Question 1: Trace the origin and development of

international law.

Ans: De nition: International Law maybe de ned 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, and therefore, do commonly observe in their relations with each other, and which
includes:

a. The rules of law relating to the functioning of international institutions or organisations, their
relations with each other, and their relations with states and individuals;

b. Certain rules of law relating to individuals and non-state entities so far as the rights or duties
of such individuals and non-state entities are the concern of the internationals community.

This de nition goes beyond the traditional de nition of international law as system composed
solely of rules governing the relations between states only. Such traditional de nition of the
subject, with its restriction to the conduct of states inter se, will be found set out in the majority of
the older standard works of international law, but in view of developments during the last four
decades, it cannot stated as a comprehensive description of all the rules now acknowledged to
from part of the subject.

The developments are principally:

I. The establishment of a large number of permanent international institutions or organisations

such as, for example the United Nations and the World Health Organisation, regarded as
possessing international legal personality, and entering into relations with each other and with
states.

II. The present movement (Sponsored by the United Nations and the Council of Europe) to
protect human rights and fundamental freedoms of individuals, the creation of new rules for
the punishment of persons committing the international crime of genocide or race destruction,
and the imposition of duties on individuals under the historic judgement in 1946 of the
International Military Tribunal of Nuremberg, by which certain acts were declared to be
international crimes, namely, crimes against peace, crimes against humanity, and conspiracy
to commit these crimes. Both categories of development have given rise to new rules of
international law, and may be expected to in uence the growth of new rules in the future.

Origins and Development of International Law:

The modern system of international law is a product, of only the last four hundred years. It grew to
some extent out of the usages and practices of modern European states in their intercourse and
communications, while it still bears witness to the in uence of writers and jurists of the sixteenth,
seventeenth, and eighteenth centuries, who rst formulated some of its most fundamental tenets.
Moreover, it remains stringed with concepts such as national and territorial sovereignty, and the
perfect quality and independence of states, that owe their force to political theories underlying the
modern European state system, although, curiously enough some of these concepts have
commanded the support of newly emerged non-European states.

Any historical account of the system must begin with earliest times, for even in the period of
antiquity rules of conduct to regulate the relations between independent communities were felt
necessary and emerged from the usages observed by the communities in their mutual relations.
Treaties, the immunities of ambassadors, and certain laws and usages of war are to be found
many centuries before the dawn of christianity, for example in ancient Egypt and India, while there
were historical cases of recourse to arbitration and mediation in ancient China and in the early
Islamic worlds, although it would be wrong to regard these early instances as representing any
series contribution towards the evolution of the modern system of international law.

In the period of Rome’s dominance of the ancient world, there also emerged rules governing the
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 relations between Rome and the various nations or peoples with which it had contact. One
signi cant aspect of these rules was their legal character, thus contrasting with the religious
nature of the customary rules observed by the Greek City States. But Rome’s main contribution to
the development of international law as less through these rules than through the indirect
in uence of Roman Law generally, inasmuch as when the study of Roman law was revived at a
later state in Europe, it provided analogies and principles capable of ready adaption to the
regulation of relations between modern states.

Although, the total direct contribution of the Greeks and Romans to the development of
international law was relatively meagre. Conditions favourable to the growth of a modern law of
nations did not really come into being until the fteenth century, when in Europe there began to
evolve a number of independent civilised states.

An important fact was that by the fteenth and sixteenth centuries jurists had begun to take into
account the evolution of a community of independent sovereign states and to think and write
about di erent problems of the law of nations, realising the necessity for somebody of rules to
regulate certain aspects of the relations between such states.

Where there were no established customary rules, these jurists were obliged to devise and fashion
working principles by reasoning or analogy. Not only did they draw on the principles of Roman
law which had become the subject of revived study in Europe as from the end of the eleventh
century onwards, but they had recourse also to the precedents of ancient history, to theology, to
the canon law, and to the semi theological concept of the ‘law of nature’ - a concept which for
centuries exercised a profound in uence on the development of international law.

The writings of these early jurists reveal signi cantly that one major preoccupation of sixteenth
centrally international law was the law of warfare between states, and in this connection it may be
noted that by the fteenth century the European powers had begun to maintain standing armies, a
practice which naturally caused uniform usages and practices of war to evolve.

In the nineteenth contrary international law further exploded. This was due to a number of factors
which fall more properly within the scope of historical studies, for instance, the further rise of
powerful new states both within and outside Europe, the expansion of European civilisation
overseas, the modernisation of world transport, the greater destructiveness of modern warfare,
and the in uence of inventions.

All these made it urgent for the international society fo states to acquire a system of rules which
would regulate in an ordered manner the conduct of international a airs. There was a remarkable
development during the century in the law of war and neutrality, and the great increase in
adjudications by international arbitral tribunals following the Alabama Claims Award of 1872
provided an important new source of rules and principles. Besides, sates commenced to acquire
the habit of negotiating general treaties in order to regulate a airs of mutual concern.

Other important developments have taken place in the twentieth century. The permanent Court fo
Arbitration was established by the Hague Conferences of 1899 and 1907. The Permanent Court of
International Justice was set up in 1921 as an authoritative international judicial tribunal, and was
succeeded in 1946 by the present International Court of Justice. then there has been the creation
of permanent international organisations whose functions are in e ect those of worlds
government in the interests of peace and human welfare, such as the League of Nations and its
present successor-the United Nations, the international Labour Organisation, The international
Civil Aviation, and others.

Perhaps, the most signi cant of all has been the winding scope of international law to cover by
multilateral treaty or convention not only every kind of economic or social interest a ecting sates,
but also the fundamental rights and freedoms of individual human beings.

It is characteristic of the latter-day evolution of international law that the in uence of writes has
tended to decline, and that modern international lawyers have come to pay far more regard to
practice and to decisions of tribunals. Yet the spelling out of rules of international law from
assumed trends of past and current practice cannot be carried too from assumed trends of past
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 and current practice cannot be carried too far. This was shown at the Geneva Conference of 1958
on the Law of the Sea, at the Vienna Conferences of 1961, 1963, and 1968-1969 on, respectively,
Diplomatic Relations, and the Law of Treaties, and in the Sessions 1973-1982 of the Third United
Nations Conference on the law of The Sea (UNCLOS), when in a number of instances an apparent
weight of practice in favour of a proposed rule of international law did not necessarily result in its
general acceptance by the sates represented at the Conferences.

Nevertheless, ‘natural law’ writes have ceased to command the same degree of in uence as
formerly, perhaps because of the emergence of a number of sates outside Europe and which did
not inherit doctrines of Christian civilisation such as that of ‘Natural law’, or which possessed
traditional cultures impelling them towards di ering perceptions in respect to law and legal
procedure. These new states (Afro-Asian Group) have challenged certain of the basic principles of
international law, stemming from its early European evolution in the seventeenth and eighteenth
centuries, albeit they have to some extent recognised natural law in regard to certain concept.

Moreover, many long-standing rules and concepts of international law have been subjected to
severe strains and stresses under the impact of modern developments in technology, of modern
economic exigencies, and-not-last-the more enlightened the present unprecedented political
state of a airs, for which the traditional system of international law was not devised, namely, the
division of the world into global and regional blocs, the existence of a ‘third world’ of numerous
newly-emerged states, underdeveloped economically and technologically (and sometimes
possessing unstable governments), and the numerous groupings and associations into which
states have formed themselves.

Present-Day Status of International Law:

International Law, as we know it today, is that indispensable body of rules regulating for the most
part the relations between sates, without which it would be virtually impossible for them to have
steady and frequent intercourse. It is in fact an expression of the necessity of their mutual
relationships. In the absence of some system of international law, the international society of
sates could not enjoy the bene ts of trade and commerce, of exchange of ideas, and of normal
routine communication.

The present century has witnessed a greater impetus to the development of international law than
at any previous stage of its history. This was a natural result of the growing interdependence of
sates, and of the vastly increased intercourse between them due to all kinds of inventions that
overcame the di culties of time, space, and intellectual communication. Ne reels had to be found
or devised to meet innumerable new situations.
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 Question 2: Explain the sources of international law.
Ans: Introduction: 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 ve distinct sources can be identi ed. They are International conventions/treaties,
International customs, General principles of law, Judicial decisions and writings of the publicists
and Reason and equity.

International Conventions or Treaties:

It is the rst and Important Source of International law. There is no Legislative organ in the eld 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 organisation 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

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 i) treaty giving the rule of Universal International Law. ii) Treaty giving general
principles.(i) Treaty giving the rule of Universal International Law - These treaties are signed by a
majority of the State. For Example United Nation Charter. (ii) 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.

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 classi cation 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 signi cance. 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 ll the gap in absence of law making authority.

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 quali ed 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.
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 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 re ects 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 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 ll 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.

D) 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 speci cally 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 clari ed,
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.

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 nd 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 elds 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.

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 th
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direct source of International Law, It is of great importance in those elds 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.

Decision or determinations of the organs of International Institutions:

In the modern age the decisions or determination of the organs of international Institutions are
also treated as sources of International Law. In the view of constant change in the forms and
content of the International Law, International organizations have also become a subject of
International law. The decisions and determination of the organs of such institution are
also, therefore, regarded as the sources of International Law because they help in the
development of customary rules of international law.

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 Question 2: Explain the sources of international law.
(Treaties)

Ans: Introduction: The material ‘sources’ of international law may be de ned as the actual
materials from which an international lawyer determines the rule applicable to a given situation. It
will be found that the practical approach has been adopted by courts which have decided
questions of international law. Under Article 38 Paragraph 1 of its present Statue, the International
Court of Justice is directed to apply the following:

1. International Treaties.
2. International custom, as evidence of a general practice accepted as law.
3. The general principles of law recognised by civilised nations.
4. Judicial decisions and the teachings of the most highly quali ed publicists of the various
countries as subsidiary means for the determination of rules of law.

Treaties: Treaties represent an increasingly important material source of international source of

law. The e ect of any treaty in leading to the formation of rules of international law depends on
the nature of the treaty concerned. In this connection there is a useful, although not rigid,
distinction between:

A. ‘Law-making’ treaties, which lay down rules of universal or general application;

B. ‘Treaty-contracts’ for example, a treaty between two or only a few states, dealing with a
special matter concerning these states exclusively. This corresponds to some extent to the
distinction made by continental jurists between Verinbarugen and Verträge.

Law-Making Treaties: The provisions of a ‘law-making’ treaty are directly a source of international
law. This is not so with the ‘treaty-contracts’, which simply purport to lay down special obligations
between the parties only. There has been an astonishing development of ‘law-making’ treaties
since the middle of the nineteenth century. One authority enumerated 257 such instruments
concluded in the period 1864-1914. This rapid expansion of what has been called ‘international
legislation’ was due to the inadequacy of custom in meeting the urgent demands of the
international society of states for the regulation of its common interests.

A ‘law-making’ treaty cannot in the nature of things be one containing rules of international law
always of universal application. We are forced to admit that ‘law-making’ treaties may be of two
kinds:

a. Enunciating rules of universal international law, eg the United Nations Charter;

b. Laying down general or fairly general rules.

Then, even to the extent that a ‘law-making’ treaty is universal or general, it may be really a
‘framework Conversation’, imposing duties to enact legislation, or o ering areas of choice, within
the ambit of which states are to apply the principles laid down therein, eg, Articles 35-37.
Besides, some multilateral treaties are to a large extent either con rmatory of, or represent a
codi cation of customary rules, as for example the Vienna Convention on Diplomatic Relations of
18 April, 1961.

The use of the term ‘law-making’ applied to treaties has been criticised by some writers on the
ground that these treaties do not so much lay down rules of law as set out the contractual
obligations which the states parties are to respect. In making such a criticism these writers
overlook the number of conventions and international legislative instruments that are now
adopted by the organs of international institutions, such as the General Assembly of the United
Nations and the Conference of the International labour Organisation, instead as before of being
signed by the plenipotentiaries at diplomatic conferences. True it is that some of these
conventions and instruments need to be rati ed or accepted by sates in order to come into force,
but some of the are not expressed in the consensual form.
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 It may be that the designation ‘normative treaties’ is the more appropriate one. this would be
capable of embracing:

1. Treaties operating as general standard-setting instruments, or which states apply either on a

de facto or on a provisional basis; eg, the General Agreement on Tari s and Trade of 30th
October 1947, which conditions the trading relations of so many non-party states;

2. Unrati ed conventions, signi cant as agreed statements of principles to which a large number
of states have subscribed;

3. ‘Closed’ or ‘limited participation’ treaties opened for signature by a restricted number of

countries;

4. Treaties formulating regional or community rules;

5. Treaties creating an internationally recognised statues or regime, operative, to some extent,

erga omens; eg, the Twelve-Power Treaty on Antarctica Signed at Washington, 1st December
1959;

6. Instruments such as Final Acts, to which are annexed International Regulations intended to be
applied by states parties as general rules inter se; eg, the International Regulations of 1960 for
preventing collisions at sea, formulated by the London Conference of the same year on the
Safety of Life at Sea, and being an annex to the Conference’s Final Act.

Intern-agency agreements, ie those between international organisations, and in addition, even

agreements between an international organisation and a state, can also be ‘normative’ in the
sense that they may letdown norms of general application in certain areas.

The mere fact that there are a large number of parties to a multilateral convention does not mean
that its provisions are of the nature of international law, binding non-parties. Generally speaking,
non-parties must by their conduct distinctly evidence an intention to accept such provisions as
general rules of International law. This is shown by the decision of the International Court Of
Justice in 1969 in the North Sea Continental Shelf Cases, holding on the facts that article 6 of the
Geneva Convention of 1958 on the Continental Shelf, laying down the equidistance rule for
apportionment of a common continental shelf, had not been subsequently accepted by the
German Federal Republic-a non-party-in the necessary manifest manner.

Treaty-Contracts: In contrast to ‘law-making’ treaties, treaty-contracts are not directly a ‘source’

of international law. They may, however, as between the parties or signatories thereto, constitute
particular law; hence the use of the expression ‘particular’ conventions in article 38, paragraph 1a
of the Statue of International Court of Justice. Such treaties lead also to the formation of
international law through the operation of the principles governing the development of customary
rules.

1. A series or a recurrence of treaties laying down a similar rule may produce a principle of
customary international law to the same e ect. Such treaties are thus a step in the process
whereby a rule of international custom emerges. This function treaties share with, for example,
diplomatic acts, sated laws, state judicial decisions, and the practice of international organs.
An illustration is the series of bilateral practice of international organs. An illustrations is the
series of bilateral extradition treaties concluded during the nineteenth century from which such
general rules as those that the nationals of the state demanding extradition and nationals of
third states are extraditable, were deduced and were considered by some writes as being of
general application.

2. It may happen with a treaty originally concluded between a limited number of parties only that
a rule in it be generalised by subsequent independent acceptance or imitation. In this case,
the treaty represents the initial state in the process of recurrence of usage by which customary
rules of international law have evolved. This, for instance, the rule ‘free ships, free goods’, ie
that enemy goods carried on a neutral vessel are in general immune from belligerent action,
rst appeared in a treaty of 1650 between Spain and the United Provinces, and became
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 established only at a much later period after a long process of generalisation and recognition.

3. A treaty maybe of considerable evidentiary value as to the existence of a rule which has
crystallised into law by an independent process of development. Such e ect is due to the
special authority and solemnity possessed by this type of instrument. One authority has
pointed out that it is ‘a sound maxim that a principle of international law acquired additional
force from having been solemnly acknowledged as such in the provisions of a Public treaty’. It
may also happen that a treat is so framed as to contain a provision or provisions, that maybe
expressly or impliedly declaratory of a rule of international law; the evidentiary value of such
provision or provisions is then, a fortiori, a more compelling. It is of course true that if the
treaty concerned provides in absolute or general terms for a right of withdrawal or the making
of reservations, or even, in case, for revision, this may tend to diminish the evidentiary value of
the privies or provisions concerned.

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Question 3: Explain the composition and jurisdiction of
international court of justice.

Ans: Introduction:

The sixth principal organ of the UN is the International Court of Justice, established in 1946 as the
successor to the Permanent Court of International Justice.
General Overview Established in 1945 by the Charter of the United Nations, 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.

The ICJ has 15 judges elected for nine year nonrenewable terms in o ce. The ICJ has two
distinct types of jurisdiction: contentious jurisdiction and advisory jurisdiction.

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.

a. Special agreement: Article 36, paragraph 1, of the Statute provides that the jurisdiction of the
Court comprises all cases which the parties refer to it. Such cases normally come before the
Court by noti cation 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).

b. Matters provided for in treaties and conventions: Article 36, paragraph 1, of the Statute also
provides that the jurisdiction of the Court comprises all matters specially provided for in
treaties and conventions in force. Such matters are normally brought before the Court by
means of a written application instituting proceedings; 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.

c. Compulsory jurisdiction in legal disputes : The Statute provides that a State may recognize as
compulsory, in relation to any other State accepting the same obligation, the jurisdiction of the
Court in legal disputes. Such cases are brought before the Court by means of written
applications. The nature of legal disputes in relation to which such compulsory jurisdiction
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 may be recognized are listed in Article 36, paragraphs 2-5, of the Statute, which read as
follows:

“2. 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. 3. 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.

4. 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.

5. Declarations made under Article 36 of the Statute of the Permanent Court of International
Justice and which are still in force shall be deemed, as between the parties to the present
Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice
for the period which they still have to run and in accordance with their terms.”

The texts of these declarations can be found under the heading ‘Declarations Recognizing the
Jurisdiction of the Court as Compulsory”.

d. Forum prorogatum: If a State has not recognized the jurisdiction of the Court at the time when
an application instituting proceedings is led 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.

e. 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 ling preliminary objections.

f. 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)

g. 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).

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 de ned as a disagreement on a question of law or fact, a
con ict, 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.
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 Article 35 of the Statute de nes the conditions under which States may access the Court. While
the rst 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 ling 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.

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 ve
United Nations organs, fteen 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 ling 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 led, the Court draws up a list of the States and
international organisations 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, organisations and States authorised 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
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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 t, what e ect 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 clari cation 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 “[t]he 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
specialised agencies, which may at any time be so authorised by the General Assembly, may also
request advisory opinions of the Court on legal questions arising within the scope of their
activities”.
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Question 4: State the general principles of law
recognised by civilised nations as source of
international law with decided cases.

Ans: Introduction: In any system of law, a situation may very well arise where the court in
considering a case before it realises that there is no law covering exactly that point, neither
parliamentary statute nor judicial precedent. In such instances the judge will proceed to deduce a
rule that will be relevant, by analogy from already existing rules or directly from the general
principles that guide the legal system, whether they be referred to as emanating from justice,
equity or considerations of public policy.

Such a situation is perhaps even more likely to arise in international law because of the relative
underdevelopment of the system in relation to the needs with which it is faced.

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 recognised by civilised nations’ was inserted into article 38 as a
source of law, to close the gap that might be uncovered in international law and solve this
problem which is known legally as non liquet.

The question of gaps in the system is an important one. It is important to appreciate that while
there may not always be an immediate and obvious rule applicable to every international situation,
‘every international situation is capable of being determined as a matter of law’.

There are various opinions as to what the general principles of law concept is intended to refer.
Some writers regard it as an a rmation of Natural Law concepts, which are deemed to underlie
the system of international law and constitute the method for testing the validity of the positive
(i.e. man-made) rules.

Other writers, particularly positivists, treat it as a sub-heading under treaty and customary law and
incapable of adding anything new to international law unless it re ects the consent of states.
Soviet writers like Tunkin subscribed to this approach and regarded the ‘general principles of law’
as reiterating the fundamental precepts of international law, for example, the law of peaceful co-
existence, which have already been set out in treaty and custom law.

Between these two approaches, most writers are prepared to accept that the general principles
do constitute a separate source of law but of fairly limited scope, and this is re ected in the
decisions of the Permanent Court of International Justice and the International Court of Justice.

It is not clear, however, in all cases, whether what is involved is a general principle of law
appearing in municipal systems or a general principle of international law. But perhaps this is not
a terribly serious problem since both municipal legal concepts and those derived from existing
international practice can be de ned as falling within the recognised catchment area.

While the reservoir from which one can draw contains the legal operations of 190 or so states, it
does not follow that judges have to be experts in every legal system. There are certain common
themes that run through the many di erent orders. Anglo-American common law has in uenced a
number of states throughout the world, as have the French and Germanic systems. There are
many common elements in the law in Latin America, and most Afro-Asian states have borrowed
heavily from the European experience in their e orts to modernise the structure administering the
state and westernise economic and other enterprises.

In the Chorzo ́ w Factory case in 1928, which followed the seizure of a nitrate factory in Upper
Silesia by Poland, the Permanent Court of International Justice declared that ‘it is a general
conception of law that every violation of an engagement involves an obligation to make
reparation’. The Court also regarded it as:
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 a principle of international law that the reparation of a wrong may con- sist in an indemnity
corresponding to the damage which the nationals of the injured state have su ered as a result of
the act which is contrary to international law.

The most fertile elds, however, for the implementation of municipal law analogies have been
those of procedure, evidence and the machinery of the judicial process. In the German Settlers in
Poland case, the Court, approaching the matter from the negative point of view, declared that
‘private rights acquired under existing law do not cease on a change of sovereignty . . . It can
hardly be maintained that, although the law survived, private rights acquired under it perished.
Such a contention is based on no principle and would be contrary to an almost universal opinion
and practice.’

The International Court of Justice in the Corfu Channel case, when referring to circumstantial
evidence, pointed out that ‘this indirect evidence is admitted in all systems of law and its use is
recognised by international decisions’. International judicial reference has also been made to the
concept of res judicata, that is that the decision in the circumstances is nal, binding and without
appeal.

In the Administrative Tribunal case, the Court dealt with the problem of the dismissal of members
of the United Nations Secretariat sta and whether the General Assembly had the right to refuse
to give e ect to awards to them made by the relevant Tribunal. In giving its negative reply, the
Court emphasised that:

“according to a well-established and generally recognised principle of law, a judgment rendered

by such a judicial body is res judicata and has binding force between the parties to the dispute.”

The question of res judicata was discussed in some detail in the Genocide Convention (Bosnia
and Herzegovina v. Serbia and Montenegro) case, where the issue focused on the meaning of the
1996 decision of the Court rejecting preliminary objections to jurisdiction.

The Court emphasised that the principle ‘signi es that the decisions of the Court are not only
binding on the parties, but are nal, in the sense that they cannot be reopened by the parties as
regards the issues that have been determined, save by procedures, of an exceptional nature,
specially laid down for that purpose. That principle signi es that the decisions of the Court are not

only binding on the parties, but are nal, in the sense that they cannot be reopened by the parties
as regards the issues that have been determined, save by procedures, of an exceptional nature,
specially laid down for that purpose.’

The Court noted that two purposes, one genera land one speci c, underpinned the principle of
res judicata, internationally as well as nationally. The rst referred to the stability of legal relations
that requires that litigation come to an end.

The second was that it is in the interest of each party that an issue which has already been
adjudicated in favour of that party not be argued again. It was emphasised that depriving a litigant
of the bene t of a judgment it had already obtained must in general be seen as a breach of the
principles governing the legal settlement of disputes.

The Court noted that the principle applied equally to preliminary objections judgments and merits
judgments and that since jurisdiction had been established by virtue of the 1996 judgment, it was
not open to a party to assert in current proceedings that, at the date the earlier judgment was
given, the Court had no power to give it, because one of the parties could now be seen to have
been unable to come before it. This would be to call in question the force as res judicata of the
operative clause of the judgment.

Further, the Court in the preliminary objections phase of the Right of Passage case stated that:
“it is a rule of law generally accepted, as well as one acted upon in the past by the Court, that,
once the Court has been validly seized of a dispute, unilateral action by the respondent state in
terminating its Declaration [i.e. accepting the jurisdiction of the Court], in whole or in part, cannot
divest the Court of jurisdiction. “
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 The Court has also considered the principle of estoppel which provides that a party that has
acquiesced in a particular situation cannot then proceed to challenge it. In the Temple case130
the International Court of Justice applied the doctrine, but in the Serbian Loans case in 1929, in
which French bondholders were demanding payment in gold francs as against paper money upon
a series of Serbian loans, the Court declared the principle inapplicable.

As the International Court noted in the ELSI case, there were limitations upon the process of
inferring an estoppel in all circumstances, since:

‘although it cannot be excluded that an estoppel could in certain circumstances arise from a
silence when something ought to have been said, there are obvious di culties in constructing an
estoppel from a mere failure to mention a matter at a particular point in somewhat desultory
diplomatic exchanges’.

The meaning of estoppel was con rmed in Cameroon v. Nigeria, where the Court emphasised that
‘An estoppel would only arise if by its acts or declarations Cameroon had consistently made it
fully clear that it had agreed to settle the boundary dispute submitted to the Court by bilateral
avenues alone. It would further be necessary that, by relying on such an attitude, Nigeria had
changed position to its own detriment or had su ered some prejudice.’

Another example of a general principle was provided by the Arbitration Tribunal in the AMCO v.
Republic of Indonesia case,135 where it was stated that ‘the full compensation of prejudice, by
awarding to the injured party the damnum emergens and lucrum cessans is a principle common
to the main systems of municipal law, and therefore, a general principle of law which may be
considered as a source of international law’. Another principle would be that of respect for
acquired rights.

Onecrucial general principle of international law is that of pacta sunt servanda, or the idea that
international agreements are binding. The law of treaties rests inexorably upon this principle since
the whole concept of binding international agreements can only rest upon the presupposition that
such instruments are commonly accepted as possessing that quality.

Perhaps the most important general principle, underpinning many international legal rules, is that
of good faith.This principle is enshrined in the United Nations Charter, which provides in article
2(2) that ‘all Members, in order to ensure to all of them the rights and bene ts resulting from
membership, shall ful l in good faith the obligations assumed by them in accordance with the
present Charter’, and the elaboration of this provision in the Declaration on Principles of
International Law Concern- ing Friendly Relations and Co-operation among States adopted by the
General Assembly in resolution 2625 (XXV), 1970, referred to the obligations upon states to ful l in
good faith their obligations resulting from international law generally, including treaties. It therefore
constitutes an indispensable part of the rules of international law generally.

The International Court declared in the Nuclear Tests cases that: One of the basic principles
governing the creation and performance of legal obligations, whatever their source, is the
principle of good faith. Trust and con dence are inherent in international co-operation, in
particular in an age when this co-operation in many elds is becoming increasingly essential. Just
as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the
binding character of an international obligation assumed by unilateral obligation.

Nevertheless, the Court has made the point that good faith as a concept is ‘not in itself a source
of obligation where none would otherwise exist’. The principle of good faith, therefore, is a
background principle informing and shaping the observance of existing rules of international law
and in addition constraining the manner in which those rules may legitimately be exercised. As the
International Court has noted, the principle of good faith relates ‘only to the ful lment of existing
obligations’. A further principle to be noted is that of ex injuria jus non oritur, which posits that
facts owing from wrongful conduct cannot determine the law.

Thus it follows that it is the Court which has the discretion as to which principles of law to apply in
the circumstances of the particular case under consideration, and it will do this upon the basis of
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the inability of customary and treaty law to provide the required solution. In this context, one must
consider the Barcelona Traction case between Belgium and Spain.

The International Court of Justice relied heavily upon the municipal law concept of the limited
liability company and emphasised that if the Court were to decide the case in disregard of the
relevant institutions of municipal law it would, without justi cation, invite serious legal di culties.
It would lose touch with reality, for there are no corresponding institutions of international law to
which the Court could resort.

However, international law did not refer to the municipal law of a particular state, but rather to the
rules generally accepted by municipal legal systems which, in this case, recognise the idea of the
limited company.

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 Question 5: Explain theories and kinds of state
succession. Discuss the consequences of state
succession.

Ans: Introduction: Political entities are not immutable. They are subject to change. New states
appear and old states disappear.1 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
de nes the term State succession as ‘the replacement of one State by another in the
responsibility for the international relations of territory.

Circumstances of State Succession:State succession can arise in a number of de ned

circumstances, which mirror the ways in which political sovereignty may be acquired. They are:

1. 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.

2. Secession: This refers to a situation where a part of the State decides to withdraw from the
existing State.

3. 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 recognised entity disappears in whole or in part to be succeeded
by some other authority, thus precipitating problems of transmission of rights and obligations.
There are two types of State succession and they are discussed below:

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

• Merger
• Annexation
• Subjugation

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

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

Theories of State Succession:

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
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 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 modi cations.
In fact, there are two justi cations behind this theory.

• 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.

• 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
uni cation 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 di cult to understand the e ect 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 o ers 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 criticised 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. Clean Slate 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
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 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 by 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
ful lled by the new State.

Rights and Duties arising out of State Succession:The laws regarding State succession are still in
a very nascent stage and 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.

1. 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.

2. Rights of Natives and 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.

3. Fiscal Debts ( State or Public Debts): These refer to the nancial 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 bene ts 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. E ect 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, o er 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
signi cant 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.
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 Question 6: Discuss about the occasion and legal
impact of dejure and defacto recognition of the state.

Ans: Introduction: Recognition of state under the International Legal System can be de ned 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.Essentials for recognition as a state:
Under the International Law, Article 1 of the Montevideo Conference, 1933 de nes 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 de nite 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 E ects 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.

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

Constitutive 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 recognized by the existing States.

This theory does not mean that a State does not exist unless recognized, 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.

Criticism of the theory has been criticized by several jurists they are:

• This theory is criticized because unless a state is recognized 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 recognized by other states.
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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.

Criticism of the theory: The declaratory theory of statehood has also been criticized. This theory
has been criticized 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.

There are two modes of recognition:

1. De facto Recognition: De facto recognition is a provisional recognition of statehood. It is a

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

This mode recognition is granted when a new state holds a su cient territory and control over
a particular territory, but the other existing states consider that it does not have enough
stability or any other unsetting issues. So, we can consider it as a test of control for newly
formed states. De facto recognition is a process of acknowledging a new state by a non-
committal act. The state having de facto recognition is not eligible for being a member of the
United Nations. e.g., Israel, Taiwan, Bangladesh.

2. De Jure Recognition: The recognition of a new state by the existing state when they
consider that the new state ful ls all the essential characteristics of a state. The de jure
recognition can be granted either with or without granting de facto recognition. This mode of
recognition is granted when the newly formed state acquires permanent stability and
statehood The De jure mode of recognition grants the permanent status of a newborn state as
a sovereign state.

In the case of Luther v. Sagar, it was held in this case that for the purpose of giving e ect to
the internal acts of the recognized authority there is no distinction between de facto and de
jure.

Example of de facto and de jure recognition:

• One of the examples of de facto and de jure recognition is the recognition of the Soviet
Union was established in 1917. It was de facto recognised by the government of UK in 1921
but it was not given de jure recognition until 1924.

• Bangladesh was established in March 1971. India and Bhutan recognised it just after 9
months of establishment but the United States gave it legal recognition after nearly 1 year in
April 1972.
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 The distinction between De facto Recognition and De Jure Recognition:

De facto Recognition De jure Recognition

De facto recognition is a provisional De jure recognition is legal

and factual recognition. recognition.
De facto recognition is granted when De jure recognition is granted when
there is the ful lment of the essential the state ful ls all the essential
conditions of statehood. condition of states along with
su cient control and permanency.
De facto recognition is a primary step De jure recognition can be granted
towards grant of de jure recognition. either with or without grant of de
facto recognition.

De facto recognition can either be De jure recognition is a nal and non-

conditional or non-conditional. conditional recognition
De facto recognition is revocable in De jure recognition is non- revocable.
nature.
The states recognised under this The state recognised under this mode
mode have only a few rights and have the absolute right and
obligations against other states. obligations against other states.
The state with de facto cannot The state with de jure recognition can
undergo state succession. under state succession.
The state with de facto recognition The state with de jure recognition
cannot enjoy full diplomatic enjoys full diplomatic immunities.
immunities.
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 Question 7: Analyse the privileges and immunities of
consuls.

Ans: Introduction: Consuls are agents of a state in a foreign country, but not diplomatic agents.
Their primary duty in such capacity is to protect the commercial interests of their appointing state,
but commonly a great variety of other duties are performed by them for the subjects of their state;
for example, the execution of notarial acts, the granting of passports, the solemnisation of
marriages, and the exercise of a disciplinary jurisdiction over the crews of vessels belonging to
the state appointing them.

The laws and usages as to the functions, immunities, etc of consuls were codi ed, subject to
certain adaptations, alterations, and extensions, in the Vienna Convention of 24 April 1963, on
Consular Relations( based on drafts articles adopted in 1961 by International Law Commission).

The Convention covers a wide eld, but does not preclude states from concluding treaties to
con rm, supplement, extend, or amplify its provisions (article 73), and matters not expressly
regulated by the Convention are to continue to be governed by customary International Law.

The institution of consuls is much older than that of diplomatic representatives, but the modern
system actually dates only from the sixteenth century. Originally consuls were elected by the
merchants resident in a foreign country from among their own number, but later the Great Powers
established salaried consular services and consuls were despatched to di erent countries
according to the requirements of the service.

Consuls are frequently stationed in more than one city or district in the state to which they are
sent, thus di ering from diplomatic envoys, There are, of course, other di erences. Consuls are
not equipped with Letters of Credence, but are appointed under a commission issued by their
government; the appointment is then noticed to the sate where the consul is to be stationed, the
government of which is requested to issue an exequatur or authorisation to carry out the consular
duties.

If there is no objection to the appointment of the person concerned as consul, then exequatur is
issued. Normally a consul does not enter on his duties until the grant of an exequatur. If,
subsequently, his conduct gives serious grounds for complaint, the receiving state may notify the
sending state that he is no longer acceptable; the sending state must then recall him or terminate
his functions, and if the sending state does not do so, the receiving state may withdraw the
exequatur, or cease to consider him as a member of the consulate. Article 23 of the Vienna
Convention of 1963 goes much further than this accepted practice, permitting a receiving state at
any time to notify the sending state that a consular o cer is not persona grata, or that any other
member of the consular sta is not acceptable.

Rights and Privileges of Consuls:

Consuls seldom have direct communication with the government of the state in which they are
stationed except where their authority extends over the whole area of that sate, or where there is
no diplomatic mission of their country in the state. More usually, such communication will be
made through an intermediate channel, for example, the diplomatic envoy of the state by which
they are appointed. The procedure is governed by any applicable treaty, or by the municipal and
usage of the receiving state. (See Article 38 of the Vienna Convention of 1963).

Consuls do not, like diplomatic envoys, enjoy complete immunity from local jurisdiction.
Commonly, special privileges and exemptions are granted to them under bilateral treaty, and
these may include immunity from process in the territorial courts. Apart from this it is
acknowledged that as to acts performed in their o cial capacity and falling within the functions of
consular o cers under international law, they are not subject to local proceedings unless their
government assents to the proceedings being taken.

In practice a great number of privileges have attached themselves to the consular o ce. In the
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 absence of such privileges, consuls would not be able to ful l their duties and functions, and
accordingly as a matter of convenience they have become generally recognised by all states.

Examples of such privileges are the consul’s exemption from service on juries, his right of safe
conduct, the right of free communication with nationals of the sending state, the inviolability of his
o cial papers and archives, and his right if accused of a crime to be released on bail or kept
under surveillance until his exequatur is withdrawn or another consul appointed in his place.
Certain states also grant consuls a limited exemption from taxation and customs dues.

In general, however, the privileges of consuls under customary international law are less settled
and concrete than those of diplomatic envoys, although in the Vienna Convention of 24 April
1963, referred to above, it was sought to extend to consuls mutates mutants, the majority of the
rights , privileges, and immunities applying under the Vienna Convention on Diplomatic Relations
of April 18 1961, subject to adjustments in the case of honorary consuls. In that connection, it is
signi cant that in recent years, both Great Britain and the United States have negotiated standard
consular conventions or treaties with a number of states in order that the rights and privileges of
consuls may be de ned with more certainty, and placed on as wide ask secure a basis as
possible.

The modern tendency of sites is to amalgamate their diplomatic and consular services, and it is a
matter of frequent occurrence to nd representatives of states occupying, interchangeably or
concurrently, diplomatic and consular posts. under the import of this tendency, the present
di erences between diplomatic and consular privileges may gradually be narrowed.
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 Question 8: Explain the privileges and immunities of
diplomatic envoys.

Ans: Introduction: Early all states today are represented in the territory of foreign states by
diplomatic envoys another sta s. Such diplomatic missions are of a permanent character,
although the actual occupants of the o ce may chance from time to time. Consequent on a
development over some hundreds of years, the institution of diplomatic representatives has come
to be the principal machinery by which the intercourse between states is conducted.

In fact, however, the general rise of permanent as distinct from temporary diplomatic missions
dates only from the seventeenth century. The rights, duties, and privileges of diplomatic envoys
continued to develop according to custom in the eighteenth century, and by the early nineteenth
century the time was ripe for some common understanding on the subject, which as we shall see,
took place at Congress of Vienna in 1815 rendered necessary a new and more extensive
codi cation and formulation of the laws and usages as to diplomatic envoys, which was achieved
in the Vienna Convention on Diplomatic Relations concluded on 18 April 1961. Customary
international law will, however, continue to govern questions not expressly regulated by the
Convention.

United States Diplomatic and Consular Sta in Tehran:

The international Court of Justice described the rules of diplomatic law as ‘a self-contained
regime which, on the one hand, lays down the receiving state’s obligations regarding the facilities,
privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their
possible abuse by members of the mission and speci es the means at the disposal of the
receiving site to counter any such abuse.

Classi cation of diplomatic envoys:

Originally, some controversy centred around the classi cation of diplomatic representatives,
particularly as regards matters of presence and relative status. Ambassadors sent on a temporary
mission were called ‘Extraordinary’ as contrasted with resident envoys. Later the title
‘Extraordinary’ was given to all Ambassadors whether resident or temporary, and the title of
‘Plenipotentiary’ was added to their designation. In its literal sense the term ‘Plenipotentiary’
signi ed that the envoy was fully empowered to transact business on behalf of the Head of State
who had sent him on the mission.

The designation ‘Envoy Extraordinary and Minister Plenipotentiary’ came to be applied to almost
all diplomatic representatives of the rst rank, such as Ambassadors and ministers, with the
exception of minsters resident. this titular nomenclature survives today, although the reasons for
its use are not commonly appreciated.

The congress of Vienna in 1815 attempted to codify the classi cations and order of precedence of
diplomatic envoys. This codi cation, better known as the ‘Regulation of Vienna’, was, subject, to
certain adjustments, incorporated in the provisions of articles 14 to 18 of the Vienna Convention
on Diplomatic Relations of 18 April 1961. According to these provisions, heads of diplomatic
mission are divided into three classes:

1. Ambassadors or nuncios accredited to Heads of State, and other heads of mission of

equivalent rank.

2. Envovys, minsters, and internuncio accredited to Heads of State.

3. Chanrges d’a aires accredited to Minsters for Foreign A airs.

Except in matters of precedence and etiquette, there is to be no di erentiation between heads of

mission by reason of their class. the class to which heads of their missions are to be assigned is
to be agreed between states. heads of mission are to take precedence in their respective classes
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 in the order of the date and time of taking up their functions; for this purpose, they are considered
as taking up their functions either when they have presented their credentials, or when they have
noti ed their arrival and a true copy of their credentials has been presented to the Minster for
Foreign A airs of the receiving state, or other ministry according to the practice of this state.
Alterations in the credentials of a head of mission not involving any change of class, are not to
a ect his precedence. These provisions as to precedent are to be without prejudice representative
of the Holy. The procedure to be observed in each state for the reception of heads of mission is to
be uniform in respect of each class.

The attribution of the title of Ambassador, as distinct from minster, to the head of a diplomatic
mission depends on various factors, including the rank of the states concerned. Sometimes an
embassy is a matter of tradition, as for example between France andSwitzerland. Usually,
however, now, the population and importance of the country of mission are the determining
factors. there are none the less many cases of anomalies in the allocation of embassies, which
re ect a lack of uniformity of practice. This is illustrated, eg, by the appointment in recent years of
Ambassadors-at-large and of Ambassadors as to disarmament questions.

An envoy on an ad hoc mission is usually furnished with a document of Full Powers setting out his
authority which in due course he presents to the authorities of the state with whom negotiations
are to be conducted, or to the Committee on Full Powers of the Conference at which he is to
represent his country.

Rights, privileges, and immunities of Diplomatic Envoys:

There are primarily based on the need to ensure the e cient performance of the functions of
diplomatic missions, and to a secondary degree on the theory that a diplomatic mission
personi es the sending state. the theory of ‘exterritoriality’, whereby the legation premises
represent an extension of the sending states territory, may now be discarded for all practical
purposes.

Australian case of R v Turnbull Ex p Petro :

Where two persons had been charged with throwing explosive substances at the Chancery of the
Soviet Union’s Embassy in Canberra, in the Australian Capital Territory, it was sought to argue in
prerogative write proceedings that the magistrate concerned had no jurisdiction to deal with the
alleged o ences as these were committed on foreign territory.

Fox J, of the Supreme Court of the Australian Capital Territory, rejected this contention and
expressly held, after a full review of the authorities, that an embassy is not a part of the territory of
the sending state, and that the accused could be prosecuted for such alleged o ences against
the local law.

Diplomatic Envoys enjoy exemption from local civil and criminal jurisdiction. They also have a right
to inviolability of the person. this protects them from molestation of any kind, and of course from
arrest or detention by the local authorities. Inviolability attaches likewise to the legation premises
and the archives and documents of the legation.

United States Diplomatic and Consular Sta in Tehran:

The International Court of Justice upheld the principle of the inviolability of the premises of a
diplomatic mission and the correlative duty of the receiving state to protect the premises, and the
documents and archives of the mission, as well as the receiving state’s obligation to protect the
personnel of the mission. the circumstances are that in November 1979 a strong group of militant
Iranians overran the compound of the Embassy of the United States at Teheran, seized buildings
there, entered the Chancery and gained control of the main vault, and also detained diplomatic
and consular sta and other persons as hostages. Embassy documents and archives were
destroyed and ransacked or taken away.

On the facts, the Court held that it was satis ed that the Iranian Government had failed to take
appropriate steps within the meaning of Article 22 of the Vienna Convention on Diplomatic
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 Relations to protect the premises, sta and archives of the mission against attack by the militants,
or to take appropriate steps to protect American consulates at Tabriz and Shiraz. Other provisions
of the Vienna Convention were relied upon, namely Article 25 imposting a duty on a receiving
state to accord full facilities for a mission to perform its functions, Article 26 providing for freedom
of movement and travel of mission personnel, and Article 27 imposing a duty to permit and
protect free communication on the part of the mission for all o cial purposes. the analogous or
corresponding provisions of the Vienna Convention of 1963 on Consular Relations were relied
upon so far as concerned the consular sta held as hostages, and the American consulates at
Tabriz and Shiraz. The Iranian Government, so it was ruled, had also failed in its duty to restore
the status quo and to bring the infringements by the militants to an end.

The question of inviolability of a legation’s premises arose in England in 1984 when shots were
red from the Libyan People’s Bureau in London at demonstrators outside the Bureau, killing a
woman police o cer the British Government abstained form authorising any entry of the
premises, but insisted on the recall of the Bureau’s sta , thus complying strictly with the principles
laid down by the International Court of Justice.

Articles 34 and 36 of the Vienna Convention provide that diplomatic agents are exempt from all
dues and taxes, other than certain taxes and charges set out in Article 34 ( Charges for services
rendered), and also from customs duties. The latter exemption was formerly a matter of comity or
reciprocity.

A new right is conferred by Article 26 of the Convention, namely a right of members of a

diplomatic mission to move and travel freely in the territory of the receiving state, except in
prohibited security zones. Other privileges and immunities dealt with in detail in the Convention
include the freedom of communication for o cial purposes (Article 27), exemption from Social
Security Provision (Article 33), and exemption form services and military obligations (Article 35).
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 Question 9: Discuss the functions and dispute
settlement mechanism of World Trade Organisation.

Ans: Introduction: The establishment of the World Trade Organisation (WTO) as the successor to,
the GATT on 1 January 1995 under the Marrakesh Agreement places the global trading system on
a rm 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 liberalisation 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 organisation 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 speci c 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 e 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 tari s
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 ful lment of the objectives of the WTO Agreement and other Multilateral
Trade Agreements.
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4. To ensure the implementation of the substantive code.

5. To act as a forum for the negotiation of further trade liberalisation.

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 (Extracts from the o cial website of 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 e ective 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-de ned 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 noti ed as settled “out of court” or
remain in a prolonged consultation phase — some since 1995.

Principles: equitable, fast, e ective, 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 xed 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 de ned
stages in the procedure. It introduced greater discipline for the length of time a case should take
to be settled, with exible deadlines set in various stages of the procedure. The agreement
emphasises that prompt settlement is essential if the WTO is to function e ectively.

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 rst ruling, it should not normally take more than about
one year — 15 months if the case is appealed. The agreed time limits are exible, 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 rst
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 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’
ndings or the results of an appeal. It monitors the implementation of the rulings and
recommendations, and has the power to authorise retaliation when a country does not comply
with a ruling.

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 di erences by themselves. If that fails, they
can also ask the WTO director-general to mediate or try to help in any other way.

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).

O cially, 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 di cult to overturn. The panel’s ndings have to be based on the agreements
cited.

The panel’s nal 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:

Before the rst hearing: each side in the dispute presents its case in writing to the panel.
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 rst hearing.

Rebuttals: the countries involved submit written rebuttals and present oral arguments at the
panel’s second meeting.

Experts: if one side raises scienti c or other technical matters, the panel may consult experts or
appoint an expert review group to prepare an advisory report.

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 ndings and
conclusions.

Interim report:The panel then submits an interim report, including its ndings and conclusions, to
the two sides, giving them one week to ask for a review.

Review: The period of review must not exceed two weeks. During that time, the panel may hold
additional meetings with the two sides.

Final report: A nal 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
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 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.

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 eld of law and international trade, not
a liated with any government. The appeal can uphold, modify or reverse the panel’s legal ndings
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.
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 Question 10: Explain the purposes and principles of
United Nations Organisation.

Ans: Introduction: The United Nations was established following the conclusion of the Second
World War and in the light of Allied planning and intentions expressed during that con ict. The
purposes of the UN are set out in article 1 of the Charter as follows:

1. To maintain international peace and security, and to that end, to take e ective collective
measures for the prevention and removal of threats to the peace, and for the suppression of acts
of aggression or other breaches of the peace, and to bring about by peaceful means, and in
conformity with the principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples, and to take other appropriate measures to strengthen universal
peace;

3. To achieve international co-operation in solving international problems of an economic, social,

cultural or humanitarian character, and in promoting and encouraging respect for human rights
and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.
While the purposes are clearly wide-ranging, they do provide a useful guide to the
comprehensiveness of its concerns. The question of priorities as between the various issues
noted is constantly subject to controversy and change, but this only re ects the continuing
pressures and altering political balances within the organization.

In particular, the emphasis upon decolonization, self-determination and apartheid mirrored the
growth in UN membership and the dismantling of the colonial empires, while increasing concern
with economic and developmental issues is now very apparent and clearly re ects the adverse
economic conditions in various parts of the world.

The Charter of the United Nations is not only the multilateral treaty which created the organization
and outlined the rights and obligations of those states signing it, it is also the constitution of the
UN, laying down its functions and prescribing its limitations.3 Foremost amongst these is the
recognition of the sovereignty and independence of the member states.

Under article 2(7) of the Charter, the UN may not intervene in matters essentially within the
domestic jurisdiction of any state (unless enforcement measures under Chapter VII are to be
applied). This provision has inspired many debates in the UN, and it came to be accepted that
colonial issues were not to be regarded as falling within the article 2(7) restriction.

Other changes have also occurred, demonstrating that the concept of domestic jurisdiction is not
immutable but a principle of international law delineating international and domestic spheres of
operations. As a principle of international law it is susceptible of change through international law
and is not dependent upon the unilateral determination of individual states.

In addition to the domestic jurisdiction provision, article 2 also lays down a variety of other
principles in accordance with which both the UN and the member states are obliged to act. These
include the assertion that the UN is based upon the sovereign equality of states and the principles
of ful llment in good faith of the obligations contained in the Charter, the peaceful settlement of
disputes and the prohibition on the use of force.
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 Question 11: De ne territorial sovereignty. State the
exceptions of the exercise of jurisdiction.
Ans: Introduction: 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.

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 a airs 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 e ects 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 e ect.

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 signi cant 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
o cers 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 speci ed areas under Jordan’s sovereignty,
and measures can be taken in the areas by Israel to enforce such laws.

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.
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 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 justi ed on the basis of protection of State’s vital
interests, particularly when the alien commits an o ence 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
speci c crimes, such as the 1979 Hostage Convention and the 1970 Hague Aircraft Hijacking
Convention.

Passive personality principle:

This is a situation where the accused will be prosecuted in the country of the nationality of the
victim.

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 crimes in 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.

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 pro t.
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 Noriega asserted that the case against him should be dismissed because:

a. The District court of Florida lacked jurisdiction

b. Sovereign immunity precluded the exercise of jurisdiction
c. He was captured and brought before the court as a result of an illegal military invasion
d. 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 e ects as such the
court’s Jurisdiction was Reasonable.

Jurisdiction was also justi ed under the protective principle which permits the exercise of
jurisdiction over acts that threaten the existence of a state and have potentially deleterious e ects
in the state. The alleged importation certain pounds of cocaine would have harmful e ects.

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
o cials for acts executed in their o cial 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
immunising 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.

Limits in the Exercise of Jurisdiction. (Exemption from state jurisdiction):

Customary international law has provided that a state should not exercise its jurisdiction in certain
case where exercising jurisdiction would be unreasonable. Such reasonability is based on certain
factors, i.e. link of the activity to the regulating state, foreseeable e ects in the state and the
extent to which the regulations is consistent with the practice of the international system.

Immunity of the Sovereign:

Immunity of the sovereign under international law is the immunity a foreign state enjoys from the
jurisdiction of the forum. The rationale for this immunity is the need not to degrade the dignity of
the foreign nation, its organs and representative and to leave them unconstrained in pursuing their
mission.

This immunity can operate in two ways:

I. As a bar to jurisdiction: The jurisdiction of the forum is barred; the state of the forum would
exercise jurisdiction but for the immunity.

II. By making the subject matter non-justi able or inadmissible.: The state of the forum has no
jurisdiction; the jurisdiction never existed. In Buck V. A.-G the Court of Appeal refused to
declare whether or not the Constitution of Sierra Leone as created by Order in Council of
independence was valid. The reason given was the non-existent of jurisdiction, a corollary of
sovereign immunity.

Immunity is based on two principles:

a. Par in parem non habet jurisdictionem: legal persons of equal standing cannot have disputes
settled in the courts of one of them. This principle brings out the element of pleading immunity
by reason of the status of the defendant, that is, immunity atione personae

b. Non-intervention in the internal a airs of other states. The nature of the subject matter will
lead a municipal court to hold that it has no jurisdiction. This immunity a ects essential
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 competence of the local courts in relation to the subject matter, that is, immunity ratione
materiae.

The Extent of Sovereign Immunity:

State activity in the commercial sector has led courts such as those in Belgium and Italy to
di erentiate between acts of government (jure imperii) and acts of a commercial nature (jure
gestionis). Immunity is availed with respect to the former but not the latter. This is the doctrine of
restrictive immunity.

i. There are several ways in which this doctrine nds application. These are:

As has been stated by di erentiating between jure imperii and jure gestionis.

ii. The municipal court will make the distinction based on whether there is a key transaction
which has been accomplished by way of a private law relationship for example a contract.
This criterion without further input is unsatisfactory when applied to a contract of employment
where the employee has been recruited to perform particular functions in the exercise of
governmental authority. Applying this criterion it would mean that this contract of employment
is jure gestionis.

iii. By municipal legislation:

Under this method, immunity is provided as a general rule and further provision is made for
exceptions. This method has been adopted by United Kingdom.

iv. By treaty:

This has been done through the United Nations Convention on Jurisdictional Immunities of
States and their Property, 2004. This treaty has been rati ed by 32 states as at 28/10/2013.
Kenya is not a signatory to this treaty. This convention generally denies a foreign state the
right to invoke immunity with respect to commercial transactions, contracts of employment,
pecuniary compensation for personal injuries and damage to property.

It however provides for exceptions, one of them being by agreement. Article 11 (1) provides
that unless otherwise agreed between the states concerned, a state cannot invoke immunity
from the jurisdiction before a court of another state which is otherwise competent in a
proceeding which relates to a contract of employment between the state and an individual for
work performed or to be performed, in whole or in part, in the territory of that other State.
Paragraph 2 of this Article details the exceptions to paragraph 1. For instance, Paragraph 1
does not apply where the employee has been recruited to perform particular functions in the
exercise of governmental authority.

By waiver:Immunity can be waived expressly or by conduct. Examples of waivers include prior

contract, through a treaty, diplomatic communication, and actual submission to the
proceedings of the local court.

The fact that a state has waived its immunity from the jurisdiction of the forum does not
necessarily mean that that state has waived its immunity to execution. This position is re ected in
Article 19 of United Nations Convention on Jurisdictional Immunities of States and their Property,
2004. Under this Article property used or intended to be used by the state for government non-
commercial purposes cannot be attached. Article 21 gives the categories of properties that
cannot be subject to execution. One of the categories is a bank account used or intended to be
used in the performance of the functions of the diplomatic mission of the state or its consular
posts.
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 Question 12: Explain the responsibility of a state for
international delinquencies.

Ans: Introduction: In practice, most cases of state responsibility, at least before international
tribunals, arise out of wrongs alleged to have been committed by the state concerned. By wrong
in this connection is meant the breach of some duty which rests on a state at international law
and which is not the breach of a purely contractual obligation. To such wrongs, more frequently
the term ‘International Delinquency’ is applied.

Most of the cases which come under this head concern injuries su ered by citizens abroad.
Indeed, the topic of protection of citizens abroad really makes up most of the law on this subject.
These injuries maybe of di erent kinds, for example, injuries to property in the course of riots,
personal injuries, improper arrests by the local authorities, the refusal of local judicial tribunals to a
accord justice or due redress, and so on.

Generally speaking, a person who goes to live in the territory of a foreign sate must submit to its
laws; but that is not to say that certain duties under international law in respect to the treatment of
that person do not bind the state. Examples are the duty on the state to provide proper judicial
remedies for damage su ered, and the duty to protect alien citizens from gratuitous personal
injury by its o cials or subjects.

It maybe said that according to international law, aliens resident in a country have a certain
minimum of rights necessary to the enjoyment of the life, liberty and property, but these are most
di cult to de ne.

In the subject of international delinquencies, it is important to apply the notion of imputability. This
notion assists in clarifying the subject and in providing a proper framework for its theory. To take a
practical example, if an agency of state X has caused injury to a citizen of state Y in breach of
international law, technically we say that state X will be responsible to state Y for the injury done.
What this means is that the organ or o cial to state X has committed a wrongful act, and the
conduct in breach of international law is imputed from the organ =or o cial to the State.

The imputation is thus the result of the intellectual operation necessary to bridge the gap between
the delinquency of the organ or o cial, and the attribution of breach and liability to the state.

Imputability therefore depends on the satisfaction of two conditions:

a. Conduct of a state organ or o cial in breach of an obligation de ned in a rule of international

law;

b. that according to international law, the breach will be attributed to the state.

It is only if the breach is imputable that the state becomes internationally responsible for the
delinquency. Responsibility begins where imputability ends. In establishing the incidence of state
responsibility, the inquiry proceeds as follows:

1. It is rst of all necessary to determine whether the state organ or o cial guilty of the relevant
act or omission had or had not authority under municipal law in that connection, apart from
the case where a speci c instruction form a superior instrumentality was acted on.

2. If it be found that the state organ or o cial has such authority, the next matter to be
investigated is whether the breach of duty is or is not imputable, so as to make the state
responsible at international law. Here international law acts entirely autonomously. For
instance, it may be that although the state organ or o cial exceeded the authority conferred
by municipal law, international law will none the less impute liability to the state.

Thus in the case of Yours Case: Holland Lloyd v United States

A lieutenant of states forces in a town in Mexico was ordered by the mayor of the town to
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 proceed with troops to quell riots against and stop attacks being made on certain American
Citizens. The troops, on arriving at the scene of the riot, instead of dispersing the mob,
opened re on the house in which the Americans were taking refuge and killed on of them.

The other two American citizens were then forced to leave the house, and as they did so were
killed by the troops and the mob. The troops had disobeyed superior orders by their action in
opening re. It was held that the Mexican Government was responsible for the wrongful acts
of the soldiers even though they had acted beyond the scope of their authority.

3. But if it be ascertained that their state organ or o cial had no such authority under municipal
law, so that the acts were completely ultra vires, no imputation of liability arises. Where an
incompetent sate agency commits an ultra vires act, it cannot be said to have acted on behalf
of set sate. To quote the Report of League of Nations Sub-Committee:

if the act of the o cial is accomplished outside the stop of his competence, that is to say, if he
has exceeded his powers, we are then confronted with an act which, judicially speaking, is not
an act of the State. It may be illegal, but from the point of view of international law, the o ence
cannot be imputed to the State.

However, even in these circumstances a state may become responsible if through the
omissions or default of other o cials or organs it has facilitated the commission of the ultra
vires act, or has broken an independent duty of international law, such as duty to take steps to
restrain the commission of the wrongful act, or to take measures to prevent the recurrence of
the o ence. Thus, the state may incur an indirect responsibility origin out the ultra vires acts.

4. Where the illegal acts are committed by private citizens and not by an organ or o cial of the
state the grounds for not imputing liability to the state are much stronger, for the doctrine of
imputability rests on the assumption that the delinquency has been committed by an agency
at least of the set concerned, or by persons actually acting on behalf of the state.

However, here again by their omissions, or default, the agencies of the state may have broken
some independent duty of international law, and liability may then be imputed to the state; for
example, if it fails in its duty of repression and punishment of the guilty people, or if it has
accessory after the fact by wilfully bene ting from the wrongful act or declaration (oral or
written) it has authorised or rati ed the unlawful act there must be some implied complicity in
the wrongful act either by negligent failure to prevent the incur, or to investigate the case, or to
punish the guilty o ender.

In this connection, the inordinate upsurge during recent years of terrorist acts committed by
individuals or groups territory of which these acts have been perpetrated, maybe liable in
suggested that the local state may incur liability by reason of the negligent creation of
opportunities for the commission of terrorist acts, or by the failure to punish terrorists
adequately for their crimes or at all, or because of the failure to permit their extradition to the
stat nationality of the victim or victims.

One particular example of damage done by private individuals has several times come before
arbitral tribunals, namely, that in icted the property or persons of aliens in the course of mob riots.
It has been ruled on these occasions that the state is responsible for theca’s of the rioters only if it
is guilty of a breach of good faith or has been negligent in preventing the riots. If the state
reasonably a ords adequate protection for the life and property of aliens, it has ful lled its duty at
international law towards these persons. To quote the Report of the League of Nations Sub-
Committee mentioned above:

‘Damage su ered by foreigners in case of a riot, revolution or civil war does not involve
international responsibility for the State. In case of riot, however, the State would be responsible if
the riot was directed against foreigners, as such, and the State failed to perform its duties of
surveillance and repression.’

Thus, a state is liable if it promotes or nances groups to engage in injurious mob rioting, or
encourages or instigates this activity on their part.
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 Question 13: De ne recognition. Discuss the legal
e ects of recognition.

Ans: Introduction: Recognition of state under the International Legal System can be de ned 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.

Essentials for recognition as a state: Under the International Law, Article 1 of the Montevideo
Conference, 1933 de nes 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 de nite 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.

Withdrawal of recognition: As a rule, recognition de jury once given is irrevocable. This holds true
even though recognition was given in the rst instance from purely political motives to indicate to
the world at large that relations with the recognised state or government were being initiated. It is
a paradox that when a gesture is made in a contrary sense, indicating that no further relations will
be maintained with the formerly recognised state or government, it is not in general attended by a
withdrawal of recognition.

A formal severance of diplomatic relations may be declared, but the once recognised state or
government does not otherwise lose its status in the international community. Thus, Great Britain
recognised the Soviet Government de cure in 1925, but later broke o relations in 1927, and
although relations were subsequently resumed, participated in the vote of 1939 expelling the
Soviet Union form the League of Nations. Neither the rupture of diplomatic relations nor the act of
expulsion annulled recognition of the Soviet Government.

Sometimes a refusal for recognise is virtually equivalent to a state of severance of diplomatic

relations. This is particularly well illustrated by the attitude of the United States of non-recognition
of the Soviet Government before November 1933 when recognition was given. A communication
fo the United States Department of State to the New York Court of Appeals i 1933
characteristically de ned this attitude:

‘The Department of State is cognisant of the fact that the Soviet regime is exercising control and
power in territory of the former Russian Empire and the Department of State has no disposition to
ignore the fact. The refusal of the Government of the United States to accord recognition to the
Soviet Regime is not based on the ground that the regime does not exercise control and authority
in territory of the former Russian Empire. but on other facts’

Legal E ects of Recognition:

Recognition produces legal consequences a ecting the rights, powers, and privileges of the
recognised state or government both at international law and under the municipal law of states
which have given it recognition. Also, when the subject of recognition arises form examination,
however, incidentally, by the municipal courts of such states, various problems of evidence, legal
interpretation and procedure enter into consideration.

Here it is important to bear in mind the limits between international law and state law. Recognition
confers on the recognised state or government a status under both International law and
municipal law. This section, we shall rst understand the status under municipal law, and
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accordingly will examine for this purpose the law and practice normally applied by Anglo-
American Courts.

The capacity of a recognised state or government may be considered from a negative aspect, by
ascertaining the particular disabilities of one which is unrecognised. The principal legal disabilities
of an unrecognised state or government may be enumerated as follows:

1. It cannot sue in the courts of a state which has not recognised it. The Principle underlaying
this rule was well expressed in Russian Socialist Federated Soviet Republic v CIbrario:

‘ A foreign power brings an action in our Courts not as a matter of right. Its power to do so is
the creature of comity. Until such Government is recognised by the United States, no such
comity exists.’

2. By reason of the same principle, the acts of an unrecognised state or government will not
generally be given in the courts of a non-recognising state the e ect customary according to
the rules of ‘comity’.

3. Its representatives cannot claim immunity form legal process.

4. Property due to a state whose government is unrecognised may actually be recovered by the
representatives of the régime which has been overthrown.

Recognition transmutes these disabilities into the full status of a sovereign state or government.
Accordingly, the newly recognised state or government:

1. Acquires the right of suing in the courts of law of the recognising state;

2. May have e ect given by these courts to its legislative and executive acts both past and
future.

3. May claim immunity forms suit in regard to its property and its diplomatic representatives;

4. Becomes entitled ti demand and receive possession of, or to dispose of property situate
within the jurisdiction of a recognising state which formerly belonged to a preceding
government.

At International Law, the status of a de jury recognised state or government carries with it the full
privilege of a membership of the International community, thus it acquires the capacity to enter
into diplomatic relations with other states and to conclude treaties with them. Also, such other
states become subject to various obligations under international law in relation to the newly
recognised state or government, which in its turn incurs similar reciprocal obligations. Upon it,
therefore, as from the date of recognition, fall both the burden and bounty of international law.
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 Question 14: Discuss the theories as to application of
international law in municipal law.

Ans: Introduction: Theories as to Relationship between International Law and Municipal Law can
be broadly classi ed in to two kinds known as Dualistic Theory and Monist theory.

Dualism & Monism: Dualists see International Law and Municipal Law as distinct and separate –
arising from di erent sources, governing di erent areas and relationships, and di erent in
substance. According to Dualists, international law is inferior to and weaker than, domestic law. If
international law ever becomes part of domestic law, that can only be because domestic law, has
chosen to incorporate it. Monists on the other hand contend that there is only one system of law,
of which international and domestic laws are no more than two aspects.

They justify this by claiming that both of them govern sets of individuals (States being seen for
this as collection of individuals) both are binding, and both are manifestations of a single concept
of law. Hence international law is superior and stronger, as it represents the system’s highest rules
– jurisdiction on a domestic level being only delegated to states, which cannot avoid being bound
to apply international law at the domestic level. So, if domestic law anywhere con icts with
international law that is the State’s fault, and will not excuse the State’s obligations.

Viewed on the international plane, the dispute between these two schools of thought is indeed
academic. “Formally international and domestic law as systems can never come into con ict.
What may occur is something strictly di erent, namely a con ict of obligations or an inability for a
state on the domestic plane to act in the manner required by international law”.

It is well settled that international law will apply to a state regardless of its domestic law and that a
state cannot in the international forum plead its own domestic law, or even its domestic
constitution, as an excuse for breaches of its international obligations.

Viewed on the domestic plane, however, the dispute is not merely an academic one, for the two
schools of thought lead to very di erent results. Whether international law forms part of domestic
law is a question, which in practice, is decided either by the Constitution or a Statute or by the
domestic Courts of each State.

Monists say that it will always form such a part; dualists, that it will form part only if the domestic
law has expressly as impliedly incorporated it. In fact, many States expressly accept international
law as part of their domestic law, leaving academicians to debate whether the acceptance was
necessary or super uous. But others do not.

Where international law becomes incorporated in a State’s domestic law without the need for
speci c legislation, those parts of it, which are su ciently explicit to be enforceable by the
domestic courts, are known as ‘self executing.

Some States provide by their Constitutions that certain provisions of international law shall be
self-executing. For example, the Constitution of the U.S.A., provides that international treaties are
part of the law of the land.5 Other countries have gone even further by not only making
international law self executing, but assigning to it a rank in the domestic hierarchy superior to all
prior and subsequent legislation.

Examples of this are France and Germany. But there are other States that do not accept any
international law as self-executing, or so accept it in part. For example United Kingdom (U.K.).
Where International Law and Domestic Law coincide, there is of course no problem. But if they
di er – either because international law imposes an obligation on a State which is not re ected in
its domestic law, or because obligations imposed by international law and domestic law
respectively con ict with each other in a particular case – a domestic court will generally have to
apply the following rules.
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1. Where the domestic legal system is founded on a dualists view, and the obligation under
international law has not become self-executing under a standing provision of the domestic
law or been expressly re-enacted in that law, the court must follow the domestic law and
ignore the international law. (In U.K. where the legal system is entirely dualist and there are no
provision for self-execution), U. K. courts are not entitled to take into account provision of
international treaties if the legislature has not expressly enabled them as part of domestic law
though U.K. is bound by treaty provision.

2. In any other case, the court must have regard both to international law and to domestic law. If
there proves to be a con ict between them, the court must follow any rules of domestic law
that prescribe which of them is to prevail.

3. If there are no such rules, it will probably be because the domestic legal system is founded on
the monistic view, and so international law will prevail.

Unfortunately, however, existing legal theories concerning such application of international rights
tend to belittle both the judicial agency and the desirability of judicial participation in implementing
even relatively uncontroversial international rights at domestic levels. The existing pattern of
marginalization of domestic enforcement of International Human Rights Law is deeply rooted in a
naive exploration of the theory of relationship between domestic law and international law. The
monist’s theory rightly contemplates International Law and Domestic Law as just two
manifestations of one singular concept, “Law”.

As such the judiciary in a monist country is ideally in a position to directly apply international
human rights norms. By contrast, unincorporated international human rights treaties are
considered as only having ‘persuasive’ and not ‘binding’ authority for judiciaries of dualist
tradition, although as regards customary international law most dualist court follow, if more
theoretically than practically, a notionally monist tradition of recognizing customary international
human rights as directly applicable part of national laws.

The traditional divide between ‘binding’ and ‘persuasive authority’ of international human rights
norms simply holds the possibility that a judge may if he/she so wishes, draw on those norms to
inform his/her decisional reasoning. The approach does not focus on the obligations that a state
assumes by becoming a party to an international convention, or under higher, general
international principle; nor does it articulate to refer, at the minimum, to those international legal
sources of state obligations. In short the existing dualist model, tends to weaken both the
normative and ethical regime of international human rights law as a whole.

Thus, the dualist model seems to put limits of legal positivism. But, if one concedes to the view
that, apart from state obligations, there are also values and ethical force in international human
rights, one would be able to pursue a more e ective approach to the dualism. Mayo Moran aptly
questioned the dominance of the “world of legal judgment” by the traditional “binding sources”
model of international rules.

While supporting the persuasive stance regarding non-binding international law, they critique that
the courts current approach does not properly distinguish between ‘binding’ and ‘persuasive’
authorities of international rights law and urge for judicial obligations to interpret binding
international law (e.g. customary) more actively. Moran describes the approach of courts in this
regard (treating International Law as persuasive) as one of ‘Judicial quasi-obligation’. It appears
that dualist model courts treat International Human Rights Law as not ‘rights generating’ but only
helps in articulating rights based on domestic regime of law. Such an approach is suicidal one
considering the legal foundation upon which International Human Rights Law exists.

Theories as to Application of International Law within Municipal Sphere:

For conceptual clarity on relations ship between municipal law and international law, it is pertinent
to discuss the theories as to Application of International Law within the Municipal sphere.
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 Speci c Adoption, Speci c Incorporation or Transformation Theory: The Dualist considers that the
rules of International Law cannot directly be applied within the municipal sphere by State Courts.
In order to be so applied such rules must undergo a process of speci c adoption or speci c
incorporation into municipal law. According to Dualist Theory International Law and Municipal Law
cannot impinge upon state law unless Municipal Law allows its constitutional machinery to be
used for that purpose as they are two separate and structurally di erent systems.

Dualists argue that, in the case of treaty rules, there must be transformation of the treaty into state
law. They further claim that such transformation of treaty into state law should not merely a formal
but a substantive requirement, and that alone validates the extension to individuals of the rules
laid down in treaties.

These theories rest on the supposed consensual character of International Law as contrasted with
the non-consensual nature of state law. According to this theory, there is a di erence between
Treaties which are of the nature of promises, and Municipal statutes which are of the nature of
commands and that the transformation of International Treaties to the Municipal sphere is formally
and substantively indispensable. However, this argument is criticized by saying that the distinction
between promise and command is relevant to form and procedure but not to the true legal
character of these instruments.

Delegation Theory: The ‘Delegation Theory’ which is put forward by the critics of the
transformation theory maintain that the Constitution Rules of International Law delegated to each
state Constitution, the right to determine when the provisions of a treaty or a convention is to
come into force and the manner in which they are to be embodied in State law.

Further, the supporters of Delegation theory contend that the procedure and methods to be
adopted for this purpose by the state are a continuation of the process begun with the conclusion
of the treaty or convention. They argue that, there is no transformation, no fresh creation of rules
of municipal law, but merely a prolongation of one single act of creation and the constitutional
requirements of state law are thus merely part of a unitary mechanism for the creation of law
While the monist/dualist debate continues to shape academic discourse and judicial decisions, it
is unsatisfactory in many respects.

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 e ect 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 in uence 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 o er 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 incorporate international 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/rati cation. Whereas the agreements
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 (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 a ect the rights and obligations of the citizens.
However, in the case of trade agreements, such agreements are subject to rati cation 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 rati cation 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
rati cation. This is because of a statement made on 1st April 1924 by Mr. Ponson the Under
Secretary of State for Foreign a airs 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 rati ed and published and circulated in the Treaty Series.

The object of this practice is to secure publicity for treaties and to a ord 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 rati cation. It appears that practice only
applies to treaties that are made subject to rati cation.

Thus, domestic application of international human rights law in England re ects 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 di erent
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.
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Question 15: What is intervention ? Discuss the di erent
types of intervention.

Ans: Introduction: One of the most vexing and contentious issues confronting global society is
external military intervention in the domestic jurisdictions of independent states. The concept of
intervention is inextricably linked to the concept of sovereignty. Foundational theories of
international relations contend that in a formal, legal sense states possess jurisdictional
sovereignty recognized by other states. It signi es a supreme juridical status: the right of a state
to determine and enforce its own laws.

This right is not to be confused with political autonomy, the practical ability of a state to operate
without concern for speci c external in uences or the international environment in general. Since
political entities, even so-called ‘closed’ ones such as Myanamar, are not completely cut o from
the rest of the system, autonomy is always a matter of degree. Indeed a state may exercise the
option of voluntarily curbing its jurisdictional rights through pooling sovereignty in a supranational
body such as the European Union, for example.

The phenomenon of intervention is certainly not new, and sovereignty has never been an
absolute, unchanging concept. However, commentators have detected that the international
system has entered an ‘age of intervention’, marked by an increased incidence and legitimacy of
forcible interference in the internal a airs of states. Does this indicate a normative shift in inter-
state behaviour, and if so what are the rules that govern it?

This article adopts a critical perspective to argue that the meanings of intervention are usually
constructed with an eye to legal or moral legitimation and authoritative appeals to international
practice. These representations of sovereignty and intervention have changed in accordance with
developments in the historical and geographical contexts of world politics.

But the production of elastic de nitions of sovereignty by adventurous states and their allies does
not mean that the exercise of intervention is based either on xed rights or on changing norms of
international life. There has been little sign of a universal normative shift in the underlying political
determinants of military intervention. A critical perspective suggests that the only discernibly
consistent element in intervention is its basis in interests as conceived by the ruling elites of
intervening parties – and as represented and promoted through a cadre of ‘the international
community’.

Governments have taken a close interest in the domestic order of other states when it has been
consequential to them. The impetus for intervention often comes from free- lance militarised
political groups, notably in Africa, but international intervention mainly arises in the relatively
powerful states in the world, or from regional hegemons.

In this respect, interventions also re ect the structures of inequality in the international system and
intervenors are dealing with the manifestations of problems that arise partly from their dominance
of the global economy. It is no coincidence that the ‘targets’ of intervention, are overwhelmingly
from poorer parts of the world, marginalised in, or excluded from, the capitalist world economy
and that are now to be rescued or policed by those who organise the intervening.

Although a particular intervention may be portrayed as liberating people from oppression, and can
achieve immediate results in this respect, its function is generally to contribute to an international
order that maintains a global political economy formed according to the ideologies of the most
wealthy and formative actors.

This point should not be construed as an argument in favour of leaving populations to the mercy
of brutal regimes. The non-intervention principle constructs a vision of hell as war in icted on a
people from outside the state, a distraction from the common experience of many people that hell
is on the inside. Any ethical basis for a redistributive justice that mitigates, if not rejects, the
disintegrative socio-economic e ects of the global economy ought to be reciprocated by respect
for human welfare by the ruling elites of poor states.
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 The analysis begins with the characterisation and de nition of intervention as an indication of way
the phenomenon has been framed and objecti ed. It then considers a classi cation of intervention
to indicate whether new types have emerged since the end of the Cold War.

The discussion then focuses on the debate about the changing nature of intervention and
sovereignty with particular reference to the enforcement provisions of the UN Charter. Finally, the
article questions whether the trend to decentralisation of multilateral enforcement operations is an
indicator of a normative shift. It argues that decentralisation could underpin the agendas of
governments with special interests in regional crises.

The Characterisation of Intervention: This article adopts a ‘use of force’ de nition to control the
scope of the discussion, but it should be acknowledged that other approaches are more inclusive
and include ‘peaceful settlement’ and ‘coercive acts’

1. Peaceful Settlement: A broad characterisation includes the tradition of non-violent intervention

by international ‘peace teams’ of civilian volunteers that have attempted to engineer
resolutions to social con ict in Bosnia and Herzegovina and elsewhere.

It would include humanitarian relief work by non-military organisations that require local, if not
governmental support for their activities, such as the activities of the International Committee
of the Red Cross and a multitude of non-governmental organisations (NGOs) specialising in
aid provision.

Con ict prevention and con ict resolution techniques are encompassed, such as preventive
diplomacy and deployment, mediation and the ‘good o ces’ of the UN Secretary-General.
Whilst this may suggest a promising avenue for assessing normative change in the
international system, for political scientists this characterisation is awed by its failure to
distinguish the voluntary surrender of political autonomy from forcible challenges to domestic
jurisdiction

2. Coercive Acts: Another characterisation of intervention pivots on the notion of coercion: the
authority of a state is left with no choice about how its population is governed. Economic
intervention by international nancial institutions, for example, may leave a state no choice but
to adopt a policy of marketisation. Exertion of economic power may be a more subtle and
more e ective way of intervening in a state’s domestic jurisdiction than use of military power.

In Johan Galtung’s formulation, there is equivalence between military and non-military

coercion, such that non-military controls over peripheral states amounts to ‘structural
violence’. In practice, however, coercion usually means that options exist, but are limited or
conditional. A government may be forced to act in a certain way only in the sense that if it
does not it will have to face dire consequences.

Paradoxically, however, communities do choose paths of apparent contrariness. The Cuban

revolutionary government could have submitted to the United States in the 1960s but chose
economic autonomy, cushioned by trade with communist-ruled states.

In 1999, the Milosevi government in Belgrade to refused countenance a peaceful abrogation

of sovereignty required by the Rambouillet ultimatum in the knowledge that NATO would
contravene Yugoslavia’s sovereignty with devastating force. In e ect, this characterisation of
intervention merely indicates that international relations are pervaded by the attempts of
international actors to compel others to behave in certain ways.

3. Use of force: Without accepting its pretensions to objectivity, this article features the de nition
most commonly employed by political scientists, based on use of military force. As a physical
and generally visible change in relations, with pronounced legal implications, it is widely
regarded as a prime indicator of a normative shift in respect of sovereignty. Four key elements
typically comprise a de nition:

• the use of armed force;

• trespass in a state’s domestic jurisdiction, including airspace;
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 • the absence of full and consistent consent on the part of the legal authority of a state (or all
competing authorities) for a foreign presence;

• an attempt by the intervenor to organise or alter the authority structure or policy of the
intervened state, including organising a transition of power from one authority to another.

Thus international intervention is seen as a dramatic, abnormal, change in relations between

states, in which jurisdictional boundaries are crossed by intervenors using military force to
achieve political goals that fall short of all-out war, naked conquest and annexation. It protects
the concept of statism but seek changes in government or policy.

For example, military intervention can lead to the installation of a puppet government or a form
of protectorate – as established in 1962 by the UN General Assembly in West Irian (the UN
Temporary Executive Authority), and in 2000 in East Timor by the UN after the Indonesian
administration collapsed.

However, the use of force de nition maps the phenomenon imperfectly and is vague about
what constitutes armed force. Politically, the use of clandestine activity and support to rebels
through the provision of training, advisers, logistic support and arms have advantages for
governments in blurring the concept of intervention in order to more easily fend o
accusations of breaking the non-intervention principle. An equally problematic issue is
whether military forces engaged in peacekeeping are interventionist.

4. Peacekeeping: The use of force de nition excludes traditional peacekeeping, i.e., the peaceful
insertion of unarmed, or lightly armed forces and observers with the full and consistent
consent of the parties to a dispute. Peacekeepers enter bu er zones to patrol and observe
cease res between states, or operate within states to foster stability. Such operations fall
somewhere between Chapters VI (peaceful settlement of disputes) and VII (enforcement
operations) of the UN Charter (see below).

Peacekeepers represent a diplomatic symbol of even-handedness between parties to a

dispute. The rules of engagement usually allow them to use light weapons only for purposes
of self-defense. They are not combat forces and, when under UN control, make themselves
highly conspicuous in their blue berets and white-painted installations and vehicles. When
Israel invaded the Lebanon in 1982, the UN Interim Force in Lebanon simply had to stand
aside. Peacekeeping is not regarded as a threat to sovereignty because hosts have voluntary
memoranda of understanding governing the presence of foreign soldiers.

This consent can be withdrawn and the peacekeepers required to leave, as happened to UN
Emergency Force II in 1967 when Egypt mobilized its forces against Israel.Following the UN’s
inability to deal with guerrilla war in Somalia (1992-1995) and former Yugoslavia (1992-1995),
traditional peacekeeping was dismissed by many observers in the late 1990s as irrelevant to
peace and security. It was assumed that the requirement for interstate bu er zone patrolling
was a thing of the past, and that peacekeepers would be attacked in all intrastate con icts.

These assumptions were contradicted by deployments to the Former Yugoslav Republic of

Macedonia, where a preventive deployment (UNPREDEP) patrolled the northern frontiers; to
Bougainville in Papua New Guinea (1997) where a UN-authorized, lightly armed, South Paci c
Truce Monitoring Group supervised the end of a secessionist con ict; and to the Ethiopia–
Eritrea border (2000), where for the rst time the UN deployed its Denmark- based Stand-by
High Readiness Brigade (SHIRBRIG).

However, the concept of peacekeeping underwent a transformation in the 1990s, spawning a

host of new terms (such as multidimensional peacekeeping, strategic peacekeeping, peace
enforcement, peace support and peace maintenance) to describe the increased range of tasks
and robustness required of intervention in civil con icts. In fact, the traditional ‘blue berets’
had crossed over into coercion in the past. For example, the UN’s rst Congo mission
(1960-1964) engaged in combat to enforce freedom of movement and expel foreign troops
and mercenaries.
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 It has been widely accepted now that non-combatant peacekeepers in intrastate con icts
often face ‘gray areas’ of authority and consent, in which the authority of those granting
consent is not always straightforward and the consistency of that consent cannot be relied
upon. To avert situations in which peacekeepers withdraw rather than assert authority (as in
Rwanda in 1994), advocates of coercive diplomacy and peace enforcement have developed
doctrinal and operational concepts that are now widely known as peace support operations
(PSOs).

These require troops to be prepared to engage in limited combat, by having the capability to
escalate in the use of force, for example to enforce a separation of warring parties or to coerce
them into respecting a peace agreement. Such enforcement will be included in this discussion
as conforming to the above de nition.

5. Mandates: In some situations, then, the mandates of non-UN interventions have been
endorsed retrospectively by the UN Security Council to give it legitimacy, e.g., the operations
of the Economic Community of West African States in Liberia (1991 to date). But the Security
Council mandates of the UN’s own interventions have also tended, during operations in
internal con icts, to creep into ever-extensive functions.

The UN Protection Force in Former Yugoslavia was deployed in 1992 as a traditional

peacekeeping mission. As consent disintegrated and the con ict spread, the UN troops in
Bosnia and Herzegovina were given enforcement powers under Chapter VII of the UN Charter
in February 1993. Similarly the UN Operation in Somalia began as a traditional peacekeeping
operation in 1992 but was recon gured as an enforcement operation in June 1993.

In February 2000, after three months in the eld, the mandates for peacekeepers in Sierra
Leone and the Democratic Republic of Congo changed to allow them to a ord protection to
civilian populations. In a further development at the end of last century, mandates established
quasi-protectorates in East Timor, Eastern Slavonia, Bosnia and Herzegovina, and Kosovo.

The international authorities there were charged with wielding legislative and executive
authority, with establishing security and law and order, and with operating a civil
administration. This is not to say, however, that PSOs have been adequately furnished with the
necessary personnel and capacity to carry out these enlarged mandates. On the contrary,
during the con icts in Bosnia and Herzegovina (1992-1995) and Sierra Leone (1999-2000), the
numbers of troops and their capacity to protect civilians were hopelessly inadequate.

UN member states wanted to be seen to be taking action, but without having the interests at
stake to make the commitments necessary to ensure e ective implementation. In the case of
Sierra Leone the temporarily e ective British intervention in 1999 was triggered by the
collapse of the Lom peace accord between the rebels and the government, because of its
awed demilitarisation and demobilisation provisions, for which the UK and the UN were
largely responsible.

6. Incidence of Forcible Intervention: The UN’s capabilities have been stretched by the number of
occasions it have been expected to put a force into the eld. The UN was less prominent in
the period from 1945 to 1989, during the so-called bipolar peace, when interventions
averaged about 15 a year, many of them unilateral.

The peak years of 1964, 1976 and 1988 approached 40 in number. Since the end of the Cold
War, the average has fallen to fewer than ten a year. However, the number of UN operations
(non-enforcement as well as enforcement) increased from a total of 15 throughout the period
1948-88 to 46 in the period 1989- 1997. In the same periods the number of contributing states
doubled to about 100 and the total annual expenditures trebled.

The number of troops engaged in UN PSOs (again of all kinds) increased from over 10 000 in
mid-1990 to almost 80 000 in mid-1993. The number of UN troops fell to about 15 000 in 1997
but rose again to 30 000 in March 2000. To the more recent gures, however, one should add
non-UN enforcement missions conducted since 1995. These include NATO-led troops in
Bosnia and Herzegovina and in Kosovo, and West African forces in Liberia. As of mid-2000
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about 80 000 troops were engaged in enforcement missions worldwide. PSOs involving
enforcement have thus been a growing phenomenon, indicating to observers that international
intervention has been evolving to produce a new permissive category of intervention.
Question 17: What is high seas ? State the freedoms
available to a state on the high seas.

Ans: Introduction: The seas have historically performed two important functions: rst, as a
medium of communication, and secondly as a vast reservoir of resources, both living and non-
living. Both of these functions have stimulated the development of legal rules. The fundamental
principle governing the law of the sea is that ‘the land dominates the sea’ so that the land
territorial situation constitutes the starting point for the determination of the maritime rights of a
coastal state.

A series of conferences have been held, which led to the four 1958 Conventions on the Law of the
Sea and then to the 1982 Convention on the Law of the Sea.5 The 1958 Convention on the High
Seas was stated in its preamble to be ‘generally declaratory of established principles of
international law’, while the other three 1958 instruments can be generally accepted as containing
both reiterations of existing rules and new rules.

The pressures leading to the Law of the Sea Conference, which lasted between 1974 and 1982
and involved a very wide range of states and international organisations, included a variety of
economic, political and strategic factors. Many Third World states wished to develop the
exclusive economic zone idea, by which coastal states would have extensive rights over a 200-
mile zone beyond the territorial sea, and were keen to establish international control over the deep
seabed, so as to prevent the technologically advanced states from being able to extract minerals
from this vital and vast source freely and without political constraint.

Western states were desirous of protecting their navigation routes by opposing any weakening of
the freedom of passage through international straits particularly, and wished to protect their
economic interests through free exploitation of the resources of the high seas and the deep
seabed. Other states and groups of states sought protection of their particular interests.
Examples here would include the landlocked and geographically disadvantaged states,
archipelagic states and coastal states. The e ect of this kaleidoscopic range of interests was very
marked and led to the ‘package deal’ concept of the nal draft. According to this approach, for
example, the Third World accepted passage through straits and enhanced continental shelf rights
beyond the 200-mile limit from the coasts in return for the internationalisation of deep sea mining.

The Territorial sea

1. Internal Waters: Internal waters are deemed to be such parts of the seas as are not either the
high seas or relevant zones or the territorial sea, and are accordingly classed as appertaining
to the land territory of the coastal state. Internal waters, whether harbors, lakes or rivers, are
such waters as are to be found on the landward side of the baselines from which the width of
the territorial and other zones is measured,13 and are assimilated with the territory of the
state. They di er from the territorial sea primarily in that there does not exist any right of
innocent passage from which the shipping of other states may bene t. There is an exception
to this rule where the straight baselines enclose as internal waters what had been territorial
waters. In general, a coastal state may exercise its jurisdiction over foreign ships within its
internal waters to enforce its laws, although the judicial authorities of the ag state (i.e. the
state whose ag the particular ship ies) may also act where crimes have occurred on board
ship. This concurrent jurisdiction may be seen in two cases.

A merchant ship in a foreign port or in foreign internal waters is automatically subject to the
local jurisdiction (unless there is an express agreement to the contrary), although where purely
disciplinarian issues related to the ship’s crew are involved, which do not concern the
maintenance of peace within the territory of the coastal state, then such matters would by
courtesy be left to the authorities of the ag state to regulate. Although some writers have
pointed to theoretical di erences between the common law and French approaches, in
practice the same fundamental proposition applies.
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 However, a completely di erent situation operates where the foreign vessel involved is a
warship. In such cases, the authorisation of the captain or of the ag state is necessary before
the coastal state may exercise its jurisdiction over the ship and its crew. This is due to the
status of the warship as a direct arm of the sovereign of the ag state.

2. Baselines: The width of the territorial sea is de ned from the low-water mark around the
coasts of the state. This is the traditional principle under customary international law and was
reiterated in article 3 of the Geneva Convention on the Territorial Sea and the Contiguous Zone
in 1958 and article 5 of the 1982 Convention, and the low-water line along the coast is de ned
‘as marked on large-scale charts o cially recognized by the coastal state’. In the majority of
cases, it will not be very di cult to locate the low water line which is to act as the baseline for
measuring the width of the territorial sea.

By virtue of the 1958 Convention on the Territorial Sea and the 1982 Law of the Sea
Convention, the low-water line of a low-tide elevation may now be used as a baseline for
measuring the breadth of the territorial sea if it is situated wholly or partly within the the
territorial sea measured from the mainland or an island.

However, a low-tide elevation wholly situated beyond the territorial sea will generate no
territorial sea of its own. When a low-tide elevation is situated in the overlapping area of the
territorial sea of two states, both are in principle entitled to use this as part of the relevant low-
water line in measuring their respective territorial sea. However, the International Court has
taken the view that low-tide elevations may not be regarded as part of the territory of the state
concerned and thus cannot be fully assimilated with islands.

A low-tide elevation with a lighthouse or similar installation built upon it may be used for the
purpose of drawing a straight baseline. Sometimes, however, the geography of the state’s
coasts will be such as to cause certain problems: for instance, where the coastline is deeply
indented or there are numerous islands running parallel to the coasts, or where there exist
bays cutting into the coastlines. Special rules have evolved to deal with this issue, which is of
importance to coastal states, particularly where foreign vessels regularly sh close to the limits
of the territorial sea.

A more rational method of drawing baselines might have the e ect of enclosing larger areas of
the sea within the state’s internal waters, and thus extend the boundaries of the territorial sea
further than the traditional method might envisage.

3. The width of the territorial sea: There has historically been considerable disagreement as to
how far the territorial sea may extend from the baselines. Originally, the ‘cannon shot’ rule
de ned the width required in terms of the range of shore-based artillery, but at the turn of the
nineteenth century, this was transmuted into the 3-mile rule. This was especially supported by
the United States and the United Kingdom, and any detraction had to be justi ed by virtue of
historic rights and general acquiescence as, for example, the Scandinavian claim to 4 miles.
However, the issue was much confused by the claims of many coastal states to exercise
certain jurisdictional rights for particular purposes: for example, sheries, customs and
immigration controls.

It was not until after the First World War that a clear distinction was made between claims to
enlarge the width of the territorial sea and claims over particular zones. The 3-mile rule has
been discarded as a rule of general application to be superseded by contending assertions.
The 1958 Geneva Convention on the Territorial Sea did not include an article on the subject
because of disagreements among the states, while the 1960 Geneva Conference failed to
accept a United States–Canadian proposal for a 6-mile territorial sea coupled with an
exclusive sheries zone for a further 6 miles by only one vote. Article 3 of the 1982
Convention, however, notes that all states have the right to establish the breadth of the
territorial sea up to a limit not exceeding 12 nautical miles from the baselines. This clearly
accords with the evolving practice of states.78 The UK adopted a 12-mile limit in the Territorial
Sea Act 1987, for instance, as did the US by virtue of Proclamation No. 5928 in December
1988.
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 4. The Juridical Nature of the Territorial Sea: The territorial sea appertains to the territorial
sovereignty of the coastal state and thus belongs to it automatically. There have been a
number of theories as to the precise legal character of the territorial sea of the coastal state,
ranging from treating the territorial sea as part of the res communis, but subject to certain
rights exercisable by the coastal state, to regarding the territorial sea as part of the coastal
state’s territorial domain subject to a right of innocent passage by foreign vessels.82
Nevertheless, it cannot be disputed that the coastal state enjoys sovereign rights over its
maritime belt and extensive jurisdictional control, having regard to the relevant rules of
international law.

The fundamental restriction upon the sovereignty of the coastal state is the right of other
nations to innocent passage through the territorial sea, and this distinguishes the territorial sea
from the internal waters of the state, which are fully within the unrestricted jurisdiction of the
coastal nation. Articles 1 and 2 of the Convention on the Territorial Sea, 1958 provide that the
coastal state’s sovereignty extends over its territorial sea and to the airspace and seabed and
subsoil thereof, subject to the provisions of the Convention and of international law.

The territorial sea forms an undeniable part of the land territory to which it is bound, so that a
cession of land will automatically include any band of territorial waters. The coastal state may,
if it so desires, exclude foreign nationals and vessels from shing within its territorial sea and
(subject to agreements to the contrary) from coastal trading (known as sabotage), and reserve
these activities for its own citizens. Similarly the coastal state has extensive powers of control
relating to, amongst others, security and customs matters.

It should be noted, however, that how far a state chooses to exercise the jurisdiction and
sovereignty to which it may lay claim under the principles of international law will depend upon
the terms of its own municipal legislation, and some states will not wish to take advantage of
the full extent of the powers permitted them within the international legal system.

5. 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
emphasised that the coastal state must not hamper innocent passage and must publicise any
dangers to navigation in the territorial sea of which it is aware. Passage is de ned 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
speci c 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 shing vessels when they do not observe such laws and regulations as the coastal
state may make and publish to prevent these ships from shing in the territorial sea.

In addition, submarines must navigate on the surface and show their ag. 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
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 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, scal, immigration or sanitary regulations;
wilful and serious pollution; shing; 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 tra c;

(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 sheries 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 scienti c research and hydrographic surveys;
(h) The prevention of infringement of the customs, scal, immigration or
sanitary laws and regulations of the coastal state.

6. 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 de ned
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 ag state will bear
international responsibility in cases of loss or damage su ered as a result.

7. 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 de ned 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 shing stocks in a particular area, or to enable the coastal state to have
exclusive or principal rights to the resources of the proclaimed 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 of
other 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
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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 di erentiated 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 speci cally 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 justi able 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
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 Question 19: Explain the modes of acquisition and loss
of nationality.

Ans: The concept of nationality is important since it determines the bene ts to which person may
be entitled and the obligation such as conscription which they must perform. The problem is that
there is no coherent accepted de nition of nationality in international law and only con iction
description under the di erent municipal laws of states, not only that but the rights and duties
attendant upon nationality vary from state to state.

By the virtue of nationality, a person becomes entitled to a series of rights ranging from obtaining
a valid passport enabling travel abroad to being able to vote, and nationals are also entitled to the
protection of their state and to various bene ts prescribed under international law.

A case which illustrates the point on one of the many incidences of nationality is that of
Nottebohm. The International Court of Justice (ICJ) has dealt with Nottebohm cases which have
some relevance to the question of the nationality of ships.

Nottebohm case concerned the question of whether Liechtenstein could exercise diplomatic
Protection on behalf of one of its nationals, Mr. Nottebohm, in respect of certain acts committed
by Guatemala against him which were alleged to be breaches of international law.

In brief Nottebohm had been born in Germany in 1881. He possessed German nationality, but
from1905 had spent much of his life in Guatemala which he had made the headquarters of his
business activities. He obtained Liechtenstein nationality through naturalisation in 1939. His
connections with that country were slight, being limited to a few visits to a brother who lived
there. At the outset the Court made it clear that it was not concerned with the law of nationality in
general, but only with the question of whether Liechtenstein could exercise diplomatic protection
in respect of Nottebohm vis à vis Guatemala.

The Court noted that while under international law it was up to each State to lay down rules
governing the grant of its nationality, a State could not claim that, The rules it has thus laid down
are entitled to recognition by another state unless it has acted in conformity with this general aim
of making the legal bond of nationality accord with the individual’s genuine connection with the
State which assumes the defence of its citizens by means of protection as against other States.

The Court said in this case that nationality is a legal bond having as its basis a social fact of
attachment, a genuine connection of existence, interests and sentiments, together with the
existence of reciprocal rights and duties.The Court found on the facts that there was insu cient
connection between Nottebohm and Liechtenstein for the latter to be able to exercise diplomatic
protection on Nottebohm’s behalf vis a vis Guatemala.

De nition of Nationality:

Charles G. Fenwick – Nationality may be de ned as a bond which unites a person to a given
State, which constitutes his membership in the particular State, which gives them a claim to the
protection of that state and which subjects him to the obligations created by the laws of that
State.

J.G Starke – Nationality may be de ned as the legal status of membership of the collectivity of
individuals whose acts, decisions and policy are vouchsafed through the legal concept of the
State representing those individuals.
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 Modes of acquisition and loss of Nationality: Nationality is the medium through which an
Individual can enjoy the bene ts from International Law. A State exercises jurisdiction over its
nationals, traveling or residing aboard, they remain under its personal supremacy. International
Law permits the exercise of such jurisdiction and sets the limits within which it can be exercised.
The term Nationality signi es the legal tie between Individuals and the States.

Nationality and Citizenship: Nationality and Citizenship are often considered to be synonymous
with each other. But the term nationality di ers from citizenship. Nationality has reference to the
jural relationship which may arise from consideration under International Law.

On the other hand, citizenship has reference to the jural relationship under municipal law. In other
words, nationality determines the civil rights of a person, natural or arti cial, particularly with
reference to the International law, whereas citizenship is intimately connected with civil rights
under the municipal law. Hence all citizens are nationals of a particular state, but al nationals may
not be citizens of the State. In other words, citizens are those persons who have full political
rights as distinguished from nationals, who may enjoy full political rights and are still domiciled in
that country.

Modes of Acquiring Citizenship:

1. By Birth - The rst and the most important mode of acquiring nationality is by birth. Nationality
is conferred to a person by many States on the basis of birth. All those persons take birth
within territorial limit of a State acquire the nationality of the State. This principle is called jus
soli. United States, U.K and many other States of Latin American follow the principle of jus
soli. Section 3 of the Indian Citizenship Act 1955 had provided nationality on the basis of birth.

2. By Naturalisation - The second mode of acquiring a Nationality is by naturalisation. A person

requires nationality at birth. However, his nationality may later on change. When the nationality
of a person changes subsequently, and he acquires the nationality of some other State, the
process of acquisition is known as naturalisation. A person may acquire nationality through
naturalisation in di erent ways. There are six ways which are as follows

• Through Marriage
• Legitimation
• Acquisition of domicile
• Appointment as Government o cial
• Grant on the application of the state. Adoption of the child by parents who are nationals of the
other States also entitled the children to acquire the nationality of his parents. Section 6 of
Indian Citizenship Act 1955 provides that a person make acquire citizenship by naturalisation
upon ful lment of certain conditions.

3. By Resumption – The third mode of acquiring Nationality is by resumption. Sometimes a

person may lose his nationality because of certain reasons. Subsequently, He may resume,
recover his original nationality after ful lling certain conditions. Section 20 of the Citizenship
rules 1956 provides a procedure for restoration of nationality.

4. By Subjugation – The fourth mode of acquiring nationality is subjugation. Section 7 of the

Indian Citizenship Act 1955 Lays down that if any territory becomes a part of India those
persons from such territory shall automatically become Citizen of India.

5. By Cession – The fth mode of acquiring Nationality is Cession. When a part of the territory of
a state is ceded to another State. All Nationals of the former acquires the nationality of the
latter State.

6. By Option – The Sixth mode of acquiring Nationality is by Option. When a state is

proportioned into two or more States, the nationals of the former state have an option to
become the nationals of any of the successor States. The same principle applies in the case
of exchange of territory.
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7. By Registration –A person may acquire the nationality of a State through Registration. The
process of registration may be di erent from one State to another depending upon the laws of
that State. It takes place when a person becomes the subject of a state to which he was
before an alien.

Following are the modes of loss of Nationality: According to Oppenheim, there are ve Modes of
losing Nationality are as follows:

1. By Release: Some States, such as Germany., Law provides that the citizens may lose the
nationality by release. In the loss of nationality by release it is necessary to submit an
application for the same. If the Application is accepted, the person concerned is released from
the nationality of the State concerned.

2. Deprivation: Certain States have framed some municipal laws the breach of which by its
nationals results in the deprivation of their nationality. Under the American laws, service in the
armed forces of a foreign State also results in deprivation of citizenship.

3. Expiration: In certain States, on account of legislation citizenship expires due to long stay
abroad. A naturalist American citizen loses his nationality by having s continuance residence
for three years in the territory of a foreign state of which he was formerly a national or in which
the place of his birth is situated.

4. Renunciation: A person may also renounce his nationality. The need for renunciation arises
when a person acquires the nationality of more than one State. In such a condition he has to
make a choice as to of which country he will remain national.

Finally, he has to renounce the nationality of one State. In the case of double nationality of
children, the municipal laws of certain States like Great Britain give them a right on coming of
age to declare whether they wish to cease to be citizens of one State. The British nationality
Act of 1948 permits such a child to make a declaration of the renunciation of citizenship of the
United Kingdom, but the registration of such a declaration may be withheld by the Secretary
of State if made during any war in which the United kingdom be engaged.

5. Substitution: Some States provide for the substitution of nationality. According to this
principle, a person may get nationality of a state in place of the nationality of another State.
This is called nationality by substitution whereby he loses nationality of state and acquires the
nationality of another State. The British nationality Act 1948 does not automatically entail loss
of British nationality on the naturalisation of a British subject in a Foreign State.

The United States nationality Act of 1952, however, entails loss of American nationality on the
voluntary naturalisation of an American National in a foreign country. In certain States, law
provides that if the national of that State without seeking permission of the government
obtains employment in another State, then he may be deprived of his nationality.
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 Question 20: Discuss the rules regarding formation and
termination of treaties.

Ans: Introduction: There is no speci c form for the conclusion of treaties. An oral agreement
between the representatives of the States charged with the task of conducting negotiations and
empowered to bind their respective countries is su cient to have a binding e ect if it is the
intention of the representative to conclude a legally binding transaction. The enormous
importance of the issue involved in such agreements however necessities the compliance of
formal requirements and reducing the agreements into a document.

According to Starke the various Stages of formation of the treaties are as follows:

1. Accrediting of Representatives: Each of the State Conducting negotiation appoints a

representative or plenipotentiary for this purpose. He is provided with an instrument given by
the Minister for Foreign A airs showing his authority to conduct such negotiations, which is
known as the full power.

2. Negotiation: It is a bilateral process, sometimes multilateral. There are proposals as to

negotiation. In our commercial transaction, there is a bargain there are proposals and counter
proposals. Ultimately leading towards the concluded Contract.

In respect of two or more States, so as to have the discussion with Pleni Potentials. These
negotiations are depended upon the terms of credentials and powers of the representatives. In
practices, before signing the text after negotiation the delegates obtain fresh instruction to
sign the treaties with or without Reservation.

If the proposal is accepted, then it is said to be a draft treaty. In draft treaties, the Conclusion
of discussions is put together in the precise statement and reduced into writing the commonly
agreed terms in various proposals. It is a premature stage of the nal draft.

3. Signature: When the nal draft of a treaty is drawn up, the instrument is ready for signature.
The signature is a xed at a formal closing session. A treaty generally comes into force on
signature by plenipotentiaries of the Contracting States unless the States desire to subject it
to rati cation. Treaties and conventions are generally always sealed.

4. Rati cation: It is an act of adopting an international treaty by the parties thereto. In other
words, rati cation implies the con rmation of the treaty entered into by the representatives of
the di erent states. States may be bound by the treaties only when they have given their
consent. There are number of ways in which a State may express its consent to a treaty. It
may be given either by signature, exchange of instruments, rati cation or accession.

When there are no full powers, conferred on the representatives when the parties are
representatives in absence of Pleni Potentials then such treaties are negotiated by the
representatives by their signature subject to rati cation. When they have limited power then
treaty can be reserved for rati cation by the state Pleni Potentials. It is the basic term
stipulated in the credentials itself. Thus, rati cation is a sort of con rmation by Pleni Potentials
or Head of the states. The Head of State may ratify the Treaty contract made by their
representative on their behalf. Pleni Potentials may ratify or refuse the treaty contract, but
generally, rati cation is the rule and refusal is an exception.

Rati cation of a Treaty may withhold on the following grounds:

• If the representative or plenipotentiary has exceeded his powers;
• If any deceit as to matters of fact has been practiced upon him
• If the performance of treaty obligations becomes impossible
• If there has not been consensus ad idem (meeting of mind) e.g. there has not been agreed as to
the same thing
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5. Accession and Adhesion: A third state can become a party to an already existing treaty, by
means of accession. Accession and Adhesion is a consequential part of the treaty. Accession
is a process when a non-party state joins the already concluded treaties. They are not the
original members of such treaty. Adhesion is a process when a non-party State accepts the
terms and conditions of the already concluded treaty.

6. Entry into force: There can be a speci c provision in a treaty as to the e ective date or date of
application of the treaty. It can be by signing process or by rati cation. If the treaties are
signed by the Plenipotentiary then it will come into force. Multilateral treaties come into
operation on the deposit of a prescribed member of rati cations and accessions.

7. Registration and Publication: After the treaty has been so rati ed, it has to be registered at the
headquarters of the international organisation. According to Article 18 of the Covenant of the
League, every treaty or international engagement should be registered with the Secretariat of
the League and published by it as soon as possible.

No such treaty or international engagement was binding on any state until it was so registered.
This means that in case of any dispute, the treaty could not be relied upon if it was not
registered. To the same e ect are the provisions in the United Nations Charter. Article 102 of
the Charter reads:

Every treaty and every international agreement entered into by any Member of the United
Nations after the present Charter comes into force shall as soon as possible be registered with
the Secretariat and published by it. No party to any such treaty or international agreement
which has not been registered in accordance with the provisions of paragraph 1 of this Article
may invoke that treaty or agreement before any organ of the United Nations.

8. Incorporation of treaty into State Law: Incorporation of the treaty into State Law: The nal
stage of the treaty is actual incorporation in the multiple law of the Contracting State where
such incorporation is necessary in order to assume a binding character.

Conclusion: A treaty is an agreement or contract entered between two or more States whereby
they undertake to carry out obligations imposed on each of them. there are eight Stages in the
formation of treaties.
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 Question 21: Discuss the composition and powers of
security council.

Ans: The Council was intended to operate as an e cient executive organ of limited membership,
functioning continuously. It was given primary responsibility for the maintenance of international
peace and security. The Security Council consists of fteen members, ve of them being
permanent members (USA, UK, Russia, China and France).

These permanent members, chosen on the basis of power politics in 1945, have the veto. Under
article 27 of the Charter, on all but procedural matters, decisions of the Council must be made by
an a rmative vote of nine members, including the concurring votes of the permanent members.

A negative vote by any of the permanent members is therefore su cient to veto any resolution of
the Council, save with regard to procedural questions, where nine a rmative votes are all that is
required. The veto was written into the Charter in view of the exigencies of power.

The USSR, in particular, would not have been willing to accept the UN as it was envisaged
without the establishment of the veto to protect it from the Western bias of the Council and
General Assembly at that time. In practice, the veto was exercised by the Soviet Union on a
considerable number of occasions, and by the USA less frequently, and by the other members
fairly rarely. In more recent years, the exercise of the veto by the US has increased.

The question of how one distinguishes between procedural and non-procedural matters has been
a highly controversial one. In the statement of the Sponsoring Powers at San Francisco, it was
declared that the issue of whether or not a matter was procedural was itself subject to the veto.

This ‘double-veto’ constitutes a formidable barrier. Subsequent practice has interpreted the
phrase ‘concurring votes of the permanent members’ in article 27 in such a way as to permit
abstentions. Accordingly, permanent members may abstain with regard to a resolution of the
Security Council without being deemed to have exercised their veto against it.

The Council has currently three permanent committees, being a Committee of Experts on Rules of
Procedure, a Committee on Admission of New Members and a Committee on Council meeting
away from Headquarters.

There are also a number of ad hoc committees, such as the Governing Council of the United
Nations Compensation Commission established by Security Council resolution 692 (1991), the
Counter-Terrorism Committee and the Committee established by resolution 1540 (2004), which
obliges states inter alia to refrain from supporting by any means non-state actors from developing,
acquiring, manufacturing, possessing, transporting, transferring or using nuclear, chemical or
biological weapons and their delivery systems.

There are also a number of sanctions committees covering particular states under sanction as
well as the committee established under resolution 1267 (1999) concerning persons and bodies
associated with Al-Qaida and the Taliban. Further subsidiary bodies include the Peace building
Commission, the UN Compensation Commission and the International Criminal Tribunals for the
Former Yugoslavia and for Rwanda.

The Security Council acts on behalf of the members of the organization as a whole in performing
its functions, and its decisions (but not its recommendations) are binding upon all member states.
Its powers are concentrated in two particular categories, the peaceful settlement of disputes and
the adoption of enforcement measures.

By these means, the Council conducts its primary task, the maintenance of international peace
and security. However, the Council also has a variety of other functions. In the case of trusteeship
territories, for example, designated strategic areas fall within the authority of the Security Council
rather than the General Assembly, while the admission, suspension and expulsion of member
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states is carried out by the General Assembly upon the recommendation of the Council.
Amendments to the UN Charter require the rati cation of all the permanent members of the
Council (as well as adoption by a two-thirds vote of the Assembly and rati cation by two-thirds of
UN members). The judges of the International Court are elected by the Assembly and Council.

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 Question 22: What is Asylum ? Explain the di erent
types of Asylum.

Ans: Territorial Asylum is granted by a State on its Territory, it is called Territorial Asylum. The right
to grant asylum by a State to a person on its own territory ows from the fact that every State
exercises territorial sovereignty over all persons, on its territory to anyone. The grant of territorial
asylum therefore depends upon the discretion of a State which is not under a legal obligation to
grant asylum to fugitive, as no precise rules as to grant of territorial asylum.

General Assembly calls upon the International Law Commission in 1959 to undertake the
codi cation of the principles and rules of international law relating to right of asylum. On 14th
December 1967 General Assembly adopted Declaration of Territorial Asylum through the adoption
of resolution.

The declaration consists of a Preamble and four Articles dealing with the principles relating to the
grant of refusal of asylum. This Declaration provides that the right to seek and enjoy asylum may
not be invoked by any person with respect to whom there are serious reasons for considering that
he has committed a crime against peace, a war crimes and crimes against humanity.

Article 4 of the this Declaration provides that the State granting asylum shall not permit persons
who have received asylum to engage in the activities contrary to the purpose and principles of
United Nations. From the above provisions of the declaration it is clear that State does not have
absolute right to grant asylum. The grant of asylum is a part of which cannot be exercised in
respect of International crimes including genocides.

Extra-territorial Asylum - Active protection is given outside the territory not belonging to the state
granting it. Thus if Asylum is granted by a State at places outside its own territory, it is called
extra-territorial Asylum’. It usually describes to those cases in which a State refuses to surrender a
person demanding who is not upon its own physical territory but is upon one of its public ships
lying in foreign territorial borders or upon its diplomatic premises within foreign territories. Thus
Asylum is given at legation, consular premises and warships are the instances of extra-territorial
asylum.

1. Diplomatic Asylum / Asylum in Legation: Since granting extra-territorial Asylum or diplomatic

Asylum involves a derogation from the sovereignty of the State, International law ordinarily
does not recognize a right to grant asylum in the premises of legation. But asylum may be
granted in the legation premises in the following exceptional cases.

1) Individual is physically in danger from violence.

2) Where there is well established and binding local custom.
3) When there is a special treaty between territorial State and the state of Legation concerned.

2. The above principle also applies in the case of Grant of asylum in consular premises.

3. Asylum in the premises of international institution - Though International Law does not
recognise any rule regarding the grant of asylum in the premises of International institution,
however, temporary Asylum may be granted in case of danger of imminent violation.

4. Asylum in Warship - There are con icting views to grant of asylum in warship, but it is argued
that Asylum may be granted to political o enders. As far as a asylum Warship is concerned, it
may be granted on the ground of humanity, in cases if extreme danger to the individual
seeking it. Thus , right to grant asylum on Warship may be granted in the same way in the
case of Legation and also subject to the operation of the same conditions.

5. Asylum in Merchant Vessels - Since merchant vessels do not enjoy immunity from local
jurisdiction, they are not competent to Grant asylum to local o enders. Thus, if a person after
committing a crime on shore seeks asylum on board a foreign merchant ship he may be
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 asserted by the local police, either before the ship leaves the port or when it comes into
another port of the same State. There is, therefore a rule that asylum is not granted on
merchant vessels. However, State may grant asylum if they conclude a treaty to this e ect.

6. Asylum in the premises of international Institutions : Whether a person taking refuge in the
premises of an international institution or organisation would be granted asylum is a question
which cannot be given with certainty in the absence of any rule in this regard and also
because of lack of practice. However, a right to grant temporary refuge in an extreme case of
danger from mob cannot be ruled out. Thus, in Extra-territorial or diplomatic Asylum, Asylum
can be granted in exceptional cases and it is necessary to establish legal basis in each
particular case.

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