CONTENTS

module 1- Introduction...............................................................................................................2

Module 2- Law Of Sea...............................................................................................................3

Module 3- Air Law & Outer Space............................................................................................4

Module 4- International Criminal Law....................................................................................25

Module 5- Nieo........................................................................................................................56

Module 6- International Organizations....................................................................................57

Module 7- Use Of Force..........................................................................................................58

Module 8- Disarmament..........................................................................................................76

Module 9- Human Rights.........................................................................................................90

1
 MODULE 1- INTRODUCTION

2
 MODULE 2- LAW OF SEA

ocean importancw
Mare liberum Grotius (1609)
Mare clausum is an exception to mare liberum (Latin for "free sea"), meaning a sea that is
open to navigation to ships of all nations.
Mare clausum is a term used in international law to mention a sea, ocean or other navigable
body of water under the jurisdiction of a state that is closed or not accessible to other states.
Mare clausum is an exception to mare liberum, meaning a sea that is open to navigation to
ships of all nations
(terra) nullius is a territory unclaimed by any state and therefore subject to lawful
appropriation, through occupation, by any state. Res communis is a phrase used to define the
area that is shared by all states and cannot be lawfully appropriated by any state.
UNCLOS
The United Nations Convention on the Law of the Sea 1982, lays down a comprehensive
regime of law and order in the world's oceans and seas establishing rules governing all uses
of the oceans and their resources. It enshrines the notion that all problems of ocean space are
closely interrelated and need to be addressed as a whole.
This Convention, which is often referred to as the “constitution of the seas” was opened for
signature in 1982 and entered into force in 1994. There are presently 169 (last being Rwanda
2023) States parties to the UNCLOS.
Even the States which are not parties to the Convention agreed to the contents of the
Convention and its legality has never been questioned.
States Parties are obliged to settle by peaceful means their disputes concerning the
interpretation or application of the Convention;
Disputes can be submitted to the International Tribunal for the Law of the Sea established
under the Convention, to the International Court of Justice, or to arbitration. Conciliation is
also available and, in certain circumstances, submission to it would be compulsory. The
Tribunal has exclusive jurisdiction over deep seabed mining disputes
High seas case laws
Freedom of fishing- Fisheries Jurisdiction case ICJ Rep 1974
Extension by Iceland of their fishing zone constituted a violence of the freedom of high seas.
Article 88-high seas shall be preserved for peaceful purposes- France violated the freedom
and enjoyment of high seas of Australia and New Zealand when it conducted its nuclear test
in the high seas of the continent. (Nuclear Tests Case, ICJ Rep1974)
Freedom of navigation during times of armed conflict- during the Iraq and Iran war it was
settled that in view of a state’s right to self defense it may inspect ships or vessels it believes

3
may pose a threat to itself.(a ship carrying weapons to the other side)- this is an exceptional
right and if the suspicion is not well founded and the vessel is not guilty of the acts then it has
the right to sue for compensation for loss caused by the delay.
POLLUTION- 1982 Convention- nearly fifty articles are devoted to the protection of marine
environment. Flag states still retain their rights to lay down laws for their ships but minimum
standards are imposed upon them.
EEZ
Enforcement of laws and regulations of the coastal State
1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve
and manage the living resources in the exclusive economic zone, take such measures,
including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure
compliance with the laws and regulations adopted by it in conformity with this Convention.
2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable
bond or other security.
3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive
economic zone may not include imprisonment, in the absence of agreements to the contrary
by the States concerned, or any other form of corporal punishment.
4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the
flag State, through appropriate channels, of the action taken and of any penalties
subsequently imposed.
TERRITIOTRIA
he Corfu Channel Case, ICJ Rep 4, 1949,(Great Britain and Northern Ireland-Albania) arose
from incidents that occurred on October 22nd 1946, in the Corfu Strait: two British
destroyers struck mines in Albanian waters and suffered damage, including serious loss of
life.
An incident had already occurred in these waters on May 15th, 1946: an Albanian battery had
fired in the direction of two British cruisers. The United Kingdom Government had protested,
stating that innocent passage through straits is a right recognized by international law; the
Albanian Government had replied that foreign warships and merchant vessels had no right to
pass through Albanian territorial waters without prior authorization;

4
 MODULE 3- AIR LAW & OUTER SPACE
AIR LAW

MEANING

Aviation Law is one of the specialty field in Studies of Law. Niche areas od law. Air Law is a
general viewpoint that covers the special characteristics and demands of aviation field. There
is no governing body with the right to frame the air laws governing all states in the legal
sense or there is not any international law. But the phrase Air Law is used to describe a
system of implicit and explicit agreements that the nations together. These agreements are
known as conventions.

It is a branch of law that is concerned with air transport operations, and all the associated
legal and business concerns. This is a series of rules that governs the use of airspace for
aviation, and its benefits for the general public and the nations of the world. Air law, the
body of law directly or indirectly concerned with civil aviation. Aviation in this context
extends to both heavier-than-air and lighter-than-air aircraft. Because of the essentially
international character of aviation, a large part of air law is either international law or
international uniform law (rules of national law that have by agreement been made
internationally uniform)

HISTORY AND DEVELOPMENT

Between 1867 and 1896 the German pioneer of human aviation Otto Lilienthal was the first
person who made well-documented, repeated, successful gliding flights.

The first attempt to set the air law was made around 1910, when German air balloons
repeatedly trespassed over French territory. The French government wanted both the
governments to come together to form an agreement to resolve the problem. As a result, the
Paris Conference of 1910 was convened, the tendency of the conference did not adopt the
idea of ‘freedom of the air’ but was in favor of the sovereignty of states in the space above
their territories, which was reflected on the draft convention at the plenary session of the
conference.

Following the 1st World War, the first scheduled air service between Paris and London come
into force on 8 Feb 1919, the existing regulations was considered incorporated into a
convention. But a choice had to be made between a free airspace analogous to the principle of

5
maritime law, and an airspace governed by the sovereignty of the states. No matter the rule of
Air Law was to be made subject to the rules existent to regulate other means of other
transportation like rail, road or sea

THEORIES OF INTERNATIONAL AIR LAW

Efforts to ascertain the breadth of the layer of air comprised within the air territory so as to
establish a consensus and acceptable principle of sovereignty over the air space had generated
a lot of controversy amongst jurists. This controversy had given rise to theories propounded
on a stage by stage basis which subsequently led to the birth of the principle of sovereignty
over the air space.

The theories of sovereignty over the air space propounded by the jurists were initially
grouped into two main schools of thought. These are the theory which maintained that the air
space is by its nature free and that which maintained the theory of sovereignty of the
subjacent state in the air space above its territory. Notwithstanding the various theories and
inspite of the existing uncertainty as to where the air space, that is, the atmosphere of our
planet ends and the outer space begins, the basic and fundamental principle of air law is that
every state has complete and exclusive sovereignty over the air space above its territory. By
this principle, no air craft of one state can enter the air space of another state without the
permission of that other state sought and obtained.

The theories on the legal status of the airspace may be summarized as follows:

a) Theory Of The Unlimited Freedom: this theory is supported by those who, having seen
the advantages that the absolute freedom of the seas have brought to the International
community, thought that the same criteria could be applied to the air navigation.

b) Theory Of The Absolute Sovereignty: completely opposed to the previous one: it refused
the principle of freedom and conversely claimed the State sovereignty over the atmosphere. It
also inherited the idea that the Roman Law had applied to the land property in order to define
its unconditional character and to reject any claim from the other States (the already
mentioned principle dominus soli est dominus usque ad sidera et usque ad inferos).

c) Intermediate Theories: it tried to combine the States‟ claims with the creation of an
efficient International air navigation system. One of the most famous theories was formulated
in 1901 by the French jurist Paul Fauchille, who claimed that the air is free, and its freedom
may only be limited by strictly defined rights belonging to the State underneath. According to

6
this scholar the sovereignty of the land owner over the air space was limited to the maximum
height of the buildings it could build; beyond this limit the atmosphere was free and freely
exploitable.

d) Theory Of The Limited Sovereignty: it stemmed from the principle that the atmosphere
is subject to the State power, but it introduced some limitations in favour of the air traffic of
adequate means whose airworthiness could be proved by specific international certifications.
This theory anticipated the following regime which was based upon a functional and not just
spatial idea of the air navigation. air space is within the sovereignty of the state subject to
granting the right to innocent passage for foreign civil aircraft but not military aircraft.

STATE SOVEREIGNTY

State sovereignty over its territorial airspace is the basic principle underlying the whole
system of International Air Law. Irrespective of whether the airspace can be regarded as a
part of a state’s territory, it generally recognized that it is a sovereign right over the airspace
above its land and territorial waters. After the collapse of the short lived concept of freedom
of the air in the first decade of 19 century, air law theory is base on the concept of air
sovereignty as airspace is regarded as an extension of state’s land and maritime territorial or
its complementary element.

After WWI, the Aeronautical Commission of the Peace Conference in Paris met to examine
fundamental principles for air navigation The Commission consisted of delegates from many
European States as well as Japan, Cuba, Brazil and the U.S.. The Commission drafted the
Convention Relating to the Regulation of Aerial Navigation, known as the Paris Convention.
Article 1 of the Convention recognized the exclusive sovereignty of all States over the air
space above their territory, including above territorial waters. The Paris Convention did not
define the term “air space.” The words of the rule emphasize the intention of ‘contracting
states’ to recognize an existing rule rather than to create a new one for mentioning every
state, thus the rule also includes ‘non-contracting states’ in which the words are implied
recognition of legitimate enforcement of air sovereignty, although complete and exclusive, it
cannot be considered absolute or free of any legal constraints under international law. Its
exercise is actually subject not only treaty obligations but also to some generally accepted
rules of customary law. As stated, air sovereignty cannot be understood as being absolute if
international flight is occurred. The rights even if are exclusive are also subject to limitations.

7
Bennin V Niger a boundary represents the line of separation between areas of state
sovereignty, not only on the earth’s surface but also in the subsoil and in the suprajacent
column of air.

Nicaragua v US the principle of respect for territorial sovereignty ai also directly infringed by
the unauthorised overflight of a state’s territory by aircraft belonging to or under the control
of the govt. of another state.

A state sovereignty in territorial airspace and its legal consequences cover:

The rule, restated in Art 1 of Paris Convention and Art 1 of Chicago Convention of 1944,
‘the contracting states recognize that every state has complete and exclusive sovereignty over
the airspace above its territory.’

1. freedom of air navigation in non-territorial airspace;

2. nationality of aircraft involving control, responsibility;

3. right of protection assigned to the registered state10 of the flag;

4. use of lawful means to suppress unlawful use of aircraft;

5. recognition either of exclusive jurisdiction of the territorial state or of state of the aircraft’s
nationality; and

6. concurrent jurisdictions in other areas of civil aviation activities.

Since the advent of space exploration began it become important to restrict or limit the air
space. Air space is limited in height at most to the point where air space meets space. It is
hard to make a precise boundary between the two and it requires technology and other
factors. Roughly it is estimated to be between 50- 100 kilometres- ‘karman line’ UK believes
that their air space extends up to the height any aircraft can fly.

In today’s day, aircrafts are being modeled to reach greater heights and therefore there is
speculation as to the limit of airspace since it is open to achieving increased heights. Thus,
this uncertainty has prevented any agreements based on delimitation of air space.

INTERNATIONAL COVENTIONS

The Paris Convention 1919

8
On the initiative of the French Government, a conference of thirty-eight States was held in
Paris and as a result of their deliberations the First International Convention on Air
Navigation was opened for signature on October 13, 1919.

The main principles of the Convention may be stated as follows:

 Stated that every state has complete sovereignty but each party in times of peace
would grant right of innocent passage to private aircrafts subject to terms of the
Convention.
 Private aircrafts could be restricted to fly over certain areas for public safety or
military reasons.
 Aircrafts were to bear their nationality and registration marks.
 Had to follow prescribed route, will have to land if ordered to do so
 Military aircrafts were not granted right of innocent passage. Prior authorization was
required.
 Uniform and obligatory regulation of air navigation to ensure safety, was imposed.

Probably the most important achievement of the convention was the creation of an
International Commission for Aerial Navigation, commonly known as C.I.N.A.

The importance of this Convention cannot be over-emphasized. Its provisions became part of
the national legislation of the contracting States and it proved an inspiration to the
development of national air law in Europe, which up to that time was very limited.

Havana convention 1928

The Convention was modelled on the Paris Convention, although the material contained in
the annexes to the latter convention was included among the main provisions of the Havana
Convention. The Convention also dealt with some aspects of private air law.

Warsaw Convention 1929

The Convention was a direct result of the study by CITEJA of the draft convention on the
liability of the air carrier approved at the 1925 conference and of the supplementary questions
of traffic documents and liability in the case of non-performance of international carriage.

The convention applies to the international transportation of persons, baggage and goods
performed by aircraft for remuneration or hire, as well as to gratuitous transportation by

9
aircraft performed by an air transportation enterprise. Mandates carriers to issue passenger
tickets;

Requires carriers to issue baggage checks for checked luggage; Creates a limitation period of
two years within which a claim must be brought.

CHICAGO CONVENTION

The Second World War created not only the means for international air travel but also the
will. The magnitude of the war left world governments with a firm desire to usher in a new
era of cooperation and peace. To that end, delegates from 52 countries signed the Convention
on International Civil Aviation shortly before the official end of hostilities in Europe.

The agreement is generally referred to as the Chicago Convention because it was signed in
Chicago, Illinois. The Convention established a framework that `eventually resulted in a
common system of international aviation rules. It included provisions for safety and
environmental regulations, and also defined the rights and obligations of every nation as they
relate to international airline operations. The Convention was designed to replace the
hundreds of patchwork individual agreements with a common system that would permit
international commercial aviation to flourish. It only applies to international commercial air
travel; it does not apply to military operations, domestic commercial air travel, or private
aircraft operations.

The Convention recognizes each country’s sovereign interest in its own airspace, prohibits
military aircraft and drones from operating over member countries without permission,
prevents monopolies, bars member countries from discriminating against one another’s
aircraft, requires that public airports and aviation facilities be made available to all member
countries to the same degree as domestic aircraft, recognizes the right of every country to
regulate air travel within its borders, and encourages each country to adopt uniform air
regulations.

It was intended to replace the Paris Convention on Aerial Navigation of October 13, 1919,
and did so when it came into effect on April 4, 1947. It also provided the constitution for a
new permanent international organization, the International Civil Aviation Organization.

BASIC PRINCIPLES OF INTERNATIONLA AIR LAW

10
Territorial Sovereignty. Every State has, to the exclusion of all other States, the unilateral
and absolute right to permit deny entry into the area recognized as its territory and similar
right to control all movements within such territory..

National Airspace.. The territory of a sovereign State is three dimensional, including within
such territory the airspace above its national lands and its intern national lands and its internal
and territorial waters.

Freedom of the Seas. Navigation on the surface of the high seas and flight above such seas
are free for the use of all.

Nationality of Aircraft. Aircraft have the characteristic of nationality similar to that

developed in maritime law applicable to ships. Thus aircraft have normally a special
relationship to a particular State which is entitled to make effective the privileges to which
such aircraft may be entitled and such State is also reciprocally responsible for the
international good conduct of such aircraft.

ICAO

For international air travel to be efficient and effective, there must be a uniform system of air
regulations. A patchwork approach is an impediment to the free flow of air traffic across
international borders. In order to foster the development of a uniform approach to air
regulations, the Chicago Convention created an international governing body – the ICAO.

Its purpose is to “develop the principles and techniques of international air navigation and to
foster the planning and development of international air transport.” The ICAO is body of the
UN and it is responsible for developing uniform air transportation standards that apply to
international flight. Its daily business is run by a council, a permanent body which performs a
variety of duties in the legal, technical and recently also in the economic field. It has a state
membership of over 150 at present and operates under the supervision of an assembly with
important budgetary powers. It also contains a legal committee, which is taking charged with
preparing and drafting international treaties and conventions on the Air Law prior to their
submission to a Diplomatic Conference for final approval. One of the important roles of the
council lies to the settlement of disputes as it is authorized to request legal opinions from the
ICJ, The International Court of Justice at the Hague offering interpretation of treaties and
conventions, or acting as a mediating role in disputes.

FREEDOM OF AIR

11
At the Chicago Convention, the US urged the delegates to adopt a set of aviation rights
known as freedoms of the air. Other countries, wary that the dominant US aviation industry
would monopolize world air travel if such broad aviation rights were enacted, declined to
incorporate these rights into the Convention on International Civil Aviation. the freedoms of
the air were placed in two separate agreements called the International Air Services Transit
Agreement and the International Air Transport Agreement. These agreements are open to any
country that signs the Convention on International Civil Aviation.

1. First Freedom of the Air: The first freedom is the right granted by one country to
another to fly across its territory without landing. For example, an airline of country A
may overfly country B enroute to country C. The first freedom is sometimes called
either the transit freedom or the technical freedom. First freedom rights are almost
always granted with prior notification of the flight usually required. India- Chicago
via London
2. The second freedom is the right granted to land in a country for technical reasons,
such as refueling or maintenance, but not for commercial reasons. For example, an
airline from country A might land in country B to refuel or perform maintenance
while on its way to country C, but it is not allowed to load or unload passengers.
Second-freedom rights are not utilized as much as they used to be. Prior to the advent
of long-range jetliners, airports such as Anchorage, Alaska, Shannon (Ireland), and
Reykjavik were commonly used as refueling airports. Second freedom rights are
usually routinely granted with prior notification required. India- stops in London –
Chicago
3. Third Freedom of the Air The third freedom is the right granted by one country to
another to land for the purpose of disembarking passengers who boarded in the
originating country. For example, an airline of country A is permitted to enplane
passengers in country A, fly to country B, and disembark the passengers there. The
nationality of each passenger is of no concern with this or any other freedom.
Nationality concerns are covered by separate immigration and security rules. Freedom
three simply defines the right of the airline to fly between two countries. india- paris
4. Fourth Freedom of the Air The fourth freedom is the right granted by one country to
another to land for the purpose of enplaning passengers to return to the airlines
country of origin. For example, an airline of country A is permitted to enplane
passengers in country B and return them back to country A. Just like freedom three,

12
 the nationality of each passenger does not matter; this freedom is concerned with the
nationality of the airline itself. Third and fourth freedom rights are normally granted
concurrently in the air service agreement agreed to by two countries. paris -india
5. Fifth Freedom of the Air The fifth freedom is the right granted by one country to
another to land in a second country, pick up new passengers in the second country,
and take them to a third country. For example, an airline of country A might fly to
country B, pick up passengers in country B, and fly them to country C. An extension
of the fifth freedom rights would permit the airline of country A to bring passengers
back from country C to country B. Fifth freedom rights are rarely granted as they
essentially give a foreign airline a right to serve two unrelated countries, albeit those
connected by a previous flight. india- paris- new York- air idnia

The sixth and seventh freedoms of the air are generally accepted, but are not specifically
included in either the International Air Services Transit Agreement or the International Air
Transport Agreement.

6. The sixth freedom of the air is the right to carry passengers from one country to
another, with a stop in the airline’s home country. Under this freedom, an airline of
country A could pick up passengers in country B, stop in country A, and then fly to
country C. Paris- India- Japan
7. The seventh freedom of the air is similar to the sixth, except that there is no stop in
country A; in other words, an airline of country A could pick up passengers in country
B and disembark them in country C. air india from paris to new york

The eighth and ninth freedoms of the air are also not included in the International Air
Services Transit Agreement or the International Air Transport Agreement. These freedoms
protect the right of cabotage and are less commonly accepted than the sixth and seventh
freedoms. Cabotage is the carriage of goods or passengers within a single country by an
airline of a foreign country. It is common within Europe, but its acceptance outside the EU is
more limited.

8. The eighth freedom of the air guarantees the right of country A to stop at a two
locations in country B before returning to country A. India- Chicago- New York
9. The ninth freedom of the air guarantees with right of an airline to conduct domestic
operations within a foreign country, without connecting to the country of origin. For

13
 example, Ryanair is an airline based in Ireland that has routes connecting Rome and
Milan in Italy without stops in Ireland. air india- chicogo- california

SARPS

SARPs concern specifications for physical characteristics, materials, configuration,

performance, personnel, or procedure. If approved by two-thirds of the Council, SARPs are
incorporated into the Chicago Convention as Annexes. Standards are considered necessary
for the safety or regularity of international air navigation. Recommended Practices, while not
strictly necessary, are strongly encouraged. Article 37 of the Chicago Convention explains the
scope of the ICAO’s rulemaking authority.

To this end the International Civil Aviation Organization shall adopt and amend from time to
time, as may be necessary, international standards and recommended practices and
procedures dealing with:

a) Communications systems and air navigation aids, including ground marking;

b) Characteristics of airports and landing areas;

c) Rules of the air and air traffic control practices;

d) Licensing of operating and mechanical personnel;

e) Airworthiness of aircraft;

f) Registration and identification of aircraft;

g) Collection and exchange of meteorological information;

h) Log books;

i) Aeronautical maps and charts;

j) Customs and immigration procedures;

k) Aircraft in distress and investigation of accidents; and such other matters concerned with
the safety, regularity, and efficiency of air navigation as may from time to time appear
appropriate.

IATA

14
The International Air Transportation Association IATA is not an official body but its aim and
objective are clearly set out in its incorporating acts for the safe, regular and economical air
transport for the benefit of the air aviation, to foster air commerce and to study problems
connected therewith by means of collaboration among airlines engaged directly or indirectly
in international air transport service. Its job is always working with ICAO and the other
international organization, lies in the sectors of technical and commercial. IATA has another
important functions, one of which is performing as a clearing-house, handling the ticketing
clearing for airlines’ account under the responsibility of its financial committee since 1947 in
London, later, it moved to Geneva. The other function of IATA is to fix tariff rates for
international air transport, its activities find their expression in Resolutions and
Recommended Practices adopted by the Traffic Conferences which become binding on the
member when approved by interested governments.

HIJACKING

Aerial hijacking, popularly termed as “skyjacking” is an unlawful seizure of aircraft by an

individual or a group. According to Article 1 of the Hague Convention for the Suppression of
Unlawful Seizure of Aircraft, 1970: “Any person who on board an aircraft in flight:
unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or
exercises control of, that aircraft, or attempts to perform any such act, or is an accomplice of
a person who performs or attempts to perform any such act commits an offence”.

The pilots may be forced to fly or land according to the wishes and orders of the hijackers in
most cases. In some cases, the hijackers may themselves fly the aircraft. There may be
various motives for such unlawful seizure. For the last one and a half decades, it has become
a pastime of men of mental depravity, fugitive criminals and political offenders which causes
unnecessary hazards to innocent passengers, wanton destruction of property and disruption of
civil aviation.

INCIDENTS

1ST INCIDENT OF ARIEL HIJACKING

The first aerial hijacking within the United States occurred on May 1, 1961, when a
commercial airliner en route from Miami to Key West, Florida, was forced to detour to Cuba.
By the end of 1961, four airplanes had been hijacked to Cuba, and many of the airplanes
subsequently hijacked in the United States and elsewhere in the Western Hemisphere were

15
flown to Cuba by either homesick Cubans or politically motivated leftists. Some of these
hijackings were financially motivated, with the hijackers calling for huge ransom payments in
exchange for ensuring the safety of the passengers and crew, though few were successful.

9/11

On September 11, 2001, terrorists hijacked four airplanes in the United States, using them as
weapons in a coordinated attack that resulted in the deaths of over 3,000 people. Two planes
were flown into the World Trade Center towers in New York City, causing their collapse. A
third plane crashed into the Pentagon near Washington, D.C., and the fourth plane, United
Flight 93, crashed in a field in Pennsylvania after passengers attempted to regain control from
the hijackers. This unprecedented use of fuel-laden planes as flying bombs caused massive
loss of life and property damage and introduced new security challenges (Encyclopedia
Britannica) (All That's Interesting).

The Hague Convention for the Suppression of Unlawful Seizure of Aircraft criminalizes
aircraft hijacking internationally and requires states to establish jurisdiction and prosecute
offenders or extradite them (Welcome to Blackpast •). The International Criminal Court
defines such acts as crimes against humanity if they involve systematic attacks against
civilians (Welcome to Blackpast •). The United States, under customary international law and
federal anti-terrorism statutes, has the authority to prosecute such terrorist acts and can
invoke self-defense measures under Article 51 of the U.N. Charter until the Security Council
intervenes. NATO allies also recognized the 9/11 attacks as an armed attack, invoking Article
5 of the North Atlantic Treaty for collective defense (Welcome to Blackpast •) (Encyclopedia
Britannica).

Pakistan hijack of Indian aircraft

On January 30, 1971, Kashmiri separatists Hashim Qureshi and Ashraf Qureshi hijacked an
Indian Airlines Fokker F27 Friendship aircraft, named "Ganga," during its flight from
Srinagar Airport to Jammu. The hijackers forced the plane to land at Lahore Airport in
Pakistan. This incident involved 26 passengers and crew members who were held captive but
were later released unharmed.

The hijacking was significant due to its political implications. The Pakistani government
initially hailed the hijackers as freedom fighters, but subsequent investigations revealed that

16
the hijacking had broader geopolitical ramifications. It led to India banning overflights by
Pakistani aircraft, which had strategic consequences during the Indo-Pakistani War of 1971.

The aircraft was eventually set on fire and destroyed by the hijackers at Lahore. This incident
underscored the ongoing tensions and conflicts in the Kashmir region and marked a notable
episode in the history of Indian aviation security (Encyclopedia Britannica) (All That's
Interesting) (Welcome to Blackpast •)

TOKYO CONVENTION

The Convention on Offences and Certain Other Acts Committed on Board Aircraft was
signed at Tokyo in a diplomatic conference on September 14, 1963. It came into force on
December 4, 1969.

• Application and exemptions

Article 1 provides that the Convention shall apply in respect of (a) offences against penal law;
(b) acts which, whether or not they are offences, may or do jeopardize the safety of the
aircraft or of persons of property therein or which jeopardize good order and discipline on
board. It also states that except as provided in Chapter III, the Convention shall apply in
respect of offences committed or acts done by a person on board any aircraft registered in a
Contracting State, while that aircraft is in flight or on the surface of the high seas or of any
other area outside the territory of any State.

The Convention exempts aircrafts used in military, customs or police services from its
application.

• Jurisdiction

Article 3 of the Convention states that jurisdiction over offences and acts committed on board
may be competently exercised by the State of registration of the aircraft. Under article 4, it is
also provided that a Contracting State which is not the State of registration may not interfere
with an aircraft in flight in order to exercise its criminal jurisdiction over an offence
committed on board except in the following cases: (a) the offence has effect on the territory
of such State; (b) the offence has been committed by or against a national or permanent
resident of such State; (c) the offence is against the security of such State; (d) the offence
consists of a breach of any rules or regulations relating to the flight or maneuver of aircraft in

17
force in such State; (e) the exercise of jurisdiction is necessary to ensure the observance of
any obligation of such State under a multilateral international agreement.

• With regard to aerial hijacking

Article 11 of the Convention provides that in case of such an incident Contracting States shall
take all appropriate measures to restore control of the aircraft to its lawful commander or to
preserve his control of the aircraft. It is also stated henceforth that the Contracting State in
which the aircraft land shall permit its passengers and crew to continue their journey as soon
as practicable and shall return the aircraft and its cargo to the person lawfully entitled to
possession. The Convention also declares for the Contracting State to take custody or other
measures to ensure the presence of any person suspected of such an act as contemplated in
Article 11(1) and of any person of whom it has taken delivery. The custody and other
measures shall be as provided in the law of that State but may only be continued for such
time as is reasonably necessary to enable any criminal or extradition proceedings to be
instituted. Article 15(2) also provides that the Contracting State in whose territory a person
has disembarked as is suspected of having committed an act contemplated in Article 11(1),
shall accord to such person treatment which is no less favorable for his protection and
security than that accorded to nationals of such Contracting State in like circumstances.

• Shortcomings of the Convention

Firstly, the Tokyo Convention, 1970 fails to provide any definition for the term “aircraft
hijacking”. Secondly, there is no provision for any concrete measures to be taken on
commission of such an act. There is no provision formulating punishment for offenders
thereof. The Convention only emphasizes on restoration of property and for the passengers
and crew to continue their journey as soon as practicable. It provides for the offender being
taken into custody and other measures for criminal or extradition proceedings but Article 16
makes it clear that it is not obligatory for the State to grant extradition. Moreover, no direct
effort to deal with cases of aerial hijacking has been made. Thirdly, “aircraft” nowhere
specifies international or domestic aircraft nor does it seem to extend any measures for the
latter.

HAGUE CONVENTION

The Hague Convention, 1970 recognized the fallacies of the Tokyo Convention and the
increase in the number of incidents of aerial hijacking and thus the urgent need for States to

18
take necessary preventive action against the same. This led to the adoption of The Hague
Convention in 1970. After having been ratified by the prescribed number of States, The
Hague Convention came into force on October 17, 1971.

• Application and exemptions

The Convention applies to all the State parties having signed and ratified the Convention with
respect to both international and domestic flights. Article 3 exempts aircrafts used in military,
customs or police services.

• Jurisdiction

Article 4 explicitly recognizes the jurisdictional claims of at least seven categories of states:
(1) the state where the aircraft is registered, (2) the state of the operator (lessee) of the
aircraft, (3) the state in whose territory the aircraft lands with the alleged offender on board,
(4) the state in whose territory the alleged offender is found, (5) the state in whose territory or
in whose airspace the offence was committed, (6) the state whose national is the alleged
offender, and (7) the state whose security is directly affected by the offence. It does not,
however, prescribe any hierarchy among these possible competing claims to jurisdiction.

• With respect to aerial hijacking

Article 6 of the convention provides for immediate action in case of such an incident. Upon
being satisfied that the circumstances so warrant, any Contracting State in the territory of
which the offender or the alleged offender is present, shall take him into custody or take other
measures to ensure his presence. The custody and other measures shall be as provided in the
law of that State but may only be continued for such time as is necessary to enable any
criminal or extradition proceedings to be instituted. Such State shall immediately make a
preliminary enquiry into the facts. Any person in custody pursuant to paragraph 1 of this
Article shall be assisted in communicating immediately with the nearest appropriate
representative of the State of which he is a national. When a State, pursuant to this Article,
has taken a person into custody, it shall immediately notify the State of registration of the
aircraft, the State mentioned in Article 4, paragraph 1(c), the State of nationality of the
detained person and, if it considers it advisable, any other interested States of the fact that
such person is in custody and of the circumstances which warrant his detention. The State
which makes the preliminary enquiry contemplated in paragraph 2 of this Article shall
promptly report its findings to the said States and shall indicate whether it intends to exercise

19
jurisdiction. Article 9 of the Hague Convention corresponds with Article 11 of the Tokyo
Convention.

• Shortcomings

Even though the Hague Convention is definitely an improvement over the Tokyo Convention
it is still not without deficiencies. The Convention still fails to recognize the act of hijacking
as a crime under International law. Secondly, it still provides for no relief or rewarding of
damages to the innocent passengers and crew members hijacked aboard. The Montreal
Convention resembles greatly to the Hague Convention but also extends to acts of unlawful
interference against international civil aviation which have not been covered in the Hague
Convention. The most regretful shortcoming of all the treaty laws still remain that the State
that receives the hijackers and where the flight lands could still welcome them as political
refugees which would again provide them immunity against any extradition or prosecution
proceedings.

MONTREAL CONVENTION

The offences committed on board aircraft are stated exclusively in the Hague and Tokyo
Convention, the Montreal convention is the one to conquer the other unlawful acts against the
safety of civil aviation. It is concluded in 1971 one year following the adoption of the Hague
Convention

A person is required to commit an offence under Art 1 (1) of the Montreal Convention, if he
unlawfully and intentionally:-

1. Performs an act of violence against a person on board an aircraft in flight if that act is
likely to endanger the safety of that aircraft, or

2. Destroys an aircraft in service or causes damage to such an aircraft which renders it

incapable of flight or which is likely to endanger its safety in flight, or

3. Places or causes to be placed on an aircraft in service, by any means whatsoever, a device

or substance which is likely to destroy that aircraft or to cause damage to it which render it
incapable of flight, or to cause damage to it which is likely to endanger its safety in flight, or

4. Destroys or damages air navigation facilities or interferes with their operation, if any such
act is likely to endanger the safety of aircraft in flight, or

20
5. Communicates information he knows to be false, thereby endangering the safety of aircraft
in flight. Under item 5, if there is a false bomb alerts cause ‘only delay and no damage’ to the
aircraft are not covered in this convention.

In Art 3, the contracting states have undertaken to impose severe penalties with regard to the
offences listed above.

In Art 5, the contracting states may be necessary to establish its jurisdiction in the following
circumstances:- 15

1. when the offence is committed in the territory of that states.

2. when the offence is committed against or on board an aircraft registered in that state.

3. when the aircraft on board which the offence is committed lands in its territory with the
alleged offender still on board.

4. when the offence is committed against or on board an aircraft leased without crew to a
lessee who has his principal place of business or, if he has no such place of business, his
permanent residence in that state.

According to Art 5 (2), in the event of the offender being found on a state territory, the state
should take such measures even the offender is not being extradited.

Further more, under Art 10, the duty for contracting states is necessary to take any step to
prevent the offences as Art 1 stated before by using either international law or national law.

Art 4 (2) indicates the convention is applicable to domestic as well as international flights if
the point of take-off or landing, or both are situated outside the territory of the state of
registration, or when the offence is committed in the territory of a state other than the state of
registration. The words ‘an aircraft is considered to be in service from the beginning of the
preflight preparation of the aircraft by ground personnel or by the crew for a specific flight
until 24 hour after any landing’ mentioned in Art 2 (b) is purposely extended the entire period
of service during which the aircraft is in flight as defined in Art 2 (a) because the convention
is designed applicable to domestic and international flight. Any landing is supposed to cover
intended and forced landing.

Art 12 requires states supply each other with all relevant information when they have reason
to believe that an offence mentioned in Art 1 is going to be committed.

21
Montreal Convention covers several identical subjects in the Hague Convention, they are:-

1. The non-applicability of convention to military, custom and police aircraft (Art 4)

2. The definition of the words ‘in flight’ (Art 2(a))

3. Joint and international operating agencies (Art 9)

4. The final provision, including settlement of disputes (Art 13-16)

LOCKERBIE CASE

The Lockerbie case is the deadliest terrorist attack in British history, which occurred on
December 21, 1988 when Pan Am flight 103 exploded over Lockerbie, Scotland. The Boeing
747 was en route from London to New York City when a bomb hidden in a cassette player
detonated at an altitude of 31,000 feet. The blast killed all 259 passengers and crew members
on board, and 11 people on the ground, including entire families.

The United States and Scotland conducted a complex investigation over three years, and in
1991 demanded that Libya extradite two Libyan agents for trial in the United States. Libya
refused, and in 2001, Libyan intelligence operative Abdul Basit Ali al-magrahi was found
guilty of the bombing and jailed for life. However, he was later released due to cancer.

In December 2022, Scottish and U.S. law enforcement officials announced that Abu Agila
Masud and Mohammed Masood Kia al-murimi had been taken into custody, and Masud is
expected to stand trial in a federal court in Washington, D.C

ENTEBBE INCIDENT

The Ntebbe Incident, commonly known as Operation Entebbe, was a daring hostage rescue
mission carried out by the Israel Defense Forces (IDF) on July 4, 1976. It took place at
Entebbe Airport in Uganda and involved the rescue of hostages from an Air France plane
hijacked by terrorists.

The incident began on June 27, 1976, when Air France Flight 139, traveling from Tel Aviv to
Paris, was hijacked shortly after a stopover in Athens by two members of the Popular Front
for the Liberation of Palestine (PFLP) and two German terrorists from the Revolutionary
Cells. The plane, carrying 248 passengers and 12 crew members, was diverted first to
Benghazi, Libya, for refueling, and then to Entebbe, Uganda, where the hijackers were
supported by Ugandan dictator Idi Amin.

22
Upon landing in Entebbe, the hostages were divided, with Israelis and Jews being separated
from the others. The non-Israeli hostages were released over the following days, but 94
passengers and the Air France crew remained captive. The hijackers demanded the release of
40 Palestinian and pro-Palestinian militants imprisoned in Israel and 13 prisoners held in
other countries.

The Israeli government, after extensive deliberation and intelligence gathering, decided to
mount a rescue operation. On the night of July 3-4, a group of about 100 Israeli commandos
flew over 4,000 kilometers to Entebbe. The operation, codenamed Operation Thunderbolt and
later renamed Operation Yonatan in honor of Yonatan Netanyahu, the raid's commander who
was killed during the mission, involved a surprise landing at Entebbe Airport.

The commandos, disguised in Ugandan military uniforms, swiftly attacked the airport
terminal, killing all the hijackers and about 45 Ugandan soldiers. They managed to rescue
102 hostages, with three hostages and Yonatan Netanyahu being the only casualties among
the rescuers and hostages. The rescue force also destroyed a significant portion of the
Ugandan Air Force stationed at the airport to prevent pursuit.

Operation Entebbe is celebrated as a remarkable example of military precision and bravery,

significantly enhancing the reputation of the IDF and influencing counter-terrorism tactics
worldwide

OUTER SPACE

International law holds that outer space and celestial bodies are not subject to national
appropriation (no-one can own them), and that exploration and use of outer space should be
carried out for the benefit of all to advance international peace and security and promote
international cooperation and understanding. However, space is already being used for
military operations, in particular surveillance and communications. In addition, a number of
countries are researching, developing and testing systems for anti-satellite warfare and other
applications of force into or from space.

The Outer Space Treaty and the Moon Treaty prohibit the placement of nuclear weapons or
other weapons of mass destruction in space and prohibits the establishment of military
installations or the conducting of military exercises on the moon. However, the treaties do not
prohibit the placement of conventional weapons systems – or systems which contribute to
warfare (such as military command and communications systems) in space. Nor does

23
international law prohibit the targeting of satellites from earth or from space (anti-satellite
warfare).

Russia and China have proposed a Treaty on Prevention of the Placement of Weapons in
Outer Space and of the Threat or Use of Force against Outer Space Objects, but this does not
yet receive support from all space active countries (most notably the US). In addition, the
European Union has proposed an International Code of Conduct for Outer Space
Activities which is not as ambitious as the Russia/China proposal, but which does include
provisions to prevent the threat or use of force in outer space

INDIA AND OUTER SPACE

 1969-Indian Space Research Organisation (ISRO) formed under Department of

Atomic Energy

 Indian National Satellite (INSAT) System Established In 1983, is a multipurpose

system for telecommunications, television broadcasting and radio networking,
meteorology and disaster warning

 India party to all the Conventions and treaties-Outer space treaty and corresponding
treaties.

 The space revolution in India began with the

 launching of small sounding rockets from the Thumba Equitorial Rocket Launching
Station (TERLS) in the year 1963 under the support of the United Nations.

 In 1975, India entered in to the space age by the launching of the first scientific
satellite namely Aryabhatta on 19 April 1975

MISSIONS

Xposat: Uncovering Universe Mysteries

Taking a closer look at our galactic neighbors, India demonstrated its capabilities with the
Xposat mission, which stands for ‘X-ray Polarimeter Satellite.’ Xposat’s previous mission
was to investigate X-rays coming from cosmic objects such as supernovae, neutron stars, and

24
black holes. Equipped with specialist equipment, the satellite illuminated the magnetic fields
and other phenomena connected to these celestial marvels by measuring the polarization of
X-rays.

Through active participation in international partnerships, India has shown its dedication to
furthering the field of X-ray astronomy and broadening the human understanding of the
universe. Xposat demonstrated India’s commitment to advancing space science and
highlighted its role as a major actor in solving cosmic mysterie

Gaganyaan (Upcoming):

Scheduled for launch in the near future, the Gaganyaan mission aims to send Indian
astronauts (Vyomanauts) to space, marking India's first manned space mission

Mars Orbiter Mission (Mangalyaan) (2013

Launched on November 5, 2013, Mangalyaan made India the first Asian country to reach
Martian orbit and the fourth space agency globally to do so. It was also the least expensive
Mars mission to date. Exploration of Mars. Study the constituents of Martian atmosphere
including methane and CO2 using remote sensing techniques. Study the dynamics of the
upper atmosphere of Mars, effects of solar wind and radiation and the escape of volatiles to
outer space. The mission would also provide multiple opportunities to observe the Martian
moon Phobos

Aditya L1: Uncovering the Secrets of the Sun

The Aditya L1 mission, an investigation into the field of heliophysics, was another feather in
India’s space exploration crown. The mission’s name, which derives from the name of the
Sun, represents its emphasis on investigating the corona, the outermost layer of the Sun. The
scientific community was looking forward to Aditya L1’s insights into solar activity and how
it affects space weather. Aditya L1, outfitted with state-of-the-art equipment, set out to study
the Sun over a range of wavelengths in order to improve our comprehension of solar
phenomena. This mission demonstrated India’s commitment to space-based solar research,
which aims to solve the Sun’s riddles and enhance our capacity to forecast and control space
weather phenomena.

25
Chandrayaan-3: Traveling Across Lunar Surface

India recently commemorated the accomplishments of Chandrayaan-3, a mission that

expanded on the successes of Chandrayaan-2. The mission’s goal was to investigate the
south-polar region of the Moon, an area rich in scientific opportunities. The main goal was to
explore the lunar surface more thoroughly using cutting-edge equipment that may help solve
the geological puzzles surrounding the Moon.

The goal of Chandrayaan-3 was to outperform earlier findings, especially Chandrayaan-2’s

finding of water molecules on the lunar surface. This mission demonstrated India’s
dedication to discovering the heavenly mysteries concealed in our nearest cosmic neighbor
and represented a major advancement in the nation’s lunar exploration efforts.

26
 MODULE 4- INTERNATIONAL CRIMINAL LAW
MEANING

International criminal law is a part of public international law. It is the body of laws,
agreements, and norms that govern international crimes and their suppression, as well as
regulations that tackle conflict and cooperation between national criminal-law systems.

Most international laws are involved with interstate trade, whereas international criminal law
is concerned with individuals. Individuals, not governments or organisations, are held
accountable under international criminal law, which prohibits and punishes unlawful
behaviour. The rules, techniques, and principles of international criminal law involve liability,
defences, evidence, court process, penalty, victim participation, witness protection, mutual
legal assistance, and collaboration.

Like criminal law generally, international criminal law prohibits certain actions by
individuals and establishes the sanctions applicable when an individual commits those
actions. In this regard, criminal law (whether domestic or international) differs from human
rights law and international law generally, in that those held accountable are individuals,
rather than governments.

Hostis Humani Generis – enemy of the entire mankind

International Crimes include : War Crimes, Crime Against Humanity , Genocide,

Aggression.

These crimes harm the interest of all nations - Threatens international peace and security

ICL promotes accountability and avoids safe heavens by bringing the perpetrators of serious
International Crime to justice when the states with close links are either unable or unwilling
to prosecute.

A State-sovereignty-oriented approach has been gradually replaced by a human-being

oriented approach

The responsibility of a State under international law is a matter for a separate branch of
international law, and is not dependent upon the legal responsibility of an individual.

ICJ Opinion in the case of Bosnia and Herzegovina v Serbia and Montenegro [2007]

27
For example, an agent of Libya was convicted of offences in relation to the aircraft explosion
over Lockerbie in 1988, and the governments of the United Kingdom and the United States
separately made claims for compensation from Libya.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide
in the Gaza Strip (South Africa v. Israel, 2024)

DO sources from Ipleaders

International Criminal Court (ICC) prosecutor, Karim A. A. Khan

ISRAEL PALESTINE

RUSSIA UNKRAINE

ICC

History

The International Criminal Court (“the ICC” or “the Court”) is a permanent international
court established to investigate, prosecute and try individuals accused of committing the most
serious crimes of concern to the international community as a whole, namely the crime of
genocide, crimes against humanity, war crimes and the crime of aggression.

Some of the most heinous crimes were committed during the conflicts which marked the
twentieth century. Unfortunately, many of these violations of international law have remained
unpunished. The Nuremberg and Tokyo tribunals were established in the wake of the Second
World War. In 1948, when the Convention on the Prevention and Punishment of the Crime of
Genocide was adopted, the United Nations General Assembly recognised the need for a
permanent international court to deal with the kinds of atrocities which had just been
perpetrated. The idea of a system of international criminal justice re-emerged after the end of
the Cold War. However, while negotiations on the ICC Statute were underway at the United
Nations, the world was witnessing the commission of heinous crimes in the territory of the
former Yugoslavia and in Rwanda. In response to these atrocities, the United Nations Security
Council established an ad hoc tribunal for each of these situations. These events undoubtedly
had a most significant impact on the decision to convene the conference which established
the ICC in Rome in the summer of 1998. International Criminal Court 10

On 17 July 1998, a conference of 160 States established the first treaty-based permanent
international criminal court. The treaty adopted during that conference is known as the Rome

28
Statute of the International Criminal Court. Among other things, it sets out the crimes falling
within the jurisdiction of the ICC, the rules of procedure and the mechanisms for States to
cooperate with the ICC. The countries which have accepted these rules are known as States
Parties and are represented in the Assembly of States Parties. The Assembly of States Parties,
which meets at least once a year, sets the general policies for the administration of the Court
and reviews its activities. During those meetings, the States Parties review the activities of the
working groups established by the States and any other issues relevant to the ICC, discuss
new projects and adopt the ICC’s annual budget.

120 countries are States Parties to the Rome Statute, representing all regions: Africa, the
Asia- Pacific, Eastern Europe, Latin America and the Caribbean, as well as Western Europe
and North America. 5. Where is the seat of the Court? The seat of the Court is in The Hague
in the Netherlands. The Rome Statute provides that the Court may sit elsewhere whenever the
judges consider it desirable. The Court has also set up offices in the areas where it is
conducting investigations.

The Court is funded by contributions from the States Parties and by voluntary contributions
from governments, international organisations, individuals, corporations and other entities.

composition

What does the Presidency do?

The Presidency consists of three judges (the President and two Vice-Presidents) elected by an
absolute majority of the 18 judges of the Court for a maximum of two, three-year terms. The
Presidency is responsible for the administration of the Court, with the exception of the Office
of the Prosecutor. It represents the Court to the outside world and helps with the organisation
of the work of the judges. The Presidency is also responsible for carrying out other tasks,
such as ensuring the enforcement of sentences imposed by the Court. 18.

What do the Chambers do?

The 18 judges, including the three judges of the Presidency, are assigned to the Court’s three
judicial divisions: the Pre-Trial Division (composed of not less than six judges), the Trial
Division (composed of not less than six judges), and the Appeals Division (composed of five
judges). They are assigned to the following Chambers: the Pre-Trial Chambers (each
composed of one or three judges), the Trial Chambers (each composed of three judges) and
the Appeals Chamber (composed of the five judges of the Appeals Division). The roles and

29
responsibilities of the judges are outlined below, by category of Pre-Trial, Trial, and Appeals
Chambers

Pre-Trial Chamber –

It makes a preliminary determination as to whether the case falls within the jurisdiction of the
Court

Trial Chamber –

Once an arrest warrant is issued, the alleged perpetrator arrested and the charges confirmed
by a Pre-Trial Chamber, the Presidency constitutes a Trial Chamber composed of three judges
to try the case.

A Trial Chamber’s primary function is to ensure that trials are fair and expeditious and are
conducted with full respect for the rights of the accused and due regard for the protection of
the victims and the witnesses.

The Trial Chamber determines whether an accused is innocent or guilty.

It impose a sentence of imprisonment for a specified number of years not exceeding a

maximum of thirty years or life imprisonment.

Financial penalties or reparations may also be imposed

Appeals Chamber –

The Appeals Chamber is composed of the President of the Court and four other judges. All
parties to the trial may appeal or seek leave to appeal decisions of the Pre-Trial and Trial
Chambers.

What does the Office of the Prosecutor do?

The Office of the Prosecutor is an independent organ of the Court. Its mandate is to receive
and analyse information on situations or alleged crimes within the jurisdiction of the ICC, to
analyse situations referred to it in order to determine whether there is a reasonable basis to
initiate an investigation into a crime of genocide, crimes against humanity, war crimes or the
crime of aggression, and to bring the perpetrators of these crimes before the Court. In order to
fulfil its mandate, the Office of the Prosecutor is composed of three divisions:

▪ The Investigation Division, which is responsible for conducting investigations (including

gathering and examining evidence, questioning persons under investigation as well as victims
30
and witnesses). In this respect, for the purpose of establishing the truth, the Statute requires
the Office of the Prosecutor to investigate incriminating and exonerating circumstances
equally.

▪ The Prosecution Division has a role in the investigative process, but its principal
responsibility is litigating cases before the various Chambers of the Court.

▪ The Jurisdiction, Complementarity and Cooperation Division, which, with the support of
the Investigation Division, assesses information received and situations referred to the Court,
analyses situations and cases to determine their admissibility and helps secure the cooperation
required by the Office of the Prosecutor in order to fulfil its mandate.

The Prosecutor is elected for a non-renewable nine-year term by an absolute majority of the
members of the ASP.

What does the Registry do?

The Registry helps the Court to conduct fair, impartial and public trials. The core function of
the Registry is to provide administrative and operational support to the Chambers and the
Office of the Prosecutor. It also supports the Registrar’s activities in relation to defence,
victims, communication and security matters. It ensures that the Court is properly serviced
and develops effective mechanisms for assisting victims, witnesses and the defence in order
to safeguard their rights under the Rome Statute and the Rules of Procedure and Evidence. As
the Court’s official channel of communication, the Registry also has primary responsibility
for the ICC’s public information and outreach activities.
Principle of complementarity - ICC does not have primacy over national criminal
jurisdictions but rather is complementary to domestic prosecution. The ICC can initiate
proceedings only if the State in question is “unwilling or unable genuinely to carry out the
investigation or prosecution” (art. 17 of the Rome Statute).

The judges have issued 8 convictions and 3 acquittals.

ASp

jurisdiction

The ICC has a territorial and nationality-based jurisdiction, which means that jurisdiction of
the Court is triggered if the crime was committed either on the territory of a State Party or by
a national of a State Party.

31
States can accept jurisdiction two ways, either by choosing to become State Parties to the
Rome Statute or by issuing a declaration accepting the jurisdiction of the Court for a specific
instance. When states accept jurisdiction, they generally cannot do so only partially, with the
exception of war crimes, for which acceptance of jurisdiction can be delayed by seven years.

However, the crime of aggression is a whole different case. Jurisdiction was activated after
the ICC began its work. Also, the Court only has jurisdiction in any case referred to it by the
UN Security Council. If the prosecution is triggered by State Party referral or by the
Prosecutor’s proprio motu powers, “the Court shall not exercise its jurisdiction regarding a
crime of aggression when committed by a national or on the territory of a State Party that has
not ratified or accepted these amendments”. Furthermore, jurisdiction of the Court is limited
to crimes that were committed after the Rome Statute entered into force or after the state
accepted jurisdiction of the Court. In the latter case, the respective state can declare that it
accepts jurisdiction for crimes that occurred prior to its acceptance of the Court’s jurisdiction.
Additionally, the Court can only try persons who are over the age of eighteen.

As just laid out, the Court’s jurisdiction is limited to conduct committed on the territory of
State Parties. However, in the view of the Court, territorial jurisdiction extends to more than
just that. The Court also has jurisdiction, if only a part or an element of a crime is carried out
on the territory of a State Party. That means that the Court can exercise jurisdiction over non
State Parties if their conduct was at least partially committed on the territory of a State Party.
The Pre-Trial Chamber said in an advisory opinion that deportation of Rohingya would fall in
the Court’s jurisdiction, as part of the conduct was committed on the territory of Bangladesh,
a State Party of the ICC. It ruled that part of deportation is displacement to another country,
which fulfills the requirement that part of a crime is committed on a State Party’s territory.
Additionally, the PTC stressed that this interpretation of territorial jurisdiction is not limited
to just some crimes but extends to all crimes within the Court’s jurisdiction.41

Initiating Proceedings

In cases that fall within the jurisdiction of the ICC, Article 13 Rome Statute lays out three
ways for the Court to exercise its jurisdiction. A situation in which one or multiple crimes
have been committed is either referred to the Prosecutor by a State Party or by the UN
Security Council, or the Prosecutor initiates proceedings proprio motu (on her or his own
initiative). In the first instance, it does not matter who refers the situation as long as it comes
from a State Party. Because of that, a handful of investigations were opened upon states

32
referring situations on their own territory. Despite early calls to have the UN Security Council
act as a filter for all cases, its powers have been limited to referral of situations.42 Those
referrals should also provide UN funding for the required proceedings as laid out in the Rome
Statute, but the SC has twice neglected to do so. To date, SC referrals have cost the Court
approximately € 65 million, all of which has been paid by State Parties.

Also, the Security Council twice opted to limit the scope of the referral to State Parties,
setting non State Parties and its nationals off limit. The SC can also, according to Article 16
Rome Statute, defer certain situations. That means that the Security Council adopts
(consecutive) resolutions that prevent the Court to continue or start proceedings for a year.

Lastly, the Prosecutor has the somewhat limited power to initiate proceedings on her or his
own. Article 15 Rome Statute allows anyone to send information regarding potential crimes
to the Prosecutor who then has to decide whether or not the information warrants further
investigation by the ICC.

To ensure that the Prosecutor does not limitlessly open investigations, she or he has to apply
for authorization from the Pre-Trial Chamber.44 Once a situation has been referred to the
Prosecutor, a preliminary investigation is opened.

Article 53 Rome Statute lays out three factors to be considered by the Prosecutor to
determine whether or not further proceedings are warranted. Firstly, the Prosecutor has to
determine whether the Court has personal, territorial and temporal jurisdiction over the
alleged crime. Secondly, she or he has to consider the principles of complementarity and
gravity, which are discussed below (section 2.3.3.). Lastly, the Prosecutor must consider
“interests of justice”, which are also discussed below (section 2.3.3.). Those factors should
make preliminary investigations a short affair, but as it turns out, they can make final
determinations difficult and prolong proceedings. For instance, if the Court has to await
whether or not national proceedings are sufficient, that alone can take years. Also, it could
happen that the ICC has to end preliminary investigations only to reopen them years later
upon reception of new information. In the case of Palestine, the Court ended proceedings as
Palestine had not yet been recognized as a state, but reopened proceedings once the UN
General Assembly recognized it as an observer state.

The ICC prosecutes individuals, not States.

33
The one who bear the greatest responsibility for the crimes. The Office of the Prosecutor does
not take into account any official position that may be held by the alleged perpetrators.

Irrelevance of Official - Acting as a Head of State or Government, minister or parliamentarian

does not exempt anyone from criminal responsibility before the ICC. Art 27

Recognition of Command Responsibility - a person in a position of authority may even be

held responsible for crimes committed by those acting under his or her command or orders.
Art 28

Amnesty cannot be used as a defense before the ICC.

ART 23 INDIVSUIAL CRIMINAL RESPOSNISBLIYT

Al Bahshir ( accused state is not a member)

In 2005 the Security Council referred the Darfur/ Sudan situation to the ICC. 93 As Sudan is not a
State Party, the referral establishes the Court’s jurisdiction. Late in 2009 the OTP applied for an arrest
warrant against Omar Al Bashir. In that application the OTP stated that the case does fall within the
jurisdiction of intthe ICC as the situation had been referred by the SC. Even though Al Bashir was the
head of state of Sudan at that time, the Pre-Trial Chamber ruled that he would enjoy no immunity.
Some of the PTC arguments were that Article 27 para. 1 & 2 Rome Statute set aside any immunity
arising from official capacity, that the Preamble of the Rome Statute establishes that grave crimes
cannot go unpunished and that the SC in referring the situation had accepted that proceedings
would follow the provisions of the Rome Statute.94 What followed is that Al Bashir travelled to
various countries that were State Parties to the Rome Statute. However, none of those states
complied with the Court’s arrest warrant and Al Bashirmained at large.95 In October 2020 a
potentially crucial step was taken as a delegation of the ICC arrived in Sudan to discuss the
prosecution of Omar Al Bashir

case laws from book

WAR CRIMES

genocide

Genocide is defined by the Convention on the Prevention and Punishment of the Crime of
Genocide of 1948. The Convention was adopted by the UN in response to the Holocaust,
which witnessed the systematic murder of some 6 million Jews by Nazi Germany during
World War II. Genocide refers to acts committed with the intent to destroy, in whole or in

34
part, a national, ethnical, racial or religious group. The acts of genocide can include killing or
seriously harming members of the group, inflicting conditions calculated to destroy the
group, preventing births in the group, and forcibly transferring children of the group to
another group. The International Court of Justice stated that the prohibition of genocide is a
peremptory norm of international law. This means that it is a fundamental principle of
international law accepted as a norm which must be observed by all states, at all times,
without exception.

At the end of World War II, numerous German Nazi leaders were tried and punished for the
murders of millions of European Jews, but the specific crime of “genocide” did not exist until
it was defined in 1948 by the Genocide Convention. More recently, the International Criminal
Tribunal for the former Yugoslavia (ICTY) examined genocide carried out against Bosnian
Muslims. The International Criminal Tribunal for Rwanda (ICTR) examined genocide carried
out against that country’s ethnic Tutsi minority.

 P v. Jelisić (ICTY) – Where only part of a group is destroyed, it must be a

‘substantial’ part.
 P v. Sikirica (ICTY) – Significant part may consist of persons of ‘special
significance’ to the group, such as the leadership of the group.
 Actus Reus (Objective) + Mens Rea (Subjective) + Specific Intent (Subjective ) =
Genocide
 Prosecutor v. Jean Paul Akayesu (ICTR)
 The ICTR recognized that rape on or near the Taba Commune was perpetrated against
all and only Tutsi women. ICTR recognized, ”Sexual violence was a step in the
process of destruction of the Tutsi group – destruction of the spirit, of the will to live,
and of life itself” (para. 732). This destruction resulting from sexual violence was
targeted, with the intent of causing serious bodily or mental harm to Tutsi women
(and, in some cases, with the intent to kill them after) and the Tutsi group as a whole.
Akayesu’s involvement in the aiding and abetting of these crimes meant he was also
responsible for their occurrence

war crimes

War crimes are violations of international humanitarian law, also known as the laws of war.
The concept of war crimes developed particularly at the end of the 19th century and
beginning of the 20th century, when international humanitarian law was codified.

35
International humanitarian law is contained in treaties, the core of which are the four Geneva
Conventions of 1949 and their two additional protocols, as well as customary international
law. The Geneva Conventions and customary international law establish the rules that armed
groups must follow during international and non-international armed conflict, with the goal
of protecting those who are not participating in the armed conflict. Important rules govern the
distinction between combatants and civilians, restriction of the means and methods of
warfare, the treatment of prisoners of war, and sick and wounded members of the armed
forces, and the prohibition of attacks on objects that are indispensable to the survival of the
civilian population.

Some examples of war crimes under the Geneva Conventions include willful killing, torture
or inhuman treatment, willfully causing great suffering or serious injury, extensive
destruction and taking of property (not justified by military necessity), and forcing a prisoner
of war to serve in the forces of a hostile party (for example, the army that captured him or
her).

crime against humanity

Crimes against humanity generally refer to specific crimes in the context of large-scale
attacks against civilians. For an act to constitute a crime against humanity, it must be
committed as part of a widespread or systematic attack against a civilian population, with
knowledge of the attack. The notion of crimes against humanity has evolved under customary
international law and through the jurisprudence of international courts such as the
International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal
Tribunal for Rwanda (ICTR) and the International Criminal Court. Crimes against humanity
have not yet been codified in a dedicated treaty of international law, unlike genocide and war
crimes, although there are efforts to do so. The Rome Statute, which established the
International Criminal Court, reflects the latest consensus among the international community
and offers the most extensive list of specific acts that constitute crimes against humanity.
Crimes against humanity include murder, extermination, enslavement, deportation or forcible
transfer of populations, imprisonment, torture, various forms of sexual violence, persecution
of a At the end of World War II, numerous German Nazi leaders were tried and punished for
the murders of millions of European Jews, but the specific crime of “genocide” did not exist
until it was defined in 1948 by the Genocide Convention. More recently, the International
Criminal Tribunal for the former Yugoslavia (ICTY) examined genocide carried out against

36
Bosnian Muslims. The International Criminal Tribunal for Rwanda (ICTR) examined
genocide carried out against that country’s ethnic Tutsi minority. group of people, enforced
disappearance, the crime of apartheid, and other inhumane acts of a similar gravity.

In the context of the Democratic People’s Republic of Korea (DPRK), the Commission of
Inquiry on the situation of human rights in the DPRK in 2014 found that “the Government of
the DPRK is engaged in a systematic and widespread attack against people considered a
threat to the country’s political system and leadership, including people who practice religion,
introduce subversive or foreign influences, such as foreign films or music, or leave the
country”. There is no indication that this widespread and systematic attack has stopped.

Crime of aggression

The crime of aggression is relatively new for the ICC as jurisdiction for the crime was
activated in July 2018. Initially, states could not agree on a definition for the crime of
aggression. A provision (Article 5 para. 2 Rome Statute) was implemented which stated that
the Court would have jurisdiction once agreement on the definition and scope of the crime of
aggression was reached. At the 2010 Review Conference of the Rome Statute in Kampala
time was ripe for the inclusion. The Rome Statute was amended and Articles 8 bis, 15 bis and
15 ter were added, also, a paragraph 3 bis was added to Article 25.

the crime of aggression has some unique requirements that have to be met for the Court to be
able to exercise its powers. If jurisdiction were to be triggered in accordance with Article 15
ter Rome Statute, then there would be no limitation on the Court’s powers. However, this
requires that the situation be referred by the UN Security Council. Also, the SC referral could
be limited in its scope, e.g. excluding non-State Parties. Article 15 bis Rome Statute governs
the exercise of the Court’s power in case proceedings are triggered by a State Party or the
Prosecutor. The ability to exercise jurisdiction depends on whether or not the State Party has
ratified or accepted the amendments which added the crime of aggression. Additionally,
Article 15 bis Rome Statute adds several procedural requirements that are unique in the Rome
Statute. The Prosecutor has to verify with the UN Security Council if a crime of aggression
indeed has taken place. If the SC finds that no such crime has occurred, she or he has to wait
six months before the investigation can continue. The SC could even invoke Article 16 Rome
Statute and (continuously) defer the investigation of the Court. Article 8 bis Rome Statute
contains the definition of the crime of aggression with the Elements of Crimes offering
clarification on certain elements. Unlike other crimes in the Rome Statute, the crime of

37
aggression is limited to those “in a position effectively to exercise control over or to direct the
political or military action of a State”. As a consequence, it appears that accomplices who
incite or abet the aggression are excluded from the Court’s jurisdiction.

For the purpose of this Statute, “crime of aggression” means the planning, preparation,
initiation or execution, by a person in a position effectively to exercise control over or to
direct the political or military action of a State, of an act of aggression which, by its character,
gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a
State against the sovereignty, territorial integrity or political independence of another State, or
in any other manner inconsistent with the Charter of the United Nations.

Any of the following acts, regardless of a declaration of war, shall, qualify as an act of
aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or
any military occupation resulting from such invasion or attack, or any annexation by the use
of force of the territory of another State or part thereof.

(b) Bombardment by the armed forces of a State against the territory of another State or the
use of any weapons by a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air
fleets of another State

Congo v. Uganda - Judge Simma stated that the determination of an 'act of aggression' can be
done by the ICJ as a legal question. the Magnitude and duration of an attack are appropriate
factors for consideration in any model that analyzes the coercive tactics employed by a state.

The Court will have jurisdiction if an armed attack by a non-State actor can be attributed to a
State.

- effective control test in Nicaragua v USA

What about the means of force? (Cyber/economic coercion/etc) - Tallinn Manual / Nuclear
Weapons Advisory Opinion of the ICJ

38
'Violation of sovereignty, territorial integrity or political independence' - What about disputed
territories (India Pakistan LOC)? - Costa Rica v. Nicaragua

YOGUSLAVIA

The International Criminal Tribunal for the former Yugoslavia (ICTY) was established by UN
Security Council Resolution 827 (1993) as a response to serious violations of international
humanitarian law committed in the territory of the former Yugoslavia since 1991, and the
threat to international peace and security which they posed.

The ICTY has authority to prosecute four categories of offences, committed on the territory
of the former Yugoslavia since 1991:

 grave breaches of the 1949 Geneva Conventions,

 violations of the laws or customs of war,
 genocide and
 crimes against humanity.

An Irish lawyer, Judge Maureen Harding Clark has served as an ad litem judge on the
Tribunal.

The ICTY was established to respond to the particular circumstances of the former
Yugoslavia as an ad hoc measure to contribute to the restoration and maintenance of peace.
As it had completed much of its work, and as the time for its closure approached, it was
acknowledged that there was a need to establish an ad hoc mechanism to carry out a number
of essential functions of the ICTY, which will diminish over time. Therefore, the United
Nations Security Council decided, by resolution 1966 (2010) adopted on 22 December 2010,
to replace the ICTY with a Residual Mechanism which took over a number of functions of
ICTY as of 1 July 2013. This mechanism is called the United Nations Mechanism for
International Criminal Tribunals (MICT), and it had previously taken over a number of the
functions of the International Criminal Tribunal for Rwanda. MICT is responsible for any
essential competences and functions of the ICTY in relation to all completed cases and any
cases that may be brought before it (MICT has the power to prosecute, supervise sentences,
deal with the protection of witnesses, issue and receive requests for co-operation and
assistance and to manage archives).

RAWANDA

39
The International Criminal Tribunal for Rwanda (ICTR) was established by UN Security
Council Resolution 955 (1994) as a response to serious violations of humanitarian law
committed in Rwanda and neighbouring states, and the threat to peace and security which
they posed.

The ICTR has authority to prosecute genocide, crimes against humanity, and violations of
Article 3 common to the Geneva Conventions and of Additional Protocol II, committed
between 1 January and 31 December 1994 by Rwandans in the territory of Rwanda and in the
territory of neighbouring States, as well as non-Rwandan citizens for crimes committed in
Rwanda.

The ICTR delivered the first ever decision by an international tribunal on the crime of
genocide and convicted, for the first time, a former head of state for the crime of genocide. In
addition, the case law of the Tribunal has particularly contributed to the treatment of sexual
offences in international criminal law.

The ICTR was established to respond to the particular circumstances in Rwanda as an ad hoc
measure to contribute to the restoration and maintenance of peace. As it had completed much
of its work, and as the time for its closure approached, it was acknowledged that there was a
need to establish an ad hoc mechanism to carry out a number of essential functions of the
ICTR, which will diminish over time. Therefore, the United Nations Security Council
decided, by resolution 1966 (2010) adopted on 22 December 2010, to replace ICTR with a
Residual Mechanism which took over a number of functions of the ICTR with effect on 1
July 2012. This mechanism is called the United Nations Mechanism for International
Criminal Tribunals (MICT), and it also took over a number of the functions of the
International Criminal Tribunal for the former Yugoslavia, with effect on 1 July 2013. The
purpose of MICT is to take over any essential competences and functions of the ICTR in
relation to all completed cases and any cases that may be brought before it (MICT has, the
power to prosecute, supervise sentences, deal with the protection of witnesses, issue and
receive requests for co-operation and assistance and to manage archives).

STATE JURISDICTION

INTRODUCTION

State Jurisdiction is the power of a state under international Law to govern persons and
property by its municipal law. It includes both the power to prescribe rules and the power to

40
enforce them. The rules of State jurisdiction identity the persons and the property within the
permissible range of a state’s law and its procedures for enforcing the law. A State may
regulate its jurisdiction by legislation through its courts or by taking executive or
administrative action. Thus the jurisdiction of a State is not always a co-incident with its
territory Case of KTMS Abdul Cader and others v/s Union of India-1977, the court held that
act has no extra-territorial application and hence the State government has no power under
the Act to pass orders of detention against persons who at the time when the orders were
made were not within India but were out-side its territorial limits.

In general every State has exclusive jurisdiction within its own territory but this jurisdiction is
not absolute because it is subject to certain limitations imposed by international law. Thus in
practice it is not always necessary that a State may exercise jurisdiction in its territory on the
other hand in some circumstances may exercise jurisdiction outside its territory. Though the
relationship between jurisdiction and sovereignty is close jurisdiction is not co-extensive with
State Sovereignty. Each state has normally jurisdiction over all persons and things within its
territory.

Illustration:-A French armed public ship flying the flag of France was in the British
territorial waters when M, the Cabin boy of the ship committed the offence of murder by
shooting dead D the captain of ship. Both M &D were British nationals. During the trial that
took place that the British courts had no jurisdiction to try him for the murder committed on
board a French cruiser flying French flag. The defence cannot succeed because he theory that
the pubic ship of a state should be treated to be a floating portion of that state has long been
discarded. Secondly the offence was committed within the territory of Britain. Thirdly
seeking good office of British police and medical aid amounted to a waiver of the immunity.
Thus M could be tried by British court.

Meaning and Definition

State jurisdiction is the capacity of a State under International Law to prescribe and enforce
the rules of law. It is derived from the State sovereignty and constitutes its vital and central
feature. 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). This
authority involves the powers to prescribe the rules of law, to enforce the prescribed rules of
law and to adjudicate. The powers related to State jurisdiction raise the question regarding the
types and forms of State Jurisdiction.

41
State jurisdiction may extend beyond its territory over persons and things which have a
national link. This extension raises the question regarding the grounds or the principles upon
which the State can assert its jurisdiction within and beyond its boundaries.

Nevertheless, there are certain persons, property and events within a State territory which are
immune from its jurisdiction. This limitation to a State jurisdiction raises a question regarding
the immunity from jurisdiction.

The answers to the above raised questions are dealt with in the following:-

Types of State Jurisdiction

State jurisdiction implies the competence to prescribe rules of law, the jurisdiction to enforce
the prescribed rules of law and the jurisdiction to adjudicate.[3] Accordingly, it is of three
types: legislative jurisdiction, executive jurisdiction and judicial jurisdiction.

(1) Legislative Jurisdiction

Legislative jurisdiction is the capacity of a State to prescribe rules of law (the power to
legislate). A State has the supremacy to make binding laws within its territory. It has a
legislative exclusivity in many areas. This supremacy is entrusted to constitutionally
recognized organs.

Although legislation is primarily enforceable within a State territory, it may extend beyond its
territory in certain circumstances. International Law, for example, accepts that a State may
levy taxes against persons not within its territory as long as there is a real link between the
State and the proposed taxpayer, whether it is nationality or domicile.

The question of how far a court will enforce foreign legislation is a matter within the field of
Private International Law (conflict of laws). It is common practice of States that a State
enforces civil laws of another State, but it is rare to enforce the penal or taxes laws of another
State.

The legislative supremacy of a State within its territory is well established in International
Law. However, this supremacy may be challenged in cases where a State adopts laws that are
contrary to the rules of International Law. In such cases, a State will be liable for a breach of
International Law. A State may also be liable for a breach of International Law if it abuses its
rights to legislate for its nationals abroad.

(2) Executive Jurisdiction

42
Executive jurisdiction is the capacity of a State to act and to enforce its laws within its
territory. Generally, since States are independent of each other and possess territorial
sovereignty, they have no authority to carry out their functions on foreign territory. No State
has the authority to infringe the territorial sovereignty of another State. In this sense, a State
cannot enforce its laws upon foreign territory without the consent of the host State; otherwise,
it will be liable for a breach of International Law.

(3) Judicial Jurisdiction

Judicial jurisdiction is the capacity of the courts of a State to try legal cases. A State has an
exclusive authority to create courts and assign their jurisdiction, and to lay down the
procedures to be followed. However, in doing so, it cannot by any means alter the way in
which foreign courts operate.

There are a number of principles upon which the courts of a State can claim jurisdiction. In
civil matters, the principles range from the mere presence of the defendant in the territory of a
State to the nationality and domicile principles. In the criminal matters, they range from the
territorial principle to the universality principle. These principles are the subject of the
followings discussed below:

Principles of Jurisdiction

Generally, the exercise of civil jurisdiction by courts of a State has been claimed upon far
wider grounds than has been the case in criminal matters. The consequent reaction by other
State with this regard has been much mild. This is partly because public opinion is far more
vigorous where a person is tried in foreign territory for criminal offences than if a person is
involved in a civil case. In addition, International Law does not impose any restrictions on the
jurisdiction of courts in civil matters.

In Common Law countries such as the United States and United Kingdom, the usual ground
for jurisdiction in civil cases is the service of a writ upon the defendant within the country,
even if the presence of the defendant is temporary and incidental. In Civil Law countries, the
usual ground for jurisdiction is the habitual residence of the defendant in the country. In some
countries such as Netherlands, Denmark and Sweden, generally courts assert their jurisdiction
if the defendant possesses assets in the country; however, in matrimonial cases the commonly
accepted ground for jurisdiction is the domicile or residence of the plaintiff.

43
As far as criminal jurisdiction is concerned, the grounds or principles of jurisdiction mostly
invoked by States are as follows.

(1) The Territorial Principle

The territorial principle is derived from the concept of State sovereignty. It means that a State
has the primary jurisdiction over all events taking place in its territory regardless of the
nationality of the person responsible. It is the dominant ground of jurisdiction in International
Law. All other State must respect the supremacy of the State over its territory, and
consequently must not interfere neither in its internal affairs nor in its territorial jurisdiction.

The territorial jurisdiction of State extents over its land, its national airspace, its internal
water, its territorial sea, its national aircrafts, and its national vessels. It encompasses not only
crimes committed on its territory but also crimes have effects within its territory. In such a
case a concurrent jurisdiction occurs, a subjective territorial jurisdiction may be exercised by
the State in whose territory the crime was committed, and an objective territorial jurisdiction
may be exercised by the State in whose territory the crime had its effect.

Although jurisdiction is primarily and predominantly territorial, it is not exclusive. A State is

free to confer upon other States the right to exercise certain jurisdiction within its national
territory. States are free to arrange the right of each one to exercise certain jurisdiction within
each national territory. The most significant recent examples of such arrangements are: the
1991 France-United Kingdom Protocol Concerning Frontier Control and Policing, under
which the frontier control laws and regulations of each State are applicable and may be
enforced by its officers in the control zones of the other; the 1994 IsraelJordan Peace Treaty,
under which the Israeli criminal laws are applicable to the Israeli nationals and the activities
involving only them in the specified areas under Jordan’s sovereignty, and measures can be
taken in the areas by Israel to enforce such laws.

(2) The Nationality Principle

The nationality principle implies that a State jurisdiction extends to its nationals and actions
they take beyond its territory. It is based upon the notion that the link between the State and
its nationals is personal one independent of location.

Criminal jurisdiction based on the nationality principle is universally accepted. While Civil
Law countries make extensive use of it, the Common Law countries use it with respect to

44
major crimes such as murder and treason. The Common law countries, however, do not
challenge the extensive use of this principle by other countries.

A State may prosecute its nationals for crimes committed anywhere in the world; the ground
of this jurisdiction is known as active nationality principle. Also, it may claim jurisdiction for
crimes committed by aliens against their nationals abroad; the ground of this jurisdiction is
known as passive nationality principle. This last principle has been viewed as much weaker
than the territorial or active nationality principle as a basis for jurisdiction. It has been
considered as a secondary basis for jurisdiction, and a matter of considerable controversy
among States. However, in recent years this principle has come to be much acceptable by the
international community in the sphere of terrorist and other internationally condemned
crimes.

(3) The Protective principle

The protective principle implies that a State may exercise jurisdiction over an alien who
commits an act outside its territory, which is deemed prejudicial to its security and interests.
It is universally accepted, although there are uncertainties as to its practical extent,
particularly as regard to the acts which may come within its domain. It is justified on the
basis of protection of State’s vital interests, particularly when the alien commits an offence
prejudicial to the State, which is not punishable under the law of the country where he resides
and extradition is refused.

Although the protective principle is used as a secondary basis for jurisdiction and in a
narrower sense than the territorial or the nationality principle, it can easily be abused,
particularly in order to undermine the jurisdiction of other States. In practice however, this
principle is applied in those cases where the acts of the person which take place abroad
constitute crimes against the sovereignty of the State, such as plots to through a government,
treason, espionage, forging a currency, economic crimes and breaking immigration laws and
regulations. This principle is often used in treaties providing for multiple jurisdictional
grounds with regard to specific crimes, such as the 1979 Hostage Convention and the 1970
Hague Aircraft Hijacking Convention.

(4) The Universality Principle

The universality principle, in its broad sense, implies that a State can claim jurisdiction over
certain crimes committed by any person anywhere in the world, without any required

45
connection to territory, nationality or special State interest. Before the Second World War,
such universal jurisdiction has been considered as contrary to International Law by the
Common Law countries, except for acts regarded as crimes in all countries, and crimes
against the international community as a whole such as piracy and slave trade.

After the Second World War, universal jurisdiction has been universally recognized over
certain acts considered as international crimes. International crimes are those crimes
committed against the international community as a whole or in violation of International
Law and punishable under it, such as war crimes, crimes against peace and crimes against
humanity. In recent years, crimes such as Hijacking of aircraft, violation of human rights and
terrorism, have been added to the list of international crimes.

Today under the universality principle, each State and every State has jurisdiction over any of
the international crimes committed by anyone anywhere.

Immunity from Jurisdiction

The concept of jurisdiction is derived from the concept of sovereignty, and is connected with
the principles of equality and non-interference in domestic affairs of other States. The
grounds for jurisdiction are related to the duty of a State under International Law to respect
the territorial integrity and political independence of other States. Immunity from jurisdiction
is grounded on this duty, and constitutes derogation from the host State jurisdiction.

Under International Law, immunity from jurisdiction is granted to certain persons, namely
States (sovereigns) and their diplomatic and consular representatives, and international
organizations.

EXEMPTION TO THE TERRITORIAL JURISDICTION

There are some exceptions of the exercise of jurisdiction which definitely recognizes the
protective jurisdiction of one state to deal with foreign nationals acting in their country
against its security and integrity:-

1. Diplomatic Agents:- Diplomatic agents enjoy certain privileges and immunities. They are
immune from the jurisdiction of the civil and criminal courts of the receiving State. In this
connection the old view was that the diplomatic agents enjoy these immunities and privileges
because they were deemed to be outside the jurisdiction of receiving State. In the present time
this theory has been discarded. Modern view diplomatic agents enjoy certain immunities and

46
privileges because of the special functions they perform. This was affirmed in a case Ex-parte
Petroff-1971 by the Supreme Court of Australia.

2. Foreign Embassies: - Foreign embassies are often considered to be outside the jurisdiction
of the State in which they are situated. For sake of convenience embassies are to be treated a
part of their home States. The correct view however is that though not part of their home
States embassies enjoys certain immunities because of the special functions performed by the
diplomatic agents.

3. Foreign Sovereigns:-Foreign sovereigns are often treated to be outside the jurisdiction of

other states and possess many privileges and immunities. In the case of Christina-1938, Lord
Wright observed that there are general principles of International Law according to which a
sovereign state is held to be immune from the jurisdiction of another sovereign State.

The principle of immunity of immunity of Foreign Sovereign was developed in the early
years of the nineteenth century. In the case of the Schooner Exchange v/s McFaddon-1812, A
French Naval Vessel stayed in Philadelphia for repairs after a storm. Some persons sought
possession of the ship on the ground that in reality the ship Schooner Exchange. An American
ship which they owned and was seized by French on the High Seas in 1810 in pursuance of a
Napoleonic Decree. The U.S. Govt. however requested the court to refuse jurisdiction on the
ground of sovereign immunity. Court held that the vessel was exempt from U.S. Jurisdiction.

The jurisdiction of the nation within its own territory is necessary exclusive and absolute. It is
susceptible of no limitation not imposed by it. In another case of Vavasseur v/s Krupp-1878,
the plaintiff contended that the Japanese Govt., has violated his patent rights and therefore he
demanded that the delivery of the goods by it be stopped. But the court had that it had no
jurisdiction over the property of the foreign sovereigns more especially with what we call the
public property of the State of which he is sovereign.

4. Property of foreign sovereigns: the property of foreign sovereign remains immune from
jurisdiction of the state. As long as the foreign sovereign has some interest in the property, it
remains immune, and it is immaterial for what purpose the property is employed. In the
Parliament Belge, the defendant ship was owned by the king of the Belgians, it was a mail
boat which carried passengers and some cargo on the channel crossing. The court held that a
public vessel was not entitled to immunity if it engages in the carrying of passengers as a
commercial nature. However the decision was reversed by the court of appeal on the basis
that as a consequence of the absolute independence of every sovereign state to respect the

47
independence and dignity of every other sovereign state, each and every one should decline
to exercise by means of its court any of its territorial jurisdiction over the public property of
any state which is destined to public use.

5. Foreign armed forces: armed forces of a state remain in the foreign territory on several
occasions in the service of their home state. Such forces are considered by some to be extra-
territorial, and therefore they remain under the jurisdiction of the state to which they belong.
Thus, if a crime has been committed on foreign territory by a member of these forces he
cannot be punished by the local, civil or military authorities. Punishment can be given only
by the commanding officer of the forces or the authorities of their home.

6. Foreign warships and their crew: men of war, being in fact a part of armed forces of a
state are deemed organs like armed forces. The territorial waters and ports of the states are as
a general rule open to men of war, unless they are not excluded by special agreements. It does
not mean that men of war can do what they like in foreign waters. They are expected to
comply voluntarily with the laws of the littoral states.

7. Consular Immunity

A consular officer, like a diplomatic agent, represents his State in the receiving State.
However, unlike a diplomatic agent, he is not concerned with political relations between the
two States, but with a variety of administrative functions, such as issuing visas and passports,
looking after the commercial interests of his State, and assisting the nationals of his State in
distress. Thus, he is not granted the same degree of immunity from jurisdiction as a
diplomatic agent.

Notably nowadays, many States combine its diplomatic and consular services. Thus, a person
who acts simultaneously as a diplomat and consul enjoys diplomatic immunity.

Under the 1963 Vienna Convention on the Consular Relations, a consular officer (the head of
the consular post and any person entrusted to exercise consular functions) is immune from an
arrest or detention pending trial, except in the case of a grave crime and pursuant to a
decision by the competent judicial authority. He is immune from imprisonment or any other
restriction on his personal freedom save in execution of a final judicial decision. If criminal
proceedings are instituted against him, he must appear before the competent authorities. The
proceedings must be conducted in a manner that respects his official position and does not
hamper the exercise of consular functions, and with the minimum delay.

48
A consular officer is immune from the jurisdiction of the judicial or administrative authorities
of the receiving State only in respect of acts performed in the exercise of consular functions.
He is exempt from all dues and taxes, except in certain cases. In addition, the consular
premises, archives and documents are inviolable.

A consular officer enjoys the immunities from the moment he enters the territory of the
receiving State on proceeding to take up his post or, if already in its territory, from the
moment when he enters on his duties. The same immunities are enjoyed by members of the
family of the consular officer from the date which he enjoys his immunities.

The immunities of a consular officer may be waived by the sending State. The waiver must
be express. However, the waiver of immunity from jurisdiction for the purposes of civil or
administrative proceedings does not imply waiver of immunity from the execution of a
judicial decisions; in such case, a separate waiver is required. Immunity may also be waived
by the consular officer himself, by submitting voluntarily to the jurisdiction of the court of
the receiving State. .

8. Immunities of International Organizations

It is uncertain which immunities and to what extent international organizations enjoy under
customary International Law; the position of this law is far from clear. Actually, immunities
are granted to international organizations by treaties, or by headquarters agreements
concluded with the host State where the organization is seated.

The purpose of immunity granted to international organizations is purely functional.

Immunity is regarded as functionally necessary for the fulfillment of their objectives. It is not
a reflection of sovereignty, as it is in case of a State, except only indirectly when aiming to
protect the interests of the member States of the organization.

Probably the most important example of treaties providing immunities to international

organizations is the 1946 General Conventions on the Privileges and Immunities of the
United Nations, which sets out the immunities of the United Nations and its personnel. The
United Nations enjoys complete immunity from all legal process. Its premises, assets,
archives and documents are inviolable. It is exempt from direct taxes and customs duties. Its
staff is exempt from income tax on their salaries.

49
The U.N Secretary General and the Assistant Secretaries General enjoy diplomatic immunity.
Other staff members enjoy limited immunities, such as immunity from legal process in
respect of their official acts.

Representatives of member States attending the United Nations meetings are granted almost
the same immunities as diplomats, except their immunity from legal process applies only to
their official acts.

An example of treaties providing immunities to representatives of States in international

organizations is the 1975 Vienna Convention on the Representatives of States in their
Relations with International Organizations of a Universal Character. This treaty applies to
representatives of States in any international organizations of a universal character,
irrespective of whether or not there are diplomatic relations between the sending State and the
host States.

Under this treaty, the representatives of States in universal international organizations enjoy
similar immunities to those provided in the 1961 Vienna Convention on Diplomatic
Relations. They enjoy immunity from criminal jurisdiction, and immunity from civil and
administrative jurisdiction in all cases, save for certain exceptions. The mission premises,
archives, documents and correspondence are inviolable.

EXTRADITION

Introduction

Extradition is the conventional process in which a person is surrendered by one state to

another on the basis of a treaty, or comity, or some bilateral arrangement between the two
sovereign states. This request of extradition made by a sovereign state is usually initiated at
first place because the individual demanded by the state is charged with a crime but not tried,
or tried and convicted yet the accused escaped and reached the territory of the other sovereign
state. This process is also known as Rendition, which is handing over or surrendering of a
convicted person or accused from one state jurisdiction to another where the accused is
alleged to have committed a crime.

Meaning

The term extradition has been derived from two Latin words “ex” meaning from/out of and
“tradition” means handing over. Extradition is the delivery of an accused or a convicted

50
individual to the State on whose territory he is alleged to have committed or to have been
convicted of a crime.

Extradition involves two states:

 Territorial state: where the accused is found

 Requesting state: where crime was committed

Definition

According to Oppenhiem “it is the delivery of an accused or a convicted individual to the

state where he is accused of by the state on whose territory he happed to be for the time”.

Extradition is the act of sending a person from one jurisdiction to another where he/she is
accused of committing a crime and is being demanded to get them tried as per the legal
procedure in the sovereign demanding such person.

According to Starke, “The term extradition denotes the process whereby under treaty or upon
a basis of reciprocity one state surrenders to another at its request a person accused or
convicted of a criminal offence committed against the laws of the requesting state.

PURPOSE OF EXTRADITION:

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

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

A criminal is extradited to the requesting state because of the following reasons:

1. Suppression of crime

51
2. Warning to criminals, that they cannot escape punishment

3. Safeguard interest of territorial state

4. Reciprocity. A state which is requested to surrender the criminal today may have to request
for extradition of a criminal on some future date.

5. It’s a step towards achievement of international co-operation in solving international

problems

6. Requesting state is in better position to try offender because evidence is easily available
there.
LAWS OF EXTRADITION:

1. Extradition treaties- the first and the foremost important condition of extradition is the
existence of an extradition treaty between the territorial state and the requesting state, some
states such as US, Belgium and Netherlands require a treaty as an absolute pre condition. The
strict requirement of an extradition treaty may be regarded as the most obvious obstacle to
international co-operation in suppression of crimes. It is therefore, desirable that states
conclude extradition treaties with as many states as possible to suppress the crime.

2. Extradition of political offender- it is a customary international law that political

offenders are not extradited. In other words, they are granted asylum by the territorial state.
During the days of monarchs, extradition of political offenders was very common but the
practice underwent a complete change with the beginning of French revolution. The French
constitution under Art 120 made a provision for granting asylum to those foreigners who
exiled from their home country for the cause of liberty. At present, non-extradition of political
offenders has become a general rule of international law and therefore it is one of the
exceptions of extradition.

Basis of non-extradition of political offender:

i. Humanity

ii. Fear of not being treated fairly

iii. Political offenders are not dangerous for the territorial state

iv. The object of the political offender to take shelter in another country is not the same as
those of the ordinary criminals.

52
Exceptions of political offenders:

i. Genocide convention
ii. Convention on apartheid
iii. Crimes against humanity.
iv. Hijacking, torture or hostage
v. There is no protection for former government officials guilty of human rights
abuses.

What is a political offence?

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

Re Castioni case:

Castioni killed a Switzerland govt. officer and escaped to England. Lord Denman held, “for
an offence, to be political it must at least be shown that,

i. Act was done in furtherance of, or

ii. ii. With the intention of assistance of, or
iii. iii. An overt act

In the course of acting in political matter or a political rising, or a dispute between two parties
in a state as to which is to have the government and it should be clear that the man was acting
as one of the many engaged in acts of violence of a political character, political struggle or
disturbance, during which two or more parties in the state are contending each other to
impose government.

This view which was also observed in Re Meunier case is very narrow. Sometimes a group
of people may force the government to do or not to do any particular act and in their course
of persuasion they may commit crimes that are also political in nature even though their
object is not to overthrow the government.

Ex Parte Kolczynski Case:

In this case the definition of political offence was widened. Political offence must always be
considered according to the circumstances existing at the time when they have to be

53
considered. The crime need not be committed by an organised party to overthrow the
government. Membership of a political party is not required and if any ordinary crime is
committed in the course of committing any offence against the state, that would be
considered political because of its close association with the politics of the state.

3. Doctrine of double criminality- Double criminality is a requirement in the extradition

law of many countries. It states that a suspect can be extradited from one country to stand
trial for breaking a second country's laws only when a similar law exists in the extraditing
country.

Example: if Country A has no laws against blasphemy, double criminality could prevent a
suspect being extradited from Country A to face blasphemy charges in another country. In
order to ensure that a crime is recognized in both states, a list of extraditable offences is
attached in the extradition laws of some states.

The rule of double criminality has put a state into difficult situation when it has to request
another state for extradition in respect of those offences which do not find place in the list of
crimes embodied in a treaty. In order to overcome the above difficulty it is desirable that
instead of laying down the names of various crimes specifically in the treaty. Some general
criterion should be adopted.

4. Rule of specialty-

According to this principle, a fugitive maybe tried by the requesting state only for that
offence for which he has been extradited. In other words, the requesting state is under a duty
not to try or punish the fugitive criminal for any other offence than that for which he has been
extradited. The rule has been made to provide safeguard to the fugitives against fraudulent
extradition.

In US vs. Rauscher, the accused was extradited on the charge of murder, but he was tired and
convicted in US on a minor charge of causing cruel and unusual punishment on a member of
the crew. He made an appeal before the supreme court of the US which quashed the
conviction and ordered the release of the prisoner on the ground that unless otherwise
provided for the treaty, the prisoner could only be charged with the offence for which he was
extradited unless he was given reasonable time to return to the country which surrendered
him.

54
5. Prima facie evidence- there should be a prima facie evidence of the guilt of the accused.
Before a person is extradited, the territorial state must satisfy itself that is a prima facie
evidence against the accused for which extradition is demanded. The purpose of laying down
the rule of prima facie evidence is to check fraudulent extradition.

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

7. Extradition of own nationals- in many cases a person after committing a crime in a

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

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

CONCLUSION

Each State exercises complete jurisdiction over all the persons within its territory. But
sometimes there may be cases when a person after committing crime runs away to another
country. In such a situation the country affected finds itself helpless to exercise jurisdiction to
punish the guilty person. This situation is undoubtedly very detrimental for peace and order.
There is a social need to punish such criminals and in order to fulfil this social necessity the
principle of extradition has been recognised.

ASYLUM

INTRODUCTION

The term Asylum is referred to those cases where the territorial state declines to surrender a
person to the requesting state, and provides shelter and protection in its own territory.

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

55
present trend is that states are under a duty not to grant asylum to those who have planned,
facilitated or committed terrorist acts.

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

Meaning

The word asylum is Latin words ‘a’ (not) ‘sylon’ (right of seizure), and is derived from a
Greek word ‘Asylia’ which means inviolable place. It is a sanctuary or place of refuge; any
place of retreat and security; an institution for receiving and maintaining persons suffering
from certain bodily defects or mental maladies; a refuge for the destitute. A person enjoying
asylum may be referred to as an asylee.

Definition

J.G. Starke says that, Asylum involves two elements. Firstly, shelter, which is more than a
temporary refuge and secondly, a degree of active protection on the part of the authorities in
control of the territory of asylum.

V. Bevan, Asylum means refuge and active protection granted by a state to a person seeking
such a refuge and protection on the territory under its control. Article 14 of UDHR, 1948
says, Everyone has a right to seek and enjoy in other countries asylum from persecution.

BASIS OF ASYLUM:

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

REASONS FOR GRANTING ASYLUM:

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

i. It is granted to save a person from the jurisdiction of the local authorities. It is feared that
he would not get fair trail, if extradited, because of the difference in views as to his political
or religious activities.

56
ii. It may be granted on extra-legal grounds or to as on humanitarian grounds. The ICJ in the
Corfu channel case stated that “asylum may be granted on humanitarian grounds in order to
protect political offenders against the violent and disorderly actions of irresponsible sections
of the population.

iii. National security also plays an important part in granting asylum. The offender who may
be a rebel today may become the ruler in future date. In such a case relationship would be
strained if he is extradited.

TYPES OF ASYLUM:

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

1) Territorial asylum- when asylum is granted by a state on its territory, it is called

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

The lack of generally accepted rules regarding grant of territorial asylum led the general
assembly to adopt a resolution known as the declaration on territorial asylum through the
adoption of a resolution. Article 1 of the declaration provided that asylum granted by a
state is to be respected by all other states. It also states that the right to seek and enjoy
asylum may not be invoked by any person with respect to whom there are serious reasons
for considering that he has committed a crime against peace, a war crime or crimes
against humanity.

2) Extra-territorial asylum- when asylum is granted by a state at places outside its own
territory it is called extra-territorial asylum.

i) Asylum at legation: when asylum is granted by a state within its embassy premises
situated in foreign countries it is known as asylum in legation or diplomatic asylum. This is
based on the consideration that embassy premises are regarded to be outside the jurisdiction
of the territorial state, and therefore inviolable. Asylum may be granted to individuals in
legation premises in the following cases- firstly, as a temporary measure, to individuals
physically in danger from the mob or from the fear of the government. Thus asylum is given

57
to the person whose life has become unsecured. Secondly, it is granted where there is a
binding local custom in this regard. And thirdly, when there is a treaty between the territorial
state and the state which is represented by the legation concerned.

ii) Asylum in consulates: rules regarding asylum in consulates are similar to that of asylum
in legation premises.

iii) Asylum in warship: men of war and public vessels of foreign states, while in the port of
internal waters of another state are exempted from the jurisdiction of the latter for certain
purposes. They remain under the jurisdiction of the flag state. However, such vessels are
bound to observe the ordinary laws of the port. As far as asylum in war ship is concerned, it,
may be granted on the ground of humanity, in cases of extreme danger to the individual
seeking it. Thus, right to grant asylum on war ship may be granted in the same way as in case
of legation and also subject to the operation of the same conditions. The fugitive once
onboard, is perhaps immune from seizure by the territorial state, but mere refuge does not
exonerate the ships authority from the duty to deliver up the offender.

iv) Asylum in merchant vessels: merchant vessels are not exempted from the jurisdiction,
and therefore, asylum cannot be granted to an offender. This if a person after committing a
crime on shore seeks asylum on board a foreign merchant vessel he may be arrested by the
local police, either before the ship leaves the port or when it comes into another port of the
same state. There is therefore, a rule that asylum is not granted on merchant vessels.

DIFFERENCE BETWEEN EXTRA TERRITORIAL & TERRITORIAL ASYLUM:-

In the asylum case Colombia v/s Peris- ICJ-1950.

EXTRA TERRITORIAL ASYLUM TERRITORIAL ASYLUM

In case of diplomatic asylum the refugee is Territorial asylum is granted by a State in its
within the territory of the state where the own territory.
offence was committed.
Grant of diplomatic asylum involves a Territorial asylum is granted by a State in its
derogation from the sovereignty of that own territory.
state.
It withdraws the offender from the Every state has right in the exercise of its
jurisdiction of the territorial state and sovereignty to admit into the territory such
constitutes an intervention in matters which persons as it deems advisable without

58
 are exclusively within the competency of exercising the Declaration of Asylum
the state.
Grant of extra territorial asylum is rather a The grant of territorial asylum is an incident
derogation from the sovereignty. of territorial sovereignty itself.
Right to grant extra-territorial asylum is Each state has a plenary right to grant
exceptional and must be established in each territorial asylum unless it has accepted
case. some particular restriction in this regard.

IS EXTRADITION IS DIFFERENT FROM ASYLUM

There is a great difference in between extradition and Asylum. Extradition means delivery of
an accused or a convicted individual to the state on whose territory he is alleged to have
committed or have been convicted of a crime whereas in Asylum the active protection
extended to a political refugee from another state by a state which admits him on his request.

Under International Law extradition is mostly a matter of bilateral treaty. In principle each
state considers it a right to give asylum to a foreign national, thus there is no universal rule of
customary international law in existence imposing the duty of extradition. A famous case
Music director Nadeem who was accused of the murder of Gulshan kumar. Nadeem fled to
Britain. Lack of providing sufficient evidence England refused to extradite Nadeem.

59
 MODULE 5- NIEO
Ethiopia is the birthplace of coffee and one of the largest coffee producers in Africa. The introduction
of Fair Trade certification in Ethiopia aimed to improve the livelihoods of small-scale coffee farmers
by ensuring fair prices, promoting sustainable practices, and supporting community development.

Objectives Reflecting NIEO Principles

Fairer Trade Practices:

Stable and Fair Prices: Ensuring coffee producers receive fair prices, often above market rates, with a
minimum price guarantee to protect against market fluctuations.

Market Access: Improving access to international markets for small-scale farmers.

Economic Sovereignty:

Empowerment: Strengthening the control of farmers over their production and sales through
cooperative structures.

Sustainability: Promoting environmentally sustainable farming practices.

Development Assistance:

Social Premiums: Providing additional funds for community development projects such as education,
healthcare, and infrastructure.

Capacity Building: Offering training and resources to improve agricultural practices and productivity.

Evaluation of Effectiveness

Positive Outcomes:

Improved Income and Stability:

Fair Trade certification has led to higher and more stable incomes for many Ethiopian coffee farmers.
The minimum price guarantee and premium payments have helped shield farmers from the volatility
of the global coffee market.

Example: In the Sidama and Yirgacheffe regions, Fair Trade-certified cooperatives have reported
increased household incomes, allowing farmers to invest in their farms and improve living standards.

Community Development:

60
Fair Trade premiums have been used to fund various community development projects, enhancing
the quality of life in coffee-growing regions.

Example: In the Oromia region, premiums have been used to build schools and improve access to
clean water, directly benefiting local communities.

Empowerment and Capacity Building:

The cooperative structure encouraged by Fair Trade has empowered farmers by giving them a
greater voice in decision-making processes and better access to international markets.

Example: Cooperatives like the Oromia Coffee Farmers Cooperative Union (OCFCU) have become
more organized and better equipped to negotiate fairer terms with international buyers.

Limitations and Challenges:

Market Access and Scale:

Despite the benefits, Fair Trade-certified coffee still represents a small fraction of Ethiopia's total
coffee exports. Many farmers remain outside the certification system and continue to face low prices
and market volatility.

Example: In regions not covered by Fair Trade, farmers still struggle with low prices and lack access to
premium markets.

Certification Costs and Bureaucracy:

The costs and administrative requirements of obtaining and maintaining Fair Trade certification can
be prohibitive for some small-scale farmers.

Example: Some cooperatives have reported difficulties in meeting the stringent certification criteria
and maintaining compliance, which can be costly and time-consuming.

Economic Sovereignty vs. Market Dependence:

While Fair Trade promotes economic sovereignty, farmers can become dependent on the premiums
and access provided by certification, making them vulnerable to changes in consumer demand in
developed countries.

Example: Fluctuations in demand for Fair Trade coffee in Europe and North America can directly
impact the incomes of Ethiopian farmers, creating a new form of dependence on external market
conditions.

Conclusion

The Fair Trade coffee initiative in Ethiopia illustrates both the effectiveness and limitations of NIEO
principles in Third World countries. It has successfully improved incomes, fostered community

61
development, and empowered producers, but also faces challenges related to market access,
certification costs, and dependency on consumer demand.

The Extractive Industries Transparency Initiative (EITI) is an international standard that aims to
promote transparency and accountability in the management of oil, gas, and mineral resources.
Nigeria, a major oil-producing country in Africa, provides a pertinent case study to evaluate the
effectiveness of NIEO principles, particularly in terms of economic sovereignty, fairer trade practices,
and development assistance.

Objectives Reflecting NIEO Principles

Economic Sovereignty:

Control Over Resources: Enhancing the capacity of the Nigerian government to manage its natural
resources transparently and accountably.

Revenue Management: Ensuring that revenues from extractive industries contribute to national
development and benefit the population.

Fairer Trade Practices:

Transparency in Transactions: Promoting transparent reporting of payments and revenues in the

extractive sector to prevent corruption and ensure fair trade.

Development Assistance:

Community Benefits: Ensuring that extractive industry revenues are used for sustainable
development projects that improve the lives of local communities.

Implementation in Nigeria

Adoption of EITI Standards:

Nigeria was one of the early adopters of the EITI standards, establishing the Nigeria Extractive
Industries Transparency Initiative (NEITI) in 2004 to oversee the implementation of these standards.

Revenue Transparency:

NEITI has been publishing regular reports on the financial flows from the oil and gas sector, detailing
payments by companies to the government and revenue allocation.

Audits and Accountability:

62
NEITI conducts audits and reconciliations of payments and revenues to ensure accountability and
reduce corruption in the extractive sector.

Evaluation of Effectiveness

Positive Outcomes:

Increased Transparency:

NEITI has significantly improved transparency in Nigeria's extractive sector. Regular reporting and
audits have made it easier to track revenues and expenditures, reducing opportunities for
corruption.

Example: NEITI reports have exposed discrepancies and cases of unremitted funds, prompting
government action to recover revenues.

Policy Reforms:

The transparency fostered by NEITI has led to policy and institutional reforms aimed at improving
governance in the extractive sector.

Example: The Nigerian government has introduced measures to strengthen financial management
and accountability in response to NEITI findings.

Enhanced Public Awareness:

NEITI has raised public awareness about the importance of transparency and accountability in
resource management, empowering civil society to demand better governance.

Example: Civil society organizations have used NEITI data to advocate for better allocation of
extractive revenues to social and development projects.

Limitations and Challenges:

Corruption and Governance Issues:

Despite improvements, corruption and weak governance continue to challenge the effective
management of Nigeria’s extractive revenues.

Example: High-profile corruption cases and the mismanagement of oil revenues indicate that
transparency alone is insufficient without robust enforcement and governance frameworks.

Limited Impact on Poverty:

63
The benefits of increased transparency have not always translated into tangible improvements in
living standards for the broader population, highlighting a gap between revenue transparency and
poverty reduction.

Example: Despite significant oil revenues, many communities in oil-producing regions remain
impoverished and face environmental degradation.

Dependence on Oil Revenues:

Nigeria's heavy reliance on oil revenues makes its economy vulnerable to global oil price fluctuations,
undermining economic stability and development.

Example: The collapse of oil prices in 2014 and 2020 significantly impacted Nigeria’s economy,
demonstrating the risks of over-reliance on a single resource.

Conclusion

The implementation of EITI standards in Nigeria provides a mixed picture of the effectiveness of NIEO
principles. While NEITI has improved transparency and accountability in the management of
extractive revenues, significant challenges remain in translating these improvements into broader
economic development and poverty reduction.

The Nigerian case illustrates that while initiatives inspired by NIEO principles can lead to positive
outcomes, they must be complemented by broader governance reforms, diversification of the
economy, and targeted efforts to ensure that resource revenues benefit the entire population. This
case study underscores the need for a holistic approach to implementing NIEO principles, addressing
both transparency and the broader structural issues that affect economic sovereignty and
development in Third World countries.

64
 MODULE 6- INTERNATIONAL ORGANIZATIONS

65
 MODULE 7- USE OF FORCE

For centuries, states have resorted to force in their international relations in order to achieve
particular, desired aims. The use of violence has proved to be an accepted, although tragic in
its consequences, method of resolving disputes between states. States reserved the right to
wage war without any internationally agreed regulatory framework. Nevertheless, over time,
the concepts of ‘just and unjust war’ emerged.

The three criteria for just war given by St. Augustine and St. Thomas Aquinas, the latter
famously stated in Summa Theologica are:

1. it should be waged by a sovereign authority (prohibition2 of waging a private war)

2. it must have a just cause (punishment of wrongdoers)
3. a just cause must be accompanied by the right intention.

HISTORY
In light of the growing number of sovereign states, wars started to be seen and defined as a
state of legal affairs rather than a matter of subjective moral judgment. States no longer found
themselves in a position to judge if another state’s reason for resorting to force was just or
not. This approach was supported by the rise of positivism, which strongly focused on the
idea of sovereignty and by the Peace of Westphalia 1648, which established the European
system of the balance of power. This system survived in Europe until the beginning of the
twentieth century, effectively coming to an end with the outbreak of the First World War.

In the aftermath of the First World War efforts were made to rebuild international relations
between states through the establishment and operation of an international institution which
would play a central role in ensuring that such acts of aggression would not occur again. The
League of Nations (LON) was created in 1919 with a view to achieving this aim. Under the
1919 Covenant of the League of Nations, member states were required to submit any inter-
state disputes for arbitration or seek other forms of judicial settlement at the League’s
Council.

However, the Covenant did not in fact revoke the right of states to resort to war, although it
subjected this provision to some limitations. In 1928, another attempt at the legal regulation
of the use of force was made, in the form of the General Treaty for Renunciation of War as an
Instrument of National Policy, more commonly referred to as the Kellogg–Briand Pact.

66
Parties to this treaty declared that they ‘condemn recourse to war’ and agreed to ‘renounce it,
as an instrument of national policy in their relations with one another’ (Article 1).

However, the League of nations proved to be unsuccessful after the beginning of WWII and
thus came to an end.

POST- 1945 LEGAL FRAMEWORK

The current legal framework regulating the use of force in international law is enshrined in
the UN Charter. The maintenance of international peace and security is the primary purpose
of the UN (Article 1(1) UN Charter). This includes prevention and removal of threats to the
peace, [...] the suppression of acts of aggression or other breaches of the peace, [...] 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. Therefore, as a
general rule of international law, the use of force is prohibited.

Although states have resorted to the use of force in international relations on multiple
occasions, there have been only two cases in which the International Court of Justice (ICJ)
has found that there had been a violation of the prohibition of the use of force:

 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v
Uganda) ICJ Rep 2005
 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v The United
States of America) ICJ Rep 1986

PROVISIONS

1. Article 2(3) all members shall settle their international disputes by peaceful means
such that the purpose of Un is not defeated.
2. Art 2(4) all members shall refrain from threat or use of force against the territorial
integrity or political independence of any state. it is considered as the cornerstone of
the charter. It is important to remember that the prohibition on the use of force is not
absolute. As the wording of Article 2(4) suggests, the force is permissible in
circumstances consistent with the purposes of the UN. Chapter VII of the UN Charter
(‘Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of
Aggression’), outlines when a state can resort to the use of military force against other
states. Force may be used against another state when:

67
  such an act is authorised by the UN Security Council as part of collective security
mechanism
 a state is acting in self-defence.
3. Art 51 reserves the right of individual or collective self defence if an armed attack
occurs against a member of UN. ‘This is considered an inherent right’. Customary
international law- right to self defence.
4. Art 2 (6) requires non member states to act in accordance with these principles so far
as necessary for the maintenance of international peace & security. Certain Security
Council resolutions are addressed to ‘all states’ rather than ‘member states.

MEANING OF FORCE

One point that was considered in the past and is now being reconsidered is whether the term
'force' in article 2(4) includes not only armed 29 force, but, for example, economic force.
Does the imposition of boycotts or embargoes against particular states or groups of states
come within article 2(4), so rendering them illegal?" Although that provision is not modified
in any way, the preamble to the Charter does refer to the need to ensure that 'armed force'
should not be used except in the common interest, while article 51, dealing with the right to
self-defence, specifically refers to armed force, although that is not of itself conclusive as to
the permissibility of other forms of coercion.

The 1970 Declaration on Principles of International Law recalled the 'duty of states to refrain
from military, political, economic or any other form of coercion aimed against the political
independence or territorial integrity of any state and the International Covenants on Human
Rights adopted in 1966 emphasised the right of all peoples freely to pursue their economic,
social and cultural development. This approach was underlined in the Charter of Economic
Rights and Duties of States, approved by the General Assembly in 1974, which particularly
specified that 'no state may use or encourage the use of economic, political or any other type
of measures to coerce another state in order to obtain from it the subordination of the exercise
of its sovereign rights.

The question of the legality of the open use of economic pressures to induce a change of
policy by states was examined with renewed interest in the light of the Arab oil weapon used
in 1973-74 against states deemed favourable to Israel. It does seem that there is at least a case
to be made out in support of the view that such actions are contrary to the UN Charter, as

68
interpreted in numerous reso- lutions and declarations. But whether such action constitutes a
violation of article 2(4) is dubious.

It is to be noted that article 2(4) covers threats of force as well as use of force. The issue was
addressed by the International Court in its Advisory Opinion to the General Assembly on the
Legality of the Threat or Use of Nuclear Weapons. The Court stated that a 'signalled intention
to use force if certain events occur could Constitute a threat under article 2(4) where the
envisaged use of force would itself be unlawful. Examples given included threats to secure
territory from another state or causing it to 'follow or not follow certain political or economic
paths.

The Court appeared to accept that the mere possession of nuclear weapons did not of itself
constitute a threat. it was stated that whether this amounted to a threat would depend upon
whether the particular use of force envisaged would be directed against the territorial
integrity or political independence of a state or against the purposes of the United Nations

The provisions governing the resort to force internationally do not affect the right of a state to
take measures to maintain order within its jurisdiction. Accordingly, such a state may forcibly
quell riots, suppress insurrections and punish rebels without contravening article 2(4).

In order for force to be legitimate it must fall within the accepted exceptions-

 Right to self defense

 Enforcement action mandated by UNSC
 Extreme humanitarian need.

Use of force against territorial integrity or political independence –Corfu Channel Case

Article 2(4) of the Charter prohibits the use of force 'against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the
purposes of the United Nations'. No state has the right to intervene, directly or
indirectly, for any reason whatsoever, in the internal or external affairs of any other
state. Consequently, armed intervention and all other forms of interference or
attempted threats against the personality of the state or against its political, economic
and cultural elements, are condemned.

69
 This was reaffirmed in the 1970 Declaration on Principles in International Law," with
the proviso that not only were such manifestations condemned, but they were held to
be in violation of international law.
The International Court of Justice in the Corfu Channel case declared specifically, in
response to a British claim to be acting in accordance with a right of intervention in
minesweeping the channel to secure evidence for judicial proceedings, that:

“the alleged right of intervention [was] the manifestation of a policy of force, such as
has, in the past, given rise to most serious abuses and such as cannot... find a place in
international law.”
The essence of international relations, concluded the Court, lay in the respect 50 by
independent states of one another's territorial sovereignty. In addition, the Eritrea-
Ethiopia Claims Commission took the position that recourse to force would violate
international law even where some of the territory concerned was territory to which
the state resorting to force had a valid claim.

EXCEPTION OF USE OF FORCE

THE USE OF FORCE AUTHORISED BY THE UN SECURITY COUNCIL
The UN Security Council plays a major role in the global collective security system by
deciding whether force may be used against other states. Should a situation that threatens
international peace and security occur, it is within the Security Council’s mandate to
‘determine the existence of any threat to the peace, [...] or act of aggression’ as well as to
‘make recommendations, or decide what measures shall be taken in accordance with Articles
41 and 42’ (Article 39 UN Charter). In such a situation, a state (or group of states) does not
act unilaterally (as in the case of self-defence), but rather states act collectively by resorting
to force acting under the authority of the international organisations (e.g. the UN Security
Council).

Case Study

UN Security Council Resolution 1973 of 17 March 2011 is an example of the authorisation of

the use of force by the UN Security Council. On the 17 February 2011, soon after the
outbreak of protests in Egypt and Tunisia, which marked the beginning of ‘The Arab Spring’,
Libyans in Benghazi joined in peaceful protests against the oppressive rule of Colonel
Muammar Gaddafi. They demanded that he step down after 42 years of ruling Libya and

70
called for an open, democratic and inclusive Libya. They demanded the end of an era of
oppression and gross human rights violations in the country, such as those committed in 1996
in the Abu Salim prison. The response of Gaddafi to this protest with armed violence against
civilian protesters ignited a civil war between the government forces in support of Gaddafi
and the opposition armed forces formed by the rebels.

On 17 March 2011, the UN Security Council, acting under Chapter VII of the UN Charter,
adopted Resolution 1973 authorising member states ‘to take all necessary measures […] to
protect civilians and civilian populated areas under threat of attack in the Libyan Arab
Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on
any part of Libyan territory.’

SELF DEFENCE

CATEGORIES OF COMPULSION

RETORSION

Retorsion is the adoption by one state of an unfriendly and harmful act, which is nevertheless
lawful, as a method of retaliation against the injurious legal activities of another state.
Examples include the severance of diplomatic rela- tions and the expulsion or restrictive
control of aliens, as well as various economic and travel restrictions.

The Hickenlooper Amendments to the American Foreign Assistance Act are often quoted as
an instance of retorsion since they required the US President to suspend foreign aid to any
country nationalising American property without proper compensation. This procedure was
applied only once, as against Ceylon (now Sri Lanka) in 1963, and has now been effectively
repealed by the American Foreign Assistance Act of 1973. Retorsion would also appear to
cover the instance of a lawful act committed in retaliation to a prior unlawful activity.

One of the cases of the Retorsion took place in December 1992, when two Pakistani High
Commission officials were declared persona non grata by India, Pakistan also expelled three
Indian officials and declared them persona non grata. The action of Pakistan can be termed as
Retorsion.

REPRISALS

Reprisals are acts which are in themselves illegal and have been adopted by one state in
retaliation for the commission of an earlier illegal act by another state. The classic case

71
dealing with the law of reprisals is the Naulilaa disputes between Portugal and Germany in
1928. This concerned a German military raid on the colony of Angola, which destroyed
property, in retaliation for the mistaken killing of three Germans lawfully in the Portuguese
territory

Thus, reprisals short of force (now usually termed countermeasures) may still be undertaken
legitimately, while reprisals involving armed force may be lawful where resorted to in
conformity with the right of self-defence. Reprisals as such undertaken during peacetime are
thus unlawful, unless they fall within the framework of the principle of self-defence.

Pacific blockades- eg of reprisal used previously against weaker states can no longer be used
by member states may be instituted by UN but not member states.

SELF DEFENCE UNDER ART 51

States may legitimately resort to the use of armed force in self-defence (Article 51 UN
Charter). But what is the meaning of ‘self-defence’?

Self-defence is a lawful reaction to the ‘armed attack’ against the territorial integrity of a
state, which also diminishes its political independence (acts forbidden in Article 2(4) UN
Charter). By executing the right to use force in self-defence, states are conducting a unilateral
act.

The traditional meaning of the right to self-defence originates from the Caroline case; these
principles were accepted by the British Government at the time and formed a part of
customary international law.

The Caroline case (1837)

This case sets out a customary international law definition of the right to self-defence. It
originates from a dispute between the British Government and the US Secretary of St0ate
regarding the destruction of an American vessel in an American port by British subjects. The
reason behind this act was the use of the vessel to transport munitions and groups of
Americans, who were conducting attacks on the Canadian territory. The US Government
declared that the attack on the vessel constituted an attack against the American territory. The
British Government responded by claiming the right to self-defence. The subsequent
diplomatic correspondence between the parties contained an outline of the key elements for

72
legitimate self-defence. The US Secretary of State, Daniel Webster, emphasised that for the
self-defence to be lawful in international law, the British Government must prove the:

1. necessity of self-defence, instant, overwhelming, leaving no choice of means and no

moment for deliberation
2. and that assuming such a necessity existed at the time:
3. the act justified by the necessity of self-defence, must be limited by that necessity, and
kept clearly within it.

The customary nature of the right to use force in self-defence was further confirmed by the
International Court of Justice (ICJ) in the Nicaragua Case (Military and Paramilitary
Activities in and against Nicaragua).

Nicaragua v United States of America

The ICJ in this case established that the right to self-defence is a natural & inherent right
under customary international law.

CRITERIA FOR SELF DEFENCE

In order to lawfully exercise the right to self-defence, a state must be able to demonstrate that
it has been a victim of an armed attack. The burden of proof in such a case lies with the state
seeking to justify the use of force in self-defence. Nevertheless, not all attacks will constitute
an armed attack for the purposes of Article 51: only the most grave forms of attack will
qualify, Nicaragua v US

It is also necessary to show that the state seeking to resort to force in self-defence has itself
been intentionally attacked. the court in the oil platform case held that none of them appeared
to be specifically aimed and deliberated at the US.

CONDITIONS

Furthermore, the ICJ held in the Nicaragua Case (Merits) that ‘self-defence would warrant
only measures which are proportional to the armed attack and necessary to respond to it’
(para. 176). This statement sets out two important principles in international law concerning
the use of force: the principle of proportionality and the principle of necessity. In this context,
proportionality means that the response to an armed attack must be reflective of the scope,
nature and gravity of the attack itself. On the other hand, the principle of necessity guards

73
against the use of measures which are excessive and not necessary in response to an armed
attack.

In the advisory opinion, it gave it to the General Assembly on the legality of the threat or use
of nuclear weapons. It was emphasized that the submission of the exercise of the right of self-
defense is subjected to the conditions of necessity and proportionality, which is a rule of
customary international law, and which depends on the facts and circumstances of each case.

In the oil platform's case, the Court held that it was not satisfied that the US attacks on the oil
platforms in question were necessary in order to respond to the attack on the Sea Isle city and
the mining of the USS Samuel B Roberts, noting in particular that there was no evidence that
the United States had complained to Iran of the military activities of the platforms. Further,
the US had admitted that one attack on an oil platform had been a target of opportunity. It has
been observed that necessity is a threshold, and the criteria of imminence can be seen to be an
aspect of it The court observed that in case that in this case there was number imminent
threat of force.

In Congo versus Uganda, the court, while finding that preconditions for the exercise of self-
defense did not exist in the circumstances, stated that the taking of air boats and towns by the
Ugandan forces many hundreds of kilometers away from the Uganda's border would not
seem proportionate to the series of trans border attacks it claimed had given rise to the right
of self-defense, nor to be necessary to that end. Proportionality as a criteria for self-defense
may also require consideration of the type of weaponry to be used. The international court in
the legality of threat or use of weapon took the view that nuclear weapons are not itself
included if it is proportionate under the law of self-defense.

Article 51 requires that states report immediately to the Security Council on measures taken
in the exercise of their right to self-defense and that action so taken may continue until the
Security Council has taken the necessary measures to maintain international
peace and security.

USE OF FORCE AGAINST NON-STATE ACTORS

On 7th August 1998, US Embassies in Kenya and Tanzania were bombed, causing the loss of
over 250 lives and appreciable damage to property. On 20th August the United States
launched a series of cruise missile attacks upon installations in Afghanistan and Sudan
associated with the organization of Bin Laden deemed responsible for the attacks. In doing

74
so, the United States declared itself to be acting in accordance with Article 51 and an exercise
of its right of self-defense.

The meaning of ‘armed attack’ causes significant controversy in international law. In the
Nicaragua Case and in Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory Advisory Opinion ICJ Rep 2004, the ICJ rejected the idea that an armed
attack may include ‘not only acts by armed bands where such acts occur on a significant scale
but also assistance to rebels in the form of the provision of weapons or logistical or other
support’(Nicaragua Case, para.195). In other words, it is necessary to show that an armed
attack is attributable to a state.

In the Nicaragua Case, Judge Higgins strongly opposed this view and argued that the act
involving the use of force from actors other than a state, such as groups of insurgents or
terrorist groups, may give rise to the exercise of the right of self-defence by the attacked state.
This statement highlights a very contentious issue in modern international relations, namely
the use of force in self-defence against non-state actors.

The state practice is moving in that direction. Article 1, Clause C of the African Union, non
aggression and common defence pact adopted and in force refers in terms to aggression
committed by non state actors as well.

This led to the interpretation of Art 51 to be included within its meaning of armed conflict to
include terrorist attacks thereby justifying a state to attack another as self defense. In 2001
October US informed SC that it was taking action on Al Qaeda in Afghanistan and against the
Taliban regime as a self defense measure.

PRE-EMPTIVE USE OF FORCE

But this concept is relevant on today’s date because of modern weapons. It is so fast and
destructive that it will give little time to a state to respond before being devastated specially
small states.

Israel in 1967 launched an anticipatory attack on its Arab neighbors as a result of actions
taken by Egypt (military pact between Egypt and Jordan, Egypt started mobilizing its forces
at the border, eviction of the peace keeping forces)

UN in its Summer Debates in the same year apportioned no blame on Israel for its pre
emptive attack.

75
The trouble is in such attacks there is a fine calculation that is required on the part of the state
and onus to prove it lies on it too. A pre emptive attack too early will constitute aggression
rather than self defense.

On today’s date pre emptive self defense may be considered a right similar to that of self
defense going beyond the Caroline Case.

Eg of that would be- US’s note to the UN in 2001 that said US was going to attack
Afghanistan but its actions may spread to other organizations or states in furtherance of their
purpose. (formally laid down in 2002 National Security Strategy)

But there is no basis in international law for the doctrine of ‘preventive’ self defense

Although there were instances of the use of force against non-state actors prior to 2001, the
9/11 attacks urged discussion about the right to pre-emptive self-defence in international law.
Following the attacks, the Bush Administration in the USA adopted a security strategy, based
on the right to pre-emptive self-defence. The doctrine of pre-emptive self-defence assumes
the right to use force without international authorisation in order to prevent the development
of a possible future attack by another state.

The idea of pre-emptive self-defence is extremely controversial, as it goes against the core
principles of international law regulating the use of force. The UN Charter allows for the use
of force only in extreme circumstances, as a means of last resort, once all peaceful means
have been exhausted. Furthermore, the use of force against another state in circumstances
where there is a lack of an armed attack in the first place questions the necessity and
proportionality of an attack carried out by a state which acts on the basis of ‘pre-emptive self-
defence’.

The ICJ has not yet commented on the existence of a right to use force against non-state
actors, nor the right to pre-emptive self-defence.

COLLECTIVE SELF DEFENCE

Article 51 refers to the inherent right of collective civil defence, and the question therefore
arises as to how far one state may resort to force in the defence of another. The idea of
collective self-defense is rather ambiguous.

Organisations such as NATO and the Warsaw Pact were established after the Second World
War specifically based upon the right of collective self-defense provided under Article 51. By

76
such agreements, in attack upon one party is considered as an attack upon all, thus
necessitating the conclusion that collective self-defense is something more than a collection
of individual right of self-defense, but another creature altogether.The approach finds
supports in the Nicaragua versus United States.

The invasion of Kuwait by Iraq on 1990 raised the issue of collective self-defense in the
context of the response of the state. The Kuwaiti government in the exile appealed for
assistance from another state. Although the armed action from 1991 was taken pursuant to
UN Security Council, it is indeed arguable that the right to collective is also relevant in this
context. This doctrine has also been used in the context of the attacks on Iraq by ISIL.

PROTECTION OF NATIONALS ABROAD

 Entebee incident- classic example- SC debate on the issue was inconclusive.

 In 1993 US launched missiles in Baghdad as there was an alleged plan to assassinate
Bush.
 There are two opposing principles of saving people of your nationality and the
preservation of the territorial integrity of states. Careful restrictive approach following
the Caroline Case has to be followed.
 Property cannot be protected under int law.

INTERVENTION

 Non intervention is customary international law based upon territorial integrity and
political independence of states.
 In light of this, civil wars are strictly considered an internal matter of a state, under Int
law and therefore states are supposed to refrain from interfering.
 Exception- when civil war is caused or leads to self determination of people
 States get involved in civil wars through certain aspects of int law-
 A prolonged rebellion in a state may cause another state to recognize such rebel group
as legitimate.
 A state may also recognize belligerents or insurgents in certain instances.
 Barring this, generally it is the prevalent govt that assigns a status to such rebel groups
such as criminals/ insurgents/ belligerents.
 Depending upon the status that the govt grants other states may or may not recognize
such groups.

77
  Accordingly states may develop rights vis-à-vis such groups. This will not tantamount
to intervention.
 Aid to States-
 Providing aid to an existing government is perfectly legitimate so long as the
government seeks such aid.
 The problem arises when the government is in itself in contention. Eg. Grenada
episode 1984
 The only time when states should not grant aid is if the rebellion is ending and or if
the government at hand’s position is probably subject to change.
 Then providing aid might end up proving fatal as in the opposite of what may be
desired shall happen defeating the purpose on a whole.

PEACEKEEPING FORCES

 The Charter gives the United Nations Security Council primary responsibility for the
maintenance of international peace and security.
 In fulfilling this responsibility, the Security Council may adopt a range of measures,
including the establishment of a United Nations peacekeeping operation. (Chapter VI,
VII)
 Peacekeeping is a technique designed to preserve the peace, however fragile, where
fighting has been halted, and to assist in implementing agreements achieved by the
peacemakers. Over the years, peacekeeping has evolved from a primarily military
model of observing cease-fires and the separation of forces after inter-state wars, to
incorporate a complex model of many elements – military, police and civilian –
working together to help lay the foundations for sustainable peace.
 Peace enforcement involves the application, with the authorization of the Security
Council, of a range of coercive measures, including the use of military force. Such
actions are authorized to restore international peace and security in situations where
the Security Council has determined the existence of a threat to the peace, breach of
the peace or act of aggression. The Security Council may utilize, where appropriate,
regional organizations and agencies for enforcement action under its authority
 nited Nations peacekeeping operations should be conducted in full respect of human
rights.

78
  United Nations peacekeepers must have a clear understanding of the principles and
rules of international humanitarian law and observe them in situations where they
apply.
 There are three basic principles that continue to set UN peacekeeping operations apart
as a tool for maintaining international peace and security.
 These three principles are inter-related and mutually reinforcing:
1. Consent of the parties
2. Impartiality
3. Non-use of force except in self-defence and defence of the mandate.
 United Nations peacekeeping operations may also use force at the tactical level, with
the authorization of the Security Council, to defend themselves and their mandate,
particularly in situations where the State is unable to provide security and maintain
public order.
 A United Nations peacekeeping operation should only use force as a measure of last
resort, when other methods of persuasion have been exhausted, and an operation must
always exercise restraint when doing so. The ultimate aim of the use of force is to
influence and deter spoilers working against the peace process or seeking to harm
civilians; and not to seek their military defeat. The use of force by a United Nations
peacekeeping operation should always be calibrated in a precise, proportional and
appropriate manner, within the principle of the minimum force necessary to achieve
the desired effect, while sustaining consent for the mission and its mandate. In its use
of force, a United Nations peacekeeping operation should always be mindful of the
need for an early de-escalation of violence and a return to non-violent means of
persuasion.

IHL

relations (jus ad bellum – law on on the use of force).This section looks at a specific branch
of international law, which aims to regulate the conduct of states and individuals during
armed conflict: international humanitarian law (IHL) (jus in bello – law of war).

International humanitarian law (IHL) acts as lex specialis (law governing a specific subject)
in international law. It sets out the rules applicable to a very specific situation in international
relations: the state of armed conflict.

79
The main aim of IHL is to limit the detrimental effects of warfare by providing protection to
those who do not take part or no longer take an active part in hostilities. It also defines rules
of conduct for those engaged in armed conflict and provides restrictions regarding the
methods and means of warfare that can be employed.

IHL distinguishes between two main types of conflict:

 international
 non-international (internal).

International armed conflict (IAC) involves fighting between armed forces of at least two
states. The law applicable to international armed conflicts is enshrined in the Geneva
Conventions I–IV and AP I.

In recent years non-international armed conflicts (NIAC) have become much more common.
Such conflicts, civil wars, involve fighting between the regular armed forces of the state, on
the one hand, and identifiable armed groups on the other; or else, fighting between two or
more armed groups but with no state involvement.

IHL is based on three main principles:

1. proportionality
2. necessity
3. distinction.

You became familiar with the first two principles in Section 1. The third main principle of
IHL relates to the distinction between civilian objects and military objectives. IHL requires
all parties to a conflict to balance military necessity with humanitarian principles, aimed at
limiting suffering in warfare. The application of the principle of distinction means that only
military objectives can be subjected to an armed attack. This rule is codified in Articles 48
and 52(2) of AP II, to which no reservations have been made. It is a very important principle
as it has implications for the applicable system of protection explained in Table 1.

Read briefly about hague and Geneva convention

Ethnic cleansing in Srebrenica

During the war in the former Yugoslavia, in July 1995, over 8000 civilian men of Bosnian
Muslim origin, were killed by the Army of Rebuplika Srpska under the command of General
Ratko Mladič (see Figure 5). The massacre was part of a policy of so-called ethnic cleansing

80
– a deliberate strategy aimed at the creation of ethnically clean areas. This intentional mass
killing not only constituted a grave violation of the rules of IHL regarding the protection of
civilians, but also amounted to genocide.

HUMANITARIAN INTERVENTION

The threat or use of force across state borders by a state (or a group of states) aimed at
preventing or ending widespread and grave violations of the fundamental human rights of
individuals other than its own citizens, without the permission of the state within whose
territory force is applied.

This definition alone indicates some of the key problematic issues surrounding humanitarian
intervention. Firstly, it involves the use of force (or a threat thereof) against another state
without its consent. This action itself indicates an attack on state sovereignty, which is
additionally strengthened by the second element of this definition: implication of a failure of
the state in question to secure the human rights of its citizens.

The Kosovo crisis of 1999 raised squarely the issue of humanitarian interven tion. 212 The
justification for the NATO bombing campaign, acting out of area and without UN
authorisation, in support of the repressed ethnic Albanian population of that province of
Yugoslavia, was that of humanitarian necessity. The UK Secretary of State for Defence stated
that: 'In international law, in exceptional circumstances and to avoid a humanitarian
catastrophe, military action can be taken and it is on that legal basis that military action was
taken. 213 The Security Council by twelve votes to three rejected a resolution condemning
NATO's use of force.

The Rwandan genocide in 1994 is a good example of a failure of a humanitarian intervention,

which was catastrophic for the victims. At the time when arguably it was most needed, the
international community, with the knowledge of the unveiling tragedy in Rwanda, did not
take any action to prevent mass killings of civilians and attempted genocide.

The matter was revisited during the Syrian crisis of 2013, following in particular the use by
the Syrian authorities of chemical weapons.The United Kingdom took the position that if
action in the Security Council were blocked, the United Kingdom would be permitted under
international law to take exceptional measures in order to alleviate the scale of the
overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use
of chemical weapons by the Syrian regime.The matter remains controversial.

81
In April 2017, the Syrian regime engaged in a particularly egregious poison gas attack,
resulting in the deaths of more than 80%. the United States, in retaliation, launched a missile
attack on a Syrian Air Force Base. In 2018, the Syrian regime engaged in a further chemical
weapon attack in Douma. the United States responded with cruise missile attacks against a
Syrian airfield. The legal basis for this was Not clearly formulated.Beyond the degrading of
Syrian capabilities in chemical weaponry and as a deterrence.

The key tension in the debate on humanitarian intervention relates to the intersection between
the moral and legal aspects of intervention.

From the legal perspective, humanitarian intervention can be seen as violating one of the
main principles enshrined in international law: the political and territorial independence of
the state. It can therefore be argued that, apart from different phraseology, it simply
constitutes an act of illegal use of force. On the other hand, it is difficult to object to the moral
righteousness of intervening in order to protect individuals in another country from gross
violations of their human rights

82
 

83
 MODULE 8- DISARMAMENT
INTRODUCTION

“Every gun that is made, every warship launched, every rocket fired, signifies in the final
sense, a theft from those who are hungry and are not fed, those who are cold and not
clothed” –Eisenhower.

The word disarmament means the reduction or disbandment by a state of its military forces
and weapons. The disarmament may be self imposed, externally imposed or due to
international or regional treaties. Disbarment may again be partial or general. isarmament in
the broad sense means the total abolition of armaments of all types – conventional as well as
nuclear, biological and chemical weapons.

Partial disarmament stands for the reduction of special types of weapons which are generally
considered to be more dangerous. General and complete disarmament stands for abolition of
all kinds of weapons. Though the general disarmament is the ideal position, the partial
disarmament is the pragmatic approach. The present advocates of disarmament generally talk
in terms of partial disarmament. Reductions deadly weapons . is the immediate goal while the
general disarmament is the ultimate goal. It is different from regulation of armaments which
means reduction and restriction of armaments.

The desire for the total ban on armaments has been expressed time and again since the
beginning of the 20th century, but its intensity began to grow only after the Second World
War post the Hiroshima- Nagasaki bombings.

RATIONALE

The concept of disarmament his originated from an understanding that weapons are the
source of tcnsion which at times create wars. The stock piling of arms instills mutual fear and
hastility into interstate relations. It is being argued that in order to stop wars or hostilities and
to develop trust between thc states, the weapons, which are considered to be the root of all
these evils, are required to be eliminated. Disarmament is necessary for maintaining peace
and progress of the human civilization. The increasing stockpiles of armaments, continuing
enlargement of the armed forces and the growing investment for research and dcvelopment of
the weapon technology of the world pose fresh threats to peace and development of the
human race. The invention and development of nuclear weapons have posed the threat of
total annihilation of the human race in the event of another world war. All these have made

84
the people more conscious about disarmament because only the elimination of these weapons
can ease the tension in the world and remove the fear of any world wide holocaust. The t i
invention and development of sophisticated military technology has made all countries -
vulnerable. None can be self-sufficient in defense. It is impossible for any single country to
defend itself from the attack of any other country. So disarmament is the only way to make
the world safe. The increasing investment in the military industry is also consuming money
and useful resources which otherwise could be diverted to the development sectors. In the
context of the growing poverty in large parts of the world, the increasing investment in
military industry can further increase the poverty and accentuate the social tension in every
society of the world. The huge expenditure in the defence sector can only be stopped or
decreased if the disarmament at least of partial type is achieve.

HISTORY

The concept of disarmament is an old one. It has been in use as an instrument to achieve
international security for a long time. Its dated history can be traced back to 546 B.C. when
warring Chinese principalities met in a conference and signed a disarmament agreement to
end protracted wars between them. With the beginning of the modern period the urge for
disarmament increased among the big powers. Several attempts were made by the Western
powers and Russia. But none of these attempts could become successful because of deep
rooted suspicions against the big powers. So the moves for disarmament were so designed
that interests of the proposers could be protected. Not all disarmaments efforts ended in
failure. Probably the first disarmament agreement in the modern age which still continuing
was the one signed in 1817 by the Great Britain and the USA known as the Rush-Bagot
Agreement it sought to demilitarize the Canadian American Frontier. In 1899 first
international disarmament conference was held in Hague. All European major powers
attended the conference which ended without much success. However, it passed resolutions
proscribing certain type of deadly weapons, and asking the states to limit the military
expenses so that more funds could be diverted for developmental purpose. The second
international disarmament conference was held again in Hague in 1907. The conference
failed lo stop the contemporary growing arms race. When First World War broke out in 1914,
all waring countries broke their commitments, and undertakings which had been given by
them in different conferences and meetings. After World War I, Treaty of Versailles
effectively disarmed Germany, a clause was inserted that called on all the great powers to
likewise progressively disarm over a period of time.

85
After the war, the first international organisation, named the League of Nations was
established in 1920. It served as a forum for holding discussions on the issues connected with
the disarmament. Disarmament had been one of the cherished goals of League of Nations,
under the auspices of the League conferences were held, studies on disarmament were
sponsored. The League of Nations convened the first World Disarmament Conference in
1932. The Conference however contributed to augment the process of disarmament.
Disarmament conferences were also held outside the League of Nations. The League of
Nations made this an explicit goal in the covenant of the league, which committed its
signatories to reduce armaments 'to the lowest point consistent with national safety and the
enforcement by common action of international obligations’.

The United States organised a Naval Conference in Washington in 1922. The Washington
Naval Conference ended with a treaty which limited the size of warships, imposed
restrictions on the building of warships and aircrafts for ten years. The treaty also banned the
indiscriminate raising of naval bases in the Pacific. Signed by the governments of Great
Britain, the United States, Japan, France, and Italy, it prevented the continued construction of
capital ship

The Kellogg-Briand Pact, which denounced war of aggression. The Kellogg-Briand Pact, also
known as the Pact of Paris, was an international agreement signed in Paris on August 27,
1928, that renounced war as a national policy. The pact's main text has two articles:

 Signatories shall renounce war as a national policy

 Signatories shall settle disputes by peaceful means

The pact's language was understood to mean aggressive war, and the idea of aggressive war
as a crime remains influential in international law today. The pact was the basis for the trial
and execution of German leaders in 1946 for war crimes. However, the pact was unable to
prevent World War II, and some say it had little effect in stopping the rise of militarism in the
1930s. The pact's failure to establish a means of enforcement also rendered it ineffective

A final attempt was made at the Geneva Disarmament Conference from 1932 to 1937.
Germany demanded the revision of the Versailles Treaty and the granting of military parity
with the other powers followed by Germany's withdrawal from the conference. The World
Disarmament Conference, also known as the Conference for the Reduction and Limitation of
Armaments, was held in Geneva, Switzerland from February 1932 to November 1934. The

86
conference was a response to the destruction of World War I and was attended by delegates
from more than 60 countries. However, the conference ended without a resolution due to
disagreements between the victorious powers.

Some proposals made at the conference included:

 Germany demanded that other states disarm to the same level as Germany, and
threatened to build up its armed forces if they refused
 France argued that security should come before disarmament, and called for security
guarantees and an international police force before reducing its own forces
 France wanted the League of Nations to have greater power through its own arms, and
to control large aircraft and store intermediate aircraft
 France also wanted a binding protocol to assist victims of aggression

The conference adjourned in the summer of 1932 and reconvened in February 1933, just days
after Adolf Hitler took power in Germany

The large scale destruction in Second World War and the devastating impact of the explosion
of atom bombs on Japan again made the people anxious for the world peace and
disarmament. The war ended with formation of the new world body, known as the United
Nations, (UN). The UN General Assembly in its very first session in 1946 founded the United
Nations Atomic Energy Commission (UNAEC), which was asked to make specific
recommendations for the elimination of weapons. The UN General Assembly also called the
UNAEC to prepare plan for the peaceful use of the atomic energy for the developmental
purpose.

PROBLEMS OF DISARMAMENT

1. Problem of security & fear:

 The problem of disarmament is closely linked to the problem of security.
 Nations whether big or small join the arms race due to the fear of insecurity.
 Many states feel that disarmament deprive states of their means of security.
 Thus, the concept of security & insecurity poses a problem to effective
disarmament.
2. Lack of mutual trust:
 Disarmament faces problem as there is the lack of trust between nations.

87
  Usually suspicion regarding the intentions of arms control hinders the talks
towards disarmaments.
 If there were perfect trust between nations, arms would be unnecessary and
disarmament would not be a problem (Sleicher).
 Thus, lack of mutual trust among nations causing difficulties in the realization
of effective disarmament agreement.
3. Absence of alternative to arms:
 States require armaments in order to achieve a number of objectives.
 Since there is no substitute to the possession of arms, disarmaments becomes
difficult.
4. Pressure of arms industry:
 The pressure of arms industry has an impact on the policy of a country
pertaining to disarmament.
 The nations producing weapons earn huge profits and bestow political favors
by supplying modern weapons.
 USA & Western Europe are the major producers & third world countries are
its major buyers.
 Since the manufacture and sale of armaments are commercially profitable
nations discourage disarmaments.
5. National Interest:
 Disarmament talks and conferences are a farce as majority of nations want to
take much and give little as security is dear and fear is strong.
 Every nation is concerned with its national interest which is closely intervened
with security.
6. Problem of qualitative or qualitative control:
 It is always difficult to determine whether the nation –states are equal in
armaments or superior to another as there are different types of weapons.
 The agreement on ratio of strength causes a political problem as well as a
technical one.
 Thus, carrying on arms negotiations and political negotiations simultaneously
requires great skill & efficient diplomacy.

88
  The question of standards of allocation of the types and quantities of different
armaments to be allotted also causes many problems.
7. Not Practicable:
 Many nations believe that the military preparedness really enhances its sense
of security rather by adopting disarmament.
 Peace through disarmaments is an utopian dream.
 There is no historical evidence to prove the fact that a disarmed world would
be a peaceful world.
 Opponents of disarmament argue that weapons are not the causes but rather
results of conflictive relationship.

UN and DISARMAMENT

The founding of the United Nations at San Francisco, during the final months of the Second
World War, in the summer of 1945, symbolized the beginning of a new era in international
relations. The Charter of the United Nations embodied principles and provided a forum to
discourage war as an instrument of policy between nations. The first of those principles was
the commitment to "save succeeding generations from the scourge of war". Moreover, within
the framework of the Charter, the world Organization offered opportunities for Member
States to develop new forums, methods and international machinery of cooperation for
international peace and security. To help achieve that goal, the Charter entrusted the General
Assembly and the Security Council with the responsibility for dealing with questions of arms
limitation and disarmament.

A few months after the first atomic bombs were dropped on Hiroshima and Nagasaki, the
United Nations General Assembly adopted its first resolution: it was on disarmament, and
specifically on the establishment of a commission—the Atomic Energy Commission—whose
terms of reference were designed to ensure the elimination of atomic and all other weapons of
mass destruction and the use of atomic energy only for peaceful purposes. The General
Assembly also underlined, later that year in resolution 41(1), the connection between the
questions of disarmament and of peace and security. Since that time, the United Nations has,
over the years, dealt with disarmament questions using a variety of bodies, methods,
techniques and approaches. The problems involved are complex and are often seen to affect
the vital security interests of States. The political compromises necessary to solve them have
therefore often been difficult to reach, and the results achieved have often been characterized
89
as modest. In recent years the General Assembly, its First Committee and the Disarmament
Commission have been the main United Nations deliberative bodies in the field of
disarmament. The General Assembly sometimes also establishes ad hoc committees to deal
with specific disarmament matters. In addition, since 1962 a multilateral disarmament
negotiating forum—now known as the Conference on Disarmament—has been in place in
Geneva. The Conference on Disarmament, with 39 participating States, has a unique
relationship with the United Nations. While it defines its own rules of procedure and
develops its own agenda, it takes into account the recommendations made by the General
Assembly and reports to the Assembly annually or, as appropriate, more frequently.

The Conference on Disarmament establishes Ad hoc Committees formerly called working

groups. Ex In 1988, the Conference on Disarmament established 5 Ad hoc Committees to
continue to work on banning chemical and radiological weapons, preventing the arms race in
outer space, comprehensive programme on disarmament, effective arrangements against the
threat or use of nuclear weapons, etc

UNODA -1998

UN CHARTER AND DISARMAMENT

 Article 11 of the UN Charter entrusts the General Assembly to consider the general
principles governing disarmament and regulation of armaments and to make
recommendations in this regard to members or the SC or both.
 Article 26 makes the Security Council responsible for plans to be submitted to the
members and establish a system for the reduction of armaments.
 Article 47 refers to the functions of the Military Staff Committee, which is to assist
and advise the Security Council‟s military requirements including the regulation of
armaments and possibly disarmament

The above provisions do not confer final authority of the UN. It cannot impose the rule of
disarmament on states and the provisions of disarmament are too weak.

The UN Charter does not define the term “disarmament”.

The process of disarmament is not consistent with the UN Charter.

90
Some weapons have been banned outright such as banning the testing of nuclear weapons,
restrictions on armaments, chemical weapons treaty, poly weapons etc. while some are on the
agenda such as nuclear weapons and land mines.

These provisions have been interpreted by jurists differently.

TREATIES

CONEVNTIONAL WEAPONS

Conventional arms are weapons other than weapons of mass destruction. They are the most
commonly known and widely used weapons in conflict and crime settings and encompass a
wide range of equipment, including battle tanks, armoured combat vehicles, large-caliber
artillery systems, combat aircraft and unmanned combat aerial vehicles (UCAV), attack
helicopters, warships, missile and missile launchers, landmines, cluster munitions, small
arms, and lights weapons and ammunition

The UN Charter does not forbid its Member States to own and use conventional arms when
this is done in conformity with international law. This is the reason why the terms “arms
control” and “arms limitations” are more often used than “disarmament” when referring to
conventional arms.

Some conventional weapons, however, may cause humanitarian concern either because of the
way they are used or may be used, or because of their design which makes them incompatible
with international humanitarian law.

Convention on Prohibitions or Restrictions on the Use of Certain Conventional

Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate
Effects

also called UN Convention on inhumane weapons (CCW).

and its protocols, which cover the following:

 non-detectable fragments;
 mines, booby-traps and other devices;
 incendiary weapons;
 blinding laser weapons and
 explosive remnants of war.

91
NUCLEAR WEAPONS

A nuclear weapon is an explosive device whose destructive force results from either nuclear
fission chain reactions or combined nuclear fission and fusion reactions.

Nuclear weapons are the most dangerous weapons on earth which can potentially killing
millions, and jeopardizing the natural environment and lives of future generations through its
long-term catastrophic effects. The dangers from such weapons arise from their very
existence.

Accordingly, any such use of a nuclear weapon would be judged under the applicable
international laws, jus ad bellum (international law governing the interstate use of force) and
jus in bello (international law applicable in armed conflict

Although nuclear weapons have only been used twice in warfare—in the bombings of
Hiroshima and Nagasaki in 1945—about 13,400 reportedly remain in our world today and
there have been over 2,000 nuclear tests conducted to date. Disarmament is the best
protection against such dangers, but achieving this goal has been a tremendously difficult
challenge.

Regional Nuclear-Weapon-Free Zones (NWFZ) have been established to strengthen global

nuclear non-proliferation and disarmament norms and consolidate international efforts
towards peace and security.

PARTIAL TEST BAN TREATY

On 5 August 1963, the Partial Test Ban Treaty (PTBT) — also known as the Limited Test Ban
Treaty (LTBT) — was signed in Moscow by the United States, the Soviet Union, and the
United Kingdom. It was prompted by growing international concern about the environmental
and health effects of nuclear testing, particularly atmospheric testing, which released
radioactive fallout into the atmosphere.

The Treaty requires Parties to prohibit, prevent, and abstain from carrying out nuclear
weapons tests or any other nuclear explosions in the atmosphere, in outer space, under water,
or in any other environment. it allows for underground nuclear testing, provided that such
explosions cause radioactive debris to be present outside the territorial limits of the State that
conducts an explosion; to refrain from causing, encouraging, or in any way participating in,

92
the carrying out of any nuclear weapon test explosion, or any other nuclear explosion,
anywhere which would take place in any of the above-described environments.

The PTBT does not provide for international verification; however, it is understood that each
party may do so by its own national technical means.

With the signing of the Comprehensive Test Ban Treaty (CTBT) in September 1996, the
PTBT became redundant. However, should a PTBT party withdraw from the CTBT, or not
sign the CTBT, it would still be bound by the provisions of the PTBT.

NPT

The NPT is a multilateral treaty aimed at limiting the spread of nuclear weapons including
three elements: (1) non-proliferation, (2) disarmament, and (3) peaceful use of nuclear
energy. These elements constitute a “grand bargain” between the five nuclear weapon states
and the non-nuclear weapon states.

 States without nuclear weapons will not acquire them

 States with nuclear weapons will pursue disarmament
 All states can access nuclear technology for peaceful purposes, under safeguards

nations as party
o 5 nuclear state as recognized by NPT.
o Acceder that announced its withdrawal (North Korea)
o Non-parties- (India, Israel, Pakistan, South Sudan)
o Partially recognized state that ratified (Taiwan)
The NPT is considered the most widely adhered-to arms control agreement, with 191 states
parties as of 2022.
Provisions

 Nuclear & Non-Nuclear Weapon States

(Article IX): The Treaty defines nuclear weapon states (NWS) as those that had manufactured
and detonated a nuclear explosive device prior to 1 January 1967. All the other states are
therefore considered non-nuclear weapon states (NNWS). The five nuclear weapon states are
China, France, Russia, the United Kingdom, and the United States.

 Nonproliferation

93
(Articles I, II, III): Nuclear weapon states are not to transfer to any recipient whatsoever
nuclear weapons and not to assist, encourage, or induce any NNWS to manufacture or
otherwise acquire them. Non-nuclear weapon states are not to receive nuclear weapons from
any transferor and are not to manufacture or acquire them. NNWS must accept the
International Atomic Energy Agency (IAEA) safeguards on all nuclear materials on their
territories or under their control.

 Disarmament

(Articles VI): All Parties must pursue negotiations in good faith on effective measures
relating to the cessation of the nuclear arms race and to nuclear disarmament, and on a treaty
on general and complete disarmament under strict and effective international control.

 Peaceful Use

(Article IV): The Treaty does not affect the right of state parties to develop, produce, and use
nuclear energy for peaceful purposes, provided such activities are in conformity with Articles
I and II. All state parties undertake to facilitate, and have a right to participate, in the
exchange of equipment, materials, and scientific and technological information for the
peaceful uses of nuclear energy.

 Other

(Article V): on peaceful nuclear explosions is interpreted in light of the Comprehensive Test-
Ban Treaty (CTBT). Article VII enshrines the right of any group of states to conclude
regional treaties to assure the absence of nuclear weapons in their respective territories
(nuclear-weapon-free zone treaties). The remaining articles are procedural.

CTBT

The Comprehensive Nuclear Test Ban Treaty (CTBT) itself includes a Protocol in three parts:
Part I detailing the International Monitoring System (IMS); Part II on On-Site Inspections
(OSI); and Part III on Confidence-Building Measures (CBMs). There are also two Annexes to
the Protocol: Annex 1 detailing the location of various Treaty monitoring assets associated
with the IMS; and Annex 2 detailing the parameters for screening events.

The Treaty establishes a CTBT Organization (CTBTO), located in Vienna, to ensure the
implementation of its provisions, including those provisions for international verification
measures.

94
The CTBT bans any nuclear weapon test explosion or any other nuclear explosion (i.e., true
zero yield).

The CTBT is frequently associated with another key element in the process of nuclear
disarmament: a ban on the production of fissile material for anything other than verified
peaceful use. Such a ban would impose a quantitative limit on the amount of nuclear material
available for weapons use. That objective is the basis for an initiative at the Conference on
Disarmament (CD) to negotiate a treaty banning further production of fissile material for
weapons purposes — the draft Fissile Material Cut-Off Treaty (FMCT). Taken together, the
CTBT and the FMCT are integral components of the nuclear control regime and provide the
foundation for eventual nuclear disarmament.

The treaty prohibits nuclear explosions in all environments, including underground,

underwater, and in the atmosphere.

Although the CTBT has not yet entered into force due to the requirement for ratification by
certain key states, it plays a significant role in stigmatizing nuclear testing.

Not Ratified: China, the DPRK, Egypt, India, Indonesia, Israel, Iran, Pakistan, and the United
States

On 02 November, Russia revoked its ratification of the CTBT.

TPNW

Adopted in 2017, the TPNW is the first legally binding international agreement to
comprehensively prohibit nuclear weapons.

The Treaty on the Prohibition of Nuclear Weapons (TPNW) prohibits States Parties from
developing, testing, producing, manufacturing, acquiring, possessing, or stockpiling nuclear
weapons or other nuclear explosive devices. Signatories are barred from transferring or
receiving nuclear weapons and other nuclear explosive devices, control over such weapons,
or any assistance with activities prohibited under the Treaty. States are also prohibited from
using or threatening to use nuclear weapons and other nuclear explosive devices. Lastly,
States Parties cannot allow the stationing, installation, or deployment of nuclear weapons and
other nuclear explosive devices in their territory. In addition to the Treaty’s prohibitions,
States Parties are obligated to provide victim assistance and help with environmental
remediation efforts.

95
Although the TPNW has not yet been ratified by all nuclear-armed states and some of their
allies, it represents a significant step towards the eventual elimination of nuclear weapons.

INDIA AND NPT

India and NPT The Nuclear Non-Proliferation Treaty (NPT) was concluded in 1967, kept
open for signature in 1968 and was promulgated in 1970 for a period of 25 years. The NPT
has been extended unconditionally and indefinitely by its Review and Extension Conference
held in New York from 17th April to 12th May, 1995.

The 1995 Conference has not suggested any change, alteration or modification of its
provisions. The Conference even has not produced any review document. 178 states signed
the treaty and 13 countries including India did not sign the NPT. 'The NPT appears to be a
pious attempt to stop the proliferation of nuclear weapon technology. Its contents, however,
bear ample evidences to establish the fact that the five nuclear states who are also the veto-
wielding permanent members of the Security Council, intend to monopolise the nuclear
technology and to establish their hegemony over the world.

The NPT demands that the present non-nuclear states, and the states which are on the
threshold of acquiring the nuclear capability must stop the research and making of nuclear
weapons. India objected to such a treaty calling it discriminatory. India has categorically
declared that it will not sign the Treaty in its present form because its indefinite extension
only serves to perpetuate its discriminatory aspects which have created a division between the
nuclear "haves" and "have nots".

INDIA AND CTBT

The concept of Comprehensive Test Ban Treaty was mentioned in the NPT. The CTBT has
been planned to realise the objective of general and complete nuclear disarmament. The
CTBT in present form, however, is not intended to make the weapon free world free from
nuclear weapons. It would neither actually reduce the number of nuclear. weapons, nor
decrease the present offensive capabilities of the nuclear weapon states. * The treaty asks the
non-nuclear states not to go for testing of nuclear devices thus preventing them from
emerging as nuclear capable states. It has no provision for reducing the nuclear capabilities of
the weapon states. Like the NPT, the CTBT too wants to divide the world into nuclear haves
and have-nots. India has, therefore, not signed the CTBT.

96
After the CTBT was ratified in 1996, negotiations on another treaty to cut off fissile material
production have started in January, 1997. The proposed Fissile Material production Cut-off
Treaty (FMCT) seeks to put a cut-off point in the sphere of fissile material production. India
has refused to be a party in the FMCT. It has opposed the treaty on the same grounds that
India put forward while opposing the NPT and the CTBT. In fact all the three treaties have
been planned in a way that the nuclear weapon states can control the nuclear technology and
maintain their hegemony over the world.

These treaties will not deter the weapon states to sharpen and improve their technology.
Because they have reached a stage, now they can further improve their technology through
computer and other indoor tests which have not been banned. They are also not willing to
destroy the existing weapons within a time frame. These treaties, therefore, are not in a
position to eliminate the nuclear weapons leading to general and complete disarmament.

Case studies

 Iran
 North Korea
 Russia

Last few slides of Mam’s PPT

CASE LAWS

97
 MODULE 9- HUMAN RIGHTS

State succession refers to the

merging of two or more States.
It is different from government
succession in the
sense that in government
succession there’s a change of
government whereas in State
succession the State loses
control over its partial or whole
territory. Art 2(1)(b) of the
Vienna Convention on the
succession of States in
respect of treaties in 1978
defines the term State
succession as ‘the replacement
of one State by another in the
98
responsibility for the
international relations of
territory’.
In essence, it deals with
the succession of one state
with another and the
transfer of rights and
obligations. This concept has
assumed greater importance
since World War II owing to its
effects on the legal
obligations of the State
State succession refers to the
merging of two or more States.
It is different from government
succession in the

99
sense that in government
succession there’s a change of
government whereas in State
succession the State loses
control over its partial or whole
territory. Art 2(1)(b) of the
Vienna Convention on the
succession of States in
respect of treaties in 1978
defines the term State
succession as ‘the replacement
of one State by another in the
responsibility for the
international relations of
territory’.
In essence, it deals with
the succession of one state
100
with another and the
transfer of rights and
obligations. This concept has
assumed greater importance
since World War II owing to its
effects on the legal
obligations of the State
STATE RECOGNITION
Introduction
States play a primordial role in the structure of legal relationships that are commenced,
modified or extinguished at an international level. In the field of international relations, the
means by which states act and interact should be governed by principles such as sovereignty
and equality. In reality, some states decide to act in a way dictated by geopolitical dynamics,
that is, the power or influence held and through which their interests could be enforced at
regional or global level. Thus, depending on each state's interests, massive inconsistencies
can exist between the strategies that are carried out. One of the most elementary instruments
used in diplomacy is, for these reasons, the mechanism of recognition.

State recognition has an important place in international law, being a unilateral act through
which the very existence of a state and its status as a subject of international law are
acknowledged. Only the states, as primary subjects of international law, are subject to this
procedure, as international organizations are founded and act in a rather distinct manner.3 An
international legal person is capable of having rights and duties under international law, and
states, in particular, can wield virtually any right and be held to fulfill any duty to which it
has agreed. Without recognition, a state's capability to enter relations with another state is
greatly limited due to its isolation from the international community.

Statehood and sovereignty

101
Statehood designates the feature of an entity that exists in the international community and
respects the Montevideo Criteria. In an attempt at defining the legal and political notion of
state, the Convention signed at Montevideo in 1933 established that a state must consist of
"(a) a defined territory; (b) a permanent population; (c) a government; and (d) the capacity to
enter into relations with other states".

The concept of sovereignty describes the supreme political authority that wields power inside
and upon a given territory and the population that inhabits it, while also being able to enter
into relations with other sovereign and independent states, independently of any exterior
influence.4 For this reason, the latter two conditions imposed by the Montevideo Criteria are,
in fact, two sides of the same coin, correspondingly internal and external sovereignty. Thus, a
state has to establish and maintain the legal (rule of law) and political order (democracy) on
an internal level, while in the international community it can exercise rights and fulfil duties,
as any other international legal person and in accordance with international treaty provisions.

Although the Montevideo Criteria were agreed between American states, and not by the
entire international community, this definition of statehood was only formally recognised as it
was already observed prior to the 1933 Convention. Similar criteria were used by the
Badinter Committee (the Arbitration Commission of the Conference on Yugoslavia) in 1991
when it concluded: "that the state is commonly defined as a community which consists of a
territory and a population subject to an organized political authority; that such a state is
characterized by sovereignty".

Types of recognition in international law

Although recognition is primarily applicable to states, certain circumstances exist when these
international legal subjects can choose to use particular forms of recognition in relation to
various political reasons. In this regard, many forms can be distinguished depending on the
chosen criteria. From a strictly legal point of view, recognition could be either legal (de jure)
or factual (de facto). At the same time, recognition can be express or tacit. Nonetheless, states
practice limited types of recognition as well, such as government or diplomatic recognition,
respectively.

3.1 Dejure and defacto recognition

Throughout history, there have been cases where a great number of states refused to de jure
recognise a particular country on ideological grounds. Nonetheless, such a state gained de

102
facto recognition and thus established relations with other states. An example would be the
Soviet Union, which was established in 1917, de facto recognised by the UK Government in
1921, but not formally (de jure) recognised until 1927.

Another example is the Republic of China (Taiwan) and its dispute with the People's
Republic of China. In this case, Taiwan enjoyed worldwide recognition and held a seat as a
permanent member of the UN Security Council until 1971, when UN member states ceased
to de jure recognise the Republic of China and recognised the People's Republic of China
(only de facto recognized until then) instead.'

3.2 Express and tacit recognition

Existing states can choose to recognise a new state either explicitly, through an official
declaration, or tacitly, by any means from which it can be implied that the new state would be
treated as any other international legal person. For instance, a tacit type of recognition could
be in the form of sending a diplomatic mission (with the acceptance of credentials) or even
signing a bilateral treaty.9 However, not all bilateral treaties imply recognition and neither do
multilateral treaties. In fact, the United Nations Charter is a prime example, in that many of
its signatories do not recognise all other members, so the process of implied recognition
should be studied on a case by case basis.10

3.3 Government recognition

In cases of internal conflict or disturbances (civil war, revolution or a coup d'&at), the
international community can find itself in the position to recognize the authority of a faction
or entity over a previously-recognised state. This type of recognition concerns not the state
itself, as it was already recognised as an international legal subject, but the government and
its power within the given state's territory. A particular problem arises in the case of
governments-in-exile, which are only de jure recognised as such, while in fact the territory
and population of the state are under the authority of another entity. When a state recognises a
certain government, in doing so it expresses its will to treat that particular entity as the sole
political authority of the respective state.12 Once a certain state is governed by an entity that
is realistically considered to be capable of maintaining stability in terms of being supported
by a clear majority of the population and also exerting control over most of the state's
territory, it should be granted recognition. However, such a practice was discontinued in
recent times, with the governments of the United Kingdom, Australia, Canada and several
civil law countries across Europe cited as examples.13

103
3.4 Diplomatic recognition

In some cases, state recognition can be independent of full-fledged diplomatic relations,

which usually refers exclusively to the bilateral ties between two countries. In other words, if
a state cannot be granted full formal recognition by the international community, its relations
with individual states can be either interrupted or resumed due to diverse reasons. An
example could also be the case Taiwan, which lost its UN membership and is no longer
recognised de jure by the international community. Notwithstanding, Taiwan continues to
meet the criteria for statehood as established at Montevideo and enjoys de facto recognition
through cultural and trade relations with other states. However, the People's Republic of
China wields greater economic influence on the world stage and has thus conditioned its
diplomatic relations with other states by the immediate termination of any formal recognition
or diplomatic mission of these states in the case of Taiwan. 14

3.5 Withdrawal of recognition

One particular issue in terms of recognition would be its withdrawal. It has been argued that
such a feat would be much easier accomplished in cases of factual recognition rather than
full-fledged, de jure recognition. 5 In this regard, the withdrawal of recognition is, at least in
the circumstance of de jure recognition, an exceptional event that can occur whenever a state
considers that such an action is appropriate.

THEORIES

Constitutive theory of statehood

State recognition has been initially founded on the Constitutive Theory of Statehood, of
which its essence could be traced back as early as 1815, at the Peace Congress of Vienna; the
final act of this congress recognised only 39 sovereign states in Europe, and it also
established that any future state could be recognised as such only through the acceptance of
prior existing states." The reason for such a distinction between the already established states
and any future claim of statehood was argued to reside in the ,,historical longevity" of the
former. 8

According to this theory, a state is considered to be a legal international person only if it is

recognised as sovereign by other states. In this respect, L.F.L. Oppenheim considered that
"International Law does not say that a State is not in existence as long as it isn't recognised,
but it takes no notice of it before its recognition. Through recognition only and exclusively a

104
State becomes an International Person and a subject of International Law". Such constitutive
views were also found in the works of Hegel, which claimed that every state "is sovereign
and autonomous against its neighbours, [being] entitled in the first place and without
qualification to be sovereign from their point of view, i.e. to be recognized by them as
sovereign", while also admitting that "recognition [...] is conditional on the neighbouring
state's judgement and will".

On the other hand, this discretionary prerogative should have its limitations. Kelsen was of
the opinion that "a state violates international law and thus infringes upon the rights of other
states if it recognizes as a state a community which does not fulfill the requirements of
international law". However, the opposite of this could also be possible: a state refusing to
recognise another even if it does fulfill the criterion for statehood. For this reason,
Lauterpacht proposed that states have a legal duty to recognise one another when the
conditions of statehood exist, although Kelsen denied the notion of any such duty. The
weaknesses of this theory include the case in which recognition of a particular state is not
unanimous. In this instance, a rigid application of the constitutive principle would mean that
the respective state would not be a subject of International Law, which in turn would hold
back its capacity to assume rights and obligations in the resemblance of other states that are
recognised.

However, Lauterpacht considered that the constitutive theory "deduces the legal existence of
new States from the will of those already established."24 In the absence of a body responsible
for observing and subsequently declaring that a certain state meets the conditions for
statehood, Lauterpacht believed that the already established states are ought to ,,administer
the law of nations", without being ,,entitled to serve exclusively" their national interests.25 In
addition to this, eurocentrism was perceived to be a key feature of such recognitions, as early
diplomatic and trade contacts with some Asian countries such as China, Japan, Siam or Persia
involved a de facto acknowledgment of their sovereignty, but full-fledged relations and
recognition were only granted upon meeting a certain ,,standard of civilization".26 On the
other hand, as the Pax Britannica and Splendid Isolation doctrine began to fade in favour of a
more American-led international community, the constitutive theory inevitably followed suit.

Declarative theory of statehood

While the constitutive theory gained ground and dominated international law since 1815, it
only lasted until the shift in geopolitical dynamics that marked the beginning of the 2 0 '

105
century. At the end of the previous century, a great number of European nations became
independent - Germany, Italy, Romania – and the First World War (1914-1918) led to the
further emergence of sovereign states in Europe - Poland, Yugoslavia, Czechoslovakia - with
the establishment of British or French mandates in some areas after the partition of
multinational empires such as Austria-Hungary or the Ottoman Empire. However, the speech
delivered by US President Woodrow Wilson on his Fourteen Points propagated the concept of
self-determination, with direct consequences for the international order.

In Wilson's conception, the lack of self-determination has been at the centre of Europe's
turbulent history. The Great Powers, such as Britain and Austria, have previously resisted any
attempt to partition the Ottoman Empire, fearing that the resulting independent states would
be small and too fragile, potentially easy targets for annexation and could, thus, undermine
the long- established international order based on the balance of power. The Wilson doctrine
has arguably marked the end of Pax Britannica and paved the way for greater US influence
on the world stage.

In response to these changes, the constitutive theory lost its pre-eminence in favour of a new
conception - the declarative theory of statehood. While the constitutive theorists claimed that
recognition is a requirement for statehood, the declarative conception established by the 1933
Convention of Montevideo challenged such an idea; according to article 3 of this treaty,
statehood does not depend on recognition by other states. The declaratory model argues that a
state does not obtain international legal personality through the consent of others, so
therefore, the recognition of a state signifies nothing more than the admission of a factual
situation. While the common practice among states was argued to be somewhere in the
middle of these two theories, the declarative conception is much closer to the current model
followed by the international community as it is also enshrined in the rules contained in the
Montevideo Convention and reiterated by the Badinter Commission.

Non- Recognition

Grounds of Non Recognition

 Ex Injuria Non Jus Oritur

 New States that are created in violation of jus cogens principle of International Law
 New States lacking effective government, rule of law, democracy etc

Ex. Northern Cyprus, Southern Rhodesia, Crimea etc

106
STATE SUCCESSION
Introduction

State succession refers to the

merging of two or more States.
It is different from government
succession in the
sense that in government
succession there’s a change of
government whereas in State
succession the State loses
control over its partial or whole
territory. Art 2(1)(b) of the
Vienna Convention on the
succession of States in
respect of treaties in 1978
defines the term State
succession as ‘the replacement
of one State by another in the
107
responsibility for the
international relations of
territory’.
In essence, it deals with
the succession of one state
with another and the
transfer of rights and
obligations. This concept has
assumed greater importance
since World War II owing to its
effects on the legal
obligations of the States.
State succession refers to the merging of two or more States. It is different from government
succession in the sense that in government succession there’s a change of government
whereas in State succession the State loses control over its partial or whole territory. Art 2(1)
(b) of the Vienna Convention on the succession of States in respect of treaties in 1978 defines
the term State succession as ‘the replacement of one State by another in the responsibility for
the international relations of territory’.

In essence, it deals with the succession of one state with another and the
transfer of rights and obligations. This concept has assumed greater importance since
World War II owing to its effects on the legal obligations of the States.

Circumstances of State Succession

108
State succession can arise in a number of defined circumstances, which mirror the ways in
which political sovereignty may be acquired. They are:

 Decolonization of all or part of an existing territorial unit: This refers to situations

where the nation partially or completely overcomes itself from the holding of a
superior nation.
 The dismemberment of an existing State: This refers to a situation
when the territory of the predecessor State becomes the territory of two or more
new States who take over it.
 Secession: This refers to a situation where a part of the State decides to withdraw
from the existing State.
 Annexation: This refers to a situation where a State takes possession of another State.
 Merger: This refers to the fusion of two or more free States into a single free State.

Types of State Succession

In each of these cases, a once-recognized entity disappears in whole or in part to be

succeeded by some other authority, thus precipitating problems of transmission of rights and
obligations. There are two types of State succession and they are discussed below:

Universal Succession

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:

 Merger
 Annexation
 Subjugation

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

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.

109
  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.

Theories of State Succession

Universal Succession Theory

This is the oldest theory of succession propounded by Grotius, using the Roman analogy of
succession on the death of any natural person. According to this theory, the rights and duties
of the old State i.e., the predecessor State pass on to the new State i.e., the
successor State upon succession without any exceptions and modifications. In fact,
there are two justifications behind this theory.

1. First that the State and the Sovereign gain all their power from God and a mere
change in Government shouldn’t cause any change in the powers.
2. Second, it is permanent and nothing can cause it to secede.

The application of this theory can be seen in cases of fusion in the 20th century. The fusion of
Syria and Egypt, Somali Land and Somalia, Tanganyika and Zanzibar are examples of this.

However, this theory failed to get any attention from the majority of States from the world
and has also been criticized by scholars from the world due to its Roman law analogy, a poor
distinction between succession and internal change in governments, etc.

Popular Continuity Theory

The Popular Continuity Theory can be described as another version of the Universal
Succession theory that was propounded by Fiore and Fradier following the unification of the
German and Italian nationals. According to this theory, the State has a

 Political personality: It basically refers to the rights and obligations of the

State towards the government.
 Social personality: It basically refers to the territory and the population of the State.

Hence, upon succession, the political personality gets changed whereas the social personality
remains intact. So, a State succession would not alter the rights and duties of the populace.
However, this theory has not found its application in any country outside Europe and also has

110
been criticized on the grounds that it functioned according to the municipal laws i.e, the local
laws, which is why it was difficult to understand the effect of State succession using this
theory.

Organic Substitution Theory

According to this theory, the rights and duties of the State continue even after succession by
another State. Von Gierke had published a paper in 1882 regarding The execution of rights
and obligations of a social body after its dissolution. It was from here that Max Huber derived
his organic substitution theory. Huber drew the analogy that the problem of State succession
was similar to that of dissolution of a social institution. The factual element of the people and
the territory have an organic bond i.e., the bond between the people and elements of State and
upon succession by a new sovereign, the organic bond remains intact and only the juridical
element changes. It offers a new explanation to the continuity of rights and duties i.e., the
substitution of a successor State in the personality of its predecessor State. But, just like the
other theories, this theory too has had no practical application and has been criticized for the
same.

Self-Abnegation Theory

This theory was propounded in 1900 by Jellinek and is another version of the universal
theory of continuity. According to Jellinek, the successor State agrees to observe the rules of
international law and performs the obligations towards other States created under them.
Although, this theory considers that the performance of the international obligation, is merely
‘moral duty’ of the successor State, but at the same time it gives the right to the other States,
to insist upon the successor State to perform the existing obligation. If the successor State
refuses to accept, the other States may even withhold its recognition or make the
recognition conditional upon the acceptance of the predecessor’s commitment towards
them.

Negative Theory

This theory was developed during the mid-19th and early 20th centuries. After World War II,
the jurists of the Soviet Nations started emphasizing on the right of self-determination and on
giving complete freedom to the States to maintain their international relations. According to
this theory, the successor State doesn’t absorb the personality of the predecessor State in its
political and economic interests. Upon succession, the new State is completely free of the

111
obligations of the predecessor State. The successor State does not exercise its jurisdiction
over the territory in virtue of a transfer of power from its predecessor but it has acquired the
possibility of expanding its own sovereignty.

Communist Theory

According to the Communist Theory of State Succession, a successor State is burdened by

the economic and political commitments of the predecessor. Thus, this comes as something
completely contrary to the Negative Theory of State Succession and unlike the
Negative Theory, it doesn’t free the successor State from the obligations of the
predecessor State. The Successor State is bound to adhere to the commitments of the
predecessor State. Political commitments involve peace, war and territorial treaties and
agreements while economic commitments include any amount of money borrowed or lent.
All these have to be fulfilled by the new State.

Rights and Duties arising out of State Succession

The laws regarding State succession are still in a very nascent stage and keeps evolving with
the changing times. As seen above, along with the territorial and power transfers, there are
transfers with regard to duties too.

Political Rights and Duties

 No succession takes place with regard to political rights and duties of the States.
 The peace treaties or the treaties of neutrality entered into by the previous State aren’t
binding on the new State.
 But the only exception here is in case of human rights treaties since it would be
desirable for the new State to adhere to such terms.
 Other than this, the new State would have to enter into new political treaties of its
own.

Rights of Natives or Local Rights

 Unlike the political rights and duties, the local rights of the people do not secede with
the succession of the States.
 These rights refer to the rights such as property rights, land rights or rights relating to
railways, roads, water etc.

112
  In cases like these, the succeeding States are bound by the duties, obligations and
rights of the extinct State.

Fiscal Debts (State or Public Debts)

 These refer to the financial obligations or debts of the predecessor State. The
successor State is bound to pay back the debts of the predecessor State.
 This is because if the new State is enjoying the benefits of the loans, it becomes a
moral obligation as well to pay back the money.
 Next, if there is a split in the State then the entire debt amount gets divided between
the predecessor and successor State in accordance with the territory and population of
each.

Effect of State Succession on Treaties

The law on State succession with regard to treaties has for a long time been dominated by
two principles in general:

 One is the alleged principle of universal succession and

 The other is the tabula rasa approach i.e., clean State doctrine not granting
State succession to treaties.

While the former principal keeps in mind, the interests of third States regarding upholding or
not upholding treaties, the latter favours a rather strict understanding of sovereignty i.e.,
functions only according to the interests of the successor and predecessor State. Neither of
the two principles can, however, offer a practical solution for various scenarios where State
succession takes place. Accordingly, under customary international law more nuanced
solutions have been developed in the past or, at the least, are in the process of being formed.

The Vienna Convention on State Succession provides that

 In case of the border treaties, no such significant changes would be observed and the
treaties would pass to the successor State.
 This is done keeping in mind the greater interests of the International Community.
Similarly, other forms of local treaties related to land, territory, etc. would also pass
on to the successor State upon succession.

113
  Treaties relating to Human Rights are passed on to the successors with all their rights,
duties and obligations. In the case of treaties relating to peace or neutrality, no
succession takes place.

Effect of State Succession on UN Membership

When Pakistan was separated from India, it claimed itself to be a member of the United
States since India was a member of the UN. The then Secretary-General of the UN had then
brought up the following:

 From the perspective of International Law, the circumstance is one in which part of
the State break soff from the original State.
 When Pakistan separated from India, there was no change in the status of India. India
continued with all its treaties, rights and obligations.
 On the other hand, Pakistan didn’t have any of those rights or obligations and of
course, had lost the UN Membership.
 In International Law, the situation is similar to the separation of the Irish Free State
from Britain, and Belgium from the Netherlands. In these cases, the portion which
separated was considered a new State, and the remaining portion continued as an
existing State with all the rights and duties which it had before. Thus, in the case of
succession, the UN Membership doesn’t get transferred.

NATIONALITY

 The legal relationship which exists between the nation & Individual. Through
Nationality the civil & natural rights of a person may come.
 Nationality is in fact commonly regarded as an inalienable right of every human
being.
 All citizens may possess the nationality of a particular state.
 A person who possesses only nationality in a particular state may not possess all
political rights

Importance

 It is the status of an individual who is legally an member of a state and ornamentally

he can be called a member of that community.”

114
  The right of protection of diplomatic representatives are available because of
nationality.
  If any state does not restrain a person of its nationality from such disadvantageous
action which are affecting other States then the fist State shall be responsible to other
states for such actions of its nationals.
  Ordinarily states do not refuse to accept its nationals in extradition.
  One of the effects of the nationality is that the state has a right to refuse extradition
of
 own national.
  By the practice of many States, at the time of war the Enemy character is
determined on the basis of nationality.

NATIONALITY & HR DO FROM MAM’ PPT AND IPLEADERS

115