas form part of the territory of the nation whose flag they fly, and in the
principal case the offence occurred on the Turkish vessel, Boz-Kourt, where the effects were felt.
Turkish government has jurisdiction because of international customary law. Turkey has
jurisdiction, and therefore no reparation should be paid by the Turkish government to the French
government.
Decision
Turkey, by instituting criminal proceedings against Demons, did not violate international law.
Findings
There is no customary practice in international law that criminal proceedings occurring from
collisions at sea are exclusively within the jurisdiction of the state on whose flag the vessel is
flown. The Court observed that, “the offence for which Lieutenant Demons appears to have been
prosecuted was an act – of negligence or imprudence – having its origin on board the Lotus, whilst
its effects made themselves felt on board the Boz-Kourt. It is only natural that each should be able
to exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of
concurrent jurisdiction.”
THE TWO PRINCIPLES WHICH EVLOVED IN THIS CASE ● Outside its territory – 1st Lotus
Principle
It may not exercise its power in any form in the territory of another State. In this sense jurisdiction
is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a
permissive rule derived from international custom or from a convention.
● Within its territory – 2nd Lotus Principle
State may exercise its jurisdiction, in any matter, even if there is no specific rule of international
law permitting it to do so. In this case, the Court equated the Turkish vessel to Turkish territory.
The Court held that the “... offence produced its effects on the Turkish vessel in which the
application of Turkish criminal law cannot be challenged, even in regard to offences committed
there by foreigners.”

160
CRTITICISM/DISSENTING OPINION
Judge Loder characterized Turkey's position as "based on the contention that under international
law everything which is not prohibited is permitted. In other words ... every door is open unless it
is closed by treaty or by established custom.”
Judge Weiss claimed that the majority opinion meant that Turkey "can do as she thinks fit as
regards persons or things unless a specific provision in a treaty or an established custom in
international relations prevents her from so doing. This power is thus in its essence unlimited ....”
CURRENT SCENARIO
Article 11 of the High Seas Convention, Geneva, 1958
1. In the event of a collision at the high seas, no penal or disciplinary proceedings may be instituted
against the master or any service person of the ship other than the flag state of the ship or the
nationality of the person.
NOTE - The exact wording of Article 11 is also included in the convention's successor, UNCLOS
(United Nations Convention of the Law of the Sea of 1982) under Article 97.

RIGHT TO PASSAGE CASE

India v. Portugal, [1960] ICJ Rep 6
Facts
The case is concerned with right of passage over Indian Territory between Portugal and India. The
Portuguese Government requesting the Court to recognize and declare that Portugal was the holder
or beneficiary of a right of passage between its territory of Diu and its enclaves of Dadra and
Nagar-Haveli and between each of the 1atter and that this right comprises the facility of transit for
persons and goods, including armed forces, without restrictions or difficulties. It is common
ground between the Parties that the passage of private persons and civil officials was not subject
to any restrictions.
Issues
Contentions of Portugal
1. Portugal claimed a right of passage to the extent necessary for the exercise of its
sovereignty over the enclaves, without any immunity and subject to the regulation and control of
India.

161
2. In support of its claim, Portugal relies on the Treaty of Poona of 1779 and on sanads
(decrees), issued by the Maratha ruler in 1783 and 1785, as having conferred sovereignty on
Portugal over the enclaves with the right of passage to them.
Contentions of India
1. India contends that the Treaty and the two sanads of 1783 and 1785 taken together did not
operate to transfer sovereignty over the assigned villages to Portugal, but only
1. Was India legally bound to provide Portugal right to passage?
2. Whether the right of passage of military personnel and arms should have the same
right of passage over Indiana territory as that of private persons and goods
conferred upon it, with respect to the villages, a revenue grant of the value of 12,000
rupees per annum called a jagir or saranjam.
2. India argued before the Court that practice between only two states was not sufficient to
form a local custom.
3. Portugal had right to passage but that right covered only civilians and not armed men.
Decision
The Court held that a local custom is binding on the parties. The court further reasoned as to why
a century and a quarter of practice based on mutual rights and obligations were insufficient for
local custom to arise. This local practice, thus, prevailed over any general rules. The court held
that the Portugal has right of passage but it is restricted only to civilians and diplomats.

ASYLUM CASE Columbia v. Peru [1950] ICJ 6 Facts

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

162
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence
for the purpose of asylum under treaty law and international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter
called the Havana Convention) when it granted asylum and is the continued maintenance of asylum
a violation of the treaty?
Decision
The court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence (for example,
as a political offence) and the territorial State has the right to give consent to this qualification. In
the Torre’s case, Colombia has asserted, as the State granting asylum, that it is competent to qualify
the nature of the offence in a unilateral and definitive manner that is binding on Peru. The court
had to decide if such a decision was binding on Peru either because of treaty law (in particular the
Havana Convention of 1928 and the Montevideo Convention of 1933), other principles of
international law or by way of regional or local custom. The court looked at the possibility of a
customary law emerging from State practice where diplomatic agents have requested and been
granted safe passage for asylum seekers, before the territorial State could request for his departure.
Once more, the court held that these practices were a result of a need for expediency and other
practice considerations over an existence of a belief that the act amounts to a legal obligation.

CHORZOW FACTORY CASE Germany v. Poland

Facts
After the 1st World War, bilateral agreement was entered between Poland and Germany according
to which Upper Silesia area was transferred by Germany to Poland and Poland agreed not to
confiscate any of the German properties situated in Upper Silesia. But later, Poland
confiscated two German Companies. Aggrieved by this Germany filed a case against Poland
before PCIJ.
Issues
1. Whether Poland has violated the agreement?
2. If Poland has violated the agreement, should Poland be made to pay reparation to
Germany?

163
Decision
Poland was also held to be in violation of the agreement entered with Germany and made liable to
repair any loss suffered by Germany due to the forfeiture of the two companies as they violated
the obligation that Poland had towards Germany in observance of International law.
Principle
It is a general conception of international law that every violation of an engagement between two
independent states ensue an obligation to make reparation, adopted from municipal law. The core
principles which are common to the legal systems are considered as general principles of law.
When there is breach of any contract, the common principle that is followed by the nations is to
claim for damages or compensation. The ICJ accepted this principle and applied it in international
law.

THE CORFU CHANNEL CASE UK v. The Republic of Albania

Facts
On May 15th 1946 the British warships passed through the Channel without the approval of the
Albanian government and were shot at. Later, on October 22nd, 1946, a squadron of British
warships (two cruisers and two destroyers), left the port of Corfu and proceeded northward through
a channel previously swept for mines in the North Corfu Strait. Both
destroyers were struck by a mine and were heavily damaged. This incident resulted also in many
deaths. After the explosions of October 22nd, the United Kingdom Government sent a note to the
Albanian Government, in which it announced its intention to sweep the Corfu Channel shortly.
The Albanian reply, which was received in London on October 31st, stated that the Albanian
Government would not give its consent to this unless the operation in question took place outside
Albanian territorial waters.
Issues
1. Whether Albania has acted in violation of international law by keeping mines in the
territotrail waters?
2. Whether innocent passage as clamied by the Bristish Government subjected to the prior
consent of Albania?
3. If Albania has violated the international law, can UK claim reparation?
Decision

164
According to the principle of state responsibility, they should have done all necessary steps
immediately to warn ships near the danger zone, more especially those that were approaching that
zone. In fact, nothing was attempted by the Albanian authorities to prevent the disaster. These
grave omissions involve the international responsibility of Albania. The Court also held that UK
had right to innocent passage and there was no need to seek prior permission from Albania. The
Court, therefore, reached the conclusion that Albania is responsible under international law for the
explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and
loss of human life which resulted from them, and that there is a duty upon Albania to pay reparation
to the United Kingdom.

ANGLO- NORWEGIAN FISHERIES CASE

(can also be written for Persistent Objector)
UK v.Norway
Facts
The parties involved in this case were Norway and the United Kingdom, of Great Britain and
Northern Ireland. The implementation of the Royal Norwegian Decree of the 1935 was met with
resistance from the United Kingdom. The decree covers the drawing of straight lines, called
“baselines” 4 miles deep into the sea. This 4 miles area and 10 miles from the coast are reserved
fishing exclusive for Norwegian nationals. UK contested the drawing of baselines and so filed a
case before ICJ.
Issues
1. Whether the baseline that is drawn by the Norway is in consistent with International Law?
Decision
Generally ICJ do not follow doctrine of precedent, in this case the Court deviated from previous
judgements and upheld the legitimacy of the baseline principle of Norway owing to its geographic
indentation, islands and islets. The international customary law has been a law of reference in the
court arguments. Customary international law does not recognize the rule according to which belts
of territorial waters of coastal states is to be measured. More so public international law has been
relied upon in this case. It regulates relation between states; the United Kingdom and Norway.

165
REPARATION CASE -
Advisory opinion case – advice was by General Assembly
Facts
The newly formed United Nations had appointed Bernadotte as the mediator in the first Israeli-
Arab conflict, with Israel fighting for independence. With his first partition plan, Bernadotte
angered many extremist forces within Israel. He came to be seen as an enemy of Israel, and was
assassinated in Jeruzalem at point blank range by the Jewish group LEHI. Because Bernadotte was
in the service of the United Nations, the new organization sought to improve security for its agents
like Bernadotte. The ICJ was for the first time called upon to decide whether UNO is a legal person.
Issue
1. Whether UNO a legal person?
Decision
”In the opinion of the Court, the Organization was intended to exercise and enjoy, and is in fact
exercising and enjoying, functions and rights which can only be explained on the basis of the
possession of a large measure of international personality and the capacity to operate upon an
international plane. It must be acknowledged that its Members, by entrusting certain functions to
it, with the attendant duties and responsibilities, have clothed it with the competence required to
enable those functions to be effectively discharged.”
So, in order for the UN to be effective, the UN’s founders must have ’clothed it’ with legal
personality, and so it such legal personality. You can question whether the Court means to say that
legal personality must be assumed in order to be effective, or that it must be assumed because the
founder’s must have found it necessary to be effective.
There were neither customs nor treaties to attribute legal personality to the international
organizations. But in this case the Court held that UNO is a legal person.

LIBYA v. MALTA
Facts
Libya and the Republic of Malta, submitted a dispute concerning delimitation of continental shelf
to the International Court of Justice on July 26, 1982. Both States had granted petroleum
exploration concessions in their continental shelves, leading to disputes due to application of

166
different principles of international law in its delimitation. Essentially, while Malta strictly applied
the ‘equidistant’ principle, Libya preferred to modify the principle in light of relevant
circumstances. The two States entered into a ‘Special Agreement’, Article I of which, requests ICJ,
to determine applicable principles of international law for delimitation and practical application in
the instant case. Libya believed the Court’s duty was restricted to identification of appropriate
principles of international law for delimitation, while Malta believed that the Court’s role extended
to practical application of the identified principles, including, drawing the line, to which the Court
rightfully agreed, deriving authority from Article I of the Special Agreement. Amongst the
numerous principles in international for delimitation, Malta contended that the equidistant
principle must apply, while Libya called for sufficient modifications based on relevant
circumstances.
Issues
1. Whether the countries are bound by Equidistance Principle?
2. Whether customary law is to be considered in delimiting continental shelf?
Judgement
The Court determined the applicable law as customary international law for twofold reason; firstly,
while Malta is a party to Geneva Convention on Continental Shelf 1958, Libya is not and secondly,
while both are parties to United Nations Convention on the Law Of the Sea (UNCLOS) 1982, it
had not entered into force. Court allowed Libya’s contention and held that equidistance principle
needed not be followed.
Findings
Parties agreed that the law applicable for delimitation of continental shelf must be customary
international law, requiring it to be effected by application of equitable principles, giving due
consideration relevant circumstances, therefore rejecting Malta’s contention of strict application
of the equidistant principle, but conceding that distance remains the primary criterion. The Court
applied principles of customary international law such as; non-refashioning of geography; non-
encroachment by one party on appertaining areas of the other; consideration of all relevant
circumstances; noting “equity does not necessarily imply equality.
RIVER MEUSE CASE Facts
Belgium and Netherlands entered into a treaty to settle water dispute once for all permanently.
They entered into a reaty to govern water diversions of river Meuse and feeding that water to the

167
irrigation canals. Netherlands proceeded to construct and complete the Juliana Canal, the
Bosscheveld Lock and the Borgharen barrage. On its part, Belgium began the construction of the
Albert Canal, unfinished at the time of the judgment, a barrage at Monsin and a lock at Neerhaeren.
Netherlands filed a case against Belgium to stop the canal construction.
Analysis
The principles of equity form a part of international law. Under Article 38 and independently of
that statute, this Court has some freedom to consider principles of equity. The maxim “He who
seeks equity must do equity” is derived from Anglo-American The Court also referred to Roman
law. In Roman law, a similar principle made the obligations of a vendor and a vendee concurrent.
Neither could compel the other to perform.

168