PUBLIC INTERNATIONAL LAW AND HUMAN RIGHTS

Public International Law & Human Rights 1
Short Answers Questions

Q.1. What is the aim of International law?
Ans. The existence of international law is the result of increased interstate
engagement. It mainly aims to maintain international peace and security
among different states. It also helps in:
1. Promotion of friendly relations among the member states
(members of the International community, for example, United
Nations),
2. Providing for basic humanitarian rights,
3. To solve International problems through international
cooperation,
4. To refrain the state from using threat or force over the territory
of any other state to provide for the right to self-determination
to people, and
5. To use peaceful methods to settle international disputes are few
of its functions.
Q. 2. Who are the subjects of International Law?
Ans. It is referred to as entities who have a legal personality, with certain
rights and duties under the international legal system.
State is considered to be the primary and original subject of
international law. However, it also regulates the actions of other entities:
• Individuals: Common people of any state are also believed to be
the subject of international law.
• International Organizations: It is an association of states,
established by a treaty between two or more states. International
Organizations too have a legal personality and are considered
to be the subject of international law. For example, the United
Nations.
• Multinational Companies: They own and operate their corporate
entities in at least one other country aside from the place where
2 According to Syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur
it was incorporated, therefore it is established in more than one
nation.
All are considered to be subjects of international law and are enshrined
with both rights and duties.
Q. 3. Difference between D facto and D Jure recognisition?
Ans. The Difference between D facto and D Jure recognisition is as follow:
DE FACTO RECOGNITION DE JURE RECOGNITION
It is the Provisional and factual It is the legal recognition of statehood
recognition of statehood by existing states
It forms the primary step before de It can be granted either with or without
Jure Recognition of the state grant of de facto recognition
It is revocable, conditional or It is non-revocable and non-
non-conditional in nature conditional in nature
They cannot undergo state They can undergo state succession
succession and therefore do not and therefore enjoy full diplomatic
enjoy full diplomatic immunity immunity
Its recognition is granted when Its recognition is granted when the
there is the fulfilment of the state fulfils all the essential condition
essential conditions of statehood. of states along with sufficient control
and permanency
Q. 4. What are the Characteristics of International Law?
Ans. Characteristics of International Law: International law has certain
specific and unique characteristics that distinguish it from the domestic
law:
1. Firstly the subject matter: The primary subjects of international
law are sovereign states, although in recent times some scholars
argue that International Governmental Organizations, Non-
Governmental Organizations, and even individuals could also
be subject of international law. In a much broader sense, the
assertion that IGOs, NGOs and individual persons are also
subjects of international law is true due to the fact that the
actions and activities of IGOs. NGOs and individual persons are
regulated by international law and as such, they work within the
larger framework of international laws and try not to infringe or
breach any international law
2. Secondly the source of international law: There is no single or
legally authorized source of international law as there exist in
the case of domestic law. According to article 38 of the statute of
the international court of justice, there are five sources of
international law, namely: Treaties, Customs, General principles
of law recognized by civilized States, Judicial decisions, Jurist
work or Opinions of experts on international law. That is to say
that unlike domestic law where the source could mostly be traced
to one single, legally recognized institution or body which in
most cases is the legislature ofthe country, international law
does not possess this quality.
3. Again, international law lacks strong enforcement
machinery : The enforcement mechanism backed by
international law is not very strong as compared to that of
domestic law. There is no universal policeman or institution
at the international level that ensures compliance and enforces
international law, unlike domestic law. Compliance with
international law is a mutual consensus among member states
and to a large extent, the willingness to abide by such laws is
as a result of the fact that, international law is believed to
serve a good purpose for all.
4. Furthermore, the law-making processes: The process by which
international laws are enacted is different from that of domestic
law. One of the main and perhaps the most effective way of
making international law is through treaties. The basic elements
of a treaty are: treaties are mostly formal written documents
even though in some cases it can be unwritten, these formally
written documents are signed and ratified by member states
through a formal legal accepted and approved procedures, and
final agreements made in the treaty are binding on member states:
a concept known as “Pacta Sunt servanda”.
Q. 5. Write a short note on Harmoization?
Ans. Harmonization: A third approach, being somewhat a modification of
the dualist position and formulated by Fitzmaurice and Rousseau
amongst others, attempts to establish a recognised theoretical
framework tied to reality. This approach begins by denying that any
common field of operation exists as between international law and
municipal law by which one system is superior or inferior to the other.
Each order is supreme in its own sphere, much as French law and
English law are in France and England.
Neither monism nor dualism can adequately explain the relationship
between international and domestic law, and alternative theories have
developed which regard international law as having a harmonisation
role. If there is a conflict, domestic law is applied within the domestic
legal system, leaving the State responsible at the international level
for any breach of its international law obligations.
The Harmonization Doctrine manages to remove the barriers
between the two schools of monism and dualism and tries to remove
the conflicts of ideologies between both schools. The argue that if
both international law and municipal laws were different and
independent from each other, calling them a “law” would be
improper. This theory suggests that both the laws form one body
of doctrine and the Courts should try and minimize the differences
created amongst both the laws through a process of a judicial
harmonization. The outcome of such a doctrine would render both
of these laws at an equivalent platform. Such a doctrine does not
harp on the supremacy or inferiority of either of the laws and rather
uses the international laws to guide the municipal legal orders by
a judicial process.
In Anglo-American system it is presumed that international laws
should be respected and national laws should not be created that
would violate international rules and norms. This system
presupposes that state laws should not contradict international laws.
It was seen in Martin v. Renold Bundesgericht, 35(1.) BGE 594,
596 (Swit), that states laws cannot derogate any international laws
and in extreme instances where such legislation is passed that
deviates or contradicts international law then that law would go
through a judicial redrafting in order to harmonize with international
law.
Q. 6. Difference Monism theory and Dualist theory?
Ans. The Difference between Monism and Dualist theory is as following:
Sr. No. Monism Dualism
1. As per the advocates of natural Municipal law and International
law, Municipal law and International Law are two different and
Law forms a single legal system. distinct legal systems.
2. Monism is supported by the It is supported by the advocates
advocates of natural law. of positive law.
3. In Monism there exists no need In a dualist country there exists
for translation of International and a need for translation of
Municipal law in order to give it an International and Municipal law
effect. in order to give it an effect.
4. In a true monisitc country if a In a true dualistic country, if a
national law contradicts national law contradicts
International Law then it becomes International law then it
null and void. becomes doesn’t becomes null
and void, unless it is already
translated in its municipal law
5. If a monist state ratifies a treaty or If a dualist State ratifies a treaty
a convention, and does not create or a convention, but does not
a law explicitly incorporating the create a law explicitly
treaty then their act of non incorporating the treaty, then
incorporation will not violate the their act of non incorporation
International Law. violates the International law.
6. In a monistic State International International law does not get
Law automatically gets embedded automatically embedded in the
in the Municipal law and the Municipal law.
contradicting part gets
automatically translated away.
7. Supporters of Monism: kelson. Contradicting parts of the
Municipal law has to be
amended by the state, as it does
not get automatically translated
away in a dualist country.
Q. 7. Write a short note on Legal Effect of Recognistion?
Ans. Legal effects of recognition: The legal effects of recognition differ
depending on the forum. While in international and continental
European courts recognition has only probative value, in English and
American courts an official statement of recognition or non-recognition
by the forum government is conclusive evidence as to the legal status
of a foreign authority or entity. The question of recognition may
determine access to the courts (locus standi), privileges and
immunities, the legal status of individuals, the right to recover State
property in the forum, and the judicial cognizance of foreign legal
acts. The traditional (English) common law rule of “non-recognition,
non-cognizance,” according to which a State or government that is
not recognized as such does not exist in the eyes of the law, has been
mitigated by the courts, inter alia, by giving retroactive effect to
recognition, treating an unrecognized authority as the “subordinate
body” of a recognized State, and by giving effect to the laws and legal
acts that regulate the day-to-day affairs of the people in an
unrecognized State or government.
Although recognition is essentially a political act, it is one that entails
important legal consequences. Recognition involves legal effects both
in the international level and in the domestic level. If an entity is
recognized as a State, it will be entitled to rights and subjected to
duties that would not be relevant otherwise, and it will enjoy privileges
and immunities of a foreign State before the national courts of other
States, which would not be allowed to other entities.
Q. 8. Write a short note on International Effect of recognition?
Ans. International effects of recognition: Apart of all the theoretical
arguments involving the constitutive and declaratory theories, it is
accepted that recognition of a State or government is a legal
acknowledgement of factual situations. Recognition entails the
recognized State the enjoyment of rights and the subjecting to duties
prescribed in International Law for States.
Recognition of a State by another State does not lead to any obligation
to establish diplomatic relations or any other specific links between
them. Nor does the termination of diplomatic relations automatically
lead to withdrawal of recognition. These remain a matter of political
discretion.
It should not be assumed that non-recognition of a State or government
would deprive that entity rights and duties under International law. It
is well established in International Law that the political existence of
a State is independent of recognition by other States, and thus an
unrecognized State must be deemed subject to the rules of International
Law. Unrecognized State is entitled to enjoy certain rights and be
subject to many duties. It has the rights to defend its integrity and
independence, to provide for its conservation and prosperity and
consequently to organize itself as it sees fit. The exercise of these
rights by unrecognized
State has no other limitation than the exercise of the rights of other
States according to International Law. Moreover, unrecognized State
is subject to most of the rules of International Law, such as those
related to the law of wars, and is bound by its agreements. Non-
recognition, with its consequent absence of diplomatic relations, may
affect the unrecognized State in asserting its rights against
unrecognizing States, or before their national courts. However, non-
recognition will not affect the existence of such rights, nor its duties,
under International Law.
Q. 9. Discuss Internal Effect of Constitution?
Ans. Internal Effects of Recognition: Recognition entails the recognized
State the rights to enjoy privileges and immunities of a foreign State
before the national courts, which would not be allowed to other entities.
However, because recognition is essentially a political act reserved to
the executive branch of government, the judiciary branch must accept
the discretion of the executive branch and give effect to its decisions.
The national courts can only accept and enforce the legal
consequences that flow from the act of recognition. They can accept
the rights of a foreign government to sue, to be granted immunities or
to claim other rights of a governmental nature. They can give effect to
the legislative and executive acts of the recognized State. In the case
of non-recognition, national courts will not accept such rights. In this
context, recognition is constitutive, because the act of recognition
itself creates the legal effects within the domestic jurisdiction of a
State.
Q. 10. Write a short note on Withdrawal of recognition?
Ans. Withdrawal of Recognition:
1. Withdrawal of De facto recognition: Under international law
when a state having de facto recognition fails to fulfill the
essential conditions of statehood, its recognition can be
withdrawn. The recognition can be withdrawn by the recognizing
state through declaration or through communicating with the
authorities of the recognized states. The withdrawal can also be
done by issuing a public statement.
2. Withdrawal of De Jure recognition: Withdrawal of de jure
recognition is a very debatable issue under the International
Law. Withdrawal of de jure recognition is a very exceptional
event. If strictly interpreted, the de jure recognition can be
withdrawn.
Even though the process of recognition is a political act, de jure
recognition is of legal nature. Jurists who consider de jure recognition
as a political act considers it revocable. Such revocation of de jure
recognized states can be withdrawn only when a state loses the
essential characteristics of statehood or any other exceptional
circumstances. This type of revocation canbe done expressly by the
recognizing state by issuing a public statement.
Q. 11. What do you mean by Recognition of Government?
Ans. Recognition of government: For any statehood, the government is
an important element. When a state is formed, its government changes
from time to time. When the government changes as an ordinary
course of political action, the recognition of government by the
existing state is not required but when the government changes due
to any revolution, then its recognition by the existing state is
required.
1. For recognizing the new government established out of
revolution, the existing states need to consider that:The new
government has sufficient control over the territory and its people
or not.
2. The new government is willing to fulfill the international duties
and obligations or not.
When the existing states are satisfied that the new government
resulting out of the revolution is capable of fulfilling the conditions
as mentioned above, then the new government can be recognized by
the existing states.
Q. 12. Explain effect of State Succession on Treaties?
Ans. 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.
• 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.
Q. 13. Explain effect of State Succession on UN Membership?
Ans. 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 breaks off 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.
Q. 14. What are the functions of Diplomatic Agents:
Ans. Functions of Diplomatic Agents: Functions of diplomatic agents are
determined by the rules and regulations of International Law and
municipal law (law of country) of the States. Article 3(1) of the Vienna
Convention of Diplomatic Relations 1961 lays down various functions
of diplomatic agents which are as follows:
• Representation: Diplomatic agents represent the policies and
beliefs of State by which they are dispatched to the state where
they are accredited. The function of representation is primarily
entrusted to the head of the mission. Oppenheim, in his book,
says that “diplomats are the mouthpiece of the head of his own
State and the Foreign Minister for communication to be made to
State where they are dispatched.
• Protection: Diplomatic agents protect the rights and interests
of sending State and also of nationals, within the limits allowed
by the municipal law of respective State. The limit of diplomats
is not prescribed by the International Law but by the municipal
law of the State.
• Negotiation: Negotiation is the most important function which
is performed by the diplomatic agents. Generally, the head of the
diplomatic mission negotiates on various aspects of on behalf
of the sending State with the State to which they are accredited
in order to maintain a friendly relationship. Diplomatic agents
are required to communicate the outcome of the negotiation to
sending State from time to time,
• Observation: Diplomatic agents are required to observe those
events and happenings which take place or which may take
place in the State where they are accredited, especially those
which may affect the interests of the State by which they are
sent. After making observations of the events, they are required
to make periodical reports to the government of sending State.
• Promotion of Friendly Relations: Diplomats are required to
promote friendly relations between the sending State and the
receiving State. They also have the function to develop the
social, cultural and economic relations between the two States.
• Consular Functions: Vienna Convention lays down that
diplomatic agents can also perform consular functions which
may be allotted to them from time to time such as death, birth
and marriage registrations of the subjects of home State, issue
of passports etc.
Q. 15. What are the Basis of Diplomatic Immunity and Privileges?
Ans. Basis of Diplomatic immunity and privileges: Different international
jurists have divergent views as to the basis for giving immunities to
diplomatic agents. Their views led to the emergence of three important
theories which are as follows:
• Extra-territorial Theory: This theory is also known as the
fictional theory. According to this theory, diplomatic agents are
considered not be within the territorial jurisdiction of the State
to which they are accredited, but to all times within that of the
sending State. Extra- territorially of diplomatic agents means
that though diplomats physically present upon the soil of the
country to which they are accredited but they remain for all
purposes on the soil to which they represent.
• Representational Theory: According to this theory, diplomatic
agents are regarded as personal representative of the sovereign
of the sending State. Therefore, they are given the same degree
of privileges and rights which are given to the head of sending
State.
• Functional Theory: According to this theory, diplomatic agents
are given immunities because of the nature of their functions.
The duties which the diplomats perform are far from easy. In
other words, their actions of duties are of typical or some special
nature. They are allowed immunities from the legal and other
limitations of the State to which they are accredited to effectively
perform the tasks they are allotted.
Q. 16. Explain the Doctrine of Pacta Sunt Servanda?
Ans. The meaning of this Latin phrase is ‘agreements must survive or
agreements are binding’. In the above illustrations replace two
persons A and B with two countries X and Y. In the case of Pacta Sunt
Servanda, two countries make reciprocal promises to each other and
enter into an agreement to do or not to do an act, for the betterment of
their respective nation and its people.
According to the principle of Pacta Sunt Servanda, when a treaty has
been framed and terms have been agreed by both the parties, it shall
be binding upon both of them.
One country which deviates from its treaty obligations will be violating
the principle of Pacta Sunt Servanda and hence, liable under
international law. It needs to be noted that the concept of ‘treaties’
under International law is a new concept and has replaced the earlier
customary law, but the principle existed from forever. The origin and
need of this principle can be traced down to customary international
law.
Q. 17. Write a short note on International Labour Organization?
Ans. International Labour Organization: It was created in 1919, as part of
the Treaty that ended World War I, to reflect the belief that universal
and lasting peace can be accomplished only if it is based on social
justice. The Constitution of the ILO was drafted in early 1919 by the
Labour Commission, chaired by Samuel Gompers, head of the American
Federation of Labour (AFL) in the United States. It was composed of
representatives from nine countries: Belgium, Cuba, Czechoslovakia,
France, Italy, Japan, Poland, the United Kingdom and the United
States.
The process resulted in a tripartite organization, the only one of its
kind, bringing together representatives of governments, employers
and workers in its executive bodies. The driving forces for the ILO’s
creation arose from security, humanitarian, political and economic
considerations. The founders of the ILO recognized the importance
of social justice in securing peace, against a background of the
exploitation of workers in the industrializing nations of that time. There
was also increasing understanding of the world’s economic
interdependence and the need for cooperation to obtain similarity of
working conditions in countries competing for markets.
Reflecting these ideas, the Preamble of the ILO Constitution states:
Whereas universal and lasting peace can be established only if it is
based upon social justice; And whereas conditions of labour exist
involving such injustice, hardship and privation to large numbers of
people as to produce unrest so great that the peace and harmony of
the world are imperilled; and an improvement of those conditions is
urgently required;
Whereas also the failure of any nation to adopt humane conditions of
labour is an obstacle in the way of other nations which desire to
improve the conditions in their own countries.
The areas of improvement listed in the Preamble remain relevant today,
including the regulation of working time and labour supply, the
prevention of unemployment and the provision of an adequate living
wage, social protection of workers, children, young persons and
women.
The Preamble also recognizes a number of key principles, for example
equal remuneration for work of equal value and freedom of association,
and highlights, among others, the importance of vocational and
technical education.
In 1946, the ILO became a specialized agency of the newly formed
United Nations. Since 1919. The ILO has maintained and developed a
system of International Labour Standards which are aimed at
promoting opportunities for men and women to obtain decent and
productive work in conditions of freedom, equity, security and dignity.
In today’s globalised economy, international labour standards are an
essential component in the international framework for ensuring that
the growth of the global economy provides benefits to all. The ILO
was set up in Geneva in 1920, the passion which drove the organization
was quickly brought down as certain governments felt that there were
too many conventions, the publications were too critical and the
budgets very high. At present there are 188 conventions and a similar
number of recommendations out of which eight are considered as
‘Core’, which make up ILO’s Core Labour standards.
Important conventions under the ILO are
• Freedom of Association and the effective recognition of the
right to collective bargaining
• The elimination of all forms of Forced and Compulsory labour
• The effective abolition of child labour
• The elimination of discrimination in respect of employment and
occupation
These conventions are international treaties, subject to ratification
by ILO member countries. Though these conventions are legally
binding on ratifying countries, the recommendations are non-binding
as they only supplement the conventions by providing additional
clarification and guidance for national policy and action. When a
country ratifies an ILO convention it agrees to give its effect in law
and also apply its provisions in practice, the nation further agrees to
give supervisory powers to ILO in order to govern these measures
adopted. However, even if the ILO notices that a country has not met
the standard required by a convention, ILO does not possess any
mechanism to force any government to change its law or practice. In
1998, the ILO produced the declaration of Fundamental Principles and
right at work.
The member states agreed that they should all respect, promote and
realize ILO’s core labour standards regardless of whether they follow
and adopt the other conventions.
Q. 18. Write a short note on Vienna Declaration on Human Rights 1993
Ans. Following are the main points of the Declaration:
a. Human rights and basic freedom are birth rights for all individuals
and their protection and promotion is the first responsibility of
State.
b. The promotion and protection of human rights is the basic
objective of UNO.
c. All human rights are universal, indivisible, inter- dependent and
inter-connected.
d. The International Community should make efforts for promotion
of respect, honour for human rights and development of
democracy in the whole world.
e. Poverty is an obstacle in the promotion of human rights and
therefore, effective policies should be framed for elimination of
poverty and the participation of poorest people in such policies
should be ensured.
f. In respect of complaints lodged for violation of human rights,
the states should take appropriate action.
g. To strengthen, the honour for human rights and basic freedoms,
appropriate education system should be developed.
h. Efforts should be made for making coordination between human
rights and basic freedoms.
Q. 19. What are compulsive means of settlement of International Disputes?
Ans. Compulsive or coercive means: The meaning of the words, compulsive
and coercive itself suggests that these are non-peaceful means of
settling a dispute. This method may sometimes also involve force and
pressure to resolve the issue raised. Force in this method does not
indicate to the extent of armed forces but methods that are short of
war. The following are the compulsive means of settlement of
International Disputes:
a. Retortion: Retortion is based on the principle of tit for tat and is
also a synonym for retaliation or to say it is the technical term. It
is an act done by one state in a manner similar to what was done
earlier by another state. Such acts done by the States are not
illegal but are permitted under International Law. It is an effective
tool of law enforcement although the method of implementation
may seem unfriendly. There are numerous cases where retortion
has been used as a means to settle disputes. The classic example
for a better understanding is if citizens are treated unfairly in
another State, the former may also make similar rigorous rules in
respect of citizens of the latter state. The very purpose of retortion
is retaliation. It is employed not to secure redress. The legitimate
use of retortion has been affected to a large extent by the UN
Charter. In retortion those actions cannot be legitimately taken
which are likely to endanger international peace and security,
such if taken are treated as illegal.
b. Reprisals: If the problem is not solved by Retorsion the States
have the right to resort to Reprisal. In retaliation, the state can
initiate such a proceeding where the problem may be resolved.
However, reprisal is one such method that can only be resorted
against a State when it has indulged in some illegal or
inappropriate activity. The method and process of reprisals were
clearly defined in the Naulilaa case, (Germany v. Portugal). For
example, Israel has resorted to reprisal many times against
Lebanon. It has bombarded those regions of Lebanon where
Arab terrorists attacked the territories of Israel. The members of
the UN cannot indulge in reprisals of such a type which
endangers international peace and security. It is commonly
accepted that Reprisal becomes justified and legal when the
other country has committed an international tort or violates the
norms of International law. In the provocative action and reprisal,
there must be an adequate proportion that is in proportion to the
violation, the damage should be caused. The reprisal is valid
only when demand for reparation was made and this was not
fulfilled.
c. Embargo: Embargo is of Spanish origin. It is also a kind of
Reprisal. Ordinarily it means detention. But in International it
has a technical meaning of detention of ships in port. If the ship
belongs to a State which has committed an international tort or
has committed some other international wrong and is available
in the territorial waters of the State against which tort or wrong
has been committed then such vessels can be restrained from
traveling through that area as a matter of right by the other
State. The purpose of such an embargo is to compel another
state to settle the dispute. In reprisals also vessels of one state
may be detained by another state. If the vessel is detainted for
the purpose of seeking redressal, embargo is deemed as a form
of reprisal. But if the detention is for any other purpose then it is
not regarded as reprisals. Embargo may be applied individually
or collectively under the authority of the United Nations.
Maintaining international peace and security still remains the
most important prerequisite.
d. Pacific Blockade: A pacific blockade is a blockade used for the
purpose of bringing pressure exercised by a great power to bear
on a weaker state without actual action. When the coast of a
state is blocked by another state for the process of preventing
ingress of vessels of all nations by use of warships and other
means in order to exercise economic and political pressure on
that state, the act is specifically called a blockade. Requirements
for a pacific blockade are similar to those that are needed for a
normal blockade during a wartime. It has been regarded as an
aggressive means for the settlement of international disputes
because it consists in temporary suspension of commerce of the
offending state by closing of access to the coasts. The numerous
cases of blockade that have occured during the nineteenth
century have established the admissibility of pacific blockade
for the settlement of political as well as legal international
differences. At present while blockade is illegal when it is applied
by the state individually, collective blockade applied under the
authority of the security council to settle the dispute is lawful.
e. Intervention: Intervention by state in the affairs of another state
is a course to the settlement of disputes. It is important to note
that after the establishment of the United Nations a state has
been substantially prevented from taking compulsive actions to
settle international disputes. Any measure that is likely to threaten
or endanger international peace and security has become illegal.
Thus, the compulsive measures are lawful as long as they are
able to maintain international peace. Intervention is therefore
regarded as unlawful and is not justified.
Q. 20. What is the state human rights commission? How is it constituted?
Ans. Section 21 of the act provides for establishment of state Human Rights
Commission headed by Chairperson who shall be retired Chief justice
of a High Court, there shall be one other member who shall be a judge
either in High Court or district Court. The State Commission shall
inquire only into matters listed in List II and List III of seventh schedule.
The chairperson of commission shall be appointed by the Chief
Minister, the members shall be appointed by speaker of legislative
assembly, minister in charge of department of home and leader of
opposition. The members shall be appointed for a period of five years.
The state shall appoint other officers as it deems necessary.
State Commission from time to time submits report on matters of
concern and urgency. The State Commission shall submit an annual
report to the State Government and may at any time submit special
reports on any matter which, in its opinion is of such urgency or
importance that it should not be deferred till submission of the annual
report.
The State Government shall cause the annual and special reports of
the State Commission to be laid before each House of state Legislature
where it consists of two Houses, where such Legislature consists of
one House, before that House along with a memorandum of action
taken or proposed to be taken on the recommendations of the State
commission and the reasons for non-acceptance of the
recommendations if any.
Q. 21. What is the work of Human rights court under sec 30 of the act?
Ans. Human Rights court is also established under section 30 of the Act for
the purpose of providing speedy trial of offences arising out of
violation of human rights. The State Government, with the specify for
each district a Court of Session to be a Human Rights Court. A special
public prosecutor shall also be appointed to try such cases.
Provided that nothing in this section shall apply if (a) a Court of
Session is already specified as a special court; or (b) a special court is
already constituted, for such offences under any other law for the
time being in force.

Long Answers Questions

Q.1. Define Public International law and Origin and Development of
International Law?
Or
Difference between Public International Law and Private International
Law / Law of Conflicts.
Ans. Origin and development of International Law:
Public international law is the body of rules that is legally binding on
States and international organizations in their interactions with other States,
international organizations, individuals, and other entities. It covers a range
of activities; such as, diplomatic relations, conduct of war, trade, human rights
and sharing of oceanic resources.
Traditionally, international law regulated interactions between States.
For example, it determined how a State treats foreign diplomats who are in its
country or how international agreements between States are to be regulated.
For example, international law sets out legal obligations, responsibilities,
and rights of one State against another. This aspect of international law is
based on sovereign equality. In other words, each State is a sovereign and
each State is equal to, and independent of, all other States. This means that
when international law regulates the relations between States, it applies equally
to all States.
International law also regulates relations between States and non-
State actors; for example, individuals, international organizations, and
multinational companies. In the case of individuals, international law gives
each individual certain rights. For example, international human rights law
gives the individual a right not to be tortured. This means that a government
cannot torture someone they deem a terrorist to obtain information.
International law also imposes on States certain obligations and
responsibilities to protect individuals. For example, when States are at war,
one State cannot target and kill civilians of the other State who did not take
part in hostilities.
It important to remember that international law is not stagnant. It is
evolving. International law covers diverse subjects and has multiple fields of
application. For example, we find that international law applies, inter alia,
to: initiation of wars (laws relating to use of force); conduct of war
(humanitarian law); diplomatic relations (diplomatic law); trade and investment;
treatment of people (human rights law); ocean resources (law of the sea);
protecting the environment (environmental law), space law, and to certain
crimes (international criminal law).
Definitions of International Law: Traditional Definitions of International
Law. International Law regulates the relations between or among states. States
and only states are subjects of International Law
Oppenheim’s Definition: “Law of Nations or International Law is “the
name for the body of customary and treaty rules which are considered legally
binding by civilized states in their inter Course with each other”
Key components in this definition are:
a. It is a body of rules governing the relations between states;
b. States regard these rules as binding on them in their relation with one
another and
c. those rules are derived from customs and treaties.
Criticism of Oppenheim’s definition:
The definition has been subject to the following criticism:
i. The definition takes into account of the relations of States’ only. But,
presently, international organisations and institutions are also regarded
as subjects of international law. They have been given rights and duties
under international law, even though they may not have all the rights
and duties that States have. Certain activities of multinational
corporations are also regulated by this branch of law.
ii. International Law also provides certain rights and duties to individuals.
It has been so, particularly, after the establishment of the United Nations
Organisation. Universal Declaration of Human Rights and International
Covenants of Human Rights further confirm that the individuals have
become not only the subjects of international law but can also directly
claim rights and remedies provided under international law. Above all,
the Charter of the U.N. begins with the words we the people of the
United Nations. Thus, the present international law cannot be regarded
as the law governing the relations between States, but must be regarded
as the common law of mankind in an early stage of its development
(Jenks). At present, it also governs relations between States and
international organisations, between States and private persons, and
between international organisations and private persons (Judge Jessup
has therefore suggested an alternative name Trans-national law to
include all law which regulates actions or events that transcend national
frontiers)
iii. The use of the term civilized States by Oppenheim is also severely
criticised. In not too distant past, the Western States regarded only the
Christian States’ as civilized States. At present there are many members
of the U.N. which include Christian as well as non-Christian States.
The term civilized States’ was thus deleted in the later editions of
Oppenheim’s book.
iv. The words legally binding’ (in the Oppenheim’s definition) connote
positive character which is diffused and diluted by the subsequent
words by civilized States. Oppenheim does not say that these rules are
legally binding’, but that they are considered so. His definition, though
broad, is a qualified one.
v. The definition lays down that the rules of international law derive only
from customs and treaties, but it is not correct. Article 38 of the Statute
of International Court of Justice mentions General Principles of Law
recognised by the civilized nations as third source of international law
to be used while deciding an international dispute.
vi. The expression body of rules’ denotes that international law is static or
fixed. Its rules cannot be changed. However, international law is a
dynamic and living law. Its rules have been changing with the passage
of time out of experiences and necessities of situations (It may be
noted that it has become customary to define law as body of rules,
therefore, it is not proper to criticise Oppenheim on this account).
In the ninth edition of Oppenheim’s book (1992) the term international
law’ has been defined differently after taking into account of the new
developments: International Law is the body of rules which are legally binding
on States in their intercourse with each other. These rules are primarily those
which govern the relations of States, but States are not the only subjects of
international law. International organisations and, to some extent, also
individuals may be subjects of rights conferred and duties imposed by
international law..
P.E.Corbett: “The future of International law is one with the future of
International Organizations. Individuals and other private persons have rights
and duties in International Law. Not only customary and conventional
International Law but it also includes general principles of Law
Modern Definitions of International Law: International Law not only
regulates the relations between states but also deals with International
organizations, individuals and non – state entities.
Definition of J.G.Starke: “ International Law may be defined as that
body of law which is composed for its greater part of the principles and rules
of conduct which states feel themselves bound to observe, and therefore,
do commonly observe in their relations with each other, and which includes
also:
a. The rules of law relating to the functioning of international institutions
or organizations, their relations with each other, and their relations with
states and individuals; and
b. Certain rules of relating to individuals and non-states entities so far as
the rights or duties of such individuals and non-state entities are the
concern of the international community.”
Reasons for emergence of new definition includes, establishment of a
large number of permanent international institutions or organisations,
protection of human rights and fundamental freedoms and creation of new
rules for the punishment of persons committing international crime.
Gray said, “International law or the Law of Nations is the name of a
body of rules which according to their usual definitions regulate the conduct
of states in their intercourse with each other.”
In Queen v. Keyn ((2 Ex. D. 63 (1876)) Lord Coleridge, C.J., defined
International law as “The law of nations is that collection of usages which
civilized States have agreed to observe in their dealings with one another.”
Fenwick: International law may be defined in broad terms as the body
of general principles and specific rules which are binding upon the members
of the international community in their mutual relations. The definition takes
into account the changes that have taken place after the Second World War.
The words members of the international community’ include States,
international institutions, individuals and non-State entities. The term general
principles’ is also incorporated in the definition..
Whiteman: International law is the standard of conduct, at a given
time, for States and other entities subject thereto. A brief but adequate
definition; the words other entities subject thereto’ may include international
organisations, individuals and non-State entities. Whiteman has also
emphasised dynamic aspect of international law: International Law is, more or
less, in a continual state of change and development.
Schwarzenberger: International law is the body of legal rules which
apply between sovereign States and such other entities as have been granted
international personality.
Thus, unlike Starke, Schwarzenberger very rightly preferred not to name
the entities whose rights and duties are regulated by international law.
According to him, international law, if and when grants international
personality to any entity, or when international law would be capable of
regulating rights and duties of any entity, its rules shall apply to them. It is
immaterial if only certain miles regulating the rights and duties are framed for
them.
Difference between Public International Law and Private International
Law / Law of Conflicts
No. Public International Law Private International Law/Law of Conflicts
1 Public International law is Conflict of laws, often called Private
the body of legal rules, International Law. Private International Law
which applied between regulating relationship between Private persons
Sovereign States and other (Natural or Legal) of two different States.
International Personalities
2 Public International law rules Private International law rules are framed by
are outcome of International the State legislature.
custom and treaties.
3 Public International law is Private International Law is enforced by the
enforced by international concerned State executive.
pressure and fear for example–
breakage of diplomatic
relations, sanctions etc.
4 In public International Law In private International Law courts are
there is no Predetermined predetermined.
Court.
5 Public International Law is Private International Law differ from state to
same for all the States. state
Q. 2. Explain the Sources of International Law?
Ans. Sources of International Law Sources of international law are the
materials and processes out of which the rules and principles regulating the
international personalities are developed. According to Lawrence and
Oppenheim there is only one source of International law and that is the consent
of nation. Brierly considers customs and reasons as the main sources of
international law.
Article 38(1) of the statute of the International Court of Justice is widely
recognized as the most authoritative statement as to the sources of
International law. On the basis of Article 38 of ICJ Statute five distinct sources
can be identified. They are:
• International conventions/treaties,
• International customs,
• General principles of law,
• Judicial decisions
• writings of the publicists and Reason and equity.
1. International Conventions or Treaties: It is the first and Important
Source of International law. There is no Legislative organ in the field of
International Law, comparable to legislatures within the State, the
enactments of which could bind all the States. The Contracting Parties
may, however, establish an international organization by means of the
treaty with authority to bind them by its resolutions or may even lay
down rules for their mutual conduct. In this sense, multilateral treaties
are a feeble approach to International Character. Treaties can be divided
into law Making Treaties and treaty Contracts.
I. Law making Treaty: Law making treaties are those treaties which
are entered into by a large number of States. These are the direct
source of International Law. These treaties are binding. Law
making treaties may be divided into:
a. Treaty giving the rule of Universal International Law:
These treaties are signed by a majority of the State. For
Example United Nation Charter.
b. Treaty giving general principles: These treaties are
entered into and signed by a large number of countries
giving thereby general principles of International Like.
Geneva Convention on Law of sea and Vienna. Convention
on Diplomatic Relations, 1961 are examples of such a treaty.
II. Treaty Contract: These are the treaties which are entered into
by two or more States. The provisions of such treaties are binding
only on the parties to the treaty. Such type of treaties is also the
source of International Law because they help in the
development of customary rules of International Law.
It is criticized that the classification of treaties are misleading
because they both create binding rules. In conventions numbers
of State, parties are involved. Majority of state abides by the
obligation and agreed voluntarily. Treaties create rules and
principles of International Law. The basis is the common consent
of the States. There is no law making authority in the international
sphere. The role played by convention in the absence of such
Law making Authority is significance. The International
convention goes one step ahead of customary rules. Treaty
stipulations override rules of International customary law which
are incompatible with them. This proposition received
approbation in the case of S.S Wimbledon 1923, where the
Permanent Court of International Justice held that treaty law
takes priority over international Customary Law. Conventional
and customary rules of International Law are not the only source
of International Law, but they fill the gap in absence of law
making authority.
2. Customs: Custom is the older and original Source of International Law.
It is as such Second Important source of International Law. International
Law Custom may mean a kind of qualified practice, by the existence of
a corresponding legal obligation to act according to this practice, hence
by the existence of the corresponding rule of International law. The
customs are evolved through the practices of and usages of the nation
and their recognition by the community of nations. Customary rules
are those rules which are practiced by most of the States by way of
habit for a pretty long time. International custom has developed by
spontaneous practice and reflects a deeply felt community of law. Its
rules are regarded as possessing density and stability and it is the
repository of the general or common law of the nations.
The original and the oldest sources Law is known as Custom. The rules
of customary International Law involved a long historical process which
gained recognition by the entire community. The presence of customary
rules can be deduced from state practice and behaviour because it is
not a written source of law. A rule of customary law is said to have two
elements:
• First, there must be widespread and consistent State practice.
• Secondly, there has to be “opinio Juris”, a Latin term which
means a legal obligation to believe in the existence of such law.
Features of Customary Law:
a. Uniform and general: State practice to give rise to binding rules
of customary International Law, that practice must be uniform,
consistent and general and must be coupled with a belief that
the practice is obligatory rather than habitual. In the Asylum
Case, the court declared that a customary rule must be used
constantly and uniformly throughout history which can be traced
through state practice.
b. Duration: Continuous and regular use of particular conduct is
considered as a rule of customary law. In the North Sea
Continental Shelf cases the ICJ stated that there is no precise
length of time during which the practice must exist. It is simply
that it must be followed long enough to show that other
requirements of custom are satisfactory.
c. An opinion of Law: To assume the status of customary
international law the rule in question must be regarded by the
state as binding in Law i.e. the states must regard themselves as
being under a legal obligation to follow the practice. In the Lotus
case opinio Juris was seen as an essential element of customary
international law and this was affirmed in North Sea Continental
Shelf Cases as well.
3. The general Principles of Law: The General Principles of law are based
on moral Principles and law of nature; it has relation with the State
Practice. The statute of the International Court of Justice authorizes
the Court to apply the general principles of law recognized by civilized
nations in addition to international conventions and custom, which are
the two main sources of International law. It makes national legal
systems as a source of law for the creation of International Law.
The special arbitral tribunal between Germany and Portugal also applied
the general principles of law in the Maziua and Naulilaa case where
the arbitrators observed that in the absence of rules of International
law applicable to the facts in dispute, they were of the opinion that it
was their duty to fill the gap by principles of equity fully taking into
account the spirit of International Law, which is applied by way of
analogy and its evolution.
Most modern jurists accept general principles of law as common to all
national legal systems, in so far as they are applicable to the relations
of States. There are fewer decided cases in international law than in a
municipal system and no method of legislating to provide rules to
govern new situations. It is for such a reason that the provision of ‘the
general principles of law recognized by civilized nations’ and was
inserted into Article 38 as a source of law.
Some of the examples of General principles include:
• The rule of res judicata which has been affirmed by the court in
the case of Genocide Convention Bosnia and Herzegovina v.
Serbia and Montenegro.
• The rules of pacta sunt servanda made applicable,
• Reparation must be made for damage caused by the fault,
• The right of self-defence for the individual against attack on his
person, family, or community against a clear and present danger,
• For one’s own cause no one can be a judge and that the judge
must hear both sides.
4. Judicial Decision: According to Article 38 of the Statute of the
International Court of Justice, Judicial Decisions are subsidiary sources
of International Law. They are not the automatic sources of law. Judicial
Decisions by International Court of Justice, Permanent Court of Justice,
International Arbitral Tribunal and Municipal Courts are subsidiary
sources of International Law. Article 59 of the Statute of the International
Court of Justice expressly provides that the decisions of the court
have no binding force except between the parties and in respect of that
particular case. This means that the judicial decisions are binding only
on the disputed States.
Under the provisions of this Article, the Court is specifically required
not to apply precedent or doctrine of stare decisis in its decisions.
Decisions of International Court of Justice are to have only persuasive
value. The content of earlier decisions has some element of law and it is
clarified, impartially, as certainly carried by International Court of Justice.
How it contributes in the development of International Law Its repeated
application is relied upon. Later on, it does not remain only persuasive
and it does convert into rules of International Law.
ICJ plays a major role in the law-making process through its advisory
opinions, case laws and judge’s rule. One of the major examples of this
includes the principle of the prohibition against the use or threat of use
of force laid down by the court in the case of Nicaragua vs. USA which
is now considered as a part of Customary International Law.
The judicial decision of the court also encompasses international
arbitral awards and the rulings of national courts. One leading example
is Alabama Claims arbitration which marked the opening of a new era
in the peaceful settlement of international disputes, in which
increasing use was made of judicial and arbitration methods in
resolving conflict.
Another illustration of the impact of arbitral awards is the Island of
Palmas case wherein it has been referred that a unanimous, or nearly
unanimous, decision plays an important role in the progressive
development of the law. It helps in providing a single view for
interpretation of the issue at hand which helps in avoiding controversy
during the development of International Law.
5. Text writers, Juristic Works and Commentators: It is referred and
relied on by International Court of Justice which author is quoted in
which decision. The opinion of jurist is also regarded as sources of
international law but they are subsidiary means for the determination
of rules of international law. While deciding the case, if the Court does
not find any treaty or judicial decision or legislative act or any
established custom, the Court may take the help of opinion of jurist as
subsidiary means for the determination of rules of International law.
Although juristic works are not independent sources of law, sometimes
juristic opinion leads to the formation of International law. It throws
light on the rules of International law and their writing makes it easier to
frame a particular rule. The value of juristic writings carries more weight
particularly in those fields of international law where treaty or customary
rules do not exist. The Writings of Ayala, Gentilis Grotius, Vattel, Kent
Zouche, etc have tended to transform the transitory state of usages
into custom and represented a strong element to consolidate the
customary law.
6. Equity: Equity is used in the sense of consideration of fairness,
reasonableness and policy often necessary of the sensible application
of the more settled rule of law. Though equity cannot be the direct
source of International Law, It is of great importance in those fields
where rules are not readily available.
Some jurists say that, it is not the formal source of law but it is a a
subsidiary source of law. Equity principles originate from culture and
interest of state concerned, equity principles vary from State to State.
Equity in international law is uncertain. It is subjective, and to bring
objectively to the principles of equity as a principle of natural law are
considered. The Concept of Equity has been referred to in several
cases.
Other sources of International Law: International law is not based on
a set of rules and therefore Article 38 is not exhaustive. There are various
other factors that develop the usage of International Law which include
declarations of Security Council resolutions, declarations, and
recommendations adopted by the UN General Assembly, International morality
and equity, etc.
The world is constantly evolving and the problems are becoming more
complex, the resolutions and declarations adopted by assembly act as an
inevitable impact upon the direction adopted by modern international law.
The way states vote in the General Assembly and the explanations given
upon such occasions constitute evidence of state practice and state
understanding as to the law.
For example, in the case of the USA vs Nicaragua General Assembly
had asked the court for an advisory opinion on the question: “is the threat or
use of Nuclear weapons in any circumstances permitted under International
Law?” The court after a review of the relevant international legal instrument
as well as the Security Councils’ General Assembly resolution of the matters
reached a resolution that the threat or use of nuclear weapons would generally
be contrary to the rules of International Law applicable to armed conflicts and
in particular the principles and rules of humanitarian law.
The concept of equity has been referred to in several cases. In the
Rann of Kutch Arbitration between India and Pakistan in 1968, the Tribunal
agreed that equity formed part of international law and that accordingly, the
parties could rely on such principles in the presentation of their cases.
UN has provided a true compliment for the gap created in what is
supposed to be an accurate reflection of other sources of international law
and its activities has positively affected lawmaking ways by resolutions and
faster means by 15 members of the Security Council and 191 members of the
General Assembly as greater needs arise for fast development of international
law codified by International law commission.
Q. 3. Explain “International law is not a true Law”.
Or
Explain “International Law is a true Law”
Ans. It is one of the most controversial questions that has been debated
and on which jurist’s opinions hugely differ. One view considers International
law not a true law, rather, a code of rule of conduct backed by morality. On the
other hand, International law is considered to be a true law and is regarded as
a law, similar to that of ordinary laws of a state, binding upon the citizens.
There had been a great controversy as to the question, whether
international law is a law or not. Some answered the question in affirmative
while others in negative. These two views can be explained as under-
Not a Law: Supporters of this view are:
• John Austin: a leading English writer on Jurisprudence answered the
question in negative. According to him, International Law is not true
law, but a code of rules and conduct of moral force only. He holds that
International Law is no law as it does not emanate from a law giving
authority and has no sanction behind it. Austin described International
Law as positive international morality consisting of opinion or
sentiments current among nations generally.
Austin’s View – International law is not a true law: According to
Austin, law is the command of the sovereign punished by sanctions in
case the command is violated by the individual. There must be a
legislative authority enacting the rule of conduct and enforcing physical
sanction. So based on what he said, it can be concluded that any rule
which is not enacted by any superior or legislative authority, cannot be
regarded as a law and moreover, if laws are violated, sanctions must be
imposed.
Based on that, it can be said that rules are only morally and ethically
valid if they aren’t issued by any sovereign authority. If we apply this
theory to International law, we will see there is no legislative power
over the society, based on which Austin concluded that International
laws are merely based on ethics and morality and are not true law.
• Hobbes and Pufendorff also answered the question in negative by
saying that there is no positive law of nations properly invested with
true legal force and binding as the command of a superior.
• Holland- observed that International Law differed from ordinary law
and not supported by the authority of a state. According to him, the
law of nations is but private law ‘writ large’. In this view of the matter,
he called “International Law as the vanishing point of Jurisprudence”.
According to him, rules of International Law cannot be kept into the
category of law because it lacks sanction, which is an essential element
of municipal law.
• Jeremy Bentham and Jethro Brown are the other prominent jurists
who also deny the legal character International Law.
International Law is a Law: supporters of this view are:
• Oppenheim’s View on International law: According to him, laws are
nothing but a body of rules for human conduct within a community,
which can be enforced by an external power if there’s a common consent
of the community for the same. Based on what he said, we can conclude
that, firstly, there must be a community, secondly, a body of rule of
conduct governing the community must be there and thirdly, common
consent among the community for the rules to be enforced power must
be present. From this, we can conclude that it’s not necessary that
rules should be enacted by a legislative authority within the community
for them to be legally binding.
• Hall and Lawrence on the other hand answered the question in
affirmative. According to them, International Law is habitually treated
and enforced as law, like certain kind of positive law, it is derived from
custom and precedent which form a source of International Law.
• Pitt Cobbett observed that International Law must rank with law and
not with morality.
• Sir Frederick Pollock writes the only essential conditions for the
existence of law are the existence of political community and the
recognition by its members of settled rules binding upon them in that
capacity. International Law seems on the whole to satisfy these
conditions.
Thus it is clear from the above discussion that the solution for the
above question depends upon the definition of law, which one may
choose to adopt.
Q. 4. Explain the theories regarding the subjects of International
Law?
Ans. Theories regarding subjects of International Law:
1. Realist Theory (States alone are subjects of International Law):
According to the orthodox positivist doctrine, states are the only
subjects of international law.
According to Prof. Oppenheim, “the law of nations is primarily a law
of international conduct of states and not of their citizens”. If individuals
have any right then it can be claimed only through the states. The
Jurists of this school believes that the states are the subjects of
international law, while individuals are the objects of international law.
Criticism of Realist Theory: It is silent on the rights of the individuals
and the international offences for which individuals may be punished.
In Reparation for injuries suffered in the services of the UN case, the
ICJ held “that the UN has the capacity to bring an international claim
against the State for obtaining reparation when an agent of UN suffers
injury.”
2. Fictional Theory (Individuals alone are subjects of International Law):
In this theory, Jurists believe that Individuals are the only subjects of
international law as states do not have soul or capacity to form an
autonomous will. Prof. Kelson opined that the laws ultimately apply to
the individuals and are for the individuals alone. As per this theory, the
welfare of an individual is the ultimate goal of international law.
Criticism of Fictional Theory: The primary concern of International
law is the rights and duties of the states. Individuals possess many
rights under international law but their capacity to enforce these rights
is limited. In most of the cases, a state files the claims for the rights of
the citizens. In Mavrommatis Palestine Concession case (1934), the
PCIJ observed that “It is an elementary principle of international law
that a state is entitled to protect its subjects”.
3. Functional Theory (States, Individuals and some non-state entities are
subjects of International law): The jurists with a moderate view criticize
both of the above theories. These Jurists believe that States, Individuals
and certain non-state entities are subjects of international law. Now,
Individuals got right even against the states. An example of this is the
European Convention on Human Rights in 1950. Under International
Covenants on Human rights 1966, it is held that individuals can claim
rights directly under international law. In some cases, Non-state actors
like Colonies and Protectorate states are treated as subjects of
international law.
4. International Organizations as subjects of International Law: The
advent of international organizations in the 20th Century is having
immense significance. There are different types of International
organizations, some are Global like the United Nations and others are
regional like the African Union.
5. Individuals as subjects of International Law: Modern states practices
have accepted in a limited way that Individuals have international legal
personality. This position of the individual is not equivalent to the
states; still, individuals have got legal personality due to many reasons.
Individuals have got various rights at International law, which gives
them the confidence to be a part of it. The Universal Declaration of
Human rights, 1948, gives various rights to individuals at an
international forum.
Conclusion: Today in modern times, states are not the only subjects
on international law. They are still the main subjects but in changing character
of international law, international organizations, individuals and certain non-
state entities got the status of subjects in International Law. Now Individuals
can enforce their rights in certain capacity against the states. Though, there is
a wide gap which exists between the rights of the states and individuals at the
other end.
It is always said that everything has a positive as well as negative
aspects. International law binds the whole nation and ensures positive
interaction between different nations and also ensures better cooperation
among the Nations.
But on the other side International law has negative aspects as well as
International law sometimes. If there will be absence of International law and
every country has their own law related to international conflict then it will be
a really difficult situation to cope up with each other and finally comes to a
single decision to which everyone agrees. But everything has positive and
negative aspects so in the future the International law should be amended
instead of scrapping it.
And according to the functional theory followers it is said all the entities
should be declared as subjects of International law which is good but in the
current scenario. In the upcoming days, International law will be more vast
and wider so to cope up with a better plan should be made and according to
that the subjects of International relations should be declared
Q. 5. International Law is the vanishing point of Jurisprudence.
Explain.
Ans. Holland has remarked that International Law is the vanishing
point of jurisprudence in his view, rules of international law are followed by
courtesy and hence they should not be kept in the category of law. The
international Law is not enacted by a sovereign King. It has also no sanctions
for its enforcement which is the essential element of municipal law. Holland
further say that International Law ass the vanishing point of Jurisprudence
because in his view there is no judge or arbiter to decide International disputes
and that the rules of the I. Law are followed by States by courtesy.
Holland strongly believes that international law can indeed be described
as law only by courtesy. It can not be described on legal terms as the rights
can be easily violated and the concerns of international law is not always
taken into account and also can not be implemented worldwide. It is also said
that Holland’s view on international law may be was correct in the past but at
present the same is subjected to severe criticism as character of International
law has changed a great deal in recent times due to the obligation of nations
to oblige many social, environmental and humanitarian characteristics of
international law.
So we can conclude that such rules as are voluntarily, though habitually,
observed by every state in its dealings with the rest can be called law only by
courtesy. International Law generally differs from ordinary law as it is not
enforced by a State and differs from ordinary morality as it is a rule for States
and not for individuals. According to him the law of nations is but private law.
Austin also subscribes to this view,
Justice V.R.Krishna Iyer formally member of Indian Law Commission
has also remarked, “It is a sad truism that international law is still the vanishing
point of jurisprudence. This view is not correct. It is now generally agreed that
Holland’s view that international law is the vanishing point of jurisprudence
is not correct.
But now it is well settled that International Law is law. It is true that
International Law is not enacted by sovereign and has no agency for its
enforcement. But it is true that it is a weak law. A majority of International
lawyers not subscribe to this view is based on the proposition that there are
no sanctions behind international Law are much weaker than their counterparts
in the municipal law, yet it cannot be successfully contended that there are no
sanctions at all behind international law.
The jurists who do-not consider international law as the vanishing
point of jurisprudence say that there is difference between state law and
International Law. International Law cannot be enacted by the state but still
there is agency for its enforcement.
According to Dias, “International Law is obeyed and complied with by
the states because it is in the interests of states themselves.”
For this object they give the following arguments:-
a. The judgements of International court of Justice are binding on States.
b. If any state does not honour the order/judgement of International court
of justice, the Security Council may give its recommendation against
that state for action.
c. The judicial powers of International Court of justice (Voluntarily and
compulsory) have been accepted by the States.
d. The judgement of International court of Justice has been followed till
date.
e. The system of enforcement i.e. sanctions and fear, has been developed.
For example: If there is a threat to international peace and security,
under chapter VII of the U.N. Charter, the security council can take necessary
action to maintain or restore international peace and security. Besides this the
decisions of the International Court of Justice are final and binding upon the
parties to a dispute.
We can say that international Law as the vanishing point of
jurisprudence, since it lacks any arbiter of disputed questions nor it saves any
public opinion. It goes beyond the disputant parties and in such proportion
that it often becomes assimilated to true law by the aggregation of States in a
large society, it ceases to be itself, and is transformed into the public law of a
Federal government.
There are violations of principles of International Law often by stronger
nations of the world. The international legislative machinery is not so efficient
as a State legislative machinery. In the strict sense, International Law has no
legislature and no executive. Its judiciary as represented by the International
Court of compelling jurisdiction; its decisions are not conclusive so as to
finally settle legal disputes between States. International Law is not the product
of an international legislature, it being the collection of usages which the
civilized states have agreed to observe in their dealings with one another.
According to Paton, International Law is very weak on the
institutional side there is no legislature, and, while a Court exists, it can act
only with the consent of the parties and has no real power to enforce its
decisions. It is true that the international law of peace is seldom broken,
but once grave issues arise we see flagrant disregard of accepted rules.
The public opinion of the world may be a factor not lightly to be ignored,
but it is harder to deal with a nation that is a law-breaker than to expel a
primitive man from his community hence while primitive and International
Law both lack institutional machinery, the sanctions of the former are
really more effective since they are brought to bear on the individual and
not on the nation”
Analysis of this statement: Jurisprudence assists with a definite theory
of the implementation of international law. One cannot implement the
international law against a person of any country even though his country
has agreed into any international law agreement. The person can only be
trialed under the laws of his or her own state. He or she is only subject to the
territorial jurisdiction of the country, not by any international law as the
international law is not enforced by a sovereign authority.
International law can indeed be described as law only by courtesy.
It cannot be described on legal terms as the rights can be easily violated
and the concerns of international law is not always taken into account
and also cannot be implemented worldwide. It is also said that Holland’s
view on international law may be was correct in the past but at present
the same is subjected to severe criticism as character of International
law has changed a great deal in recent times due to the obligation of
nations to oblige many social, environmental and humanitarian
characteristics of international law.
Although, previously it was believed that international law is the
vanishing point of jurisdiction, these days this thinking has changed a lot.
These days international law is more advanced. International law is followed
correctly in many countries all over the world. This law is enforced during the
export and import of goods, foreign exchange and global businesses. There is
international court to ensure these rules are not violated. So, these days,
jurisprudence and international law is not that parallel.
Conclusion: International law is regarded as the vanishing point of
jurisprudence. It is believed that international law should not be regarded as
law as it is easily violated and there is no sovereign authority to enforce it. We
can also conclude that international law is mostly a courtesy and is followed
depending on the will of the countries. But things are changing these days as
international laws are strictly followed all over the world due to rapid
globalization and other radical changes.
Q. 6. What are the weakness of International Law?
Or
What are the Merits and Demerits of International law?
Ans. The following are the weakness of the International Law:
• It lacks effective law making authority.
• It lacks effective machinery or authority to enforce its rule.
• International court of justice has no compulsory jurisdiction.
• The sanction behind the International law are very weak.
• It cannot intervene in the matters which are within the domestic
jurisdiction and the states.
• Many rules of International Law are uncertain and vague.
• International Law has failed to maintain order and peace in the world
1. The greatest shortcoming of International Law is that it lacks an
effective executive authority to enforce its rues.
2. Lacks Of effective legislative machinery:- Since the International Laws
are based on international treaties and conventions. Therefore these
are interpreted by the states according to their self interest.
3. The International court of Justice lacks compulsory jurisdiction in
the true sense of the term: The International court of Justice which is
situated in Hague (Netherland) is not authorised to take cases of all
states. The cases can be filed in this court with the mutual consent of
concerned states.
4. Due lack of effective sanctions, rules of International Law are
frequently violated:- There is no sense or fear of sanction in the
International Law with the results the laws are violated frequently by
the States.
5. Lack in right to intervene in Internal Affairs:- As per article 2(7) of
UNO Charter, UNO is not competent to interfere in the domestic matters
of states. International law cannot interfere in the domestic matters.
Keeping in view these facts in several cases International Law proves
to be ineffective and weak.
6. UNCERTAINTY:- There is one more reason behind the weakness of
International Law is its uncertainty. It is not certain as the laws of
states as well as Municipal law. In addition to this it has not been able
to maintain international peace and order.
It is now very much clear from the above facts that International Law is
weak. Paton says that , “ from institutional point of view International Law is
a weak. It has no legislative support though there is international court of
justice but that functions or takes case on the basis of mutual consent of
states. It has no power to get the decisions implemented.”
According to Karbet, “The main course of weakness of International
Law is the lack of social solidarity among highly civilised states.
A case of Queen v/s Ken, 1876:- There is no such institution or body
which can enact laws for sovereign states and there is no court also which can
enforce its decision and to bind the states.”
Merits and Demerits of International Law:
Merits:
1. State’s Interest Protection: It can be said without a doubt that
International laws have protected the interests of states, especially of
those, which have no power to protect their own interests.
For example, the World Food Programme, a part of the UN, which is a
subject of international law, is a large humanitarian agency which
fights hunger worldwide and delivers food assistance in case of
emergencies.
2. Human Being Welfare: It has played a vital role in the welfare of
human beings. For example, there are various international treaties for
the promotion of fundamental human rights, justice and equality, like
the Universal Declaration of Human Rights.
3. Unity and Strength: This law has brought unity among different
nations/states as no one state can be separated from the other. Every
state has become the need of the other one.
For example, the problem of global warming. Every country emits
greenhouse gases which is further contributing to global warming and
the impact of the same will be felt by all the countries. So, no country
can combat global warming alone and will need international laws and
cooperation to curb the problem.
Demerits:
1. No Apparent Authority: There is no authority for the enforcement of
the law. Only the International Court of Justice is present but it can’t
settle certain matters. Moreover, once a decision is given by it, there is
no such power or authority which can get it enforced.
2. No Legislative Machinery: As the international laws are based on
treaties and conventions, they are interpreted by states according to
their self-interests.
3. Lack of Effective Sanctions: There is no fear of sanctions, which has
resulted in laws being violated frequently by the states.
4. Inability to Intervene : According to Article 2(7) of UNO Charter, UNO
cannot interfere in the domestic matters of the states. It has been seen
in such situations, international laws are ineffective and weak.
International law is a set of rules which are binding between countries
and aims to ensure security and peace among various nations. The
subject of a question under international law isn’t only the Nation/
state but can be an individual also. Moreover, it has emerged through
a number of sources which are codified in Article 38 of the ICJ statute,
according to which, customs, treaties and general principles are
considered to be the source of International Law. International law is
there to maintain world order and peace, settle various disputes among
different nations/states and individuals and to provide fundamental
rights. However, there are still various shortcomings due to which
international relations are suffering.
Q. 7. Explain the Scope and Development of International Law?
Ans . Development of International Law:
International law is a dynamic law. It has been changing since its
inception. It is constantly developing, sometimes it does not keep up with
developments, other times it anticipates them and gives an early warning of
tendencies in the development of international relations. It is a developing
philosophy of values. For example, in June 1989, the United Nations
Environment Programme (UNEP) with a view to warn the people of the increase
in earth’s temperature due to green-house effect, gave the slogan of Global
Warming’. Similarly, the Rio Conference in 1992 highlighted the need to protect
and preserve earth from environmental pollution. At crucial or important turns
of history, there are qualitative changes in international law. The recent breaking
of the Soviet Union is a glaring example of this.
New International Law: The term new international law indicates the
norms and values that have been evolved since the Second World War. The
traditional, juridical and individualistic character of international law (i.e. law
governing the relations of sovereign States with each other) is being replaced
by the law of social interdependence (i.e. interdependence of the nations or
international community). At the present time, there is hardly a State which in
the interests of the international community has not accepted restrictions on
its liberty of action.
The shift has been from the more or less formal regulation of
diplomatic relations between States to an international law of welfare
(Friedmann). Interdependence among nations, today, has become inevitable
in view of the expanding horizons of science, technology, trade, commerce,
etc. In fact, the growth and development of international law is parallel to the
growth and development of international relations in the field of science and
technology, trade and commerce, etc.
In the 20th century, factors which contributed largely to the
development of international law further could be summarised as below:
i. International organisations: A major development in the 19th and 20th
century in International Law is the prominent position of the International
Organisations. The operations of these organisations is on the global,
regional, and sub-regional level. These organizations seek to achieve
the objective of the welfare of people. These organizations are funded
majorly by the developed countries and they are actively supporting
the developing countries for the betterment of the lives of the people.
These organizations have multi-dimensional areas of operations. These
are the major International Organisations:
a. World Bank: The World Bank provides economic support to
the countries for different kinds of infrastructural development,
and also the availability of basic facilities in the developing
countries.
b. International Monetary Fund: The IMF helps the countries to
manage their balance of payments. The Sovereign Debt
Restructuring Mechanism of IMF aims to preserve asset value
and preserve the creditor’s rights and also paves the way with
the “help agreement” for debtors to grow.
c. World Trade Organisation: The WTO supervise and regulate
International Trade. This is the largest economic organization in
the world. It deals with trade of goods, services and intellectual
property among the countries. It provides a framework for
negotiation and dispute resolution to countries for efficient
trade.
d. European Union: The objective of the European Union is to
promote scientific and technological development, promotion
of the internal trade among the European Countries, and solidarity
during the time of War.
e. SAARC: The South Asian Association of Regional Corporation
is created with the objective of securing peace, and regional
harmony among the South Asian Nations. It currently has 8
members. It aims to achieve scientific and technological
development.
f. ASEAN: The Association of Southeast Asian Nations is a
regional intergovernmental organization comprising 10
countries, which facilitates the economic, social, political,
military, educational, and socio-cultural integration among its
nation.
g. SCO: The Shanghai Cooperation Organisation is the
intergovernmental international organization that aims to promote
effective cooperation in politics, trade, economy, technology,
and culture. The joint efforts will be made to maintain peace and
security in the region.
ii. Individuals: subject of international law, New international law
has been evolved around the individual. The most important
change that has taken place is that of addition of new subjects.
International organisations and individuals are now regarded as
subjects of international law. It is significant that individuals have
been given a right to make petitions before some international
forums.
Corbett has written: We are witnessing a transition in international
legal development from a prolonged stage in which the predominant
concern was the regulation of the conduct of States as distinct entities
to one in which equal attention is given to promoting the growth of a
body of world law transcending States, and applicable on a footing of
equality, to individuals, corporations, international organisations and
States.
iii. Codification of international law: In the 20th century, rules of
international law which were ambiguous and uncertain have been made
systematically in written form which is applied uniformly to all the
States or most of the States.
iv. Multilateral treaties: In the present century, rules of international law
have been made by the conclusion of treaties in many frontiers which
had never been imagined in the earlier centuries. For instance, at
present, space, moon, and deep sea are governed in accordance with
the rules framed through multilateral treaties.
Scope of the International Law:
Interstate relations and their regulation: The International Law has
state subjects. When civilized states came into existence then interrelation
was natural. A mutual understanding and natural interrelation became
necessary. They have framed their own rules, regulations, and treaties for
further transactions. The rules and regulations are laid down categorically in
these relations because it facilitates the amicable working of the functions
between the states. The rules and regulations broadly provide opportunities
for different programs to be carried out by different states. The customs
followed by the countries have culminated into laws. The same path of
evolution is taken by the International Criminal Law that has been codified.
The wide variety of subject matter has been covered under International
Criminal Law such as extradition treaty, refugees, human rights, and sustainable
development.
Q. 8. Explain the various theories of relationship between International
Law and Municipal Law?
Ans. Relationship between International and Municipal Law: It is
important to understand how international law principles become part of
domestic law, and to explain what happens if the rules conflict. The theories of
monism and dualism are the two main theories that explain the relationship
between international and municipal law.
The main differences between international and municipal law are
thought to be the sources of law, its subjects, and subject matter. International
law derives from the collective will of States, its subjects are the States
themselves, and its subject matter is the relations between States. Domestic
law derives from the will of the sovereign or the State, its subjects are the
individuals within the State, and its subject matter is the relations of individuals
with each other and with government.
Theories of Relationship Between International Law and Municipal
Law:
1. Dualism: Positivism stresses the overwhelming importance of the state
and tends to regard international law as founded upon the consent of
states. It is actual practice, illustrated by custom and by treaty that
formulates the role of international law, and not formalistic structures,
theoretical deductions or moral stipulations. Accordingly, when
positivists such as Triepel and Strupp consider the relationship of
international law to municipal law, they do so upon the basis of the
supremacy of the state, and the existence of wide differences between
the two functioning orders. This theory, known as dualism, stresses
that the rules of the systems of international law and municipal law
exist separately and cannot purport to have an effect on, or overrule,
the other.
This theory holds that international law and domestic law are separate
bodies of law, operating independently of each other. Under dualism,
rules and principles of international law cannot operate directly in
domestic law, and must be transformed or incorporated into domestic
law before they can affect individual rights and obligations.
According to dualist theory, international law and municipal law exists
with a wide difference between its functioning. The dualist approach
maintains that international law cannot interfere with the municipal
lawsas long as such rules of international law are not incorporated in
the municipal laws. The transformation doctrine is an integral part of
the dualist approach, where international law is followed in by
municipal law if the former is transformed into a national law. A wider
thesis of dualist approach is the adoption doctrine; where the
international law cannot confer rights on municipal laws as far as the
rules are not recognized as inclusive in the domestic laws that gives
rise to obligation to follow such international rules. This doctrine
was noted in “Cristina Case”, where the judge mentioned.That the
rule of international law is binding on the municipal courts to the
extent the rule has been recognised and created precedence by the
Courts.
Dualism has been widely criticized:
• Firstly, this view states that International Law and Municipal
Law are different from each other as International Law cannot be
part of Municipal Law and it also cannot be regarded as absolute
state law unless it is explicitly enforced or amended by Municipal
Law. This view is not true, because there are certain basic
principles of International Law that link the state with its own
will.
• Secondly, it is not true that International Law regulates only the
relations between countries. It also governs certain personal
actions. If people make certain mistakes, they can be punished
in accordance with International Law eg: War Crimes.
• Thirdly, “Pacta Sunt Servanda”, which means agreement must
be kept, is undoubtedly an important principle of International
Law, but not the only principle on which it is based. There are
certain rules which are legally binding on a state.
Article 38(1) of the Statute of the International Court of Justice
(ICJ) provides three International Laws: Treaties, Customs and
General Principles. Since the systems of International Law are
horizontal and decentralized, the creation of International Laws
is much more complicated than the creation of laws in the national
systems.
2. Monism: Those writers who disagree with dualism theory and who
adopt the monist approach tend to fall into two distinct categories:
those who, like Lauterpacht, uphold a strong ethical position with a
deep concern for human rights, and others, like Kelsen, who maintain a
monist position on formalistic logical grounds. The monists are united
in accepting a unitary view of law as a whole and are opposed to the
strict division posited by the positivists.
The Monist approach follows a Kantian philosophy of law, which
favours a unitary conception of law where the states derive its laws
from a superior source of law and a law that contradicts international
law, stands invalid. The monist theory suggests that the effect of
international law is incorporated in the domestic legal system and it
does not require a specific law that would necessitate to explicitly
mentioning its inclusion. For example, if a particular state has ratified
international human rights convention and its national laws restrict a
certain freedom; the person being prosecuted can include the argument
that the national laws are in violation of international laws and the
judge would require the national law to stand invalid. This approach
places international law at a higher platform in respect of municipal
laws; it creates a legal order which allows municipal laws to follow the
international rules. However, if any contradiction arises between both
the laws, then international law would supersede the municipal laws
and the national law would stand invalid.
Germinating from these two prominent views, two other theories also
came into existence.
1. Transformation or Specific Adoption Theory: It is based on the dualist
concept. This theory says that, no rules of international law, by its own
force, can claim to be applied by municipal courts, unless they undergo
the process of transformation and be specifically adopted by the
municipal courts and systems. The rules of international law are part of
national law only if specifically-adopted.
2. Delegation Theory: This theory laid down that there is the delegation
of a right to each state constitution by the rules of international law
called “Constitutional rules of international/treaties”, which permit each
state to decide or determine for itself as to how and when the provisions
of international treaty or convention are to come into force and in what
manner they are to be implemented or embodied into State law.
State Practice on the Domestic Application of International Law:
Domestic use of international human rights treaties has been a subject of
debate in almost all countries. This is mainly because of the effect of
common law that had great bearing on the jurisprudence of several countries
since they were once colonies of British Empire and even after liberation,
common law still continue to influence the jurisprudence of these countries.
However, in recent years there is a sharp departure from dualist approach
and most national courts are tending towards monist view on the subject.
A brief overview of domestic application of international human rights law
in states other than India will offer comparative analysis of domestic use
of international human rights treaties. Further it will also help understand
the prevailing trend and interpretative techniques that are adopted to
incorpo rate internatio nal human rights laws in to the domestic
jurisprudence.
Practice of United States of America: Application of International
Treaty Rules in U.S.A: Unlike India, the treaty making power and the status of
international law in U.S. is clearly provided under the U.S. Constitution. Article
II Section 2 of the Constitution of U.S.A. provides that; “the President shall
have power, by and with the advise and consent of the Senate, to make treaties,
provided two-thirds of senators present concur….” The President initiates
and conducts negotiations of the treaties and after signing them, places them
before Senate for its “Advice and Consent”
A distinction is made in the U.S.A. between treaties and agreements.
Treaties are required by the Constitution to be submitted before the Senate
for approval/ratification. Whereas the agreements (known as executive
agreements), are entered into and signed by the President in exercise of his
executive power. The types of agreements so contemplated are those relating
to foreign relations and military matters that do not affect the rights and
obligations of the citizens.
However, in the case of trade agreements, such agreements are subject
to ratification by both Houses but only by a simple majority.
England Practice: The domestic application of international law in England
draws a distinction between (i) customary rules of international law; (ii) treaty
rules.
Customary Rules of International Law: According to the 18th Century
“Blackstonian” Doctrine, generally known as incorporation doctrine, customary
international law was deemed automatically to be part of the common law.
Treaty Rules: The application of treaty rules in England is primarily conditioned
by the constitutional principles governing the relations between the executive
(crown) and Parliament. The negotiation, signature and ratification of treaties
are matters belonging to the prerogative powers of the crown.
Current Practice: The modern practice in England is of submitting
treaties to Parliament for ratification. This is because of a statement made on
1st April 1924 by Mr. Ponson the Under Secretary of State for Foreign affairs
in Parliament of the intention of the new Government to lay on the table of
both House of Parliament every treaty, when signed, for a period of twenty
one days, after which the treaty will be ratified and published and circulated in
the Treaty Series. The object of this practice is to secure publicity for treaties
and to afford opportunity for their discussion in Parliament if desired. It
apparently does not apply to those kinds of treaties, usually of minor or
technical importance, which do not require ratification. It appears that practice
only applies to treaties that are made subject to ratification. Thus, domestic
application of international human rights law in England reflects dualist
approach in the sense that international human rights treaties do not form part
of the corpus juris of England unless Parliament enacts a law incorporating
the treaty provisions in to the English law. That means all Multilateral Treaties
including human rights are non-self executing treaties and in that context
English practice of domestic application of international treaties is completely
different from U.S. where treaties are regarded as supreme law of the land.
However customary international law is regarded as part and parcel of the law
of land in both England and U.S.
South West Africa case (Ethiopia Vs. South Africa): In this case on 4th
November 1960, Ethiopia and Liberia, former State Members of the League of
Nations, opened a separate process for the cases cited in South Africa for the
continuation of the League of Nations mandate for South Africa. The Court
was asked to explain that South Africa remained a mandate territory, it had
violated its obligations under that mandate and therefore was under the legal
authority of the United Nations. On 20th May 1961, the Court found that
Ethiopia and Liberia had the same interests and joined the trial. South Africa
has submitted four initial objections to the jurisdiction of the Court. At the
judgement of 21st December 1962, the Court rejected them and confirmed their
jurisdiction. After the defence was basically completed within the time limit
determined at the request of the parties, the Court held a public hearing from
15th March to 29th November 1965 to hear oral arguments and statements and
the second stage of the decision.
Judgement: The Court decided to reject Ethiopia and Liberia because
they could not establish legitimate rights or interests in relation to their claims.
In Barcelona Traction case (Belgium vs. Spain): The Court decided to
reject this case which shows the difference between individuals who are
inherently sovereign at the national and international level. The Court ruled in
favour of Spain, as Belgium was not responsible for the war occurred in Spain,
and diplomatic immunity was not granted to shareholders requiring
compensation.
However, a lawsuit may arise if the shareholder is located in Canada
and has the correct identity. Therefore, since the country has not been given
power, a person cannot take action against one Country. This case is considered
as a good benchmark for Governmental requirements.
Q. 9. Define state and its various essentials?
Ans. The state as a subject of International law as a general notion is
defined through its four basic characteristics:
• Population;
• Territory;
• Government and;
• Sovereignty.
The entirety of all citizens living within a certain territory, separated
from other territories, which are subordinate to the government and have an
established relationship with the state through legal connection-citizenship
is called population.
The territory is an area separated from other areas by border, where a
certain population lives and where a certain authority extends. State boundaries
are endpoints up until the sovereignty of a state The authority within a country
regulates the relations in the state and the nature of its international positions.
The highest authority, which does not recognize any other form of higher
power is sovereignty.
The characteristics of a modern state, the way it is recognized nowadays
are shaped by Peace Treaty of Westphalia, according to which the state is
constituted by three main features, territory, population and sovereignty, i.e.,
absolute power for governining over them. In order to have a better
understanding of the process of recognition and various specifics that have
occurred throughout history, the attention must be paid to the terms
sovereignty and statehood first, and thereto sovereignty refers to how a state
acquires it as well, and later on the manners through which countries recognize
the existence of another state.
A State stands identified with its four essential elements:
1. Population: State is a community of persons. It is a human political
institution. Without a population there can be no State. Population can
be more or less, but it has to be there. There are States with very small
populations like Switzerland, Canada, and there are States like China,
India and others, with very large populations.
The people living in the State are the citizens of the State. They enjoy
rights and freedom as citizens as well as perform several duties towards
the State. When citizens of another State are living in the territory of
the State, they are called aliens. All the persons, citizens as well as
aliens, who are living in the territory of the State are duty bound to
obey the state laws and policies. The State exercises supreme authority
over them through its government.
There is no definite limit for the size of population essential for a State.
However, it is recognized that the population should be neither too
large nor very small. It has to be within a reasonable limit. It should be
determined on the basis of the size of the territory of the State, the
available resources, the standard of living expected and needs of
defense, production of goods and supplies. India has a very large and
fast growing population and there is every need to check population
growth. It is essential for enhancing the ability of India to register a
high level of sustainable development.
2. Territory: Territory is the second essential element of the State. State
is a territorial unit. Definite territory is its essential component. A State
cannot exist in the air or at sea. It is essentially a territorial State. The
size of the territory of a State can be big or small; nevertheless it has to
be a definite, well-marked portion of territory.
States like Russia, Canada, U.S.A., India, China, Brazil and some others
are large sized states whereas Nepal, Bhutan, Sri Lanka, Maldives,
Switzerland, Togo, Brandi and many others are States with small
territories. The whole territory of the state is under the sovereignty or
decentralized and these came to be exercised by these three organs of
the government: Legislature, Executive and Judiciary. Supreme power
of the State. All persons, organizations, associations, institutions and
places located within its territory are under the sovereign jurisdiction
of the State.
Further, it must be noted that the territory of the state includes not only
the land but also, rivers, lakes, canals inland seas if any, a portion of
coastal sea—territorial waters or maritime belt, continental shelf,
mountains, hills and all other land features along with the air space
above the territory.
The territory of the state can also include some islands located in the
sea. For example Andaman & Nicobar and Daman and Diu are parts of
India. State exercises sovereignty over all parts of its territory. Ships of
the State are its floating parts and Aero-planes are its flying parts.
Even a States can lease out its territory to another State e.g. India has
given on lease the Teen Bigha corridor to Bangladesh.
3. Government (Politically organized): Government is the organization
or machinery or agency or magistracy of the State which makes,
implements, enforces and adjudicates the laws of the state. Government
is the third essential element of the State. The state exercises its sovereign
power through its government.
This sometimes creates the impression that there is no difference
between the State and Government. However it must be clearly noted
that government is just one element of the State.
It is the agent or the working agency of the State. Sovereignty belongs
to the State; the government only uses it on behalf of the State.
Organs of political organization:
a. Legislature—which formulates the will of State i.e. performs
law-making functions;
b. Executive— enforces and implements the laws i.e. performs the
law-application functions; and
c. Judiciary—which applies the laws to specific cases and settles
the disputes i.e. performs adjudication functions.
Government as a whole is the instrument through which the sovereign
power of the State gets used. In ancient times, the King used to perform
all functions of the government and all powers of governance stood
centralized in his hands. Gradually, however, the powers of King got
Each of these three organs of the government carries out its assigned
functions. Independence of Judiciary is also a settled rule. The
relationship between the Legislature and Executive is defined by law
and it corresponds to the adopted form of government. In a
Parliamentary form of government, like the one which is working in
India and Britain, the legislature and executive are closely related and
the latter is collectively responsible before the former.
In the Presidential form, as is in operation in the U.S.A., the legislature
and executive are two independent and separate organs with stable
and fixed tenures, and the executive is not responsible to legislature. It
is directly responsible to the people.
Government is an essential element of State. However it keeps on
changing after regular intervals. Further, Government can be of any
form—Monarchy or Aristocracy or Dictatorship or Democracy. It can
be either Parliamentary or Presidential or both. It can be Unitary or
Federal or of mixture of these two in its organisation and working. In
contemporary times every civilized State has a democratic representative,
responsible transparent and accountable government.
4. Sovereignty: Sovereignty is the most exclusive element of State. State
alone posses sovereignty. Without sovereignty no state can exit. Some
institutions can have the first three elements (Population Territory and
Government) but not sovereignty.
State has the exclusive title and prerogative to exercise supreme power
over all its people and territory. In fact, Sovereignty is the basis on
which the State regulates all aspects of the life of the people living in its
territory.
Sovereignty has two dimensions: Internal Sovereignty and External
Sovereignty.
i. Internal Sovereignty: It means the power of the State to order
and regulate the activities of all the people, groups and
institutions which are at work within its territory. All these
institutions always act in accordance with the laws of the State.
The State can punish them for every violation of any of its laws.
ii. External Sovereignty: It means complete independence of the
State from external control. It also means the full freedom of the
State to participate in the activities of the community of nations.
Each state has the sovereign power to formulate and act on the
basis of its independent foreign policy. We can define external
sovereignty of the State as its sovereign equality with every
other state. State voluntarily accepts rules of international law.
These cannot be forced upon the State. India is free to sign or
not to sign any treaty with any other state. No state can force it
to do so. No State can really become a State without sovereignty.
India became a State in 1947. When it got independence and
sovereignty. After her independence, India got the power to
exercise both internal and external Sovereignty. Sovereignty
permanently, exclusively and absolutely belongs to the State.
End of sovereignty means end of the State. That is why
sovereignty is accepted as the exclusive property and hallmark
of the State. These are the four essential elements of a State. A
State comes to be a state only when it has all these elements.
Out of these four elements, Sovereignty stands accepted as the
most important and exclusive element of the State. No other
organization or institution can claim sovereignty. An institution
can have population, territory and government but not
sovereignty. Andhra Pradesh, Tamil Nadu, Orissa, Punjab, Sikkim,
in fact all states of the Indian Union have their populations,
territories and governments.
These are also loosely called states. Yet these are not really
states. These are integral parts of the Indian State. Sovereignty
belongs to India. Sikkim was a state before it joined India in
1975. Now it is one of the 28 states of India. UNO is not a state
and so is the case of the Commonwealth of Nations, because
these do not possess sovereignty. SAARC is not a state. It is
only a regional association of sovereign states of South Asia.
India, China, U.S.A., U.K., France, Germany, Japan, Australia,
Egypt, South Africa, Brazil, Argentina and others such countries
are States because each of these possesses all the four essential
elements of state. The presence of all these four elements alone
vests a State with real statehood.
No other organization or institution can claim sovereignty. An
institution can have population, territory and government but
not sovereignty. Andhra Pradesh, Tamil Nadu, Orissa, Punjab,
Sikkim, in fact all states of the Indian Union have their
populations, territories and governments.
These are also loosely called states. Yet these are not really
states. These are integral parts of the Indian State. Sovereignty
belongs to India. Sikkim was a state before it joined India in
1975. Now it is one of the 28 states of India. UNO is not a state
and so is the case of the Commonwealth of Nations, because
these do not possess sovereignty. SAARC is not a state. It is
only a regional association of sovereign states of South Asia.
Q. 10. Define various kinds of State under International Law?
Ans. Kinds of State:
• Federal states and confederations
• Protected and vassal states and protectorates
• Condominium
• Trust territories
• Neutralised states
• Visual states
• Protectorates
1. Federal states and confederations: Mainly characterized by a
constitutional division of sovereign competences between the federal
or central authority on the one hand and the authorities of the federated
entities on the other hand.
2. Confederations: Confederations are voluntary associations of
independent states. Reasons for voluntary association may be to secure
some common purpose and agree to certain limitations on their freedom
of action and establish some joint machinery of consultation or
deliberation. It lacks effective executive authority and also lacks viable
central governments. Member states typicallyretain their separate
military establishments and separate diplomatic representation members
are generally accorded equal status right of secession from the
confederation. It is first step toward the establishment of a national
state, usually as a federal union.
Illustration: Federal union of modern Switzerland - From confederation
of the Swiss canton and the federal constitution of the United States –
From The government of the Articles of Confederation. Confederations
have also replaced more centralized arrangements.
Illustrations: The British Commonwealth Protectorate sates. It is a
relation between two States. It happens that a weak State surrenders
itself by treaty into the protection of a strong and mighty State
Surrendering state transfers the management of all its more important
international affairs to the protecting State. Through such treaty an
international union is called into existence between the two States this
relation between the protected and protecting states is called
protectorate. The protecting State is internationally the superior of the
protected State; The protected state loses its full sovereignty and is
henceforth only a half-Sovereign State. Generally speaking, protectorate
may called a kind of international guardianship.
3. Neutralised state: A neutralized State is a State whose independence
and integrity are for all the future guaranteed by an international
convention of the Powers. Such State binds itself never to take up arms
against any other State except for defense against attack. They never
to enter into such international obligations as could indirectly drag
them into war.
4. Condominium state: In terms of international law, condominium refers
to territory that is governed by multiple sovereign powers who have
formally agreed to share duties without necessarily dividing the area
into national zones.
Regarding international law, “condominium” refers to territory that is
governed by multiple sovereign powers who have formally agreed to
share duties without necessarily dividing the area into national zones.
Despite the recognition of a condominium as a theoretical possibility,
the idea has been rare in practice. Complications often arise in regards
to maintaining mutual collaboration between countries. If the mutual
understanding fails, the situation then most likely becomes untenable.
The recording for the term condominium in English dates back to 1714.
Examples of Current Condominia: Throughout history, many
condominia have been established in different places throughout the
world. Germany, Austria, and Switzerland consider themselves as
holders of a triple condominium over Lake Constance’s main part.
However, there exists no international treaty that establishes where the
three countries have their borders around Lake Constance. Germany
and Luxembourg hold a condominium over the Moselle River together
with its tributaries and the Our and Sauer. The condominium also
includes the tip of an island that is located near Schengen, 15 river
islands of different sizes and bridges. The condominium between the
two countries was established through a treaty in 1816. The Brock
District which is located in Bosnia and Herzegovina holds a
condominium between Republika Srpska and the Federation of Bosnia
and Herzegovina. Honduras, Nicaragua and El Salvador hold a
tridominium regions of the Gulf of Fonseca together with the territorial
sea beyond its mouth. Pheasant Island, which is also known as
Conference Island, is located in the River Bidassoa and forms a
condominium which was established in 1659, through the Treaty of the
Pyrenees.
Examples of Proposed Condominia: Following years of dispute, the
Danish and Canadian governments came close to declaring Hans Island
a condominium. However, another alternative was proposed which
involved dividing the island in half, but negotiations still continued.
There has been a hypothetical condominium proposed between
Palestine over Jerusalem. However, the condominium was to be within
the Palestinian independence framework. During a proposal for the
Partition of Belgium, Wallonia and Flanders held a condominium over
Brussels. There are plenty of other proposed condominia that are yet
to be confirmed. In terms of international law, condominium refers to
territory that is governed by multiple sovereign powers who have
formally agreed to share duties without necessarily dividing the area
into national zones.
5. Visual State: A vassal state is one which is completely under the control
of another state. While enjoying a certain amount of autonomy in the
management of domestic affairs, with respect of foreign affairs, such
states are controlled and directed by the protecting state.
6. Protectorates: In the case of a protectorate, a weak state seeks the
protection of a strong state by the conclusion of a treaty, with the
result that the important international business is left to the protecting
state. The protecting state exercises a varying measure of control over
the external relations of the weak state depending upon the provisions
of the treaty. Oppenheim calls the relationship a kind of international
guardianship.
Q. 11. State the various modes of acquisition of State territory?
Ans. Modes of Acquisition: There are various modes of acquisitions:
1. Occupation
2. Annexation
3. Accretion
4. Prescription
5. Cession
6. Lease of state territory
7. Adjudication or award
8. Pledge of state Territory
9. Acquisition by newly emerged State
10. Plebiscite
1. Occupation: This is the first method of acquiring territorial sovereign.
This is an act of appropriation by a state through which it internationally
acquires sovereigntyover such territory as is at the time not under the
sovereignty of another state. Thus a territory acquired by a state must
be in the state of’Resnullis’ (Things belonging to none) in the sense
that it is either uninhabitted or occupied by uncivilized people or by a
tribal organization which cannot be calld a state.
In Eastern Greenland case it was laid down that occupation, to be
effective, requires 2 elements:
a. An intentional will to act as sovereign.
b. The adequate exercise or display of sovereignty
In this case the Eastern Greenland was disputed between Norway and
Denmark, but Denmark was able to prove that it had intentional will to
act as a sovereignty ad had adequately exercised or displayed
sovereignty over the Eastern Greenland
2. Annexation: By the term annexation it meant the forcible acquisition of
territory by one state at the expense of another. This mode is resorted
under 2 circumstance:
a. Where the territory annexed is conquered or subjugated by the
annexing state;
b. Where the territory annexed is in a position of virtual
subordination to the annexing state at the time the latter’s
intention of annexation is declared.
3. Accretion: A state acquires territory by accretion when new land is
formed within its existing territorial limits; the sea recedes, a river dires
up an island appears within the territorial sea. These acquisitions seldom
result in either significant additions of territory or in controversy. It can
be defined as the increa of land through new formations.
In the case of the Anna where a new island arose, relating to the capture
of a Spanish vessel by a British privateer. The US claimed that the
vessel was captured within the American maritime belt. Lord Stowell
upheld this claim on the ground that the vessel was captured beyond
three miles of the continental coast bit within the 3 miles of some mud
island which were formed within American maritime belt.
4. Prescription: Under the municipal Law, title is created by prescription
and even the adverse possession ripened by prescription gives a
good title to the possessor. It arises out of long continued possession
where no original source of propriety right can be shown to exist or
where possession in first instance being wrongful, the legitimate
proprietor has neglected to assert his rights or has been unable to do
so.
A treaty of 1987 by which the boundary dispute between Great Britain
and Venezuela prescribed a period of fifty years for acquisition of title
be prescription. But this is not followed in practice generally by all
states.
5. Cession: If a sovereign state surrenders some portion of its territory to
another sovereign state is called cession. It is the transfer of sovereignty
over state territory by the owner state to another state. Cession takes
place by an agreement and ordinarily the territories added under the
terms of a treaty.
The sale of Alaska by Russia to USA in 1897 and Great Britain in 1891
are the examples of voluntary cession. Compulsory cession is illustrated
by the cession to Germany by France in 1871 of Alsace-Lorraine
subsequently returned to France at the end of the First World War.
6. Lease of state territory: A state is entitled to lease its territory to
another State for a term of years. This mode is of a recent origin and
materially differs from lease of the private law. Apart from the element
of coercion in their negotiation it would seem that the sovereignty of
the lessor state over the territory was more nominal than real.
7. Adjudication or award: This occurs where a conference of a victorious
power at the end of a war assigns territory to a particular state in view
of a general peace settlement Redistribution of Europe at the Versailles
Peace Conference 1919 is an instance in point.
8. Pledge of state Territory: A state is also entitled to take loan on the
security of its territory or part of it. History evidences numerous cases
of pledges of states territories.
9. Acquisition by newly emerged State: A newly emerged state can acquire
territorial sovereignty only when it becomes independent Bangladesh
in 1971, and Yugoslavia split into 3 countries
10. Plebiscite: It means an expression of will by direct vote of a whole
people or community. East and a public issue, especially one concerning
change of government or constitution. West Germany were united by
this mode of acquisition.
Modes of losing territory:
1. Cession: The acquisition of territory by one state is loss to the other.
the act of cession may be in the nature of gift, sale, exchange or lease.
2. Operation of nature: A state may lose territory by operation of nature
for e. g. by earthquake, a coast of the sea a Island may altogether
disappear.
3. Subjugation: As a state may acquire territory through annexation, the
other state may lose it through subjugation.
4. Revolt: When a new state takes birth in consequences of revolution or
revolt it would be loss of territory by revolt.
5. Renunciation: Renunciation is a mode of losing territory by
renunciation. it is the very opposite of the occupation which requires
both possession and intention.
6. Independence to a Colony: Granting of independence to a colony is
also a mode of losing imperialist state grants independence to the
areas under its control.
Q. 12. What do you mean by recognition and state its various type?
Ans. Recognition of state: Recognition of state under the International
Legal System can be defined as “the formal acknowledgement or acceptance
of a new state as an international personality by the existing States of the
International community”. It is the acknowledgement by the existing state
that, a political entity has the characteristics of statehood.
Under International Law, recognition of a State can be defined as: A
state acknowledgment or acceptance as an international personality by the
existing State of the international community. The declaration to fulfill certain
essential conditions of Statehood as required by International Law.
International societies are not unchangeable entities rather they depend
upon the ebb and flow of political circumstances. Entities change day by day
and time by time. Their agendas change, their political belief changes, their
government changes etc. Some new entities or insurgents or belligerents
come into existence, they seek their recognition against other .new facts and
questions arise as to whom to give recognition, what are the basic needs or
the rules to get an entity recognized, who can recognize others etc.
Recognition involves consequences on both international and municipal
platforms.
Recognition is a statement by a legal person as to the status in
international law of another real or alleged legal person of the validity of a
particular factual situation. Rights and duties come in handy with recognition.
Any entity which gets recognized has some rights and duties in international
law toward other legal persons and they have to follow some particular set of
rules and regulations. Recognition can be extended to states, governments,
insurgents belligerents.
The identity and number of states belonging to the international
community are by no means fixed and invariable. The march of history produces
many changes. Old states disappear or unite with other states to form a new
state, or disintegrate and split into several new states, or former colonial or
vassal territories may be process of emancipation themselves attain statehood.
Then, also, even in the case of existing states, revolutions occur or military
conquests are effected, and the status of the new governments becomes a
matter of concern to other states, which formerly had relations with the
displaced governments, raising the question of whether or not to engage in
formal or informal relations with the new regimes, either by recognition of new
government is not followed, solely by some kind of intercourse. These
transformations raise problems for the international community, of which one
is the matter of recognition of the new state or new government or other
change of status involved. At some time or other, this issue of recognition has
to be faced by certain states, particularly if diplomatic intercourse must
necessarily be maintained with the states or governments to be recognised.
The recognition of a state under international law is a declaration of
intent by one state to acknowledge another power as a “state” within the
meaning of international law. Recognition constitutes a unilateral declaration
of intent. It is entirely at the discretion of any state to decide to recognize
another as a subject of international law. Recognition also constitutes a
declaration by a state that in its opinion the country it has recognized must be
regarded as a “state” within the meaning of international law, and hence also
as a subject of international law.
Kelson’s view on the recognition of states: For a state to be recognized
the following conditions must be fulfilled-
• Must be politically organised.
• Have control over definite territory.
• Must be permanent.
• Must be independent.
Essentials for recognition as a state:
Under the International Law, Article 1 of the Montevideo Conference,
1933 defines the state as a person and lays down following essentials that an
entity should possess in order to acquire recognition as a state:
1. It should have a permanent population.
2. A definite territory should be controlled by it.
3. There should be a government of that particular territory.
4. That entity should have the capacity to enter into relations with other
states.
Legal Effects of such recognition: When a state acquires recognition,
it gains certain rights, obligations and immunities such as.
1. It acquires the capacity to enter into diplomatic relations with other
states.
2. It acquires the capacity to enter into treaties with other states.
3. The state is able to enjoy the rights and privileges of international
statehood.
4. The state can undergo state succession.
5. With the recognition of state comes the right to sue and to be sued.
6. The state can become a member of the United Nations organisation.
Process of Recognition:
• State is not only an institution with international legal standing but
they are the primary subjects of International Law and possess the
greatest range of rights and obligations.
• Mixture of fact and law and the establishment of particular factual
conditions and compliance with relevant rules are the process of creating
new States.
• States are not bound to recognise new claimants of Statehood and
make it a positive duty to recognize a State.
• Recognition is mainly a matter of intention.
Israel-Palestine Dispute:
In this dispute India did not recognize Israel till 1999 and also South
Africa till 1991 due to racism. Even though India got military support from
Israel, still it didn’t recognise Israel. Where both the countries had all the
parameters under Montevideo Convention.
But Palestine got limited recognition by countries because they had
large number of Zewish population.
China-Taiwan Dispute:
In this dispute 15 countries recognised Taiwan as a state all over the
world. Taiwan was officially known as the Republic of China and is recognised
by 19 member states of the UN. Other countries have business relations with
Taiwan but they don’t recognise it as a state. Taiwan unofficially maintains
diplomatic relations with 57 other members of the UN.
Political Recognition of State:
• Political act in recognition is used to support or to reject a state or a
government which is new in an international community.
• Mixture of fact and law and the establishment of particular factual
conditions and compliance with relevant rules are the process of creating
new States.
• Criteria of Statehood is laid down in the Montevideo Convention, which
provides that State must have a permanent population, a defined
territory and a government and the capacity to conduct International
relations.
• Recognition of State is a political act based on interest and assessment
made by States individually, but legal arguments are important.
Forms of Recognition: When a newly formed state is recognized, its
declaration can be made in two forms:
1. Expressed Recognition: When an existing state recognizes a new state
expressly through official declaration or notification, it is considered to
be the expressed form of recognition. Express recognition can be made
through any express or formal means such as sending or publishing
declaration or statement to the opposite party. When a state is
recognized by expressed ways, it is a de jure recognition unless provided
otherwise by the recognizing state in the declaration.
2. Implied Recognition: When the existing state recognizes a newly formed
state through any implied act, then it is considered as an implied
recognition. Implied recognition can be granted through any implied
means by which a current state treats the newly formed state as an
international person. The implied credit not granted through any official
notification or declaration. The recognition through implied means varies
from case to case.
3. Conditional recognition The recognition of state with which certain
conditions are attached in order to obtain its status as a sovereign
state is conditional recognition. The conditions attached vary from
state to state such as religious freedom, the rule of law, democracy,
human rights etc. The recognition of any state is already associated
with the essential conditions to be fulfilled for the status of a sovereign
state but when addition condition is attached it is conditional
recognition.
Criticism: Many jurists criticize conditional recognition. The conditional
recognition is criticized on the ground that recognition is a legal
procedure, and no additional conditions should be attached with it
other than the conditions recognized by law. Another reason for criticism
is that the recognized state if it does not fulfill the condition attached
for its recognition, recognition is not extinguished and it should still be
valid.
Modes of Recognition:
1. De Facto Recognition: When an existing State considers that the
new State has not acquired sufficient stability, it may grant
recognition to the latter provisionally which is termed as de facto
recognition. According to Prof.G.Schwarzenberger, “When a state
wants to delay the de jure recognition of any state, it may, in first
stage grant de facto recognition.” The reason for granting de facto
recognition is that it is doubted that the state recognized may be
stable or it may be able and willing to fulfil its obligations under
International Law. De facto recognition means that the state
recognized possesses the essentials elements of statehood and is
fit to b e a sub j ect o f I nterna tio nal La w. Accordi ng to
Prof.L.Oppenheim, “The de facto recognition of a State or
government takes place when the said State is free state and enjoys
control over a certain fixed land but she is not enjoying the stability
at a deserved level and lacking the competence to bear the
responsibility of International Law.” In view of the Judge Phillips
C Jessup, “De facto recognition is a term which has been used
without precision when properly used to mean the recognition of
the de facto character of a government; it is objectionable and indeed
could be identical with the practice suggested of extended
recognition without resuming diplomatic relations.” The de facto
recognition is conditional and provisional. If the state to which De
Facto recognition is being given is not able to fulfil all conditions of
recognition then that recognition is withdrawn.
2. De Jure Recognition: De jure recognition is granted when in the opinion
of recognizing State, the recognized State or its Government possesses
all the essential requirements of statehood and it is capable of being a
member of the International Community. Recognition de jure results
from an expressed declaration or from a positive act indicating clearly
the intention to grant this recognition such as the establishment of
diplomatic relations. According to Phillips Marshall Brown, “De jure
recognition is final and once given cannot be withdrawn, said intention
should be declared expressly and the willingness is expressed to
establish political relations.”
Distinction between De Facto and De Jure Recognition:
Whatever the basis for the distinction between de jure and de facto
recognition, the effects of the two types are mostly the same. Nevertheless,
there are certain important differences between these two types, which are:
1. Only the de jure recognized State or government can claim to receive
property locally situated in the territory of the recognizing State.
2. Only the de jure recognized State or government can represent the old
State for the purposes of State succession or with regard of espousing
any claim of its national for injury done by the recognizing State in
breach of International Law.
3. The representatives of the de facto recognized state or government
may not be entitled to full diplomatic immunities and privileges.
Whatever the type of recognition, once given may in certain
circumstances be withdrawn. Actually, this is more easily done with regard to
de facto recognition than to de jure recognition, because of the nature of the
former one, which is temporary. De facto recognition is intended to be a
preliminary acceptance of political realities and may be withdrawn in
accordance with a change in political conditions. When a de facto government
loses its effective control over the country, the reason for recognition
disappears and it may be withdrawn. De jure recognition, on the other hand,
because it is intended to be generally a definitive act, it is more difficult to be
withdrawn. Because recognition is essentially a political act, no matter how
circumscribed or conditioned by the law, a State has a discretionary power to
determine whether a particular situation justifies a withdrawal of recognition
and to take such action if it serves its national interests.
In Luther v. Sagor,1921 “It was held that there is no distinction between
de facto and de jure recognition for the purpose of giving effect to the internal
acts of the recognized authority.”
Bank of Ethopia v. National Bank of Egypt and Liquori, 1937, The
court held that in view of the fact that the British government granted
recognition to the Italian Government as being the de facto government of the
area of Abyssinia which was under Italian control, effect must be given to an
Italian decree in Abyssinia dissolving the plaintiff bank appointing liquidator.”
De Facto Recognition De jure Recognition
De Facto recognition is temporary De Jure recognition is a permanent
and factual recognition. and legal recognition.
De Facto recognition is granted to De Jure recognition is granted to a
a State when it fulfills the essential State when all the essentials are
conditions of State. fulfilled along with the permanent
control of that essentials.
De Facto recognition is the primary De Jure recognition can directly be
step to grant De Jure recognition. granted without De Facto
recognition.
De Facto recognition can easily be De Jure recognition can never be
revoked. revoked.
The States having De Facto recognition The States having De Jure
cannot enjoy diplomatic immunities. recognition can enjoy diplomatic
immunities.
The States having De Facto recognition The States having De Jure
have only few rights and obligations recognition have absolute rights and
against other States. obligations against other States.
Q.13. Discuss the theories of recognition?
Ans. Theories of recognition: The recognition of a new entity as a
sovereign state is based on two main theories:
• Consecutive Theory
• Declaratory Theory
1. Consecutive Theory: The main exponents related to this theory are
Oppenheim, Hegal and Anziloti.
According to this theory, for a State to be considered as an
international person, its recognition by the existing states as a
sovereign required. This theory is of the view that only after recognition
a State gets the status of an International Person and becomes a
subject to International Law. So, even if an entity possesses all the
characteristics of a state, it does not get the status of an international
person unless recognised by the existing States.
This theory does not mean that a State does not exist unless recognised,
but according to this theory, a state only gets the exclusive rights and
obligations and becomes a subject to International Law after its
recognition by other existing States.
The constitutive theory states that recognition is not automatic. Rather,
it is based on the discretion of other states. Moreover, only upon
recognition by those other states does the new state exist, at least in a
legal sense. Some practice in contemporary situations may evidence
the application of the constitutive theory rather than the declaratory.
Numerous classical scholars have weighed in support of the
constitutive theory. Many modern scholars are beginning to reexamine
the constitutive theory, considering whether it provides a firmer
foundation for the determination of statehood status
Criticism of the theory: The constitutive theory, however, also has
its criticisms. Many states and scholars assert that the declaratory
theory, not the constitutive theory, predominates in practice. There is
no evidence to suggest that states regard unrecognized states as
terra nullius. Thus, there must be some international legal personality
in the territory concerned that does not lapse or that predates
statehood. Regardless of international recognition, a purported state
might exercise state authority over its residents without regard to the
position of other states, even if the other states do not believe the
purported state fulfills the criteria for statehood. From a theoretical
point of view, the constitutive theory is not attractive in that it permits
states to ignore the facts, i.e. the existence of a state, acting as such
and acknowledged as such by the nationals and perhaps neighbors
thereof. There is a need for the law to reflect facts, and any other
conclusion results in the assignment of recognition to the purely
political process rather than a justiciable rights-based process. This
objection to the theory is compounded by the constitutive theory’s
subjective nature and potential inconsistency with other states’
determinations, resulting in uncertainties about which entities may
be universally regarded as states.
Further, on an ethical level, it is questionable whether other, existing
states should be the gatekeepers to the international plane. Some have
argued that the declaratory theory emerged because of objections to
the discretion of states, as well as a principled acknowledgment of the
role of self-determination. Larger, more powerful states that are secure
in their recognition may use recognition as a tool for their continued
domination of other states.
This theory has been criticised by several jurists. Few of the criticisms
of this theory are:
• This theory is criticised because unless a state is recognised by
other existing states, rights, duties and obligations of statehood
community under International Law is not applicable to it.
• This theory also leads to confusion when a new state is
acknowledged and recognised by some of the existing states
and not recognised by other states.
Oppenheim’s View on Recognition of State:
• A State is and will only be an international person if recognised
as extraordinary. There is no agreement that countries have to
give recognition to a State, there is no obligation on the countries,
obligation lies under international law who will give recognition
to a new State.
• Existing countries recognised a country as a member of the
international community and believe that the State meets the
requirements of international law outside the country.
2. Declaratory Theory: The main exponents of the Declaratory Theory of
Statehood are Wigner, Hall, Fisher and Brierly. According to this
theory, any new state is independent of the consent by existing states.
This theory has been laid down under Article 3 of the Montevideo
Conference of 1933. This theory states that the existence of a new state
does not depend on being recognised by the existing state. Even before
recognition by other states, the new state has the right to defend its
integrity and independence under International law.
The followers of theory consider the process of recognition as merely
a formal acknowledgement of statehood by other states.
The declaratory theory looks to the purported state’s assertion of its
sovereignty within the territory it exclusively controls to determine if it
can access the international plane. Recognition should be automatic
based on specified criteria because the status of statehood is based on
fact, not on individual state discretion. The majority of contemporary
scholars and commentators favor this theory
Criticism of the theory: There are criticisms of this theory. State practice
may not support it. States also do not acquire international rights on
the international plane until they are recognized. The fact that
recognition vests recognized states with rights changes the expectations
on the state and may encourage choices that are more conducive to
peace. In addition, the declaratory theory may undermine the principle
that international law is the law made by states. Even if the theory were
not, in itself, objectionable on this ground and was followed
unanimously by states, other difficulties with the theory include the
selection of the criteria to apply, the instability and unpredictable nature
of competing versions of criteria, the application of those criteria, the
hypocrisy in applying different criteria to different states, and the
legitimacy of some proposed criteria. These issues may lead one to
wonder whether the declaratory theory constrains the discretion of
states to an appreciable degree
The declaratory theory of statehood has also been criticised. This theory
has been criticised on the ground that this theory alone cannot be
applicable for recognition of a state. When a state having essential
characteristics comes into existence as a state, it can exercise
international rights and obligations and here comes the application of
declaratory theory, but when other states acknowledge its existence
and the state gets the legal rights of recognition, the consecutive theory
comes into play.
Q. 14. What are the theories of State Succession and circumstances
of State Succession?
Or
Explain the types of State Succession.
Ans. Theories of State Succession: The theories of State Succession
are as follow:
1. 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:
a. 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.
b. 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.
2. 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: lt 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 been criticised 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.
3. 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.
4. 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.
5. 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 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.
6. 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.
Circumstances of State Succession: 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:
1. 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.
2. 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.:
• 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.
Q.15. What do you mean by Law of Extradition?
Or
Write a short note on Extradition?
Or
Explain this statement “Extradition start when asylum ends”
Ans. Generally, each state is having jurisdiction all over the persons
residing in their territory but sometimes there may be cases when a person
after committing a crime may move or run to any other country for saving
himself. In such condition, the country from where the person has escaped
finds itself helpless to exercise jurisdiction to punish the guilty person. This
situation is very crucial for determining peace and order. In such cases, peace
and order can be maintained in the country when there will be an international
co-operation between the countries. As it is a social principle to punish the
offenders, therefore, the principle of extradition has been recognized as if
there will be no such kind of cooperation among countries then it will be
difficult for exercising jurisdiction in other countries and punishing the
offenders for their offences.
Definition of Extradition: According to Starke-The term extradition
denotes the process whereby under the treaty or upon a basis of reciprocity
one state surrenders to another state at its request a person accused or
convicted of a criminal offence committed against the laws of the requesting
state, such requesting state is competent to try the alleged offender.
According to Grotius-It is the duty of each state to punish the criminals
or to return them to the states where they have committed the crime.
From the above definitions we can conclude that by process of
extradition the offenders can be punished easily either they ran to any other
country just to save themselves, as it is the duty of each state to punish the
criminals, therefore, various laws and treaties are made or are being formed for
dealing with such cases and situations easily.
Purpose of Extradition: The purpose of extradition is to prevent crimes
and to punish the criminals who have escaped from their punishment and
started to reside in another country. As we know it would be easier for the
country to punish the offender where he had committed the offence and it
would be easy to gather evidence against him for that particular offence even
if the country is unable to punish him due to technicalities of law or lack of
jurisdiction then he can be taken back to home country through the process
of extradition. Thus the object of the process of extradition is to prevent and
reduce the crimes in the international field. Thus the role of extradition is to
prevent crimes and punish criminals as it is the interest of all countries to
punish the criminals and prevent the crimes because the country in which a
person of criminal character resides, it is in the interest of such country to
ensure extradition of such a person but it also depends on bilateral treaty and
upon the principle of reciprocity but where there is no treaty or agreement
then the country can request the other country where the offender is residing
to extradite the fugitive or offender and it is in the interest of security and law
and order of such country to extradite the accused.
In view of the increasing crimes in the international field in recent
years, the importance and prevalence of the extradition have increased. In
recent years, the provisions relating to extradition find mention in international
treaties. The universal recognition of human rights has enhanced the
prevalence and importance of extradition. International cooperation is most
essential in cases of extradition because there is hardly a country which has
an extradition treaty with all the other countries of the world.
Essential conditions of granting extradition or restrictions on
surrender:
1. Non-Extradition of Political Criminal-it is one of the important
principles of the international law that extradition for political crimes
is not allowed. Most of the countries refuse to extradite the person
charged for political crime i.e. to say crime committed for political
purposes or crimes that are politically motivated. The practice of
non-extradition for political crimes began in the French period of
1789 in the present period also most of the states find it difficult to
deal with this problem as there is not a proper definition of this
offence.
2. Rule of Specialty-An accused is extradited for a particular offence and
the country which requests the extradition is entitled to prosecute that
person only for the crime for which he was extradited i.e. he cannot be
punished for any other offence but can only be punished for the offence
for which he is being extradited.
3. Double criminality-The crime for which request is made by the country
for extradition that must also be a crime in the country from where the
accused is being extradited.
4. Formalities-For the purpose of extradition of a person the prescribed
formalities must be fulfilled between both the countries.
Law of Extradition:
In International law, rules regarding extradition are not well established
mainly because extradition is a topic that does not come exclusively under the
domain of international. The Law of extradition is dual law. It has operation
national as well as international. Extradition or non-extradition of a person is
determined by the municipal courts of a State, but at the same time, it is also a
part of international law because it governs the relations between two States
over the question of whether or not a given person should be handed over by
one state to another.
This question is decided by the national courts but on the basis of
international commitments as well as the rules of international law relating to
the subject.
A number of attempts have been made to conclude a convention governing
extradition request among nations. In 1935, the Harvard Law School prepared
a draft convention on the subject. The International Law Associated has also
considered legal problems relating to extradition in the Conference held in
Warsaw.
In 1928 the Draft Convention on extradition was approved but nothing
has materialized in concluding a universal convention on extradition.
International Law Commission has also not yet taken the topic for its
consideration for codification despite the inclusion of the topic of extradition
in 1949, in its provisional list of fourteen topics for its codification. It is desirable
if a multilateral convention is concluded so that general rules of International
Law may be settled regarding extradition.
Bilateral treaties, national laws of several States, and the Judicial
decisions of municipal courts led to developing certain principles regarding
extradition which are deemed as general rules of International Law. Important
amongst them are as follows:
1. Extradition Treaties: the first and foremost condition of extradition is
the existence of an extradition treaty between the territorial state and
requesting state. Some states such as the United States, Belgium, and
the 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 cooperation in the suppression of
crimes. Since extradition treaties are politically sensitive and require
careful and lengthy negotiations, States have few extradition treaties
and the criminal can usually find a safe haven- that is a state which
requires a treaty for extradition and has no such treaty with the State
within whose jurisdiction the crime was committed. it is therefore
desirable that states conclude extradition treaties with as many States
as possible to suppress the crime.
2. Extradition of Political Offenders: it is a customary rule of International
law that political offenders are not extradited. In other words, they are
granted asylum by the territorial state.
3. The doctrine of Double Criminality: the doctrine of double criminality
denotes that a crime must be an offense recognized in the territorial as
well as in the requesting state. No person is extradited unless this
condition is fulfilled.
4. Rule of Speciality: according to this principle, a fugitive may be tried
by the requesting state only for that offense 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 offense than that for
which he has been extradited unless he has given an opportunity to
return to the territorial state. The rule has been made to provide
safeguard to the fugitives against fraudulent extraditions.
5. Time-barred crimes: a fugitive criminal shall not be surrendered if he
has been tried and has served sentence for the offense committed in
the territorial state. Thus, extradition is not granted if the offense for
which extradition has to be made has become time-barred.
6. Extradition of own Nationals: In many cases, a person after committing
a crime in a foreign country flees back to his own country. Whether the
State should extradite such persons, i.e., its own nationals, to a state
where crime has been committed is a controversial point and practice
of states considerably differs on it. Many counties such as the
Netherlands, Belgium, Italy, Germany, Switzerland, and France have
adopted a principle for not extraditing own nationals to a foreign state.
Case Laws of Extradition:
1. Re Castioni Case ([1891] 1 QB 149): In the last decade of the
nineteenth century a leading case was decided by the British Court i.e;
Re Castioni. In this case, Castioni who had returned to Switzerland
from abroad joined the revolutionary movement in the Canton of Ticino
(Switzerland), and in the course of it, he committed the murder of Rossi,
a member of the Government.
It was pleaded on behalf of Castioni in the writ of habeas corpus that
his offense was a political offense for which extradition was not available.
He claimed protection under section 3 of the Extradition Act, 1870.
Lord Denman, J. laid down that in order to bring the case within the
scope of the Act, and for an offence to be political, it must at least
be shown that the act is done in furtherance of, done with the
intention of assistance, as a sort of overt act, in course of acting in
a political matter, apolitical rising, or the dispute between two parties
in the State as to which is to have the Government in its hands. His
extradition was refused on the finding that his motive for the act
was political.
2. Abu Salem’s Extradition Case: India does not have any extradition
treaty with Portugal. However, when Abu Salem, an accused in 1993
Mumbai blast and an underworld don fled to Portugal along with his
wife Monica Bedi, Portugal, in the absence of a treaty, extradited Abu
Salem to India after latter gave an assurance that he would not be given
a death sentence.
Later, the High Court, of Portugal passed an order on July 14, 2004,
along with reasons for his extradition to India. His wife has also been
extradited to India.
United States v. Raucher (1886): In this case wherein the accused was
extradited on the charge of murder, but he was tried and convicted in
the USA, 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 United States
which quashed the conviction and ordered the release of the prisoner
on the ground that unless otherwise provided for by the treaty, the
prisoner could not be charged with the offense for which he was
extradited unless he was given a reasonable time to return to the country
which surrendered him.
3. Dalai Lama’s Asylum: India in the year 1959 gave territorial asylum to
the Dalai Lama and his followers who were oppressed by the repressive
policies of China.
Although their asylum was criticized by China on the ground that India
by granting asylum has interfered in its internal affairs, India was
competent enough to do so because of the principle of territorial
sovereignty. The grant of asylum should not be considered an
unfriendly act by China.
The Objective of Extradition:
1. The first objective of extradition is to dispose of crimes and to furnish
the criminal. Normally, the criminal in order to save himself from
prosecution and punishment runs away to other country where neither
there is any proof nor can be prosecuted and punished. This is the
reason that criminal is extracted to a country where he has committed a
crime
2. The other objective of extradition is to give the warning and keep the
criminal terrified that he cannot save himself from punishment by
running away or taking asylum in another country.
3. Extradition also protects the interests of territoral state because if there
is no extradition then, criminals would like to run away such state and
the state would become the shelter place for such criminals.
4. Extradition strengthens the spirit of mutual cooperation because the
state which delivers the criminal, may also make demand for delivery of
any criminal in future.
5. By extradition, the trial of criminal becomes easy and evidences can be
collected easily.
Rules of Extradition: In International Law certain rules of extradition
have been framed; the rules are based on judicial decision in various cases.
The extradition can be made subjected to these rules, otherwise not. In other
words, it can be said that for extradition, the compliance of these rules is very
necessary. The following are the main rules of extradition:
1. Extradition depends upon bilateral treaty or there must be bilateral
treaty for extradition between both the parties.
In this regard, Tarasov Extradition (IJIL volume 3, No. 3 July 1963 P.
325) is a good case. It has been said in this case that “for extradition,
there should not only be agreement but there should be a formal treaty.”
2. Normally, there is no extradition for political criminals. It has become
well established rule of International Law that “political criminals are
not subject of It has become a well established rule of International”.
According to Edward Collins, “Most of the states are not willing to
deliver such persons whose crimes are motivated for political objectives
and the courts have always fill difficulty in applying laws relating to
political criminals. The major difficulty extradition.” is to define political
criminals.
In this regard ‘Re Meunier [(1894) 2 QB 415] is a good case in which
the efforts have been made to define political crime. According to this
any crime can be said to be political crime when there are at least two or
more than two political parties and every party wants to form its
Government and if for this purpose, any crime is committed, it is political
crime.
In case of Re Castioni [(1891) 1 Q B 149] the Quins Bench of England,
accepted the crime of Castioni as political crime and refused to deliver
him. In this case, there was a charge of murder of one member of state
council on Castioni. The same condition still exists today. Now most of
the states are not in favour of extradition of political criminals.
3. There is no extradition of criminals engaged in military crimes;
4. Similarly, there is no extradition of persons engaged in religious crimes.
5. Normally, there is no delivery of persons by the states of their own
citizens. But this view has been strongly criticised in Rigini Vs. Wilson
[(1878) 3 Q BD 42] and Dr. Ram Babu Saksena Vs. State (AIR 1995
SC 155) cases.
6. If the extradition of a criminal is made by a state to any other state for a
particular crime then the prosecution of criminal should be made only
for that crime for which he is delivered and not for any other crime. This
rule is known as the Rule of Speciality. In the case of Daya Singh
Lahoria Vs Union 4 India (AIR 2001 SC 1716) it has been held by the
Supreme Court that the criminal courts in the country have no
jurisdiction to try in respect of offences which do not form a part of the
extradition judgement by which he has been brought to this country
and he can be tried only for the offences mentioned in the extradítion
decree.
7. It is also necessary for extradition that the crime for which extradítion
has been made should be a recognised crime of both the states i.e.
extraditing state and for the state which has requested for extradition.
It is known as the Rule of Double Criminality.”
8. The requesting state should have enough evidences regarding the
crime i.e., the act should be such that it appears as crime prima facie.
9. The request should be made by one state to another state for extradition.
Moreover, the other formalities are also required to be fulfilled.
10. Before extradition, all provisions or conditions laid down in the treaty
relating to extradition should have been fulfilled or complied with. In
this regard Savarkar (France Vs. Great Britain decided by the court in
February 1911) is a famous case. In this case, the court has decided
that International Law does not impose any obligation on states if
extradition is made contrary to the provisions of extradition treaty then
the requesting state should be redelivered the criminal to the extraditing
country. This view has been severely criticised.
11. When any charge is levelled against any criminal for committing crime
in a foreign country and demand is made for his extradition then it is
not necessary that the said person should have been present in such
foreign country at the time of commitment of such crime.
The above view has been supported in Rex Vs Godfe [(1923): 1KB 24]
and Mubarak Ali Ahmed Vs State of Bombay (AIR 1957 SC 857).
Therefore, extradition can be made subject to above rules.
Procedure for Extradition: In International Law, no procedure has been
formulated for extradition. Extradition takes place as a result of
extradition treaty between two states and therefore, the treaty rules are
followed while extraditing the criminal.
Extradition and Deportation: Extradition and Deportation both appear
one and same but both differ from one to other, as-
1. While extradition is primarily performed in the interest of the requesting
State, deportation is performed in the exclusive interest of the expelling
State.
2. While extradition of a person takes place only on the request of another
state, expulsion is an order of a State.
3. Extradition needs the consensual co-operation of atleast two states,
whereas deportation is a unilateral action apart from the duty of the
receiving state to accept its own national.
4. Extradition applies to criminal prosecutions and thus suppresses
criminality, expulsion order may be issued to any foreign national on a
number of grounds.
Q. 16. Define War and What are the legal effects of War?
Or
Define War. How far has the right to resort to war been regulated by
the charter of UN?
Ans. War under International Law: With so many countries in the
world and the positive steps of everyone towards globalization, the countries
interact with each other on so many platforms. In this interaction and
competition, it is not possible that there can be no dispute among the nations.
For the settlement of these disputes, various ways are adopted by the nations
and these ways can be divided into peaceful and coercive means. Peaceful
means consist of negotiations, mediation, conciliation, inquiry, arbitration,
judicial settlement, etc and coercive means are retortion, reprisals, embargo,
pacific blockade, intervention. When the countries are not able to solve their
disputes even with coercive means then they may resort to war.
Definitions of War: Various jurists have given different definitions of
war:
In Oppenheim’s words, “war is a contention between two or more
states, through their armed forces, for the purpose of overpowering each
other and imposing such conditions of peace as the victor pleases”.
Starke says that “war in its most generally understood sense was a contest
between two or more states primarily through their armed forces, the ultimate
purpose of each contestant or each contestant group being to vanquish the
other or others and impose its own conditions of peace”.
Important elements of War which can be derived from the above
mentioned definitions are:
• War is a contention or violence between the armed forces.
• There should be two or more than two States which are opposing each
other. When groups within a single state are opposing each other, then
it cannot be termed as a War.
• Thirdly, there is the involvement of armed forces and in war, non
combatants are not made the target.
• The main object behind the war is to overpower each other so that the
winning state can impose its rules on the other state.
Animus Belligerendi: Animus Belligerendi means the intention of the
parties. Whether war is going on between two states or not, depends upon
the intention of those states. When the States contest with each other then it
can be said that they are at war when they have this intention. So the animus
belligerendi of the states can be obtained from the following circumstances:
a. Firstly, when the states declare themselves that they are at war. It is an
instance that shows the express intention on the part of states.
b. Secondly, when the war is not expressly declared then if,
• the states contesting with each other treat it like war or
• the States adopt some ways of force or other actions amounting
to war or
• the third states believe that war is going on between the two
states irrespective of the fact that the states in question treat it
as war or not, then it would be treated as a war.
Declaration of War: Grotius was of the view that declaration of war is
very important before its commencement but in wars that occurred in the 18th
and 19th century it was not followed strictly.
Article I of The Second Hague Convention, 1907 says, “The contracting
powers recognize that hostilities between them must not commence without a
previous and unequivocal warning, which shall take the form either of a
declaration of war, giving reasons, or of an ultimatum with a conditional
declaration of war”.
This provision was taken into account in World War I and the states
commenced war only after giving warnings. Wars between France and Germany,
Austria, and Hungry are examples of declared wars. But this practice was not
followed in World War II.
For example, Germany invaded Poland and Finland in 1939, Denmark
and Norway in 1940, and the Soviet Union in 1941without any prior warning.
The other States too commences hostilities without any warning.
“Campbell vs Clinton” was a case holding that members of Congress
could not sue President Bill Clinton for alleged violations of the War Powers
Resolution in his handling of the war in Yugoslavia. The conflict was between
NATO and Yugoslavia continued for 79 days, ending on June 10 with
Yugoslavia’s agreement to withdraw its forces from Kosovo and allow
deployment of a NATO-led peacekeeping force. Throughout this period
Pentagon, State Department, and NATO spokesmen informed the public on a
frequent basis of developments in the fighting. The appellate court affirmed.
It held appellants had ample legislative authority it could exercise to stop
appellant’s war-making, and thus, appellants lacked the power to challenge
such executive action in court.
Legal Regulations on War: Grotius introduced the concept of “just
war” and imposed certain limitations on the unfettered power of the States to
wage war. According to him war could be resorted provided the rights of
others are not infringed, and consequently, the use of force, which does not
violate the rights of others is not unjust. Even some of the writers of the
nineteenth century made a distinction between “just and unjust wars” and
between “right and wrong wars”. Woosley has asserted that war may be
waged to procure good or prevent evil by force, and just war is an attempt to
obtain justice or prevent injustice by force, or in other words to bring back an
injuring party to a right state of mind and conduct by the infliction of deserved
evil.
• War and the League of Nations: There are certain rules made by the
League of Nations in order to regulate war. Firstly, According to Article
12(1) of the Covenant of the League of Nations, if any dispute arises
between the member states of the League then the report is to be
submitted to arbitration or judicial settlement. Article 12(2) says that no
state will resort to war until three months after the award by arbitrators
or judicial decisions. In case of violation of the above provisions by
any state of League that state would be deemed to have committed the
act of war against the League of Nations.
• War and the Pact of Paris: Pact of Paris, also called Renunciation of
War or the Kellogg-Briand Pact, also made certain provisions with
regard to war. This treaty was signed on August 27, 1928, in Paris.
Article I of the Treaty reads, “the High Contracting Parties solemnly
declare, in the names of their respective peoples, that they condemn
recourse to war for the solution of international controversies and
renounce it as an instrument of national policy in their relations with
one another”. In the same way, Article II contains provisions for
regulating war by stating that all the disputes among the states shall
never be sought except by pacific means. But this Treaty does not
prohibit war in all instances. War is resorted to in cases of self defence
or against non-signatory or other similar circumstances.
• War and United Nations: After the massive destruction in World War
II, the United Nations was established which restricted the member
states to use any kind of force against each other. Article 2 para 4 says,
“all members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence
of any State, or in any other manner inconsistent with the purposes of
the United Nations.” Article 2 para 3 directs every member state to
solve the disputes only through peaceful means.
Effects of Outbreak of War:
• Consular Relations: Consular relations become restrained in case of
Outbreak of war. According to Article 31 of the Vienna Convention on
Consular Relations of 1963, the consular property is immune from
requisition.
• Diplomatic Relations: Like Consular Relations, diplomatic relations
also get ruptured. The Diplomatic agents go to their States when the
war is declared. Article 44 of the Vienna Convention on Diplomatic
Relations of 1961 makes provisions so that the agents can safely leave
the State.
• Treaties: There are no settled provisions in the matter of Treaties
when war occurs. Some jurists say that it breaks all the treaties between
the contesting states but the majority of the jurists are of the opinion
that war does not annul any treaty between the states opposing each
other. It also depends upon the type of treaties. The bilateral treaties
generally are annulled on the outbreak of war but treaties of recognition,
boundary agreements, commercial and administrative treaties are not
annulled completely.
• Enemy Property: In the 18th century, the states used to confiscate
all the enemy property, on the contrary in the 19th century this
practise changed and the outbreak of war impacted the public and
private property differently. Public property is confiscated whether
it be warships or public vessels except anything engaged in
religious or hospital duties. There is no rule that private property
cannot be confiscated but it is considered as a breach of
international law.
• Contracts: There are two types of contracts namely, Executory contracts
and executed contracts. Executory contracts are the ones which were
made before the outbreak of war but were not performed. These contracts
get annulled completely at times of war. Executed contracts are the
ones in which one part has performed the obligation but the other is to
perform. For example, a property was bought by State A from State B
and State A received the property but payment is still due. Now, because
of the outbreak of war this contract will get suspended for sometime
but after the war, it would be treated as a debt.
· Belligerent Subjects on Enemy Territory: The state which is engaged
in war has a right to control the belligerents subjects so that they may
not provide any assistance or confidential information to their state
and they can be detained as Prisoners of War. However, it is a rule
under International Law that non-combatants who cannot be suspected
of providing any secret information to their state should be allowed to
withdraw from the enemy state.
Q. 17. What do you mean by Treaties and what are its various kinds?
Or
What are the Binding force of treaties?
Ans. Definition of Treaty: Article 38(1) of the International Court of
Justice’s statute identifies treaties as a source of law, along with general
principles and customs. Treaties occupy a very eminent position in
international law. They ensure friendly and peaceful relations of states with
one another and are a means by which international organizations take form,
regulate and monitor their affairs. The concept of the treaty has undergone
significant changes over time. In earlier periods, treaties used to be oral and a
ceremony would be held where the parties would conclude it and swear an
oath to God, which used to act as the binding force of the treaty. Now, treaties
must be written and are legally binding between its parties.
Concept of treaty: Treaty in common parlance may be defined as written
agreements between parties, which may or may not be stated, to identify and
follow a set of rules. They may also be referred to as pacts, agreements,
charters, etc. Declarations and political statements are excluded from the scope
of the definition of a treaty.
Treaties have been classified on the basis of many principles. On the
basis of the object, they have been classified as political treaties (including
alliances and disarmament treaties), constitutional and administrative treaties
(e.g. WHO’s constitution, which is responsible for setting up the international
body and to regulate it affairs), commercial treaties (trade and fishery
agreements), criminal treaties (which define certain international crimes and
may require the offender to be extradited), treaties codifying international law,
and treaties for ensuring civil justice.
A country that hasn’t signed the treaty has no obligation to follow its
norms. However, like the ICJ had stated in the North Continental Shelf Cases,
that some treaties may give rise to international conduct, customs and be of
a “fundamentally norm-creating character.” Article 26 of the Vienna Convention
on the Law of Treaties deals with the Latin maxim “pacta sunt servanda”, i.e.
every signatory is to follow the treaty in good faith and is binding upon them.
This forms the basis of every international agreement.
“Reservations” are the way in which a signatory may escape having to
follow all the provisions of the treaty and is a tactic used to become a party by
agreeing to the basic principles of a treaty. However, reservations can only be
made in cases where such reservation is not contrary to the object of the
treaty.
Interpretation of a treaty should be bona fide and the object and purpose
of the treaty needs to be kept in mind while doing so. In case the text is vague,
“travaux preparatories” and other supplementary means of interpretation might
be used. One such method of interpretation of a treaty is adopting a broader-
purpose approach. Contrastingly, a purpose-oriented approach is adopted in
cases where the treaty in question to be interpreted is the constitutional
document of an international organization.
Kinds of treaty:
a. Law Making treaties: The term “law-making” treaty seems to be
confusing, as it raises the question- Can treaties create law? This term
actually refers to the content and the subject matter of a treaty, which
instead of being contractual shall be statutory. The emergence of a
subsisting need of international legal order sparked a newfound interest
in this type of treaty. The need of bringing rules which had statutory
force was felt rather than the existing rules which governed voluntary
legal relations between states. In cases of law-making treaties, the
obligations are independent; they don’t require a subsequent fulfilment
of rules by other parties to it. These obligations have binding force and
the parties to these treaties must follow it. Unlike contracts, treaties
have the power to make new international tribunals, international
waterways, mandates, etc.
These are multilateral treaties which stand for a common cause. A
commentary by Fitzmaurice takes human rights treaties and maritime
regimes as law-making treaties. In the case of a multilateral treaty, this
type of treaty can be broken down and thought of as a number of
bilateral treaties, each of which are independent of one another and
have to follow the obligations inherently. As for bilateral treaties, they
can simply be viewed as dependent on each other as existence. Here,
each party does not join to provide another party something it might
require, but rather to stand for a mutual cause or support a rule binding
on all.
b. Contractual treaties: They are usually applicable to treaties having a
small number of parties and are most commonly seen in bilateral treaties.
These are treaties where parties are mutually dependent on each other
for specific treatment to gain benefits, and have rights and obligations
towards each other. In reality, treaties need to take care of both the
statutory as well as the contractual function. The scope of treaties is
mostly perceived in a contractual framework. Unlike law-making treaties,
which sets out rules for conduct, rights, and duties between parties
which have to take effect on the conclusion of the treaty, contractual
treaties are usually limited to, say, exchange of goods which one state
might not possess and require, or conveyances. Here, one party agrees
to provide the other party something it needs for something else in
return, thereby forming a system like barter.
Types of treaty:
a. Bilateral treaties: Treaties involving two entities are bilateral treaties.
It is not necessary that the treaty can only have 2 parties; there may be
more than two parties, however, there should be only two states
involved. For example, the bilateral treaties between Switzerland and
the European Union (EU) have 17 parties, which are divided into two
parts, the Swiss and the EU and its member states. It is important to
note that by virtue of this treaty, obligations, and rights arise between
the two entities to it, i.e. the EU and the Swiss. This treaty does not
give rise to obligations between the EU and its member states.
b. Multilateral treaties: Treaties between three countries or more are
multilateral treaties. They might be international or domestic. They
give rise to rights and obligations among all the parties, i.e. each
signatory has obligations towards all the other signatories.
Treaties with a higher number of participating states gain more
international significance since it reflects the importance of the treaty.
However, there have been many crucial bilateral treaties too, such as
those emerging from Strategic Arms Limitation Talks All treaties have
different purposes. Some set up international organizations through
the UN Charter of 1945 whereas others deal with issues such as visa
regulations.
The binding force of Treaties:
• Vienna Convention on the Law of Treaties, 1969: The International
Law Commission of the United Nations drafted the Vienna Convention
on the Law of Treaties, which was adopted on May 23, 1969. Entering
into force on January 27, 1980, it is an international agreement between
the states to govern and regulate treaties.
The treaty is limited to and encompasses written treaties only. Divided
into many parts, the first part sets out the object, terms, and scope of
the agreement, and the second part lays down rules for adoption,
ratification, the conclusion of the treaties. The third part deals with the
interpretation of treaties. The fourth part talks about the modification
of treaties, and lastly, the fifth part delves into withdrawal, suspension,
termination, and invalidation of a treaty. It also includes a necessary
clause which gives the International Court of Justice jurisdiction over
any possible disputes. The final parts discuss rules for ratification and
effects on treaties due to change in government.
The document has not been ratified by the US, however, it follows its
provisions usually. Till 1979, all the 35 member states of the UN had
ratified the treaty.
As per the Latin maxim “pacta sunt servanda”, or as mentioned under
Article 26 of the Convention, all treaties are binding on its signatories
and shall be followed bona fide. The binding nature which this treaty
serves to all other treaties is a reason why the US isn’t a part of it. There
exists a tussle between Congress and the Executive branch, over who
has the authority to validate a withdrawal from treaties on behalf of the
country. Since treaties are binding, there is too much at stake between
the two organs of the US government.
• General Principles: Article 1 of the said Convention says that it is
applicable to treaties between the states. It is also applicable to treaties
entered into by international organizations. The Convention defines
“treaty” as a written agreement between states which may be embodied
in one or more than one instrument and is governed by International
law. Article 2 further defines “ratification”, “approval”, “reservation”,
etc. in the context of the treaty. It is important to note that none of the
provisions of the said Convention are applicable to written agreements
between an international body and a state, or between 2 subjects of
international law. Article 3 thereby reiterates the scope of the Convention
and states that if such an agreement has been entered, its legality
would not be affected. The parties to such agreements do not have to
follow the rules of the Convention either, however, they should ensure
that the rules they follow to govern the treaty are acceptable in the
eyes of international law. Such agreements shall also not have any
effect on the relations between the States.
• Article 2(6) of the Vienna convention deals with the definition of a
‘contracting state’. It mentions that ‘contracting state’ means that a
state has consented to be bound by the treaty, whether or not the
treaty has entered into force. It is in regard to the non-parties of the UN
and states that they shall act in accordance with the principles so far as
may be necessary for the maintenance of international peace and
security. It is a mandatory provision and has set a limit, determined by
the general interest of the international community.
• Article 53 of the Vienna convention is the origin of the principle of jus
cogens. It states that a treaty is void if, at the time of its conclusion, it
conflicts with the peremptory norm of general international law. The
norm should be accepted and recognized by the international community
of states as a norm from which no derogation is permitted and which
can be modified only by a subsequent norm of international law having
the same character.
Q. 18. Explain the formation of Treaty and the termination of Treaty?
Or
Explain the various grounds on which Treaty can be suspended and
terminated?
Ans. Formation of a treaty: There is no concrete way of creating a
treaty. It may be presented in different forms such as a contract or an exchange
of notes, as seen in the Rush-Bagot Agreement between Great Britain and the
U.S. for mutual disarmament on the Great Lakes. Most treaties, however, follow
a similar structure. Every treaty begins by introducing its preamble, which
states the object of the treaties and the parties to it. It is then followed by what
the parties agreed upon. A statement of the period may or may not follow; it
depends on the time period for which the treaty shall exist. Next up, reservations
and then ratification clauses follow. Then, it ends with the signatures of the
parties involved along with the date and venue of ratification.
Additional articles may be further attached along with the declaration
that they are equal in value as to other clauses. Going by the Law of Treaty,
the following steps form the essentials of formation of a treaty:
a. Adoption of the text: Consent of all parties to a treaty is essential for
adopting a text. If the treaty is being adopted at an international
conference, a two-thirds majority shall be required for the adoption of
text unless agreed upon otherwise.
b. Authentication of the text: As per the procedure mentioned in the text,
a treaty shall be established to be authentic. On the failure of such
procedure, signatures or initials of representatives of the participating
states may be sufficient to deem the text to be definitive.
c. Expression of consent: This may be by way of signatures, ratification,
acceptance, approval or accession or by exchanging instruments
required for the treaty.
d. Consent by signature: Provided that the treaty explicitly states that
signature by the representative of a state shall be sufficient to be
declared as a party, or the negotiating states have mutually consented
to signature be sufficient, the representative’s signature expresses a
state’s full intention to enter into a treaty.
e. Consent by exchange of instruments required by the treaty: If the
states agree that exchange shall be equivalent to the expression of the
consent to enter into the treaty, then so shall be the case.
f. Consent by ratification, acceptance or approval: If the negotiating states
are of the opinion that ratification shall be equivalent to expressing
consent, or the treaty provides for ratification, then it shall be an
acceptable way of obtaining consent to the treaty. Similarly, the same
condition applies to consent expressed by approval or acceptance.
g. Consent expressed by accession: Consent to the treaty shall be obtained
If the treaty provides for it or the negotiating states agree upon
accession.
h. Formulation of reservations: A state may while concluding the treaty
expresses its reservations unless it’s prohibited by the treaty, or if
permitted shall violate with the object and intent of the treaty.
Invalidity of treaty: Part V of the Vienna Convention on The Law of
Treaties, 1969, particularly Section 2 deals with the invalidity of treaties. Articles
46-53 set out the ways to invalidate a treaty, i.e. make them void and
unenforceable under international law. There are several reasons as to why an
internationally binding treaty may be declared as invalid. One of the reasons
for invalidity is that they might be riddled with problems ever since the time of
formation. Content of the treaties and the mode by which consent is obtained
are the two grounds on which treaties may be invalidated.
It is important to note that invalidation is different from withdrawal and
termination; the former involves invalidation of consent right from the start,
while the latter involves future alteration in consent to be a signatory.
a. Ultra Vires treaties: Article 46 of The Law of Treaties talks about the
willingness of a state to invalidate and conclude the treaty on the
ground that it goes against its internal law. No State shall invoke such
a fact. However, exceptionally, such fact may be invoked if the violation
was manifest and of fundamental importance to the State’s internal law.
The Law of Treaties in its preamble clearly regards treaties as a source
of international law. This has two meanings- one, no matter if an act is
approved by the internal law, it will not assume legality if it is condemned
under international law, and two, in case of conflict between internal
and international law, international law shall prevail.
b. Error: Article 48 talks about invalidation on grounds of the presence
of errors in a treaty. It is important to note that errors with respect to
the wording of the text do not invalidate the treaty. If the error is to a
substantial fact, i.e. one that was believed to be in existence at the
time of signing the treaty and formed the basis for which the treaty
was signed, such an error may be provoked by the state, provided
that such state has not, by its own conduct, contributed towards the
error.
c. Fraud and Corruption: If a state has become a signatory to a treaty due
to fraudulent act or conduct of another state who is also a signatory to
the treaty, such a state may invoke invalidating the treaty on grounds
of consent being obtained by fraud. If a negotiating state, by corrupting
the representatives of another state directly or indirectly, has induced
such a state’s consent into entering a treaty, the state may invoke
invalidating its consent to be bound by the treaty.
d. Coercion: Consent shall also be invalidated if it is obtained by coercing
the representative of a state, or by threatening the use of force against
a state.
e. Conflict with Jus cogens: Treaties that are in conflict with jus cogens,
or “peremptory norm of general international law” such as piracy,
genocide, apartheid, torture, etc are void.
Termination or Suspension of treaty:
1. Withdrawal: Obligations in international law arise from the consent of
the state. This is why treaties are mostly non-binding in nature, and
they expressly allow a party to withdraw. For example, the Single
Convention on Narcotic Drugs says that the treaty shall be terminated
if the total number of signatories falls below.
Article 56 deals with withdrawal from treaties without a termination/
denunciation/withdrawal clause. According to this article, such a treaty
shall not be denounced unless:
• The intention of the parties as to the possibility of withdrawal
was established
• A right of denunciation was implied in the treaty.
It must be brought to notice that not all treaties can be withdrawn from;
it depends on the terms of the treaty. For example, when North Korea
declared its intention to withdraw itself from the International Covenant
on Civil and Political Rights the United Nations Secretary-General held
that the parties there was a reason why the treaty did not provide for a
withdrawal cause and it wasn’t put in the treaty on purpose. North
Korea wasn’t allowed to withdraw.
If one party withdraws from a bilateral treaty, the treaty ceases to exist.
When one party withdraws from a multilateral treaty, there is no effect
on the treaty, only such a state’s obligations as per the treaty end.
One instance where Article 46 of the Law of Treaties was invoked was
the treaty between Israel and the United States for the withdrawal of
Israel from the Sinai peninsula. The US promised to provide supply as
well as defense equipment in return. However, the treaty was signed
without taking the consent of the US Senate, and it was contested that
the treaty was thus void as per domestic law. Moreover, since this
violated the U.S. Constitution, the treaty was invalid on international
grounds too.
2. Implied by the conclusion of a later treaty: On account of drafting a
later treaty dealing with the same subject matter as its previous version,
the previous counterpart shall be deemed to be terminated, provided
that the parties intend to be governed by the new treaty or the
provisions of both the treaties are so incompatible with each other that
both the treaties cannot be applicable at the same time. The previous
treaty will be terminated if it’s the implied or established intention of
the signatories.
3. As a consequence of its breach: There are different consequences for
different kinds of treaties. If the treaty is bilateral and one of the
parties has caused a material breach of the treaty, then the other may
use it to bring the treaty to an end. If the treaty is multilateral, then
default by one of the parties entitles the other parties to terminate/
suspend such treaty, wholly or partly by unanimous consent. Material
breach, as explicitly mentioned in Section 61 consists in the violation
of a provision of the treaty which is of the essence to it and forsaking
the treaty.
4. Impossibility of performance: The impossibility of fulfilling conditions
as per the treaty is considered sufficient ground for the suspension/
termination of a treaty. If the impossibility is permanent, i.e. the
devastation makes execution of the treaty impossible, the treaty may
be terminated. However, if the impossibility is temporary, the treaty
may be suspended for the required duration.
However, if the impossibility of performance is due to the conduct and
action of one the parties, i.e. due to violation of a provision of the
treaty or violation of any international obligations, the treaty may not
be terminated/ suspended.
5. Fundamental change of circumstances: Unforeseen changes which
fundamentally affect the treaty may be sufficient to invoke termination/
revocation of the treaty, provided that the changes are “fundamental”
i.e. initial existence of the circumstances may affect the consent of
parties to the treaty and that as a result, the obligations to be performed
under the treaty have been changed and transformed radically.
If the change is due to breach of treaty or any international obligations
by one of the parties to the treaty, then this article would not be
invokable.
6. Rift of diplomatic or consular relations: Provided that the treaty
demands the existence of hostile and diplomatic relations between its
parties, disturbance or severance of such relations shall have no effect
on the treaty since it doesn’t really affect the legal relationship among
the parties.
7. Emergence of new jus cogens: If a new jus cogens or peremptory norm
of general international law emerges after worldwide assent to it, any
treaty in violation of it shall be deemed to be terminated.
Q. 19. What do you mean by state jurisdiction and what are the various
Types of state jurisdiction?
Or
Explain the Principles of Jurisdiction?
Ans. Definition of State Jurisdiction: State jurisdiction is the capacity
of a State under International Law to prescribe the rules of law, enforce the
prescribed rules of law and to adjudicate. State Jurisdiction, also means that a
state court has the right to make a legally binding decision that affects the
parties involved in the case. It is derived from 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.
Scope and Extent of State Jurisdiction: State jurisdiction may extend
beyond its territory over persons and things which have a national link. There
are grounds or 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.
Types of State Jurisdiction: It is of three types:
• Legislative jurisdiction
• Executive jurisdiction and
• Judicial jurisdiction.
a. Legislative jurisdiction: Legislative jurisdiction is the capacity of a
State to prescribe rules of law. A State has the supremacy to make
binding laws within its territory. It has 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 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 breach
of International Law. A State may also be liable for breach of
International Law if it abuses its rights to legislate for its nationals
abroad.
b. Executive Jurisdiction: It 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 breach of International
Law.
c. Judicial Jurisdiction: It 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 criminal matters, they range
from territorial principle to universality principle.
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. As far as criminal jurisdiction is concerned, the
grounds or principles of jurisdiction mostly invoked by States are as follows.
a. The Territorial Principle: This 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 in its internal
affairs or in its territorial jurisdiction. The territorial jurisdiction of State
extends 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 that 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 Israel-Jordan Peace Treaty, under which the Israeli
criminal laws are applicable to 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.
b. 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 a 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 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 national 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.
c. 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 overthrow 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.
d. Passive personality principle: This is a situation where the accused
will be prosecuted in the country of the nationality of the victim.
e. 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
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 crimesin all countries, and crimes against 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 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 currently, under the universality principle,
each State and every State has jurisdiction over any of the international
crimes committed by anyone anywhere.
In United States of America v Noriega: General Manuel Noriega on
February 14th 1988 was indicted on twelve counts of engaging in a
criminal enterprise in violation of U.S racketeering and drug laws. The
indictment alleged that Noriega participated in an international
conspiracy to import cocaine and materials used in producing cocaine
in and out of the United States. He was also alleged to have protected
shipments of cocaine from Columbia through Panama to the U.S. All
these activities were allegedly taken for Noriega’s own profit.
Noriega asserted that the case against him should be dismissed because:
i. The District court of Florida lacked jurisdiction
ii. Sovereign immunity precluded the exercise of jurisdiction
iii. He was captured and brought before the court as a result of an
illegal military invasion.
iv. A violation of international treaties had occurred.
The court found that it had extra-territorial jurisdiction as such
jurisdiction was upheld in the past over foreigners who conspired or
intended to import narcotics into the United States.
The crimes that Noriega was charged with were intended to have extra-
territorial effects as such the court’s Jurisdiction was Reasonable.
Jurisdiction was also justified under the protective principle which
permits the exercise of jurisdiction over acts that threaten the existence
of a state and have potentially deleterious effects in the state. The
alleged importation certain pounds of cocaine would have harmful
effects.
As for the question of immunity, recent international practices have
drawn a distinction between private and public acts entitled to immunity.
As with states, immunity is extended to public officials for acts executed
in their official capacity. Since the acts carried out by Noriega were for
his personal gain, he was not entitled to immunity. The head of state
immunity applies where one is recognized as the head of state by the
immunizing state. In Noriega’s case it was evident that he was not
recognized as the head of state by the Panamian constitution or by the
United States.
Q. 20. What do you mean by State Succession? Write about the rights
and duties arising out of state succession.
Ans. Definition of State Succession: Oppenheim has stated that a
succession of international persons occurs when one or more international
persons takes the place of another international person, in consequence of
certain changes in the latter’s condition.(49) Such a succession may involve
any category of international persons, but it is convenient here to consider
only successions involving states, whether fully or partially sovereign. While
Feilchenfeld simply notes that the transfer of one State to another is usually
described as ‘State Succession’.
Vienna I and II state that succession is “the replacement of one State
by another in the responsibility for the international relations of a territory.”This
definition excludes mere changes of government like those revolutionary
transformations of a State brought about by the introduction of socialism or
by its abolition. The Vienna Conventions’ definition avoids tricky questions
as to, what is a state. In the same way that all invocations of the principle of
self-determination avoid saying to whom the right is granted. The definition
of State succession limits itself to a symptom or to the effect relevant for
international law in the succession of responsibility for a predecessor State’s
international relations. Yet this symptom of responsibility for international
relations is the result of a social, political, and historical process with
consequences in the fields of national constitutional, administrative, and civil
law. And there the question concerning the process of State succession
frequently becomes unavoidable, especially when it is necessary to determine
the date on which State succession has taken place. In addressing the issue
of when a succession has occurred, the Vienna Conventions simply state:
‘date of the succession of States’ means the date upon which the successor
State replaced the predecessor State in the responsibility for the international
relations of the territory to which the succession of States relates. The nature
of State succession must be considered when a State claims to be identical
with a former State. The definition of the Vienna Conventions correctly reflects
the general conviction that a State identical with another one cannot be its
successor.
Political entities are not immutable. They are subject to change. New
states appear and old states disappear. Federations, mergers, dissolutions
and secessions take place. International law has to incorporate such events
into its general framework with the minimum of disruption and instability.
Such changes have come to the fore since the end of the Second World War
and the establishment of over 100 new, independent countries. 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.
Rights and Duties arising out of State Succession: The laws regarding
State succession are still in a very nascent stage and keep evolving with the
changing times. As seen above, along with the territorial and power transfers,
there are transfers with regard to duties too. This section gives a brief idea
about the transfer and non transfer of political as well as non-political rights
and duties.
a. 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.
b. 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. In cases like these,
the succeeding States are bound by the duties, obligations and rights
of the extinct State.
c. 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 timebeen 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.’
d. 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. 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.
Q. 21. Define Neutrality and state Right and Duties of Neutral State?
Ans. When two or more States engage in war, they are known as
belligerents. As belligerents, they acquire certain rights and are bound by
certain obligations towards third States who do not take the side of either of
the belligerents. Such third are called neutral States.
Definition of neutrality: Neutrality is derived from the Latin word
“neuter” which means neither. Neutrality thus connotes the status of a State
which does not favor or disfavor either of the belligerents. Such neutral State
remains indifferent to both the warring groups.
Oppenheim defines neutrality as “the attitude of impartiality adopted
by third States towards belligerents, such attitude creating Rights and duties
between the impartial States and the belligerents1.
Starke examines the concept of neutrality from two angles:
1. popular sense, and
2. Technical sense
In its popular sense, it denotes the attitude of a State which is not at
war with belligerents, and does not participate in the hostilities. In its technical
sense, neutrality is more than an attitude and denotes a legal status of a
special nature, involving a complex of rights, duties, and privileges at
international law, which must be respected by belligerents and neutrals alike.
Kinds of neutrality: Neutrality has been classified as under:
1. Perfect and imperfect neutrality: When a neutral State, neither nor
passively favour either belligerent, it is perfect neutrality. Any favour
to one of the belligerents is imperfect neutrality.
2. Absolute and qualified neutrality: In absolute neutrality, the belligerent
States can fight effectively without affecting the territorial integrity
economic activities of the non-belligerents. Direct or indirect help neutral
State to a belligerent is a case of qualified neutrality.
3. Permanent neutrality: When a State is neutralized through an
international treaty it is a case of permanent neutrality.
4. Voluntary neutrality: Declaration by a State of its neutrality is the case
of voluntary neutrality.
5. Sui gener is neutrality: Austria and Switzerland are neutralized States.
They are members of the UN. Under Article 2(5) of the Charter, members.
Neutrality and the UN Charter: Neutrality in relation to the members
of the UN is not a voluntary act. Under Article 2(5) of the Charter, members are
bound to give every assistance to the UN in any action it takes under the
Charter and to refrain from giving assistance to any State against which
preventive or enforcement action is being taken by the organization. Under
Article 25, members are bound to carry out the decisions of the Security
Council and under Article 41, the Council may ask the members to apply
economic or trade sanctions against a State. Under Article 43. the Security
council may ask the Member States to make available their armed forces ant:
under Article 45, the members may be asked to take combined action. But
certain Member States of the UN may maintain neutrality when they are not
involved by the Security Council. This is “qualified” neutrality because such
States cannot assist the belligerents and must assist the Member States taking
measures. A permanent member of the Security Council with veto power may
remain neutral by exercising veto.
Duties of neutral States: The duties of neutral state have also been
mentioned under the Hague Convention, 1907. Mainly the following duties
are of neutral states:
1. Abstention: The neutral State must not give any direct or indirect
assistance to either belligerent. For instance, it must not supply troops
or provide shelter or allow construction or fitting of warships in its
territory.
1. Prevention: It is the duty of a neutral State to prevent within its territory
such activities as the enlistment of troops for the belligerent armies or
other warlike measures in its territory.
2. Duty of acquiescence: The neutral State must acquiesce in the legitimate
acts of belligerents as are permitted by the laws of war. This acquiescence
is required in acts like seizure of contraband meant for the other
belligerent or adjudication by the Prize Courts.
3. Assistance: The first duty of a neutral state is not to assist the
belligerent states and remain neutral. Oppenheim is also of the view
that the neutral state should not assist the belligerent states directly or
indirectly.
4. To Remain Inactive: The other duty of a neutral state is that she should
not do anything for belligerent state e.g. not to recruit soldiers for
belligerent state, not to misbehave with the citizens and diplomatic
agents of belligerent states.
5. To Give Compensation or Restoration: If due to breach of his duty by
à neutral state, the belligerent state is damaged, it is the liability of
neutral state to give compensation. In this regard Alabama Claims case
1872 is a famous case. In this case, Britain had to pay to America by
way of compensation in the form of gold worth $ 15,50,000 for violation
of rules of neutrality.
6. Replacement Action-The neutral state should not do anything which
may assist the belligerent states and of any Such act is done, the
neutral state should replace or counteract such thing.
Rights of Neutral countries: Under International Laws some rights
have been conferred Rights of Neutral Countries upon the neutral countries
which are as follows:
1. Inviolability-The first important right of a neutral countries is the
inviolability of their territories. Any belligerent nation cannot launch
any operation relating to war on the territories of neutral countries. It is
the duty of belligerent nations not to operate any, war or like action on
the territories of neutral nation and honour the rights of neutral nation.
2. Trade with other Countries-The neutral nations have got the right to
transact any business or trade with countries not at war. It is the duty
of belligerent nation not to interfere in their right of neutral nation.
3. The Right to Give Asylum-The neutral countries have got the right to
give asylum to any person. Such asylum may also be given to such
persons who are members of armed forces of belligerant nations.
4. Right of Compensation and Restoration- According Hyde, if any
aggression made by members of armed forces of any of states over the
territories of a neutral state then such neutral state is entitled to get
compensation from the belligerent state. If the belligerent state takes
into possession the property of neutral state or of her citizen, then the
such neutral state is entitled to get restoration of such property.
5. Other Important Rights In addition to the above, the neutral states
have the following rights also:
a. To right to see that the citizens of neutral states residing, in the
territories of belligerent states are not- misbehaved.
b. The property of citizens of neutral states situated in the territories
of belligerent states are not taken over or damaged.
c. To see that the aircraft of belligerent state is not flying over the
outer space of neutral states.
d. The sea cable of neutral state is not being damaged. In addition
to above, the neutral states are entitled to maintain normal
diplomatic relations with belligerent states.
Commencement of neutrality: Neutrality is an attitude of a State towards
the belligerents in a war. Therefore, such attitude can be shown only on the
commencement of war. Neutrality commences at the outbreak of war between
the belligerents and when such commencement is conveyed or becomes known
to the States not involved in the conflict.
End of neutrality: Neutrality comes to an end when the war is terminated.
A neutral State, at any-time during war, may withdraw its neutrality. A State
when attacked by the belligerents has to defend itself. Its neutrality
automatically comes to an end. When a neutral State actively joins one of the
belligerents, its neutrality comes to an end. With the termination of neutrality,
the rights and obligations of neutrality also come to an end.
Unneutral service: Originally the doctrine of unneutral service was
related to the duties timid citizens in naval warfare and was regarded similar to
contraband. But unneutral service is now not confined to ships at sea but
includes aircraft which are commonly used for transport of troops during war.
It is the duty of the neutral vessel or aircraft not to advance the interests of
one State and injure the same interests of the opponent. If this duty is not
done, it amounts to unneutral service. Vessels or aircraft in unneutral service
may be captured and subjected to adjudication by Prize courts.
Q. 22. What are the types of Diplomatic Agents and state the various
kinds of immunities enjoyed by Diplomatic Agents?
Or
Explain the classes of Diplomatic Agents and Immunities enjoyed by
them?
Ans. Diplomats are the persons who reside in foreign countries as the
representative of the country by whom they are despatched. They act as a
link between the country who despatch them and by whom they are accredited.
Therefore, they perform the act of diplomacy, which in International Law
means by which the States maintain or establish mutual relations and carry
out their legal or political transactions based on their foreign policies.
Different Classes of Diplomatic Agents:-The diplomatic agents have
been classified according to their status and functions. The first classification
of diplomatic agent was made in the Congress of Vienna in- 1815 under which
diplomatic agents were classified under the following categories:-
1. Ambassadors and Legates: These are the first category of diplomatic
agents and are the complete representatives of the sovereignty states.
Their designation is Ambassadors or Permanent Representatives of
their respective countries of U.N. They are appointed by POP.
2. Ministers Pleni-potentiary and Envoys extraordinary: Are the
diplomatic agents of second category and as compared to the diplomatic
agents of the first category. They enjoy less privileges and immunities
3. Charge-d affairs: They are the diplomatic agents of the last category.
The main reason for this is that they are not appointed by the head of
State but are appointed by the Foreign Minister of the State. Their
status is considered below the Minister Resident.
4. Minister Resident: In the congress of Aix-la-Chappele-1818, this
category was added at category No.3, but it was again dropped by
1961 Convention.
Privileges & Immunities Of Diplomatic Agents:-As observed by the
International Court of Justice on 15.12.79 in a case of United States Diplomatic
and Consular Staff in Tehran: For enabling states irrespective of their differing
constitutional and social systems to achieve mutual understanding. One of
the pillars of modern International Law is the diplomatic immunities of the
Ambassadors. However the following are the immunities and privileges of the
diplomatic agents:-
1. Inviolability of the person as envoys: - The diplomatic agents are
extended personal safety and security. If an envoy is attacked it is
deemed that attack was on the country to which the envoy is
belonging.
2. Immunity from criminal jurisdiction of the court: - The courts of the
state where the envoy is posted do not treat the envoys within its
criminal jurisdiction. It ordinarily believed that envoys will not violate
the laws of the host country. But there are certain circumstances when
the envoys lose their immunity for example when they indulge in
conspiracy against the host state.
3. Immunity from civil jurisdiction:- the envoys also enjoy the immunities
of civil nature also no suit is filed in the civil court of the host state
against envoys. As per Vienna convention three exceptions when
immunity is not available: i) for any immovable property within the
jurisdiction of host state he has. ii) in a matter of inheritance where the
envoy is a successor or executor in his personal capacity. iii) The
commercial activities of the envoy in personal capacity.
4. Immunity regarding residence:-His premises are inviolable and no
search is allowed in his residence. If any person intrudes the premises
of envoy to avoid arrest, it is the duty of envoy to deliver such person
to the host government to decide.
5. Immunity from presence in a court as a witness:- Any envoy cannot
be compelled to give an evidence in any Court but he himself can waive
this privilege and appear before a court.
6. Immunity from Taxes:-Vienna convention provides this immunity to
envoys for payment of local taxes. But water, electricity, telephones
etc. not included.
7. Right to worship: Under Article 3(1) of Vienna Convention diplomatic
agents have the right to worship any religion they like within the mission
premises or residence. But they cannot invite any nationals of the
receiving State to take part in the worship and have no right to preach
their religion in receiving State.
8. Right to exercise jurisdiction over the staff and family in the embassy:-
Envoys are free to exercise their jurisdiction over the subordinate staff
& family in the Embassy to keep the embassy going on.
9. Right to travel freely in the territory of receiving state:-Vienna
convention has provided a new right to envoys, they can travel freely
within the territory of host state and go anywhere.
10. Freedom of communication for official purposes:- Vienna convention-
1961 the envoys have freedom to communicate with his own state in
context to their official work.
11. Immunity from Military and other local obligations: Vienna convention
granted the immunity to envoys from military and other local obligations
of the host state.
12. Inviolability of Staff of Mission: In addition to the head of mission,
immunities are also given to the staff of the mission, which is defined in
article 1 of the Vienna Convention. Para 2 of Article 37 of Vienna
Convention lays down that members of the administrative and technical
staff shall enjoy the immunities and privileges as mentioned from Article
29 to Article 35 if they are not nationals or are not permanent residents
of receiving State.
Thus, administrative and technical staff only enjoys personal
inviolability (Article 29), inviolability of residence (Article 30(1)),
immunity from criminal jurisdiction (Article 31(1)), exemption from certain
taxes and duties (Article 34) and immunity from civil and administrative
jurisdiction exists when they are performing service duties [Article
31(1)].
Para 3 of Article 37 of the Vienna Convention provides immunities to
the service staff if they are not the nationals or permanent resident of
receiving State. It provides immunity to the acts performed in course of
their duties, exemption from taxes and duties on emoluments received
and exemptions on social security provisions.
13. Inviolability of family members: Vienna Convention of Diplomatic
Relations in its Article 37 Para 1states that “immunities and privileges
to the family members of diplomatic the diplomatic agents having
diplomatic ranks may be given, if firstly they are not nationals or
permanent resident of receiving State and secondly, so long as they
form the part of household, i.e. they live under one roof”. So if the son
of a diplomat is studying in any University of receiving State and just
come on weekends to meet his parents, then he will not be provided
with any immunity as he is not forming the part of the household.
14. Inviolability of premise: Article 21 of the Vienna Convention lays down
that, “a permanent diplomatic mission needs premises to operate and
receiving State must help the sending State to obtain the premises
form mission”. The sending State has the right to use its flag and
emblem on the premises (Article 20). Article 22 of the Vienna Convention
of Diplomatic Relations stipulates the customary rule of International
Law by stating that “the premises of the mission shall be inviolable”.
Further Article 30 also provides that “private residence of a diplomatic
agent shall also enjoy inviolability”. The agents, police or any officer
of the receiving State are not allowed to enter the premises without the
consent of the head of mission. However, the inviolability of premises
is also not absolute it can be compromised in certain exceptions. Article
41 of the Convention itself lays down that “premises of the mission
should not be used in any manner as incompatible with functions of
mission or by rules of general International Law”. So, if the inviolability
of premises is abused then the receiving State should not bear it
passively and can take all the necessary steps to stop the actions of
agents.
15. Inviolability from being a witness: Diplomatic agents are completely
immune from being a witness in any civil or criminal or administrative
court of State to which they are accredited. He is also immune from
giving evidence before the Commissioner. However, they may appear
before any court by waiving of their immunity. Article 31(2) lays down
that “diplomat agent is not obliged to give evidence as a witness”.
16. Immunity from inspection of Personal Baggage: The bag used by the
diplomatic agents for sending articles, letters or documents to the
sending states or any other missions of its State to abroad be known as
a diplomatic bag. Para 3 of Article 27 of the Vienna Convention lays
down that “diplomatic bag should not be opened or detained’. But
according to Article 36 Para 2, this right is not absolute. It lays down
that, “general practice of exempting the diplomats’ personal baggage
from a custom inspection is qualified by the provision that inspection
can be conducted in presence of a diplomatic agent or his agent if there
are serious grounds for suspecting that the article is not for official
use”.
Basis of Diplomatic immunity and privileges: Different international
jurists have divergent views as to the basis for giving immunities to diplomatic
agents. Their views led to the emergence of three important theories which are
as follows:
• Extra-territorial Theory: This theory is also known as the fictional
theory. According to this theory, diplomatic agents are considered
not be within the territorial jurisdiction of the State to which they are
accredited, but to all times within that of the sending State. Extra-
territorially of diplomatic agents means that though diplomats
physically present upon the soil of the country to which they are
accredited but they remain for all purposes on the soil to which they
represent.
• Representational Theory: According to this theory, diplomatic agents
are regarded as personal representative of the sovereign of the sending
State. Therefore, they are given the same degree of privileges and
rights which are given to the head of sending State.
• Functional Theory: According to this theory, diplomatic agents are
given immunities because of the nature of their functions. The duties
which the diplomats perform are far from easy. In other words, their
actions of duties are of typical or some special nature. They are allowed
immunities from the legal and other limitations of the State to which
they are accredited to effectively perform the tasks they are allotted.
Q. 23. Discuss the Principle Organs of United Nation Organization?
Ans. The main organs of the UN are the General Assembly, the Security
Council, the Economic and Social Council, the Trusteeship Council, the
International Court of Justice, and the UN Secretariat. All were established in
1945 when the UN was founded
1. General Assembly: The General Assembly is the main deliberative,
policymaking and representative organ of the UN. All 193 Member
States of the UN are represented in the General Assembly, making it the
only UN body with universal representation. Each year, in September,
the full UN membership meets in the General Assembly Hall in New
York for the annual General Assembly session, and general debate,
which many heads of state attend and address. Decisions on important
questions, such as those on peace and security, admission of new
members and budgetary matters, require a two-thirds majority of the
General Assembly. Decisions on other questions are by simple majority.
The General Assembly, each year, elects a GA President to serve a one-
year term of office.
Functions and Powers of the General Assembly According to the
Charter of the United Nations, the General Assembly may:
• Consider and make recommendations on the general principles
of cooperation for maintaining international peace and security,
including disarmament;
• Discuss any question relating to international peace and security
and, except where a dispute or situation is currently being
discussed by the Security Council, make recommendations on
it;
• Discuss, with the same exception, and make recommendations
on any questions within the scope of the Charter or affecting
the powers and functions of any organ of the United Nations;
• Initiate studies and make recommendations to promote
international political cooperation, the development and
codification of international law, the realization of human rights
and fundamental freedoms, and international collaboration in
the economic, social, humanitarian, cultural, educational and
health fields;
• Make recommendations for the peaceful settlement of any
situation that might impair friendly relations among
nations;
• Receive and consider reports from the Security Council and
other United Nations organs;
• Consider and approve the United Nations budget and establish
the financial assessments of Member States;
• Elect the non-permanent members of the Security Council and
the members of other United Nations councils and organs and,
on the recommendation of the Security Council, appoint the
Secretary-General.
Voting in the UNGA:
• Every member has one vote in the GA.
• Most questions are decided by a simple majority, however,
budgetary questions, election to the UNSC, and ECOSOC require
a 2/3rd majority vote.
• In recent times, the UNGA has been striving to make decisions
based on consensus among all member countries.
2. Security Council: The Security Council has primary responsibility,
under the UN Charter, for the maintenance of international peace and
security. It has 15 Members (5 permanent and 10 non-permanent
members). Each Member has one vote. Under the Charter, all Member
States are obligated to comply with Council decisions. The Security
Council takes the lead in determining the existence of a threat to the
peace or act of aggression. It calls upon the parties to a dispute to
settle it by peaceful means and recommends methods of adjustment or
terms of settlement. In some cases, the Security Council can resort to
imposing sanctions or even authorize the use of force to maintain or
restore international peace and security. The Security Council has a
Presidency, which rotates, and changes, every month.
Functions and Powers of the Security Council Under the United
Nations Charter, the functions and powers of the Security Council are:
• to maintain international peace and security in accordance with
the principles and purposes of the United Nations;
• to investigate any dispute or situation which might lead to
international friction;
• to recommend methods of adjusting such disputes or the terms
of settlement;
• to formulate plans for the establishment of a system to regulate
armaments;
• to determine the existence of a threat to the peace or act of
aggression and to recommend what action should be taken;
• to call on Members to apply economic sanctions and other
measures not involving the use of force to prevent or stop
aggression;
• to take military action against an aggressor;
• to recommend the admission of new Members;
• to exercise the trusteeship functions of the United Nations in
“strategic areas”;
• to recommend to the General Assembly the appointment of the
Secretary-General and, together with the Assembly, to elect the
Judges of the International Court of Justice
3. Economic and Social Council: The Economic and Social Council is the
principal body for coordination, policy review, policy dialogue and
recommendations on economic, social and environmental issues, as
well as implementation of internationally agreed development goals. It
serves as the central mechanism for activities of the UN system and its
specialized agencies in the economic, social and environmental fields,
supervising subsidiary and expert bodies. It has 54 Members, elected
by the General Assembly for overlapping three-year terms. It is the
United Nations’ central platform for reflection, debate, and innovative
thinking on sustainable development.
The ECOSOC is the main body responsible for coordination, policy
dialogue, policy review and recommendations on social, economic,
and environmental issues, and also the implementation of
internationally agreed development goals.
a. It serves as the central mechanism for activities of the UN system
and its specialized agencies in the economic, social, and
environmental fields, supervising subsidiary and expert bodies.
b. It is the UN’s pivotal platform for reflection, debate, and
innovative thinking on sustainable development.
c. The ECOSOC has 54 members that are elected by the General
Assembly.
d. Voting is by a simple majority and each member has one vote in
the ECOSOC. The work of the UN’s specialized agencies like the
FAO, UNESCO UNICEF, the ILO, etc. are coordinated by the
ECOSOC.
e. The ECOSOC presidency is for one year, and it is headquartered
in New York.
4. Trusteeship Council: The Trusteeship Council was established in
1945 by the UN Charter, under Chapter XIII, to provide international
supervision for 11 Trust Territories that had been placed under the
administration of seven Member States, and ensure that adequate
steps were taken to prepare the Territories for self-government and
independence. By 1994, all Trust Territories had attained self-
government or independence. The Trusteeship Council suspended
operation on 1 November 1994. By a resolution adopted on 25 May
1994, the Council amended its rules of procedure to drop the
obligation to meet annually and agreed to meet as occasion required
— by its decision or the decision of its President, or at the request
of a majority of its members or the General Assembly or the Security
Council.
5. International Court of Justice : The International Court of Justice is
the principal judicial organ of the United Nations. Its seat is at the
Peace Palace in The Hague (Netherlands). It is the only one of the six
principal organs of the United Nations not located in New York (United
States of America). The Court’s role is to settle, in accordance with
international law, legal disputes submitted to it by States and to give
advisory opinions on legal questions referred to it by authorized United
Nations organs and specialized agencies.
ICJ’s functions:
• To settle in accordance with international law the legal disputes
submitted to it by States.
• To give advisory opinions on legal questions referred to it by
duly authorized international organs and agencies.
6. Secretariat: The Secretariat comprises the Secretary-General and tens
of thousands of international UN staff members who carry out the
day-to-day work of the UN as mandated by the General Assembly
and the Organization’s other principal organs. The Secretary-General
is chief administrative officer of the Organization, appointed by the
General Assembly on the recommendation of the Security Council for
a five-year, renewable term. UN staff members are recruited
internationally and locally, and work in duty stations and on
peacekeeping missions all around the world. But serving the cause of
peace in a violent world is a dangerous occupation. Since the founding
of the United Nations, hundreds of brave men and women have given
their lives in its service.
The Major points of Secretariat:
a. The Secretary-General is the chief administrative officer of the
UN.
b. The Secretary-General is appointed by the GA on the
recommendation by the UNSC.
c. He/she has a five-year renewable tenure.
d. The current and the ninth Secretary-General is a Portuguese
national, Antonio Guterres.
e. The Secretary-General can bring to the attention of the UNSC
any issue which can be a threat to international peace and
security.
f. The staff who work at the Secretariat are hired internationally
and also locally depending upon the job.
g. They work at stations all over the world.
h. Their work ranges from peacekeeping operations, surveying
economic and social trends, mediating in international disputes,
conducting international conferences to laying the groundwork
for international agreements.
i. The Secretariat has five regional commissions:
i. ECA – Economic Commission for Africa
ii. ECE – Economic Commission for Europe
iii. ECLAC – Economic Commission for Latin America and
the Caribbean
iv. ESCAP – Economic and Social Commission for Asia and
the Pacific
v. ESCWA – Economic and Social Commission for Western
Asia
Q. 24. Explain the Jurisdiction and composition of International Court
of Justice?
Ans. The International Court of Justice (ICJ) is the principal judicial
organ of the United Nations. The Statute of the International Court of Justice,
creating the court and outlining its responsibilities, is annexed to the U.N.
Charter. The ICJ’s primary role is to settle legal disputes submitted to it by
member states and to give advisory opinions on legal questions referred to it
by the United Nations and other specialized agencies.
Structure of ICJ
• The Court is composed of 15 judges, who are elected for terms of office
of nine years by the United Nations General Assembly and the Security
Council. These organs vote simultaneously but separately.
• In order to be elected, a candidate must receive an absolute majority of
the votes in both bodies.
• In order to ensure a measure of continuity, one third of the Court is
elected every three years and Judges are eligible for re-election.
• ICJ is assisted by a Registry, its administrative organ. Its official
languages are English and French.
• The 15 judges of the Court are distributed in following regions:
a. Three from Africa.
b. Two from Latin America and Caribbean.
c. Three from Asia.
d. Five from Western Europe and other states.
e. Two from Eastern Europe.
• Unlike other organs of international organizations, the Court is not
composed of representatives of governments. Members of the Court
are independent judges whose first task, before taking up their duties,
is to make a solemn declaration in open court that they will exercise
their powers impartially and conscientiously.
• In order to guarantee his or her independence, no Member of the Court
can be dismissed unless, in the unanimous opinion of the other
Members, he/she no longer fulfils the required conditions. This has in
fact never happened.
Basis of the Court’s jurisdiction: The jurisdiction of the Court in
contentious proceedings is based on the consent of the States to which it is
open. The form in which this consent is expressed determines the manner in
which a case may be brought before the Court.
i. Special agreement: Article 36, paragraph 1, of the Statute provides
that the jurisdiction of the Court comprises all cases which the parties
refer to it. Such cases normally come before the Court by notification to
the Registry of an agreement known as a special agreement, concluded
by the parties specially for this purpose. The subject of the dispute
and the parties must be indicated (Statute, Art. 40, para. 1; Rules, Art.
39).
ii. Matters provided for in treaties and conventions: Article 36, paragraph
1, of the Statute also provides that the jurisdiction of the Court
comprises all matters specially provided for in treaties and conventions
in force. Such matters are normally brought before the Court by means
of a written application instituting proceedings; this is a unilateral
document which must indicate the subject of the dispute and the parties
(Statute,Art. 40, Para. 1) and, as far as possible, specify the provision
on which the applicant founds the jurisdiction of the Court (Rules, Art.
38).
A list of treaties and conventions governing the jurisdiction of the
International Court of Justice in contentious cases is given in the
“Treaties” section. To these instruments must be added other treaties
and conventions concluded earlier and conferring jurisdiction upon
the Permanent Court of International Justice, for Article 37 of the Statute
of the International Court of Justice stipulates that whenever a treaty
or convention in force provides for reference of a matter to a tribunal to
have been instituted by the League of Nations, or to the Permanent
Court of International Justice, the matter shall, as between the parties
to the Statute, be referred to the International Court of Justice. In 1932,
in its Collection of Texts governing the Jurisdiction of the Court (P.C.I.J.,
Series D, No. 6, fourth edition) and subsequently in Chapter X of its
Annual Reports (P.C.I.J., Series E, Nos. 8-16) the Permanent Court
reproduced the relevant provisions of the instruments governing its
jurisdiction. By virtue of the article referred to above, some of these
provisions now govern the jurisdiction of the International Court of
Justice.
iii. Compulsory jurisdiction in legal disputes: The Statute provides
that a State may recognize as compulsory, in relation to any other
State accepting the same obligation, the jurisdiction of the Court
in legal disputes. Such cases are brought before the Court by
means of written applications. The nature of legal disputes in
relation to which such compulsory jurisdiction may be recognized
are listed in Article 36, paragraphs 2-5, of the Statute, which read
as follows:
1. The States parties to the present Statute may at any time declare
that they recognize as compulsory ipso facto and without special
agreement, in relation to any other State accepting the same
obligation, the jurisdiction of the Court in all legal disputes
concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would
constitute a breach of an international obligation;
d. the nature or extent of the reparation to be made for the
breach of an international obligation.
2. The declarations referred to above may be made unconditionally
or on condition of reciprocity on the part of several or certain
States, or for a certain time
3. Such declarations shall be deposited with the Secretary-General
of the United Nations, who shall transmit copies thereof to the
parties to the Statute and to the Registrar of the Court.
iv. Forum prorogatum: If a State has not recognized the jurisdiction of the
Court at the time when an application instituting proceedings is filed
against it, that State has the possibility of subsequently accepting
such jurisdiction to enable the Court to entertain the case: the Court
thus has jurisdiction as of the date of acceptance under the forum
prorogatum rule.
v. The Court itself decides any questions concerning its jurisdiction
Article 36, paragraph 6, of the Statute provides that in the event of a
dispute as to whether the Court has jurisdiction, the matter shall be
settled by the decision of the Court. Article 79 of the Rules lays down
the arrangements for filing preliminary objections
vi. Interpretation of a judgment: Article 60 of the Statute provides that in
the event of dispute as to the meaning or scope of a judgment, the
Court shall construe it upon the request of any party. The request for
interpretation may be made either by means of a special agreement
between the parties or of an application by one or more of the parties
(Rules, Art. 98).
vii. Revision of a judgment: An application for revision of a judgment may
be made only when it is based upon the discovery of some fact of such
a nature as to be a decisive factor, which fact was, when the judgment
was given, unknown to the Court and also to the party claiming revision,
always provided that such party’s ignorance was not due to negligence
(Statute, Art. 61, para. 1). A request for revision is made by means of an
application (Rules, Art. 99).
Types of Jurisdiction:
1. Contentious Jurisdiction: In the exercise of its jurisdiction in
contentious cases, the International Court of Justice settles disputes
of a legal nature that are submitted to it by States in accordance
with international law. An international legal dispute can be defined
as a disagreement on a question of law or fact, a conflict, or a clash
of legal views or interests. Only States may apply to and appear
before the International Court of Justice. International organizations,
other authorities and private individuals are not entitled to institute
proceedings before the Court. Article 35 of the Statute defines the
conditions under which States may access the Court. While the first
paragraph of that article states that the Court is open to States
parties to the Statute, the second is intended to regulate access to
the Court by States which are not parties to the Statute. The
conditions under which such States may access the Court are
determined by the Security Council, subject to the special provisions
contained in treaties in force at the date of the entry into force of the
Statute, with the proviso that under no circumstances shall such
conditions place the parties in a position of inequality before the
Court.
The Court can only deal with a dispute when the States concerned
have recognized its jurisdiction. No State can therefore be a party to
proceedings before the Court unless it has in some manner or other
consented thereto.
States entitled to appear before the Court: Article 35, paragraph 1, of
the Statute provides that the Court shall be open to the States parties
to the Statute, and Article 93, paragraph 1, of the Charter of the United
Nations provides that all Members of the United Nations are ipso facto
parties to the Statute. Currently 193 States are members of the United
Nations
Declarations recognizing the jurisdiction of the Court as compulsory:
The States parties to the Statute of the Court may “at any time declare
that they recognize as compulsory ipso facto and without special
agreement, in relation to any other State accepting the same obligation,
the jurisdiction of the Court” (Art. 36, para. 2, of the Statute).
Each State which has recognized the compulsory jurisdiction of the
Court has in principle the right to bring any one or more other States,
which have accepted the same obligation, before the Court, by filing an
application instituting proceedings with the Court. Conversely, it
undertakes to appear before the Court should proceedings be instituted
against it by one or more other such States.
The declarations recognizing the jurisdiction of the Court as compulsory
take the form of a unilateral act of the State concerned and are deposited
with the Secretary-General of the United Nations.
2. Advisory Jurisdiction: Since States alone are entitled to appear before
the Court, public (governmental) international organizations cannot be
parties to a case before it. However, a special procedure, the advisory
procedure, is available to such organizations and to them alone. This
procedure is available to five United Nations organs, fifteen specialized
agencies and one related organization.
Though based on contentious proceedings, advisory proceedings have
distinctive features resulting from the special nature and purpose of
the advisory function.
Advisory proceedings begin with the filing of a written request for an
advisory opinion addressed to the Registrar by the United Nations
Secretary-General or the director or secretary-general of the entity
requesting the opinion. In urgent cases the Court may take all
appropriate measures to speed up the proceedings. To assemble all the
necessary information about the question submitted to it, the Court is
empowered to hold written and oral proceedings.
A few days after the request has been filed, the Court draws up a list of
the States and international organizations that are likely to be able to
furnish information on the question before the Court. Usually, the States
listed are the member States of the organization requesting the opinion,
while sometimes the other States to which the Court is open in
contentious proceedings are also included. As a rule, organizations
and States authorized to participate in the proceedings may submit
written statements, followed, if the Court considers it necessary, by
written comments on other’s statements. These written statements are
generally made available to the public at the beginning of the oral
proceedings, if the Court considers that such proceedings should take
place.
Contrary to judgments, and except in rare cases where it is expressly
provided that they shall have binding force (for example, as in the
Convention on the Privileges and Immunities of the United Nations,
the Convention on the Privileges and Immunities of the Specialized
Agencies of the United Nations, and the Headquarters Agreement
between the United Nations and the United States of America), the
Court’s advisory opinions are not binding. The requesting organ,
agency or organization remains free to decide, as it sees fit, what effect
to give to these opinions.
Despite having no binding force, the Court’s advisory opinions
nevertheless carry great legal weight and moral authority. They are
often an instrument of preventive diplomacy and help to keep the peace.
In their own way, advisory opinions also contribute to the clarification
and development of international law and thereby to the strengthening
of peaceful relations between States.
Organs and agencies authorized to request advisory opinions: In
accordance with Article 96, paragraph 1, of the Charter of the United
Nations the General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question”. Article 96, paragraph 2, of the Charter provides that other
organs of the United Nations and specialized agencies, which may at
any time be so authorized by the General Assembly, may also request
advisory opinions of the Court on legal questions arising within the
scope of their activities.
Q. 25. Write a short note on WTO?
Ans. World trade Organization: The establishment of the World Trade
Organization (WTO) as the successor to, the GATT on 1 January 1995 under
the Marrakesh Agreement places the global trading system on a firm
constitutional footing with the evolution of international economic legislation
resulted through the Uruguay Round of GATT negotiations. Uruguay Round
of trade negations paved the way for liberalization of international trade with
the fundamental shift from the negotiation approach to the institutional
framework envisaged through transition from GATT to WTO Agreement.
The GATT 1947 and the WTO co-existed for the transitional period of
one year in 1994. In January 1995, however, the WTO completely replaced the
GATT. The membership of the WTO increased from 77 in 1995 to 127 by the
end of 1996.
Features of the WTO: The agreements under the WTO are permanent
and binding to the member countries. The WTO dispute settlement system is
based not on dilatory but automatic mechanism. It is also quicker and binding
on the members. As such, the WTO is a powerful body. The WTO’s approach
is rule- based and time-bound. It covers trade in goods as well as services.
The WTO made the international Intellectual property rights regime more
focused through trade-related aspects of intellectual property rights and
several other issues of agreements
Structure of the WTO: The Ministerial Conference (MC) is at the top
of the structural organization of the WTO. It is the supreme governing body
which takes ultimate decisions on all matters. It is constituted. by
representatives of (usually, Ministers of Trade) all the member countries. The
General Council (GC) is composed of the representatives of all the members. It
is the real engine of the WTO which acts on behalf of the MC. It also acts as
the Dispute Settlement Body as well as the Trade Policy Review Body. There
are three councils, viz.: the Council for Trade in Services and the Council for
Trade-Related Aspects of Intellectual Property Rights (TRIPS) operating under
the GC. These councils with their subsidiary bodies carry out their specific
responsibilities. Further, there are three committees, viz., the Committee on
Trade and Development (CTD), the Committee on Balance of Payments
Restrictions (CBOPR), and the Committee on Budget, Finance and
Administration (CF A) which execute the functions assigned to them by WTO
Agreement and the GC
The major functions of the WTO:
1. To lay-down a substantive code of conduct aiming at reducing trade
barriers including tariffs and eliminating discrimination in international
trade relations.
2. To provide the institutional framework for the administration of the
substantive code which encompasses a spectrum of norms governing
the conduct of member countries in the arena of global trade.
3. To provide an integrated structure of the administration, thus, to facilitate
the implementation, administration and fulfillment of the objectives of
the WTO Agreement and other Multilateral Trade Agreements.
4. To ensure the implementation of the substantive code.
5. To act as a forum for the negotiation of further trade liberalization.
6. To cooperate with the IMF and WB and its associates for establishing
a coherence in trade policy-making.
7. To settle the trade-related disputes
Dispute settlement mechanism under WTO: Dispute settlement is the
central pillar of the multilateral trading system, and the WTO’s unique
contribution to the stability of the global economy. Without a means of settling
disputes, the rules-based system would be less effective because the rules
could not be enforced. The WTO’s procedure underscores the rule of law, and
it makes the trading system more secure and predictable. The system is based
on clearly-defined rules, with timetables for completing a case.
First rulings are made by a panel and endorsed (or rejected) by the
WTO’s full membership. Appeals based on points of law are possible.
However, the point is not to pass judgment. The priority is to settle
disputes, through consultations if possible. By January 2008, only about 136
of the nearly 369 cases had reached the full panel process. Most of the rest
have either been notified as settled “out of court” or remain in a prolonged
consultation phase some since 1995.
Principles: equitable, fast, effective, mutually acceptable: Disputes in
the WTO are essentially about broken promises. WTO members have agreed
that if they believe fellow-members are violating trade rules, they will use the
multilateral system of settling disputes instead of taking action unilaterally.
That means abiding by the agreed procedures, and respecting judgments.
A dispute arises when one country adopts a trade policy measure or
takes some action that one or more fellow-WTO members considers to be
breaking the WTO agreements, or to be a failure to live up to obligations. A
third group of countries can declare that they have an interest in the case and
enjoy some rights.
A procedure for settling disputes existed under the old GATT, but it
had no fixed timetables, rulings were easier to block, and many cases dragged
on for a long time inconclusively. The Uruguay Round agreement introduced
a more structured process with more clearly defined stages in the procedure.
It introduced greater discipline for the length of time a case should take to be
settled, with flexible deadlines set in various stages of the procedure. The
agreement emphasizes that prompt settlement is essential if the WTO is to
function effectively. It sets out in considerable detail the procedures and the
timetable to be followed in resolving disputes. If a case runs its full course to
a first ruling, it should not normally take more than about one year-15 months
if the case is appealed. The agreed time limits are flexible, and if the case is
considered urgent (e.g. if perishable goods are involved), it is accelerated as
much as possible.
The Uruguay Round agreement also made it impossible for the country
losing a case to block the adoption of the ruling. Under the previous GATT
procedure, rulings could only be adopted by consensus, meaning that a single
objection could block the ruling. Now, rulings are automatically adopted unless
there is a consensus to reject a ruling - any country wanting to block a ruling
has to persuade all other WTO members (including its adversary in the case)
to share its view.
Although much of the procedure does resemble a court or tribunal, the
preferred solution is for the countries concerned to discuss their problems
and settle the dispute by themselves. The first stage is therefore consultations
between the governments concerned, and even when the case has progressed
to other stages, consultation and mediation are still always possible.
How are disputes settled: Settling disputes is the responsibility of the
Dispute Settlement Body (the General Council in another guise), which
consists of all WTO members. The Dispute Settlement Body has the sole
authority to establish “panels” of experts to consider the case, and to accept
or reject the panels’ findings or the results of an appeal. It monitors the
implementation of the rulings and recommendations, and has the power to
authorize retaliation when a country does not comply with a ruling.
1. First stage: consultation (up to 60 days). Before taking any other actions
the countries in dispute have to talk to each other to see if they can
settle their differences by themselves. If that fails, they can also ask the
WTO director-general to mediate or try to help in any other way.
2. Second stage: the panel (up to 45 days for a panel to be appointed, plus
6 months for the panel to conclude). If consultations fail, the
complaining country can ask for a panel to be appointed. The country
“in the dock” can block the creation of a panel once, but when the
Dispute Settlement Body meets for a second time, the appointment can
no longer be blocked (unless there is a consensus against appointing
the panel).
3. Officially, the panel is helping the Dispute Settlement Body make rulings
or recommendations. But because the panel’s report can only be rejected
by consensus in the Dispute Settlement Body, its conclusions are
difficult to overturn. The panel’s findings have to be based on the
agreements cited.
4. The panel’s final report should normally be given to the parties to the
dispute within six months. In cases of urgency, including those
concerning perishable goods, the deadline is shortened to three months.
The agreement describes in some detail how the panels are to work. The
main stages are:
1. Before the first hearing: each side in the dispute presents its case in
writing to the panel.
2. First hearing: the case for the complaining country and defence: the
complaining country (or countries), the responding country, and those
that have announced they have an interest in the dispute, make their
case at the panel’s first hearing.
3. Rebuttals: the countries involved submit written rebuttals and present
oral arguments at the panel’s second meeting.
4. Experts: if one side raises scientific or other technical matters, the
panel may consult experts or appoint an expert review group to prepare
an advisory report.
5. First draft: the panel submits the descriptive (factual and argument)
sections of its report to the two sides, giving them two weeks to
comment. This report does not include findings and conclusions.
6. Interim report: The panel then submits an interim report, including its
findings and conclusions, to the two sides, giving them one week to
ask for a review.
7. Review: The period of review must not exceed two weeks. During that
time, the panel may hold additional meetings with the two sides.
8. Final report: A final report is submitted to the two sides and three
weeks later, it is circulated to all WTO members. If the panel decides
that the disputed trade measure does break a WTO agreement or an
obligation, it recommends that the measure be made to conform with
WTO rules. The panel may suggest how this could be done.
9. The report becomes a ruling: The report becomes the Dispute
Settlement Body’s ruling or recommendation within 60 days unless a
consensus rejects it. Both sides can appeal the report (and in some
cases both sides do).
Appeals: Either side can appeal a panel’s ruling. Sometimes both sides
do so. Appeals have to be based on points of law such as legal interpretation.
They cannot reexamine existing evidence or examine new issues. Each appeal
is heard by three members of a permanent seven-member Appellate Body set
up by the Dispute Settlement Body and broadly representing the range of
WTO membership. Members of the Appellate Body have four-year terms.
They have to be individuals with recognized standing in the field of law and
international trade, not affiliated with any government. The appeal can uphold,
modify or reverse the panel’s legal findings and conclusions. Normally appeals
should not last more than 60 days, with an absolute maximum of 90 days. The
Dispute Settlement Body has to accept or reject the appeals report within 30
days and rejection is only possible by consensus.
Q. 26. What are Human Rights? Explain the main provision of Human
Right Act 1993?
Ans. Definition of Human Rights: Section 2 of the Protection of Human
Rights Act, 1993, “human rights” means the rights relating to life, liberty,
equality and dignity of the individual guaranteed under the Constitution or
embodied in the International Covenants and enforceable by courts in India.
“International Covenants” means the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and
Cultural Rights adopted by the General Assembly of the United Nations on
the 16th December, 1966.
The credit for origin of human rights goes to Magna Carta, Bill of
Rights, Declaration of Human Rights by France. Human rights have also been
assigned an important place in International Law. The Indian enactment “The
protection of Human Rights Act 1993' is a chain in the link.
What are Human Rights: It is very difficult to give literary definition
of human rights. Under the Protection of Human Rights Act 1993, Section
2(d) the definition of human rights is given as follows: “Human rights
means the rights relating to life, liberty, equality and diginity of the
individual guaranteed by the constiution and embodied in the international
convention and enforceable by courts in India.”. This definition of human
right is very comprehensive and meaningful. This includes rights relating
to life, liberty, equality and dignity of individual guaranteed by Indian
constitution and also mëntioned in International convenants and
conventions
In reality human rights means such rights:
i. Which are necessary for maintaining human dignity or for leading a
dignified life;
ii. Very necessary or inevitable for physical, mental and intellectual
development of individual;
iii. Which are included in International Convenants and Conventions and
guaranteed by the Constitutions. With the origin of the concept of
civilised and public welfare state, the dimension of human rights has
increased: Today, all those rights are being considered as human right
which are necessary for leading a dignified life because now the concept
of leading a life means not leading a life like an animal but a dignified
and respectful life (Kharak Singh Vs. State of Uttar Pradesh AIR
1963 SC 1295). Our judiciary has increased the chain of human rights
from time to time by means of judicial decisions and accepted that the
human rights should be conferred upon the individual because he is
human being.
Now the following are also considered as human rights:
i. The right to medical treatment and health (State of Punjab Vs.
Mohinder Singh Chawala, AIR 1997 SC 1225);
ii. Right to clean environment (Law Society of India Vs. Fertilisers and
Chemicals, Travancore AIR 1994, Kerala 308);
iii. Right to protection against exposure of naked body and immodesty in
beauty competition. (Chandra Raj Kumari Vs. Commissioner of
Police, AIR 1998, Andhra Pradesh 302);
iv. Right to protection against sound pollution (Saiyed Maksud Ali Vs.
State of Madhya Pradesh, AIR 2001 Madhya Pradesh 220);
v. The right to reach one’s own residence easily (Subha Jnyan Vn.
Minnkshi Kumaran, AIR 2004, Kerala 39). There are such other rights
which have been included in human rights. Factually, what we call as
fundamental rights are also human rights, Those rights which relate to
the dignity, liberty and equality are human rights. In Madhyn Pradesh
IHuman Rights Commission Vs. State of Madlhya Pradesh (AIR 2003
Madhya Pradesh 17), Case the loosing of eye sight by seven persons
in eye operation by doctors in a eye treatment camp was considered as
a case of violation of human right. Therefore, the definition and
dimension of human right is very broad. In the case of ‘P.T.
MunniChikken Reddy Vs Revamma (A.I.R. 2007 SC 1753), Right of
Property is not only a constitutional or Statutory Right, but also a
Human Right by the Supreme Court.’ Main Provisions of Protection of
Human Rights Act 1993 For protection of human rights, Protection of
Human Rights Act 1993 was passed in India on which the President of
India gave his consent on 8th January 1994.
The Protection of Human Rights, Act 1993: The Protection of Human
Rights Act, 1993 came into force on 28th January, 1993. Human Rights
Commission Bill, 1993 was presented in the Lok Sabha on 14.05.93 and was
mentioned to the standing committee of Parliament on Home Affairs .In opinion
of urgency of the matter, Protection of Human Rights ordinance, 1993 was
presented on 28.09.93 by the President of India. On 8.01.94, the Protection of
Human Rights Act was passed which covers Entire India.
Protection of Human Rights have become priority for government across
the world. These rights have also become pivotal in lives of human beings as
without these basic rights one cannot think to lead respectful and dignified
life. At global level, bunch of Agreements, Announcements and Treatises
have been framed to offer satisfactory guidance to associate states to sanction
laws in their individual Nations to protect human rights. Having motivated
from global mandate on matters of human rights and their growing violations
international vis-à-vis in India, the Government of India has also passed a
specific law known as The Protection of Human Rights Act, 1993. This law
suggests for the formation of National Human Rights Commission and State
Human Rights Commissions for each State to promote the goal of protection
of human rights. The NHRC has been allocated numerous responsibilities
under the Act to protect human rights.
The state maintains a framework of social order by implementation of
various laws without which well-ordered social life would not be possible.
Protection of dignity of an individual is essential for harmony in the society,
as it violation can have grave impact on individual in particular and on society
in general. Every individual is entitled to some rights which are inherent to
human existence. The rights must not be violated on the basis of sex, race,
background, society, belief etc.
Protection of human rights is a requirement for the growth and
development of an individual personality, which eventually donates in the
development as a whole in the nation. It is an internationally recognized issue
and various international instruments have been established for the protection
of human rights. The concept of human right is dynamic and adapts to the
needs of the nation and its people. The definitive purpose of the national in
addition to global law is to protect the human rights of the individual
The Main Objective of Protection of Human Rights Act, 1993:
The main object is protecting human beings from violations. In absence
of Human rights there will be meaning less life. The rights concerning to life,
freedom equality and dignity of the individual as guaranteed by the
constitution are also involved in the type of “Human Rights”. Human Rights
are the rights and freedoms granted to all the human beings.
The persistence of safeguarding human rights as such is to offer safety to
these rights contrary to the misuse of power committed by the structures of
state to create organisation for the development of existing condition beings
and for the growth of their personality and at the similar time to offer actual
corrective measures for procurement redressing the event of rights which are
violated. The act offers for formation of National Human Rights Commission,
State Human right Commission and Human Rights Judges which seeks to
avoid and penalize any uncivilized violation of human rights.
Salient Features of Protection of Human Rights Act, 1993:
The Human Right Act was formed to protect the Human Right of the
people of India and to give them a platform in case of violation of the same.
The act establishes the Human Right Commissions on both National as well
as State Level. Under Section 3 of The Protection of Human Rights Act, 1993
it lay down the Constitution of the National Human Rights Commission.
The Act, also defines the formation and the constitution of state’ Human
Rights commission. Section 30 of the Protection of the Human Rights Act
details the establishment of Human Rights courts for providing speedy Trial
of Offense arising out of the violation of Human Rights.
The Key Provisions of the Protection of Human Rights Act, 1993:
1. Composition of the National Human Rights commission: National
Human Rights commic5ion was constituted in October 1993 under
Human Rights Ordinance of 28th September, 1993 which was soon after
enacted as the protection of Human Rights Act, 1993. The Act envisages
that the commission shall consist of:
a. A chairperson who has been a chief justice of the Supreme Court.
b. One member who is or has been, a judge of the Supreme Court.
c. One member who is or has been chief justice of a High Court.
d. Two members to be appointed from amongst persons having
knowledge of or practical experience in, matter relating to human
rights.
2. Appointment of Chairperson and Member: The Chairperson and the
Members of the Commission shall be appointed by the President of
India on the recommendation of six members and shall hold office for a
Period of Five years from the date on which they enter upon the office.
They shall be eligible for reappointment for another term. A person can
serve at the Commission until the age of Seventy years.
In Paramjeet Kaur Vs. State of Punjab (AIR 1999 SC 340) case, the
Supreme Court has said that the Chairman of National Human Riyhte
Commission being the ex-chief justice of Supreme Court is in itself an
expert and man of extraordinary calibre. The other members of
commission are as follows:
a. The present or retired judge of Supreme Court;
b. The present or retired judge of High Court;
c. Two persons who have special knowledge or practical experience
regarding human rights;
d. Three ex-officio members who are chairman of the following
commissions:
• National Minority Commission:
• National Commission for Scheduled Castes and Scheduled
Tribes;
• National Women Commission. It has one Secretary
General. Its head office is situated in New Delhi
3. Functions of the commission:
a. Inquire, on its own initiative or on a petition presented to it by a
victim or any persons on his behalf, into complaints at:
i. Violation of human rights or abetment thereof, or
ii. negligence in the prevention of such violation, by a public
servant.
b. Intervene in any proceeding involving any allegation of violation
of human rights pending before a court with the approval of
such court.
c. Review the safeguards provided by or under the constitution of
any law for the time being in force for the protection of human
rights and recommend measures for their effective
implementation.
d. NHRC holds the power to investigate grievances related to the
violation of human rights either suo moto or after receiving a
petition.
e. It has the power to interfere in any judicial proceedings involving
any allegation of violation of human rights.
f. It can visit any jail or other government-controlled facility to see
the prisoners’ living conditions and make recommendations on
them.
g. It can review the protections provided for in the constitution or
any human rights protection legislation and can recommend
effective remedial steps.
h. NHRC also undertakes and promotes research in the field of
human rights. It works to spread human rights literacy among
various sections of society and promotes awareness of the
safeguards available for the protection of these rights through
publications, media, seminars, and other means.
i. The Commission takes an independent stance while, for the time
being, giving advice on the defense of human rights in the
constitutional parlance or in the statute.
j. NHRC has the powers of a civil court and can grant interim relief.
k. It also has the authority to recommend payment of compensation
or damages.
l. It can recommend to both the central and state governments to
take suitable steps to prevent the violation of Human Rights.
m. NHRC submits its annual report to the President of India who
causes it to be laid before each House of Parliament.
4. Limitations of NHRC
a. NHRC cannot take any action against violation of Human rights
by private parties
b. The Recommendations made by the NHRC are not binding.
c. NHRC cannot penalize the authorities that don’t implement its
recommended orders.
d. The NHRC has limited jurisdiction over cases related to armed
forces
e. The NHRC cannot hold jurisdiction in the following cases:
5. To Conduct Enquiry about the Complaints Lodged and the Procedure
to be followed: Under Chapter 4 of the Act, the provision has been
made for the conduct of enquity about the complaint lodged and the
procedure to be followed. The Commission is authorised to, conduct
enquiry about the complaints. For enquiry or investigation it has
been conferred upon all powers of a civil court e.g. to call witnesses
and the examination of witnesses, to take evidence on documents
and to commission etc. It has also powers to get investigated the
whole case.
In the case of Chief Commissioner of Income tax Vs State of Bihar
(A.I.R. 2012, Patna 94) it has been held by the Patna High Court that
hearing the complaint of violation of human rights can be done by
single bench of one member. The Complaint of violation of Human
rights can be entertained by the State Human Rights Commission within
one from the date of violation. (Alok Vs Bihar State Human year
Rights Commission, A.I.R. 2012 Patna 13) After completion of enquiry
or investigation, the commission can make recommendation to the
Government for taking action against such convicts.
6. Powers relating to inquiries: The Commission shall, while inquiring
into complaints under this Act, have all the powers of a civil court
trying a suit under the Code of Civil Procedure, 1908, and in particular
in respect of the following matters, namely :
• summoning and enforcing the attendance of witnesses and
examining them on oath;
• discovery and production of any document;
• receiving evidence on affidavits;
• requisitioning any public record or copy thereof from any court
or office;
• issuing commissions for the examination of witnesses or
documents;
• any other matter which may be prescribed
7. State Human Rights Commission: The State Human Rights Commission
is a statutory, non-constitutional body (at the state level) just like the
National Human Rights Commission. A State human rights commission
can initiate an inquiry if it identifies any violation of human rights
concerning the jurisdictions mentioned in the State List (List-II) and
the Concurrent List (List-III) of the 7th Schedule of the Constitution.
Suppose the NHRC or any other statutory commission is already
handling any such case as mentioned above, in such an instance. In
that case, the state human rights commission does not inquire into that
case.
The State Human Rights Commission has been established in 25 states
via Official Gazette Notification.
8. Composition of SHRC:
1. Chairman: Retired Chief Justice of the High Court.
2. Members: 1 judge of High court/ District judge with seven years
of experience + 1 member with expertise in Human Rights.
9. Powers and Functions of State Human Rights Commission
• Hold an inquiry if any Human Rights violation has been detected.
• Look into the prevention of negligence by a public servant about
Human Rights.
• They can take Suo moto cognizance or through a petition
presented to it or on the order of a court.
• They have the power to recommend measures for the effective
implementation of human rights.
• Their function is to study treaties and other international
instruments to suggest measures for their better implementation.
• They encourage and support NGOs for proper functioning.
• Recommendation of counter-terrorism measures to prevent the
infringement of Human Rights by terrorists.
10. Section 36 of the Act provides for matters that are not under the
jurisdiction of NHRC:
1. The commission shall not hold an inquiry into matters pending
before the State Human Rights Commission or any other
commission constituted under any law.
2. The NHRC or the SHRC shall not initiate an inquiry into a matter
beyond the expiry of one year (beginning from the date on which
the act violating human rights had been committed).
11. Human rights courts in India: Section 30 of the Protection of Human
Rights Act, 1993, says that “Human Rights Courts to provide speedy
trial of offenses arising out of violation of human rights, the State
Government may, with the concurrence of the Chief Justice of the High
Court, by notification, specify for each district a Court of Session to be
a Human Rights Courts to try the said offenses: Provided that nothing
in this Section shall apply if:
1. A Court of Session is already specified as a special court; or
2. A special court is already constituted, for such offenses under
any other law for the time being in force.”
Q. 27. Explain the Right of Innocent passage and Jurisdiction over
foreign ship?
Ans. The right of innocent passage: The right of foreign merchant
ships (as distinct from warships) to pass unhindered through the territorial
sea of a coast has long been an accepted principle in customary international
law, the sovereignty of the coast state notwithstanding. However, the precise
extent of the doctrine is blurred and open to contrary interpretation, particularly
with respect to the requirement that the passage must be ‘innocent’. Article 17
of the 1982 Convention lays down the following principle: ‘ships of all states,
whether coastal or land-locked, enjoy the right of innocent passage through
the territorial sea’. The doctrine was elaborated in article 14 of the Convention
on the Territorial Sea, 1958, which emphasized that the coastal state must not
hamper innocent passage and must publicize any dangers to navigation in the
territorial sea of which it is aware. Passage is defined as navigation through
the territorial sea for the purpose of crossing that sea without Entering internal
waters or of proceeding to or from that sea without entering internal waters or
of proceeding to or from internal waters. It may include temporary stoppages,
but only if they are incidental to ordinary navigation or necessitated by distress
or force majeure.
The coastal state may not impose charges for such passage unless
they are in payment for specific services,88 and ships engaged in passage are
required to comply with the coastal state’s regulations covering, for example,
navigation in so far as they are consistent with international law. Passage
ceases to be innocent under article 14(4) of the 1958 Convention where it is
‘prejudicial to the peace, good order or security of the coastal state’ and in the
case of foreign fishing vessels when they do not observe such laws and
regulations as the coastal state may make and publish to prevent these ships
from fishing in the territorial sea. In addition, submarines must navigate on the
surface and show their flag. Where passage is not innocent, the coastal state
may take steps to prevent it in its territorial sea and, where ships are proceeding
to internal waters, it may act to forestall any breach of the conditions to which
admission of such ships to internal waters is subject.
Coastal states have the power temporarily to suspend innocent passage
of foreign vessels where it is essential for security reasons, provided such
suspension has been published and provided it does not cover international
straits. Article 19(2) of the 1982 Convention has developed the notion of
innocent passage contained in article 14(4) of the 1958 Convention by the
provision of examples of prejudicial passage such as the threat or use of
force; weapons practice; spying; propaganda; breach of customs, fiscal,
immigration or sanitary regulations; willful and serious pollution; fishing;
researcher survey activities and interference with coastal communications or
other facilities.
Article 21(1) of the 1982 Convention, which expressly provided that
the coastal state could adopt laws and regulations concerning innocent
passage with regard to:
a. The safety of navigation and the regulation of maritime traffic;
b. The protection of navigational aids and facilities and other facilities or
installations;
c. The protection of cables and pipelines;
d. The conservation of the living resources of the sea;
e. The prevention of infringement of the fisheries laws and regulations of
the coastal state;
f. The preservation of the environment of the coastal state and the
prevention, reduction and control of pollution thereof
g. Marine scientific research and hydrographic surveys;
h. The prevention of infringement of the customs, fiscal, immigration or
sanitary laws and regulations of the coastal state.
Jurisdiction over foreign ships: Where foreign ships are in passage
through the territorial sea, the coastal state may only exercise its criminal
jurisdiction as regards the arrest of any person or the investigation of any
matter connected with a crime committed on board ship in defined
situations. if the ship is passing through the territorial sea having left the
internal waters of the coastal state, then the coastal state may act in any
manner prescribed by its laws as regards arrest or investigation on board
ship and is not restricted by the terms of article 27(1). Under article 28 of
the 1982 Convention, the coastal state should not stop or divert a foreign
ship passing through its territorial sea for the purpose of exercising civil
jurisdiction in relation to a person on board ship, nor levy execution against
or arrest the ship, unless obligations are involved which were assumed by
the ship itself in the course of, or for the purpose of, its voyage through
waters of the coastal state, or unless the ship is passing through the
territorial sea on its way from internal waters. The above rules do not,
however, prejudice the right of a state to levy execution against or to
arrest, for the purpose of any civil proceedings, a foreign ship lying in the
territorial sea or passing through the territorial sea after leaving internal
waters.
Warships and other government ships operated for non-commercial
purposes are immune from the jurisdiction of the coastal state, although they
may be required to leave the territorial sea immediately for breach of rules
governing passage and the flag state will bear international responsibility in
cases of loss or damage suffered as a result.
The contiguous zone: Historically some states have claimed to exercise
certain rights over particular zones of the high seas. This has involved some
diminution of the principle of the freedom of the high seas as the jurisdiction
of the coastal state has been extended into areas of the high seas contiguous
to the territorial sea, albeit for defined purposes only. Such restricted
jurisdiction zones have been established or asserted for a number of reasons:
for instance, to prevent infringement of customs, immigration or sanitary laws
of the coastal state, or to conserve fishing stocks in a particular area, or to
enable the coastal state to have exclusive or principal rights to the resources
of theproclaimed zone.
In each case they enable the coastal state to protect what it regards as
its vital or important interests without having to extend the boundaries of its
territorial sea further into the high seas. It is thus a compromise between the
interests of the coastal state and the interests ofother maritime nations seeking
to maintain the status of the high seas, and it marks a balance of competing
claims. The extension of rights beyond the territorial sea has, however, been
seen not only in the context of preventing the infringement of particular
domestic laws, but also increasingly as a method of maintaining and
developing the economic interests of the coastal state regarding maritime
resources.
Contiguous zones were clearly differentiated from claims to full
sovereignty as parts of the territorial sea, by being referred to as part of the
high seas over which the coastal state may exercise particular rights. Unlike
the territorial sea, which is automatically attached to the land territory of the
state, contiguous zones have to be specifically claimed.
While sanitary and immigration laws are relatively recent additions to
the rights enforceable over zones of the high seas and may be regarded as
stemming by analogy from customs regulations, in practice they are really
only justifiable since the 1958 Convention. On the other hand, customs
zones have a long history and are recognized in customary international law
as well. Many states, including the UK and the USA, have enacted legislation
to enforce customs regulations over many years, outside their territorial
waters and within certain areas, in order to suppress smuggling which
appeared to thrive when faced only with territorial limits of 3 or 4 miles.118
Contiguous zones, however, were limited to a maximum of 12 miles from the
baselines from which the territorial sea is measured. So if the coastal state
already claimed a territorial sea of 12 miles, the question of contiguous
zones would not arise.
Q. 28. Write a short note on Universal Declaration of Human Rights
1948?
Ans. Universal Declaration of Human Rights (UDHR), foundational
document of international human rights law. It has been referred to as
humanity’s Magna Carta by Eleanor Roosevelt, who chaired the United Nations
(UN) Commission on Human Rights that was responsible for the drafting of
the document. After minor changes it was adopted unanimously—though
with abstentions from the Belorussian Soviet Socialist Republic (SSR),
Czechoslovakia, Poland, Saudi Arabia, South Africa, the Soviet Union the
Ukrainian SSR, and Yugoslavia—by the UN General Assembly on December
10, 1948 (now celebrated annually as Human Rights Day, as a “common
standard of achievement for all peoples and all nations.” The French jurist
René Cassin was originally recognized as the principal author of the UDHR. It
is now well established, however, that, although no individual can claim
ownership of this document, John Humphrey, a Canadian professor of law
and the UN Secretariat’s Human Rights Director, authored its first draft. Also
instrumental in the drafting of the UDHR were Roosevelt; Chang Peng-chun,
a Chinese playwright, philosopher, and diplomat; and Charles Habib Malik, a
Lebanese philosopher and diplomat.
The traumatic events of the Second World War brought home that
human rights are not always universally respected. The extermination of almost
17 million people during the Holocaust, including 6 million Jews, horrified the
entire world. After the war, governments worldwide made a concerted effort to
foster international peace and prevent conflict. This resulted in the
establishment of the United Nations in June 1945.
In 1948, representatives from the 50 member states of the United Nations
came together under the guidance of Eleanor Roosevelt (First Lady of the
United States 1933-1945) to devise a list of all the human rights that everybody
across the world should enjoy.
On 10 December 1948, the General Assembly of the United Nations
announced the Universal Declaration of Human Rights (UDHR): 30 rights and
freedoms that belong to all of us. Seven decades on and the rights they
included continue to form the basis for all international human rights law.
Eleanor Roosevelt was heavily involved in championing civil rights
and social activism. She was appointed chair of the UN Commission on Human
Rights which drafted the UDHR. On the tenth anniversary of the UDHR,
Eleanor gave a speech at the United Nations called ‘Where Do Human Rights
Begin?’. Part of her speech has become famous for capturing the reason why
human rights are for every one of us, in all parts of our daily lives:
‘Where, after all, do universal human rights begin? In small places,
close to home - so close and so small that they cannot be seen on any maps of
the world. Yet they are the world of the individual person; the neighbourhood
he lives in; the school or college he attends; the factory, farm, or office where
he works. Such are the places where every man, woman, and child seeks equal
justice, equal opportunity, equal dignity without discrimination. Unless these
rights have meaning there, they have little meaning anywhere. Without
concerted citizen action to uphold them close to home, we shall look in vain
for progress in the larger world.’
The UDHR marked an important shift by daring to say that all human
beings are free and equal, regardless of colour, creed or religion. For the first
time, a global agreement put human beings, not power politics, at the heart of
its agenda.
The 30 rights and freedoms set out in the UDHR include the right to
asylum, the right to freedom from torture, the right to free speech and the
right to education. It includes civil and political rights, like the right to life,
liberty, free speech and privacy. It also includes economic, social and cultural
rights, like the right to social security, health and education.
A summary of the 30 articles of the Universal Declaration of Human Rights:
• Article 1: We are all born free. We all have our own thoughts and ideas
and we should all be treated the same way.
• Article 2: The rights in the UDHR belong to everyone, no matter who
we are, where we’re from, or whatever we believe.
• Article 3: We all have the right to life, and to live in freedom and safety.
• Article 4: No one should be held as a slave, and no one has the right to
treat anyone else as their slave.
• Article 5: No one has the right to inflict torture, or to subject anyone
else to cruel or inhuman treatment.
• Article 6: We should all have the same level of legal protection whoever
we are, and wherever in the world we are.
• Article 7: The law is the same for everyone, and must treat us all
equally.
• Article 8: We should all have the right to legal support if we are treated
unfairly.
• Article 9: Nobody should be arrested, put in prison, or sent away from
our country unless there is good reason to do so.
• Article 10: Everyone accused of a crime has the right to a fair and
public trial, and those that try us should be independent and not
influenced by others.
• Article 11: Everyone accused of a crime has the right to be considered
innocent until they have fairly been proven to be guilty.
• Article 12: Nobody has the right to enter our home, open our mail,
or intrude on our families without good reason. We also have the
right to be protected if someone tries to unfairly damage our
reputation.
• Article 13: We all have the right to move freely within our country, and
to visit and leave other countries when we wish.
• Article 14: If we are at risk of harm we have the right to go to another
country to seek protection.
• Article 15: We all have the right to be a citizen of a country and
nobody should prevent us, without good reason, from being a citizen
of another country if we wish.
• Article 16: We should have the right to marry and have a family as
soon as we’re legally old enough. Our ethnicity, nationality and religion
should not stop us from being able to do this. Men and women have
the same rights when they are married and also when they’re separated.
We should never be forced to marry. The government has a
responsibility to protect us and our family.
• Article 17: Everyone has the right to own property, and no one has the
right to take this away from us without a fair reason.
• Article 18: Everyone has the freedom to think or believe what they
want, including the right to religious belief. We have the right to change
our beliefs or religion at any time, and the right to publicly or privately
practise our chosen religion, alone or with others.
• Article 19: Everyone has the right to their own opinions, and to be
able to express them freely. We should have the right to share our ideas
with who we want, and in whichever way we choose.
• Article 20: We should all have the right to form groups and organise
peaceful meetings. Nobody should be forced to belong to a group if
they don’t want to.
• Article 21: We all have the right to take part in our country’s political
affairs either by freely choosing politicians to represent us, or by
belonging to the government ourselves. Governments should be voted
for by the public on a regular basis, and every person’s individual
vote should be secret. Every individual vote should be worth the
same.
• Article 22: The society we live in should help every person develop to
their best ability through access to work, involvement in cultural activity,
and the right to social welfare. Every person in society should have the
freedom to develop their personality with the support of the resources
available in that country.
• Article 23: We all have the right to employment, to be free to choose
our work, and to be paid a fair salary that allows us to live and support
our family. Everyone who does the same work should have the right
to equal pay, without discrimination. We have the right to come
together and form trade union groups to defend our interests as
workers.
• Article 24: Everyone has the right to rest and leisure time. There should
be limits on working hours, and people should be able to take holidays
with pay.
• Article 25: We all have the right to enough food, clothing, housing
and healthcare for ourselves and our families. We should have
access to support if we are out of work, ill, elderly, disabled,
widowed, or can’t earn a living for reasons outside of our control.
An expectant mother and her baby should both receive extra care
and support. All children should have the same rights when they
are born.
• Article 26: Everyone has the right to education. Primary schooling
should be free. We should all be able to continue our studies as far as
we wish. At school we should be helped to develop our talents, and be
taught an understanding and respect for everyone’s human rights. We
should also be taught to get on with others whatever their ethnicity,
religion, or country they come from. Our parents have the right to
choose what kind of school we go to.
• Article 27: We all have the right to get involved in our community’s
arts, music, literature and sciences, and the benefits they bring. If we
are an artist, a musician, a writer or a scientist, our works should be
protected and we should be able to benefit from them.
• Article 28: We all have the right to live in a peaceful and orderly
society so that these rights and freedoms can be protected, and these
rights can be enjoyed in all other countries around the world.
• Article 29: We have duties to the community we live in that should
allow us to develop as fully as possible. The law should guarantee
human rights and should allow everyone to enjoy the same mutual
respect.
• Article 30: No government, group or individual should act in a way
that would destroy the rights and freedoms of the Universal Declaration
of Human Rights.
Q.29. Explain the Amicable Settlement of International Dispute?
Or
Discuss the various peaceful methods for settlement of International
disputes?
Ans. Amicable Means (Pacific Means): Historically International Law
has been regarded as an international community to ensure the establishment
and preservation of global peace and security. The basic objective of the
creation of the League of Nations, 1919 and the United Nations 1945 has been
the maintenance of international peace and security. Various multilateral treaties
have been concluded that aim for the peaceful settlement of disputes. One of
the most important ones is the Hague Convention, 1899 for the Peaceful
Settlement of disputes. Article 2 para 3 of the UN Charter provides that all
international disputes must be settled by the member by peaceful means while
maintaining international peace, security, and ensuring justice is not
endangered. The Charter under Article 33, Para 1 enumerates a number of
means for the peaceful settlement of disputes. Negotiation, inquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies are
among the few choices they have. The various peaceful methods of settlement
can be broadly divided into two categories- extra-judicial and judicial method
of settlement.
a. Negotiation: This is regarded as the oldest and the simplest form of
settling disputes. When the disputant parties settle the dispute
themselves by discussion or by adjusting the disagreement, the
process is called a negotiation. The dictionary meaning of negotiation
defines it as a discussion aimed at reaching an agreement. Hence in
a case of disagreement, the method of negotiation can be used to
reach a state of peaceful agreement. This process of negotiation
may be carried out by the Heads of the State, or by their
representatives or by diplomatic agents. But the success of this
method depends largely upon the degree of acceptability of claims
of one party by the other. However, it has certain weaknesses too.
On various occasions, it has been seen that it becomes difficult to
come to a consensus.
Another striking fact is that when the disputant States are unequal, the
‘small state’ has to abide by the decisions of the ‘big state’. India and
Sri Lanka had settled their boundary dispute in the year 1974 by the
negotiation method. In 1976, India and Pakistan settled their pending
boundary disputes in the Shimla Conference through the negotiation
method. The Farraka Barrage gunfire issue, between India and
Bangladesh, was also settled with this method.
b. Good offices and Mediation: Mediation and Good offices come into
picture when parties are not willing to go for the negotiation method
or they fail to reach a state of settlement through a healthy negotiation.
A third person assists them in resolving their legal matters. Such a
third person may either be appointed by the parties themselves or by
the Security Council. There have been many instances where the
appointment has been made by the Security Council. McNaughton in
1949, in 1950 Dixon, in 1951 Graham, in 1957 Jarring were a few. It is
also important to note that the third party is under no obligation to
accept such appointments. The good offices by Robert Menzie- the
PM of Australia- were rejected by India for the settlement of the
Kashmir issue. The views of the third party acquire the character of
‘advice’ and they by no means have a binding force. There are two
ways of settling a dispute by the third party: mediation and good
offices.
c. Mediation: The third-party involved is known as the mediator. The
mediator is always expected to be just and impartial. In the process of
mediation, the mediator participates in the discussion, gives his views
and suggestions in resolving the dispute. The mediator is usually known
to settle the disputes as he may even help in signing the treaty
embodying the settlement that is reached.
A famous example of mediation is when the Soviet Premier Kosygin
settled the dispute between India and Pakistan by signing the Tashkent
Agreement in 1966.
d. Good Offices: Where in mediation, the mediator is required to be
present in the process, Good offices is basically the act through which
the third party either arranges for a meeting between the disputant
parties or he acts, in ways through which a peaceful settlement can
be reached. It is important to note here that the third party is not
directly involved in this process. When the parties have failed to
come to terms through negotiation, it is the third party that provides
for their good offices for the peaceful settlement of disputes. Once
the disputant parties are brought under one roof the third party has
no active role to play. Although Para 1 of Article 33 does not refer to
good offices as a means of settlement of dispute but it may not be
read in an exhaustive manner.
The Prime Minister of the United Kingdom, James Harold Wilson, had
lent his good offices to India and Pakistan to reach an agreement in
reference to the Kutch issue. In 1947, there was a dispute between the
Republic of Indonesia and the Netherlands, wherein the Security
Council rendered its good offices.
e. Conciliation: The process where a Commission or a Committee is
appointed and the dispute is referred to them and it is required by them
to find out about the facts and then to write a report for the settlement
of the dispute, is called conciliation. Here an effort is made for a peaceful
compromise, to sign an agreement but important to note that the
proposals made by the commission are never binding on the parties to
the dispute. This method is unique in its own way and completely
differs from mediation, inquiry or arbitration. Here, proposals are made
for the settlement after finding facts about the dispute but in mediation,
the third party is part of the meetings with the parties in dispute. Also,
it is not for the mediator to ascertain facts about the case, like in
conciliation.
Such commissions or committees that provide for conciliation may
either be permanent or ad hoc in nature. The idea of the Conciliation
Commission was born in 1899 and 1907 Hague Conventions for the
Pacific Settlement of Disputes. Several treaties after the end of the First
World War were made through the Conciliation Commission. The
General Assembly under Article 10 and 14 and the Security Council
under Article 34 has the power to appoint a commission to settle
disputes.
Among the various treaties that have been signed through the
Conciliation Commission the most important ones are:
• Pacific Settlement (1948)
• Pact of Bogota (1948)
• The Vienna Convention on Protection of the Ozone layer
Earlier the Secretary-General was required to present the list of persons
nominated by the member states for the inclusion in the panel for
conciliation. The States, however, did not show an encouraging or
positive. So, at present, the process of conciliation is mainly utilized by
the States. In 1952, the Belgo-Danish Commission and the 1956 Greco-
Italian Conciliation Commission were the key examples of the
appointment of a conciliation commission for the settlement of disputes
with reference to International Law.
f. Inquiry: One of the most common obstacles that prevent the successful
settlement of disputes in International Law is the ascertainment of the
facts, as it has been observed for the years that different views are put
forward by the disputant parties. A majority of International disputes
get stuck because of the unwillingness and inability of the parties to
agree to the facts.
The dictionary meaning of the term ‘inquiry’ suggests that it is an
act of asking for information. Similarly, for the settlement of
disputes in International Law, a Commission is to be appointed,
consisting of honest and impartial investigators, so that they can
verify the facts of the issue. The sole function of the Commission
is known to be the ascertainment of issues. This procedure for the
settlement of international disputes was born at the Hague
Conference 1899. It was said that the States who were not willing
to end their disputes by agreement might use the process of
inquiry.
It consisted of a ‘special agreement’ between the parties in dispute.
The ‘special agreement’ was truly special as it enjoyed a wide range of
powers, ranging from examination of the facts, mode of investigation
and examination, the time frame for the formation of a Commission, the
place where the Commission will sit, the language that is to be used
and the extent of the powers of the Commission. Article 11 states that
Hague was chosen to be the place where the Commission would sit if
the ‘special agreement’ chose to remain silent on the place of the
meeting.
Towards the end of the First World War, the trend for settling
International disputes was seen to shift to the process of Conciliation.
States chose to invoke Conciliation rather than to sit for inquiry. In
1967, a United Nations Register of Experts was established by the
General Assembly. Its function was primarily fact-finding, wherein the
names of the persons whose services could be used by the States were
mentioned in accordance with the fact-finding for the agreement
required for the peaceful settlement of the dispute.
g. Judicial Settlement: Judicial settlement is the process of solving a
dispute by the ‘international tribunal’ in accordance with the rules
set by the International Law. Here it is important to understand the
expression ‘international tribunal.’ A tribunal acquires an
international status because of its jurisdiction. At the present day,
the International Court of Justice, although not the only tribunal
but it is indeed the most important tribunal around the globe. There
are ad hoc tribunals and mixed commission also. It is important to
note that the International Tribunal is different from the Municipal
Tribunal. As the name suggests, International Tribunal applies
International Law and similarly Municipal Laws are applied by
Municipal Tribunal. To what extent can International Laws be applied
by the Municipal tribunal depends entirely on the relationship
between the fields of law. Arbitration and settlement of disputes by
International Law have become two very important modes of
settlement of disputes today.
h. Arbitration: Arbitration is the process of using the help, advice
and recommendation of a third party called arbitrator to settle
disputes. The International Law Commission defines it as ‘a
procedure for the settlement of disputes between states by a binding
award on the basis of law and as a result of a voluntarily accepted
undertaking’. Owing to its tendency to blend civil law procedure
and common law procedure, International arbitration is sometimes
also referred to as a hybrid form of international dispute resolution.
The International Court of Justice in the case of Qatar v. Bahrain,
stated that the word arbitration for the purpose of international law,
usually refers to ‘the settlement of disputes between states by judges
of their own choice’.
An agreement was concluded between India and Pakistan to refer the
Kutch dispute to an arbitral tribunal. Consent of the parties is also
obtained before a dispute comes into existence. There are four main
characteristics of arbitration:
i. A tribunal is constructed to hear a particular case only and its
composition is also majorly determined by the parties to the
dispute.
ii. An arbitral tribunal does not determine its own jurisdiction but
has to decide the dispute as submitted by the parties.
iii. It is required to make its award with reference to the rules adopted
for that purpose or by rules which are otherwise binding.
iv. The parties are known to have control over the procedure to be
followed.
The best-known rules of arbitration include those of the International
Chamber of Commerce (“ICC”), the London Court of International
Arbitration (“LCIA”), the International Centre for Dispute Resolution
of the American Arbitration Association (“ICDR”), and the rules of the
Singapore International Arbitration Centre (“SIAC”) and the Hong Kong
International Arbitration Centre (“HKIAC”). Although the award in the
Kutch case was vehemently criticised on the ground that it has political
overtones, it was accepted by India.
In Nicaragua v. Honduras a case concerning Border and Transborder
Armed Action, the court clearly stated that it is only concerned with the
legal aspects of disputes. If a case so arises involving both political and
legal aspects, the court cannot concern itself merely with the political
aspect. In an advisory opinion given in the Legality of the Threat or Use of
Nuclear Weapons that the presence of a political aspect along with the
legal aspect does not deprive the case of its a legal question. However,
when a question arises whether the disputes of the State are legal or not,
then such a question is solved in accordance with Article 36, para 6 of the
Statue, that says the matter shall be settled by the decision of the court.
Therefore in International Law ‘dispute’ must be taken in a restricted sense
as it does not concern all forms of disputes but only legal disputes. In
International Law, there have been two methods devised for settling legal
disputes- amicable or pacific means of settlement, and coercive or
compulsive means of settlement.

Leading Case 1
Corfu Channel Case
Leading Case 2
Anglo Norwegian Fisheries Case (U.K v Norway)
Leading Case 3
Asylum Case (Columbia v Peru) [1950] ICJ 6
Leading Case 4
North Sea Continental shelf Cases (1968) ICJ 1
Leading Case 5
The SS Lotus Case (France V Turkey)
Leading Case 6
The Nuremburg Trial
Leading Case 7
Nicaragua v united States (1984) ICJ 169
Leading Case 1
Corfu Channel Case
Background: The Corfu Channel case was the first contentious case
heard by the International Court of Justice, the supreme arbitration organ of
the United Nations and one of the principal sources of authoritative rulings
on international law.
Facts of the Case:
On May 15th 1946 the British warships passed through the Channel
without the approval of the Albanian government and were shot at. Later, on
October 22nd, 1946, a squadron of British warships (two cruisers and two
destroyers), left the port of Corfu and proceeded northward through a channel
previously swept for mines in the North Corfu Strait. Both destroyers were
struck by a mine and were heavily damaged. This incident resulted also in
many deaths.
The two ships were mined in Albanian territorial waters in a previously
swept and check-swept channel. After the explosions of October 22nd, the
United Kingdom Government sent a note to the Albanian Government, in
which it announced its intention to sweep the Corfu Channel shortly. The
Albanian reply, which was received in London on October 31st, stated that
the Albanian Government would not give its consent to this unless the
operation in question took place outside Albanian territorial waters.
Meanwhile, at the United Kingdom Government’s request, the International
Central Mine Clearance Board decided, in a resolution of November 1st, 1946,
that there should be a further sweep of the Channel, subject to Albania’s
consent.
The United Kingdom Government has informed the Albanian
Government, in communication of November 10th, that the proposed sweep
would take place on November 12th, the Albanian Government replied on the
11th, protesting against this ‘unilateral decision of His Majesty’s Government’.
It said it did not consider it inconvenient that the British fleet should undertake
the sweeping of the channel of navigation, but added that, before sweeping
was carried out, it considered it indispensable to decide what area of the sea
should be deemed to constitute this channel, and proposed the establishment
of a Mixed Commission for the purpose. It ended by saying that any sweeping
undertaken without the consent of the Albanian Government outside the
channel thus constituted, i.e., inside Albanian territorial waters where foreign
warships have no reason to sail, could only be considered as a deliberate
violation of Albanian territory and sovereignty.
After this exchange of notes, ‘Operation Retail’ took place on November
12th and 13th. One fact of particular importance is that the North Corfu Channel
constitutes a frontier between Albania and Greece, that a part of it is wholly
within the territorial waters of these States, and that the Strait is of special
importance to Greece by reason of the traffic to and from the port of Corfu.
Issues:
T he British government claimed the minefield which caused the
explosions was laid between May 15th, 1946, and October 22nd, 1946, by or
with the approval or knowledge of the Albanian Government. Thus Albania
was responsible for the explosions and loss of life and had to compensate the
UK government. In addition to the passage of the United Kingdom warships
on October 22nd, 1946, the second question in the Special Agreement relates
to the acts of the Royal Navy in Albanian waters on November 12th and 13th,
1946 when the British government carried out a minesweeping operation called
‘Operation Retail’ without the consent of Albania.
The UK held the opinion the passage on October 22nd, 1946 was
innocent and that according to rules of international law it had the right to
innocent passage through the North Corfu Channel as it is considered part of
international highways and does not need a previous approval of the territorial
state. The Albanian Government does not dispute that the North Corfu Channel
is a strait in the geographical sense; but it denies that this Channel belongs to
the class of international highways through which a right of passage exists,
on the grounds that it is only of secondary importance and not even a
necessary route between two parts of the high seas, and that it is used almost
exclusively for local traffic to and from the ports of Corfu. Thus a previous
approval of the territorial state is necessary.
a. Should the North Corfu Channel as it is considered part of international
highways?
Is Albania responsible under international law for the explosions which
occurred on the 22nd October 1946 in Albanian waters and for the damage and
loss of human life which resulted from them and is there any duty to pay
compensation?
Analysis:
The court analyzed the geographical situation of the channel
connecting two parts of the high seas and was in fact frequently being used
for international navigation. Taking into account these various considerations,
the Court concluded that the North Corfu Channel should be considered as
belonging to the class of international highways through which an innocent
passage does not need special approval and cannot be prohibited by a coastal
State in time of peace. The UK government claimed that on October 22nd,
1946, Albania neither notified the existence of the minefield nor warned the
British warships of the danger they were approaching.
According to the principle of state responsibility, they should have
done all necessary steps immediately to warn ships near the danger zone,
more especially those that were approaching that zone. In fact, nothing was
attempted by the Albanian authorities to prevent the disaster. These grave
omissions involve the international responsibility of Albania. But Albania’s
obligation to notify shipping of the existence of mines in her waters depends
on her having obtained knowledge of that fact in sufficient time before October
22nd; and the duty of the Albanian coastal authorities to warn the British
ships depends on the time that elapsed between the moment that these ships
were reported and the moment of the first explosion.
Conclusion of the Court:
The Court, therefore, reached the conclusion that Albania is responsible
under international law for the explosions which occurred on October 22nd,
1946, in Albanian waters, and for the damage and loss of human life which
resulted from them, and that there is a duty upon Albania to pay compensation
to the United Kingdom.
In the second part of the Special Agreement, the following question is
submitted to the Court:
Has the United Kingdom under international law violated the
sovereignty of the Albanian People’s Republic by reason of the acts of the
Royal Navy in Albanian waters on the 22nd October and on the 12th and 13th
November 1946 and is there any duty to give satisfaction?
Albania was in fact in war with Greece which means that the coastal
state was not in time of peace. The UK had not an innocent passage due to the
way it was carried out. The court assessed the manner of UK warships after
they had been shot on May 15th. Having thus examined the various contentions
of the Albanian Government in so far as they appear to be relevant, the Court
has arrived at the conclusion that the United Kingdom did not violate the
sovereignty of Albania by reason of the acts of the British Navy in Albanian
waters on October 22nd, 1946. The United Kingdom Government does not
dispute that ‘Operation Retail’ was carried out against the clearly expressed
wish of the Albanian Government.
It recognizes that the operation had not the consent of the international
mine clearance organizations, that it could not be justified as the exercise of a
right of innocent passage, and lastly that, in principle, international law does
not allow a State to assemble a large number of warships in the territorial
waters of another State and to carry out minesweeping in those waters. The
United Kingdom Government states that the operation was one of extreme
urgency and that it considered itself entitled to carry it out without anybody’s
consent. The Court can only regard the alleged right of intervention as the
manifestation of a policy of force, such as has, in the past, given rising to most
serious abuses and such as cannot, whatever be the present defects in
international organization, The United Kingdom Agent, in his speech in reply,
has further classified ‘Operation Retail’ among methods of self-protection or
self-help. The Court cannot accept this defense either find a place in
international law.
The final conclusion of the court:
a. On the first question put by the Special Agreement of March 25th,
1948,: The court gives judgment that the People’s Republic of Albania
is responsible under international law for the explosions which
occurred on October 22nd, 1946, in Albanian waters, and for the damage
and loss of human life that resulted there from; and Reserves for further
consideration the assessment of the amount of compensation and
regulates the procedure on this subject.
b. On the second question put by the Special Agreement on the violation
of state sovereignty, The court gives judgment that the United
Kingdom did not violate the sovereignty of the People’s Republic of
Albania by reason of the acts of the British Navy in Albanian waters
on October 22nd, 1946; and unanimously, gave judgment that by
reason of the acts of the British Navy in Albanian waters in the course
of the Operation of November 12th and 13th, 1946, the United Kingdom
violated the sovereignty of the People’s Republic of Albania, and
that this declaration by the Court constitutes in itself appropriate
satisfaction.
Leading Case 2
Anglo Norwegian Fisheries Case (U.K v Norway)
Background to the case:
The United Kingdom requested the court to decide if Norway had used
a legally acceptable method in drawing the baseline from which it measured
its territorial sea. The United Kingdom argued that customary international
law did not allow the length of a baseline drawn across a bay to be longer than
ten miles. Norway argued that its delimitation method was consistent with
general principles of international law.
Principle:
Some degree of uniformity amongst state practices was essential before
a custom could come into existence
Facts of the case:
Due to the complaints from the King of Denmark and of Norway, at the
beginning of the seventeenth century, British fishermen refrained from fishing
in Norwegian coastal waters for a long period, from 1616-1618 until 1906.
In 1906 a few British fishing vessels appeared off the coasts of Eastern
Finnmark. From 1908 onwards they returned in greater numbers. These were
trawlers equipped with improved and powerful gear. The local population
became perturbed, and measures were taken by the Norwegian Government
with a view to specifying the limits within which fishing was prohibited to
foreigners. The first incident occurred in 1911 when a British trawler was
seized and condemned for having violated these measures. Negotiations
ensued between the two Governments. These were interrupted by the war in
1914.
From 1922 onwards incidents recurred. Further conversations were
initiated in 1924. In 1932, British trawlers, extending the range of their activities,
appeared in the sectors off the Norwegian coast west of the North Cape, and
the number of warnings and arrests increased. On July 27th, 1933, the United
Kingdom Government sent a memorandum to the Norwegian Government
complaining that in delimiting the territorial sea the Norwegian authorities had
made use of unjustifiable base-lines.
On July 12th, 1935, a Norwegian Royal Decree was enacted delimiting
the Norwegian fisheries zone north of 66 degrees 28.8' North latitude. A number
of British trawlers were arrested and condemned. It was then that the United
Kingdom Government raised this dispute. The United Kingdom, in its
arguments against the Norwegian method of measuring the breadth of the
territorial sea, referred to an alleged rule of custom whereby a straight line may
be drawn across bays of less than ten miles from one projection to the other,
which could then be regarded as the baseline for the measurement of the
territorial sea.
Decisions: The Court dismissed the argument of Great Britain by
pointing out that the actual practice of states did not justify the creation of
any such custom. In other words, there had been insufficient uniformity of
behaviour.
Aftermath of the Judgement: The Judgment delivered by the Court in
this case ended a long controversy between the United Kingdom and Norway
which had aroused considerable interest in other maritime States. In 1935
Norway enacted a decree by which it reserved certain fishing grounds situated
off its northern coast for the exclusive use of its own fishermen. The question
at issue was whether this decree, which laid down a method for drawing the
baselines from which the width of the Norwegian territorial waters had to be
calculated, was valid international law. This question was rendered particularly
delicate by the intricacies of the Norwegian coastal zone, with its many fjords,
bays, islands, islets and reefs. The United Kingdom contended, inter alia, that
some of the baselines fixed by the decree did not accord with the general
direction of the coast and were not drawn in a reasonable manner. In its
Judgment of 18 December 1951, the Court found that, contrary to the
submissions of the United Kingdom, neither the method nor the actual baselines
stipulated by the 1935 Decree were contrary to international law.
Leading Case 3
Asylum Case (Columbia v Peru) [1950] ICJ 6
Background:
The case of Colombia v. Peru or commonly known as the Asylum case
is a landmark in Public International law for several reasons, inter alia, its
expansion of laws on extradition and political asylum, development of
customary international law and concept of sovereignty in International law.
The case, having been decided as early as the 1950s, [Judgment on 20
November 1950] has played a significant role in moulding the international
law and giving it the shape as it stands today.
Facts:
Peru is a country in the Continent of Latin America or South America
and has its capital at Lima. In 1948, the country went through rough times
where a very long tussle broke out in Lima for the acquisition of political
powers and government.
After a long struggle and siege, the Military Junta Government came
to power defeating the American Citizens’ Revolutionary Alliance which
automatically became the opposition party.
As a result of this loss of power and government, the leader of the
opposition, Victor Raul, commenced a rebellion against the Junta government
in Peru intending to dethrone him. However, due to extreme political powers
vested in the government, the rebellion was surmounted within 24 hours. The
leading party also instituted criminal proceedings against Raul for instigating
the rebellion and sedition. As a result, Raul had to run for his life, and he
sought asylum in the capital of Peru, Lima, under a Colombian Embassy.
Three months after his escape, on January 04, 1949, the Peruvian
government was informed about his asylum, and they immediately claimed his
custody. On the other hand, the Colombian embassy claimed that Victor has a
right to passage and requested safe passage for him to leave the country.
Moreover, the Colombian government unilaterally qualified the offence
committed by Victor to be a political offense and allowed political refuge
without consideration from the Peruvian government. The already enraged
government of Peru categorically denied the safe passage arguing that there
exists no right of political or diplomatic asylum for Raul since he is responsible
for the rebellion or in legalese, common crimes.
Due to non-agreement between both the States, Peru and Colombia,
the situation reached a diplomatic stalemate and no provision was left for
either party rather than to move an independent authority. Hence, an agreement
was signed between the two States and it was decided that the ICJ will adjudge
the matter, and the award will be agreed to by both the parties.
Issues before the ICJ:
• Whether the State of Colombia had right to unilaterally qualify the
offense of Victor Raul as a political offense under any international
treaty, customary international law or any general principles of
international law?
• Whether the Peruvian government was bound to grant safe passage to
Raul to leave the country under international law?
• Whether the Colombian government and ambassador was liable for
violating the provisions of the Havana Convention on Asylum, 1928 by
providing and continuing to provide asylum
Relevant Legal Provisions:
• Article 18 of the Bolivarian Agreement on Extradition, 1911
• Articles 1 and 2 of the Havana Convention on Asylum, 1928
• Montevideo Convention on Political Asylum, 1933
• Customary International Law
Arguments on Behalf of the Colombian Government:
The Colombian government put forth a threefold argument before
the court to substantiate its actions. Now, before proceeding with the
arguments, it is vital to note that in the present case, Colombia has
filed a claim before the court to hold its asylum valid and allow safe-
passage to Victor Raul to leave the State. On the contrary, Peru has
filed a counter-claim to hold the asylum invalid, extradite the offender
to the Peruvian government and deny safe passage to the offender.
Hence, both the parties tried to justify their actions through profound
arguments.
The threefold arguments of the Columbian government can be explained as
follows:
1. Under Article 18 of the Bolivarian Agreement, 1911 every country is
entitled to grant political asylum to any political refugee in accordance
with the international law. This has been further reiterated under the
Montevideo Convention, 1933 as well. Both the agreements were ratified
and signed by Peru and Colombia. These provisions were relied upon
by Colombia and argued that according to these treaty obligations,
Colombia had every right to grant asylum to the political offender and
hence, no law has been violated.
2. Further, Colombia argued the existence of an ancient and long practised
custom in South American countries that vests right upon these
countries to grant asylum to anyone seeking it. Further, Colombia also
claimed that the custom does not prevent any unilateral qualification
of an offender as a political offender for the purpose of granting asylum.
Hence, Colombia prayed that since the State has the right to qualify
anyone as a political offender unilaterally, it is the duty of other States
to respect such qualification and allow safe passage to such refugees
or asylum-seekers.
3. Lastly, Colombia argued that according to Article 2 (2) of the Havana
Convention, Peru was obliged to provide a free and safe passage to the
asylum seeker to leave the country without any harm. Moreover, it was
implored that the provision of this convention align with the American
custom demands respect for such rights and hence, Peru is liable to
provide passage to Raul.
Arguments on Behalf of the Peruvian Government:
As mentioned before, the Peruvian government filed a counterclaim to
claim the extradition of Kaul and hold Colombia liable for hiding an offender.
The arguments of the Peruvian government were twofold;
1. Firstly, the Bolivarian agreement is a treaty on extradition and
does not deal with asylum. Further, according to the Havana
Convention on Asylum, political asylum can be provided only in
favour of a political offender. A political offender means any
person who has committed an act towards the detriment of the
State and caused or attempted to cause harm to its sovereignty
and integrity. Political offenders are allowed asylums because
several times, these political offenders are rebels fighting against
their cruel government or a dictator’s rule and under their radar
to be found and exterminated. In the present case, Peru argued
that Victor was no t a political offender and the unilateral
qualification of Victor as a political offender by the Colombian
government is invalid.
2. Secondly, it was also argued by the Peruvian government that according
to Article 2 of the Havana Convention, asylum should be granted in
cases of dire need or utmost emergency. For instance, when there is an
immediate threat of extermination or persecution of the asylum seeker.
In the present case, the Peruvian government has not shown any such
intention of persecuting Raul. On the contrary, a legal trial has been
initiated against him in the Peruvian court. Hence, the asylum is invalid
and against international law.
Judgment of the ICJ | Asylum Case (Colombia v. Peru),
With respect to the unilateral qualification of Raul’s offense as a political
offense, the ICJ observed that in a normal scenario, the procedure is that the
asylum granting State has right to provisionally qualify an offense as a political
offense and the territorial State is entitled to consent to such qualification. In
the present case, consent was denied by the Peruvian government, but the
Colombian embassy made the qualification absolute even without consent.
Moreover, the court also observed that the Havana Convention does
not provide any right or entitlement to any State for the unilateral qualification
of an offense as a political offense. Hence, it would be wrong to assert that
Colombia had any right to make such a qualification.
The Colombian government relied highly on the Montevideo Convention
of 1933 which allows such power to the State, to which the court observed
that Peru has neither signed nor ratified the Montevideo Convention.
Moreover, the convention has not been ratified by a large number of States,
and its provisions are very rarely used. Hence, it is neither binding as a treaty
nor as a general principle of International law.
Adding to the issue of unilateral qualification, the court also held that
the Colombian government’s argument related to c customary practice in
the Latin American States to grant asylum is also futile. It is because an
essential ingredient of a valid custom is “consistent and uniform usage”. In
the case of South American States, the practice has always arisen, taking into
consideration some unforeseen exigencies and urgent need. There is no
uniform practice as such and hence, no customary International law as well.
Conclusion & Analysis:
This case evolved the concept of customary international law and
added two essential ingredients to it, i.e. consistent and uniform usage. Now,
when you distinguish practice from a custom, the essential requirement is to
prove that the practice has been going on for centuries in the same fashion
and is still in vogue guiding the way of the State. Hence, the court rightly
concluded that Peru has the right over the custody of the Victor Court.
Leading Case 4
North Sea Continental shelf Cases (1968) ICJ 1
Facts of the case
Netherlands and Denmark had drawn partial boundary lines based on
the equidistance principle. An agreement on further prolongation of the
boundary proved difficult because Denmark and Netherlands wanted this
prolongation to take place based on the equidistance principle. Germany was
of the view that, together, these two boundaries would produce aninequitable
result for her. Germany stated that due to its concave coastline, such a line
would result in her losing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline.
The Court had to decide the principles and rules of international law
applicable to this delimitation. In doing so, the Court had to decide if the
principles espoused by the parties were binding on the parties either through
treaty law or customary international law.
Issues:
Is Germany under a legal obligation to accept the equidistance-special
circumstances principle, contained in Article 6 of the Geneva Convention on
the Continental Shelf of 1958, either as a customary international law rule or
on the basis of the Geneva Convention?
The case involved the delimitation of the continental shelf areas in the
North Sea between Germany and Denmark and Germany and Netherlands
beyond the partial boundaries previously agreed upon by these States. The
parties requested the Court to decide the principles and rules of international
law that are applicable to the above delimitation because the parties disagreed
on the applicable principles or rules of delimitation.
Netherlands and Denmark relied on the principle of equidistance (the
method of determining the boundaries in such a way that every point in the
boundary is equidistant from the nearest points of the baselines from which
the breath of the territorial sea of each State is measured). Germany sought to
get a decision in favor of the notion that the delimitation of the relevant
continental shelf was governed by the principle that each coastal state is
entitled to a just and equitable share (hereinafter called just and equitable
principle/method). Contrary to Denmark and Netherlands, Germany argued
that the principle of equidistance was neither a mandatory rule in delimitation
of the continental shelf nor a rule of customary international law that was
binding on Germany.
The Court was not asked to delimit because the parties had already
agreed to delimit the continental shelf as between their countries, by agreement,
after the determination of the Court on the applicable principles.
Decision:
The use of the equidistance method had not crystallized into customary
law and the method was not obligatory for the delimitation of the areas in the
North Sea related to the present proceedings.
Leading Case 5
The SS Lotus Case (France V Turkey)
Backgorund:
Turkey’s (D) assertion of jurisdiction over a French citizen who had
been the first officer of a ship that collided with a Turkish ship on the high
seas was challenged by France (P) as a violation of international law.
Synopsis of Rule of Law:
A rule of international law, which prohibits a state from exercising criminal
jurisdiction over a foreign national who commits acts outside of the state’s
national jurisdiction, does not exist.
Facts:
A collision occurred shortly before midnight on the 2nd of August 1926
between the French (P) mail steamer Lotus and the Turkish (D) collier Boz-
Kourt. The French mail steamer was captained by a French citizen by the name
Demons while the Turkish collier Boz-Kourt was captained by Hassan Bey.
The Turks lost eight men after their ship cut into two and sank as a result of
the collision.
Although the Lotus did all it could do within its power to help the ship
wrecked persons, it continued on its course to Constantinople, where it arrived
on August 3. On the 5th of August, Lieutenant Demons was asked by the
Turkish (D) authority to go ashore to give evidence. After Demons was
examined, he was placed under arrest without informing the French (P) Consul-
General and Hassan Bey. Demons were convicted by the Turkish (D) courts
for negligence conduct in allowing the accident to occur.
This basis was contended by Demons on the ground that the court
lacked jurisdiction over him. With this, both countries agreed to submit to the
Permanent Court of International Justice, the question of whether the exercise
of Turkish (D) criminal jurisdiction over Demons for an incident that occurred
on the high seas contravened international law.
Issue:
Does a rule of international law which prohibits a state from exercising
criminal jurisdiction over a foreign national who commits acts outside of the
state’s national jurisdiction exist?
Decision:
A rule of international law, which prohibits a state from exercising criminal
jurisdiction over a foreign national who commits acts outside of the state’s
national jurisdiction, does not exist. Failing the existence of a permissive rule
to the contrary is the first and foremost restriction imposed by international
law on a state and it may not exercise its power in any form in the territory of
another state.
This does not imply that international law prohibits a state from
exercising jurisdiction in its own territory, in respect of any case that relates to
acts that have taken place abroad which it cannot rely on some permissive
rule of international law. In this situation, it is impossible to hold that there is
a rule of international law that prohibits Turkey (D) from prosecuting Demons
because he was aboard a French ship. This stems from the fact that the effects
of the alleged offense occurred on a Turkish vessel.
Hence, both states here may exercise concurrent jurisdiction over this
matter because there is no rule of international law in regards to collision
cases to the effect that criminal proceedings are exclusively within the
jurisdiction of the state whose flag is flown.
The court enunciated two principles, namely – outside its territory and
within its territory, collectively known as Lotus principles. The first principle
says that a country cannot act beyond its jurisdiction unless the same is
being allowed by a convention, custom or a treaty. The second principle says
that a state may exercise jurisdiction within its territory even though there is
no specific international law or treaty allowing to do so.
However, there is no international treaty or convention that prohibits a
state to exercise its jurisdiction in case the act/incident is committed in a
foreign country. A wide discretionary power lies in the hand of the country, in
that case, which has to decide when to invoke jurisdiction and when not. In
that pursuit, the country should keep in mind that they do not overstep the
limitation laid down by the international law. In the case, the court held that
there lies a concurrent jurisdiction i.e. both the Turkish and French authority
has the right to try the offender and not just the flag state i.e. the French
authorities. In this case, the court considered both the Turkish and French
vessel as a territorial extension of their respective countries and thus came
into the decision. The court further held that the Turkish authorities by initiating
the criminal proceeding against M. Demons did not violate article 15 of the
Lausanne Convention 1923 respecting conditions of residence and business
and jurisdiction.
Analysis:
In 1975, France enacted a law regarding its criminal jurisdiction over
aliens because of this the situation surrounding this case. The law
stipulates that aliens who commit a crime outside the territory of the
Republic may be prosecuted and judged pursuant to French law, when the
victim is of French nationality. This is contained in 102 Journal Du Droit
International 962 (Clunet 1975). Several eminent scholars have criticized
the holding in this case for seeming to imply that international law permits
all that it does not forbid.
Leading Case 6
The Nuremburg Trial
Background: Nurnberg trials, Nurnberg also spelled Nuremberg,
series of trials held in Nurnberg, Germany, in 1945–46, in which former Nazi
leaders were indicted and tried as war criminals by the International Military
Tribunal. The indictment lodged against them contained four counts:
i. crimes against peace (i.e., the planning, initiating, and waging of wars
of aggression in violation of international treaties and agreements),
ii. crimes against humanity (i.e., exterminations, deportations, and
genocide),
iii. war crimes (i.e., violations of the laws of war), and
iv. “a common plan or conspiracy to commit” the criminal acts listed in the
first three counts.
Facts:
The authority of the International Military Tribunal to conduct these
trials stemmed from the London Agreement of August 8, 1945. On that date,
representatives from the United States, Great Britain, the Soviet Union, and
the provisional government of France signed an agreement that included a
charter for an international military tribunal to conduct trials of major Axis war
criminals whose offenses had no particular geographic location. Later 19 other
nations accepted the provisions of this agreement. The tribunal was given the
authority to find any individual guilty of the commission of war crimes (counts
1–3 listed above) and to declare any group or organization to be criminal in
character. If an organization was found to be criminal, the prosecution could
bring individuals to trial for having been members, and the criminal nature of
the group or organization could no longer be questioned. A defendant was
entitled to receive a copy of the indictment, to offer any relevant explanation
to the charges brought against him, and to be represented by counsel and
confront and cross-examine the witnesses.
The tribunal consisted of a member plus an alternate selected by each
of the four signatory countries. The first session, under the presidency of
Gen. I.T. Nikitchenko, the Soviet member, took place on October 18, 1945, in
Berlin At this time, 24 former Nazi leaders were charged with the perpetration
of war crimes, and various groups (such as the Gestapo, the Nazi secret
police) were charged with being criminal in character. Beginning on November
20, 1945, all sessions of the tribunal were held in Nürnberg under the presidency
of Lord Justice Geoffrey Lawrence (later Baron Trevethin and Oaksey), the
British member.
After 216 court sessions, on October 1, 1946, the verdict on 22 of the
original 24 defendants was handed down. Robert Ley committed suicide while
in prison, and Gustav Krupp von Bohlen und Halbach mental and physical
condition prevented his being tried.) Three of the defendants were acquitted:
Hjalmar Schacht, Franz von Papen, and Hans Fritzsche. Four were sentenced
to terms of imprisonment ranging from 10 to 20 years: Karl Dönitz, Baldur von
Schirach, Albert Speer, and Konstantin von Neurath. Three were sentenced to
life imprisonment: Rudolf Hess, Walther Funk, and Erich Raeder. Twelve of the
defendants were sentenced to death by hanging. Ten of them—Hans Frank,
Wilhelm Frick, Julius Streicher, Alfred Rosenberg, Ernst Kaltenbrunner, Joachim
von Ribbentrop, Fritz Sauckel, Alfred Jodl, Wilhelm Keitel, and Arthur Seyss-
Inquart—were hanged on October 16, 1946. Martin Bormann was tried and
condemned to death in absentia, and Hermann Göring committed suicide before
he could be executed.
In rendering these decisions, the tribunal rejected the major defenses
offered by the defendants. First, it rejected the contention that only a state,
and not individuals, could be found guilty of war crimes; the tribunal held that
crimes of international law are committed by men and that only by punishing
individuals who commit such crimes can the provisions of international law
be enforced. Second, it rejected the argument that the trial and adjudication
were ex post facto. The tribunal responded that such acts had been regarded
as criminal prior to World War II.
Decision:
On October 1, 1946, after months of testimony, examination and cross
examination of the defendants, and deliberation by the judges from the four
Allied powers who presided over the trials, the verdicts were announced.
Twelve defendants received the death sentence (Bormann, Frank, Frick,
Göring, Jodl, Keitel, Kaltenbrunner, Ribbentrop, Rosenberg, Sauckel, Seyss-
Inquart, and Streicher). Three were sentenced to life in prison (Hess, Funk,
and Raeder). Four received prison terms ranging from 10 to 20 years (Dönitz,
von Neurath, Schirach, and Speer). In general, the decisions for prison
sentences rather than execution were made because the judges felt either
that certain circumstances surrounding a defendant’s actions warranted a
more lenient punishment or that the evidence was not strong enough to
support a death penalty. The sentences were carried out with two exceptions:
Göring died by suicide shortly before he could be executed, and Bormann
remained missing.
Three of the defendants were acquitted—Schacht, von Papen, and
Fritzsche. Schacht, who had been minister of economics, had played an
important role in German rearmament in the 1930s, but there was no evidence
that he had done so with the specific intention of waging war. There was no
proof that von Papen, who had been the German chancellor before Hitler came
to power, knew of Hitler’s intentions and his plans to wage aggressive wars.
Fritzsche, who had worked under Goebbels in the propaganda ministry, had
helped arouse popular sentiment in support of Hitler and the war, but that in
itself was not considered to be a war crime. All three were released when the
trials ended.
The conviction and death sentence for Julius Streicher was particularly
noteworthy. Streicher was convicted neither of planning the war nor of war
crimes but only on the charge of crimes against humanity. In issuing the
verdict, the president of the tribunal explained how he and the other judges
had determined Streicher’s guilt.
The pronouncement of the sentences ended the trial. Twelve more
trials, involving 190 defendants, were held at Nuremberg. But the first trial
and the principles of international law that it established remained the most
important. Judge Charles Wyzans, writing immediately after the trial ended,
concluded: “The outstanding accomplishment of the trial which never could
have been achieved by any more executive action, is that it has crystallized
the concept that there is inherent in the international community a
machinery both for the expression of international criminal law and for its
enforcement”
Leading Case 7
Nicaragua v united States (1984) ICJ 169
On 9 April 1984 Nicaragua filed an Application instituting proceedings
against the United States of America, together with a request for the indication
of provisional measures concerning a dispute relating to responsibility for
military and paramilitary activities in and against Nicaragua. On 10 May 1984
the Court made an Order indicating provisional measures.
One of these measures required the United States immediately to cease
and refrain from any action restricting access to Nicaraguan ports, and, in
particular, the laying of mines. The Court also indicated that the right to
sovereignty and to political independence possessed by Nicaragua, like any
other State, should be fully respected and should not be jeopardized by
activities contrary to the principle prohibiting the threat or use of force and to
the principle of nonintervention in matters within the domestic jurisdiction of
a State. The Court also decided in the a forementioned Order that the
proceedings would first be addressed to the questions of the jurisdiction of
the Court and of the admissibility of the Nicaraguan Application. Just before
the closure of the written proceedings in this phase, El Salvador filed a
declaration of intervention in the case under Article 63 of the Statute, requesting
permission to claim that the Court lacked jurisdiction to entertain Nicaragua’s
Application. In its Order dated 4 October 1984, the Court decided that El
Salvador’s declaration of intervention was inadmissible inasmuch as it related
to the jurisdictional phase of the proceedings.
After hearing argument from both Parties in the course of public hearings
held from 8 to 18 October 1984, on 26 November 1984 the Court delivered a
Judgment stating that it possessed jurisdiction to deal with the case and that
Nicaragua’s Application was admissible. In particular, it held that the
Nicaraguan declaration of 1929 was valid and that Nicaragua was therefore
entitled to invoke the United States declaration of 1946 as a basis of the
Court’s jurisdiction (Article 36, paragraphs 2 and 5, of the Statute). The
subsequent proceedings took place in the absence of the United States, which
announced on 18 January 1985 that it “intends not to participate in any further
proceedings in connection with this case”. From 12 to 20 September 1985, the
Court heard oral argument by Nicaragua and the testimony of the five
witnesses it had called. On 27 June 1986, the Court delivered its Judgment on
the merits. The findings included a rejection of the justification of collective
self-defence advanced by the United States concerning the military or
paramilitary activities in or against Nicaragua, and a statement that the United
States had violated the obligations imposed by customary international law
not to intervene in the affairs of another State, not to use force against another
State, not to infringe the sovereignty of another State, and not to interrupt
peaceful maritime commerce. The Court also found that the United States had
violated certain obligations arising from a bilateral Treaty of Friendship,
Commerce and Navigation of 1956, and that it had committed acts such to
deprive that treaty of its object and purpose.
It decided that the United States was under a duty immediately to
cease and to refrain from all acts constituting breaches of its legal obligations,
and that it must make reparation for all injury caused to Nicaragua by the
breaches of obligations under customary international law and the 1956 Treaty,
the amount of that reparation to be fixed in subsequent proceedings if the
Parties were unable to reach agreement. The Court subsequently fixed, by an
Order, time-limits for the filing of written pleadings by the Parties on the matter
of the form and amount of reparation, and the Memorial of Nicaragua was filed
on 29 March 1988, while the United States maintained its refusal to take part in
the case. In September 1991, Nicaragua informed the Court, inter alia, that it
did not wish to continue the proceedings. The United States told the Court
that it welcomed the discontinuance and, by an Order of the President dated
26 September 1991, the case was removed from the Court’s List.


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