HISTORICAL DEVELOPMENT, CONCEPT AND OF SOURCES OF

INTERNATIONAL LAW

I. DEFINITIONS

The words international law was used for the first time by eminent British jurist, Bentham in 1780.
Since then, these words have been used to denote the body of roles which regulate the relations
among States. Though international law can be traced to ancient Greece, Rome and India, it cannot
be denied that the public international law which we know today has come to us through Europe. It
is determined by the modem European system.
There are many definitions of international law given by different jurists, scholars and courts. Some
definitions are as following-
1. Oppenheim-
“Law of Nations or international law is the name for the body of customary and conventional rules
which are considered legally binding by civilized States in their intercourse with each other”.
The definition given by Oppenheim in 1905 has become obsolete and inadequate.
The definition has been subject to the following criticism:
I. The definition takes into account of the relations of States' only. But, presently, international
organisations and institutions are also regarded as subjects of international law. They have been given
rights and duties under international law, even though they may not have all the rights and duties that
States have. Certain activities of multinational corporations are also regulated by this branch of law.
II. International Law also provides certain rights and duties to individuals. It has been so, particularly,
after the establishment of the United Nations Organisation. Universal Declaration of Human Rights
and International Covenants of Human Rights further confirm that the individuals have become not
only the subjects of international law but can also directly claim rights and remedies provided under
international law. Above all, the Charter of the U.N. begins with the words we the people of the
United Nations.
III. Thus, the present international law cannot be regarded as the law governing the relations between
States, but must be regarded as the common law of mankind in an early stage of its development. At
present, it also governs relations between States and international organisations, between States and
private persons, and between international organisations and private persons.
IV. The use of the term civilized States by Oppenheim is also severely criticised. In not too distant
past, the Western States regarded only the Christian States' as civilized States. At present there are
many members of the U.N. which include Christian as well as non-Christian States. The term
civilized States' was thus deleted in the later editions of Oppenheim's book.
V. The words legally binding' (in the Oppenheim's definition) connote positive character which is
diffused and diluted by the subsequent words by civilized States. Oppenheim does not say that these
rules are legally binding', but that they are considered so. His definition, though broad, is a qualified
one.
VI. The definition lays down that the rules of international law derive only from customs and treaties,
but it is not correct. Article 38 of the Statute of International Court of Justice mentions General
Principles of Law recognised by the civilized nations as third source of international law to be used
while deciding an international dispute.
VII. The expression body of rules' denotes that international law is static or fixed. Its rules cannot be
changed. However, international law is a dynamic and living law. Its rules have been changing with
the passage of time out of experiences and necessities of situations (It may be noted that it has become
customary to define law as body of rules, therefore, it is not proper to criticise Oppenheim on this
account).

2. Brierly-
“The law of nations or international law may be defined as the body of rules and principles of action
which are binding upon civilized States in their relations with one another.”
Hackworth similarly defines: International Law consists of a body of rules governing the relations
between States.

3. Gray-
“International Law or the law of nations is the name of a body of rules which according to the usual
definitions regulate the conduct of States in their intercourse with each other.”

4. Kelsen-
“International Law or the Law of Nations is the name of a body of rules which regulate the conduct
of States in their intercourse with one another”.

5. Hall-
“IL consists of certain rules of conduct which modern civilised states regard as binding on them in
their relations with one another with a force comparable in nature and degree to that binding the
conscientious person to obey the laws of his country and which they also regard as being enforceable
by appropriate means in case of infringement.”

6. Cobbett-
“International Law may be described as the sum of the rules accepted by civilized States as
determining their conduct towards each other, and towards each other's subjects.”
The above definitions can also be criticised in the same way as Oppenheim's definition has been
criticised. The definitions are inadequate to represent modem international law.

7. Whiteman-
“International law is the standard of conduct, at a given time, for States and other entities subject
thereto.”
A brief but adequate definition; the words other entities subject thereto' may include international
organisations, individuals and non-State entities. Whiteman has also emphasised dynamic aspect of
international law: International Law is, more or less, in a continual state of change and development.

8. Schwarzenberger-
“International law is the body of legal rules which apply between sovereign States and such other
entities as have been granted international personality.”
Thus, unlike Starke, Schwarzenberger very rightly preferred not to name the entities whose rights
and duties are regulated by international law. According to him, international law, if and when grants
international personality to any entity, or when international law would be capable of regulating
rights and duties of any entity, its rules shall apply to them. It is immaterial if only certain miles
regulating the rights and duties are framed for them.

9. Fenwick-
“International law may be defined in broad terms as the body of general principles and specific rules
which are binding upon the members of the international community in their mutual relations.”
The definition takes into account the changes that have taken place after the Second World War. The
words members of the international community' include States, international institutions, individuals
and non-State entities. The term general principles' is also incorporated in the definition.

10. Starke-
International law may be defined as that body of law which is composed for its greater part of the
principles and rules of conduct which States feel themselves bound to observe, and, therefore, do
commonly observe in their relations with each other, and which includes also:
(a) the rules of law relating to the functioning of international institutions/organisations, their
relations with each other, and their relations with State and individuals; and
(b) certain rules of law relating to individuals and non-State entities so far as the rights and duties of
such individuals and non-State entities are the concern of the international community.
The definition of Starke takes into account the changing character of international law and truly
reflects the present position of international law. However, if an entity not enumerated by Starke ever
comes within the scope of international law with the passage of time; the definition would again be
subjected to criticism. Thus, the definition does not stand correct for all times to come.

11. Oppenheim-
In the ninth edition of Oppenheim's book (1992) the term international law' has been defined
differently after taking into account of the new developments:
“International Law is the body of rules which are legally binding on States in their intercourse with
each other. These rules are primarily those which govern the relations of States, but States are not
the only subjects of international law. International organisations and, to some extent, also
individuals may be subjects of rights conferred and duties imposed by international law”.
This new definition of international law is nearly similar to that given by Starke and Fenwick.
However, it is still deficient in one respect viz. its silence regarding general principles of law'
recognized by civilized nations.

Definition by courts
1. Queen v. Keyn, (2 Ex. D. 63 (1876)). Lord Coleridge, C.J. defined international law as:
“The law of nations is the collection of usages which civilized States have agreed to observe in their
dealings with one another.”
2. West Rand Central Gold Mining Ltd. Co. v. King 1905 KB, in this case the court observed that
“the forms of rules accepted by Civilised States as determining their conduct towards each other and
towards each other’s subjects.”
3. SS Lotus Case 1927 PCIJ
“International Law governs relations between independent states. The rules of law binding upon
States therefore emanate from their own free will as expressed in conventions or by usages generally
accepted as expressing principles of law and established in order to regulate the relations between
these co-existing independent communities or with a view to the achievement of common aims.
Restriction upon the independence of states cannot therefore be presumed.”

Definition by Vijay Sir-

“IL is the body rules, emanating from customs or common consent of international community, which
binding on them (international community) on mutual relations/consent or specifically.”

This definition tells

a) Sources of international law; customs and common consent of international community.
b) Rules binding in nature
c) Subject matter of IL (International Community); states, international organisations, individual,
non-state entities or any other subject matter of IL if it is included in future.
d) Applicability of law on international community on the basis of mutual consent and if any subject
matter violates the IL then specifically (without consent or forcibly); basically this term (specifically)
indicates any subject matter against whom sanctions are imposed or UN Security Council takes
actions.

II. SCOPE OF INTERNATIONAL LAW

1. Interstate relations and their regulation

The International Law has state subjects. When civilized states came into existence then
interrelation was natural. A mutual understanding and natural interrelation became necessary.
They have framed their own rules, regulations, and treaties for further transactions. The rules and
regulations are laid down categorically in these relations because it facilitates the amicable
working of the functions between the states. The rules and regulations broadly provide
opportunities for different programs to be carried out by different states. The customs followed by
the countries have culminated into laws. The same path of evolution is taken by the International
Criminal Law that has been codified. The wide variety of subject matter has been covered under
International Criminal Law such as extradition treaty, refugees, human rights, and sustainable
development.

2. International organizations

A major development in the 19th and 20th century in International Law is the prominent position
of the International Organisations. The operations of these organisations is on the global, regional,
and sub-regional level. These organizations seek to achieve the objective of the welfare of people.
These organizations are funded majorly by the developed countries and they are actively
supporting the developing countries for the betterment of the lives of the people. These
organizations have multi-dimensional areas of operations. These are the major International
Organisations:

1. World Bank– The World Bank provides economic support to the countries for different
kinds of infrastructural development, and also the availability of basic facilities in the
developing countries.
2. International Monetary Fund– The IMF helps the countries to manage their balance of
payments. The Sovereign Debt Restructuring Mechanism of IMF aims to preserve asset
value and preserve the creditor’s rights and also paves the way with the “help agreement”
for debtors to grow.
3. World Trade Organisation– The WTO supervise and regulate International Trade. This is
the largest economic organization in the world. It deals with trade of goods, services and
intellectual property among the countries. It provides a framework for negotiation and
dispute resolution to countries for efficient trade.
4. European Union– The objective of the European Union is to promote scientific and
technological development, promotion of the internal trade among the European Countries,
and solidarity during the time of War.
5. SAARC– The South Asian Association of Regional Corporation is created with the
objective of securing peace, and regional harmony among the South Asian Nations. It
currently has 8 members. It aims to achieve scientific and technological development.
6. ASEAN– The Association of Southeast Asian Nations is a regional intergovernmental
organization comprising 10 countries, which facilitates the economic, social, political,
military, educational, and socio-cultural integration among its nation.
7. SCO– The Shanghai Cooperation Organisation is the intergovernmental international
organization that aims to promote effective cooperation in politics, trade, economy,
technology, and culture. The joint efforts will be made to maintain peace and security in
the region.
 3. Issues of non-state entities and individuals

The non-state actors have played a significant role in maneuvering different important tasks that
fall within the ambit of International Law. The non-state actor is a newly emerged concept in the
recent past. They are struggling to get legal recognition under International Law. They are
economically, financially, and strategically capable of doing things on the ground level. The
traditional International Law has not allowed the activities of the non-state actors and also not
predicted their existence, but with the sharp rise in the number of people who faced discrimination
and oppression in the hands of sovereign governments or the ethnic cleansing of a race from a
country, these factors led to the rise of these non-state actors.

According to one definition suggested by Andrew Caplan:

The non-state actors, generally understood as, including any entity that is not a state, often referred
to as a terrorist group, religious group, civil society, and corporations.

One of the pivotal reasons for not endowing the NSA with legal powers and giving them legal
recognition was that the states in traditional International Law were reluctant to share their powers.
The second reason being, when the International law will legitimize the actions of the non-state
actors then they also legitimize the unlawful actions of the non-state actors.

The strength of this argument depends upon the nature of the non-state actors it is concerned with.
The Civil Society is one of those non-state actors that complained against, President of Congo, for
violating human rights on the International Forum. The President was summoned and enquired
about the same and the appropriate action was taken against him. The intent and objective of the
non-state actors by their activities becomes apparent, and it helps to figure out whether they are
helpful or not. There are instances where many multinational corporations, non-governmental
organizations, and non-state actors have economic, financial and institutional power, and also can
dominate the politics of a country, or change the political symmetry of a country. The regulation
through checks and balances must be done to stop the arbitrary actions of these non-state actors.
The non-state actors are both a boon and a bane for the emerging economies.

[Link] role of the Non-State Actors

1. The state where authoritarianism prevails understood that on the International Forum, the
legal responsibility of the non-state actor is not recognized and so they won’t be held liable
for any of their deeds. The state uses them as the fig leaves to evade any kind of
accountability.
2. This relationship between state and non-state actors is evident when the state turns callous
of their acts. The state uses the non-state actors with their contacts and agencies. The non-
 state actors having the similar ideologies with the state help them in their elections and
remove any kind of hindrances in their campaigning.
3. In some cases, the state may not be able to manipulate the non-state actors, but the non-
state actors have robust establishment, with institutional and financial dominance in the
state. They abuse their position and there are incessant violations of human rights.

[Link] Roles of the Non-State Actors

1. In the present scenario, the non-state actors have played an active role in the fields of
human rights and the protection of the environment. The organization with the sole
objective of advocating human rights has ensured and uplifted the condition of poor people
in many countries. The active role played by these organizations has helped the people with
disabilities too, as one of these organizations participated in the drafting process of the UN
Convention on Rights of Persons with Disabilities.
2. The non-state actors are allowed to participate in the drafting of conventions on special
legal issues. The most effective change brought by the non-state actors is in the field of
environmental law. The development of concepts like Sustainable Development and
environmental protection got prominence when the non-state actors started campaigning
against environmental degradation.
3. The Non-State Actor is concerned with the enforcement of International Law and its norms.
The non-state actors and non-government organizations have a positive impact on the
national legal systems as they are aware of the International Laws and the non-state actors
are also taking part in formulation of plans, and also draft different types of rules and
regulations for protection of different entities in the world.
4. The non-state actors play a vital role in supervising the states following international norms
and standards. They actively participate in supervising tasks. They also monitor the
conduct of the state as to whether they follow the international norms and standards or not.

[Link] of the Individual in International Law

The individual has been considered as an entity in international law after many decades. The
individual has the least participation in international law during the inception stage. The term
individual has a wide legal connotation, it is not something limited to a person, it may be an entity,
an enterprise or big business conglomerate. The term individual may be a legal person whose job
is to secure the rights of people across the globe. The individual is the basis on which the entire
international law works because the objective of international law is to protect the interest of the
individuals. All the treaties, regulations and customs have benefitted the individual in many
capacities. The objective of the International Law is to achieve global justice and resolve the
dispute amicably, that ultimately helps individuals.
 The development of many areas in the International Law such as International Human Rights Law
with the objective to protect the interest of the individual. The end of World War II led to the
establishment of the United Nations Organisation, after which the concept of International Law
flourished and went on to cover many areas. The International Law under the head of International
Refugee Laws, seeks to achieve the freedom and rights of the refugees from all countries. The
United Nations had signed various conventions for the protection of the environment and
sustainable development goals. The individuals also play an important role in international law in
various capacities.

III. SUBJECT OF INTERNATIONAL LAW

The term subjects of international law refer to entities endowed with legal personality, capable of
exercising certain rights and duties on their account under the international legal system. Personality
in international law necessitates the consideration of the international system and the capacity to
enforce claims.
Oppenheim says that an international person is one who possesses legal personality in international
law meaning one who is subject of international law to enjoy rights, duties or powers established in
international law to enjoy rights, duties or powers established in international law and generally, the
capacity to act on the international plane either directly or indirectly through another state.
Theories regarding subjects of international law:
Jurists of the world are divided into two groups. However, some moderates try to bring about a
compromise between them. The difference of opinion among jurists as to what entities are deemed
to be the subjects of international law had led to the emergence of three popular theories. The sum-
up of these theories can be summarized as follows; States alone are subjects of international law.
(Realist theory), Individuals alone are subjects of international law. (Fictional theory) and States,
individuals, and certain non-state entities are subjects. (Functional Theory)
1. Realist Theory
According to traditional positivist doctrine, states are the only subjects with which international law
is concerned. This theory asserts that states alone, as sovereign political entities, are bearers of rights
and duties under international law. International law regulates the conduct of states and it is stated
which performs all types of international obligations under treaties and conventions. Prof.
Oppenheim falls in line with the traditional view.
According to this theory, Individuals are the object of international law. The recognition of the
sovereignty of each nation is the essence of international law. Individuals and non- state entities have
no place in international law. The jurists of this school maintain that individuals are only incumbents
of rights and duties set by international law. Therefore, they are the ultimate objects of international
law and not its subjects.
This theory has been subjected to various criticism by jurists. It does not tell about certain rights
bestowed upon the individuals and certain international offenses for which an individual may be
punished.
In Reparation for injuries suffered in the services of the UN, ICJ held that UN can bring an
international claim against the state for obtaining reparation when an agent of the UN suffers injury
in the performance of his duties. The court by implication rejected the proposition that only states
are subjects of international law.
2. Fictional Theory
According to exponents of this theory, it is individual beings that are subjects of international law.
According to them, individuals are the ultimate subjects of international law. The state is an abstract
concept and it is no more than aggregate of individuals who compose it. So in the ultimate analysis,
it may be noted that the policies which are made in the international plane are for the ultimate
regulation and control of individual conduct in the international scenario.
Prof. Kelson is the chief exponent of this theory and he reiterated that notion of the state is purely a
technical legal concept serving to embrace the totality of legal rules applying to a group of persons
living in a defined territorial area. The difference between international law and state law dissolves,
both laws ultimately apply to individuals and they are for the individual alone. While the former
applies to them directly and the latter is applied indirectly that is through states.
Lauterpacht said that this theory regarded the state as fiction and based on the fiction that rights and
duties of the state are only the duties and rights of men who compose them and therefore it is
ultimately individuals who were the subjects of international law. From the purely theoretical
standpoint, and in logic, Kelson,s view is undoubtedly correct. But so far as regards the practice of
states is concerned, the primary concern of the international law is with the rights and duties of the
states. Although from time to time, some treaties do provide that individual may have rights, for
example, reference may be made to the 1965 convention on the settlement of investment disputes
between states and nationals of other states. But otherwise, it is generally found that treaty provision
is couched in the form of rules of conduct binding upon, or conferring rights on states.
3. Functional Theory
Jurists having a moderate view criticized the extreme view given by the supporters of the above
theories. If the traditional view is ignoring the status of an individual completely, the modern view
is trying to assert the position of individuals aggressively. Accordingly both the views need
rethinking. Neither the state exist in international context without the interference of the individuals
nor the personality of an individual be expanded to that of a state.
According to moderate jurists, state, as well as individuals and certain non-state entities, are subject
to international law. In the past 50 years or so, substantial changes have been made to the field of the
subject of international law. There has been a proliferation of new participants in international
relations. The scope of international law has widened and new entities have emerged on the
international front.
So according to this theory, there are various entities which can be called as subjects of international
law. Entities such as International organizations, Individuals, Non-state entities, and states play an
important role in the contemporary era and they all can be regarded as “subjects of international law”.
So far, this theory seems to be more consistent with the terms and situation of the present era and the
relations which exist till now. So functional theory can be regarded as the updated theory in this
regard.
Subjects of international law:
As mentioned earlier, following are considered to be subjects of international law; State, International
organizations and Individual.
1. State
The state has been since time immemorial considered to be subject of international law. Also, it can
be asserted that the states are primary subjects of international law as the obligations flow from the
states. It is the states which are recognized and held liable not for their acts but even for the acts
committed by their citizens also. Also in terms of international trade and relations, it is the state
which has the duty and power to conclude relations with the international front. For ex, in India,
liberalization, and globalization of the economy was done after the positive intervention from the
government.
2. International Organisations
Until the outbreak of the First World War, world affairs were to a large extent influenced by the
periodic conferences held in various parts of the world. A conference could only be called into being
upon the initiative of one or more of the nation. This procedure implied several delays in the
resolution of the issues.
But after the First World War, the creation of the League of Nations paved the way for the
forthcoming change in the international organization. This can be regarded as a changing point in the
history of international organizations. United Nations-led to the development of international
organizations. Various NGOs came into the international field. Amnesty International, WHO, IMF,
EU, Red Cross, etc. emerged.
3. Individuals
Modern state practices and contemporary international law does demonstrate that individuals have
become increasingly recognized as participants and subjects of international law. Though limited,
individuals have international legal personality. This has occurred primarily but not exclusively
through human rights law. Since the First World War, international law has continuously empowered
the individual to a substantial extent.
According to Starke “interest of the individual, their fundamental rights and freedom, etc., have
become a primary concern of international law under modern practice and the number of exceptional
instances of individuals or non-state entities enjoying rights or becoming subject of duties directly
under international law has increased”.
As a result of the modern development in international law and the UN charter, the individual has
acquired status and a stature transforming him from “object of international compassion to a subject
of international right”. By recognizing the fundamental rights of the individual, independent of the
law of the state and imposing obligations or conferring rights directly upon him, the UN charter and
various other law-making treaties have brought about a new phase in the recognition of rights of
individuals to constitute him a subject of international relations.
Conclusion
Although the individual’s position is not equivalent to the states and international organizations, still
the individual is said to have limited international legal personality due to the following reasons;
Individuals have rights in international law, Individuals have duties/obligations in international law,
Individual has a limited procedural capacity to enforce their international claims.
The individual is becoming the increasing concern of international law and many treaties are
specifically aimed at the betterment of its position. But a wide gap still exists before the international
law confers rights on individuals directly and without necessarily operating for this purpose through
the medium and under the cover of the state

IV. DIFFERENCE BETWEEN PUBLIC INTERNATIONAL LAW AND PRIVATE

INTERNATIONAL LAW

International Law or Law of Nations deals with rules for the governance of Sovereign States in their
relations and Conduct towards one another It Comprises of two parts Namely 1) Public International
Law 2) Private International Law or Law of Conflict.
1. Public International Law: Public International law is the body of legal rules, which applied between
Sovereign States and other International Personalities.
2. Private International Law or Law of Conflict: Private International Law is also called as 'Conflict
of Law' deals with cases involving foreign element. In case of Dispute between an individual citizen
or State and Foreign Element, where there is need to contact with foreign system of law, the Private
International Law will apply.
Difference between Public International Law and Private International Law / Law of Conflicts
SN Public International Law Private International Law
[Link] International law is the body of legal Conflict of laws, often called Private
rules, which applied between Sovereign International Law. Private International Law
States, other International Organisations and regulating relationship between Private persons
lesser with individual. (Natural or Legal) of two different States.
[Link] Public International law rules arePrivate International law rules are framed by the
outcome of International custom and treaties State legislature.

[Link] International law is enforced byPrivate International Law is enforced by the

international pressure and fear for example –concerned State executive.
breakage of diplomatic relations, sanctions
etc.
 [Link] public International Law there is noIn private International Law courts are
Predetermined Court. predetermined.
[Link] International Law is same for all thePrivate International Law differ from state to state.
States.
[Link] customary rules of IL are considered toPrivate International Law is a part of municipal
be part of municipal law. law.
[Link] is no such problem in the field of [Link] determines as to which law will apply in a case
PIL is confronted with different types ofhaving foreign element.
problem whenever there is conflict between
private and public IL.
[Link] provides absolute rights mainly in casesPrivate IL does do so.
of war.

In some exceptional cases rules of Private IL may become rules of PIL when they are incorporated
in the International Treaties.

V. SOURCES OF INTERNATIONAL LAW

Hierarchy

On the question of preference between sources of international law, rules established by treaty will
take preference if such an instrument exists. It is also argued however that international treaties
and international custom are sources of international law of equal validity; this is that new custom
may supersede older treaties and new treaties may override older custom. Also, jus cogens
(peremptory norm) is a custom, not a treaty. Certainly, judicial decisions and juristic writings are
regarded as auxiliary sources of international law, whereas it is unclear whether the general
principles of law recognized by 'civilized nations' should be recognized as a principal or auxiliary
source of international law. Nevertheless, treaty, custom, and general principles of law are
generally recognized as primary sources of international law.

1. Treaties as law

Main article: Treaties

Treaties and conventions are the persuasive source of international law and are considered "hard
law." Treaties can play the role of contracts between two or more parties, such as an extradition
treaty or a defense pact. Treaties can also be legislation to regulate a particular aspect of
international relations or form the constitutions of international organizations. Whether or not all
treaties can be regarded as sources of law, they are sources of obligation for the parties to them.
Article 38(1)(a) of the ICJ Statute, which uses the term "international conventions", concentrates
 upon treaties as a source of contractual obligation but also acknowledges the possibility of a state
expressly accepting the obligations of a treaty to which it is not formally a party.

For a treaty-based rule to be a source of law, rather than simply a source of obligation, it must
either be capable of affecting non-parties or have consequences for parties more extensive than
those specifically imposed by the treaty itself.

Thus, the procedures or methods by treaties become legally binding are formal source of law which
is a process by a legal rule comes into existence: it is law creating.1

(a) Treaties as custom

Some treaties are the result of codifying existing customary law, such as laws governing the global
commons, and jus ad bellum. While the purpose is to establish a code of general application, its
effectiveness depends upon the number of states that ratify or accede to the particular convention.
Relatively few such instruments have a sufficient number of parties to be regarded as international
law in their own right. The most obvious example is the 1949 Geneva Conventions for the
Protection of War Victims.

Most multi-lateral treaties fall short of achieving such a near-universal degree of formal acceptance
and are dependent upon their provisions being regarded as representing customary international
law and, by this indirect route, as binding upon non-parties. This outcome is possible in a number
of ways:

 When the treaty rule reproduces an existing rule of customary law, the rule will be clarified
in terms of the treaty provision. A notable example is the Vienna Convention on the Law
of Treaties 1969, which was considered by the ICJ to be law even before it had been
brought into force.2
 When a customary rule is in the process of development, its incorporation in a multilateral
treaty may have the effect of consolidating or crystallizing the law in the form of that rule.
It is not always easy to identify when this occurs. Where the practice is less developed, the
treaty provision may not be enough to crystallize the rule as part of customary international
law.3
 Even if the rule is new, the drafting of the treaty provision may be the impetus for its
adoption in the practice of states, and it is the subsequent acceptance of the rule by states
that renders it effective as part of customary law.4 If a broad definition is adopted of state

1
Martin Dixon, Textbook on International Law (Oxford University Press, 7th ed 2013) 24
2
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa)
notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Reports 16 at 47.
3
North Sea Continental Shelf cases, note 6 at 38.
4
North Sea Continental Shelf cases, note 6 at 41. See also Trial of the Major War Criminals before the International
Military Tribunal, Vol. 1, Judgment, 171 at 253–4.
 practice, the making of a treaty would fall within the definition. Alternatively, it is possible
to regard the treaty as the final act of state practice required to establish the rule in question,
or as the necessary articulation of the rule to give it the opinio juris of customary
international law.
 Convention-based "instant custom" has been identified by the ICJ on several occasions as
representing customary law without explanation of whether the provision in question was
supported by state practice. This has happened with respect to a number of provisions of
the Vienna Convention on the Law of Treaties 1969. If "instant custom" is valid as law, it
could deny to third parties the normal consequences of non-accession.

(b) The United Nations Charter

Pursuant to Chapter XVI, Article 103 of the United Nations Charter, the obligations under the
United Nations Charter overrides the terms of any other treaty. Meanwhile, its Preamble affirms
the establishment of the obligations out of treaties and source of international law.

2. International custom

Main article: Customary international law

Article 38(1)(b) of the ICJ Statute refers to "international custom" as a source of international law,
specifically emphasizing the two requirements of state practice plus acceptance of the practice as
obligatory or opinio juris sive necessitatis (usually abbreviated as opinio juris).

Derived from the consistent practice of (originally) Western states accompanied by opinio juris
(the conviction of States that the consistent practice is required by a legal obligation), customary
international law is differentiated from acts of comity (mutual recognition of government acts) by
the presence of opinio juris (although in some instances, acts of comity have developed into
customary international law, i.e. diplomatic immunity). Treaties have gradually displaced much
customary international law. This development is similar to the replacement of customary or
common law by codified law in municipal legal settings, but customary international law continues
to play a significant role in international law.

(a) State practice

When examining state practice to determine relevant rules of international law, it is necessary to
take into account every activity of the organs and officials of states that relate to that purpose.
There has been continuing debate over where a distinction should be drawn as to the weight that
should be attributed to what states do, rather than what they say represents the law. In its most
extreme form, this would involve rejecting what states say as practice and relegating it to the status
of evidence of opinio juris. A more moderate version would evaluate what a state says by reference
 to the occasion on which the statement was made. It is only relatively powerful countries with
extensive international contacts and interests that have regular opportunities of contributing by
deed to the practice of international law. The principal means of contribution to state practice for
the majority of states will be at meetings of international organizations, particularly the UN
General Assembly, by voting and otherwise expressing their view on matters under consideration.
Moreover, there are circumstances in which what states say may be the only evidence of their view
as to what conduct is required in a particular situation.5

The notion of practice establishing a customary rule implies that the practice is followed regularly,
or that such state practice must be "common, consistent and concordant". 6 Given the size of the
international community, the practice does not have to encompass all states or be completely
uniform. There has to be a sufficient degree of participation, especially on the part of states whose
interests are likely to be most affected,7 and an absence of substantial dissent.8 There have been a
number of occasions on which the ICJ has rejected claims that a customary rule existed because
of a lack of consistency in the practice brought to its attention.9

Within the context of a specific dispute, however, it is not necessary to establish the generality of
practice. A rule may apply if a state has accepted the rule as applicable to it individually, or because
the two states belong to a group of states between which the rule applies.10

A dissenting state is entitled to deny the opposability of a rule in question if it can demonstrate its
persistent objection to that rule,11 either as a member of a regional group12 or by virtue of its
membership of the international community.13 It is not easy for a single state to maintain its dissent.
Also, rules of the jus cogens have a universal character and apply to all states, irrespective of their
wishes.14

Demand for rules that are responsive to increasingly rapid changes has led to the suggestion that
there can be, in appropriate circumstances, such a concept as "instant custom". Even within
traditional doctrine, the ICJ has recognized that passage of a short period of time is not necessarily

5
See Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of
America) (Merits) [1986] ICJ Reports 14.
6
Fisheries Jurisdiction Case (United Kingdom v Iceland) (Merits) [1974] ICJ Reports 3 at 50.
7
North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v
Netherlands) [1969] ICJ Reports 4 at 42.
8
Nicaragua case (Merits), note 4 at 98.
9
Asylum Case (Colombia v Peru) [1950] ICJ Rep 266 at 277; Advisory Opinion on the Legality of the Threat or Use by
a State of Nuclear Weapons in Armed Conflict [1996] ICJ Reports 226.
10
Case Concerning Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ Reports 6 at 39;
Asylum case, note 8 at 276.
11
North Sea Continental Shelf cases, note 6 at 229, 232 per Judge Lachs.
12
Asylum case, note 8 at 277–8.
13
Fisheries Case (United Kingdom v Norway) (Judgment) [1951] ICJ Reports 116, at 131
14
See North Sea Continental Shelf cases, note 6 at 229 per Judge Lachs.
 a bar to the formation of a new rule.15 Because of this, the question is sometimes raised as to
whether the word "custom" is suitable to a process that could occur with great rapidity.

(b) Practice by international organizations

It may be argued that the practice of international organizations, most notably that of the United
Nations, as it appears in the resolutions of the Security Council and the General Assembly, are an
additional source of international law, even though it is not mentioned as such in Article 38(1) of
the 1946 Statute of the International Court of Justice. Article 38(1) is closely based on the
corresponding provision of the 1920 Statute of the Permanent Court of International Justice, thus
predating the role that international organizations have come to play in the international plane.
That is, the provision of Article 38(1) may be regarded as 'dated, and this can most vividly be seen
in the mention made of 'civilized nations', a mentioning that appears all the more quaint after the
decolonization process that took place in the early 1960s and the participation of nearly all nations
of the world in the United Nations.

(c) Opinio juris

A wealth of state practice does not usually carry with it a presumption that opinio juris exists. “Not
only must the acts concerned amount to a settled practice, but they must also be such, or be carried
out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it.’16

In cases where practice (of which evidence is given) comprises abstentions from acting,
consistency of conduct might not establish the existence of a rule of customary international law.
The fact that no nuclear weapons have been used since 1945, for example, does not render their
use illegal on the basis of a customary obligation because the necessary opinio juris was lacking.17

Although the ICJ has frequently referred to opinio juris as being an equal footing with state
practice,18 the role of the psychological element in the creation of customary law is uncertain.

(d) Jus cogens

A peremptory norm or jus cogens (Latin for "compelling law" or "strong law") is a principle of
international law considered so fundamental that it overrides all other sources of international law,

15
North Sea Continental Shelf cases, note 6 at 43.
16
See North Sea Continental Shelf cases, note 6 at 44.
17
Legality of Nuclear Weapons Advisory Opinion (GA), note 8
18
Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v Malta) (Judgment) [1985] ICJ Reports 13 at 29;
Legality of Nuclear Weapons Advisory Opinion (GA), note 8 at 16.
including even the Charter of the United Nations. The principle of jus cogens is enshrined in
Article 53 of the Vienna Convention on the Law of Treaties:

For the purposes of the present Convention, a peremptory norm of general international
law is a norm accepted and recognised by the international community of States as a whole
as a norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character.

Rules of jus cogens generally require or forbid the state to do particular acts or respect certain
rights. However, some define criminal offenses which the state must enforce against individuals.
Generally included on lists of such norms are prohibitions of such crimes and internationally
wrongful acts as waging aggressive war, war crimes, crimes against humanity, piracy, genocide,
apartheid, slavery and torture.

The evidence supporting the emergence of a rule of jus cogens will be essentially similar to that
required to establish the creation of a new rule of customary international law. Indeed, jus cogens
could be thought of as a special principle of custom with a superadded opinions juries. The
European Court of Human Rights has stressed the international public policy aspect of the jus
cogens.

3. General principles of law

The scope of general principles of law, to which Article 38(1) of the Statute of the ICJ refers, is
unclear and controversial but may include such legal principles that are common to a large number
of systems of municipal law. Given the limits of treaties or custom as sources of international law,
Article 38(1) may be looked upon as a directive to the Court to fill any gap in the law and prevent
a nonliquet by reference to the general principles.

In earlier stages of the development of international law, rules were frequently drawn from
municipal law. In the 19th century, legal positivists rejected the idea that international law could
come from any source that did not involve state will or consent but were prepared to allow for the
application of general principles of law, provided that they had in some way been accepted by
states as part of the legal order. Thus Article 38(1)(c), for example, speaks of general principles
"recognized" by states. An area that demonstrates the adoption of municipal approaches is the law
applied to the relationship between international officials and their employing organizations,
although today the principles are regarded as established international law.

The significance of general principles has undoubtedly been lessened by the increased intensity of
treaty and institutional relations between states. Nevertheless, the concepts of estoppel and equity
have been employed in the adjudication of international disputes. For example, a state that has, by
its conduct, encouraged another state to believe in the existence of a certain legal or factual
situation, and to rely on that belief, may be estopped from asserting a contrary situation in its
dealings. The principle of good faith was said by the ICJ to be "[o]ne of the basic principles
governing the creation and performance of legal obligations". Similarly, there have been frequent
references to equity. It is generally agreed that equity cannot be employed to subvert legal rules
(that is, operate contra legem). This "equity as law" perception is reinforced by references to
equitable principles in the text of the United Nations Convention on the Law of the Sea 1982,
though this may be little more than an admission as to the existence, and legitimation, of the
discretion of the adjudicator.

However, the principles of estoppel and equity in the international context do not retain all the
connotations they do under common law. The reference to the principles as "general" signify that,
if rules were to be adapted from municipal law, they should be at a sufficient level of generality to
encompass similar rules existing in many municipal systems. Principles of municipal law should
be regarded as sources of inspiration rather than as sources of rules of direct application.

4. Judicial decisions and juristic writings

According to Article 38(1)(d) of its Statute, the ICJ is also to apply "judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law". It is difficult to tell what influence these materials have on the
development of the law. Pleadings in cases before the ICJ are often replete with references to case
law and to legal literature.

(a) Judicial decisions

The decisions of international and municipal courts and the publications of academics can be
referred to, not as a source of law as such, but as a means of recognizing the law established in
other sources. In practice, the International Court of Justice does not refer to domestic decisions
although it does invoke its previous case-law.

There is no rule of stare decisis in international law. The decision of the Court has no binding force
except between the parties and in respect of that particular case. Nevertheless, often the Court
would refer to its past decisions and advisory opinions to support its explanation of a present case.

Often the International Court of Justice will consider General Assembly resolutions as indicative
of customary international law.

(b) Juristic writings

Article 38(1)(d) of the International Court of Justice Statute states that the 'teachings of the most
highly qualified publicists of the various nations' are also among the 'subsidiary means for the
determination of the rules of law'. The scholarly works of prominent jurists are not sources of
 international law but are essential in developing the rules that are sourced in treaties, custom and
the general principles of law. This is accepted practice in the interpretation of international law
and was utilized by the United States Supreme Court in The Paquete Habana case (175 US (1900)
677 at 700-1). In the practice of the International Court of Justice, citations to teachings in
decisions are exceptional, but Judges routinely refer to them in their individual opinions.

IS INTERNATIONAL LAW REALLY A LAW?

It is one of the most controversial questions that has been debated and on which jurist’s opinions
hugely differ. One view considers International law not a true law, rather, a code of rule of conduct
backed by morality. On the other hand, International law is considered to be a true law and is regarded
as a law, similar to that of ordinary laws of a state, binding upon the citizens.
IL Not a Law- Supporters of this view-
 John Austin- a leading English writer on Jurisprudence answered the question in negative.
According to him, International Law is not true law, but a code of rules and conduct of
moral force only. He holds that International Law is no law as it does not emanate from a
law giving authority and has no sanction behind it. Austin described International Law as
positive international morality consisting of opinion or sentiments current among nations
generally.
Based on that, it can be said that rules are only morally and ethically valid if they aren’t
issued by any sovereign authority. If we apply this theory to International law, we will see
there is no legislative power over the society, based on which Austin concluded that
International laws are merely based on ethics and morality and are not true law.
 Hobbes and Pufendorff- also answered the question in negative by saying that there is no
positive law of nations properly invested with true legal force and binding as the command
of a superior.
 Holland- observed that International Law differed from ordinary law and not supported by
the authority of a state. According to him, the law of nations is private law. In this view of
the matter, he called “International Law as the vanishing point of Jurisprudence”.
According to him, rules of International Law cannot be kept into the category of law
because it lacks sanction, which is an essential element of municipal law.
 Jeremy Bentham and Jethro Brown are the other prominent jurists who also deny the
legal character International Law.
IL as Law- supporters of this view-
 Hall and Lawrence on the other hand answered the question in affirmative. According to
them, International Law is habitually treated and enforced as law, like certain kind of
positive law, it is derived from custom and precedent which form a source of International
Law.
 Pitt Cobbett observed that International Law must rank with law and not with morality.
 Sir Frederick Pollock writes the only essential conditions for the existence of law are the
existence of political community and the recognition by its members of settled rules
 binding upon them in that capacity. International Law seems on the whole to satisfy these
conditions.
 Oppenheim- According to him, laws are nothing but a body of rules for human conduct
within a community, which can be enforced by an external power if there’s a common
consent of the community for the same. Based on what he said, we can conclude that,
i. Firstly, there must be a community,
ii. Secondly, a body of rule of conduct governing the community must be there and
iii. Thirdly, common consent among the community for the rules to be enforced power
must be present.
From this, we can conclude that it’s not necessary that rules should be enacted by a
legislative authority within the community for them to be legally binding.
 JG Starke- He criticised the Austinian concept of law and said that IL is really law. In his
support he gave four arguments-
i. In many system law lacks the legislative authority; customary rules of IL.
ii. He (Austin) might be correct at his time but now time has changed.
iii. The authoritative agencies responsible for the maintenance of international
intercourse do not consider IL merely a moral code.
iv. UN is based on the true legality of IL.
Thus it is clear from the above discussion that the solution for the above question depends upon the
definition of law, which one may choose to adopt.
Arguments in favour of IL as really law-
1. The term law cannot be limited to rules of conduct enacted by a sovereign authority. Sir H
Maine said that in primitive society there was no sovereign authority yet there were laws.
2. The Austinian concept of law fails to account for customary rules of IL. If we accept the
Austin’s view, the common law of England will lose its legal validity.
3. Customary rules of IL are diminishing and are being replace by law making treaties and
conventions such as Geneva and Hague Convention. The rules laid down by these treaties
are binding although they do not emanate from sovereign political authority.
4. When any international dispute arises, States do not rely on moral arguments but rely upon
treaties, precedents and opinions of specialists.
5. States do not deny the existence on IL. On contrary, they interpret IL so to justify their
conduct.
6. In some states (USA and UK), IL is treated as part of their own law. A leading case on this
point is Paquete vs. Habana 1900 US, where Justice Gray observed that IL is part of our
law and must be ascertained and administered by court of justice.
7. UN is based on the true legality of IL.
8. So far sanction is concerned, IL does not completely lack it.
9. Weakness in enforcement of law does not make IL not a law likewise municipal law also
violated and there are weakness in enforcement does not mean municipal law is not law.
10. The decisions of ICJ are binding on the parties. Even in some cases municipal courts
applied international decisions in their municipal disputes.
On the basis of above arguments, it may be concluded that IL is really law. However, it has to be
admitted that IL is not equivalent to municipal law. It is obvious that IL unlike municipal law operates
in decentralised political system. There is no world legislature, no international policies and no
international court with compulsory jurisdiction. Starke has expressed the view that IL is a weak law.
He writes “This cumulative evidence against the position taken by Austin and his followers should
not blind us to the fact that necessarily IL is weak law. Existing international legislative machinery,
operating mainly through law making conventions, is not comparable in efficiency to state legislative
machinery.” Despite the weakness of international legal system, the legal character of international
law cannot be denied. But this comparison is not appropriate. IL operates in decentralised system
and municipal law operates in centralised system thus IL must be judged according to the system it
operates. Eg; we cannot compare weight lifting machine with machine of engine of rail because both
are having its importance in respective field although both are machines. Another example of
comparison between Atal Bihari Bajpai and Abdul Kalam, (Abrahum Lincon vs. Albert Einstein).
Here all are human being.

INTERNATIONAL LAW IS THE VANISHING POINT OF JURISPRUDENCE

According to Holland International law is the vanishing point of jurisprudence. Holland used the
words “vanishing point” in relation to international law and jurisprudence, to clarify that international
law and jurisprudence are parallel to each other. Jurisprudence and international law are completely
different and separated from each other, but they may seem same at the vanishing point.
Now, we need to know what a vanishing point is. Vanishing point is the meeting point or the point
of intersection of two parallel lines. The parallel lines should be on the same plain. Law theorists say
that international law cannot be kept in the category of law mainly because it is not enforced by a
sovereign authority. No sanction exists for this kind of law. So the rules of international law can be
violated easily without any punishment or legal actions. So, on the basis of these controversies, as an
analytical jurist, Holland remarks that international law is the vanishing point of jurisprudence. He
has clarified his Premark with suitable reasons.
Holland strongly believes that international law can indeed be described as law only by courtesy. It
cannot be described on legal terms as the rights can be easily violated and the concerns of
international law is not always taken into account and also cannot be implemented worldwide. It is
also said that Holland’s view on international law may be was correct in the past but at present the
same is subjected to severe criticism as character of International law has changed a great deal in
recent times due to the obligation of nations to oblige many social, environmental and humanitarian
characteristics of international law.
So we can conclude that such rules as are voluntarily, though habitually, observed by every state in
its dealings with the rest can be called law only by courtesy. International Law generally differs from
ordinary law as it is not enforced by a State and differs from ordinary morality as it is a rule for States
and not for individuals. According to him the law of nations is but private law.
There are violations of principles of International Law often by stronger nations of the world. The
international legislative machinery is not as efficient as a State legislative machinery. In the strict
sense, International Law has no legislature and no executive. Its judiciary as represented by the
International Court of compelling jurisdiction; its decisions are not conclusive so as to finally settle
legal disputes between States. International Law is not the product of an international legislature, it
being the collection of usages which the civilized states have agreed to observe in their dealings with
one another.
According to Paton, International Law is very weak on the institutional side there is no legislature,
and, while a Court exists, it can act only with the consent of the parties and has no real power to
enforce its decisions. It is true that the international law of peace is seldom broken, but once grave
issues arise we see flagrant disregard of accepted rules. The public opinion of the world may be a
factor not lightly to be ignored, but it is harder to deal with a nation that is a law-breaker than to expel
a primitive man from his community hence while primitive and International Law both lack
institutional machinery, the sanctions of the former are really more effective since they are brought
to bear on the individual and not on the nation.”
Austin also subscribes to this view,

Findings:
Jurisprudence assists with a definite theory of the implementation of international law. One cannot
implement the international law against a person of any country even though his country has agreed
into any international law agreement. The person can only be tried under the laws of his or her own
state. He or she is only subject to the territorial jurisdiction of the country, not by any international
law as the international law is not enforced by a sovereign authority.
International law can indeed be described as law only by courtesy. It cannot be described on legal
terms as the rights can be easily violated and the concerns of international law is not always taken
into account and also cannot be implemented worldwide. It is also said that Holland’s view on
international law may be was correct in the past but at present the same is subjected to severe criticism
as character of International law has changed a great deal in recent times due to the obligation of
nations to oblige many social, environmental and humanitarian characteristics of international law.
Although, previously it was believed that international law is the vanishing point of jurisdiction, these
days this thinking has changed a lot. These days international law is more advanced. International
law is followed correctly in many countries all over the world. This law is enforced during the export
and import of goods, foreign exchange and global businesses. There is international court to ensure
these rules are not violated. So, these days, jurisprudence and international law is not that parallel.
According to Dias, “International Law is obeyed and complied with by the states because it is in the
interests of states themselves.”
For this object they give the following arguments:-
1. The judgements of International court of Justice are binding on States.
2. If any state does not honour the order/judgement of International court of justice, the
Security Council may give its recommendation against that state for action.
 3. The judicial powers of International Court of justice (Voluntarily and compulsory) have
been accepted by the States.
4. The judgement of International court of Justice has been followed till date.
5. The system of enforcement i.e. sanctions and fear, has been developed.
For example :- If there is a threat to international peace and security, under chapter VII of the U.N.
Charter, the security council can take necessary action to maintain or restore international peace and
security. Besides this the decisions of the International Court of Justice are final and binding upon
the parties to a dispute.

Conclusion:
International law is regarded as the vanishing point of jurisprudence. It is believed that international
law should not be regarded as law as it is easily violated and there is no sovereign authority to enforce
it. We can also conclude that international law is mostly a courtesy and is followed depending on the
will of the countries. But things are changing these days as international laws are strictly followed
all over the world due to rapid globalization and other radical changes.
Justice V.R. Krishna Iyer formally member of Indian Law Commission has also remarked, “It is a
sad truism that international law is still the vanishing point of jurisprudence. This view is not correct.
It is now generally agreed that Holland’s view that international law is the vanishing point of
jurisprudence is not correct.
But now it is well settled that International Law is law. It is true that International Law is not enacted
by sovereign and has no agency for its enforcement. But it is true that it is a weak law. A majority of
International lawyers not subscribe to this view is based on the proposition that there are no sanctions
behind international Law are much weaker than their counterparts in the municipal law, yet it cannot
be successfully contended that there are no sanctions at all behind international law.
The jurists who do-not consider international law as the vanishing point of jurisprudence say that
there is difference between state law and International Law. International Law cannot be enacted by
the state but still there is agency for its enforcement.

SUGGESTIONS FOR IMPROVING INTERNATIONAL LAW

Despite the above mentioned weaknesses, it has to be noted that International Law is constantly
developing and its scope is expanding. It is a dynamic concept for it always endeavours to adopt
itself to the needs of the day. As compared to Municipal Law the International Law is works in a
decentralised system. This is because of the facts that the International policies, Inter- dependence of
states and the continuous growth of the concept of International or world community. However the
weaknesses of the International Law may be improved in following ways-
1. The International Court of Justice should be given compulsory jurisdiction, in the true
sense of term overall international disputes.
2. An International Criminal Court should be established to adjudicate cases relating to
international crimes.
3. International Laws should be properly codified.
4. The machinery to enforce the decisions of the International Court of Justice should be
strengthened.
5. An International Police system should be established to check international crimes and to
enforce the rules & principles of International Law.
6. An international Bureau of Investigation and prosecution should be established for
investigation of matters relating to International crimes and the prosecution of International
criminals.
7. The U.N.O. should be authorised to intervene in the internal matters of states.
8. For settlement of international disputes the use of judicial precedents must be encouraged.
9. There must be constant review of International Law.
10. Last but not the least there must be basic recognition of the interest which the whole
international society has in the observance of its laws.
 Relationship between International and Municipal Law

Contents
Introduction ..................................................................................................................................... 25
1. Monistic Theory: Kelsen’s view ............................................................................................. 26
Opinion of Lauterpacht .............................................................................................................. 26
2. Dualist Theory:........................................................................................................................ 27
Opinions of H. Triepel ................................................................................................................ 27
Criticisms of dualist theory? ...................................................................................................... 27
3. Consent Theory (Common Theory) ...................................................................................... 28
4. Incorporation theory .............................................................................................................. 29
Some Cases under the ICJ ............................................................................................................. 29
South West Africa case (Ethiopia vs. South Africa) ................................................................ 29
Barcelona Traction case (Belgium vs. Spain) ........................................................................... 29
Status in various countries: ............................................................................................................ 31
England ............................................................................................................................................ 31
United States of America ................................................................................................................ 31
Application of Rule of Law in International Law (India) ........................................................... 31
The Constitution of India and International Law........................................................................ 32
Indian Judicial incorporation ........................................................................................................ 38
(Mis)adventures with customary international law ..................................................................... 39
Various Branches of Law and their Implementation in India .................................................... 35
Human Rights in India ............................................................................................................... 35
Environmental Law and Jurisprudence ................................................................................... 35
International Conferences and environmental law in India ................................................... 35
Trade Law.................................................................................................................................... 36
Intellectual Property Rights ....................................................................................................... 36
Alternative Dispute Resolution .................................................................................................. 37
Space Law .................................................................................................................................... 37
Cyber Law ................................................................................................................................... 38

Introduction
To understand the relationship between International Law and Municipal Law, it is important to
know the link between the two laws. International Law is a set of rules and actions related to national
behaviour. In other words, International Law is a set of rules that apply when States interact. On the
other hand, Municipal law is also known as the National Law of the country. There are various
theories to recognize the difference between these two laws.
1. Monistic Theory: Kelsen’s view
Basically, ‘Monistic’ means one or the unity of the legal systems. This view believes that there is no
difference between Municipal law and International Law. The people who follow this theory think
that the science of law and the body of law is a single law that is International Law itself. The students
who were with Kelsen while he was researching this theory found a hypothesis solution. After
detailed analysis, Kelsen got the documents which were necessary for the theory’s confirmation.
Kelsen explains that monistic theory states that international law, as well as various state legal
systems, constitute a unified system of law.
The idea he points out is that “one can conceive of international law together with the state legal
systems as a unified system of norms in exactly the same way as one is accustomed to regarding the
state legal system as a unity.”
Those who do not follow this theory allege that Municipal Law is not in accordance with International
Law and it appears that it will be more difficult to maintain the new laws due to the actual historical
circumstances.
Finally, according to Kelsen, he is the source of the final legal force of all laws based on the basic
norms of International Law. His theory leads to the conclusion that all norms of International Law
are superior to Municipal law. Municipal Laws that are incompatible with International Law are
automatically recognized as invalid and do not apply.

In the Science of Law, there are two branches from a single body: the National Law and the
International Law. This theory defines that International Law is superior to Municipal Law. Whatever
legal work we deal with, whether National or International, all are meant to be dealt with by
International Law itself.

Opinion of Lauterpacht

According to Lauterpacht, Nation exists on its own. It is the individuals who are the fundamental
components of society. The rights and obligations of the Municipal legal system can be transferred
to the International legal system. For eg: Human Rights are available in national as well as in
international legal systems.
National and International Law are not equivalent to each other, in the sense that rights and
obligations under both National and International systems deliver the same purpose which is to
promote the interests of the people.
Following are the points which are put forward by Monists:
a. Both Municipal and International law have a common origin from the law of nature.
They not only resemble each other but at the same time, spring from a single grund norm or
 standard which is the foundation head of all laws. They regard law as a single unified field
of knowledge.
b. Both are part of a universal body of legal rules binding all human beings. It is the
individual who really lies at the root of the unity of all law.
c. The substance of the law is the same in both the systems i.e. a command binding upon
the subjects irrespective of their will. Therefore, there is no superiority of one system over
the other.
Criticism
In actual practice, states are in the negation of this theory and they do not follow this theory. They
treat international law and municipal law as two separate systems of law. States do not like to
compromise with their sovereignty.
2. Dualist Theory:
The chief exponents of dualism are the positivist writers like Triepel and Anzilotti. According to
them, the will of the state is the sole criterion for the creation of rules of international law. There is a
fundamental difference between both of the systems; the rules of the one are not expressly received
into the other system. Oppenheim observed that the law of nations and the municipal law are
essentially different from each other.

Opinions of H. Triepel

A dualistic view of the relationship between Municipal and International Law is presented by H.
Triepel in a more rigorous form in his textbook “ Völkerrecht und Landesrecht”.
There are no rules for transferring rights and Obligations from one system to another because the
individuals are residents of a country and are subject to the National Law. In other words, there are
various theories and subjects about National and International Laws. There are many situations where
they come into an argument about which law is higher.
The person who advocates the dualism theory believes that there is no contradiction between
Municipal and International Laws and that these provisions do not have the same goal. Internal rules
apply only to national borders and cannot violate International Law.
In this situation, the International Law is valid only at the International level. In order to implement
the International Law in a State, the State must submit them through a legal notice that facilitates the
application. In both cases, people will face the nationalization of the convention at the International
and National levels.
Dualism teaches that National and International Law are two separate legal systems with the same
International responsibility. These two systems have different legal sources. National law is used for
issues inside a State and International Law is used for solving problems between two States.

Criticisms of dualist theory?

Firstly, this view states that International Law and Municipal Law are different from each other as
International Law cannot be part of Municipal Law and it also cannot be regarded as absolute state
law unless it is explicitly enforced or amended by Municipal Law. This view is not true, because
there are certain basic principles of International Law that link the state with its own will.
Secondly, it is not true that International Law regulates only the relations between countries. It also
governs certain personal actions. If people make certain mistakes, they can be punished in accordance
with International Law eg: War Crimes.
Thirdly, “Pacta Sunt Servanda”, which means agreement must be kept, is undoubtedly an important
principle of International Law, but not the only principle on which it is based. There are certain rules
which are legally binding on a state.
Article 38(1) of the Statute of the International Court of Justice (ICJ) provides three International
Laws: Treaties, Customs and General Principles. Since the systems of International Law are
horizontal and decentralized, the creation of International Laws is much more complicated than the
creation of laws in the national systems.
These two systems at law differ from each other on the following grounds:
a. Origin: Municipal law is the will of the state, while international law is the common will
of the states. The source of municipal law is the custom grown up within the state and
statute enacted by the legislature while international law is made up of custom grown up
within the family of nations and law-making treaties.
b. Subjects: Municipal law regulates the relation of the individuals of the state, whereas
international law regulates the relation between member-states and international
organizations having international personality.
c. Nature/Principles: The rules of municipal law are in the nature of commands which must
be obeyed, whereas the rules of international law are in the nature of promises based on
pacta sunt servanda.
It is not correct to say that the pacta sunt servanda is the only basis of international law. It fails to
explain the binding force of customary rules of international law in regard to which the states have
not given their consent. Secondly, It is not correct to contend that international law is binding only
on states. Today, International law is binding on states, individuals and certain other non-state entities
3. Consent Theory (Common Theory)
The evolution of this theory was given by John Locke and he derived a phrase from the theory that
is- “Everyone is equal”. Several problems arose with this including treaties and customs not being
the only sources of International Law. All provisions of the International legal system in this theory
can be accepted by any party in a contractual agreement.
Article 38(1) of the Tribunal Statutes states that “General Principles of Law recognized by many
Civilized Countries” is the source of International Law. It helps Judges to further develop
International legal content. This shows us that agreement is not always necessary for International
Law to function.
The theory of consent is not fully applicable in the case of treaties. It is not important to have the
third country’s consent while having an agreement with any other country. So, in any of the States
matter, no third country can interfere.
For Example: In Article 2 of the Charter of the United Nations, this theory justifies that the United
Nations should have conditions that the third countries must act in accordance with principles of the
UN Charter. So, Consent theory is mainly for the International Peace and Security among the
sovereign countries, by which two countries can maintain an acceptable relationship with each other.
4. Incorporation theory
Article 103 of the UN Charter says that if there is any problem between the UN members under this
Charter and their liability are under other International conventions, then they will be liable under
this charter.
The doctrine of the International Law automatically becomes part of Municipal Law, according to
which Municipal Law is only part of International Law if recognized by the law or judgement. It is
not entirely clear about the rules of customary International Law with regard to international treaties.
Sovereignty has the authority to conclude or ratify treaties to bind Britain under International Law.
However, these contracts do not affect Municipal Law until they are adopted by Parliament. But,
Judges will sometimes consider the provisions of international treaties. (Eg: human rights issues) in
the implementation of community law. European Community Directives have been said to have legal
force in the Member States.

Some Cases under the ICJ

South West Africa case (Ethiopia vs. South Africa)

Facts
In this case, on 4th November 1960, Ethiopia and Liberia, former State Members of the League of
Nations, opened a separate process for the cases cited in South Africa for the continuation of the
League of Nations mandate for South Africa. The Court was asked to explain that South Africa
remained a mandate territory, it had violated its obligations under that mandate and therefore was
under the legal authority of the United Nations. On 20th May 1961, the Court found that Ethiopia
and Liberia had the same interests and joined the trial. South Africa has submitted four initial
objections to the jurisdiction of the Court. At the judgement of 21st December 1962, the Court
rejected them and confirmed their jurisdiction. After the defence was basically completed within the
time limit determined at the request of the parties, the Court held a public hearing from 15th March
to 29th November 1965 to hear oral arguments and statements and the second stage of the decision.
Judgement
The Court decided to reject Ethiopia and Liberia because they could not establish legitimate rights
or interests in relation to their claims.

Barcelona Traction case (Belgium vs. Spain)

Facts
In this case, the Barcelona Traction Light and Power Company Limited were incorporated in 1911
in Toronto (Canada), where it had its head office.
To build and develop power plants and distribution systems in Spain, the company established a
number of subsidiaries, some of which were located in Canada and some in Spain. In 1936, a
subsidiary supplied most of Spain’s electricity needs.
According to the Belgian government, a few years after the First World War it became clear that
most of Barcelona Traction’s share capital was held by Belgian citizens, but the Spanish government
rejected this claim. Barcelona Traction had issued several series of bonds, mainly in the form of
sterling. Sterling bonds were served by Barcelona Traction, which was influenced by a subsidiary
operating in Spain. In 1936, maintenance of crane bonds in Barcelona was terminated due to the
Spanish Civil War.
After this War, Spanish exchange control authority refused to allow the transfer of foreign currency
needed to restart services on sterling bonds. When the Belgian government said that the transfer
displays that the foreign currencies must be used to pay off debts from actual foreign capital from
Spain, they did not confirm the currency exchange.
Issues
Does Belgium have the Jus Standi (right to bring an action) to have diplomatic protection for
shareholders of Canadian companies?
Does Belgium have the rights and jurisdiction to bring Spain to justice for the actions of Canadian
companies?
The judgement of the case
The Court decided to reject this case which shows the difference between individuals who are
inherently sovereign at the national and international level. The Court ruled in favour of Spain, as
Belgium was not responsible for the war occurred in Spain, and diplomatic immunity was not granted
to shareholders requiring compensation.
However, a lawsuit may arise if the shareholder is located in Canada and has the correct identity.
Therefore, since the country has not been given power, a person cannot take action against one
Country. This case is considered as a good benchmark for Governmental requirements.

Differences between International Law and Municipal Law:

The origins of law, its topics, and subject matter are thought to be the key differences between foreign
and municipal law.
1. International law is primarily concerned with state relations, although it is not exclusively
so. Municipal legislation regulates the interactions of individuals within the state as well
as between individuals and the state.
2. International law governs relations between members of the States family of nations.
Municipal law, on the other hand, governs the relationships between individuals who are
subject to the jurisdiction of a particular state, as well as the relationships that exist between
this state and the individuals who are subject to it.
3. The law of the nation is a law that governs the relationship between sovereign states rather
than above them. Municipal law, on the other hand, is the law of the sovereign over persons
as subjects.
 4. International law is derived from states’ common will, its objects are the states themselves,
and its subject matter is international affairs. Domestic law is derived from the sovereign’s
or state’s will, its subjects are persons within the state, and its subject matter is the
relationships between individuals and government.

Status in various countries:

England

Customary International law: In the early days, Blackstonian doctrine was used, which meant
that the law of the nation is part of the state law. Today, the practice is that ‘Rules of customary
international law’ are part of the land and will be applied as such as the municipal courts subject
to the following qualifications:
I. Customary rules will be applied by the British courts if it has attained the position of
general acceptance.
II. The rules should not be inconsistent with the provisions of British statute laws.
III. Once the scope of customary laws is determined by final authority then all British
courts are bound by them.
Practice as to Treaties: In England, the executive is accountable to the Parliament for the
conduct of foreign affairs. Majority of treaties which are part of international law do not ipso
facto become the law of the land unless expressly adopted or incorporated by the Parliament
through legislation so as to make them part of the land. No legislation is required for certain
specific treaties which do not alter municipal law.

United States of America

Customary International law: American practice is the same as British practice. The court is
bound by the law of the land. Customary law is accepted without any legislative measure as
part of the American law provided that there is no domestic law which is contrary to the
customary international law. Customary International law is subordinate to all the domestic
statutes.
Practices as to Treaties: The constitution of the United States makes specific provision for the
application of the international treaties. Treaties are given supreme importance as it is evident
from Article 6 of the constitution which provides that all treaties made by the United States
shall be the supreme law of the land; thus treaties are put at an equal footing with federal
statutes.

Application of Rule of Law in International Law (India)

Customary International law: Article 51(c) provides that “the state shall endeavour to foster
respect for international law and treaty obligations in the dealings of organized peoples with
one another.” This article is kept in part four of the constitution which means that it shall be the
 duty of the state to apply these principles in making laws. Article 371(1) of the constitution
provides that all the laws in force in the territory of India immediately before the
commencement of this constitution shall continue in force until altered or repealed. So the
previous practice that the customary rules of international law becoming part of the law of the
land still applies in India.
Practices as to Treaties: The executive of India is having powers to bind India into treaties as
given by the provisions of the Constitution of India. The Parliament has no share in treaty
making. Implementation of the treaty is regulated by the legislature of India through Article
253, which gives power to the Parliament to make any law for whole or part of the country to
implement any treaty, agreement or convention. The Judiciary of India gave the Judgment that
the treaties which involve cession of Indian territory or affecting private rights of citizens must
be enacted by legislation to become enforceable.

The Constitution of India and International Law

The ties of India’s Constitution with international law date back to the pre-independence days.
Even during the British rule, India was the separate member of the League of Nations. It is also
the founding-member of the United Nations. In this section, tis have been sketched general
scheme of the Constitution with reference to international law and further proceed to analyse
certain important provisions and aspects.
The Preamble
The Preamble contains certain basic values and philosophies that India guarantees to its citizens
and strives to achieve as a nation. The Preamble states inter alia that social, economic and
political justice will be secured for all citizens and that liberty and equality will be promoted.
These values are the cornerstone of true democracy and are universal in nature. Every nation
strives to achieve them.
Fundamental Rights and Directive Principles of State Policy
The Fundamental Rights in Part III and the positive mandates to the State in the form of
Directive Principles in Part IV can be compared with the Universal Declaration of Human
Rights (UDHR) and commonalities can be traced. Shri Subhash C Kashyap has prepared a
detailed chart on the common principles in these two parts as well as certain other laws of India.
The developments at the international level through the centuries had a great influence on the
rights discourse in the world. The United Nations Organisation (UNO) was founded as an
international agency to prevent the breaking of the third world war, maintain international peace
and security and to promote human rights. With this objective in mind, Nations came together
and adopted and proclaimed the Universal Declaration of Human Rights on 10th December,
1948. It should be noted that the Indian Constitution which was adopted on 26th November,
1950 was greatly influence by the history of the human race and the values the Universal
Declaration of Human Rights sought to promote and preserve.
Fundamental Duties
Article 51A gives effect to the declaration in Article 29(1) of the Universal Declaration of
Human Rights, which emphasises the duties owed by individuals to the community at large.
These duties benefit community and also help in the full flourishing of the individual.
International Peace and Security, and International Relations
Indian Constitution is one of the few constitutional texts in the world which expressly provides
for fostering of international relations. The text of Article 51 reads as follows:
“51. Promotion of international peace and security – The State shall endeavour to –
 Promote international peace and security;
 Maintain just and honourable relations between nations;
 Foster respect for international law and treaty obligations in dealings of
organised peoples with one another; and
 Encourage settlement of international disputes by arbitration.”
Article 51 mandates the State to endeavour to promote international peace and security, to
maintain good relations with other nations, to respect international law and to settle international
dispute by peaceful means. This Article is inspired from the Declaration of Havana adopted on
30th November, 1939. The Declaration proclaimed the ‘unshaken faith’ of the parties in
international co-operation and promoting international peace and security.
Clause (c) of this Article obligates India to respect international law. A combined reading of
this with Part III of the Constitution facilitated the judiciary in developing human rights and
environmental jurisprudence in India. Clause (d) of the Article provides for ‘settlement of
international disputes by arbitration’. The wisdom of using the term arbitration is doubted. Most
countries do not prefer arbitration to other means and in fact the practice of various States shows
that arbitration is not the first choice of different nations. India too has not preferred arbitration
as the first means to settle international disputes. The UN Charter too suggests various means
like negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means. In these circumstances, it is
obvious that the use of the term arbitration is misplaced.
It should be remembered that Article 51 is part of the Directive Principles which are not
enforceable. Nevertheless, highest importance is given to international law and the courts in
India have done so.
Powers of the Executive in matters of International Law and Relations
By virtue of Article 73, the powers of the Government of India extends to matters in respect of
which the Parliament has the power to make laws, subject to constitutional provisions or any
law made by the parliament on that behalf. As per Article 253, the Parliament can enact laws to
implement international obligations, notwithstanding the constitutional distribution of powers.
So far, in India, there is no legislation that limits the power the executive in matters of
international law and relations. Hence, we can state that the executive has extensive powers in
this regard.
The power of the executive is vested in the President of India and is exercised by directly or
through officers subordinate to him. All contracts entered into by India should be made in the
name of the President. The President, in the exercise of her powers should act according to the
advice of the Council of Ministers. All executive actions are taken in the name of the President
of India.
Treaty Making Power
As mentioned above, there is no law in India that restricts the exercise of powers by the
Government of India under Article 73. This enables to executive to incur any kind of treaty
obligations. The legal status of such international obligations in respect of the Constitution can
be analysed by a study of various judgments of the Supreme Court. This peculiar situation arises
due to the lack of clear provisions as to the status of international treaties in the Constitution,
that is, regarding adoption of international law into Indian law. Article 51 obligates respect for
international treaties. Article 253 confers powers on the Parliament to make laws to implement
international agreements. Here we have to draw a distinction between formation of treaty and
adoption of that into domestic legal system. Making laws is the exclusive domain of the
legislature. Therefore, generally, ratification (approval) by the legislature is necessary to make
the treaty binding on the State. Whereas, the executive is the agency of the State, that can incur
legal obligations on the State’s behalf. But, as already explained, there are no fetters on the
executive’s power in respect of international law. Therefore, the Supreme Court held that
international law forms part of municipal law except when they are inconsistent with the
provisions of municipal law. To sum up, the current position in India is that approval of the
Parliament is required only for treaties that affect the rights of the citizens or which require a
new, or change in an existing, municipal law.
Capacity to Maintain Suits
Article 300 provides that the Government of India can sue or be sued in the name of the Union
of India.
Extra-territorial Jurisdiction
The Government of India, as per Article 260, can enter into an agreement with any other foreign
State to undertake legislative, executive or judicial functions in such territory.
The powers of the Parliament
The power of legislating is divided by territorial extent and competence over subject matter.
The Parliament can make laws for the whole of India on subjects specified in List I of Schedule
VII, and the legislature of the any State can make laws applicable within the territory of that
State over the subjects contained in List II. List III is designated as Concurrent List over which
the Parliament as well as the legislature of the States can exercise jurisdiction, subject to the
overall power of the Parliament. Article 253 confers exclusive power on the Parliament to enact
laws to implement international agreements. The Article reads as under:
“253. Legislation for giving effect to international agreements – Notwithstanding anything
in the foregoing provisions of this Chapter, Parliament has power to make any law for the
whole or any part of the territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision made at any conference,
association or other body.”
 This power overrides even the other provisions in Chapter 1 of Part XI of the Constitution which
deals with the distribution of powers between the Union and the States, as explained above. The
provisions of Article 253, therefore, gives power to the Parliament to enact laws on matters
listed in List II of Schedule VII, in order to implement international treaties, agreements,
conventions or decisions taken international conference, association or other body. Hence, the
power of the Parliament on matters of international law can be stated to be plenary. Further, the
residuary power of legislating is also with the Parliament. This enables the Parliament to
legislate on matters not listed in Schedule VII.
The Parliament also possesses the power to admit foreign territories into the Union by way of a
law (Article 2). But, if territory of India has to be ceded, a constitutional amendment will be
required, as the Constitution does not specifically empower the Parliament to do so.

Various Branches of Law and their Implementation in India

Human Rights in India

Fundamental rights under the Indian Constitution and the international humanitarian law
contain similar principles and values. Developments in international law have paved way to
various human rights legislations in India. A greater role is being played by the judiciary in
developing human rights jurisprudence in India based on international principles.
The Fundamental Rights and Directive Principles in the Constitution echo international human
rights principle. Special legislations and provisions like the Child Labour (Prohibition and
Regulation) Act, 1986, the Mental Health Act 1987, the Human Rights Act, 1993, the Persons
with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and
the Right of Children to Free and Compulsory Education Act (or the Right to Education Act),
2009 have also been enacted to ameliorate the marginalised sections of the society. The Indian
judiciary has broadly interpreted the scope of the fundamental rights to best further the
objectives of human rights. It has relied upon various international norms and principles in order
to recognise and enforce various rights. Human rights in India, thus, has greatly benefited from
international law.

Environmental Law and Jurisprudence

The steep rise in global temperature and the growing realisation that natural resources – living
and non-living are finite created a global concern for the protection and conservation of
environment. To address this concern, the world met at Stockholm in 1972 in what has come to
be known as the First Earth Summit. India was an active participant at this Conference and since
then is committed to the cause of environmental conservation. At the same time, she is also the
champion of the developmental aspirations of the developing nations.

International Conferences and environmental law in India

 Subsequent to the Stockholm Conference and in order to give impetus environmental
preservation, India enacted the Water (Prevention and Control of Pollution) Act 1974, the Air
(Prevention and Control of Pollution) Act 1981, and the Environment (Protection) Act 1986.
These legislations along with other laws, like the Forest Act, 1927, the Prevention of Cruelty to
Animals Act, 1960, the Wildlife (Protection) Act, 1972, Forest (Conservation) Act, 1980, the
Public Liability Insurance Act, 1991, the National Environment Tribunal Act, 1995, the
National Environment Appellate Tribunal Act, 1997 and the Biological Diversity Act, 2002
form the corpus of environmental law in India. The Indian courts have played a very significant
and vital role in environment protection in India by applying the principles of international law.
The scope of right to life under Article 21 of the Constitution has been widened through the
concept of public interest litigation (PIL) and clean environment is now a fundamental right of
every Indian. Thus, the impact of international law on India’s environmental law, similar to that
on human rights, is profound and has been highly beneficial.

Trade Law

International trade is the cross-border exchanges between subjects of international trade law. In
order to institutionalise international trade regulations, International Trade Organisation (ITO)
was sought to be established. But the ITO could not materialise due to wide differences among
nations. As a stop-gap arrangement General Agreement on Trade and Tariffs (GATT) was
signed. The GATT did not include trade in services. Later, after prolonged discussions in the
Uruguay Rounds of negotiations the GATT system was replaced by the World Trade
Organisation (WTO), which included two important aspects of trade – the General Agreement
on Trade in Services (GATS) and the Trade Related aspects of Intellectual Property Rights
(TRIPS). India is a founding-member of the WTO. The unique feature of WTO is that the States
could not make any reservations to the provisions of the WTO. The WTO regulations have to
be accepted unconditionally and in full. WTO also has stringent enforcement mechanism. WTO
today has 153 member States. The growing important of international trade and the strong WTO
system ensures that States implement their international trade law obligations. India has
implemented its obligations under the WTO, which include regulation of tariff and taxes, anti-
dumping and intellectual property rights. A wide variety of laws and amendments were brought
in subsequent the establishment of WTO. The major acts are the Foreign Trade (Development
and Regulation) Act, 1992, the Special Economic Zones Act, 2005, the Special Economic Zones
Rules, 2006, the Agriculture and Processed Food Products Export Development Authority Act,
1985, the Marine Products Export Development Authority Act, 1972, the Competition Act,
2002, and the range of amendments to the Tea Act 1953, the Coffee Act, 1942, the Rubber Act,
1947 and IPR laws in India and the opening of the Indian service sectors to foreign players.

Intellectual Property Rights

 The intellectual property rights (IPR) system in India is based on the developments in
international law. India is a member of the World Intellectual Property Organisation (WIPO),
and party to the World Trade Organisation (WTO) managed Agreement on Trade Related
Aspects of Intellectual Property Rights (TRIPS Agreement). Therefore, India has brought its
domestic law in harmony with the international IPR regime. The legislations in this regard
include the Patent Act, 1970, the Copyright Act, 1957, the Trade Marks Act, 1999, the
Geographical Indications of Goods (Registration and Protection) Act, 1999, and the Design Act,
2000.

Alternative Dispute Resolution

India enacted the Arbitration and Conciliation Act, 1996 in order to bring uniform rules
regarding settling commercial disputes based on the Model Law on International Commercial
Arbitration, 1985 and the Conciliation Rules, 1980 adopted by the United Nations Commission
on International Trade Law. Amendments to the Code of Civil Procedure, 1908 were also made.

Space Law

The launch of Sputnik 1 by the erstwhile USSR (Soviet Union) on 4th October, 1957 marked
the beginning of the space era and since then this field has seen tremendous progress. Law
responded to this “revolution” immediately. In 1959 the United Nations Committee on Peaceful
Uses of Outer Space (UNCOPUOS) was established in order to create a specialised agency for
dealing with peaceful use of outer space and promote international co-operation. UNCOPUOS
has two standing subcommittees: the Scientific and Technical Subcommittee and the Legal
Subcommittee.
India has played a pioneering role in the development of international space law. India is one
of the founder-members of the UNCOPUOS. It has participated in all conference on space law
and has been an active participant. India is also a leader in space technology and this gives great
weight to her contribution to law-making.
The international legal framework on space laws consists of five treaties and five important
declarations of principles. The following are the treaties:
 Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies (the Outer Space Treaty),
1967
 Agreement on the Rescue of Astronauts, Return of Astronauts and the Return of
Objects Launched into Outer Space (the Rescue Agreement), 1968
 Convention on International Liability for Damage Caused by Space Objects (the
Liability Convention), 1972
 Convention on Registration of Objects Launched into Outer Space (the Registration
Convention), 1975
 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies
(the Moon Agreement), 1979
 The declarations of principles are given under:
 The Declaration of Legal Principles Governing the Activities of States in Exploration
and Uses of Outer Space, 1962
 The Principles Governing the Use by States of Artificial Earth Satellites for
International Direct Television Broadcasting, 1982
 The Principles Relating to Remote Sensing of the Earth from Outer Space, 1986
 The Principles Relevant to the Use of Nuclear Power Sources in Outer Space, 1992
 The Declaration on International Cooperation in the Exploration and Use of Outer
Space for the Benefit and in the Interest of All States, Taking into Particular Account
the Needs of Developing Countries, 1996
Although India has played a vital role at the international level and made invaluable
contributions to the development of international space law, she does not have domestic law
dealing with subject. This deficiency in the legal system exists in spite of the fact that India is
a leading space technology country and has been actively involved in scientific and legal
developments at the global level for over five decades. This is an appalling condition.

Cyber Law

Cyber law in is India governed by the Information Technology Act, 2000. This legislation was
enacted subsequent to the UNCITRAL Model Law on Electronic Commerce (E-Commerce).
The various legislations passed in this regards include the Information Technology Act, 2000
and amendments to Evidence Act, 1872.

Indian Judicial incorporation

However, the Supreme Court in certain cases has digressed from this doctrine of dualism, giving
rise to confusion regarding the relationship between international law and India’s legal system.
For instance, in Vishaka v. State of Rajasthan, 1997, a landmark judgment on sexual
harassment of women at workplaces, it was noted that “regard must be had to international
conventions and norms for construing domestic law when there is no inconsistency between
them and there is a void in the domestic law”. Not only did the court use international law to
find the meaning of domestic law, it also held that international conventions not inconsistent
with fundamental rights must be read “to enlarge the meaning and content thereof”. This was
reaffirmed in the National Legal Services Authority v. Union of India, 2014 – the case that
recognised transgender as a third category of gender. The court said: ‘If parliament has made
any legislation which is in conflict with the international law, then Indian courts are bound to
give effect to the Indian law, rather than international law. However, in the absence of a contrary
legislation, municipal courts in India would respect the rules of international law.’ It then went
on to say that any international convention not inconsistent with fundamental rights must be
read into Articles 14, 15, 19 and 21 to enlarge the meaning and content thereof.
 In cases such as these, the court has often relied on Article 51 (c) of the Constitution (read with
Article 253) to support its reasoning. Article 51 (c) directs the state to ‘endeavour to’ ‘foster
respect for international law and treaty obligations’. As Lavanya Rajamani in her essay on
‘International Law and the Constitutional Schema’ in the Oxford Handbook of the Indian
Constitution points out, the obligation under Article 51 (c) is one of making an effort and not
of achieving a result. Thus, can the Supreme Court rely on it to judicially incorporate
international treaties into domestic law?
Moreover, based on this, the key question that arises is: when the court says that international
treaties, which are consistent with Indian laws, can be used to enlarge the meaning and content
of domestic laws such as fundamental rights, is the court saying that these international treaties
are part of the law of the land or have ‘direct effect’ even without parliament enacting a domestic
legislation? Or should a distinction be drawn between using international treaties to interpret
and enlarge the content of domestic law and concluding that these treaties are part of the law of
the land?
Although one is unsure if such distinction has any merit, it might have practical consequences.
For example, will the government (i.e. the executive) be right in adopting measures to
implement international treaties, which are consistent with domestic laws, even when
parliament has not enacted a legislation giving ‘effect’ to such an international treaty? If the
Supreme Court’s jurisprudence is to be understood in support of the ‘direct effect’ theory as
posed above, then the executive will be right in doing so. This is indeed what India argued in
the WTO Solar Panel case against the US, decided recently. Citing the jurisprudence of its own
Supreme Court, India argued that ‘legislative action to incorporate an international instrument
is required only when there is “conflicting” domestic legislation’. Meaning thereby that
international instruments consistent with domestic law are part of the law of the land even
without an enabling domestic legislation. However, the WTO Appellate Body (AB) didn’t
accept India’s argument and held that using international law to interpret India’s domestic laws
does not mean that these international instruments have ‘direct effect’ in the Indian legal system.
Another key question in this regard is: can the court’s jurisprudence be read to imply that the
court is endeavouring to segregate international norms, more specifically international treaties,
binding India into two categories: ‘treaties consistent with domestic law’ and ‘treaties
inconsistent with domestic law’? If yes, then can Article 51 (c) be relied upon to bring about
this categorisation? Perhaps, not because fostering respect for international law under Article
51 (c) is for all treaties that India has signed and not just for ‘treaties consistent with domestic
law’.
Interestingly, the court, in cases such as G Sundarrajan v Union of India, 2013, and in the
Transgender case has even resorted to those international treaties consistent with Indian law
that India has not signed.

(Mis)adventures with customary international law

Apart from treaties, custom is also a formal source of international law. The Supreme Court’s
dealings with custom or customary international law (CIL) is also a bit perplexing. In Vellore
Citizens’ Welfare Forum v. Union of India, 1996, the court said that there is no difficulty in
accepting CIL, not contrary to domestic law, as part of the Indian legal system. Although both
treaties and CIL impose equally binding obligations on a country, unlike treaties it is often not
easy to ascertain whether a norm has indeed attained the status of CIL. A norm becomes part of
CIL only if states customarily follow that norm from a sense of legal obligation.
In this case, the court declared that sustainable development as a balancing concept between
ecology and development has been accepted as part of customary international law. However,
as Lavanya Rajamani has shown, the court reached this conclusion by simply referring to soft
law instruments such as the Rio Declaration and the Bruntland Report. Incorporation without
properly ascertaining whether a norm has become part of CIL would lead to perilous situations
where even those norms that do not bind India internationally become part of the Indian legal
system.
To conclude, international legal norms are not directly enforceable in Indian courts till there is
a domestic legislation giving effect to these norms. In practice, however, courts have practised
what has been described as ‘creeping monism’, where international legal norms are internalised
into domestic law. This blurs the boundary between dualism and monism and raises a number
of conceptual questions. The WTO Solar Panel case demonstrates this quite well. In view of
this, it is critical for India’s apex court to demonstrate greater rigour in approaching international
law and in explaining its relationship with domestic law.
 Recognition
Under International Law, recognition of a State can be defined as: A state acknowledgment or
acceptance as an international personality by the existing State of the international community. The
declaration to fulfill certain essential conditions of Statehood as required by International Law.
Under the International Law, Article 1 of the Montevideo Conference, 1933 defines the state as a
person and lays down following essentials that an entity should possess in order to acquire
recognition as a state:
 It should have a permanent population.
 A definite territory should be controlled by it.
 There should be a government of that particular territory.
 That entity should have the capacity to enter into relations with other states.
Kelson’s view on the recognition of states
For a state to be recognized the following conditions must be fulfilled-
 Must be politically organised.
 Have control over definite territory.
 Must be permanent.
 Must be independent.
Recognition involves consequences both on the international plane and within municipal law. In
more cases than not the decision whether or not to recognise will depend more upon political
considerations than exclusively legal factors. Recognition is not merely applying the relevant legal
consequences to a factual situation, for sometimes a state will not want such consequences to follow,
either internationally or domestically.
To give one example, the United States refused for many years to recognise either the People’s
Republic of China or North Korea, not because it did not accept the obvious fact that these authorities
exercised effective control over their respective territories, but rather because it did not wish the legal
effects of recognition to come into operation. It is purely a political judgment, although it has been
clothed in legal terminology.
Recognition is a statement by an international legal person as to the status in international law of
another real or alleged international legal person or of the validity of a particular factual situation.
Once recognition has occurred, the new situation is deemed opposable to the recognising state that
is the pertinent legal consequences will flow. As such, recognition constitutes participation in the
international legal process generally while also being important within the context of bilateral
relations and, of course, domestically.
Recognition is constitutive in a political sense, for it marks the new entity out as a state within the
international community and is evidence of acceptance of its new political status by the society of
nations. This does not imply that the act of recognition is legally constitutive, because rights and
duties do not arise as a result of the recognition.
Practice over the last century or so is not unambiguous but does point to the declaratory approach as
the better of the two theories. States which for particular reasons have refused to recognise other
states, such as in the Arab world and Israel and the USA and certain communist nations, rarely
contend that the other party is devoid of powers and obligations before international law and exists
in a legal vacuum. The stance is rather that rights and duties are binding upon them, and that
recognition has not been accorded for primarily political reasons. If the constitutive theory were
accepted it would mean, for example, in the context of the former Arab non-recognition of Israel,
that the latter was not bound by international law rules of non-aggression and non-intervention. This
has not been adopted in any of the stances of non-recognition of ‘states’.
In most cases they will grant recognition, but that does not mean that they have to, as history with
regard to some Communist nations and with respect to Israel illustrates. This position was supported
in Opinion No. 10 of the Yugoslav Arbitration Commission in July 1992, which emphasised that
recognition was ‘a discretionary act that other states may perform when they choose and in a manner
of their own choosing, subject only to compliance with the imperatives of general international law’.
The approach of the United States was emphasised in 1976. The Department of State noted that:
In the view of the United States, international law does not require a state to recognise
another entity as a state; it is a matter for the judgment of each state whether an entity
merits recognition as a state. In reaching this judgment, the United States has traditionally
looked to the establishment of certain facts. These facts include effective control over a
clearly defined territory and population; an organised governmental administration of that
territory and a capacity to act effectively to conduct foreign relations and to fulfil
international obligations. The United States has also taken into account whether the entity
in question has attracted the recognition of the international community of states.
The view of the UK government was expressed as follows:
The normal criteria which the government apply for recognition as a state are that it should
have, and seem likely to continue to have, a clearly defined territory with a population, a
government who are able of themselves to exercise effective control of that territory, and
independence in their external relations. Other factors, including some United Nations
resolutions, may also be relevant.
Recent practice suggests that ‘other factors’ may, in the light of the particular circumstances, include
human rights and other matters. The European Community adopted a Declaration on 16 December
1991 entitled ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet
Union’ in which a common position on the process of recognition of the new states was adopted. It
was noted in particular that recognition required:
 respect for the provisions of the Charter of the United Nations and the commitments
subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard
to the rule of law, democracy and human rights;
 guarantees for the rights of ethnic and national groups and minorities in accordance with
the commitments subscribed to in the framework of the CSCE;
 respect for the inviolability of all frontiers which can only be changed by peaceful means
and by common agreement;
 acceptance of all relevant commitments with regard to disarmament and nuclear non-
proliferation as well as to security and regional stability;
  commitment to settle by agreement, including where appropriate by recourse to arbitration,
all questions concerning state succession and regional disputes.
Recognition is an active process and should be distinguished from cognition, or the mere possession
of knowledge, for example, that the entity involved complies with the basic international legal
stipulations as to statehood. Recognition implies both cognition of the necessary facts and an
intention that, so far as the acting state is concerned, it is willing that the legal consequences attendant
upon recognition should operate.
Theories of recognition
The recognition of a new entity as a sovereign state is based on two main theories:
 Constitutive Theory
 Declaratory/evidentiary Theory
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 recognised by the existing States.
This theory does not mean that a State does not exist unless recognised, but according to this theory,
a state only gets the exclusive rights and obligations and becomes a subject to International Law after
its recognition by other existing States.
Criticism of the theory
This theory has been criticised by several jurists. Few of the criticisms of this theory are:
 This theory is criticised because unless a state is recognised by other existing states, rights,
duties and obligations of statehood community under International Law is not applicable
to it.
 This theory also leads to confusion when a new state is acknowledged and recognised by
some of the existing states and not recognised by other states.
Oppenheim’s View on Recognition of State
 A State is and will only be an international person if recognised as extraordinary. There is
no agreement that countries have to give recognition to a State, there is no obligation on
the countries, and obligation lies under international law who will give recognition to a
new State.
 Existing countries recognised a country as a member of the international community and
believe that the State meets the requirements of international law outside the country.

Declaratory/Evidentiary 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 criticised. This theory has been criticised on the
ground that this theory alone cannot be applicable for recognition of a state. When a state having
essential characteristics comes into existence as a state, it can exercise international rights and
obligations and here comes the application of declaratory theory, but when other states acknowledge
its existence and the state gets the legal rights of recognition, the consecutive theory comes into play.,

Modes of recognition; De facto and de jure recognition

In addition to the fact that there are different entities to be recognised, recognition itself may take
different forms. It may be either de facto or de jure. A more correct way of putting this might be to
say that a government (or other entity or situation) may be recognised de facto or de jure.
Recognition de facto implies that there is some doubt as to the long-term viability of the government
in question. Recognition de jure usually follows where the recognising state accepts that the effective
control displayed by the government is permanent and firmly rooted and that there are no legal
reasons detracting from this, such as constitutional subservience to a foreign power. De facto
recognition involves a hesitant assessment of the situation, an attitude of wait and see, to be
succeeded by de jure recognition when the doubts are sufficiently overcome to extend formal
acceptance. To take one instance, the United Kingdom recognised the Soviet government de facto in
1921 and de jure in 1924. A slightly different approach is adopted in cases of civil war where the
distinction between de jure and de facto recognition is sometimes used to illustrate the variance
between legal and factual sovereignty. For example, during the 1936–39 Spanish Civil War, the
United Kingdom, while recognising the Republican government as the de jure government, extended
de facto recognition to the forces under General Franco as they gradually took over the country.
Similarly, the government of the Italian conquering forces in Ethiopia was recognised de facto by
the UK in 1936, and de jure two years later.
By this method a recognising state could act in accordance with political reality and its own interests
while reserving judgment on the permanence of the change in government or its desirability or
legality. It is able to safeguard the affairs of its citizens and institutions by this, because certain legal
consequences will flow in municipal law from the recognition. There are in reality few meaningful
distinctions between a de facto and a de jure recognition, although only a government recognised de
jure may enter a claim to property located in the recognising state. Additionally, it is generally
accepted that de facto recognition does not of itself include the exchange of diplomatic relations.
Withdrawal of De Jure recognition
Withdrawal of de jure recognition is a very debatable issue under the International Law. Withdrawal
of a de jure recognition is a very exceptional event. If strictly interpreted, the de jure recognition can
be withdrawn.
Even though the process of recognition is a political act, de jure recognition is of legal nature. Jurists
who consider de jure recognition as a political act considers it revocable. Such revocation of de jure
recognised states can be withdrawn only when a state loses the essential characteristics of statehood
or any other exceptional circumstances. This type of revocation can be done expressly by the
recognising state by issuing a public statement.

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.
 The de facto recognition of the Carranza Government in Mexico by the United States in
1915, followed by de jure recognition in 1917.
 In a few instances recognition has been accorded by a collective treaty, as when by the
Treaty of Berlin of 1878. Great Britain, Germany, Austria, France, Italy, Russia and Turkey
joined in the recognition of Montenegro, Servia, and Roumania as independent states.
 Another is thru the accrediting of a diplomatic representative or consular agent to a new
government, as when in 1826 the independence of Peru was recognized by the appointment
of a charge d'affaires by the government of the United States.
 Russian Soviet v. Cibrario (1923), a suit was brought by the Soviet government in the
New York courts to procure an accounting of Soviet funds deposited in a New York bank
by defendant and alleged to have been subjected subsequently to his misappropriation, it
was held in line with the old rule as expressed that without having been recognized the
court could not under the principle of comity permit the de facto government to bring suit.
Distinction between de facto and de jure recognition-
S.N. De facto De jure
1. De facto recognition means that in theDe jure recognition means that according to the
opinion of the recognising State,recognising State, the State or Government
provisionally and temporarily and withrecognised formally (i.e. without reservations
all due reservations for the future, theand on any definite basis) fulfils the
State or Government recognised,requirements laid down for effective
fulfils the requirements laid down in ILparticipation.
for effective participation.
2. It is lesser degree of recognition,It is the fullest kind of recognition.
lacking account on a provisional basis
of present realities.
3. It may be made dependent onIt is the final and once given cannot be
conditions with which the new Statewithdrawn. (But there may be few exceptions in
has to comply. If it fails to do so, thenew practice adopted by states).
recognition may be withdrawn.
4. When the new State is formed throughWhen a new state comes into existence
revolt, de jure recognition may bepeacefully and constitutionally, de jure
granted after granting de factorecognition may be granted directly.
recognition.
5. Full diplomatic relations cannot beIn de jure recognition, full diplomatic relations
established with a de facto recognisedmay be established.
State.
6. Full diplomatic immunities are notThe representatives of the de jure recognised
granted to the reprentatives of the deState are granted such immunities.
facto recognised State. However, in
USA such immunities are granted.
7. De facto recognised State cannot makeThe de jure recognised State can claim so. (i.e.
a claim to property situated in thethe Soviet Government could get possession of
territory of recognising State. It lacksproperty in England only when the latter
extra territorial jurisdiction. accorded de jure recognition to the former.)
8. Official visits or dealings in the deThis is not so in de jure recognised State.
facto recognised State may be kept
minimum or avoided generally.
Premature recognition
There is often a difficult and unclear dividing line between the acceptable recognition of a new state,
particularly one that has emerged or is emerging as a result of secession, and intervention in the
domestic affairs of another state by way of premature or precipitate recognition, such as, for example,
the view taken by the Nigerian federal government with respect to the recognition of ‘Biafra’ by five
states. In each case, the state seeking to recognise will need to consider carefully the factual situation
and the degree to which the criteria of statehood (or other relevant criteria with regard to other types
of entity with regard to which recognition is sought) have been fulfilled. It is therefore a process
founded upon a perception of fact. In the case of Croatia, it could be argued that the recognition of
that state by the European Community and its member states (together with Austria and
Switzerland) on 15 January 1992 was premature.19. It could also be argued that the recognition of
Bosnia Herzegovina on 6 April 1992 by the European Community and member states and on 7
April 1992 by the USA was premature20, particularly since the government of that state effectively
controlled less than one-half of its territory, a situation that continued until the Dayton Peace
Agreement of November 1995. On the other hand, it could be argued that in the special circumstances
of Former Yugoslavia, the international community (particularly by means of membership of the UN
which is restricted to states) was prepared to accept a loosening of the traditional criteria of statehood,
so that essentially international recognition compensated for lack of effectivity.
 Croatia and Bosnia and Herzegovina were also recognized as new states by much of the
international community in 1992, though at the time neither was able to exercise any
effective control over significant parts of its territory.
Recognition may also be overdue, in the sense that it occurs long after it is clear as a matter of fact
that the criteria of statehood have been satisfied, but in such cases, different considerations apply
since recognition is not compulsory and remains a political decision by states.
Implied recognition
Recognition itself need not be express, that is in the form of an open, unambiguous and formal
communication, but may be implied in certain circumstances. This is due to the fact that recognition
is founded upon the will and intent of the state that is extending the recognition. Accordingly, there
are conditions in which it might be possible to declare that in acting in a certain manner, one state
has by implication recognised another state or government. Because this facility of indirect or implied
recognition is available, states may make an express declaration to the effect that a particular action
involving another party is by no means to be interpreted as comprehending any recognition. This
attitude was maintained by Arab countries with regard to Israel, and in certain other cases.
The point can best be explained by mentioning the kind of conditions which may give rise to the
possibility of a recognition where no express or formal statement has been made.

19
Croatia at that time, and for several years thereafter, did not effectively control some one-third of its territory. In
addition, the Yugoslav Arbitration Commission had taken the view in Opinion No. 5 on 11 January 1992 that Croatia did
not meet fully the conditions for recognition laid down in the European Community Guidelines of 16 December 1991,
since the Constitutional Act adopted by Croatia did not fully incorporate the required guarantees relating to human rights
and minority rights
20
Recognition by US to Israel was also called premature.
  A message of congratulations to a new state upon attaining sovereignty will imply
recognition of that state, as will the formal establishment of diplomatic relations, but the
maintenance of informal and unofficial contacts (such as those between the United States
and Communist China during the 1960s and early 1970s in Warsaw) will not.
 The issuing of a consular exequatur, the accepted authorisation permitting the performance
of consular functions, to a representative of an unrecognised state will usually amount to a
recognition of that state, though not in all cases. A British Consul has operated in Taiwan,
but the UK does not recognise the Taiwan government.
 It is possible that the conclusion of a bilateral treaty between the recognising and
unrecognised state, as distinct from a temporary agreement, might imply recognition, but
the matter is open to doubt since there are a number of such agreements between parties
not recognising each other.
Note: One would have to study the circumstances of the particular case to clarify the issue. The
making of claims by a state against an entity will not necessarily imply recognition. Recognition is
not normally to be inferred from the fact that both states have taken part in negotiations and signed a
multilateral treaty, for example the United Nations Charter. Practice shows that many of the member
states or their governments are not recognised by other member states. Although Israel and many
Arab countries are UN members, this did not affect Arab non-recognition of the Israeli state.
However, where the state concerned has voted in favour of membership in the UN of the entity in
question, it is a natural inference that recognition has occurred.
The UK, for example, regarded its vote in favour of UN membership for the former Yugoslav
Republic of Macedonia as amounting to recognition of that entity as a state. Indeed, irrespective of
recognition by individual states, there is no doubt that membership of the UN is powerful evidence
of statehood since being a state is a necessary precondition to UN membership by virtue of article 4
of the UN Charter. In the case of common participation in an international conference, similar
considerations apply, although the element of doubt has often stimulated non-recognising states to
declare expressly that their presence and joint signature on any agreement issuing forth from the
meeting is in no way to be understood as implying recognition. Such has been the case particularly
with the Arab states over the years with regard to Israel.
State practice has restricted the possible scope of operation of this concept of implied recognition to
a few instances only and all the relevant surrounding circumstances will have to be carefully
evaluated before one can deduce from conduct the intention to extend recognition. States like to
retain their control of such an important political instrument as recognition and are usually not keen
to allow this to be inferred from the way they behave. They prefer recognition to be, in general, a
formal act accorded after due thought.
Conditional recognition
The political nature of recognition has been especially marked with reference to what has been termed
conditional recognition. This refers to the practice of making the recognition subject to fulfilment of
certain conditions, for example, the good treatment of religious minorities as occurred with regard to
the independence of some Balkan countries in the late nineteenth century, or the granting of most-
favoured-nation status to the recognised state. One well-known instance of this approach was the
Litvinov Agreement of 1933 whereby the United States recognised the Soviet government upon the
latter undertaking to avoid acts prejudicial to the internal security of the USA, and to come to a
settlement of various financial claims.
However, breach of the particular condition does not invalidate the recognition. It may give rise to a
breach of international law and political repercussions but the law appears not to accept the notion
of a conditional recognition as such. The status of any conditions will depend upon agreements
specifically made by the particular parties. It is, however, important to distinguish conditional
recognition in this sense from the evolution of criteria for recognition generally, although the two
categories may in practice overlap.
Collective recognition
The expediency of collective recognition has often been noted. This would amount to recognition by
means of an international decision, whether by an international organisation or not. It would, of
course, signify the importance of the international community in its collective assertion of control
over membership and because of this it has not been warmly welcomed, nor can one foresee its
general application for some time to come. The idea has been discussed particularly since the
foundation of the League of Nations and was re-emphasised with the establishment of the United
Nations. However, it rapidly became clear that member states reserved the right to extend recognition
to their own executive authorities and did not wish to delegate it to any international institution. The
most that could be said is that membership of the United Nations constitutes powerful evidence of
statehood. But that, of course, is not binding upon other member states who are free to refuse to
recognise any other member state or government of the UN.

Withdrawal of recognition
Recognition once given may in certain circumstances be withdrawn. This is more easily achieved
with respect to de facto recognition, as that is by its nature a cautious and temporary assessment of a
particular situation. Where a de facto government loses the effective control it once exercised, the
reason for recognition disappears and it may be revoked. It is in general a preliminary acceptance of
political realities and may be withdrawn in accordance with a change in political factors. De jure
recognition, on the other hand, is intended to be more of a definitive step and is more difficult to
withdraw.
Of course, where a government recognised de jure has been overthrown a new situation arises and
the question of a new government will have to be faced, but in such instances withdrawal of
recognition of the previous administration is assumed and does not have to be expressly stated,
providing always that the former government is not still in existence and carrying on the fight in
some way. Withdrawal of recognition of one government without recognising a successor is a
possibility and indeed was the approach adopted by the UK and France, for example, with regard
to Cambodia in 1979. However, with the adoption of the new British policy on recognition with
regard to governments, the position is now that the UK government will neither recognise nor
withdraw recognition of regimes.
Withdrawal of recognition in other circumstances is not a very general occurrence but in exceptional
conditions it remains a possibility.
 The United Kingdom recognised the Italian conquest of Ethiopia de facto in 1936 and de
jure two years later. However, it withdrew recognition in 1940, with the intensification of
fighting and the dispatch of military aid. Recognition of belligerency will naturally
terminate with the defeat of either party, while the loss of one of the required criteria of
statehood would affect recognition.
 It is to be noted that the 1979 recognition of the People’s Republic of China as the sole
legal government of China entailed the withdrawal of recognition or ‘de-recognition’ of
the Republic of China (Taiwan). This was explained to mean that, ‘so far as the formal
foreign relations of the United States are concerned, a government does not exist in Taiwan
any longer’.
Nevertheless, this was not to affect the application of the laws of the United States with respect to
Taiwan in the context of US domestic law. To some extent in this instance the usual consequences
of non-recognition have not flowed, but this has taken place upon the background of a formal and
deliberate act of policy. It does show how complex the topic of recognition has become. The usual
method of expressing disapproval with the actions of a particular government is to break
diplomatic relations. This will adequately demonstrate aversion as did, for example,
 The rupture in diplomatic relations between the UK and the USSR in 1927, and between
some Arab countries and the United States in 1967, without entailing the legal
consequences and problems that a withdrawal of recognition would initiate.
But one must not confuse the ending of diplomatic relations with a withdrawal of recognition Since
recognition is ultimately a political issue, no matter how circumscribed or conditioned by the law, it
logically follows that, should a state perceive any particular situation as justifying a withdrawal of
recognition, it will take such action as it regards as according with its political interests.

The legal effects of recognition

In this section some of the legal results that flow from the recognition or non-recognition of an entity,
both in the international sphere and within the municipal law of particular states, will be noted.
Although recognition may legitimately be regarded as a political tool, it is one that nevertheless
entails important consequences in the legal field.
Internationally
In the majority of cases, it can be accepted that recognition of a state or government is a legal
acknowledgement of a factual state of affairs. Nevertheless, it should not be assumed that non-
recognition of, for example, a state will deprive that entity of rights and duties before international
law, excepting, of course, those situations where it may be possible to say that recognition is
constitutive of the legal entity.
In general, the political existence of a state is independent of recognition by other states, and thus an
unrecognised state must be deemed subject to the rules of international law. It cannot consider itself
free from restraints as to aggressive behaviour, nor can its territory be regarded as terra nullius21.
States which have signed international agreements are entitled to assume that states which they have
not recognised but which have similarly signed the agreement are bound by that agreement. For
example,
 The United Kingdom treated the German Democratic Republic as bound by its signature
of the 1963 Nuclear Test Ban Treaty even when the state was not recognised by the UK.
Non-recognition, with its consequent absence of diplomatic relations, may affect the unrecognised
state in asserting its rights or other states in asserting its duties under international law, but will not
affect the existence of such rights and duties. The position is, however, different under municipal
law.
Internally
The courts cannot recognise a state or government. They can only accept and enforce the legal
consequences which flow from the executive’s political decision, although this situation has become
more complex with the change in policy from express recognition of governments to acceptance of
dealings with such entities.
To this extent, recognition is constitutive, because the act of recognition itself creates legal results
within the domestic jurisdiction. In the United Kingdom and the United States particularly, the courts
feel themselves obliged to accept the verdict of the executive branch of government as to whether a
particular entity should be regarded as recognised or not. If the administration has recognised a state
or government and so informs the representatives will be able to claim the various immunities
accorded to the official envoys of a recognised state. In addition, it will be entitled to possession in
the recognising state of property belonging to its predecessor. Judiciary by means of a certificate, the
position of that state or government within the municipal structure is totally transformed. It may sue
in the domestic courts and be granted immunity from suit in certain instances. Its own legislative and
executive acts will be given effect to in the courts of the recognising state and its own diplomatic.
Legal effects of recognition in nutshell-
 Recognised State becomes entitled to sue in the courts of the recognising State.
 Recognised State is entitle to sovereign immunity for itself as well as its property in the
courts of recognising State.
 Recognised State is entitle to the succession and possession of property situated in the
territory of the recognising State.
 Recognised State may enter into diplomatic and treaty relationships with the recognising
State.
 Recognising State gives effect to past legislative and executive acts of recognised State
(retrospective recognition).
Israel-Palestine Dispute

21
a Latin expression meaning "nobody's land"
In this dispute, India did not in fact had full political relations with Israel till 1992 and also South
Africa till 1991 due to racism. Even though India got military support from Israel, still it didn’t
recognise Israel. However, both the countries had all the parameters under Montevideo Convention.
But Palestine got limited recognition by countries because they had large number of Zewish
population.
China-Taiwan Dispute
In this dispute, 15 countries recognised Taiwan as a state all over the world. Taiwan was officially
known as the Republic of China and is recognised by 19 member states of the UN. Other countries
have business relations with Taiwan but they don’t recognise it as a state. Taiwan unofficially
maintains diplomatic relations with 57 other members of the UN.
Important cases on recognition
Luther v Sagor22 (UK) 1921
Principle
 Once a government is recognized, its acts will be granted as valid (by De-Facto
recognition), even those prior to its recognition, known as the retrospective effect.
 Act of state doctrine.
Fact
Luther was a British Citizen who used to run a Timber industry in Soviet Russia. On 1917 the Russian
Government nationalized his factory and thereafter Mr Luther left Russia and went to the UK. In
1920, Mr. Sagor came to an agreement with Russian Nationalized business company to buy some
timber, the company sent timbers accordingly but when timers reached in UK Mr. Luther claimed
that those timbers were his timbers, he pointed that as UK never recognized the government of
Russia, as well as Russia, wrongfully took over his factory, therefore, the civilized court of UK
cannot validate the rule of Russian law.
The lower court held the judgment in Luther’s favour but on appeal to the Kings Bench Division it
held that they cannot interfere in an internal matter of another state, because in the meantime Russia
was given the De Facto Recognition, the court also declare the retrospective effective on that
recognition form 1917.
Issues
 Whether Russia was recognized by Britain or not?
 Whether the nationalization was legal or valid?
Decision
In this case, the lower court of Britain found the judgment in favour of Luther by considering his
argument, being aggrieved on such judgment Sagor appeal to the Higher Court of Britain. After
appeal, it was found that Britain provided De-Facto Recognition to in 1921 as a result the Kings
Bench Division, Court of Appeal held the judgment in favour of Sagor.
It was held that the British Government recognized the Government of Russia and the retrospective
effect will be applicable for that recognition. So the Nationalization by Russia was legal and valid.

22
A. M. Luther v. James Sagor & Co.,
Reasoning
To determine the issues the Kings Bench Division considered the following matters
 That the British Government provided de-facto recognition of the present government of
Russia.
 That the recognition of Russia had retrospective effect, therefore, the time in question is
not a concern.
 That, in the matter of effective relationships and in the question of law De-facto or De-jury
recognition does not create any real difference.
It also takes the “Act of state doctrine” into consideration, this doctrine articulates that a state cannot
take any step to question the legality of another states internal matter for being a sovereign country.
Kings Bench Division it held that they cannot interfere in an internal matter of another state, because
in the meantime Russia was given the de Facto Recognition, the court also declare the retrospective
effective on that recognition form 1917. So the Nationalization by Russia was legal and valid.
The Arantzazu Mendi Case (UK) 1939
Principle: When there is effective control over the territory of a government of de facto (recognition)
a foreign court cannot apply its jurisdiction over its matter.
Fact:
Arantzazu Mendi was a Spanish ship which was registered under the Bilbao area of Spain. In 1936
there was a civil war in Spain between two-parties the Republics and the Nationalists. Nationalists
were under the command of General Franco. The UK recognized de jure the Republican government
of Spain, on the other hand, they also recognized de facto the rebel government (the Nationalists).
Slowly General Franco overtook many areas including Bilbao and at that time the Republics
nationalized all the (Registered) ships of that area. At that time the ship Arantzazu Mendi was
anchored at a port of UK. The De Facto Nationalist government of Spain who was recognized by UK
appeal to the UK that as The United Kingdom gave them the legal recognition the Arantzazu Mendi
ship legally belongs to the Nationalist government and therefor UK should cease the ship and
handover to the Nationalist government.
Issue:
Whether the republican government shall have the right to possess the ship?
Decision:
It was held: A de facto government has control over state assets within the territory it controls. A de
jure government has control even overstate assets abroad.
Reasoning:
It was held by the House of Lords that since the Nationalist was a de-facto recognized sovereign
ineffective contract over a large portion of Spain, it was immune from the jurisdiction of the local
courts of other sovereigns.
Haile Selassie v Cable and Wireless (UK) 1938
Principle
De jure recognition has a retrospective effect. When a county grant recognition of a foreign
government it does it with retrospective effect, therefore, any legal issue of the past shall be
considered as if during that the presently recognized government was in power.
Fact
Cable & Wireless Company Limited was a British company who took a loan from the treasury of
Ethiopia at that time Haily Selassie was the emperor of Ethiopia. As a result of this loan contract
between the defendant company and the Director-General of Posts, Telegraphs and Telephones of
Ethiopia, a sum of money become due from the Cable & Wireless Co. Ltd. to the public revenues of
Ethiopia.
In 1936, Italy attacked Ethiopia and established its command over the Ethiopian territory.
Meanwhile, Haily Selassie sued against Cable & Wireless Co. Ltd. It must be noted that at that time
the de jure recognition of the United Kingdom was on behalf of Haily Selassie.
On this issue the Cable & Wireless Co. Ltd. claimed that Italy the de facto government of Ethiopia,
therefore, Haily Selassie does not have the right to claim that money, only Italy can claim that money.
Issue:
 Which recognized govt. would get preference?
 Who was entitled to sue on behalf of Ethiopia in the British court?
Decision:
On this dispute, the court of first instance decided that although Ethiopia was overrun by Italy, the
emperor of Ethiopia Haile Selassie as the recognized de jure sovereign, still possessed the right to
sue for the money although Italy was recognized as de facto power.
After such judgment, the defendants appealed and while the appeal was pending, Great Britain
granted de jure recognition to the occupying force of Italy as emperor of Ethiopia.
The court of appeal allowed the appeal and dismissed the claim holding that Haile Selassie is no
longer the de jure government or de jure sovereign of Ethiopia and therefore, his claim had to be
dismissed.
Reasoning:
It was found that after the appeal the UK government provided de jure recognition to Italy as the
government of Ethiopia for political reason and thus Italy became the recognized government of
Ethiopia. Generally, this recognition of government comes with the retrospective effect and therefore
the right of succession dated back to the date of the de facto recognition of the king of Hailey as
sovereign of Ethiopia to the second half of the due 1936.
Since de facto recognition took place before the issue of the writ court (on January 4, 1938) the
plaintiff’s claim fails and had to be dismissed
Doctrines relating to recognition
Estrada Doctrine: Doctrine of effectiveness
History
On September 12, 1931, Mexico was admitted to the League of Nations 23. This was a significant
event as it had not been invited since the creation of the inter-governmental organization once the
First World War ended, which can be mainly attributed to some unsolved problems between Mexico
and the United States. In the heart of the forum, Mexico established its position in favor of the
international law and the principles of non-intervention and self-determination. The Mexican
government always supported the peaceful resolution of disputes, and rejected the use of force in
international relations. All of this gave the country a major international prestige. As for its southern
neighbors in Latin Americaand the Caribbean, Mexico returned to the International Conference of
American States, where it had been previously excluded due to lack of recognition from the U.S. The
country gained an outstanding prestige in the conferences that took place in Havana (1928) and
Montevideo (1933), whose posture was in favor of the Latin American union and international
law.[3] During this period, Mexico had the opportunity to spread its position towards the international
practice of recognition. Which is known as the Estrada Doctrine, the then-Secretary of Foreign
Affairs, Genaro Estrada, pointed out on September 27, 1930 that:
The government of Mexico restricts itself to keep or retire, when considered appropriate,
its diplomatic agents and to continue accepting, when considered appropriate as well,
similar diplomatic agents whose respective nations have accredited in Mexico, without
qualifying, neither hastily nor a posteriori, the right that nations have to accept, keep or
replace their governments or authorities.
The Estrada Doctrine suggests that under the establishment of de facto governments in other
countries, Mexico is not in favor of giving recognition because it is considered a degrading practice.
By hurting the sovereignty of other states, it puts them in a vulnerable position because their internal
affairs can be judged by other governments that in fact assume a critical attitude when deciding about
the legality and legitimacy of foreign governments. Hence Mexico was itself hurt because of the

23
On September 12, 1931, Mexico was admitted to the League of Nations. That was a significant
event as it had not been invited since the creation of the intergovernmental organization once the
First World War ended, which can be attributed mainly to some unsolved problems between Mexico
and the United States. In the heart of the forum, Mexico established its position in favour of the
international law and the principles of non-intervention and self-determination. The Mexican
government always supported the peaceful resolution of disputes and rejected the use of force in
international relations. All of that gave the country a major international prestige. As for its southern
neighbours in Latin America and the Caribbean, Mexico returned to the International Conference of
American States, where it had been previously excluded because the government had not been
recognized by the US. The country gained an outstanding prestige in the conferences that took place
in Havana (1928) and Montevideo (1933), which postured for Latin American union and
international law.
practice, as it was difficult to obtain recognition of its independence. The most extended use of the
Estrada Doctrine was in the 1970s, when Mexico did not withdraw its recognition of any South
American government which was formed through a coup d'état, the only measure Mexico could use
against such governments was withdrawing its diplomatic mission. In other words, the Estrada
Doctrine claims that Mexico should not judge, positively or negatively, the governments or changes
in government of other nations, in that such action would imply a breach to their sovereignty. In
addition, this doctrine is based on the universally recognized principles of self-determination and
non-intervention, which are considered essential for mutual respect and cooperation amongst nations.
Example:
Ukraine's there was one strong political factor militating against early recognition. President
Gorbachev was working towards a Union Treaty which would preserve a Soviet centre and countries
were loathe to undercut the stability that such a move seemed to represent, particularly in terms of
continuing Soviet acceptance of its obligations under the various disarmament [Link], home
to a large community tracing its origins to Ukraine, decided not to wait for Gorbachev's Union Treaty.
On 2 December 1991, Prime Minister Mulroney announced that Canada had decided to recognize
Ukraine as an independent state. The Canadian statement referred to the overwhelming support for
independence in the referendum and undertook to enter into negotiations on diplomatic relations
noting that `as part of these negotiations, Canada will wish to be satisfied with respect to Ukraine's
stated intentions that it will ensure that nuclear weapons remain under secure control until they are
disposed of, comply with existing arms control, disarmament and other international agreements, and
adhere to the principles of the Helsinki Final Act, the Charter of Paris and other CSCE documents,
with particular attention to full respect for human rights and protection of minorities.
Meanwhile, Mexico had the opportunity to spread its position towards the international practice of
recognition, known as the Estrada Doctrine. Secretary of Foreign Affairs, Genaro Estrada,
pointed out on September 27, 1930:
The most extended use of the Estrada Doctrine was in the 1970s, when Mexico did not withdraw its
recognition of any South American government that was formed through a coup d'état 24. The only
measure Mexico could use against such governments was withdrawing its diplomatic mission.
In other words, the Estrada Doctrine states that Mexico should not make positive or negative
judgements about the governments, or changes in government, of other nations, because such an
action would imply a breach to their sovereignty. In addition, the doctrine is based on the
universally-recognized principles of self-determination and non-intervention, which are
considered essential for mutual respect and cooperation amongst nations.

24
In English (also known as an overthrow), is a seizure and removal of a government and its powers. Typically, it is an
illegal seizure of power by a political faction, rebel group, military, or a dictator.
Tobar Doctrine
(No Recognition for Unconstitutional Governments); Precludes recognition of any government
established by revolutionary means until constitutional reorganization by free election of
representatives.
1907 - Named after Carlos Tobar, Foreign Relations Minister of Ecuador, the doctrine states that;
recognition of government should only be granted if its administration came to power by legitimate
democratic means. It was primarily adopted by Central American States in 1907. Later recognition
of the US to this doctrine turned it to be known as Wilsonian Policy. At the suggestion of Foreign
Minister Tobar of Ecuador and reiterated in 1931 by President Woodrow Wilson of the United States.
It states that the recognition of states shall not be extended to any government established by
recognition, civil war, coup d’etat or other forms of internal violence until the freely elected
representatives of the people have organized a constitutional government.
The US applied it in Tinoco government of Costa Rica. The doctrine never worked outside Americas.
Example- The Baltic States
Latvia, Lithuania and Estonia were recognized as independent states in the early 1920's. The United
States, announced its de jure recognition on 28 July 1922 after noting `the successful maintenance
within their borders of political and economic stability' by the governments of the three Baltic states.
2. Croatia and Slovenia Unrecognized On 25 June 1991, both Croatia and Slovenia declared their
independence. The Constitutional Resolution Regarding the Sovereignty and Independence of the
Republic of Croatia adopted by the Croatian Parliament based its actions `upon the will of the nation
demonstrated at the referendum of 19 May 1991,' and argued that `the SFRY no longer is acting as
the constitutional-legal organized state.' Article I of the Resolution proclaims Croatia as a sovereign
and independent state. Interestingly, however, Article II states that Croatia thus `begins the process
of disassociation from the other republics of the SFRY' and `begins the process of gaining
international recognition.'

Stimson Doctrine
“BACKGROUND” The policy of expansionism in China pursued by the autonomous Kwantung
Army of Japan accelerated in the late 1920s and early 1930s and became a major concern of the U.S.
government. On September 18, 1931, Japanese soldiers guarding the South Manchurian Railway
blew up part of the track in order to manufacture an excuse to seize Manchuria proper. Secretary of
State Henry L. Stimson reacted to what he regarded as a violation of international law as well as
treaties that the Japanese Government had signed. Since calls for a cessation of hostilities between
China and Japan failed and President Herbert Hoover had rejected economic sanctions in principle,
Stimson declared in January 1932 that the U.S. Government would not recognize any territorial or
administrative changes the Japanese might impose upon China. The Stimson Doctrine was echoed in
March 1932 by the Assembly of the League of Nations, which unanimously adopted an anti-Japanese
resolution incorporating virtually verbatim the Stimson Doctrine of non-recognition. However, as
the Secretary of State later realized, he had at his disposal only "spears of straws and swords of ice."
In short order, Japanese representatives simply walked out of the League, and the Kwangtung Army
formalized its conquest of Manchuria by establishing the puppet state of Manchukuo under former
Chinese emperor Pu-Yi. When war between Japan and China broke out following a minor clash
between military units at the Marco Polo Bridge in 1937, the impotence of the "Stimson Doctrine"
became even more apparent.
During the 1930s, U.S. Secretary of State Henry Stimson propounded the doctrine of the non-
recognition of situations created as a result of aggression, this doctrine pledged, not to recognize
international territorial changes brought about by the aggression. The doctrine was application of a
principle, 'ex injuria jus non oritur' means illegal act cannot create law. Later, in 1970, UN General
Assembly declared that, 'no territorial acquisition resulting from the threat or use of force shall be
recognized as legal.'
This approach has been reinforced since the end of World War II. In the 1960s, the UN Security
Council “called upon” all states not to recognize out of such situation.
 The theory also had one positive application in 1990 when UNSC adopted a resolution for
not recognizing the Iraqi annexation25 of Kuwait.
 The Rhodesian26 white-minority regime’s declaration of independence and imposed
economic sanctions27.
 Similar international action was taken in the 1970s and 80s in response to South Africa’s
creation of Bantustans, or homelands, which were territories that the white-minority
government designated as “independent states” as part of its policy of apartheid28.
 The Security Council also pronounced the purported independence of Turkish-occupied
Northern Cyprus29 as “legally invalid” (1983).
 The UN also has declared that Israel’s purported annexation of the Golan Heights
(conquered from Syria in 1967) is invalid.
 Similarly with regard to Israel’s extension of its jurisdiction to formerly Jordanian-
controlled East Jerusalem.
There are some examples otherwise also. For instance,
 UK, though late but gave de jure recognition to the Italian conquest of Ethiopian land in
1936.
 The Soviet conquest of Baltic Republics (Estonia, Latvia, and Lithuania) in 1940.
 Recent example is Afghanistan, a recognised government came into power by illegal
means. (2021)
Thus the doctrine could prevent recognition but mere delayed.

25
Possession taken of a piece of land or a country, usually by force or without permission.
26
Rhodesia officially from 1970 the Republic of Rhodesia was an unrecognised state in Southern Africa from 1965 to
1979, equivalent in territory to modern Zimbabwe. Rhodesia was the de facto successor state to the British colony of
Southern Rhodesia, which had been self-governing since achieving responsible government in 1923. From 1965 to 1979,
Rhodesia was one of two independent states on the African continent governed by a white minority of European descent
and culture, the other being South Africa.
27
First time that the UN had taken that action against a state.
28
(In South Africa) a policy or system of segregation or discrimination on grounds of race.
29
Turkish Republic of Northern Cyprus
Betancourt Doctrine
The Venezuelan president's antipathy for nondemocratic rule was reflected in the so-called
Betancourt Doctrine, which denied Venezuelan diplomatic recognition to any regime, right or left
that came to power by military force. Betancourt always defended, and represented, democratic
values and principles in Latin America. This put him at odds with the military strongmen who came
to dominate and define political perception of the region. During his first message to Congress as
President of Venezuela, on 12 February 1959, Betancourt said: "...Regimes disrespectful of human
rights, violating their citizens´ freedom, tyrannizing them with the backing of totalitarian political
police, should be submitted to a rigorous sanitary cordon and eradicated, through collective
pacification, from the Inter-American juridical community" It was during the tense Cuban Missile
Crisis, between the United States and Cuba, the relationship between President Kennedy and
President Betancourt became closer than ever. Establishing a direct phone link between the White
House and Miraflores (Presidential Palace) since the Venezuelan president had ample experience on
dealing, defeating and surviving, actions of Caribbean-based pro-soviet regimes against pro-US
regimes. These conversations between both presidents were translated by Betancourt's only child,
Virginia Betancourt Valverde, who served as interpreter and confidant to her father. Later president
Rafael Caldera rejected the doctrine, which he thought had served to isolate Venezuela in the world.
A thesis that continues to be debated among academics and intellectuals who see in Betancourt not
an isolationist but a courageous defender of democratic principles in the midst of adversity and
ferrous enemies.

Lauterpacht Doctrine
Lauterpacht claims that constitutive theory is correct in all but two respects. First, states must
recognise as a matter of legal duty rather than recognition being a discretionary power. Second, states
have a duty to recognise according to the criteria established by the declaratory theory like an
effective government, stable borders and permanent population. 37 This duty to recognise provides,
at least functionally, a neat solution to the perennial problems with the constitutive and declaratory
theories just set out. This is because the conditions of statehood are borrowed from declaratory
theory, but the institutional mechanism by which the existence of these conditions is determined is
state recognition. For the duty to recognise, Lauterpacht regards state recognition as performing an
administrative function within the international legal order qua interstate system which parallels the
law of treaties or the law of state responsibility. 38 Despite its functional plausibility, international
lawyers have been sceptical about Lauterpacht’s claims. 39 This scepticism is expressed most
forcefully by another of Kelsen’s students from the University of Vienna, Josef L. Kunz. 40 His view
will be set out, before considering in brief whether Kunz’s criticism is entirely plausible on the basis
of Kunz’s own inductive empirical method. Attention will then be focused on why Kunz’s criticism
is ill-founded given Lauterpacht’s interpretivist method.
Elements
1. The first element is the substance of the duty to recognise. If it exists, it must be a duty for
states to act on the customary rule which requires them to recognise a state to the extent
that it is effective. Existing states, qua organs of the international legal order, are tasked
 with making the judgment of whether a putative state is effective or otherwise. Although
some reconstructive work is necessary here, it can be suggested that a wrongful act arises
in three cases.
a. First, a violation of the duty emerges when a state refuses to recognise what is
correctly judged to be an effective state. Lauterpacht traces the diplomatic
correspondence of the United States regarding the independence of various South
American states at the beginning of the nineteenth century as an illustration of
practice which regards this conduct as illegal. On the basis of this practice, for
European states to not recognise these new effective states is a violation of their
rights. On Lauterpacht’s account, refusal to recognise Kosovo would be an
omission which constituted a wrongful act if Kosovo should be correctly judged as
an effective state. These examples are plausible, even if it is unclear exactly how
the wrongful act would be characterised in each case.
b. Second, a violation of the duty emerges when a state recognises what is correctly
judged to be an ineffective putative state. Lauterpacht points to practice in which
the premature recognition of secessionist movements is considered to be a violation
of international law. If Kosovo is correctly judged to be not a state because it is
ineffective, there is a duty on states to not recognise it as such: to do so would be
to violate Serbia’s rights. Once again, these examples are plausible, even if it is
unclear how the wrongful act in each case should be characterised.
c. Third, a state could commit a wrongful act by recognising on the basis of another
rule. In Recognition , Lauterpacht discusses the United States practice from 1819
which made it a condition of recognition of South American states that ‘no special
privileges of indefinite duration … be granted to Spain’. His position was that this
would be an ‘abuse’ of the function of recognition in the international legal order.
A more recent example of a violation of this rule could be the recognition by
European states of Croatia and Bosnia-Herzegovina in 1992. It could be said that
the recognition of these states was based upon the commitment or otherwise of the
political bodies which claimed governmental authority in these putative states to
various normative principles, rather than being based on a judgment of
effectiveness. There will be significant differences of opinion as to whether there
has been a violation of international law in all the examples just given. However, it
is suggested all would be illegal on Lauterpacht’s account if the three types of
wrongful act just described are indeed subsumed by his duty to recognise.
2. The second element of the duty to recognise concerns its scope. There were two options
open to Lauterpacht. First, the duty to recognise could be a bilateral relationship between
the potential right-holder (the putative state) and the duty bearer (the recognising state).
Alternatively, the obligation could be erga omnes and owed to all states. Lauterpacht’s
view is that it is a duty each state ‘owed to the society at large’ and is therefore erga omnes.
There is some equivocation as to whether acts of recognition which violate international
law are erga omnes on Lauterpacht’s own account. One example he uses is the premature
recognition by France of the United States in the late eighteenth century. This triggered
reprisals by the United Kingdom justified on the grounds of a perceived violation of British
 sovereignty. This example suggests that an act of recognition may imply the responsibility
toward those states subjectively harmed by the act. This suggests the bilateral character of
the wrongful act. Returning to the example just given, the United Kingdom appears to take
the position that by recognising one of its colonies which claims independence, but which
is in fact not at that time independent, France has committed a wrong against it. This
conclusion, however, should be held with a degree of caution for two reasons.
i. First, in many systems of law it is often open to legal subjects to hold public
bodies to account for harms they suffer, even though this might also protect
a public good, or help to ensure good governance. Judicial review, for
instance, has exactly this role in most legal orders. Following this line of
argument, the state which has suffered a wrongful act of recognition has the
greatest interest in holding the responsible state to account and should
normally do so. However, this is not inconsistent with the possibility that
such actions defend more general interests protected by the international
legal order, or that third states could have standing when a dispute arises.
ii. Second, the examples of direct violations of the duty to recognise given
above rest upon one factual scenario: there is a state which has suffered a
wrongful act. In other examples of violations of the duty to recognise, the
entity which has suffered is not a state, or not a state as far as the non-
recognising state is concerned. Functionally speaking, the duty to recognise
must be erga omnes to ensure that there is international responsibility in
each case of a violation of the duty, and should not simply be based upon
the status of the entity which has suffered. With normative criteria like the
right of self-determination in mind, this is exactly the rationale for the
development of obligations erga omnes through the jurisprudence of the ICJ
in the Namibia and Western Sahara Advisory Opinions, the East Timor case
and Article 48 of the Articles on State Responsibility. However, there is no
evidence of this reasoning having been applied to situations when the
factual existence of a state was denied.
3. In light of illegal acts of recognition, there are various demands for cessation or for the
restoration of the status quo ante , declarations of legal nullities, attempts to apply
countermeasures, acts of non-recognition, or calls for arbitration. Although examples of
these responses are littered throughout Recognition, they are not dealt with systematically
by Lauterpacht.

Kelsen Doctrine; “PURE THEORY OF LAW”

Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential
among scholars of jurisprudence and public law, especially in Europe and Latin America although
less so in common-law countries. His book titled Pure Theory of Law (German: Reine Rechtslehre)
was published in two editions, one in Europe in 1934, and a second expanded edition after he had
joined the faculty at the University of California at Berkeley in 1960. Kelsen's Pure Theory of Law
is widely acknowledged as his magnum opus. It aims to describe law as a hierarchy of norms which
are also binding norms while at the same time refusing, itself, to evaluate those norms. That is, 'legal
science' is to be separated from 'legal politics'. Central to the Pure Theory of Law is the notion of a
'basic norm (Grundnorm)'—a hypothetical norm, presupposed by the theory, from which in a
hierarchy all 'lower' norms in a legal system, beginning with constitutional law, are understood to
derive their authority or 'bindingness'. In this way, Kelsen contends, the bindingness of legal norms,
their specifically 'legal' character, can be understood without tracing it ultimately to some
suprahuman source such as God, personified Nature or a personified State or Nation. The Pure
Theory of Law is generally considered among the most original contributions made by Hans Kelsen
to legal theory. His book with that title was first published in 1934, and in a greatly expanded second
edition (effectively a magnum opus doubled in length of presentation) in 1960. The second edition
appeared in English translation in 1967, as Pure Theory of Law; the first edition appeared in English
translation in 1992, as Introduction to the Problems of Legal Theory. The theory proposed in this
book has probably been the most influential theory of law produced during the 20th century. It is, at
the least, one of the high points of modernist legal [Link], the original terminology which
was introduced in the first edition was already present in many of Kelsen's writings from the 1920s,
and was also subject to discussion in the critical press of that decade. Although the second edition is
so much longer, the two editions have a great deal of similar content.

Montevideo30 Convention on the Rights and Duties of States, 1933

Done at: Montevideo
Date enacted: 1933-12-26
In force: 1934-12-26
Who, after having exhibited their Full Powers, which were found to be in good and due order, have
agreed upon the following:
Article 1
The state as a person of international law should possess the following qualifications:
a) permanent population;
b) defined territory;
c) government; and
d) capacity to enter into relations with the other states.
Article 2
The federal state shall constitute a sole person in the eyes of international law.
Article 3
The political existence of the state is independent of recognition by the other states. Even before
recognition the state has the right to defend its integrity and independence, to provide for its
conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its
interests, administer its services, and to define the jurisdiction and competence of its courts. The

30
Montevideo is the capital and largest city of Uruguay.
exercise of these rights has no other limitation than the exercise of the rights of other states according
to international law.
Article 4
States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The
rights of each one do not depend upon the power which it possesses to assure its exercise, but upon
the simple fact of its existence as a person under international law.
Article 5
The fundamental rights of states are not susceptible of being affected in any manner whatsoever.
Article 6
The recognition of a state merely signifies that the state which recognizes it accepts the personality
of the other with all the rights and duties determined by international law. Recognition is
unconditional and irrevocable.
Article 7
The recognition of a state may be express or tacit. The latter results from any act which implies
the intention of recognizing the new state.
Article 8
No state has the right to intervene in the internal or external affairs of another.

Article 9
The jurisdiction of states within the limits of national territory applies to all the inhabitants. Nationals
and foreigners are under the same protection of the law and the national authorities and the foreigners
may not claim rights other or more extensive than those of the nationals.
Article 10
The primary interest of states is the conservation of peace. Differences of any nature which arise
between them should be settled by recognized pacific methods.
Article 11
The contracting states definitely establish as the rule of their conduct the precise obligation not to
recognize territorial acquisitions or special advantages which have been obtained by force whether
this consists in the employment of arms, in threatening diplomatic representations, or in any other
effective coercive measure. The territory of a state is inviolable and may not be the object of military
occupation nor of other measures of force imposed by another state directly or indirectly or for any
motive whatever even temporarily.
Article 12
The present Convention shall not affect obligations previously entered into by the High Contracting
Parties by virtue of international agreements.
Article 13
The present Convention shall be ratified by the High Contracting Parties in conformity with their
respective constitutional procedures. The Minister of Foreign Affairs of the Republic of Uruguay
shall transmit authentic certified copies to the governments for the aforementioned purpose of
ratification. The instrument of ratification shall be deposited in the archives of the Pan American
Union in Washington, which shall notify the signatory governments of said deposit. Such notification
shall be considered as an exchange of ratifications.
Article 14
The present Convention will enter into force between the High Contracting Parties in the order in
which they deposit their respective ratifications.
Article 15
The present Convention shall remain in force indefinitely but may be denounced by means of one
year's notice given to the Pan American Union, which shall transmit it to the other signatory
governments. After the expiration of this period the Convention shall cease in its effects as regards
the party which denounces but shall remain in effect for the remaining High Contracting Parties.
Article 16
The present Convention shall be open for the adherence and accession of the States which are not
signatories. The corresponding instruments shall be deposited in the archives of the Pan American
Union which shall communicate them to the other High Contracting Parties.

In witness whereof, the following Plenipotentiaries have signed this Convention in Spanish, English,
Portuguese and French and hereunto affix their respective seals in the city of Montevideo, Republic
of Uruguay, this 26th day of December, 1933.
Ratifications as of May 2016
Number of ratifications: 16
Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala,
Haiti, Honduras, Mexico, Nicaragua, Panama, United States of America, Venezuela.
 The concept of territory of state in International Law
International law is based on the concept of the state. The state in its turn lies upon the foundation of
sovereignty, which expresses internally the supremacy of the governmental institutions and
externally the supremacy of the state as a legal person. But sovereignty itself, with its retinue 31 of
legal rights and duties, is founded upon the fact of territory. Without territory a legal person cannot
be a state. It is undoubtedly the basic characteristic of a state and the one most widely accepted and
understood. There are currently some 200 distinct territorial units, each one subject to a different
territorial sovereignty and jurisdiction.
The central role of territory in the scheme of international law may be seen by noting the development
of legal rules protecting its inviolability. The principle of respect for the territorial integrity of states
is well founded as one of the linchpins of the international system, as is the norm prohibiting
interference in the internal affairs of other states. The growth of international organisations is another
relevant factor, as is the development of the ‘common heritage’ concept in the context of the law of
the sea and air law. Nevertheless, one should not exaggerate the effects upon international law
doctrine today of such trends. Territorial sovereignty remains as a key concept in international law.
The treatment of territory in international law has not reached this sophisticated stage for a number
of reasons, in particular the horizontal system of territorial sovereignty that subsists internationally
as distinct from the vertical order of land law that persists in most municipal systems. There is thus
a critical difference in the consequences that result from a change in the legal ownership of land in
international law and in municipal law.
In international law a change in ownership of a particular territory involves also a change in
sovereignty, in the legal authority governing the area. Accordingly international law must deal also
with all the various effects of a change in territorial sovereignty and not confine its attentions to the
mere mechanism of acquisition or loss of territory.
Territorial sovereignty
Judge Huber noted in the Island of Palmas (1928) case that:
Sovereignty in relation to a portion of the surface of the globe is the legal condition
necessary for the inclusion of such portion in the territory of any particular state.
Brierly defined territorial sovereignty in terms of
the existence of rights over territory rather than the independence of the state itself or the
relation of persons to persons.
It was a way of contrasting ‘the fullest rights over territory known to the law’ with certain minor
territorial rights, such as leases and servitudes. Territorial sovereignty has a positive and a negative
aspect. The former relates to the exclusivity of the competence of the state regarding its own territory,
while the latter refers to the obligation to protect the rights of other states.
The essence of territorial sovereignty is contained in the notion of title. This term relates to both the
factual and legal conditions under which territory is deemed to belong to one particular authority or

31
a group of advisers, assistants, or others accompanying an important person
another. As the International Court noted in the Burkina Faso/Mali case32, the word ‘title’
comprehends both any evidence which may establish the existence of a right and the actual source
of that right. One interesting characteristic that should be noted and which again points to the
difference between the treatments of territory under international law and municipal law is that title
to territory in international law is more often than not relative rather than absolute. Thus, a court, in
deciding to which of contending states a parcel of land legally belongs, will consider all the relevant
arguments and will award the land to the state which relatively speaking puts forward the better (or
best) legal case. Title to land in municipal law is much more often the case of deciding in uncertain
or contentious circumstances which party complies with the legal requirements as to ownership and
possession, and in that sense title is absolute. It is not normally a question of examining the facts to
see which claimant can under the law put forward a better claim to title. Further, not all rights or
links will amount to territorial sovereignty.
Disputes as to territory in international law may be divided into different categories. The contention
may be over the status of the country itself, that is, all the territory comprised in a particular state, as
for example Arab claims against Israel at one time and claims formerly pursued by Morocco against
Mauritania. Or the dispute may refer to a certain area on the borders of two or more states, as for
example Somali claims against the north-east of Kenya and south-east of Ethiopia. Similarly, claims
to territory may be based on a number of different grounds, ranging from the traditional method of
occupation or prescription to the newer concepts such as self-determination, with various political
and legal factors, for example, geographical contiguity, historical demands and economic elements,
possibly being relevant.
Apart from territory actually under the sovereignty of a state, international law also recognises
territory over which there is no sovereign. Such territory is known as terra nullius. In addition, there
is a category of territory called res communis33 which is (in contrast to terra nullius) generally not
capable of being reduced to sovereign control. The prime instance of this is the high seas, which
belong to no-one and may be used by all. Another example would be outer space.
New states and title to territory
The problem of how a state actually acquires its own territory in international law is a difficult one
and one that may ultimately only be explained in legal–political terms. While with long-established
states one may dismiss the question on the basis of recognition and acceptance, new states pose a
different problem since, under classical international law, until a new state is created, there is no legal
person in existence competent to hold title. One approach to this problem has been to note that it is
recognition that constitutes the state, and that the territory of the state is, upon recognition, accepted
as the territory of a valid subject of international law irrespective of how it may have been acquired.
While this theory is not universally or widely accepted, it does nevertheless underline how the

32
Frontier Dispute (Burkina Faso/Republic of Mali), 1986 ICJ
33
Res communis is a Latin term derived from Roman law that preceded today's concepts of the commons and common
heritage of mankind. An area of territory that is not subject to legal title of any state. Examples would be the high seas
(see Article 2 of the Geneva Convention on the High Seas and Article 89 of the 1982 Convention on the Law of the Sea)
and outer space (see UN General Assembly Resolutions 1962 (XVII), 1721 (XVI), and 1884 (XVIII). See common
heritage of mankind principle.
emphasis has been upon recognition of a situation and not upon the method of obtaining the rights in
law to the particular territory.
One major factor that is relevant is the crucial importance of the doctrine of domestic jurisdiction.
This constitutes the legal prohibition on interference within the internal mechanisms of an entity and
emphasises the supremacy of a state within its own frontiers. Many of the factual and legal processes
leading up to the emergence of a new state are therefore barred from international legal scrutiny and
this has proved a deterrent to the search for the precise method by which a new entity obtains title to
the territory in question.
In recent years, however, the scope of the domestic jurisdiction rule has been altered. Discussions in
international conferences and institutions, such as the United Nations, have actively concerned
themselves with conditions in non-independent countries and it has been accepted that territorial
sovereignty in the ordinary sense of the words does not really exist over mandate or trust territories.
This is beginning to encourage a re-examination of the procedures of acquiring title. However, the
plea of domestic jurisdiction does at least illustrate the fact that not only international law but also
municipal law is involved in the process of gaining independence.
There are basically two methods by which a new entity may gain its independence as a new state:
 by constitutional means, that is by agreement with the former controlling administration
in an orderly devolution of power- The granting of independence according to the
constitutional provisions of the former power may be achieved either by agreement
between the former power and the accepted authorities of the emerging state, or by a purely
internal piece of legislation by the previous sovereign. In many cases a combination of both
procedures is adopted. For example, the independence of Burma was preceded by a
Burmese–United Kingdom agreement and treaty (June and October, 1947) and by the
Burma Independence Act of 1947 passed by the British legislature, providing for Burmese
independence to take effect on 4 January 1948. In such cases what appears to be involved
is a devolution or transfer of sovereignty from one power to another and the title to the
territory will accordingly pass from the previous sovereign to the new administration in a
conscious act of transference.
 by non-constitutional means, usually by force, against the will of the previous sovereign-
However, a different situation arises where the new entity gains its independence contrary
to the wishes of the previous authority, whether by secession or revolution. It may be that
the dispossessed sovereign may ultimately make an agreement with the new state
recognising its new status, but in the meantime the new state might well be regarded by
other states as a valid state under international law. The principle of self-determination is
also very relevant here. Where a state gains its sovereignty in opposition to the former
power, new facts are created and the entity may well comply with the international
requirements as to statehood, such as population, territory and government.
Other states will then have to make a decision as to whether or not to recognise the new state and
accept the legal consequences of this new status. But at this point a serious problem emerges. For a
unit to be regarded as a state under international law it must conform with the legal conditions as to
settled population, a definable area of land and the capacity to enter into legal relations.
Modes of acquiring territory
Under IL, a state may acquire territory through any of the following modes
1. Occupation
Occupation is a method of acquiring territory which belongs to no one (terra nullius) and which may
be acquired by a state in certain situations. The occupation must be by a state and not by private
individuals, it must be effective and it must be intended as a claim of sovereignty over the area. The
high seas cannot be occupied in this manner for they are res communis, but vacant land may be
subjected to the sovereignty of a claimant state. It relates primarily to uninhabited territories and
islands, but may also apply to certain inhabited lands.
The issue was raised in the Western Sahara case 1975 ICJ (Advisory opinion) before the
International Court of Justice. The question was asked as to whether the territory in question had
been terra nullius at the time of colonisation. It was emphasised by the Court that the concept of terra
nullius was a legal term used in connection with the mode of acquisition of territory known as
‘occupation’.
The latter mode was defined legally as an original means of peaceably acquiring sovereignty over
territory otherwise than by cession or succession. In an important statement, the Court
unambiguously asserted that the state practice of the relevant period (i.e. the period of colonisation)
indicated that territories inhabited by tribes or peoples having a social and political organisation were
not regarded as terrae nullius.
Occupation, both in the normal sense of the word and in its legal meaning, was often preceded by
discovery that is the realisation of the existence of a particular piece of land. But mere realisation or
sighting was never considered (except for periods in the fifteenth and sixteenth centuries and this is
not undisputed) as sufficient to constitute title to territory. Something more was required and this
took the form of a symbolic act of taking possession, whether it be by the raising of flags or by
solemn proclamations or by more sophisticated ritual expressions. As time passed, the conditions
changed and the arbitrator in the Island of Palmas case pointed to the modern effect of discovery as
merely giving an inchoate title which had to be completed within a reasonable time by the effective
occupation of the relevant region. Discovery only put other states on notice that the claimant state
had a prior interest in the territory which, to become legally meaningful, had to be supplemented by
effective occupation within a certain period.
Island of Palmas Arbitration
Facts: Both the United States (P) laid claim to the ownership of the Island of Palmas. While the U.S.
(P) maintained that it was part of the Philippines, the Netherlands (D) claimed it as their own. The
claim of the U.S. (P) was back up with the fact that the islands had been ceded by Spain by the Treaty
of Paris in 1898, and as successor to the rights of Spain over the Philippines, it based its claim of title
in the first place on discovery. On the part of the Netherlands (D), they claimed to have possessed
and exercised rights of sovereignty over the island from 1677 or earlier to the present.
Issue: Can a title which is inchoate prevail over a definite title found on the continuous and peaceful
display of sovereignty?
Held. (Huber, Arb.). No. A title that is inchoate cannot prevail over a definite title found on the
continuous and peaceful display of sovereignty. The peaceful and continuous display of territorial
sovereignty is as good as title. However, discovery alone without subsequent act cannot suffice to
prove sovereignty over the island. The territorial sovereignty of the Netherlands (D) was not
contested by anyone from 1700 to 1906. The title of discovery at best an inchoate title does not
therefore prevail over the Netherlands (D) claims of sovereignty.
Deciding in favour of Netherlands, the Arbitration Court held that for acquiring sovereignty over a
particular territory effective occupation is necessary. Here occupation involves two elements- (a)
Will to exercise sovereignty (b) An exhibition of actual authority.
The Arbitrator observed that if the Island was discovered by Spain, there was nothing on record to
prove that Spaniards never went to the Island, occupied it and established contacts with the
inhabitants of the Island and established some shorts of administration. On the other hand,
Netherlands had only established contacts with the people of Island but also had exercised
sovereignty over it since 1700. Thus according to the court of Arbitration, the Island of Palmas was
a part of Netherlands which it incorporated in its territory through occupation.
Eastern Greenland Case (Norway v. Denmark) PCIJ 1933
On July 10, 1931 Norway declared her sovereignty over the eastern part of Greenland through a
Government decree. On the other hand, Denmark also claimed her sovereignty over the said area
during the Second World War and afterwards several allied powers had declared that the whole
Greenland was part of Denmark. They also made it clear that they would not object sovereignty of
Denmark over Greenland. The foreign minister of Norway had also accepted this fact and made it
clear that Norway would have no objection regarding this issue. The PCIJ has propounded two
principles-
 It is necessary for the occupation over the territory that there should be intention to establish
sovereignty over the territory concerned, and
 There should be some actual exercise of such authority.
Minquires and Ecrehos case (France v. UK) ICJ 1953
The Minquiers and Ecrehos are two groups of islets34 situated between the British island of Jersey
and the coast of France. Under a Special Agreement between France and the United Kingdom, the
Court was asked to determine which of the Parties had produced the more convincing proof of title
to these groups of islets. After the conquest of England by William, Duke of Normandy, in 1066, the
islands had formed part of the Union between England and Normandy which lasted until 1204, when
Philip Augustus of France conquered Normandy but failed to occupy the islands. The United
Kingdom submitted that the islands then remained united with England and that this situation was
placed on a legal basis by subsequent treaties between the two countries. France contended that the
Minquiers and Ecrehos were held by France after 1204, and referred to the same medieval treaties as
those relied on by the United Kingdom. In its Judgment of 17 November 1953, the Court considered
that none of those treaties stated specifically which islands were held by the King of England or by

34
a small island
the King of France. Moreover, what was of decisive importance was not indirect presumptions based
on matters in the Middle Ages, but direct evidence of possession and the actual exercise of
sovereignty. After considering this evidence, the Court arrived at the conclusion that the sovereignty
over the Minquiers and Ecrehos belonged to the United Kingdom.
Arctic and Antarctic region
Some states have asserted claims of sovereignty by occupation over some parts of Arctic and
Antarctic on the basis of contiguity or proximity. As we know that two essential elements are
mandatory to show occupation so as to be followed in case of these regions also. There is an Antarctic
Treaty 1st Dec. 1959 which clears some point on this issue-
The Antarctic Treaty (1959) (Framework for Environmental Protection)
Preamble
Twelve countries represented by the Governments of Argentina, Australia, Belgium, Chile, the
French Republic, Japan, New Zealand, Norway, the Union of South Africa, the Union of Soviet
Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States
of America, signed the Antarctic Treaty on 1 December 1959 in Washington.
Recognizing that it is in the interest of all mankind that Antarctica shall continue for ever to be used
exclusively for peaceful purposes and shall not become the scene or object of international discord;
Acknowledging the substantial contributions to scientific knowledge resulting from international
cooperation in scientific investigation in Antarctica;
Convinced that the establishment of a firm foundation for the continuation and development of such
cooperation on the basis of freedom of scientific investigation in Antarctica as applied during the
International Geophysical Year accords with the interests of science and the progress of all mankind;
Convinced also that a treaty ensuring the use of Antarctica for peaceful purposes only and the
continuance of international harmony in Antarctica will further the purposes and principles embodied
in the Charter of the United Nations;
Have agreed as follows:
Article I — Peaceful purposes
1. Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia,
any measure of a military nature, such as the establishment of military bases and
fortifications, the carrying out of military manoeuvres, as well as the testing of any type of
weapon.
2. The present Treaty shall not prevent the use of military personnel or equipment for
scientific research or for any other peaceful purpose.
Article II — Freedom of scientific investigation
Freedom of scientific investigation in Antarctica and cooperation toward that end, as applied during
the International Geophysical Year, shall continue, subject to the provisions of the present Treaty.
Article III — International scientific cooperation
1. In order to promote international cooperation in scientific investigation in Antarctica, as
provided for in Article II of the present Treaty, the Contracting Parties agree that, to the
greatest extent feasible and practicable:
 i. information regarding plans for scientific programs in Antarctica shall be
exchanged to permit maximum economy of and efficiency of operations;
ii. scientific personnel shall be exchanged in Antarctica between expeditions and
stations;
iii. scientific observations and results from Antarctica shall be exchanged and made
freely available.
2. In implementing this Article, every encouragement shall be given to the establishment of
cooperative working relations with those Specialized Agencies of the United Nations and
other international organizations having a scientific or technical interest in Antarctica.
Article IV — Territorial sovereignty
1. Nothing contained in the present Treaty shall be interpreted as:
i. a renunciation by any Contracting Party of previously asserted rights of or claims
to territorial sovereignty in Antarctica;
ii. a renunciation or diminution by any Contracting Party of any basis of claim to
territorial sovereignty in Antarctica which it may have whether as a result of its
activities or those of its nationals in Antarctica, or otherwise;
iii. prejudicing the position of any Contracting Party as regards its recognition or non-
recognition of any other State‚s rights of or claim or basis of claim to territorial
sovereignty in Antarctica.
2. No acts or activities taking place while the present Treaty is in force shall constitute a basis
for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create
any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim,
to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.
Article V — Nuclear activity
1. Any nuclear explosions in Antarctica and the disposal there of radioactive waste material
shall be prohibited.
2. In the event of the conclusion of international agreements concerning the use of nuclear
energy, including nuclear explosions and the disposal of radioactive waste material, to
which all of the Contracting Parties whose representatives are entitled to participate in the
meetings provided for under Article IX are parties, the rules established under such
agreements shall apply in Antarctica.
Article VI — Geographical coverage
The provisions of the present Treaty shall apply to the area south of 60° South Latitude, including all
ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the
exercise of the rights, of any State under international law with regard to the high seas within that
area.
Article VII — Inspections
1. In order to promote the objectives and ensure the observance of the provisions of the
present Treaty, each Contracting Party whose representatives are entitled to participate in
the meetings referred to in Article IX of the Treaty shall have the right to designate
observers to carry out any inspection provided for by the present Article. Observers shall
 be nationals of the Contracting Parties which designate them. The names of observers shall
be communicated to every other Contracting Party having the right to designate observers,
and like notice shall be given of the termination of their appointment.
2. Each observer designated in accordance with the provisions of paragraph 1 of this Article
shall have complete freedom of access at any time to any or all areas of Antarctica.
3. All areas of Antarctica, including all stations, installations and equipment within those
areas, and all ships and aircraft at points of discharging or embarking cargoes or personnel
in Antarctica, shall be open at all times to inspection by any observers designated in
accordance with paragraph 1 of this Article.
4. Aerial observation may be carried out at any time over any or all areas of Antarctica by
any of the Contracting Parties having the right to designate observers.
5. Each Contracting Party shall, at the time when the present Treaty enters into force for it,
inform the other Contracting Parties, and thereafter shall give them notice in advance, of
i. all expeditions to and within Antarctica, on the part of its ships or nationals, and all
expeditions to Antarctica organized in or proceeding from its territory;
ii. all stations in Antarctica occupied by its nationals; and
iii. any military personnel or equipment intended to be introduced by it into Antarctica
subject to the conditions prescribed in paragraph 2 of Article I of the present Treaty.
Article VIII — Jurisdiction
1. In order to facilitate the exercise of their functions under the present Treaty, and without
prejudice to the respective positions of the Contracting Parties relating to jurisdiction over
all other persons in Antarctica, observers designated under paragraph 1 of Article VII and
scientific personnel exchanged under sub-paragraph 1(b) of Article III of the Treaty, and
members of the staffs accompanying any such persons, shall be subject only to the
jurisdiction of the Contracting Party of which they are nationals in respect of all acts or
omissions occurring while they are in Antarctica for the purpose of exercising their
functions.
2. Without prejudice to the provisions of paragraph 1 of this Article, and pending the adoption
of measures in pursuance of subparagraph 1(e) of Article IX, the Contracting Parties
concerned in any case of dispute with regard to the exercise of jurisdiction in Antarctica
shall immediately consult together with a view to reaching a mutually acceptable solution.
Article IX — Treaty Meetings
Representatives of the Contracting Parties named in the preamble to the present Treaty shall meet at
the City of Canberra within two months after the date of entry into force of the Treaty, and thereafter
at suitable intervals and places, for the purpose of exchanging information, consulting together on
matters of common interest pertaining to Antarctica, and formulating and considering, and
recommending to their Governments, measures in furtherance of the principles and objectives of the
Treaty, including measures regarding:
1. use of Antarctica for peaceful purposes only;
2. facilitation of scientific research in Antarctica;
3. facilitation of international scientific cooperation in Antarctica;
 4. facilitation of the exercise of the rights of inspection provided for in Article VII of the
Treaty;
5. questions relating to the exercise of jurisdiction in Antarctica;
6. preservation and conservation of living resources in Antarctica.
Article X — Activities contrary to Treaty
Each of the Contracting Parties undertakes to exert appropriate efforts, consistent with the Charter of
the United Nations, to the end that no one engages in any activity in Antarctica contrary to the
principles or purposes of the present Treaty.
Article XI — Disputes between Parties
Article XII — Modification and duration (Treaty is for indefinite period)
The present Treaty may be modified or amended at any time by unanimous agreement of the
Contracting Parties whose representatives are entitled to participate in the meetings provided for
under Article IX. Any such modification or amendment shall enter into force when the depositary
Government has received notice from all such Contracting Parties that they have ratified it.
If after the expiration of thirty years from the date of entry into force of the present Treaty, any of
the Contracting Parties whose representatives are entitled to participate in the meetings provided for
under Article IX so requests by a communication addressed to the depositary Government, a
Conference of all the Contracting Parties shall be held as soon as practicable to review the operation
of the Treaty.
Any modification or amendment to the present Treaty which is approved at such a Conference by a
majority of the Contracting Parties there represented, including a majority of those whose
representatives are entitled to participate in the meetings provided for under Article IX, shall be
communicated by the depositary Government to all Contracting Parties immediately after the
termination of the Conference and shall enter into force in accordance with the provisions of
paragraph 1 of the present Article.
Article XIII — Ratification and entry into force
The present Treaty shall be subject to ratification by the signatory States.
Article XIV — Deposition
****************************************************
The original State parties to the treaty are- Argentina, Australia, Belgium, Chile, France, Japan, New
Zealand, Norway, South Africa, the Soviet Union, the UK and the US. A Convention on the
Regulation of Antarctic Mineral Resources Activities was concluded at Wellington in 1988. Some
States, however, opposed it, mainly on environmental grounds, to any mineral resources activity.
This movement was led by Australia and France. Consequently, an agreement was reached in
October 1991 at Madrid banning for a period of 50 years any mineral resource activity other than
scientific research.
Occupation and subjugation
In subjugation, the state subjugated was previously under the sovereignty of another state whereas in
case of occupation no state exercised sovereignty over it previously.
2. Prescription
Prescription is another mode of acquiring the territory. If a state exercises control and establishes
occupation over a particular territory for a long time and thus exercises de facto sovereignty over it,
then the territory concerned becomes a part of that state. “Title by Prescription” (acquisitive
prescription) is the result of peaceful exercise of de facto sovereignty for a very long period over a
territory subject to the sovereignty of another, and this may be as the consequence of immemorial
exercise of such sovereignty or as the result of lengthy adverse possession only. Some jurists are of
the view that IL does not recognise acquiring territory by way of prescription but some jurists are
having opposite view and do give some precedents regarding this for example- Island of Palmas
Arbitration. Although IL does not prescribe any fixed period for prescription. In this regard the Treaty
of Washington 1871 and British Gyanna Arbitration 1899 fixed it for 20 years. This is not a generally
agreed period of acquiring of territory through prescription.
Essential condition for prescription-
i. A state may acquire some territory by prescription only when it has not accepted the
sovereignty of any other States over the said territory
ii. Possession should be peaceful and uninterrupted
iii. Possession should be in public
iv. Possession should be for a definite period
Note: it may be noted that in the presence of some treaty or convention, territory cannot be acquired
by prescription through administrative acts only.
Frontier Land Case (Belgium-Netherland) ICJ 1959
The Court was asked to settle a dispute as to sovereignty over two plots of land situated in an area
where the Belgo-Dutch frontier presented certain unusual features, as there had long been a number
of enclaves formed by the Belgian commune of Baerle-Duc and the Netherlands commune of Baarle-
Nassau. A Communal Minute drawn up between 1836 and 1841 attributed the plots to Baarle-
Nassau, whereas a Descriptive Minute and map annexed to the Boundary Convention of 1843
attributed them to Baerle-Duc. The Netherlands maintained that the Boundary Convention
recognized the existence of the status quo as determined by the Communal Minute, that the provision
by which the two plots were attributed to Belgium was vitiated by an error, and that Netherlands
sovereignty over the disputed plots had been established by the exercise of various acts of sovereignty
since 1843. After considering the evidence produced, the Court, in a Judgment delivered on 20 June
1959, found that sovereignty over the two disputed plots belonged to Belgium.
Temple of Preah Vihear case (Cambodia v. Thailand) ICJ 1962
Background
Subject in dispute is the sovereign territory of the Temple of Preah Vihear (located in the eastern part
of the Dangrek mountains). The location stands on a mountain range on the boundary of Cambodia
and Thailand. The Temple of Preah Vihear is dedicated to the Hindu deity Shiva. It is an UNESCO
world heritage site, calling the temple “an outstanding masterpiece of Khmer architecture.”
Case
1. The case concerning the Temple of Preah Vihear between Thailand and Cambodia at the
International Court of Justice was initiated by the government of Cambodia in 1959.
2. In 1961, following objections from Thailand, the court judged that it had jurisdiction over
this matter.
3. In 1904, France (then ruling Cambodia) and Siam (now known as Thailand) made a treaty
to clarify the states’ borders to follow the watershed line (which would place most of Preah
Vihear province in Thailand’s territory). This treaty established officers from both sides,
known as the first Mixed Commission, to delimiting the territory between the countries.
4. The final stage of the Mixed Commission was to prepare maps. In 1907, four French
officers (three of which were part of the Mixed Commission) were assigned to prepare a
series of eleven maps forming the borders of Cambodia and Thailand. This was at the
request of the Thai Government, as they did not possess the technical means to map the
region. The map concerning the region of Preah Vihear placed the Temple of Preah Vihear
on Cambodia’s side.
5. It is this map that Cambodia primarily claims sovereignty over the Temple. Cambodia
argue that as the map had been accepted by Thailand, and entered into the treaty, Cambodia
have ownership over the Temple. Thailand disagreed and denied accepting the map,
arguing that they agreed to the 1904 treaty that specifies territory would follow the
watershed line in the text, and that following this line, the Temple belongs to Thailand.
They also argued that if they did accept the map, it would have been on the mistaken belief
that the map corresponded with the watershed line (as according to the text of the treaty).
6. The map of the region of Preah Vihear, called Annex I, was never formally approved by
the Mixed Commission. The Court mentioned that on its creation, Annex I had no binding
character.
7. There are records however, that Annex I was shown to the Thailand government. As there
was no response about this issue, it must mean that they agree to it.
8. Annex I was also shown to the Thai members of the Mixed Commission, who said nothing.
The Thai Minister of the Interior at the time thanked the French minister for them. The
Court mentioned that as the Thai authorities accepted the map without investigation, they
could not now plead their consent was in error.
9. In 1934 and 1935 a survey revealed the difference between Annex I and the text of the
treaty, with Annex I showing that the Temple is part of Cambodia, and the text (following
the watershed lines) that the Temple is part of Thailand. Regardless of this, Thailand
continued to use and publish maps showing that Preah Vihear being part of Cambodia.
10. In 1925, 1937 and 1947 there were France-Thailand treaties and meetings, Thailand did
not raise any issue regarding the territory of Preah Vihear. The natural implication of this
is that Thailand did not have any issue with the territory belonging to Cambodia.
11. It was only until 1958 that Thailand raised a query about the Annex I map in its negotiations
with Cambodia. Annex I was completed in 1907. This is more than fifty years since the
map was completed.
12. The Court stated that the acceptance of Annex I entering into the treaty settlement meant
that the parties had at that time adopted the interpretation of the treaty which caused the
map to prevail over the text. The Court stated there was no reason to think otherwise as no
objection or special importance to the line was mentioned at the time.
 13. Following Cambodia’s independence in November 1953, Thailand occupied the Temple
of Preah Vihear in 1954. After unsuccessful negotiations between the two parties, the case
was taken to the International Court of Justice at the request of Cambodia in 1959.
Judgment
1. The Court found that the Temple of Preah Vihear was situated in Cambodian territory, and
that Thailand are obliged to withdraw any forces, military or otherwise, stationed in and
around the Temple.
2. That Thailand is under an obligation to return any sculptures, ancient pottery or artifacts to
Cambodia since the date of occupation of the Temple by Thailand in 1954.
Difference between occupation and prescription-
3. Accretion
This describes the geographical process by which new land is formed and becomes attached to
existing land, as for example the creation of islands in a river mouth or the change in direction of a
boundary river leaving dry land where it had formerly flowed. Where new land comes into being
within the territory of a state, it forms part of the territory of the state and there is no problem. When,
for example, an island emerged in the Pacific after an under-sea volcano erupted in January 1986,
the UK government noted that: ‘We understand the island emerged within the territorial sea of the
Japanese island of Iwo Jima. We take it therefore to be Japanese territory.’ As regards a change in
the course of a river forming a boundary, a different situation is created depending whether it is
imperceptible and slight or a violent shift (avulsion). In the latter case, the general rule is that the
boundary stays at the same point along the original river bed. However, where a gradual move has
taken place the boundary may be shifted. If the river is navigable, the boundary will be the middle of
the navigable channel, whatever slight alterations have occurred, while if the river is not navigable
the boundary will continue to be the middle of the river itself. This aspect of acquiring territory is
relatively unimportant in international law but these rules have been applied in a number of cases
involving disputes between particular states of the United States of America.
4. Cession
This involves the peaceful transfer of territory from one sovereign to another (with the intention that
sovereignty should pass) and has often taken place within the framework of a peace treaty following
a war. Indeed the orderly transference of sovereignty by agreement from a colonial or administering
power to representatives of the indigenous population could be seen as a form of cession.
Because cession has the effect of replacing one sovereign by another over a particular piece of
territory, the acquiring state cannot possess more rights over the land than its predecessor had.
This is an important point, so that where a third state has certain rights, for example, of passage over
the territory, the new sovereign must respect them. It is expressed in the land law phrase that the
burden of obligations runs with the land, not the owner. In other words, the rights of the territorial
sovereign are derived from a previous sovereign, who could not, therefore, dispose of more than he
had.
This contrasts with, for example, accretion which is treated as an original title, there having been no
previous legal sovereign over the land. The Island of Palmas35 case emphasised this point. It
concerned a dispute between the United States and the Netherlands. The claims of the United States
were based on an 1898 treaty with Spain, which involved the cession of the island. It was emphasised
by the arbitrator and accepted by the parties that Spain could not thereby convey to the Americans
greater rights than it itself possessed.
The basis of cession lies in the intention of the relevant parties to transfer sovereignty over the
territory in question. Without this it cannot legally operate. An actual delivery of the property is also
required for a valid cession is less certain. It will depend on the circumstances of the case. For
example, Austria ceded Venice to France in 1866, and that state within a few weeks ceded the
territory to Italy. The cession to the Italian state through France was nonetheless valid. In the Iloilo
case36, it was held that the cession of the Philippines to the United States took place, on the facts of
the case, upon the ratification of the Treaty of Paris of 1898, even though American troops had
taken possession of the town of Iloilo two months prior to this. Although instances of cession usually
occur in an agreement following the conclusion of hostilities, it can be accomplished in other
circumstances, such as the purchase of Alaska by the United States in 1867 from Russia or the
sale by Denmark of territories in the West Indies in 1916 to the United States. It may also
appear in exchanges of territories or pure gifts of territory.
5. Annexation; Conquest and the use of force
How far a title based on force can be regarded as a valid, legal right recognisable by other states and
enforceable within the international system is a crucial question. Ethical considerations are relevant
and the principle that an illegal act cannot give birth to a right in law is well established in municipal
law and is an essential component of an orderly society. However, international law has sometimes
to modify its reactions to the consequences of successful violations of its rules to take into account
the exigencies of reality. The international community has accepted the results of illegal aggression
in many cases by virtue of recognition.
Conquest, the act of defeating an opponent and occupying all or part of its territory, does not of itself
constitute a basis of title to the land. It does give the victor certain rights under international law as
regards the territory, the rights of belligerent occupation, but the territory remains subject to the legal
title of the ousted sovereign. Sovereignty as such does not merely pass by conquest to the occupying
forces, although complex situations may arise where the legal status of the territory occupied is, in
fact, in dispute prior to the conquest.
Conquest, of course, may result from a legal or an illegal use of force. By the Kellogg–Briand Pact
of 1928, war was outlawed as an instrument of national policy, and by article 2(4) of the United
Nations Charter all member states must refrain from the threat or use of force against the
territorial integrity or political independence of any state. However, force will be legitimate
when exercised in self-defence.

35
Perm. Ct. of Arbitration, 2 U.N. Rep. Int’l Arb. Awards 829 (1928).
36
SEVERAL BRITISH SUBJECTS (GREAT BRITAIN) v. UNITED STATES 1925
Whatever the circumstances, it is not the successful use of violence that in international law
constituted the valid method of acquiring territory. Under the classical rules, formal annexation of
territory following upon an act of conquest would operate to pass title. It was a legal fiction employed
to mask the conquest and transform it into a valid method of obtaining land under international law.
However, it is doubtful whether an annexation proclaimed while war is still in progress would have
operated to pass a good title to territory. Only after a war is concluded could the juridical status of
the disputed territory be finally determined. This follows from the rule that has developed to the
effect that the control over the relevant territory by the state purporting to annex must be effective
and that there must be no reasonable chance of the former sovereign regaining the land.
These points were emphasised by the Nuremberg War Crimes Tribunal after the Second World War,
in discussing the various purported German annexations of 1939 and 1940. The Tribunal firmly
declared that annexations taking place before the conclusion of a war were ineffective and invalid in
international law. Intention to annex was a crucial aspect of the equation so that, for example, the
conquest of Germany by the Allies in 1945 did not give rise to an implied annexation by virtue of
the legislative control actually exercised (as it could have done) because the Allies had specifically
ruled out such a course in a joint declaration. It is, however, clear today that the acquisition of
territory by force alone is illegal under international law. This may be stated in view of article
2(4) of the UN Charter and other practice. Security Council resolution, for example, emphasised the
‘inadmissibility of the acquisition of territory by war’, while the 1970 Declaration of Principles of
International Law adopted by the UN General Assembly provides that:
the territory of a state shall not be the object of acquisition by another state resulting from
the threat or use of force. No territorial acquisition resulting from the threat or use of force
shall be recognised as legal.
In Security Council resolution (1990), adopted unanimously, the Council decided that the declared
Iraqi annexation of Kuwait ‘under any form and whatever pretext has no legal validity and is
considered null and void’. All states and institutions were called upon not to recognise the annexation
and to refrain from actions which might be interpreted as indirect recognition.
Acquisition of territory following an armed conflict would require further action of an international
nature in addition to domestic legislation to annex. Such further necessary action would be in the
form either of a treaty of cession by the former sovereign or of international recognition.
6. Pledge, Leases and servitudes
Sometimes a state becomes compelled to pledge a part of its territory in return of some amount of
money for which it is in dire need. In such a case sovereignty of one state affected over that territory.
For example in 1768, the Republic of Geneo had pledged the Island of Corsica to France.
Various legal rights exercisable by states over the territory of other states, which fall short of absolute
sovereignty, may exist. Such rights are attached to the land and so may be enforced even though the
ownership of the particular territory subject to the rights has passed to another sovereign. They are
in legal terminology formulated as rights in rem.
Leases of land rose into prominence in the nineteenth century as a way of obtaining control of usually
strategic points without the necessity of actually annexing the territory. Leases were used extensively
in the Far East, as for example Britain’s rights over the New Territories amalgamated with Hong
Kong, and sovereignty was regarded as having passed to the lessee for the duration of the lease, upon
which event it would revert to the original sovereign who made the grant.
An exception to this usual construction of a lease in international law as limited to a defined period
occurred with regard to the Panama Canal, with the strip of land through which it was constructed
being leased to the United States in 1903 ‘in perpetuity’. However, by the 1977 Panama Canal Treaty,
sovereignty over the Canal Zone was transferred to Panama. The United States had certain operating
and defensive rights until the treaty ended in 1999.
A servitude exists where the territory of one state is under a particular restriction in the interests of
the territory of another state. Such limitations are bound to the land as rights in rem and thus restrict
the sovereignty of the state concerned, even if there is a change in control of the relevant territory,
for instance upon merger with another state or upon decolonisation.
Examples of servitudes would include the right to use ports or rivers in, or a right of way across, the
territory so bound, or alternatively an obligation not to fortify particular towns or areas in the
territory. Servitudes may exist for the benefit of the international community or a large number of
states. To give an example, in the Aaland Islands case in 1920, a Commission of Jurists appointed
by the Council of the League of Nations declared that Finland since its independence in 1918 had
succeeded to Russia’s obligations under the 1856 treaty not to fortify the islands. And since Sweden
was an interested state in that the islands are situated near Stockholm, it could enforce the obligation
although not a party to the 1856 treaty. This was because the treaty provisions had established a
special international regime with obligations enforceable by interested states and binding upon any
state in possession of the islands. Further, the Tribunal in Eritrea/Yemen noted that the traditional
open fishing regime in the southern Red Sea together with the common use of the islands in the area
by the populations of both coasts was capable of creating historic rights accruing to the two states in
dispute in the form of an international servitude. The award in this case emphasised that the findings
of sovereignty over various islands in the Red Sea entailed ‘the perpetuation of the traditional fishing
regime in the region’.
The situation of the creation of an international status by treaty, which is to be binding upon all and
not merely upon the parties to the treaty, is a complex one and it is not always clear when it is to be
presumed. However, rights attached to territory for the benefit of the world community were created
with respect to the Suez and Panama Canals. Article 1 of the Constantinople Convention of 1888
declared that ‘the Suez Maritime Canal shall always be free and open in time of war as in time of
peace, to every vessel of commerce or of war without distinction of flag’ and this international status
was in no way affected by the Egyptian nationalisation of the Canal Company in 1956. Egypt stressed
in 1957 that it was willing to respect and implement the terms of the Convention, although in fact it
consistently denied use of the canal to Israeli ships and vessels bound for its shores or carrying its
goods. The canal was reopened in 1975 following the disengagement agreement with Israel, after a
gap of eight years. Under article V of the 1979 Peace Treaty between Israel and Egypt, it was
provided that ships of Israel and cargoes destined for or coming from Israel were to enjoy ‘the right
of free passage through the Suez Canal . . . on the basis of the Constantinople Convention of 1888,
applying to all nations’.
7. Plebiscite
Some writes think that through plebiscite also new territory may be acquired. Although there is no
definite rules relating to this. Example- West Irian; Both Netherlands and Indonesia claimed the
territory of West Irian. Through the interference of UN a choice of West Irian was given to go with
Netherlands or Indonesia. Through the plebiscite people decided to go with Indonesia thus West Irian
is now the part of Indonesia. Example of Kashmir; `

Modes of loss of territory

1) Cession
2) Operation of nature
3) Subjugation
4) Prescription
5) Revolt
6) Granting of independence to colony

International rivers
Rivers which runs through several states are described as ‘non-national rivers’. Such rivers are owned
by more than one states; each state owns that part of the river which runs through its territory.
Rivers which are navigable from the open sea and pass through several states, between their sources
and mouths, are called “International Rivers”. These are termed as international because freedom of
navigation in time of peace on all such rivers in Europe and many of them outside Europe for
merchantmen of all nationals is recognised by conventional IL. As regards the utilization of flow of
waters by non-national rivers, Oppenheim has pointed out that ‘It is not within the arbitrary power
of one of the riparian states or it is a rule of IL that no state is allowed to alter the natural conditions
of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring
state.’ For this reason a state is not only forbidden to stop or divert the flow of a river which runs
from its own to neighbouring state. The riparian state should not make any such use of the river water
under its control as may cause grievous or irreparable damage to other riparian state.
Lake Lanoux Arbitration37 (France v. Spain) 1957
The Tribunal held that there was no duty of riparian state under customary IL to consult or obtain
prior consent/agreement of a co-riparian as a condition precedent of its right to begin new river work.
Although in carrying out the project, it must be taken into account, in the reasonable manner, the
interest of co-riparian.
Thus such problems of utilization of rivers by one state to the injury of other states are a matter of
treaty arrangement of settlement by arbitration or conciliation in the most equitable manner.
Farakka Barrage and dispute over water extraction (India and Bangladesh)
Unregulated dry season flows in the Ganges were sufficient to meet water requirements in
Bangladesh until 1975. The conflict between India and Bangladesh over sharing the Ganges water
started when India commissioned the Farakka Barrage in 1975 at a location approximately 18 km
upstream from the Indo-Bangladesh border. The purpose of the construction of the barrage was to
divert 40,000 cusec (equivalent to 1,133 m3/s) water from the Ganges River to the moribund Hooghly
River (a distributary of the Ganges) for maintaining the navigability of the Kolkata Port. This

37
This arbitration concerned the use of the waters of Lake Lanoux, in the Pyrenees. The French Government proposed
to carry out certain works for the utilization of the waters of the lake and the Spanish Government feared that these works
would adversely affect Spanish rights and interests, contrary to the Treaty of Bayonne of May 26, 1866, between France
and Spain and the Additional Act of the same date. It was claimed that, under the Treaty, such works could not be
undertaken without the previous agreement of both parties. Lake Lanoux lies on the southern slopes of the Pyrenees, on
French territory. It is fed by streams which have their source in French territory and which run entirely through French
territory only. Its waters emerge only by the Font-Vive stream, which forms one of the headwaters of the River Carol.
That river, after flowing approximately 25 kilometres from Lake Lanoux through French territory, crosses the Spanish
frontier at Puigcerda and continues to flow through Spain for about 6 kilometers before joining the river Segre, which
ultimately flows into the Ebro. Before entering Spanish territory, the waters of the Carol feed the Canal of Puigcerda
which is the private property of that town. On September 21, 1950, Electricité de France applied to the French Ministry
for Industry for a concession, based on a scheme involving the diversion of the waters of Lake Lanoux towards the River
Ariège. The waters so diverted were to be completely returned into the River Carol by means of a tunnel leading from
the upper courses of the Ariège at a point on the Carol above the outlet to the Puigcerda Canal. The French Government,
however, while accepting the principle that waters drawn off should be returned, regarded itself as bound only to return
a quantity of water corresponding to the actual needs of the Spanish users. Consequently, France was going to proceed
to develop Lake Lanoux by diverting its waters towards the Ariege but a certain limited flow of water corresponding to
the actual needs of the Spanish frontagers would be assured at the level of the outlet to the Puigcerda Canal. Spain was
opposed to any diversion of the waters of Lake Lanoux. The Tribunal examined the Treaty of Bayonne of May 26, 1866
and the Additional Act, as well as the arguments brought forward by both Governments. Regarding the question whether
France had taken Spanish interests into sufficient consideration, the Tribunal stressed that in determining the manner in
which a scheme had taken into consideration the interests involved, the way in which negotiations had developed, the
total number of the interests which had been presented, the price which each Party had been ready to pay to have those
interests safeguarded, were all essential factors in establishing, with regard to the obligations set out in Article 11 of the
Additional Act, the merits of that scheme. In conclusion, the Tribunal was of opinion that the French scheme complied
with the obligations of Article 11 of the Additional Act. The Tribunal decided that in carrying out, without prior
agreement between the two Governments, works for the utilization of the waters of Lake Lanoux in the conditions
mentioned in the Scheme for the Utilization of the Waters of Lake Lanoux, the French Government was not committing
a breach of the provisions of the Treaty of Bayonne of May 26, 1866, and the Additional Act of the same date
diversion of flow from the main stem of the Ganges in the dry season changed the hydrology of the
river downstream, which significantly affected the riverine ecosystem and biodiversity in
Bangladesh.
A 5-year agreement was the first major sharing arrangement of the Ganges waters, which was signed
in November 1977. According to the 1977 Agreement, the water would be shared during the dry
season from January to May, divided into 10-day periods. An important feature of the 1977
Agreement was a guarantee clause which ensured Bangladesh received a minimum of 80% of the
scheduled flow.
After the expiry of the 1977 Agreement in 1982, India and Bangladesh signed two ‘Memoranda of
Understanding’ (MoU) between 1983 and 1988 with minor adjustments to the 1977 Agreement. The
total amount of share between India and Bangladesh remained the same, but the guarantee clause
included in the 1977 Agreement was removed from these MoUs. Between 1989 and 1996, there was
no operational mechanism for sharing Ganges waters between the two countries.
The Ganges Water Sharing Treaty between Bangladesh and India, signed on 12 December 1996 for
a period of 30 years (GWT, 1996), was marked as a major footstep towards the conclusion of a
longstanding conflict over sharing of the Ganges water. According to the Treaty, the flow at Farakka
would be shared based on a unique sharing formula between India and Bangladesh during the dry
season (January–May), further divided into fifteen 10-day cycles. The most notable feature of the
Treaty is the condition that each country is guaranteed to receive 35,000 cusec (equivalent to 991
m3/s) of flow in alternate 10-day cycles during the most critical periods between March 11 and May
10.
Inter Oceanic Canals
By inter oceanic canal means the canal which connect the international waterways and are available
for the shipping of all states. Generally the use and control of such canals are governed by
international treaties.
Suez Canal- Suez Canal is the most famous among the inter-oceanic canals. In the beginning it was
under the control of a French company. Later on it came under the control of British Government. In
1954, Britain and Egypt concluded a treaty whereby Britain withdrew its forces from Suez Canal. In
1956 when this canal was nationalised by Egypt took complete control of this canal to make money.
France, Britain, Israel etc. reacted strongly against this action of Egypt. They jointly made an armed
intervention to stop Egypt to nationalise this canal.
This problem was resolved by the interference of Russia, Security Council and General Assembly.
Subsequently it was decided that Suez Canal would be free from international politics and all states
shall have right of shipping over this canal. However Egypt shall be entitle to realise taxes for its use.
During the Arab-Israel conflict, the canal became unsafe for navigation and was closed. On June 6,
1975, the Suez Canal resumed full scale operations.
Keil Canal- This canal in the beginning was under the control of Germany and was built for the use
of German force. After the First World War the situation changed significantly, thus thrown open for
the use of all states. Article 380 of Treaty of Versalles, 1919 provided that “the Keil Canal shall be
maintained free and open to the vessels of commerce and of war of all nations at peace with Germarny
on the terms of entire equality”. In SS Wimbledon Case PCIJ 1923- On 21st March 1921, the
German authorities stopped a British ship SS Wimbledon on the ground that its cargo comprised of
military goods which was being carried to Poland who was at the war with Russia at that time and if
would be allowed it will be against the German law of neutrality. The prominent allied powers filed
a case against Germany in PCIJ to allow passage to ship. The PCIJ held that according to article 380
Germany was under obligation to allow passage to this ship and make reparation. The position is
changed after Second World War and now this canal is open to all states.
Panama Canal
Panama Canal connects Atlantic Sea with the Pacific Sea. It is very important canal for commercial
and transport purposes. Under the Treaty of 1903, between Panama and USA, this canal came under
the control of USA.
After helping Panama to achieve independence in 1903, the US completed 82 km. canal in 1914 and
protected it with military bases. During the First and Second World Wars, the warships of all the
states had freedom to pass through this canal. But this freedom lasted till America did not enter the
war.
After that, there were a lot of controversy with regard to use and control of this canal between US
and Panama because Panama wanted more control over this canal.
In 1973, the Security Council held special session in Panama to decide status of Panama Canal. In
the Security Council, a proposal was brought against the control of US over this canal but this was
vetoed by US.
In 1974, a joint statements providing guidelines relating to this canal was issued by US and Panama.
After prolonged discussion two treaties were entered by these sates- (1) A treaty guaranteeing the
permanent neutrality of the canal, and (2) A basic treaty governing the use and defence of the canal.
The problem of future use and control of Panama Canal was settled amicably in 1979 and the control
of US came to an end.
Straits
According to IL. Straits extending to the breadth of 6 miles (9.65 km) are considered within the
territory of costal states. But this is not agreed by all.
 Law of the Sea
Introduction
International law of the sea is that part of public international law that regulates the rights and
obligations of States and other subjects of international law, regarding the use and utilization of the
seas in peace time. It is distinguished from the private maritime law that regulates the rights and
obligations of private persons with regard to maritime matters, e.g., the carriage of goods and
maritime insurance. Law of the sea was developed as part of the law of nations in the 17th century
with the emergence of the modern national State system. The seas of the world have historically
played two key roles: firstly, as a means of communication, and secondly, as an immense reservoir
of both living and non-living natural resources. Both of these roles have encouraged the development
of legal rules. No branch of international law has undergone more radical changes during the past
four decades than has the law of the sea and maritime highways. Law of the sea is concerned with
the public order at sea and much of this law is codified in the UN Convention on the Law of the Sea
(UNCLOS).
In the international jurisdictions disputes may frequently be arisen among the neighbouring coastal
States regarding the delimitation of maritime boundary, exploitation of minerals or natural resources,
commission of any crime in the territorial boundary of another State, etc. These disputes are generally
resolved by the international courts or tribunals on the basis of complaints filed by the parties
concerned following the rules of international law of the sea or following the precedents as a pivotal
source of international law. This study, however, is concerned with those rules of international law
usually referred to as “the law of the sea” and is intended as a starting point for research on the law
of the sea. This research work especially deals with the broader area of the sea law that evidently
involves consideration of matters mainly of the base line, inland waters, territorial sea, contiguous
zone, Exclusive Economic Zone (EEZ), high sea and continental shelf.

The Four Geneva Conventions on Territorial Waters and Contiguous Zone, 1958
The first UN Conference on the law of the sea was held in 1958 in Geneva. In this conference four
multilateral conventions covering various aspects on the law of the sea were adopted:
1) Convention on the Territorial Sea and Contiguous Zone;
2) Convention on the High Seas;
3) Convention on Fishing and Conservation of Living Resources; and
4) Convention on the Continental Shelf.
All these conventions are in force, though in many aspects they have been superseded by the 1982
UN Convention on the Law of the Sea which is mainly of general application, i.e., it is not confined
to one specific aspect of the law of the sea. For non-parties to the 1982 Convention and for those
matters on which the 1982 Convention is silent, the 1958 Conventions will continue to govern the
relations of States that have ratified them. For States that are neither party to the 1982 Convention
nor to the 1958 Conventions, the relevant law is the customary.

The UN Convention on the Law of the Sea (UNCLOS, 1982)

The 1982 Convention on the Law of the Sea constitutes a comprehensive codification and
development of contemporary international law governing the sea in time of peace. The UNCLOS,
also called the Law of the Sea Convention, is a global agreement that resulted from the third UN
Conference on the Law of the Sea (UNCLOS III), which took place between 1973 and 1982. This
treaty is considered to be the “constitution of the oceans” and represents the result of an
unprecedented, and so far never replicated, effort at codification and progressive development of
international law. Maritime jurisdictions are now governed mainly by the 1982 UN Convention on
the Law of the Sea. The comprehensive 1982 Convention that replaced the 1958 four conventions on
the law of the sea consists of 320 articles and 9 annexure was concluded in 1982. The UNCLOS is
intended to govern the use of oceans for fishing, shipping, exploration, navigating and mining and it
is the most complete treaty in public international law that covers a range of law of the sea topics,
e.g. delimitation of maritime boundaries, maritime zones, marine environment protection, marine
scientific research, piracy and so on. This Convention represents the most significant development
in the whole history of the rules of international law regarding the high seas. The greater part of the
convention, containing the more significant rules therein enunciated much the previous law was
thereby changed; appear now to command the general consensus of the world community.

Salient Features: The UN Convention on the Law of the Sea, 1982

A careful list of the main substantive provisions of the Convention, focusing on those, introduces
changes or new concepts in the traditional law of the sea would seem to include the aspects:
a) The maximum width of the territorial sea is fixed at 12 N. miles and that of the contiguous
zone at 24 miles;
b) A “transit passage” regime for straits used for international navigation is established;
c) States consisting of archipelagos, provided certain conditions are satisfied, can be
considered as “archipelagic States”, the outermost islands being connected by
“archipelagic baselines” so that the waters inside these lines are archipelagic waters;
d) A 200-mile exclusive economic zone including the seabed and the water column, may be
established by coastal States in which such States exercise sovereign rights and jurisdiction
on all resource-related activities;
e) Other States enjoy in the exclusive economic zone high seas freedoms of navigation, over
flight, laying of cables and pipelines and other internationally lawful uses of the sea
connected with these freedoms;
f) A rule of mutual “due regard” applies to ensure compatibility between the exercise of the
rights of the coastal states and of those of other states in the exclusive economic zone;
g) The concept of the continental shelf has been confirmed, though with newly defined
external limits;
h) The International Seabed Authority being the “machinery” entrusted with the supervision
and regulation of exploration and exploitation of the resources;
i) A series of very detailed provisions deal with the protection of the marine environment
setting out general principles and rules about competence for law-making and enforcement
as well as on safeguards;
j) Detailed provisions concerning marine scientific research, based on the principle of
consent of the coastal State, consent which should be the norm for pure research and
discretionary for resource-oriented research;
k) The ocean bottom beyond national jurisdiction is proclaimed to be the “Common Heritage
of the Mankind”.
Bilateral/Multilateral Treaties or Customary International Law
Besides the above mentioned two vital international instruments, the customary international law and
other bilateral or multilateral agreements are also the outstanding source of international law of the
sea. Regarding the customary international law, it is already noted that the 1958 and 1982 UN
Conventions on the Law of the Sea have contributed a lot to the development of the customary
international laws. There may be other rules of customary international law that may not precisely
be reflected in any conventional text nor owe their origin to incorporation in such a text. These as
with all customary rules, bind States in the ordinary manner.

International Tribunal for the Law of the Sea (ITLOS)

After the entry into force of the UN Convention on the Law of the Sea on 16th November, 1994
strong efforts were made for the establishment of an International Tribunal for the Law of the Sea
(ITLOS). In August 1996, 21 Judges of the Tribunal were elected on the basis of “equitable
geographical distribution”. The ITLOS is an intergovernmental organization created by the mandate
of the Third UN Conference on the Law of the Sea. It was established by the UN Convention on the
Law of the Sea, signed at Montego Bay, Jamaica, on 10th December, 1982. The ITLOS was
ultimately established on 21st October, 1996 of which jurisdiction is not compulsory and is optional
or based on the consent of the States. The Tribunal consists of 21 members, elected from among the
highest reputation of fairness and integrity and a recognized competence in the field of the law of the
sea. The Tribunal is situated in Germany, established a global framework for law over “all ocean
space, its uses and resources”. The Tribunal is open to all the state parties to the 1982 UN Convention
on the Law of the Sea.

UNCLOS: Various Jurisdictions of the Maritime Zones

Under both the Geneva Convention on Territorial Sea, 1958 and the UN Convention on the Law of
the Sea, 1982 there are following seven maritime areas over which the States can exercise their
jurisdiction:
1) Base Line;
2) Inland waters;
3) Territorial Sea;
4) Contiguous Zone;
5) Exclusive Economic Zone (EEZ);
6) High Seas; and
7) Continental shelf.
The Base Line
The coastal curve, from which the maritime area of a State is measured, is called baseline or low
water line. Baseline can be of two types:
a) normal baseline and
b) straight baseline.
Archipelagic State- Article 46(b) defines ‘archipelago’ as follows:
‘Archipelago’ means a group of islands, including parts of islands, interconnecting waters and other
natural features which are so closely interrelated that such islands, waters and other natural features
form an intrinsic geographical, economic and political entity, or which historically have been
regarded as such.
The definition contains four criteria which must be present in order for an island group to constitute
an archipelago:
i. the existence of a group of islands,
ii. the compactness or the adjacency of islands,
iii. the existence of an intrinsic geographical, economic and political entity, and
iv. historical practice.
Yet these criteria may not be wholly unambiguous. For instance, there is no criterion with regard to
the minimum number of islands. It appears that ‘an economic and political entity’ does not always
coincide with ‘a geographical entity’. The test of historicity may give rise to the question of how it
is possible to demonstrate evidence in this matter.

Currently twenty-two States have formally claimed archipelagic status. Those States are:
Antigua and Barbuda, Bahamas, Cape Verde, Comoros, Dominican Republic, Fiji, Grenada,
Indonesia, Jamaica, Kiribati, Maldives, Marshall Islands, Mauritius, Papua New Guinea, Philippines,
Saint Vincent and the Grenadines, São Tomé and Príncipe, Seychelles, Solomon Islands, Trinidad
and Tobago, Tuvalu and Vanuatu. All these States are parties to the LOSC.
‘Archipelagic waters’ mean the waters enclosed by the archipelagic baselines drawn in accordance
with Article 47 regardless of their depth or distance from the coast. The breadth of the territorial sea,
the contiguous zone, the EEZ and the continental shelf is to be measured from archipelagic baselines.
Thus archipelagic waters must be distinguished from the territorial sea. Further, Article 50 stipulates
that within its archipelagic waters, the archipelagic State may draw closing lines for the delimitation
of internal waters in accordance with Articles 9, 10 and 11. The landward areas of these closing lines
become internal waters of an archipelagic State. Hence, it must be stressed that archipelagic waters
do not constitute internal waters.

Normal baseline is the low-water mark line along the coast. The low-water mark after ebb tide on
the coast is considered the normal baseline. It is a line hugging the coast. Article 5 contains provisions
as to normal baseline and reveals that, except where otherwise provided in this Convention, the
normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast
as marked on large scale charts officially recognized by the coastal State.
On the other hand, straight baseline departs from the physical coastline due to certain distinctive
features of coasts of a State. Article 12 (1) and (2) of the 1958 Convention contains provisions as to
the delimitation of the baseline and states that, where the coasts of two States are opposite or adjacent
to each other, neither of the two States is entitled, failing agreement between them to the contrary, to
extend its territorial sea beyond the median line every point of which is equidistant from the nearest
points on the baselines from which the breadth of the territorial seas of each of the two States is
measured. The provisions of this paragraph shall not apply where it is necessary by reason of historic
title or other special circumstances to delimit the territorial seas of the two States in a way which is
at variance with this provision. The line of delimitation between the territorial seas of two States
lying opposite to each other or adjacent to each other shall be marked on large-scale charts officially
recognized by the coastal States. The globally recognized principle as to the delimitation of straight
baseline is accepted in 1951 from the judgment of the famous Anglo-Norwegian Fisheries
Jurisdiction Case (1951) (England vs. Norway; ICJ).
In this case, the Norwegian government delimited its fisheries zone (territorial sea) by a decree of
12th July, 1935. The area of this delimitation was about thousand miles of coastland of its 66.28.2
North Latitude. The Norwegian limit of four miles of territorial waters had been established by a
Royal decree in 1812 and the UK also admitted it. But it was not measured from the low water mark
at every point. Linking the out most point of land and sometimes drying rocks above water only at
high tide. The UK recognizing the Norwegian claim of four miles challenged the validity of the
baseline newly made and laid their grievance in the ICJ for adjudication. The issue in this case before
the Court was whether the base lines fixed by the said decree in application of the Norwegian method
were contradictory to the international law. The Court decided by a vote 10 to 2 in favor of Norway
approving the Norwegian practice of drawing an outer line for its territorial sea that was based on
straight base lines following the general directions of the coast but not the indentation of that coast.
According to the Court the following reasons were considered to reach the decision:
1) In respect of delimitation of territorial waters with other States the ICJ observed that the act of
delimitation is always an international aspect, it cannot be dependent merely upon the will of coastal
State as expressed in the domestic law.
2) The coastline of Norway is not one of ordinary nature; rather it is of a broken nature. The Court
held that the method of baselines employed by Norway was not contrary to the international law;
inter alia, the special geographical facts involved and the economic interests peculiar to the region.
The case is mainly based on the principle that, in some situations geographical circumstances permit
the drawing of straight baseline in the territorial sea. This method consists of selecting appropriate
points on the low water mark and drawing straight lines between them. The decision of this case was
subsequently accepted by the world community and was incorporated in the 1958 Geneva
Convention on Territorial Sea and Contiguous Zone.

The Inland Waters

The internal waters which exist from the baseline to the landward side area of the coastal State are
called the inland waters. Article 8 (1) of the 1982 Convention states that, waters on the landward side
of the baseline of the territorial sea form part of the internal waters of the State. Also article 5 (1) of
the 1958 Convention provides that, waters on the landward side of the baseline of the territorial sea
form part of the internal waters of the State.

Civil and Criminal Jurisdiction of the Coastal State

The coastal State has its sovereign control and authority over its inland waters. The coastal state also
has the civil and criminal jurisdiction over its internal waters. If the law and order situations in the
inland waters of the coastal area are hampered, it shall definitely apply its criminal jurisdiction.
Leading case in this respect is Rex vs. Anderson (1868).
In this case, James Anderson was an American national killed a foreign national in a British ship and
at the time of that killing the vessel was in the French territorial water. That is to say, in this case the
accused was an American citizen, vessel was of Britain and the place of committing crime was
France. When a case is filed before the British Court, Anderson claimed and argued that the crime
was occurred in the French territorial water and for this reason Britain has no jurisdiction to try the
accused in this. The main issue before the Court was whether the British Court has actually
jurisdiction to try Anderson. The Appellate Court decided that, the three countries involved in this
case are entitled to prosecute Anderson and so can Britain in order to protect its vessel. The reason
behind this judgment was that, Britain has jurisdiction to prosecute Anderson because the crime was
committed in the British ship, i.e. here the flag State is Britain. Again, the USA has also Personal
Jurisdiction to prosecute Anderson and France can also prosecute as it has the Territorial Jurisdiction
as the crime has hampered the security and peace of France.
State vs. Yannopulous (1974) (Italy vs. Greece) is another relevant case here. In this case,
Yannopulous was a Greek national. He was one of the members of crew of a ship belong to Cypress.
The ship was anchored in an Italian port with huge quantity marijuana. Carrying marijuana is itself
an offence. Yannopulous was arrested and sent to the court alleging that his carrying of the marijuana
was a threat to the peace and security in the shore. The issue in this case was whether Italy had the
jurisdiction to try Yannopulous for the alleged offence? The Italian Court acquitted Yannopulous
with honor and set him free. In this case, the main reasoning before the court was as follows:
1) Under the customary international law the coastal state has both the civil and criminal jurisdiction
in its internal matters. But if the offence is committed on board of the vessel, the flag state has the
jurisdiction, which is concurrent to that of the state whose national was the offender.
2) There is an exception to this general rule, which provides that if the offence disturbed the peace,
security and good order of the shore, the coastal state can try such offence on the ground of public
interest.
3) There is no evidence in this case that the act of Yannopulous disturbed the peace, security and
good order of the port. Though Yannopulous was found and arrested with drugs, his council argued
that he only possessed it and had no intention or motive to sell. It would be determined unilaterally
by the coastal state whether an act of an alien affects the peace, security and good order of that port
or that country.

The Territorial Sea

The doctrine of territorial sea has traditionally been regarded as founded upon the principle laid down
by the Dutch Jurist Bynkershoek in his “de dominion maris” dissertation in 1702 that a state’s
sovereignty extended as far out to sea as a common shot would reach and the three-mile limit has
traditionally been represented as simply rough equivalent of the maximum range of a canon shot in
the 18th century. Actually the territorial sea is the closest maritime area adjacent to the land territory
of states. 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.

Legal Position of the Coastal State

Ordinarily the states claimed only three miles of territorial sea till the 1960s and there was no
uniformity in the national jurisdictions of the territorial sea. The 1982 Convention has put to rest all
varying width of the territorial sea. According to article 1 of the 1958 Convention, the sovereignty
of a state extends beyond its land territory and internal waters, to a belt of sea adjacent to its coast.
As per article 2(1) of the 1982 UN Convention, the sovereignty of a coastal state extends, beyond its
land territory and internal waters and, in the case of an archipelagic state, its archipelagic waters, to
an adjacent belt of sea, described as the territorial sea. This sovereignty extends to the air space over
the territorial sea as well as to its bed and subsoil (Article 2 (2), 1982). The sovereignty over the
territorial sea is exercised subject to this Convention and to other rules of international law (Article
2 (3), 1982). According to article 3 of the 1982 Convention, every State has the right to establish the
breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines
determined in accordance with this Convention. The width of the territorial sea is defined from the
low water mark around the coasts of the state. In the area of territorial sea, the coastal state shall have
its exclusive jurisdiction. But the other states shall enjoy an exceptional right named as “right of
innocent passage”.

Right of Innocent Passage: Explanation of the Idea

Article 17 of the 1982 Convention deals with the right of innocent passage of states and provides
that, subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of
innocent passage through the territorial sea. The 1982 Convention also contains provisions regarding
the meaning of ‘passage’ which in its article 18 (1) states that, passage means navigation through the
territorial sea for the purpose of: a) traversing that sea without entering internal waters or calling at
a roadstead or port facility outside internal waters; or b) proceeding to or from internal waters or a
call at such roadstead or port facility. Passage shall be continuous and expeditious. Passage includes
stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are
rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons,
ships or aircraft in danger or distress (Article 18 (2)). Conversely, article 19 (1) provides the meaning
of ‘innocent passage’ and accordingly states that, passage is innocent so long as it is not prejudicial
to the peace, good order or security of the coastal State. Such passage shall take place in conformity
with this Convention and with other rules of international law. The right to innocent passage shall no
more remain innocent if the peace and security of the territorial sea of the coastal state is hampered
by any act of the foreign vessel (Article 19 (2) (a) - (i), 1982).

Obligations of the Coastal State

The coastal state has some obligations regarding the innocent passage under the 1982 Convention.
For instance, the coastal state shall enact necessary legislations regarding the right to innocent
passage (Article 21(1)-(4), 1982). That is to say, the obligation to ensure the security of innocent
passage lies upon the coastal state (Article 22(1)). Again, article 25 deals with the rights of protection
of the coastal State which states in its sub article (1) that, the coastal State may take the necessary
steps in its territorial sea to prevent passage which is not innocent. The coastal State may, without
discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its
territorial sea, the innocent passage of foreign ships if such suspension is essential for the protection
of its security, including weapons exercises. Such suspension shall take effect only after having been
duly published (Article 25(3)).

Coastal States’ Criminal Jurisdiction: Vessels in Innocent Passage

Article 27 deals with the provisions regarding the criminal jurisdiction on board a foreign ship and
provides in its sub-article (1) that, the criminal jurisdiction of the coastal State should not be exercised
on board a foreign ship passing through the territorial sea to arrest any person or to conduct any
investigation in connection with any crime committed on board the ship during its passage, save only
in the following cases:
a) If the consequences of the crime extend to the coastal State;
b) If the crime is of a kind to disturb the peace of the country or the good order of the territorial
sea;
 c) If the assistance of the local authorities has been requested by the master of the ship or by
a diplomatic agent or consular officer of the flag State; or
d) If such measures are necessary for the suppression of illicit traffic in narcotic drugs or
psychotropic substances.
The above provisions do not affect the right of the coastal State to take any steps authorized by its
laws for the purpose of an arrest on board a foreign ship passing through the territorial sea after
leaving internal waters (Article 27 (2), 1982). In considering whether or in what manner an arrest
should be made, the local authorities shall have due regard to the interests of navigation (Article 27
(4)).

Civil Jurisdiction of the of the Coastal State over the Vessels in Innocent Passage

Ships at anchor in the territorial state.

The rules considered above apply to ships which are exercising the right of innocent passage.
Anchoring, which incidental to ordinary navigation or are rendered necessary by force majeure are
part of innocent passage. However, ships that hovering in territorial sea may be treated in the same
way as ships in internal waters and subject to the full sovereignty of the coastal state.

Immunity from Jurisdiction

In article 32 of UNCLOS reaffirms the immunities under international law of war ships and other
government ships operated for non – commercial purpose. However, both warship and other
government operated non-commercial ships are subject to the legislative of the coastal State, it being
only the enforcement of law against them which is precluded by reason of their immunity. Therefore,
they are under the obligation to respect the coastal state law. Article 31 of UNCLOS, flag state shall
bear international responsibility for any damage to coastal state resulting from the non-compliance
by these ships with the laws of the coastal state.

Jurisdiction with regard to artificial islands

Enforcement measures against non-innocent passage. Not all breaches of innocent passage may
involve violation of the laws of coastal state. In article 25 of UNCLOS, the coastal state may take
necessary steps to prevent non-innocent passage. If the innocent passage does not involve any
infringement of the coastal state’s law the right to exclude the offending vessel from the territorial
sea may be alternative to arrest the ship and institute proceeding before national court. State may
enjoy a right of self-defense in international law against any attack by foreign vessels.

Article 28 of the 1982 Convention deals with the civil jurisdiction of the coastal state in relation to
foreign ships which states as follows:
1) The coastal State should not stop or divert a foreign ship passing through the territorial sea
for the purpose of exercising civil jurisdiction in relation to a person on board the ship.
2) The coastal State may not levy execution against or arrest the ship for the purpose of any
civil proceedings, save only in respect of obligations or liabilities assumed or incurred by
the ship itself in the course or for the purpose of its voyage through the waters of the coastal
State.
3) Para (2) is without prejudice to the right of the coastal State, in accordance with its laws,
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.
Provisions Regarding War Ships and Other Non-Trading Ships
Article 30 deals with the provisions regarding non-compliance by warships with the laws and
regulations of the coastal State and reveals that, if any warship does not comply with the laws and
regulations of the coastal State concerning passage through the territorial sea and disregards any
request for compliance therewith which is made to it, the coastal State may require it to leave the
territorial sea immediately. According to article 31, the flag State shall bear global obligation for any
loss or damage to the coastal State resulting from the non-compliance by a warship or other
government ship operated for non-commercial purposes with the laws and regulations of the coastal
State concerning passage through the territorial sea or with the provisions of this Convention or other
rules of international law. The responsibility to keep the passage innocent is always of the coastal
state.

The Contiguous Zone

The concept of contiguous zone was virtually formulated as an authoritative and consistent doctrine
in the 1930s by the French writer Gidel, and it appeared in the 1958 Convention on the Territorial
Sea. Contiguous zone is that part of the sea which is beyond and adjacent to the territorial sea of the
coastal state. It may not extend beyond 24 miles from which the width of the territorial sea is
measured. The use of contiguous zones gives the coastal state an additional area of jurisdiction for
limited purposes. Article 33 of the 1982 Convention deals with contiguous zone and reveals in its
sub-article (1) that, in a zone contiguous to its territorial sea, described as the contiguous zone, the
coastal State may exercise the control necessary to:
a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations
within its territory or territorial sea;
b) punish infringement of the above laws and regulations committed within its territory or
territorial sea.
The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the
breadth of the territorial sea is measured (Article 33 (2)). Again, article 24 (1) of the 1958 Convention
also states that, in a zone of the high seas contiguous to its territorial sea, the coastal State may
exercise the control necessary to:
a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its
territory or territorial sea;
b) Punish infringement of the above regulations committed within its territory or territorial
sea.
Jurisdiction of the Coastal State in the Contiguous Zone
If the coastal state notices that another state or person is violating its rights, or fleeing after
committing any crime, or hampering the law and order situations in the contiguous zone area of the
coastal state, then it has jurisdiction to prosecute and punish the perpetrator state. The relevant case
in this respect is the Re Martinez Case (1959). The fact of the case was as follows: Under Article 2
of the Italian law of the sea (Maritime Code), from the baseline to 6 nautical miles area is Custom
Zone and the next 6 nautical miles area is Vigilance Zone. Martinez involved himself in smuggling
in the 9 kilometres area far from the base line of Italy. The Italian authority attempted to arrest him
and fired him but he then escaped in 54 nautical miles in the sea. But ultimately he was captured by
the Italian authority and his trial was commenced. Martinez argued that he has committed smuggling
outside the territorial sea of Italy and he was arrested unlawfully. For this reason, Italy has no
jurisdiction to try him. The prime issue in this case was, whether Italy has any jurisdiction to
prosecute Martinez? The Appellate Court held that, the Italian Court has the jurisdiction to prosecute
Martinez. The Court has the reasoning in this case that; the Vigilance Zone was made by Italy in
order to maintain the security and good order in the coastal area and mainly to prevent smuggling in
the coastal area.

Exclusive Economic Zone (EEZ) or Patrimonial Sea

The concept of Exclusive Economic Zone (EEZ) or Patrimonial Sea was for the first time advocated
by Kenya in the Asian-African Legal Consultative Committee at its Colombo Session held January,
1971. Article 55 of the 1982 convention provides that, the EEZ is an area beyond and adjacent to the
territorial sea, subject to the specific legal regime established in this Part, under which the rights and
jurisdiction of the coastal State and the rights and freedoms of other States are governed by the
relevant provisions of this Convention. The EEZ is a belt of sea, adjacent to the coast, extending up
to 200 miles from the baselines of the territorial sea. Within this area, the coastal state is given
“sovereign rights” for the purpose of exploring and exploiting the living and non-living natural
resources of the sea. Article 57 deals with the breadth of the exclusive economic zone and states that
the exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured.

Here the case is the Fisheries Jurisdiction Case (USA and Germany vs. Iceland; ICJ, 1974). In
this case,
1. In 1958 following the Geneva Conference, Iceland declared a 12 nautical miles exclusive
fisheries zone and the UK accepted it in 1961.
2. On 1st September, 1972 Iceland announced 50 miles of its water territory for the
conservation of economic zone measured from straight baseline close to all fisheries
vessels.
3. On 14th April, 1972 the UK unilaterally inaugurated proceeding before the ICJ claiming
that Iceland was not entitled to the unilateral extension of the zone.
4. The UK further said that the conservation of fish stock of Iceland should be subject to
bilateral arrangements between the two States.
5. At that time, the court received another issue concerning the similar German-Iceland
dispute. The Court joined them together.
In this case, the core issue before the Court was, whether Iceland was entitled to the unilateral
extension of its economic zone 50 nautical miles beyond its territorial water?

The court by 10 to 4 votes held that Iceland was not entitled to declare unilaterally an exclusive
fisheries zone of 50 nautical miles beyond its territorial water. The governments of Iceland, the UK
and West Germany were under an obligation to negotiate an equitable solution among them. The
decision further said that the preferential rights of Iceland, the UK and West Germany should be
taken into account in the negotiation. The reasoning in this case was that, the ICJ first established the
principle of “preferential rights” over the particular regime of the sea. The Court held that, 90 percent
foreign currency of Iceland is earned from fishing. In fact, the total economy of Iceland depends on
the fishing. For this reason Iceland was given the preferential right over that particular zone.

The Court found that the unilateral declaration of 50 nautical miles Exclusive Economic Zone (EEZ)
neither legal nor illegal under the principle of international law. When the hearing of the case was
going on before the ICJ, then the argument about the declaration of EEZ over the contiguous zone
became the top issue of discussion regarding the delimitation of the international maritime area. For
that reason many states claimed their right to fishing over 200 nautical miles towards the high seas.
Finally this matter was emphasized and incorporated in the 1982 Convention and it was enacted that
the EEZ shall extend to 200 nautical miles from the baseline of the coastal state, which was the
reflection of the “creeping annexation rule” in international law. In Bangladesh context, the
notification of 16th April, 1974 declared that the EEZ of Bangladesh would extend to 200 nautical
miles from the base line.

Coastal State and Non-Coastal State: Rights and Obligations

Article 56 contains provisions regarding the rights, jurisdiction and duties of the coastal State in the
EEZ. Article 56 (1) states that, in the EEZ, the coastal State has:
a) Sovereign rights for the purpose of exploring and exploiting, conserving and managing
the natural resources, whether living or non-living, of the waters superjacent to the seabed
and of the seabed and its subsoil, and with regard to other activities for the economic
exploitation and exploration of the zone, such as the production of energy from the water,
currents and winds;
b) Jurisdiction as provided for in the relevant provisions of this Convention with regard to:
i) The establishment and use of artificial islands, installations and structures;
ii) Marine scientific research;
iii) The protection and preservation of the marine environment.
Again, article 58 of the 1982 Convention deals with the rights and duties of other States in the EEZ
which states that, in the exclusive economic zone, all States, whether coastal or land-locked, enjoy,
subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of
navigation and over flight and of the laying of submarine cables and pipelines, and other
internationally lawful uses of the sea related to these freedoms, e.g., those associated with the
operation of ships, aircraft and submarine cables and pipelines, and compatible with the other
provisions of this Convention ( Article 58 (1), 1982 ).

Relevant Articles of UNCLOS, 1982 on EEZ

Article 56
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
1. In the exclusive economic zone, the coastal State has:
a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, of the waters superjacent to the seabed and
of the seabed and its subsoil, and with regard to other activities for the economic
exploitation and exploration of the zone, such as the production of energy from the water,
currents and winds;
b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i) the establishment and use of artificial islands, installations and structures;
 (ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
c) Other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the exclusive
economic zone, the coastal State shall have due regard to the rights and duties of other
States and shall act in a manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in
accordance with Part VI.
Article 58
Rights and duties of other States in the exclusive economic zone
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject
to the relevant provisions of this Convention, the freedoms referred to in article 87 of
navigation and overflight and of the laying of submarine cables and pipelines, and other
internationally lawful uses of the sea related to these freedoms, such as those associated
with the operation of ships, aircraft and submarine cables and pipelines, and compatible
with the other provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive
economic zone in so far as they are not incompatible with this Part.
3. In exercising their rights and performing their duties under this Convention in the exclusive
economic zone, States shall have due regard to the rights and duties of the coastal State and
shall comply with the laws and regulations adopted by the coastal State in accordance with
the provisions of this Convention and other rules of international law in so far as they are
not incompatible with this Part.
Article 59
Basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in the
exclusive economic zone
In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other
States within the exclusive economic zone, and a conflict arises between the interests of the coastal
State and any other State or States, the conflict should be resolved on the basis of equity and in the
light of all the relevant circumstances, taking into account the respective importance of the interests
involved to the parties as well as to the international community as a whole.
Article 60
Artificial islands, installations and structures in the exclusive economic zone
1. In the exclusive economic zone, the coastal State shall have the exclusive right to construct
and to authorize and regulate the construction, operation and use of:
a) artificial islands;
b) installations and structures for the purposes provided for in article 56 and other
economic purposes;
c) installations and structures which may interfere with the exercise of the rights of the
coastal State in the zone.
2. The coastal State shall have exclusive jurisdiction over such artificial islands, installations
and structures, including jurisdiction with regard to customs, fiscal, health, safety and
immigration laws and regulations.
3. Due notice must be given of the construction of such artificial islands, installations or
structures, and permanent means for giving warning of their presence must be maintained.
 Any installations or structures which are abandoned or disused shall be removed to ensure
safety of navigation, taking into account any generally accepted international standards
established in this regard by the competent international organization. Such removal shall
also have due regard to fishing, the protection of the marine environment and the rights
and duties of other States. Appropriate publicity shall be given to the depth, position and
dimensions of any installations or structures not entirely removed.
4. The coastal State may, where necessary, establish reasonable safety zones around such
artificial islands, installations and structures in which it may take appropriate measures to
ensure the safety both of navigation and of the artificial islands, installations and structures.
5. The breadth of the safety zones shall be determined by the coastal State, taking into account
applicable international standards. Such zones shall be designed to ensure that they are
reasonably related to the nature and function of the artificial islands, installations or
structures, and shall not exceed a distance of 500 metres around them, measured from each
point of their outer edge, except as authorized by generally accepted international standards
or as recommended by the competent international organization. Due notice shall be given
of the extent of safety zones.
6. All ships must respect these safety zones and shall comply with generally accepted
international standards regarding navigation in the vicinity of artificial islands,
installations, structures and safety zones.
7. Artificial islands, installations and structures and the safety zones around them may not be
established where interference may be caused to the use of recognized sea lanes essential
to international navigation.
8. Artificial islands, installations and structures do not possess the status of islands. They have
no territorial sea of their own, and their presence does not affect the delimitation of the
territorial sea, the exclusive economic zone or the continental shelf.
Article 69
Right of land-locked States
1. Land-locked States shall have the right to participate, on an equitable basis, in the
exploitation of an appropriate part of the surplus of the living resources of the exclusive
economic zones of coastal States of the same subregion or region, taking into account the
relevant economic and geographical circumstances of all the States concerned and in
conformity with the provisions of this article and of articles 61 and 62.
2. The terms and modalities of such participation shall be established by the States concerned
through bilateral, subregional or regional agreements taking into account, inter alia:
a) the need to avoid effects detrimental to fishing communities or fishing industries of
the coastal State;
b) the extent to which the land-locked State, in accordance with the provisions of this
article, is participating or is entitled to participate under existing bilateral,
subregional or regional agreements in the exploitation of living resources of the
exclusive economic zones of other coastal States;
c) the extent to which other land-locked States and geographically disadvantaged
States are participating in the exploitation of the living resources of the exclusive
economic zone of the coastal State and the consequent need to avoid a particular
burden for any single coastal State or a part of it;
d) the nutritional needs of the populations of the respective States.
 3. When the harvesting capacity of a coastal State approaches a point which would enable it
to harvest the entire allowable catch of the living resources in its exclusive economic zone,
the coastal State and other States concerned shall cooperate in the establishment of
equitable arrangements on a bilateral, subregional or regional basis to allow for
participation of developing land-locked States of the same subregion or region in the
exploitation of the living resources of the exclusive economic zones of coastal States of the
subregion or region, as may be appropriate in the circumstances and on terms satisfactory
to all parties. In the implementation of this provision the factors mentioned in paragraph 2
shall also be taken into account.
4. Developed land-locked States shall, under the provisions of this article, be entitled to
participate in the exploitation of living resources only in the exclusive economic zones of
developed coastal States of the same subregion or region having regard to the extent to
which the coastal State, in giving access to other States to the living resources of its
exclusive economic zone, has taken into account the need to minimize detrimental effects
on fishing communities and economic dislocation in States whose nationals have habitually
fished in the zone.
5. The above provisions are without prejudice to arrangements agreed upon in subregions or
regions where the coastal States may grant to land-locked States of the same subregion or
region equal or preferential rights for the exploitation of the living resources in the
exclusive economic zones.
Article 70
Right of geographically disadvantaged States
Article 71
Non-applicability of articles 69 and 70
The provisions of articles 69 and 70 do not apply in the case of a coastal State whose economy is
overwhelmingly dependent on the exploitation of the living resources of its exclusive economic zone.
Article 72
Restrictions on transfer of rights
1. Rights provided under articles 69 and 70 to exploit living resources shall not be directly or
indirectly transferred to third States or their nationals by lease or licence, by establishing
joint ventures or in any other manner which has the effect of such transfer unless otherwise
agreed by the States concerned.
2. The foregoing provision does not preclude the States concerned from obtaining technical
or financial assistance from third States or international organizations in order to facilitate
the exercise of the rights pursuant to articles 69 and 70, provided that it does not have the
effect referred to in paragraph 1.
Article 73
Enforcement of laws and regulations of the coastal State
1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve
and manage the living resources in the exclusive economic zone, take such measures,
including boarding, inspection, arrest and judicial proceedings, as may be necessary to
ensure compliance with the laws and regulations adopted by it in conformity with this
Convention.
2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable
bond or other security.
 3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive
economic zone may not include imprisonment, in the absence of agreements to the contrary
by the States concerned, or any other form of corporal punishment.
4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the
flag State, through appropriate channels, of the action taken and of any penalties
subsequently imposed.
Article 74
Delimitation of the exclusive economic zone between States with opposite or adjacent coasts
1. The delimitation of the exclusive economic zone between States with opposite or adjacent
coasts shall be effected by agreement on the basis of international law, as referred to in
Article 38 of the Statute of the International Court of Justice, in order to achieve an
equitable solution.
2. If no agreement can be reached within a reasonable period of time, the States concerned
shall resort to the procedures provided for in Part XV.
3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of
understanding and cooperation, shall make every effort to enter into provisional
arrangements of a practical nature and, during this transitional period, not to jeopardize or
hamper the reaching of the final agreement. Such arrangements shall be without prejudice
to the final delimitation.
4. Where there is an agreement in force between the States concerned, questions relating to
the delimitation of the exclusive economic zone shall be determined in accordance with the
provisions of that agreement.
Article 75
Charts and lists of geographical coordinates
1. Subject to this Part, the outer limit lines of the exclusive economic zone and the lines of
delimitation drawn in accordance with article 74 shall be shown on charts of a scale or
scales adequate for ascertaining their position. Where appropriate, lists of geographical
coordinates of points, specifying the geodetic datum, may be substituted for such outer
limit lines or lines of delimitation.
2. The coastal State shall give due publicity to such charts or lists of geographical coordinates
and shall deposit a copy of each such chart or list with the Secretary-General of the United
Nations.
Continental Shelf

Delimitation of Continental Shelf

The continental shelf is measures in a two fold manner:

1. If geographical continental margin does not naturally extend upto 200 nm, the continental
shelf will be up to 200 nm from the baseline (A. 76(1))
2. If geographical continental margin extends beyond 200 nm from the baseline, the outer edge
of the continental shelf will be measured as follows-
(i) A line drawn according to the thickness of the sedimentary rocks
(ii) A line drawn connecting fixed points (A. 76 (7)) not exceeding 60 nm from the foot
of the continental slope. (A. 76(4) (ii))
Note: the above measured lines should not extend-
(i) 350 nm from the baseline.
(ii) (ii) 100 nm from the 2500 metre Isobaths

The term “continental shelf” is usually meant that part of the continental border which is between
the shelf break and shoreline or, where there is no clear slope between the shoreline and the point
where the depth of the superjacent water is around between 100 to 200 meters (UN, 2012).
Continental shelf is a geological expression referring to the ledges that project from the continental
land mass into the seas and which are covered with only a relatively shallow layer of water and which
eventually fall away into the ocean depths. It is an underwater landmass that extends from a continent,
resulting in an area of relatively shallow water known as a shelf sea and a region adjoining the
coastline of a continent, where the ocean is no more than a few hundred feet deep.
The legal concept of continental shelf came into attention since Truman Proclamation of 1945
wherein it was declared that the USA considered the resources of the shelf contiguous to the USA as
appurtenant to the US and subject to its jurisdiction and control. Article 76 (1) of the 1982 UN
Convention defines “continental shelf” as follows:
“The continental shelf of a coastal State comprises the seabed and subsoil of the submarine
areas that extend beyond its territorial sea throughout the natural prolongation of its land
territory to the outer edge of the continental margin, or to a distance of 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured where the outer
edge of the continental margin does not extend up to that distance” (Article 76 (1), 1982).
Where the continental margin extends beyond 200 miles, the Convention provides that the
continental shelf should not extend more than 350 nautical miles from the baselines or 100 nautical
miles from the 2500 meter depth. Again, the Convention on the Continental Shelf (1958) defined the
“continental shelf” in the following terms:
“The continental shelf is (a) the seabed and sub-soil of the submarine areas adjacent to the
coast but outside the territorial sea to a depth of 200 meters or ‘beyond that limit to where
the depth of the superjacent waters admits of the exploration of the natural resources of the
said areas’; (b) to the seabed and sub-soil of similar submarine areas adjacent to the coast
of island” (Article 1, 1958).

Rights of the Coastal State over the Continental Shelf

Article 77 of the 1982 Convention deals with the rights of the coastal State over the continental shelf
and states:
1) The coastal State exercises over the continental shelf sovereign rights for the purpose of
exploring it and exploiting its natural resources.
2) The rights are exclusive in the sense that if the coastal State does not explore the continental
shelf or exploit its natural resources, no one may undertake these activities without the
express consent of the coastal State.
3) The rights of the coastal State over the continental shelf do not depend on occupation,
effective or notional, or on any express proclamation.
4) The natural resources consist of the mineral and other non-living resources of the seabed
and subsoil together with living organisms belonging to sedentary species, that is to say,
organisms which, at the harvestable stage, either are immobile on or under the seabed or
are unable to move except in constant physical contact with the seabed or the subsoil.
The Convention expressly states that the rights of the coastal state do not affect the status of the
superjacent waters as high seas, or that of the airspace above the waters (Article 78 of UN
Convention, 1982 and article 3 of UN Convention, 1958). The question of the delimitation of the
continental shelf has occasioned considerable debate and practice from the 1958 and 1982
Conventions to case laws and a variety of treaties. Most difficulties in this area are indeed resolved
by agreement and the guiding principle of international law now is that disputes over continental
shelf boundaries are to be settled by agreement in accordance with equitable principles. As regards
the delimitation of the continental shelf between States with opposite or adjacent coasts, the
Convention provides that it should be effected by agreement on the basis of international law; if no
agreement can be reached within a reasonable period of time, the concerned States should resort to
the procedures of settlement of disputes provided for in the Convention. From the various disputes
among the states regarding the delimitation of the continental shelf, two significant principles have
evolved in international law: a) Principle of Equidistance; and b) Principle of equity. Article 6 of the
1958 convention declared that in the absence of agreement and unless another boundary line was
justified by special circumstances, the boundary should be determined “by application of the
principle of equidistance from the nearest points of the baselines from which the width of the
territorial sea of each state is measured.” These two major principles are discussed below in the light
of various cases of the international law of the sea.

Article 79
Submarine cables and pipelines on the continental shelf
1. All States are entitled to lay submarine cables and pipelines on the continental shelf, in accordance
with the provisions of this article.
2. Subject to its right to take reasonable measures for the exploration of the continental shelf, the
exploitation of its natural resources and the prevention, reduction and control of pollution from
pipelines, the coastal State may not impede (delay) the laying or maintenance of such cables or
pipelines.
3. The delineation of the course for the laying of such pipelines on the continental shelf is subject to
the consent of the coastal State.
4. Nothing in this Part affects the right of the coastal State to establish conditions for cables or
pipelines entering its territory or territorial sea, or its jurisdiction over cables and pipelines
constructed or used in connection with the exploration of its continental shelf or exploitation of its
resources or the operations of artificial islands, installations and structures under its jurisdiction.
5. When laying submarine cables or pipelines, States shall have due regard to cables or pipelines
already in position. In particular, possibilities of repairing existing cables or pipelines shall not be
prejudiced.
Article 82
Payments and contributions with respect to the exploitation of the continental shelf beyond 200
nautical miles
1. The coastal State shall make payments or contributions in kind in respect of the exploitation of the
non-living resources of the continental shelf beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured.
2. The payments and contributions shall be made annually with respect to all production at a site after
the first five years of production at that site. For the sixth year, the rate of payment or contribution
shall be 1 per cent of the value or volume of production at the site. The rate shall increase by 1 per
cent for each subsequent year until the twelfth year and shall remain at 7 per cent thereafter.
Production does not include resources used in connection with exploitation.
3. A developing State which is a net importer of a mineral resource produced from its continental
shelf is exempt from making such payments or contributions in respect of that mineral resource.
4. The payments or contributions shall be made through the Authority38, which shall distribute them
to States Parties to this Convention, on the basis of equitable sharing criteria, taking into account the

38
Article 1 (2) of UNCLOS- "Authority" means the International Seabed Authority;
interests and needs of developing States, particularly the least developed and the land-locked among
them.
Article 83
Delimitation of the continental shelf between States with opposite or adjacent coasts
1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be
effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of
the International Court of Justice, in order to achieve an equitable solution.
2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort
to the procedures provided for in Part XV. (Settlement of Disputes)
3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of
understanding and cooperation, shall make every effort to enter into provisional arrangements of a
practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the
final agreement. Such arrangements shall be without prejudice to the final delimitation.
4. Where there is an agreement in force between the States concerned, questions relating to the
delimitation of the continental shelf shall be determined in accordance with the provisions of that
agreement.

In the North Sea Continental Shelf Case (1969) (Federal Republic of Germany vs. Denmark
and Netherlands; ICJ), there were two bilateral agreements between the Federal Republic of
Germany and the Netherlands and between the Federal Republic of Germany and Denmark. The two
agreements were signed in 1964 and 1965 respectively and did no more that drawing a diving line
for a short distance from the coastline beginning at the point at which the land boundary of the two
States concerned was located. Further agreement for delimitation of their portion in the North Sea
Continental Shelf had proved impossible and the parties of the said agreements put the dispute
separately to the ICJ. Issues of this case were:
1) Which principle of international law shall be applied by the parties in the delimitation of
water boundary?
2) Whether the provisions of Article 6 of the Geneva Convention on the Continental Shelf,
1958 (established on the principle of equidistance) shall be applicable on a State like
Germany?
The principle of equidistance is not applicable on the parties. The Court decided this case on the basis
of equitable principle and the judgment goes in favor of Denmark and Netherlands. In this case the
ICJ ruled against the existence of a customary rule which the Court in an earlier decision affirmed
that the division of a common continental shelf of an adjacent country must be divided according to
the equidistance principle. The reasoning in this was that, as Germany did not ratify the Geneva
Convention on the Continental Shelf of 1958, it is not bound to comply with the provisions of the
convention. But after considering the matter, the court invented the new “principle of equity” in this
case.
Another important case is the Anglo-French Continental Shelf Case (1978) (UK vs. France; ICJ).
In this case, after the long attempt of about ten years (from 1964-75), both the UK and France have
failed to determine the area of their continental shelf. In 1975 a bilateral treaty was signed between
them that, this matter shall be decided in the ICJ. Thus the ICJ has determined the area in Geneva in
June, 1977. The main issue in the case was―on the basis of which principle or law the area of the
continental shelf of both the States shall be determined? The ICJ delivered its decision on the basis
of the principle of equity. The reasoning before the Court was that, it is not mandatory that the article
6 of the Geneva Convention on the Continental Shelf, 1958 (the principle of equidistance) must be
applied in this case and for this reason a new principle, i.e., the principle of equity is applied here.
Again, in the Tunisia-Libya Continental Shelf Case (1982) (ICJ), a dispute arose between Tunisia
and Libya in respect of delimitation of the respective area of continental shelf appertaining to each
on the basis of the geology, physiographic and bathymetry. On 10th June, 1977 both Tunisia and
Libya entered into a treaty to go before the ICJ for the delimitation of the respective area of
continental shelf. The ICJ was requested to deliver a judgment and it did so. But Tunisia filed a
revision against the judgment of ICJ and the Revision Court upheld the previous judgment. Whether
the Geneva Convention on the Continental Shelf, 1958 or the customary international law shall be
applicable in deciding the case was the main issue in this case, as none of the States did ratify the
Convention of 1958. The judgment of this case was delivered on the basis of the equitable principle.
By a majority of ten to four votes the Court held that the delimitation method to be applied according
to the principle of equity taking into account of all the relevant circumstances.
The Libya-Malta Continental Shelf Case (1985) is another significant case in this regard where a
dispute arose between Libya and Malta in respect of delimitation of the areas of the continental shelf
between Malta and Libya. Both the States were the signatory of the 1982 UN Convention on the Law
of the Sea. But Libya was not a party to the 1958 Convention though Malta was. The main issue
before the court was, whether article 6 (2) of the1958 Convention or the customary international law
shall be applicable in deciding the case? Both of the States were signatory of the UN Convention on
the Law of the Sea, 1982. By a majority of 14 to 3 votes the court held that the delimitation is to be
applied in accordance with the principles of equidistance. In this case the ICJ followed the principle
of equidistance for delimitation. Both the principles of equity and equidistance are applicable but it
depends upon the peculiar geographical situation of the coastal state in concern. The Court said in
this case an equitable result may be achievable by drawing a line of which every point is equidistant
from the low water mark of the coast.
The High Seas
The main stream of Grotian theory was that the high sea is res communis as it is physically impossible
to take possession of it. Scelle has argued that the character of high sea can be compared to public
parks or beaches or any open public place available to the public for general use under the domestic
law. Fenwick opines that high sea or open sea is the sea outside the territorial waters. The high seas
were defined in article 1 of the 1958 Geneva Convention on the High Seas as all parts of the sea that
were not included in the territorial sea or in the internal waters of a state. In the view of recent
developments, this definition has become very absolute and inadequate. This provision mainly
replicates the customary international law, though in consequence of the developments the definition
in article 86 of the 1982 Convention includes: “...all parts of the sea that are not included in the EEZ,
in the territorial sea or internal waters of a State, or in the archipelagic waters of an archipelagic
State...”. Article 87 of the 1982 Convention provides that high seas are open to all states and that the
freedom of the high seas is exercised under the conditions laid down in the Convention and by other
rules of international law.

Freedoms of the High Sea: Explanation of the Idea

In opposition to the principle of maritime sovereignty, the principle of the “freedom of the high seas”
began to develop, as Hall has pointed out, in accordance with the mutual and obvious interests of the
maritime nations. Article 2 of the Geneva Convention on the High Seas, 1958 provides that the
freedom of the high seas comprises inter alia, both for the coastal and non-coastal states. There are
four freedoms as has been mentioned in this Convention:
1) freedom of navigation,
2) freedom of fishing,
3) freedom to lay submarine cables and pipelines, and
4) Freedom to fly over the high seas.
These freedoms and others which are recognized by the general principles of international law shall
be exercised by all states with regard to the interests of other states. In article 87 of the 1982
Convention two more freedoms were inserted. The freedoms of high seas expressly enumerated in
article 87 (1) of the Convention are following:
a) freedom of navigation;
b) freedom of over flight;
c) freedom to lay submarine cables and pipelines;
d) freedom to construct artificial islands and other installations permitted under international
law;
e) freedom of fishing;
f) freedom of scientific research.
Article 87 (2) of the Convention states that, these freedoms shall be exercised by all States with due
regard for the interests of other States in their exercise of the freedom of the high seas, and also with
due regard for the rights under this Convention with respect to activities in the area. It is further
provided that, the high seas shall be reserved for peaceful purposes (Article 88, 1982).
No State may lawfully purport to subject any part of the high seas to its sovereignty (Article 89,
1982). Grotius, the father of international law was one of the first strenuously to attach the extensive
claims to freedoms and sovereignty. His objections, as reflected in his famous book Mare Liberum,
were based predominantly upon two grounds: 1) No ocean can be the property of a nation as it is
impossible for any nation effectively to take it into possession by occupation; and 2) Nature does not
give a right to anybody to appropriate things that may be used by everybody and are exhaustible. In
other words, open sea is a res gentium or res extra commercium.

Freedom of the Navigation in the High Sea

The freedom of navigation is a traditional and well established feature of the doctrine of the high
seas, as is the freedom of fishing. Article 90 of the 1982 Convention contains provisions regarding
right of navigation which reveals that, every State, whether coastal or land-locked, has the right to
sail ships flying its flag on the high seas. Every State shall fix the conditions for the grant of its
nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships
have the nationality of the State whose flag they are entitled to fly. There must be the existence of a
genuine link between the State and the ship (Article 91 (1), 1982).
Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for
in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high
seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a
real transfer of ownership or change of registry (Article 92 (1)). A ship which sails under the flags
of two or more States, using them according to convenience, may not claim any of the nationalities
in question with respect to any other State, and may be assimilated to a ship without nationality
(Article 92 (2), 1982). The preceding articles do not prejudice the question of ships employed on the
official service of the UN, its specialized agencies or the International Atomic Energy Agency
(IAEA), flying the flag of the organization (Article 93, 1982). Every State shall effectively exercise
its jurisdiction and control in administrative, technical and social matters over ships flying its flag
(Article 94 (1)).

Right to Hot Pursuit

An exception to the exclusive jurisdiction of the flag state over a vessel in the high seas is the right
of hot pursuit. The right of hot pursuit of a foreign vessel is a principle designed to ensure that a
vessel which has infringed the rules of a coastal state cannot escape punishment by fleeing to the
high seas. In reality it means that in certain defined circumstances a coastal state may extend its
jurisdiction onto the high seas in order to pursue and seize a ship which is suspected of infringing its
laws. The right, which has been developing in one form or another since the 19th century, was
comprehensively elaborated in article 111 of the 1982 Convention, building upon article 23 of the
1958 High Seas Convention. Hot pursuit of a foreign vessel may be undertaken if there is good reason
to believe that the vessel has violated the laws and regulations of the coastal state, but it must be
commenced when the vessel or one of its boats is within the internal waters, archipelagic waters, the
territorial sea or the contiguous zone, and may only be continued outside the territorial sea or
contiguous zone if the pursuit has not been interrupted.
Pursuit is permissible only by the warships or military aircraft or other vessels or aircraft clearly
marked and identifiable as being on government service and authorized to that effect. Right of hot
pursuit only begins when the pursuing ship has satisfied itself that the ship pursued or one of its boats
is within the limits of the territorial sea or as the case may be in the contiguous zone, or EEZ or on
the continental shelf (Article 111 (1), 1982). Article 23 of the 1958 Convention states that, if any
warship does not comply with the regulations of the coastal State concerning passage through the
territorial sea and disregards any request for compliance which is made to it, the coastal State may
require the warship to leave the territorial sea. The right to hot pursuit ceases as soon as the vessel
pursued has entered the territorial waters of its own or of a third state (Article 111 (3), 1982).
 There is also huge debate in international law as to how far shall the coastal state use this right to hot
pursuit. There is a famous case named I am Alone Case (1935) (Canada vs. USA) in this regard. In
this case, on 20th March, 1929 the “I am Alone”, a rum runner of Canadian registry, was seen by the
coast guard vessel Wolcott about 10.5 miles off the Louisiana coast, but within one hour sailing
distance from the coast. The “I am Alone” ship refused to stop sailing when ordered by the Wolcott.
Pursuit was taken up by the Dexter and Wolcott caught up with the “I am Alone” more than 200
miles off the coast of USA. After that when “I am Alone” refused to stop sailing the Dexter opened
fire. Consequently the “I am Alone” was sunk. All but one person was rescued. In order to settle the
dispute it was put before the two Commissioners appointed under the 1929 Convention. In this case,
the core issues before the court was:
1) whether the pursing of US vessel Wolcott after the “I am Alone” was a hot pursuit?
2) Whether the US pursuit was reasonable or proportionate to the threat shown by the “I am Alone”?
3) If it would not be hot pursuit, whether US will be liable to pay compensation?
The Commissioners held that the pursuing by the US vessel was not a hot pursuit. The opening fire
by Wolcott was not justifiable. Thus the USA was ordered to pay compensation to Canada.

THE CASE OF THE S.S. “LOTUS” (FRANCE V. TURKEY)

Background
 Case initiated by France to the Permanent Court of International Justice (PCIJ) in The
Hague which is the predecessor to the International Court of Justice.
 This case is well known for analysing the condition of jurisdiction.
 The judgment being in 1927, with the events that took place in 1926, the case was pre -
UNCLOS (United Nations Convention on the Law of the Sea of 1982),
Facts of the case as agreed by both parties:
 2nd August 1926, just before midnight, a collision occurred between the French steamship
named S.S. Lotus and the Turkish steamship named S.S. Boz-Kourt on the high seas.
 The S.S. Boz-Kourt was cut in two, sank, and eight Turkish nationals aboard died.
 Lotus attempted to save all passengers on board, who managed to save 10 persons.
 Lotus continued its course to Constantinople (now modern day Istanbul), and arrived there
on the 3rd August.
 The first officer and watch on board of the French ship was French citizen Monsieur
Demons.
 The captain of Boz-Kourt was Hassan Bey, who managed to be saved from the collision.
 On the 3rd August the Turkish police immediately started an investigation into th e
collision.
 On the 5th August M. Demons was requested by the Turkish authorities to give evidence.
 The Turkish authorities then arrested M. Demons, without notice given by the French
Consul-General and Hassan Bey.
 On the 28th August the case was heard by a court in Turkey, to which M. Demons argued
that Turkish courts have no jurisdiction. The Turkish court objected this argument.
 On September 11th, M. Demons demanded bail, to which it was granted on the 13th
September to the sum of 6,000 Turkish pounds.
 On September 15th, the Turkish court sentenced M. Demons to 80 days imprisonment and
a fine of 22 pounds. Hassan Bey was sentenced to a more severe penalty.
 The prosecutor of the Turkish court entered an appeal against the decision, to which
effectively suspended the execution of the sentence until a decision upon appeal had been
 made, however an agreement made on 12th October did not effect the criminal proceedings
against M. Demons in Turkey. According to France, M. Demons was imprisoned for 39
days.
 The action of the Turkish judicial authorities gave rise to diplomatic concern from the
French government. Both the French government and the Turkish government then agreed
for the case to be transferred to the PCIJ in The Hague.

Case
 The questions asked of the Court were:
o Has Turkey violated the principles of international law with improper use of jurisdiction,
and if so, what principles?
o If Turkey are found to violate these principles, what reparation is due to M. Demons, the
officer in command on board of Lotus at the time of the collision.

What did France say?

 France said criminal proceedings against M. Demons during which a collision occurred
belongs exclusively to France courts.
 France said Turkish authorities were wrong to prosecute M. Demons, and this therefore
violated international law on jurisdiction.
 The French government want reparation amounting to 6,000 Turkish pounds paid by the
Turkish government.

France furthermore argued that:

 As the practice of international law of civilised nations, a “st ate is not entitled..to extend
criminal jurisdiction of its courts to include a crime or offence committed by a foreigner
abroad solely in consequence of the fact that one of its nationals has been a victim of the
crime of offence. Putting it another way to reiterate this stance, international law does not
allow a state to take criminal proceedings against the foreign offender by reason of the
victim’s nationality.
 Acts performed on the high seas in the relevance of criminal proceedings are subject to the
courts of the nationality of the ship. Jurisdiction is given to the courts whose flag the vessel
flies. Putting it another way to reiterate this stance, international law recognises the
exclusive jurisdiction to the state of a vessel whose flag is flown. In the Court’s judgment,
they mentioned that this principle is not always universally accepted, the United Kingdom
refused the United States for the extradition of John Anderson, a British seaman who had
committed homicide on board an American vessel. The United Kingdom recognised the
jurisdiction of the United States but also mentioned the entitlement to exercise theirs.
 The nationality of the victim is not sufficient grounds to override the above rule.
 The act of the collision must be considered in the jurisdiction to which the ship applies.
 Jurisdiction cannot be transferred to the nationality of the vessel sunk.
 The fact that both ships are of different nationalities and collided together, jurisdiction
cannot be transferred from one ship to another, there is no such agreement of international
law to this effect.
 In order for a Turkish court to have jurisdiction, they should be able to point towards some
form of international law on jurisdiction in favour of Turkey.
 What did Turkey say?
 They argued to the court to give judgment in favour of the Turkish court.
 In addition to France’s argument, Turkey responded, inter alia, that:
 The place where the offence was committed was the S.S Boz-Kourt flying the Turkish flag,
and so Turkish Courts have jurisdiction of the offence.
 (A key argument) Article 15 of the Convention of Lausanne 1923 allows Turkey jurisdiction
whenever such jurisdiction does not come into conflict with a principle of international
law.
 Turkey has jurisdiction, and therefore no reparation should be paid by the Turkish
government to the French government.

Judgment
 There is no rule of international law that criminal proceedings occurring from collisions at
sea are exclusively within the jurisdiction of the state on whose flag the vessel is flown.
 This therefore means, in answer to the questions asked of the Court:
o Turkey has not violated principles of international law by instituting criminal proceedings
against M. Demons.
o As such there is no occasion to give judgment on reparation to France.

Important notice
 After this case, a convention was signed at Geneva in 1958 (the High Seas Convention)
that specifically addressed jurisdiction on collisions on the high seas under Article 11.
 Article 11, in three paragraphs state:
o 1. In the event of a collision at the high seas, no penal or disciplinary proceedings may be
instituted against the master or any service person of the ship other than the flag state of
the ship or the nationality of the person.
o 2. For disciplinary procedures, only the state issuer of a master’s licence have the ability
to withdraw it, even if the holder of the licence is not a national of the issuing state.
o 3. No arrest or detention of a ship can be ordered by any authorities other than the flag
state of the ship.
 Had this convention been in place before the time of the Lotus collision, the judgment of
the PCIJ would have been different. Turkey would not have had the jurisdiction to institute
criminal proceedings against M. Demons due to Article 11 paragraph 1.
 The exact wording of Article 11 is also included in the convention's successor, UNCLOS
(United Nations Convention of the Law of the Sea of 1982) under Article 97.
Lotus Principle
 This case highlighted what is known as the lotus principle in international law. This means
that states can do as they wish unless it is made explicit that it is prohibited in international
law.

The requirements of a lawful hot pursuit [Art. 111]

1) The hot pursuit of a foreign ship may be undertaken when the competent authorities of the
coastal state have good reason to believe that the ship has violated its laws and regulations
pertaining to any of its maritime zone.
 2) Such pursuit must be commenced when the foreign ship or one of its boats or other craft
working as a team and using the ship pursued as a mother ship is within the limits of the
particular maritime zone.
3) The pursuit may only be commenced after a visual or auditory signal to stop has been given
at a distance which enables it to be seen or heard by the foreign ship.
4) The pursuit must be continuous and uninterrupted.
5) The right may be exercised only by warships or military aircraft, or other ships or aircraft
clearly marked and identifiable as being on government service and authorised to that
effect.
6) The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its
own state or of a third state.
The M/V Saiga case (ITLOS) “The conditions for the exercise of the rt. of hot pursuit under Art.
111 of the Convention are cumulative; each of them has to be satisfied.” • The Tribunal found that
several of these conditions were not fulfilled. First, no laws or regulations of Guinea were violated
by the Saiga. …importing fuel oil into its ‘customs radius’, which extended to 250 kilometres from
the coast of Guinea. • The Tribunal found that the Convention did not empower a coastal state to
apply its customs laws in respect of any parts of the EEZ. • Saint Vincent and the Grenadines argued
that Guinea used excessive and unreasonable force in stopping and arresting the Saiga. • They
claimed that The Saiga was an unarmed tanker almost fully laden with gas oil, with a maximum
speed of 10 knots and Guinea fired at the ship with live ammunition, using solid shots from large-
calibre automatic guns.” • Held: “International law …requires that the use of force must be avoided
as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and
necessary in the circumstances. Considerations of humanity must apply • The normal practice used
to stop a ship at sea is first to give an auditory or visual signal to stop, using internationally recognized
signals. Where this does not succeed, a variety of actions may be taken, including the firing of shots
across the bows of the ship. It is only after the appropriate actions fail that the pursuing vessel may,
as a last resort, use force. Even then, appropriate warning must be issued to the ship and all efforts
should be made to ensure that life is not endangered.”

Use of force in hot pursuit

The Red Crusader case
Red crusader did not take heed of the order by a Danish Government vessel to stop for violation of
fisheries laws. After pursuing for half an hour, the Danish vessel fired a shot astern of the trawler
and another ahead, while signalling to stop. Fire was then opened on Red Crusader’s radar scanner
and lights, and eventually a shot hit the stern. All firing was by solid shot. “ The captain of Danish
vessel exceeded legitimate use of armed force on two counts: (a) firing without warning of solid gun-
shot; (b) creating danger to human life on board the Red Crusader without proved necessity.”

The focus of a significant case in international law, the Red Crusader was a Scottish trawler, which
was arrested in May 1961 by the Danish frigate Niels Ebbesen, for having illegally fished within the
boundaries of the fisheries around the Faeroe Islands (Danish: Færøerne), a Danish semi-autonomous
province.

A small Danish crew was put aboard the Red Crusader to guide it to port in the Faeroe Islands, but
the vessel nevertheless continued towards Aberdeen in Scotland, despite efforts on the part of the
Danish frigate to prevent this. Among other things, the Danish frigate fired warning shots across the
Red Crusader's bow.
To resolve the legal and political chaos caused by the affair, the governments of Great Britain and
Denmark agreed to the appointment of a neutral commission at the Hague to uncover the details of
the affair.
The commission filed its report in March 1962, and found no definitive proof that Red Crusader had
been engaged in poaching, although it had been apprehended clearly within the borders of the fishing
limit, with its trawl out. The commission also found that the Niels Ebbesen had exceeded the limits
for the reasonable use of force as sanctioned by the principles of international law.
The British and Danish governments subsequently agreed to settle the affair by dropping any and all
outstanding claims in the matter.

The affair of the Red Crusader is one of the only, if not the only case in international affairs where
states have agreed to settle a matter by letting a neutral commission clarify the facts, thus providing
an equitable basis for a settlement. In 1967, the U.N. General Assembly approved a resolution
encouraging member states to make use of this method for resolving disputes, but despite the
resolution, the method has remained otherwise unused to date.

Principle of constructive presence

The Araunah Russia seized a Canadian vessel outside the territorial sea because its crew were using
canoes for illegal sealing within the Russian territorial sea- “A vessel, which has never been in the
territorial sea (or EEZ) of a coastal State, can be pursued and arrested on the high seas, if one of its
boats or other craft working as a team and using the ship pursued as a mother ship has violated the
laws of the costal State within the territorial sea (or EEZ) of that State.”

Israel and Iraq incident

The argument on the basis of self-defence (anticipatory or pre-emptive self-defence) E.g. the January
2002 Israeli seizure of an Iraqi-flagged ship in the Red Sea. Fifty tons of Iranian-made weaponry
were found on board, including Katyusha rockets, antitank, and anti-aircraft missiles. Israel claimed
that it was acting in self-defense against an imminent threat. • The only possible way of authorizing
PSI is by means of a resolution adopted by the Security Council.

Enrica Lexie Case – Italy v. India before the International Tribunal For The Law of The Sea

Brief Facts

 On 15th February, 2012 two Indian fishermen were killed off the coast of Kerala, India,
aboard the St. Antony after they were fired upon by Italian marines on board the Italian
ship Enrica Lexie.
 Enrica Lexie was travelling from Singapore to Egypt and St. Anthony returning back to
its destination from a fishing expedition.
 Out of nowhere there started shooting when St. Anthony was 20.5 Nautical Miles off
Indian Cost within contiguous zone area of India’s Exclusive Economic Zone.
 The Indian Coast Guard got hold of Enrica Lexie somewhere near the Lakshadweep
Islands and compelled it to proceed it to Kochi.
  Names of two Italian Marine Officers Captured were; – Massimiliano Latorre &
Salvatore Girone.
 Charges of Murder (Section 300 of the Indian Penal Code), Mischief (Section 425 of
the Indian Penal Code) etc. were levied against the captured Italian Mariners.

Issue of Jurisdiction

 In order to protect the Interest of their citizen, Italy challenged the arrest before the
Kerala High Court alleging that India has no jurisdiction to try the case at the very first
Instance as the incident happened not in the territorial waters on India but on the
International Waters.
 Italy has cited Article 97 of the United Nations Convention on the Law of the Sea
(UNCLOS): “In the event of a collision or any other incident of navigation concerning
a ship on the high seas”, only the flag state of that ship can launch penal proceedings. By
definition, a flag state is the state in which a vessel is registered. On the high seas, flag
states hold sole jurisdiction over oceangoing vessels. (Art. 217 UNCLOS).
 However, India bases its jurisdictional claims on domestic legislation which confers the
Indian courts with the jurisdiction to try a person (including a foreigner) in respect of
an offence committed on board a ship registered in India (Sections 3 and 4 of the Indian
Penal Code, 1860 and Sec.188 of the Code of Criminal Procedure).
 On the other hand, the Italian Government gives the argument keeping in mind various
provisions of UNCLOS, 1982. Article 97 of UNCLOS focuses on ‘Penal jurisdiction in
matters of collision or any other incident of navigation’. According to this Article no
penal or disciplinary proceedings may be instituted against such person except before
the judicial or administrative authorities either of the flag state or of the State of which
such person is a national.
 Secondly, according to Article 92, ships shall be subject to the exclusive jurisdiction of
flag state while on the high seas.
 Thus, it is seen that claims of both the nations were equally strong. Both the nations
have their reasons as to why the case should be tried at their respective countries. the
general principle of criminal procedure that a trial shall ordinarily be conducted at the
place where the offence has been committed, justifies the Indian position. Additionally,
a trial conducted in a foreign land would deprive the victims of their right to participate
which is an essential aspect of fair trial. Moreover, considering the convenience of
conducting investigation the case is tilted towards India.
 The Supreme Court ruled that as per the Indian government notification issued in
pursuant of the Convention on the Law of the Sea, India has jurisdiction over the entire
200 miles Exclusive Economic Zone, and thus the case can be triable in India. The court
also held that only Indian government not the Kerala government can exercise the
jurisdiction.

Final Outcome

 When nothing was going in their way, the Italian Government approached the
International forum to look into the matter. The forum the country approached the
 International Tribunal for the Law of Sea (ITLOS). Again, at this forum Italy contended
that India had no jurisdiction to try this case. On the other hand, India outrightly rejected
Italy’s contention and also raised an issue that the International Tribunal also had no
power to hear the case involving two individual nations, which was later rejected by
ITLOS.
 Amidst all these, the relations between both these nations started to get sour. There was
political tension all around.
 In August 2015, the International Tribunal for the Law of Sea ordered both the countries
to refrain themselves on filing any new suite and thus try to solve the existing problem
amicably. Abiding the order, The Supreme Court of India had stayed all the proceedings
related to this case.
 To compensate the victims The Government of Kerala granted aid of 5 Lakh Rupees
and the same amount was given by The Government of Tamil Nadu. Over and above
the monetary aid The Government of Kerala also employed the victim’s wife.
 The Italian Government also gave a monetary compensation of 1 Crore Rupees to the
victim in this case of Maritime Disaster.
 With the agreement of the Parties, the proceedings were closed by order of the Arbitral
Tribunal on 12 October 2021
 Law of Outer Space

Introduction

Ever since the USSR launched the first earth satellite in 1957, space exploration has developed at an
ever-increasing rate. Satellites now control communications and observation networks, while
landings have been made on the moon and information-seeking space probes dispatched to survey
planets like Venus and Saturn. The research material gathered upon such diverse matters as earth
resources, ionospheric activities, solar radiation, cosmic rays and the general structure of space and
planet formations has stimulated further efforts to understand the nature of space and the cosmos.
This immense increase in available information has also led to the development of the law of outer
space, formulating generally accepted principles to regulate the interests of the various states
involved as well as taking into account the concern of the international community as a whole.
Beyond the point separating air from space, states have agreed to apply the international law
principles of res communis, so that no portion of outer space may be appropriated to the sovereignty
of individual states. This was made clear in a number of General Assembly resolutions following the
advent of the satellite era in the late 1950s. For instance, UN General Assembly resolution 1962
(XVII), adopted in 1963 and entitled the Declaration of Legal Principles Governing the Activities of
States in the Exploration and Use of Outer Space, lays down a series of applicable legal principles
which include the provisions that outer space and celestial bodies were free for exploration and use
by all states on a basis of equality and in accordance with international law, and that outer space and
celestial bodies were not subject to national appropriation by any means. In addition, the Declaration
on International Cooperation in the Exploration and Use of Outer Space adopted in resolution 51/126,
1996, called for further international co-operation, with particular attention being given to the benefit
for and the interests of developing countries and countries with incipient space programmes
stemming from such international co-operation conducted with countries with more advanced space
capabilities. Such resolutions constituted in many cases and in the circumstances expressions of state
practice and opinio juris and were thus part of customary law.
Important Conventions

The legal regime of outer space was clarified by the signature in 1967 of the Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon
and Other Celestial Bodies. This reiterates that outer space, including the moon and other celestial
bodies, is not subject to national appropriation by any means and emphasises that the exploration and
use of outer space must be carried out for the benefit of all countries. The Treaty does not establish
as such a precise boundary between airspace and outer space but it provides the framework for the
international law of outer space.
The concept of damage caused in outer space w was further developed by the Convention on
International Liability for Damage Caused by Space Objects signed in 1972, article XII of which
provides for the payment of compensation in accordance with international law and the principles of
justice and equity for any damage caused by space objects. Article II provides for absolute liability
to pay such compensation for damage caused by a space object on the surface of the earth or to
aircraft in flight, whereas article III provides for fault liability for damage caused elsewhere or to
persons or property on board a space object.
As a reinforcement to this evolving system of state responsibility, the Convention on the Registration
of Objects Launched into Outer Space was opened for signature in 1975, coming into force in 1976.
This laid down a series of stipulations for the registration of information regarding space objects,
such as, for example, their purpose, location and parameters, with the United Nations Secretary-
General.
In 1993, the UN General Assembly adopted Principles Relevant to the Use of Nuclear Power Sources
in Outer Space. Under these Principles, the launching state is, prior to the launch, to ensure that a
thorough and comprehensive safety assessment is conducted and made publicly available
The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects
Launched into Outer Space was signed in 1968 and sets out the legal framework for the provision of
emergency assistance to astronauts. It provides for immediate notification of the launching authority
or, if that is not immediately possible, a public announcement regarding space personnel in distress
as well as the immediate provision of assistance. It also covers search and rescue operations as well
as a guarantee of prompt return. The Convention also provides for recovery of space objects.
In 1979, the Agreement Governing the Activities of States on the Moon and other Celestial Bodies
was adopted. This provides for the demilitarisation of the moon and other celestial bodies, although
military personnel may be used for peaceful purposes, and reiterates the principle established in the
1967 Outer Space Treaty. Under article IV, the exploration and the use of the moon shall be the
province of all mankind and should be carried out for the benefit of all. Article XI emphasises that
the moon and its natural resources are the common heritage of mankind and are not subject to national
appropriation by any means. That important article emphasises that no private rights of ownership
over the moon or any part of it or its natural resources in place may be created, although all states
parties have the right to exploration and use of the moon.
State Obligations in Outer space

As noted from the above conventions, state obligations can be summarised as follows:
1. There is no claim for sovereignty in space; no nation can “own” space, the Moon or any
other body. (Article 2, Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies –
hereinafter OST)
2. Space activities are for the benefit of all nations, and any country is free to explore orbit
and beyond. (Article 1, OST)
3. Weapons of mass destruction are forbidden in orbit and beyond, and the Moon, the planets,
and other celestial bodies can only be used for peaceful purposes. (Article 4, OST)
4. Any astronaut from any nation is an “envoy of mankind,” and signatory states must provide
all possible help to astronauts when needed, including emergency landing in a foreign
country or at sea. (Article 5, OST)
5. Signatory states are each responsible for their space activities, including private
commercial endeavors, and must provide authorization and continuing supervision.(Article
6, OST)
6. Nations are responsible for damage caused by their space objects and must avoid
contaminating space and celestial bodies. (Article 7, OST)
7. States must take all possible actions to help or rescue astronauts in need, and if applicable,
return them to the nation from which they launched. (Article 2, The Agreement on the
Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into
Outer Space, hereinafter the Return Agreement)
8. The moon shall be used by all States Parties exclusively for peaceful purposes. (Article 3,
“The Agreement Governing the Activities of States on the Moon and Other Celestial
Bodies”, hereinafter the Moon Agreement)
9. The exploration and use of the moon shall be the province of all mankind and shall be
carried out for the benefit and in the interests of all countries, irrespective of their degree
of economic or scientific development. Due regard shall be paid to the interests of present
and future generations as well as to the need to promote higher standards of living and
conditions of economic and social progress and development in accordance with the
Charter of the United Nations. (Article 4, Moon Agreement)
10. States shall take full liability for any damage caused by their space objects and agree to
standard procedures for adjudicating damage claims (The Convention on International
Liability for Damage Caused by Space Objects)
 Law of Treaties
A Treaty means a formal agreement between two or more Independent Nations with reference to
peace, alliance, commerce or other International relations.
Definition
Professor Schwarzenberzer-
Treaties are agreements between subjects of International Law creating a binding obligation
in International Law.
Criticism- on the matter of subject it may be criticised because subject of IL includes states,
IO and indirectly individual also. Treaties are only possible between or among states.
Article 2 (1) of Vienna Convention on the Law of Treaties 1969 For the purposes of the present
Convention:
(a) “treaty” means an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation;
A treaty39 is defined under Article 2 of Vienna Convention on the law of treaties 1969, " A treaty is
an agreement whereby two or more States established or seek to establish the relationship between
them governed by International Law. It is reduced form of International treaties. Treaties are an
agreement between the Independent States creating rights and obligation. There are bilateral or
multilateral treaties based on the numbers of States.
Different names of treaty
Treaty denotes a genus (According to Starke) and it includes many different names which may be
attributed to it by the parties. It is known by different names like convention, agreements, protocol,
declaration, arrangements, accord, additional articles, aide memorie, code, communique, compact,
contract, instrument, optional clause etc. in South West Africa Case, the ICJ has said that
“Terminology is not a detrimental factor as to the character of an international agreements or
undertaking. In practice of states and of International Organisations and in the jurisprudence of
international court, there exist great variety of usage; there are many different types of acts to which
the character of treaty stipulation has been attached.”
Relevant documents
1) Vienna Convention on the Law of Treaties 1969 (came into force in 1980)
2) Vienna convention on Law of Treaties between States and International Organisation or
between International Organisations, 1986 (did not come into force till today)

Types of Treaties on the basis of nature

International Treaties may be divided into two groups 1) Law making Treaty 2) Treaty Contracts

39
Article 2 (1). For the purposes of the present Convention: (a) “treaty” means an international agreement concluded
between States in written form and governed by international law, whether embodied in a single instrument or in two
or more related instruments and whatever its particular designation;
1) 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, 1961are examples of such a treaty.
2) Treaty Contracts: 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 are also
sources of International Law because they help in the development of customary rules of
International Law.
Types of Treaties on the basis of number of parties
On this basis treaties may be divided into three categories
1) Bilateral- Treaties involving two entities/parties are bilateral treaties. It is not necessary
that the treaty can only have 2 parties/states; there may be more than two states, however,
there should be only two states involved. For example, the bilateral treaties between
Switzerland and the European Union (EU) have 17 states, which are divided into two
parties, the Swiss and the EU and its member states. It is important to note that by virtue
of this treaty, obligations, and rights arise between the two parties to it, i.e. the EU and the
Swiss.
2) Multilateral- Multilateral treaties are those which are open to participation for all the states
without restriction or to considerable number of parties. Some multilateral treaties setup an
international organisation for a specific or multipurpose. They may be reffered to as
constituent agreements. For example the UN Charter. This treaty lay down general norms
of IL or to deal in a manner with matters of general concern to other states as well as to the
other parties to the treaties. Such treaties are sometimes described as law making treaties.
Non signatory are not bound by it unless it creates a customary rule of IL.
3) Plurilateral- Those treaties where the participation is open to a restricted number of states
are described as plurilateral treaties. The minimum number of parties in such treaties
should be more than two. This kind of treaties are generally concluded for specific purpose.
For example Organisation of the Petroleum Exporting Countries (OPEC), North Atlantic
Organisation (NATO), League of Arab etc. Article 52 of the UN Charter allows for such
regional arrangements. The Vienna Convention 1969 has classified treaties into two
categories; bilateral and multilateral. Plurilateral treaties do not find place in the above
convention. They are specific type of multilateral treaty.
Basic principles relating to treaty
1) pacta sunt servanda- A treaty is based on the consent of the parties to it, is binding, and
must be executed in good faith. The concept known by the Latin formula pacta sunt
servanda (“agreements must be kept”) is arguably the oldest principle of international law.
Without such a rule, no international agreement would be binding or enforceable. Pacta
 sunt servanda is directly referred to in many international agreements governing treaties,
including the Vienna Convention on the Law of Treaties (1969), which concerns treaties
between states, and the Vienna Convention on the Law of Treaties between States and
International Organizations or Between International Organizations (1986).
Article 26 of Vienna Convention 1969
“Pacta sunt servanda”- Every treaty in force is binding upon the parties to it and must be
performed by them in good faith.
Article 27 of Vienna Convention 1969
Internal law and observance of treaties- A party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty. This rule is without prejudice
to article 46.
Exceptions- there are three exceptions which are as following-
Exception 1: when a new state comes into existence as a result of revolt.
Exception 2: Treaty obligations which are related to property ceded or merged into other
state.
Exception 3: rebus sic stantibus
Article 62 Fundamental change of circumstances
1. A fundamental change of circumstances which has occurred with regard to those existing
at the time of the conclusion of a treaty, and which was not foreseen by the parties, may
not be invoked as a ground for terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of the consent of the
parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of obligations still to be
performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for terminating
or withdrawing from a treaty:
(a) if the treaty establishes a boundary; or
(b) if the fundamental change is the result of a breach by the party invoking it either of an
obligation under the treaty or of any other international obligation owed to any other party
to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of
circumstances as a ground for terminating or withdrawing from a treaty it may also invoke
the change as a ground for suspending the operation of the treaty.

2) pacta tertis nec nocent nec prosunt-

The phrase “pacta tertis nec nocent nec prosunt” is a Latin usage of words which means that a
treaty binds the parties and only the parties. Thus, it states that the binding power of a treaty is
limited only to the consenting party. Such a treaty that is binding only upon the consenting
parties does not create either obligations or rights for third parties with/without their consent.
This concept has also been highlighted under Article 34 of the Vienna Convention of the Law
of Treaties 1969. Thus the duties and rights are only enforceable between the contracting parties
and there could be no imposition or implementation of these pre-decided rights and duties on
the third parties. Therefore, the contracting parties should only remain concerned about their
terms and conditions and no third party should interfere in it. Thus, it can be interpreted that the
above mentioned maxim strictly follows the policy of non-interference on the third parties or
any outsiders until their consent comes to the play.
Exception to the above maxim
The treaties are to be meant only for the contracting parties, however, there is an exception to
it. The Vienna Convention on The Law of Treaties 1969 also provides for a few exceptions. For
example, when a car is sold from the seller to the buyer, the right which arises is not only the
right in personam but at the same time, the owner of the car also has the right to drive the car
safely after following and obeying all the traffic rules, thus it is also giving rise to right in rem
(i.e the right available against the entire world). Similarly, when a person develops a new
scientific invention, at that time it is the duty of the society not to steal his ideas, rather
encourage him in the field of research and development, and that’s why the concept of the patent
had developed world wide now for creations involving scientific inventions. Thus, there is
always a right and duty towards society as a whole. The exceptions in this regard are namely
Article 35, 36, 37 and 38 of the Vienna Convention on the Law of Treaties, 1969.
Article 35
 Article 35 of the said convention states about the treaties providing for obligations on
the third parties. An obligation emerges for a third State from an arrangement of a treaty
if the parties to the treaty intend to accept those arrangements or provisions of the
treaty as an instrument to establish the obligation on the third party.
 Provided that the third party also explicitly acknowledges the obligation which
would further be intimated in writing to the initial two consenting parties.
 Thus when the third party is wilfully accepting the said terms and conditions in writing
of an agreement entered into by the other two consenting parties, then it automatically
puts an obligation on itself even when it is not the part of the consenting parties.
Article 36
 Article 36 of the Vienna Convention on The Law of Treaties 1969 is also an exception
to pacta tertis nec nocent nec prosunt. Article 36 talks about the treaties which also
provide rights to third parties.
 It highlights on the fact that a privilege emerges for a third State from an arrangement
of a settlement if the parties to the treaty expect the arrangement to accord that privilege
either to the third State, or to a group of States to which it belongs, or to all States, and
if the third State consents thereto.
 However, the third parties approval will be assumed as long as contrary or clashing
intention arises, except if the treaty in any case provides otherwise. It further adds that
a State practising a right which is in accordance with paragraph 1 of Article 36 of the
 said convention, should conform to the conditions for its activity accommodated in the
treaty or set up in conformity with the arrangement.
Article 37
 Article 37 of the Vienna Convention on The Law of Treaties is also being regarded as
an exception to pacta tertiis nec nocent nec prosunt. Article 37 focuses on denial or
alteration of commitments or rights of third parties.
 It states that at the point when a commitment has emerged for a third State in congruity
with Article 35, the commitment may be disavowed or adjusted distinctly with the
assent of the consenting parties to the settlement and of the third party, except if it is
built up that they had in any case otherwise agreed.
 Thus, an obligation could be modified by the consenting parties along with the third
party if they agree to do so unless it was otherwise agreed to act contrary. However, in
the case of revocation or modification of rights, the idea is not so liberal. It states that
at the point when a right has emerged for a third State in similarity with Article 36, the
privilege may not be repudiated or changed by the parties in the event that it is built up
that the right was proposed not to be revocable or subject to alteration without the assent
of the third State.
 Therefore, it highlights on the fact of equal protection of rights and obligations of the
two initial consenting parties as well as the third [Link] if a third party is being
involved in a treaty then its consent, its obligation, its rights, everything matters, as a
result of which it cannot be terminated and modified as per the whims and fancies of
the consenting parties. In other words, we can say that Article 37 is protecting the rights
and obligations of the third parties arising out of the treaty entered into by the
consenting parties.
Article 38
 Article 38 is also considered as an important exception to the concept that the treaty is
binding only to the consenting parties but not the third party. It states the rules in the
treaty which becomes binding on the third party through international customs. It states
that nothing in Articles 34 to 37 prevents a standard set out in a treaty from getting
authoritative upon a third State as a customary rule of international law, perceived thus.
 Therefore, it highlights the importance of the traditional practices or the established
unseen norms of the society that are meant to be followed even though they had not
been written down anywhere

Cases related to the maxim of pacta tertis nec nocent nec prosunt
North Sea Continental Shelf Case
The statute of the North Sea Continental Shelf Cases sets out the double prerequisite for the
development of International law i.e the State practice (the objective component) and opinio
Juris (the subjective component).
Facts of the case
Netherlands and Denmark had drawn partial boundary lines dependent on the equidistance
principle. A concurrence on further prolongation of the limit demonstrated troublesome in light
of the fact that Denmark and Netherlands needed this prolongation to occur depending on the
equidistance standard whereas Germany was of the view that, together, these two limits would
create an unjust outcome for her. Germany expressed that because of its sunken coastline, such
a line would bring about her losing out on a lot of the continental shelf dependent on
proportionality to the length of its North Sea coastline. The Court needed to choose the
principles and rules of worldwide law relevant to this delimitation. In doing as such, the Court
needed to choose if the principles embraced by the parties were binding on the parties either
through treaty law or customary international law.
Question of law
Regardless of whether Germany was under a legal obligation to acknowledge the equidistance-
extraordinary conditions principle, contained in Article 6 of the Geneva Convention on the
Continental Shelf of 1958, either as a customary international rule or as based on the Geneva
Convention?
The decision of the court
The Hon’ble court held that the utilization of the equidistance technique had not crystallized
into customary law and the strategy was not mandatory as well as obligatory for the delimitation
of the regions in the North Sea, as the Republic of Germany didn’t ratify the Convention, was
identified with the present proceedings.
Relevant Findings of the Court
The Court dismissed the principal contention. It said that only a ‘very consistent extremely
predictable course of conduct with respect to a State would permit the Court to assume that the
State had some way or another become bound by an arrangement (by a method other than in
the proper way, for example: endorsement) when the State was ‘capable and qualified for’
acknowledging the duties in a proper way. The Court held that Germany had not unilaterally
assumed commitment under the Convention. The Court likewise considered the way that
regardless that even if Germany had ratified the treaty she had the alternative of going into a
reservation on Article 6, after which that specific Article would never again be appropriate to
Germany (in other words if one were to expect that Germany assumed to become a party to the
Convention, it doesn’t interpret that it would have additionally attempted those commitments
contained in Article 6).
The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into power in
1980, talks about in more detail about arrangement commitments of third States (those States
who are not gatherings to the bargain). It plainly stipulates that commitments emerge for third
States from an arrangement of a settlement just if (1) the genuine parties to the treaty expected
the arrangement to make commitments for third States, and (2) third State explicitly
acknowledge those commitments or obligations recorded in writing (Article 35 of the VCLT).
The VCLT was not in power when the Court pondered on this case.
The Court held that the nearness of a condition of estoppel (which could be defined as a position
that prevents someone from asserting realities that are in opposition to past cases or activities)
has allowed Article 6 to get authoritative on Germany – in any case, the Court held that
Germany’s action didn’t bolster a conflict for estoppel. The Court moreover held that the
unimportant truth that Germany probably won’t have unequivocally fought the equidistance
standard as contained in Article 6, isn’t sufficient to communicate that the guideline is as of
now definitive upon it.
Therefore it was upheld that Germany had not acted in any manner that would incur certain
restrictive rights and obligations on her. Thus the equidistance special circumstances rule was
not binding on Germany in any way.
3) jus cogens-
Jus cogens, also known as the peremptory norm, is a fundamental and overriding principle of
international law. It is a Latin phrase that translates to ‘compelling law’. It is absolute in nature
which means that there can be no defense for the commission of any act that is prohibited by
jus cogens. These norms, though limited, are not cataloged. They are derived from changing
social, political attitudes and major case laws and are not defined by any authoritative body.
Jus cogens or peremptory norm means a body of fundamental principles of international law
which binds all states and does not allow any exceptions. It is basically a compilation of norms
that lays down the international obligations which are essential for the protection of the
fundamental interest of the international community and any violation of these norms is thereby
recognized as a crime against the community as a whole.
It is binding upon all the members of the international community in all circumstances. Jus
cogens imply absolute restrictions on genocide, slavery or slave trade, torture or other inhuman
treatment, prolonged arbitrary detention, and racial discrimination. Any activity or treaty carried
out by the states or international organizations that contradict human dignity and rights will
offend the concept of jus cogens and thus, be void. It can be said that jus cogens exist to protect
and uphold human dignity and rights.
Origin of the doctrine
It stemmed from the idea of a binding law which would be in alignment with natural law and
would render contrary customs and treaties invalid. This idea led to the existence of hierarchical
superior norms that would invalidate the treaties and customs. The doctrine of Jus cogens was
initially defined in Article 53 of the Vienna Convention on the law of treaties 1969. It was later
stated as a customary principle but Article 53 of the Vienna Convention, however, contains no
reference to any element of practice.

What is Jus Positivism?

Jus positivism, when translated from Latin, is legal positivism which refers to the human-made
laws that define the establishment of specific rights for an individual or group. It is basically
the laws made by the state for the swift, efficient and proper functioning of the state itself.
Difference between Jus Cogens and Jus Positivism
The only difference between jus cogens and jus positivism is that the former is a set of norms
applicable internationally while jus positivism is the phenomena of formulating laws for the
state which shall be applicable within the state only.
Jus cogens and jus positivism stay at debate since their applicability is contradicting each other.
Jus cogens are mandatory, constant and binding on all states irrespective of their consent while
jus positivism is not binding and can be changed from time to time. An aspect of universal
jurisdiction is personal jurisdiction by all states over the alleged violator of such crimes, hereby
keeping the norm of jus cogens at a higher pedestal than jus positivism.
Article 2(6) and Article 53 of the Vienna Convention
Article 2(6) of the Vienna convention deals with the definition of a ‘contracting state’. It
mentions that ‘contracting state’ means that a state has consented to be bound by the treaty,
whether or not the treaty has entered into force. It is in regard to the non-parties of the UN and
states that they shall act in accordance with the principles so far as may be necessary for the
maintenance of international peace and security. It is a mandatory provision and has set a limit,
determined by the general interest of the international community.
Article 53 of the Vienna convention is the origin of the principle of jus cogens. It states that a
treaty is void if, at the time of its conclusion, it conflicts with the peremptory norm of general
international law. The norm should be accepted and recognized by the international community
of states as a norm from which no derogation is permitted and which can be modified only by
a subsequent norm of international law having the same character.
Article 64 of the Vienna Convention
Article 64 of the Vienna convention deals with the emergence of a new peremptory norm of
international law. It states that if a new peremptory norm of the international law emerges, any
existing treaty which is in conflict with that norm becomes void and is terminated.
Article 48 of Articles on Responsibility of State Internationally Wrongful Acts, 2001-
Invocation of responsibility by a State other than an injured State
1. Any State other than an injured State is entitled to invoke the responsibility of another
State in accordance with paragraph 2 if:
(a) the obligation breached is owed to a group of States including that State, and is
established for the protection of a collective interest of the group; or
(b) the obligation breached is owed to the international community as a whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the
responsible State:
(a) cessation of the internationally wrongful act, and assurances and guarantees of non-
repetition in accordance with article 30; and
(b) performance of the obligation of reparation in accordance with the preceding articles,
in the interest of the injured State or of the beneficiaries of the obligation breached.
 3. The requirements for the invocation of responsibility by an injured State under articles
43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under
paragraph 1.
Convention on the Prevention and Punishment of the Crime of Genocide, 1948 (enforced
in 1951)
Article VIII
Any Contracting Party may call upon the competent organs of the United Nations to take such
action under the Charter of the United Nations as they consider appropriate for the prevention
and suppression of acts of genocide or any of the other acts enumerated in Article III.
Relevant case Gambia v Myanmar
Criticism of Jus Cogens
This principle has been mainly criticized for its superiority, practical implementation and the
obligation upon the states to follow it:
1. Putting restriction on dynamism of IL: The doctrine of international jus cogens developed
from the principles of natural justice. These norms are actually a set of rules where no
derogation is allowed under any circumstances and they cannot be abrogated. They are
argued to be hierarchically superior because the power of a state to make treaties is subdued
when it confronts a super customary norm of jus cogens. The point of criticism being that
these norms are putting limitations on the ability of states to change or introduce an
international law.
2. Lack of consent for new states: The second point of criticism being about the consent and
obligation of states to follow the norm. The states which are a part of the international
community have to mandatorily comply with the norms, regardless of their consent and
their individual opinion to be bound. They are not provided with an option to choose since
these rules are too fundamental for states to escape responsibility. States consider these
rules to be so important to the international society of states and to how the society defines
itself that they cannot conceive an exception and cannot, therefore, escape liability.
3. Enforcement- As known, international laws and decisions only have an advisory role and
none of their provisions are enforceable as the law of any state. Hence, when it comes to
the enforceability of jus cogens, the states under an obligation have not initiated any
noticeable provisions for the implementation of the same which raises numerous queries
on the existence and requirement of the widely recognized norms.
Problems also remain as to the application of the norm, in terms of which rules must
necessarily be covered under the said norms. There were serious doubts concerning the fact
that the norm could be misused in interpreting the rules to be covered under jus cogens.
Oppenheim’s view
Professor Oppenheim of Cambridge University has republished treatise in his name for nine
editions. His treatise begins with major definitions and works towards all aspects of
international law at a time when not much was certain and progressive about international law.
In his book, he mentioned that a number of other universally recognized principles of
international law existed in the jus cogens with the capability to render any conflicting treaty
 void and therefore, the norm of jus cogens was unanimously recognized as a customary rule of
international law.
Therefore, obligations which are at variance with universally recognized principles of
International Law cannot be the object of a treaty.
Bosnian Case: View of Justice Lauterpacht
In the case of Bosnia and Herzegovina v Serbia and Montenegro [2007], Serbia was alleged
to have attempted extermination of the Muslim population of Bosnia and Herzegovina which
led to violations of the Convention on the Prevention and Punishment of the Crime of Genocide,
thereby invoking an article of the genocide convention. It was unanimously held in this case
that Serbia was neither directly involved nor was complicit in it but it rather committed a breach
of genocide convention by failing to prevent it from occurring, he genocide convention being a
part of jus cogens.
In this case, Justice Lauterpacht was in favour of the decision and defined jus cogens as a
concept which is superior to both customary law and treaty as it stands on the very
fundamentals of natural law and humanity. He also associated jus cogens with the general
principles of law and said that irrespective of its origin, jus cogens encircles all the
fundamentals of a necessary law at the international level and hence, is the superior-most in
hierarchy.
Views of Prof. Michel Byers and David Kennedy
Professor Michel Byers quoted a somewhat similar definition as that of Professor Oppenheim. He
focused on conceptualizing the relation between jus cogens and erga omnes rules. Erga omnes
obligations are those in which all states have a legal interest because the subject matter is of
importance to the states and to the international community as a whole. In case of a breach in these
obligations, every state is considered justified in invoking responsibility upon the guilty state that
committed the internationally wrongful act.
According to David Kennedy, jus cogens was termed as the super-customary norm. In fact, there are
two views which dominate the foundation of the concept of jus cogens. The first view is that jus
cogens originated directly from international law and the second view is that it is based on one of the
existing sources of international law.
Customary international law is an aspect of international law involving the principle of customs. It
basically means that the principles and reasonable ideologies which the society has been practising
since time immemorial should be given the status of international law and should remain operational
at all times and circumstances.
Hence, terming jus cogens as a super-customary norm justifies both the concepts of the foundation
of jus cogens.
Nicaragua case
In the case of the Republic of Nicaragua v. the United States of America, the U.S. decided to plan
and undertake activities against Nicaragua. Armed interventions were led by the U.S. in Nicaragua
and they also undertook the military and paramilitary forces in and against Nicaragua.
It was held by the International Court of Justice that the U.S. could not rely on collective self-defense
to justify its use of force against Nicaragua. The United States violated its customary international
law obligation of not to use force against another State when it directly attacked Nicaragua. The
Court has also noted that while it may be aware that political aspects may be present in any legal
dispute brought before it, the purpose of recourse to the Court is the peaceful settlement of legal
disputes. The Court of Justice upheld the essential justiciability of even those disputes raising issues
of the use of force and collective self-defense.
This case introduced the principle of opinio juris in international law, which states that it is an opinion
of law or necessity. It is a necessary element within customary laws and acts as a defense as if the
acts have done were of necessary or lawful opinion. In this case, it was noticed that the actions of the
U.S. were not in alignment with this principle.
Pablo Najera case 1928
An early decision referring to the concept of jus cogens is the Pablo Najera case where the issue was
an arbitral award named Pablo Najera between France and Mexico. The question of the concerned
case was the registration of treaties and sanctioning of invalidity in the event of non-registration.
Mexico had raised the issue of non-registration by France in the Franco-Mexico compromise as a
preliminary objection. The President of the Arbitration Commission characterized the obligation as
non-derogatory and used the principle of jus cogens to justify it.
Conclusion
The jus cogens norm has retained its strong position since 1969. The principle of jus cogens has
generated hope that developing standards of law would result in a higher realization of justice in
domestic actions and in an enhanced outlook for justice, peace, and cooperation among nations. A
major result of that hope has been the increasing vitality of the principle of jus cogens and its
developing dominance in international law. The use of jus cogens in human rights actions should
overcome the court invoked barriers to redress the grievances and should act as a compelling factor
in the progressive enforcement of human rights
4) clausula rebus sic stantibus
The phrase ‘rebus sic stantibus’ (things thus standing) is a Latin phrase that refers to a situation where
a contract cannot be withdrawn from or terminated as long as the conditions and circumstances
surrounding the contract have not fundamentally changed. This has often been used in the form of
doctrine in international law, more specifically in treaty law, and has been a subject of debate and
disputes. This doctrine is a part of customary international law but a provision for this doctrine has
been provided in Article 62 of the Vienna Convention on the Law of Treaties 1969 as well. In this
article, we shall explore the constitution of this doctrine, the grounds, and objectives, as well as cases
where this doctrine was used.
Meaning of rebus sic stantibus
Clausula rebus sic stantibus is a doctrine that allows for the contract or treaty to be withdrawn from
or terminated when there is a fundamental change in the circumstances of the contract or treaty. It
helps to escape the principle of ‘pacta sunt servanda’, which stipulates that all states must abide by
the agreements formed between them in good faith. Pacta sunt servanda is also legally provided for
in Article 26 of the Vienna Convention which provides that treaties in force are binding upon parties
and are to be performed in good faith.
Basis for application of the doctrine
Article 62 of the Vienna Convention on the Law of Treaties 1969 talks about the fundamental change
of circumstances in which rebus sic stantibus can be invoked, however, this is also subject to
conditions-
 There must be a fundamental change in the circumstances prevailing at the point where the
treaty was concluded to the present prevailing circumstances. Such fundamental change
must not have been foreseen by the parties.
 Those circumstances must have constituted an essential basis of the consent of the parties
by which they entered and agreed to be bound by the treaty.
 The change has the effect of substantially and radically transforming the extent of
obligations of a party under the treaty.
 If the treaty does not establish a boundary.
 If the fundamental change has occurred because of a breach by a party invoking the said
change, this doctrine cannot be used to escape the obligations under the treaty. This breach
can be a breach of an obligation under the treaty or the breach of any international
obligation owed to any party under that treaty.
Objectives of rebus sic stantibus
The doctrine of rebus sic stantibus is not expressly mentioned in any international legal instrument
but Article 62 of the Vienna Convention talks about fundamental change of circumstances. This
doctrine has been often used in international relations by parties to withdraw from treaties. A state
may use this doctrine where-
 At the time of the conclusion of the treaty, the state thinks the terms of the treaty to be
beneficial but later might realise it to be unbeneficial. There might be some internal
situation in a state where the treaty is found to be detrimental or harmful to the state. In
such situations, the state may look to withdraw, terminate, suspend operations or render
the treaty invalid.
 State sovereignty and policy might dictate that the state not always follow the terms of the
treaty therefore the state might choose to withdraw from a treaty. If the state deems a treaty
detrimental to its security or security of its subjects, it may choose this option.
Therefore, it is observed that often states cite their own internal reasons like protection of its interests,
to use this doctrine. This doctrine serves the objective of protecting state interests while
simultaneously preventing misuse through the condition of ‘fundamental change in circumstances.
Conflict of rebus sic stantibus with pacta sunt servanda and International Law
There arises a conflict of rebus sic stantibus with pacta sunt servanda and international law due to
their opposing nature and this has been a subject of great debate and legal discourse. Some
contentions in favour of it are-
  There might be valid reasons for a state withdrawing from a treaty. This can usually happen
when a state considers conditions and circumstances prevailing at the time of the
conclusion of the treaty to be beneficial to it only to find that that was not the case.
 The operation of the treaty might also hurt the functioning of the state, and the state may
find the treaty to be unbeneficial or even detrimental to the interests of its subjects.
 Going by the theories of sovereignty given by thinkers like Austin, who defined
sovereignty as supreme and unquestionable. The state would work on its own will,
therefore withdrawing from treaties whenever it chooses.
Some contentions against the doctrine are-
 While the very purpose of international law is to maintain order in state relations and
among nations, there has been a view that providing for the doctrine of rebus sic stantibus
in international law would nullify the purpose of international treaty law.
 There are fears that states may have their own concept of ‘fundamental change’ and would
use the excuse of state sovereignty to misuse this doctrine to pull out of treaties.
 The criticism arises that absolute power vested in the hands of the state would lead to
arbitrary actions and suppression of human freedom and rights, and this would enable a
state to do anything it wills, disregarding international law and morality.
Therefore, keeping in mind these arguments, international law has provided for provisions for both
the doctrines of rebus sic stantibus and pacta sunt servanda, with requisite conditions.
Invalidity and termination of treaties with respect to international law
Article 42 and 43 of the Vienna Convention stipulate the conditions under international law when a
treaty can be terminated.
Article 42 states that the validity of a treaty and the consent of a party that binds it to the treaty can
be impeached only through the application of the Vienna Convention.
Article 43 states that invalidity, termination, denunciation, withdrawal, and suspension of operations,
occurring through the application of the Vienna Convention or through the said treaty-
 would not obstruct or impair the duty of a State which it owes under international law,
independent of the treaty.
 A further simplification of this could be explained as: a State which withdraws from a
treaty requiring the performance of a particular obligation would still be required to
perform that obligation if other international law instruments to which it is a party, so
dictate.
A similar provision to Article 43 of the Vienna Convention is Article 103 of the United Nations
Charter, which states that in the event of a conflict between the obligations arising out of a treaty
between parties and the obligations under the UN Charter, the obligations towards the UN Charter
would prevail.
These provisions serve as a protection against the misuse of rebus sic stantibus as the termination
can be done only through the application of the Vienna Convention and a State would still need to
perform any obligation under international law even if it withdraws from a treaty, assuming that is it
also a party to that international law instrument which stipulates the performance of that duty.
The procedure followed after the termination of a treaty
Article 65 of the Vienna Convention stipulates the procedure that is to be followed when a treaty is
terminated, withdrawn from, rendered invalid or has its operations suspended. The procedure is as
follows-
 The party must notify the other parties of its claim; be it withdrawal, termination,
operations suspension or invalidity. This notification shall state the measure to be taken.
 There is an expiry period of three months after the receipt of the notification, during which
parties to the treaty are allowed to raise objections against the actions of the claimant party.
If after the expiry period, no party has raised an objection, the claimant party can proceed
with its stipulated measure according to Article 67.
 In the event of an objection being raised by any other party, the parties shall together
operate to get a solution under Article 33 of the United Nations Charter.
Important cases and examples of the use of the doctrine of rebus sic stantibus
 In 1870, Russia notified the other parties that it no longer considered itself bound by
Articles 11, 13 and 14 of the Treaty of Paris 1856, which was a treaty on military shipping.
Russia also notified that it was unilaterally withdrawing from the treaty. It used the doctrine
of rebus sic stantibus citing that the circumstances had changed as the port of Batoum was
no longer free. The outcome of this incident was decided in a conference in London where
it was decided that unilateral withdrawal would be prohibited.
 During the Bosnian Crisis of 1908, the then empire of Austria – Hungary refused its rights
and obligations under Article 25 of the Treaty of Berlin 1878. It annexed the territory of
Bosnia-Herzegovina despite its obligation to only occupy the territory. It cited
fundamentally changed circumstances wherein the conditions had changed in the Balkan
states, most notably in the combining of Bulgaria and Eastern Rumelia. This set an
important precedent in the use of rebus sic stantibus.
 In 1924, Norway dissolved the 1907 treaty with Sweden. This treaty had arisen out of the
dissolution of the Union of Norway and Sweden. Norway cited changed circumstances like
the Russian Revolution, the Versailles Treaty and the entry of Norway into the League of
Nations. This treaty was restricted by a time limit, but the doctrine of rebus sic stantibus
was still held to be applicable, thus setting the precedent that the doctrine is not only
applicable to indefinite treaties, but also on definite as well.
The Fisheries Jurisdiction case
 The most important case of the use of rebus sic stantibus in recent times is that of the
Fisheries Jurisdiction case (United Kingdom of Great Britain & Northern Ireland v. Iceland
[I.C.J. Reports 1973, p. 3.) In this case, the International Court of Justice judged a dispute
wherein Iceland sought to extend its fisheries jurisdiction from 12 to 50 miles.
 In 1961, the United Kingdom reached a settlement with Iceland that there would be a 12-
mile fishery zone around Iceland and in return, any dispute regarding the Icelandic fishing
zones shall be referred to the International Court of Justice.
  However, in 1971, Iceland decided to extend the fishing zone to 50 miles and also decided
that the 1961 settlement was no longer in effect. The United Kingdom thus approached the
International Court of Justice.
 Iceland contended that there had been a change in the circumstances since the 12-mile limit
was now recognized by both parties through the 1961 settlement and this change
necessitated the extension of the zone.
 The main issue to be dealt with here by the Court was whether it was necessary that there
be a transformation of the extent of the obligation to be performed by the party so that a
change in circumstances may give rise to the termination of a treaty.
 The Court thus held that the 1978 Icelandic Regulations were a unilateral extension
exercised by only Iceland and that it could not unilaterally exclude the United Kingdom
from fishing in the areas agreed under the 1961 settlement. It was further held that in order
to effect a change in circumstances for termination of a treaty, it is necessary that there has
been a transformation of the extent of obligations yet to be performed. The change in the
circumstances did not transform the extent of the jurisdictional obligation of Iceland to
limit the fishery zone to 12 miles under the 1961 settlement.
Conclusion
The doctrine of rebus sic stantibus is a controversial one, embroiled in fears of its misuse. It can be
observed that international law has, to an extent, laid down the limits of the use of this doctrine
through express provision as well as procedure, wherein objections can be raised towards the actions
of a party. However, the use of the doctrine is still under the scanner, and it actually depends upon
the discretion of the judicial body to determine whether there has been a fundamental change in
circumstances along with a transformation in the extent of the obligation to be performed.

Note- Grounds of termination and suspension of treaties (students are supposed to read on the
basis of class room discussion)
 Intervention and Use of force
About the UN Charter- The Charter of the United Nations is the founding document of the United
Nations. It was signed on 26 June 1945, in San Francisco, at the conclusion of the United Nations
Conference on International Organization, and came into force on 24 October 1945. Charter has
been amended40 three times in 1963, 1965, and 1973. It contains 111 Article and XIX Chapters.
Principle of non-intervention
Famed Swiss legal philosopher Emmerich de Vattel was arguably the first jurist to articulate the
non-intervention principle in his treatise The Law of Nations, published in 1758.
Kofi Annan, Secretary-General of the United Nations at the time of the 2003 Iraq conflict, wrote:
"No principle of the Charter is more important than the principle of the non-use of force as
embodied in Article 2, paragraph 4 .... Secretaries General confront many challenges in the
course of their tenures but the challenge that tests them and defines them inevitably involves
the use of force.
H.G Wells - "If we don't end war, war will end us."
Non-intervention in UN Charter
Article 2- The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act
in accordance with the following Principles

Article 2 (7)
Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require
the Members to submit such matters to settlement under the present Charter; but this
principle shall not prejudice the application of enforcement measures under Chapter Vll.

40
United Nations Charter: Amendments to Articles 23, 27, 61, 109
Amendments to Articles 23, 27 and 61 of the Charter were adopted by the General Assembly on 17 December 1963 and
came into force on 31 August 1965. A further amendment to Article 61 was adopted by the General Assembly on 20
December 1971, and came into force on 24 September 1973. An amendment to Article 109, adopted by the General
Assembly on 20 December 1965, came into force on 12 June 1968.
The amendment to Article 23 enlarges the membership of the Security Council from eleven to fifteen. The amended
Article 27 provides that decisions of the Security Council on procedural matters shall be made by an affirmative vote of
nine members (formerly seven) and on all other matters by an affirmative vote of nine members (formerly seven),
including the concurring votes of the five permanent members of the Security Council.
The amendment to Article 61, which entered into force on 31 August 1965, enlarged the membership of the Economic
and Social Council from eighteen to twenty-seven. The subsequent amendment to that Article, which entered into force
on 24 September 1973, further increased the membership of the Council from twenty-seven to fifty-four.
The amendment to Article 109, which relates to the first paragraph of that Article, provides that a General Conference of
Member States for the purpose of reviewing the Charter may be held at a date and place to be fixed by a two-thirds vote
of the members of the General Assembly and by a vote of any nine members (formerly seven) of the Security Council.
Paragraph 3 of Article 109, which deals with the consideration of a possible review conference during the tenth regular
session of the General Assembly, has been retained in its original form in its reference to a "vote, of any seven members
of the Security Council", the paragraph having been acted upon in 1955 by the General Assembly, at its tenth regular
session, and by the Security Council.
Article 2 (4)
All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
However, Article 2(4) has two exceptions which are covered under Article 42, 43 and 51 of the UN
Charter. Article 42, 43 and 51 are reiterated below:

Article 4141

The Security Council may decide what measures not involving the use of armed force are to be
employed to give effect to its decisions, and it may call upon the Members of the United Nations
to apply such measures. These may include complete or partial interruption of economic relations
and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the
severance of diplomatic relations

Article 4242

Should the Security Council consider that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air, sea, or land
forces as may be necessary to maintain or restore international peace and security. Such
action may include demonstrations, blockade, and other operations by air, sea, or land forces
of Members of the United Nations.

Case of Libya

UN Security Council Resolution 1973 is an example of the authorisation of the use of force by the
UN Security Council. On the 17 February 2011, soon after the outbreak of protests in Egypt and
Tunisia, which marked the beginning of The Arab Spring, Libyans in Benghazi joined in peaceful
protests against the oppressive rule of Colonel Muammar Gaddafi.

They demanded that he step down after 42 years of ruling Libya and called for an open, democratic
and inclusive Libya. They demanded the end of an era of oppression and gross human rights
violations in the country, such as those committed in 1996 in the Abu Salim prison. The response of
Gaddafi to this protest with armed violence against civilian protesters ignited a civil war between the
government forces in support of Gaddafi and the opposition armed forces formed by the rebels.

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

41
Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression.
42
Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression
Article 4343

1. All Members of the United Nations, in order to contribute to the maintenance of

international peace and security, undertake to make available to the Security Council, on
its call and in accordance with a special agreement or agreements, armed forces, assistance,
and facilities, including rights of passage, necessary for the purpose of maintaining
international peace and security.
2. Such agreement or agreements shall govern the numbers and types of forces, their degree
of readiness and general location, and the nature of the facilities and assistance to be
provided.
3. The agreement or agreements shall be negotiated as soon as possible on the initiative of
the Security Council. They shall be concluded between the Security Council and Members
or between the Security Council and groups of Members and shall be subject to ratification
by the signatory states in accordance with their respective constitutional processes."

Article 5144

Nothing in the present Charter shall impair the inherent right of individual or collective self-
defence if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self-defence shall be
immediately reported to the Security Council and shall not in any way affect the authority
and responsibility of the Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore international peace and security.

In 1970 the General Assembly adopted a resolution unanimously entitled Declaration on Principles
of International Law Concerning Friendly Relations and Co-operation among States45 in
accordance with the UN Charter. The resolution declared “every sate has the duty to refrain from
organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another states
or acquiescing in organised activities within its territory directed towards the commission of such
acts, when the acts referred to in the present paragraph involve a threat or use of force”.

Reference may also be made to the Declaration on the Enhancement of the Effectiveness of the
Principle of Refraining from the Threat or Use of Force in International Relations adopted by
the General Assembly on 18th November 1987. This Declaration solemnly declared-

1. Every State has the duty to refrain in its international relations from the threat or use of
force against the territorial integrity or political independence of any State, or in any other
manner inconsistent with the purposes of the United Nations. Such a threat or use of force
constitutes a violation of international law and the Charter of the United Nations and shall
never be employed as a means of settling international issues.
2. A war of aggression constitutes a crime against the peace, for which there is responsibility
under international law.

43
Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression
44
Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression
45
Resolution 2625 of 24th October 1970.
 3. In accordance with the purposes and principles of the United Nations, States have the duty
to refrain from propaganda for wars of aggression.
4. Every State has the duty to refrain from the threat or use of force to violate the existing
international boundaries of another State or as a means of solving international disputes,
including territorial disputes and problems concerning frontiers of States.
5. Every State likewise has the duty to refrain from the threat or use of force to violate
international lines of demarcation, such as armistice lines, established by or pursuant to an
international agreement to which it is a party or which it is otherwise bound to respect.
Nothing in the foregoing shall be construed as prejudicing the positions of the parties
concerned with regard to the status and effects of such lines under their special regimes or
as affecting their temporary character.
6. States have a duty to refrain from acts of reprisal involving the use of force.
7. Every State has the duty to refrain from any forcible action which deprives peoples referred
to in the elaboration of the principle of equal rights and self-determination of their right to
self-determination and freedom and independence.
8. Every State has the duty to refrain from organizing or encouraging the organization of
irregular forces or armed bands including mercenaries, for incursion into the territory of
another State.
9. Every State has the duty to refrain from organizing, instigating, assisting or participating
in acts of civil strife or terrorist acts in another State or acquiescing in organized activities
within its territory directed towards the commission of such acts, when the acts referred to
in the present paragraph involve a threat or use of force.
10. The territory of a State shall not be the object of military occupation resulting from the use
of force in contravention of the provisions of the Charter. The territory of a State shall not
be the object of acquisition by another State resulting from the threat or use of force. No
territorial acquisition resulting from the threat or use of force shall be recognized as legal.
Nothing in the foregoing shall be construed as affecting:

Grounds of Intervention
There are two grounds provided by the Charter namely (i) Self Defence (ii) Collective intervention
or enforcement action under chapter VII of the Charter. Apart from these two, other grounds of
intervention can also be discussed-
1. Self defence
2. Humanitarian
3. To enforce treaty rights
4. To prevent illegal intervention
5. Balance of power
6. For protection of persons and property
7. Collective intervention
8. To maintain international law
9. In civil war
1. Self Defence- self-defence has been a valid ground of intervention for long time. On the
ground of self-defence state may intervene in the affairs of another State. Mr. Webster in
this connection first founded a very important principle and said that necessity of self-
defence should be instant, overwhelming, leaving no choice of means and no movement
 for deliberation. This principle was affirmed by Nuremberg Tribunal in 1946. The test laid
down in Caroline case was finally are affirmed by the International Court of Justice in
Corfu channel case.
Corfu Channel case
Facts- Canada which was then the colony of Britain, some revolutionaries were trying to overthrow
the government. The ship named Caroline was carrying arms and men from across the river Niagra,
near in the territory of America, to assist the Rebels. The British government lodged protest against
the American government but with no effect. Consequently the British soldiers cross the river, ceased
the ship in American territory and left it floating. American government protested and asked British
government justify its action on the ground of self-defence and self-preservation. Mister Webster
propounded the above mentioned test. England fail to justify its action on the basis of this test and
had to express regrets.
Facts- North Corfu channel is between Albania and Greece. A part of it is maritime belt of Albania.
Before May 1946, the British ships had removed the mines from the channel and had insured that it
was safe for the passage of ships. That very month some British ships were fired at from the territory
of Albania resulting in damage to the ships. In addition to this, after sometime the British ships
suffered loss due to mines which were laid in the territorial waters of Albania. This also resulted in
the loss of lives of some persons. Consequently, the British ships removed mines explosive substance
from the said portion without seeking permission of the Albania government. Albania protested
against this and contended that it was a clear violation of Albania Sovereignty. On the other hand,
due to loss and damage to the British ship by mines, Britain raised this matter in the Security Council.
The Security Council advised Albania and Britain to refer this matter to the International Court of
Justice. In the beginning, Albania raised the objection in regard to the jurisdiction of International
Court of Justice in this matter. The International Court of Justice rejected the objection of Albania.
Ultimately Britain and Albania agree to refer the matter to the International Court of Justice for
education. Albania and Britain entered into a special agreement and brought this agreement refer to
the following questions for adjudication of the court
(1) Was Albania liable under international law for explosions in the Maritime belt? If
answer is yes weather, Albania is liable to pay damage for the same?
(2) Weather Britain violated the sovereignty of Albania by removing the explosive
substance from the territorial waters of Albania?
The International Court of Justice answer the first question in favour of Britain. The court decided
that Albania was responsible for explosions in territorial water. The court answered the second
question in favour of Albania.
It means Britain violated the sovereignty of Albania by removing the explosive substances from the
territorial waters of Albania without its permission. The court observed that Albania was under an
obligation to inform Britain about the mines and explosive substances. The court ruled that Albania
was liable for the loss and damage caused to the British warships on account of explosions and was
also liable to pay compensation to Britain.
The test propounded by Mr. Webster is valid with the only difference that intervention on the ground
of self-preservation is no more allowed. Thus instead of self-defence and self-preservation the valid
ground now is only self-defence, that too very much limited and curtailed by article 51 of the charter
of UN. However the concept of self-defence as expounded under article 51 includes the defence of
others and is called the right of individual and collective self-defence.
The United Nations charter enshrines the principle of individual and collective self-defence in article
51. Article 51 provides “nothing in the present charter shall impair the inherent right of individual or
collective self-defence in an armed attack occurs against a member of United Nations, until the
Security Council has taken the measures to maintain international peace and security. Measures taken
by members in exercise of this right shall be immediately reported to the security Council and shall
not in any way effect the authority and responsibility of the security Council under the present charter
to take at any time such action if it deems necessary in order to maintain or restore international peace
and security. The right of self-defence under article 51 is subject to following conditions-
a) There should be armed attack "
b) The right exists until Security Council has taken any action.
c) It should be reported to the security Council
d) It is subject to the review by security Council
e) This right shall not affect the responsibility of the Security Council for maintenance of
peace and security.
f) Right is not available against a non-member of united Nations
Thus beginning of armed attack is condition precedent for resort to force in self- defence. Alarming
military preparation done by neighbouring state would not justify resort to anticipatory force by state
which believed itself threatened.
Difference between self-defence and self-preservation
Under traditional or general international law there is hardly any difference between the two.
However it must be noted that self-preservation is much wider term than the self-defence. Under the
traditional international law intervention on the ground of self-preservation was permitted but in the
UN Charter it is not. Even the term self-preservation is not used. Under the traditional international
law even military preparation at the border of a state was sufficient to invoke the ground of self-
preservation. UN Charter permits intervention on the ground of self-defence not on the ground of
self-preservation. Self-defence is very restricted right and only can be invoked if there is any armed
attack happens as well as the conditions mentioned in Article 51 must be complied with.
Relationship between self-help and self defence
2. Intervention on humanitarian ground
Intervention permitted in past on humanitarian grounds. After coming into force of UN Charter, the
UN has done commendable work in the field of human rights. If at all intervention is permitted on
humanitarian grounds, it may only be done by UN on the basis of Article 1, 55 and 56. Charter does
not authorise any state to intervene in the other sate on the humanitarian ground and this is clear by
Article 2 (4) of the Charter. Even is prohibited to intervene in the internal affairs of a state by virtue
of Article 2 (7). Consequently on the human right ground even UN cannot interfere in the affairs of
any member state. The UN can do so by connecting or linking the matter of human rights with the
maintenance of international peace and security. If under Article 39 Security Council determines that
violation of human rights in any state poses a threat to peace or amounts to breach the peace then the
Security Council may intervene according to Chapter VII46 of the Charter. Example of it is-
intervention by the UN in Iraq on behalf of Kurdish people.
3. To enforce Treaty Rights
Intervention to enforce treaty was also permitted in past under international law. The Charter of the
UN does not permit intervention on such ground.
4. To prevent illegal intervention
In past there were several cases of intervention by states in order to prevent illegal intervention by
other states. But intervention on this ground is not permitted under UN Charter.
5. Balance of power
In past there have been many cases of intervention in order to maintain balance of power. In UN
Charter this is not at all valid ground. Thus no sate can intervene in the affairs of another state on this
ground. Now this ground has been converted or replaced by the system of collective security.
Although the nuclear conflict between US and USSR has been avoided by UN in order to balance of
power. Whenever supply of deadly weapons were made by US to Pakistan, India raised the issue of
balance of power in the sub-continent.
6. For protection of property and person
Earlier it was permitted but now it is not permitted.
7. Collective intervention
Under UN Charted this ground is permitted for intervention to check an aggression on breach of
international peace and security. Under Chapter VII Security Council has been empowered to take
collective action if there exists a threat or a breach of international peace and security or an aggression
has taken place. In the first stage, the Security Council takes such collective measures as do not
involve the use of force. But if such an action does not prove to be adequate, the Security Council is
empowered to employ armed forces. The UN took such action in Korea in 1950, Congo in 1961 and
action in Gulf War 1991 for the vacation of Iraqi aggression and occupation of Kuwait.
8. To maintain international Law
Before the establishment of League of Nations and United Nations, IL permitted intervention for
maintenance of IL. Intervention on this ground is no more permitted.
9. In civil war
If anything happens in any state it affects other states also. If there is civil war in one state naturally
it will affect other states also, directly or indirectly. In past many states intervened on this ground.
For example, in 1934-1938 Germany and Italy intervened in the war of Spain, in 1968 Russia
intervened in civil war of Czechoslovakia, Russia intervened in the matter of Hungary.

46
Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression
The question is how such intervention is justified in the view of UN if UN Charter provides the
principle of non-intervention. Jurists are of the opinion that such interference by Russia are not
justified. But Russia claims that its intervention was justified because it was based on request for
intervention by respective governments.
It may be noted that the UN can intervene in the matter of civil war only if Security Council first
determines under Article 39 of the Charter that it poses a threat to the peace and amounts to be an act
of aggression. If Security Council makes this determination, the provisions of Chapter VII of the
Charter will be applicable. Recent examples of such interventions are- intervention in Iraq on behalf
of the Kurdish people, in civil war of Yogoslavia, and Somalia.

Doctrines relating to intervention

There are two doctrines relating to intervention
Monroe Doctrine
This doctrine was propounded by President Monroe of US of A. This doctrine was in fact the reaction
of the treaty which Napoleon has entered into with some European States. In American Continent all
those states which were previously the colonies of Spain and other states, had become independent.
The European states wanted to re-establish their colonies in America and wanted to help Spain. In
the background of these events, the President of America made a declaration in 1823 which is called
Monroe Doctrine. This doctrine contains three important points-
(i) The States of America continent would no more be made subject of colonisation in
future
(ii) America would not intervene in mutual wars of European states
(iii) If European states would intervene in the affairs of American continent, America would
consider it unfriendly act and would take necessary action in this connection.
In short Monroe doctrine is based on the doctrine of non-intervention. In this declaration non-
intervention by USA was assured and there is no tolerance of intervention by any state in American
continent. This doctrine is focussed on the region of American continent. This doctrine is more
political in nature rather than legal in nature. This approach of USA was opposed by European states
and never got legal status. In the presence of UN Charter this doctrine lost its importance.
Drago Doctrine
This doctrine was propounded by Mr. Drago, Foreign Minister of Argentina. In fact this doctrine is
the complementary of Monroe doctrine. According to this doctrine European States could not
intervene in the affairs of American continent on the ground of claiming of public debts. This
principle was propounded because European States had started using military force to enforce the
claims of their citizens.
For example- England, Germany and Italy had enforced blockade against Venezuela. This blockade
was imposed because Venezuela had failed to fulfil financial obligations.
Precedents of intervention on the ground of self defence
Intervention in Egypt (Suez Canal case)
In 1956, Egypt nationalised Suez Canal on the ground of obtaining money to build Aswan Dam,
France, England and Israel reacted strongly against this action of Egypt and jointly made armed
intervention in Egypt in order to prevent Egypt. This was clear violation of Article 2 (4) and 51. The
problem was solved by the intervention of Soviet, Security Council and UN.
Case of Korea
In 1950, North Korea invaded South Korea. This invasion was also not justified on the ground of
self-defence. The Security Council of UN decided to take enforcement action against Korea. China
also intervened in Korea. China claimed that the presence of the UN forces in Korea was against the
interest and self-preservation of China. But the UN declared the intervention of China as illegal
intervention.
 Extradition
Meaning of Extradition
Term ‘extradition’ denotes the process whereby under a concluded treaty one State surrenders to any
other State at its request, a person accused or convicted of a criminal offense committed against the
law of the requesting State, such requesting State being competent to try the alleged offender.
In Extradition, there are two States involved, the territorial State for example – State, where an
accused or convicted, is found and to whom the request is made. And another state is requesting
State, for example, a State where the crime has been committed. The request is made normally
through the diplomatic channel.

Definition of Extradition

The Extradition may be defined as the surrender of an accused or convicted person by the State on
whose territory is found to the State on whose territory he is alleged to have committed or to have
been convicted of a crime. Some eminent jurist defines extradition as follows–

1. Lawrence-
Lawrence defines Extradition as “the surrender by one State to another of an individual who is
found within the territory of the former, and is accused of having committed a crime within the
territory of the latter; or who having committed a crime outside the territory of the latter is one of
its subjects and as such by its law amenable to its jurisdiction.”

2. Oppenheim
According to Oppenheim, “extradition is the delivery of an accused or a convicted individual to
the State on whose territory he is alleged to have committed or to have been convicted of, a crime
by the state on whose territory the alleged criminal happens for the crime to be.”
As defined by Hon’ble Supreme Court of India, ‘Extradition is the delivery on the part of one State
to another of those whom it is desired to deal with for crimes of which they have been accused or
convicted and are justifiable in the Courts of the other State’.

Purpose of Extradition

A Criminal is extradited to requesting State because of the following reasons –

(i) Extradition is founded on the broad principle that it is in the interest of the civilized
communities that criminals should not to go unpunished and on that account it is
recognized as a part of the comity of nations that one State should ordinarily afford to
another state assistance towards bringing offenders to justice.
(ii) Extradition has a deterrent effect because extradition act as a warning to criminal that
they cannot escape punishment by playing to another State
(iii) Criminals are surrendered as to safeguard the interest of territorial State.
(iv) Extradition is done because it is a step towards the achievement of international co-
operation in solving international problems of a social character.
(v) Extradition is based on reciprocity.
 (vi) The State on whose territory the crime has been committed is in better position to try
the offender because evidence is more freely available in that State only.

When can it be initiated?

An Extradition request for an accused can be initiated in the case of under-investigation, under-
trial and convicted criminals.

In cases under investigation, abundant precautions have to be exercised by the law enforcement
agency to ensure that it is in possession of prima facie evidence to sustain the allegation before the
Courts of Law in the Foreign State.

Difference between asylum and extradition- Basically extradition is relating to surrender a person
(who may be an offender, suspect, convicted etc.) to a requesting state by requested state. On the
other hand in asylum, protection to a person is given by a requested state to asylum

S.N. Asylum Extradition

1. Asylum can be defined as shelter as wellExtradition is a formal process where by a
as active protection which is provided tostate request to another state to surrender a
a political refugee by a state to whichperson who is an offender, suspect or
shelter or protection was sought. convicted.
2. A sovereign state is empowered to giveA sovereign state has to surrender the
asylum to any asylum seeking person onperson under an extradition treaty or on the
political offences47. basis of mutual consent, if requested state
do agree.
3. Generally asylum is given on politicalFor extradition, nature of offence does not
offences except few examples ofmatter. In any ordinary offences
economic offences. extradition may be done except political
offences.
4. Asylum is a matter between anExtradition is a matter between the two
individual and a state. state, requesting and requested states.
5. When asylum begins extradition ends. Extradition request must be made by
requesting state before the grant of asylum
otherwise extradition request cannot be
made.
6. Asylum may be territorial or [Link] is no such classification in
extradition.
7. Asylum intends to protect person orExtradition intends to help one state by
persons to become victim of politicalanother state not to escape a criminal, to
struggle. supress the crime and to assure justice.

47
In some cases state started giving asylum on economic offences also.
 8. Principle of dual criminality is notPrinciple of dual criminality is followed.
followed.
9. This intends to give protection toSending out of its territory.
individual in its own territory.
10. There is no need of any treaty. Treaty plays role in case of extradition.

Is extradition a legal duty of a state?

The US Supreme Court in Factor v. Labubenheimer (1933) held that International law recognises
no right to extradition apart from a treaty. A legal duty to surrender a criminal therefore arises only
when treaties are concluded by the states and after the formalities have taken place which are
stipulated in extradition treaties. Only in exceptional cases, a state may extradite a person on the
basis of reciprocity or courtesy.

Difference between Expulsion and Extradition

Extradition Expulsion or Deportation

Happens when a country requests for a Happens when an individual violates

fugitive to be returned. immigration laws.

Government is subject to certain rules

The Government has the unrestricted right to
such as treaties, rule of speciality and
expel. They don’t need to serve a show-cause
double criminality. They also have the
notice to the foreigner.
right to reject a request of extradition.

In India, extradition is governed by the In India, expulsion is governed by

Extradition Act of 1962. the Foreigners Act of 1946.

It was the case of Hans Muller of Nuremberg vs. Superintendent Presidency jail Calcutta and
others (1955) that stated extradition and expulsion are two different processes. The courts also
held that the government has the right to reject a request for extradition. If also have the right to
choose the less cumbrous process of expulsion to remove a foreigner from the country.

Examples of extradition without extradition treaty-

1. Abu Salem, an accused in 1993 Mumbai blast and an underworld don fled to Portugal along
with his wife Minica Bedi. But Portugal surrendered the accused without treaty and later
on High Court of Portugal also permitted the extradition of Monica Bedi in 2004.
2. Ottavio Quattracchi, the Italian Businessman and Boforce scam accused could not be
extradited to India from Argentina on the basis of reciprocity (in the absence of treaty) as
was done for Abu Salem with Portugal. Quattracchi could have extradited to India had the
 Indian government pushed this case seriously because extradition is possible under
Argentinian Extradition Act on a reciprocal basis.

Meaning of the terms political offences

Re Castioni Case 1891 QB

“the act should have been committed in the course of a political struggle or disturbance
during which two or more parties in the State are contending and each party seeks to
impose the government of its choice on the other”

Facts: Mr Castioni was a switch citizen. He killed a municipal councilor during the political
turmoil of Switzerland. Then he escaped to England. Later, Switch government demand extradition
of Mr Castioni. However, Mr Castioni asked not to extradite him as the issue is solely in political
character
Issue: where UK is bound to extradite Mr. Castioni or not?
Decision: The Queen’s Bench held that as the offence is of a Political Character and output of a
political conflict so UK is not bound to extradite Mr Castioni.
Reasoning: To bring an offence within the meaning of the words “of a political character,” it must
be incidental to and form part of political disturbances. The offence which he had committed was
incidental to and formed a part of political disturbances, and therefore was an offence of a political
character within the meaning of the statute.

Re Meunier Case 1894 QB

Justice Cave

“In order to constitute an offence of a political character, there must be two or more
parties in the State are seeking to impose the government of its choice on the other, and
that, if the offence is committed by one side or the other in pursuance of that object, it is
a political offence, otherwise not”.
The petitioner was a French anarchist who was charged with causing explosions at a café and also
in certain barracks in France, one of which resulted in death of two individuals. Justice Cave held
that
“in order to constitute an offence of a political character, there must be two or morw
parties in the State each seeking to impose the Government of their own choice on the
other, and that, if the offence is committed by one side or the other in pursuance of that
object, it is a political offence, otherwise not. In the present case, there are no two parties
in the state, each seeking to impose the Government of their own choice on the other; for
the party with whom the accused is identified …..namely, the parties of anarchy, is the
enemy of all Governments. Their efforts are directed primarily against the general body of
citizens.”
The principle laid down in Re Castioni and Re Meunier was followed for a fairly long time by
other states as well. The Federal Court of US in 1894 in Re Etza held that in order to bring an
offence within the meaning of the word political character it must be incidental to and form part
of political disturbance. The Federal Tribunal of Switzerland in Re Pawan, the Supreme Court of
Brazil in Re Benegas also applied the strict principle laid down in the Re Castioni case.

Criticism of this doctrine

It is noted that the above approach in defining the term political offence appears to be too narrow
and rigid. Many acts of individual such as terrorist acts of personal vengeance or for gain and acts
having an entirely local impact are excluded from the category of political offence. The approach
stresses that the object of the crime should be overthrow the government. It is submitted that an
may be described as political even if the object of its commission is not to overthrow the
government. For example, if a group of persons persuades the Government to do or not to do any
particular act, and in the course of their persuasion, they commit certain crime, their object is not
to overthrow the government, yet the crime may be considered as political.
Further the above view does not take account of the motive of the crime. An individual may fear
of not getting fair trial from the government of his own state on social, economic, religious or
cultural grounds which are inextricably woven with the policies of the government. Such persons
are not treated as political offenders according to the above approach taken in Castioni and
Meunier cases.

Ex parte Kolczynski case

In this case Lord Goddard deviated himself from above principles. He also felt it necessary on
considerations of humanity to give a wider and generous meaning to the term political offence.
In this case the meaning of political offence has been made wider than laid down in earlier cases.
According to this approach, it is not necessary that the crime should be committed by an organised
party to over through the government. Even membership of a political party was not regarded as
necessary. The definition laid down by justice Cassels in this case reveals that if any ordinary
crime is committed in the course of committing any offence against state that would be considered
political offence because of its close connection with the politics of the state and also because the
prosecution for ordinary crimes on the facts amounts to a prosecution for the political crime as
well.

Fiscal offences and extradition

Offence of purely fiscal character may be broadly mean the offences relating to revenues, taxes,
excise and customs etc. such offence generally involve public interest as opposed to private
interest. Extradition for a fiscal offence has not been generally practiced by the states, despite the
fact that there is nothing in International Customary Law which prohibits it. Indifferent attitude of
the states towards extradition on fiscal matter, people flee to other state to avoid fiscal liability.
Dr. Dharam Teja in 1978 escaped from India to avoid income tax liability of 4 cr. No extradition
proceeding started because there was no criminal charges. Although IL do not prohibit extradition
on fiscal matter. Para 3 of Extradition Treaty between India- Canada says that “Extradition shall
be ordered for an extradition offence notwithstanding that it may be an offence relating to taxation
or revenue or is one of a purely fiscal character”.

Sometimes difficulty may be experienced by states in relation to the extradition for economic
offender regarding the satisfaction on the basis of double criminality.
Chaleenges- offence, double criminality, attitude of states.
Rule of speciality
According to this principle, a fugitive may be tried by a requesting state only for that offence for
which he has been extradited unless he has been given an opportunity to return to territorial state.
The rule has been made to provide safeguard against fraudulent extradition. Indian Extradition Act
1962 provides this principle under Article 21. Article 14 of India-US extradition treaty also
incorporates this safeguard. In Daya Singh Lahoria v. UOI AIR 2001 SC, wherein Daya was
extradited from the US to India. Justice Pattanaik held that a fugitive brought in this country under
an extradition decree can be tried only for the offence mentioned in the extradition decree and for
no other offence and criminal courts of this country will have no jurisdiction to try such fugitive
for any other offence.

Prima facie evidence rule

There should be prima facie evidence of guilt of the accused. Before a person is extradited, the
territorial state must satisfy that there is prima facie evidence against the accused for which
extradition is demanded. The duty to furnish such evidence is on the state requesting for
extradition. This rule is made against fraudulent extradition. The territorial state will see whether
extradition is not motivated by political reasons.

Time barred crime

A fugitive criminal shall not be surrendered if he has been tried and has served sentence for the
offence committed in the territorial state. Thus extradition is not granted if the offence for which
extradition has to be made has become time barred.

Cases
1. Roman Polanski Case
This case is related to a very famous Hollywood director Roman Polanski who was charged with
child sex and was roaming free dated back to the 70s. Many repeated attempts were made by the
USA judicial authorities to have him extradited but all went futile. He was arrested in 2009 by the
Swiss government. The Swiss authorities denied the extradition because of a lack of legal
documents by the US authorities. In the present times, Polanski has successfully evaded extradition
and has avoided all the countries which are having extradition agreements with the USA while
successfully maintaining his image as a Hollywood director.

2. Adolf Eichmann Case

According to the reports, Eichmann was a SS (Schutzstaffel means political leaders in the German
Nazi Party) official who was in charge of Jewish deportations in Europe during World War II
(1939-1945). He had clandestinely lived in Argentina with a secret identity with the name
‘Clemens’ before he was officially found in 1960.

He was later tracked down by the Mossad which is the espionage and spy agency of Israel and was
abducted and sent back to Israel. He was found guilty in the year 1961 and was hanged in the
following year.

3. El Chapo’ Guzman Case ‘

Joaquin Guzman, a famous drug pin legend from Mexico who is known by its popular name, ‘El
Chapo’ was recently extradited to the United States of America and was presented in the federal
court. It was done according to the provisions which were given in the extradition treaty between
the USA and Mexico. Guzman is the year 2015, escaped from the prison of Mexico. The federal
court in the USA although did not pronounce the death penalty to the Guzman.
4. Julian Assange case
An Australian Citizen, an internet activist. In 2003 US attacked Irak on the basis of having some
weapon. One of soldier of US army send few videos of killing innocent persons to Assange. He
Founded Wikileaks in 2006 and made few secret documents public. In 2010 that soldier was
arrested. In Swedan, two ladies filed a case against Assange for sexual harassment, he lost the in
2012. In 2012 Assange fled UK and went Ecuadorian Embassy in London and stayed there 7 years.
In 2019 government changed in Ecuador and that government permitted UK police to arrest
Assange from Embassy and Assange was arrested by UK police. Now US is asking for extradition.
UK stopped extradition on mental health; he is not mentally fit and may commit suicide. Australian
Government offered Assange to come back his country after completing his punishment. Maxico
offered asylum to Assange.

Exceptions
On some occasions, fugitive take undue advantage of the principle of non-extradition of political
offenders by posing themselves as political offenders. In order to check abuse an attempt was made
to restrict the principle in certain cases. In 1856, Belgium introduced the attentat clause (Belge
clause) in its extradition law. Article VI of the Act provides that an attempt on the life of the head
of a foreign government or of a member of his family shall not be considered to be a political
offence or an act committed with such an offence. Few European states do follow this principle
but attentat clause has not been accepted as a general rule of IL because sometimes the head of the
state may be titular head.
There are few exceptions of political offence-
1. Genocide
2. War crimes or crimes against humanity
3. Hijacking, torture or hostage taking, injury to diplomats and grave breaches of Geneva
Convention on Law of War and Armed Conflict.
4. Localised criminal offences
5. Guilty of Human rights abuses

What is the Legislative Basis for Extradition in India?

The Extradition Act 1962 provides India’s legislative basis for extradition. It consolidated the
law relating to the extradition of criminal fugitive from India to foreign states. The Indian
Extradition Act, 1962 was substantially modified in 1993 by Act 66 of 1993.

What is the Extradition Treaty?- Section 2(d) of The Indian Extradition Act
1962 defines an ‘Extradition Treaty’ as a Treaty, Agreement or Arrangement
 made by India with a Foreign State, relating to the extradition of fugitive
criminals which extends to and is binding on, India. Extradition treaties are
traditionally bilateral in character.

Generally, there are five principles which are followed under the treaty:

 The extradition applies only to such offences which are mentioned in the treaty,
 It applies the principle of dual criminality (in absence of treaty) which means that the
offence sought to be an offence in the national laws of requesting as well as requested
country,
 The requested country must be satisfied that there is a prima facie case made against the
offender,
 The extradition should be made only for the offence for which extradition was requested,
 The accused must be provided with a fair trial.

At present India has an Extradition treaty with 43 countries and Extradition agreement with 11
countries.

Extradition Procedure in India

 Information about the fugitive criminals wanted in foreign countries is received from the
country or through Interpol.
 The Interpol wing of the CBI then passes the information to the concerned police
departments.
 The information is also passed on to the immigration authorities.
 Then, action can be taken under the 1962 act.

A few common bars on extradition

1. Failure to fulfil dual criminality – if the act for which the criminal’s extradition is requested
is not a crime in the requested state, then the state can refuse extradition.
2. Political crimes – most nations refuse the extradition of political criminal suspects. This
excludes terrorist offences and violent crimes.
3. The possibility of certain forms of punishment – if the accused is likely to receive capital
punishment or torture in the requesting State, the requested state can refuse extradition.
4. Jurisdiction – jurisdiction over a crime can be invoked to refuse extradition.
5. The absence of an extradition treaty.

Indian nationals who return to India after committing offences in West Asia/Gulf countries are not
extradited to those countries. They are liable to be prosecuted in India in accordance with Indian
Law, as bilateral treaties with these countries preclude (except Oman) extradition of own nationals.
The topic of extradition is in the news of late because of the Vijay Mallya’s fraud and money
laundering case. Mallya is in the United Kingdom and has been evading prosecution in India. In
December 2018, a UK court had ordered the extradition of Mallya.

Recent Developments in India

While India has a strong regulatory framework with regards to extradition for syndicated crimes,
loopholes were discovered for other crimes. Fraud cases had risen to approximately 6,000 cases in
the year of 2017-2018. it did not account for fugitive economic offenders until 2018, through the
enactment of the Fugitive Economic Offenders Act. In 2019, the banking and finance sector
suffered losses of a staggering ₹41,000 Crores resulting from frauds. Prime examples of recent
fraud cases include the cases of Vijay Mallya and Nirav Modi, who are both facing the extradition
process currently. In light of these fugitives using the loophole to their advantage and absconding
from India, the Fugitive Economic Offenders Act was enacted in 2018 with the aim of deterring
fugitive economic offenders from evading the process of law in India by seeking refuge in other
jurisdictions and to preserve the sanctity of the Indian rule of law.
As time has passed, the complexity and intricacy of extradition situations have also increased.
Following are some developments which highlight the same;

 The Mehul Choksi Case:

The case involving Mr. Choksi was one that stirred great controversy in India. Mr Choksi is wanted
in India for counts of criminal conspiracy, corruption, money laundering and criminal breach of
trust on account of the Punjab National Bank Loan Fraud.
After being accused of his crimes, Mr. Choksi fled to Antigua, where he purchased citizenship
under am investor scheme, in light of avoiding deportation to India for his Trial.
The Antiguan authorities are naturally reluctant to extradite one of their citizens as they believed
he would be subject to inhumane conditions in India. Thus, India is facing a difficult time retrieving
Mr. Choksi from Antigua.

 The Ravi Pujari Case:

Ravi Pujari was a popular gangster in the early 2000s who was known for threatening eminent
personalities in the film and real estate industries. He was wanted by officials on counts of murder
of Mr. Kukreja, a popular builder and on attempt to murder charges by Mr. Suresh Wadhwa.
Mr Pujari fled India and remained a fugitive in numerous countries such as Australia, The United
Arab Emirates, Burkina Faso and Senegal. His threat calls to a Kerala MLA traced his location to
Senegal, where he lived under the alias of Anthony Fernandez.
The fact that India had extradition arrangements with Senegal allowed Mr Pujari to be extradited
to Bangalore in the subsequent days.

Importance of extradition

Contemporary society with all its technological developments has become a play field to criminal
activities. Easier transportation and communication are aiding the criminals to easily
flee from the jurisdictional clutches of victim states. This increase the importance of extradition
treaty/arrangements

 Sovereign constrain: Since the sovereign constraints stop the victim state to effectively
exercise their jurisdiction, extradition alone offers the legal avenue to overcome the
jurisdictional hardship.
  To provide justice and grievance redressal: Bringing back offenders from foreign
countries is essential for providing timely justice and grievance redressal.
 Provides sense of gratification: Punishment of the criminal in the same country in which
the crime is committed provides sense of gratification and security of the public of that
country.
 Act as deterrence: It serves as a deterrent against offenders who consider escape as an
easy way to subvert India’s justice system.
 International cooperation: Extradition is step towards the achievement of international
cooperation in general required for solving international problems of a social character

Extradition is usually not granted for

 political offences
 for nationals of the requested country;
 offences where death penalty may be imposed;
 double jeopardy;
 where there could be actual or potential discrimination on account of religion, race and
nationality

Issues with extradition law

India’s success rate in extraditing fugitives is abysmally low; only one in every three fugitives are
being successfully extradited to India. India is not able to bring back like David Headley, Warren
Anderson and Vijay Mallya. Some key challenges are

1. Less number of bilateral extradition treaties: India has a fewer number of bilateral
extradition treaties compared to other countries. The US and the UK, for example, have
extradition treaties with over 100 countries each.
2. No extradition treaty with Neighbouring countries: India does not have extradition
treaties with several neighbouring states, such as China, Pakistan, Myanmar and
Afghanistan.
3. Irregularity in Investigation: At present, multiple extradition cases is handled by CBI
which in understaffed. Irregularities arise at investigation stage often delays extradition
4. Dual criminality: Extradition is possible only in cases that are seen as crimes in both the
countries in question. In past many offenders took help of dual criminality to avoid
extradition.
5. Double jeopardy: The “double jeopardy” clause, which debars punishment for the same
crime twice, is the primary reason why India, for example, has been unable to extradite
David Headley from the US.
6. Concerns of human rights violation: Primacy given to human rights concerns have
developed as a result of the strong individual rights movements in European nations. In
2017, British courts rejected the extradition of alleged bookie Sanjeev Kumar Chawla,
stating that his human rights may be violated over severe conditions in Delhi’s Tihar jail.
7. Poor prison conditions: Many European country consider poor prison conditions as a
form of human rights violation. Fugitives often raise this as a challenge during extradition
hearings.
 8. Documentary requirements: Extradition procedures often face unreasonable delays
because of improper or fabricated documents, and incorrect format of affidavits and
certificates that is required by foreign countries.
9. Bilateral relations and Domestic politics: It is often argued that extradition is as much a
political process as it is a judicial one. The expeditious processing of requests and the
commitment to prepare for and defend the case before Courts, depends on bilateral
relations and the opportune use of diplomacy and negotiations to push for the process by
the requested country.

Way ahead

Extradition is a sovereign decision. In spite of binding treaty mechanisms, the process of

extraditing fugitives is lengthy, complex and heavily depends on domestic law and politics of the
requested state. India could improve its success rate by

 Leveraging diplomacy and bilateral negotiations to persuade countries to process

requests expeditiously
 Indian government must conclude extradition treaties with as many countries as
possible, and make efforts to enter into more bilateral extradition relations
 India also needs to take steps to dispel concerns regarding poor prison conditions and
potential human rights violations. India could consider signing international instruments,
such as the UN Convention Against Torture (1984) to establish India’s zero tolerance
towards torture and custodial violence.
 For addressing investigational delays, it is imperative to improve the capacity and
organisational efficiencies of law enforcement agencies so that they may conduct speedy
investigation. Government should establish a central agency to take up larger cases
involving extradition as CBI is understaffed.

Conclusion

Extradition happens to be an important tool in ensuring law and justice today. However, the
irregularity in its application between nations poses a threat to the principles of justice. However,
it is essential to ensure a balance between extradition law and rights of an individual. It can be
understood that this field is a work in progress as the customary nature of this law vis-a-vis the
standing nature of human and individual rights makes the balancing act one of great difficulty.
This essentially means that extradition must at the least be in line with ensuring basic human rights
of an individual. Effectively, every country must comply with extradition request unless the
fugitive has a compelling reason to prevent such action. It is safe to say that the existing
international framework does undoubtedly increase the effectivity of law enforcement. But as a
caveat, it is essential to ensure to ensure the safety of the individual is ensured before the interest
of the other country so as to ensure that extradition is practical both in terms of respect and practice.
 INTERNATIONAL COURT OF JUSTICE

WHAT IS THE INTERNATIONAL COURT OF JUSTICE?

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. It was established by the Charter of the United
Nations, which provides that all Member States of the United Nations are ipso facto parties to the
Court’s Statute. The Statute, together with the Rules of Court, organizes the composition and
functioning of the Court. Since October 2001, the Court has also issued Practice Directions for use
by States appearing before it.

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 non-renewable terms in
office.

STATUTE OF THE COURT

The Statute of the International Court of Justice is annexed to the Charter of the United Nations,
of which it forms an integral part. The main purpose of the Statute is to organize the composition
and functioning of the Court.

Like the Charter, the Statute can only be amended by a two-thirds majority vote in the General
Assembly and ratification by two thirds of the States (Art. 69).

Should the ICJ wish its Statute to be amended, it must submit a proposal to that effect to the
General Assembly by sending a written communication to the Secretary-General of the United
Nations (Art. 70). Hitherto, however, the Statute of the Court has never been amended.

RULES OF COURT

Article 30 of the Statute of the International Court of Justice provides that “[t]he Court shall frame
rules for carrying out its functions.” These Rules are intended to supplement the general rules set
out in the Statute and to make detailed provision for the steps to be taken to comply with them.
 PRACTICE DIRECTIONS

The Court adopted its first Practice Directions for use by States appearing before it in October
2001. Practice Directions supplement, rather than alter, the Rules of Court. They reflect the Court’s
ongoing review of its working methods. Once adopted by the Court, amendments to the Practice
Directions are posted on the Court’s website and published in the Court’s Yearbook, with a note
of any temporal reservations relating to their applicability.

JURISDICTION OF THE ICJ

The Court’s jurisdiction is twofold:

1. Contentious jurisdiction: It decides, in accordance with international law, disputes of a

legal nature that are submitted to it by States (jurisdiction in contentious cases); and
2. Advisory jurisdiction: It gives advisory opinions on legal questions at the request of the
organs of the United Nations, specialized agencies or one related organization authorized
to make such a request.48
The United States originally accepted the Court's compulsory jurisdiction under Article
36(2) with a number of reservations. This acceptance was terminated in 1985 and was
prompted by the U.S. government's dissatisfaction with the Court's decision in Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), 1986 I.C.J.
14.

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.49
In this context an international legal dispute can be defined as

 a disagreement on a question of law or fact,

 a conflict, or
 a clash of legal views or interests.

48
[Link]
49
[Link]
 Further, it becomes imperative to understand as to who can institute proceedings before the ICJ.

Who can appear or institute proceedings before the ICJ? 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.50

Further, Article 35 of the Statute defines the conditions under which States may access the Court.
Article 35 reads as follows:

“1. The Court shall be open to the states parties to the present Statute.

2. The conditions under which the Court shall be open to other states shall, subject to
the special provisions contained in treaties in force, be laid down by the Security
Council, but in no case shall such conditions place the parties in a position of
inequality before the Court.

3. When a state which is not a Member of the United Nations is a party to a case, the
Court shall fix the amount which that party is to contribute towards the expenses of
the Court. This provision shall not apply if such state is bearing a share of the
expenses of the Court.”

(i) The first paragraph of that Article states that the Court is open to States parties to the Statute.
(ii) The second paragraph is intended to regulate access to the Court by States which are not parties
to the Statute.

50
[Link]
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.

(i) States that are parties to the Statute

The first paragraph of Article 35 states that the Court is open to States parties to the Statute. The
following are the ways in which the Court shall be open to the States:

States that are members of the United Nations: Article 35, paragraph 1 of the Statute, as seen
earlier, 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. Thus, the present members of the UN (193 members) are
parties to the Statute.

States not members of the United Nations but parties to the Statute: Article 93, paragraph 2, of the
Charter of the United Nations provides that States which are not members of the United Nations
may become parties to the Statute of the Court on conditions to be determined in each case by the
General Assembly upon the recommendation of the Security Council. Switzerland (as from 28
July 1948), Liechtenstein (as from 29 March 1950), San Marino (as from 18 February 1954), Japan
(as from 2 April 1954) and Nauru (as from 29 January 1988) fell into this category before joining
the United Nations.

Some of the conditions that the General Assembly has imposed are:

(a) The conditions under which States that are not members of the United Nations but are
parties to the Statute may participate in the election of Members of the Court (Resolution
264 (III) adopted by the General Assembly on 8 October 1948) and,
(b) The participation of such States in the procedure for amending the Statute of the Court
(Resolution 2520 (XXIV) adopted by the General Assembly on 4 December 1969.
(ii) States not parties to the Statute to which the Court may be open
Under the terms of Article 35, paragraph 2, of the Statute, the Court is also open to other States
not parties to its Statute. This Article provides that the relevant conditions shall, subject to the
special provisions contained in treaties in force, be laid down by the Security Council, but in no
case shall such conditions place the parties in a position of inequality before the Court.

The conditions applicable in such instances are currently set out in Resolution 9 (1946) adopted
on 15 October 1946 by the Security Council, which stipulates that, in order to have access to the
Court, a State not party to the Statute must previously have deposited in the Registry of the Court
a declaration by which it accepts the Court’s jurisdiction, in accordance with the Charter of the
United Nations and subject to the conditions of the Statute and Rules of Court, and undertakes to
comply in good faith with the decision or decisions of the Court and to accept all the obligations
of a Member of the United Nations under Article 94 of the Charter.

Resolution 9 further states that such a declaration may be either-

  particular (and relate to a dispute or disputes which have already arisen) or
 general (and relate to all disputes or to one or several classes of disputes which have already
arisen or which may arise in the future).
In the past, particular declarations have been filed by Albania (1947) and Italy (1953), and general
declarations by Cambodia (1952), Ceylon (1952), the Federal Republic of Germany (1955, 1956,
1961, 1965 and 1971), Finland (1953 and 1954), Italy (1955), Japan (1951), Laos (1952) and the
Republic of Viet Nam (1952).

On 4 July 2018, Palestine deposited in the Registry of the Court a declaration that reads as follows:

“Pursuant to Security Council Resolution 9 (1946) of 15 October 1946, which provides

the conditions under which the Court shall be open to States not parties to the Statute
of the International Court of Justice, adopted by virtue of its powers under Article 35
(2) of the Statute of International Court of Justice, the State of Palestine hereby
declares that it accepts with immediate effect the competence of the International
Court of Justice for the settlement of all disputes that may arise or that have already
arisen covered by Article I of the Optional Protocol to the Vienna Convention on
Diplomatic Relations Concerning the Compulsory Settlement of Disputes (1961), to
which the State of Palestine acceded on 22 March 2018.

In doing so, the State of Palestine declares that it accepts all the obligations of a
Member of the United Nations under Article 94 of the Charter of the United Nations.”

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.

NOTE: Consent to the jurisdiction- 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.

For example, in Treatment in Hungary of Aircraft and Crew of the United States of America
(United States of America v. Hungary) (United States of America v. USSR); Aerial Incident of 10
March 1953 (United States of America v. Czechoslovakia); Antarctica (United Kingdom v.

Argentina) (United Kingdom v. Chile) etc., the Court found that it could not allow an application
in which it was acknowledged that the opposing party did not accept its jurisdiction.
In this regard, the rules of the Court becomes important. Article 38, paragraph 5, of the present
Rules of Court, which came into force on 1 July 1978, provides that:

“When the applicant State proposes to found the jurisdiction of the Court upon a
consent thereto yet to be given or manifested by the State against which such
application is made, the application shall be transmitted to that State. It shall not
however be entered in the General List, nor any action be taken in the proceedings,
unless and until the State against which such application is made consents to the
Court’s jurisdiction for the purposes of the case.”

In Certain Criminal Proceedings (Republic of the Congo v. France) and Certain Questions of
Mutual Assistance in Criminal Matters (Djibouti v. France), following the filing of Applications
by Congo against France on 11 April 2003 and by Djibouti against France on 9 January 2006, the
Respondent consented to the Court’s jurisdiction. That consent led to those cases being entered in
the General List with effect from the date of receipt of the consent.

Forms of consent

Further, the form in which this consent is expressed determines the manner in which a case may
be brought before the Court. Before proceeding with the forms of consent, a look at Article 36 may
be necessary to facilitate a better understanding if the following content.

“Article 36:
1. The jurisdiction of the Court comprises all cases which the parties refer to it and all
matters specially provided for in the Charter of the United Nations or in treaties and
conventions in force.

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:

 the interpretation of a treaty;

 any question of international law;

 the existence of any fact which, if established, would constitute a breach of

an international obligation;

 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.

6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall
be settled by the decision of the Court.”

Moving on, the following heads elaborate upon the forms of consent.

(a) Special agreement

Article 36, paragraph 1, of the Statute provides that the jurisdiction of the Court comprises all
cases which the parties refer to it. Such cases normally come before the Court by notification to
the Registry of an agreement known as a special agreement, concluded by the parties specially for
this purpose. The subject of the dispute and the parties must be indicated (Statute, Art. 40, para. 1;
Rules, Art. 39).

A few cases which have been submitted to the Court by means of special agreements include
Asylum (Colombia/Peru); Minquiers and Ecrehos (France/United Kingdom); Sovereignty over
Certain Frontier Land (Belgium/Netherlands); North Sea Continental Shelf (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands); Continental Shelf
(Tunisia/Libyan Arab Jamahiriya);Delimitation of the Maritime Boundary in the Gulf of Maine
Area (Canada/United States of America) (case referred to a Chamber); Continental Shelf (Libyan
Arab Jamahiriya/Malta); Frontier Dispute (Burkina Faso/Republic of Mali) (case referred to a
Chamber). Also, in the Corfu Channel (United Kingdom v. Albania) case, the Parties concluded a
special agreement after the delivery of the Judgment on the Preliminary Objection. The case
concerning the Arbitral Award Made by the King of Spain on 23 December 1906
(Honduras v. Nicaragua) was submitted by means of an application, but the Parties had previously
concluded an agreement on the procedure to be followed in submitting the dispute to the Court.
(b) Matters provided for in treaties and conventions

Also, 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. Some treaties or
conventions confer jurisdiction on the Court. It has become a common international practice for
international agreements - whether bilateral or multilateral - to include provisions, known as
jurisdictional clauses, providing that certain categories of disputes shall or may be subject to one
or more methods of pacific dispute settlement. Numerous clauses of this kind provide for recourse
to conciliation, mediation or arbitration; others provide for recourse to the Court, either
immediately or if other means of dispute settlement fail.

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)]. With the exception of the 19 cases
which were brought by the notification of a special agreement, all contentious cases have been
brought before the Court by means of an application instituting proceedings, irrespective of
whether the Court’s jurisdiction was founded on a provision in a treaty or convention, declarations
recognizing the Court’s jurisdiction as obligatory made by each of the parties to the dispute, or any
other alleged form of consent.

Accordingly, if a dispute of the kind envisaged in the jurisdictional clause of a treaty arises between
the signatory States, they may either institute proceedings against the other party or parties by
filing a unilateral application, or conclude a special agreement with that party or parties providing
for the issues to be referred to the Court. The wording of such jurisdictional clauses varies from
one treaty to another.

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, the Permanent Court reproduced
the relevant provisions of the instruments governing its jurisdiction.51 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 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.”

Declarations recognizing the jurisdiction of the Court as compulsory

51
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).
As seen here, Article 36 para 2 states that 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.”

In accordance with Article 36(2) of the Statute of the Court, States may at any time declare that
they recognise 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.

Each State which has recognized the compulsory jurisdiction of the Court has in principle the right
to bring any one or more other States, which have accepted the same obligation, before the Court,
by filing an application instituting proceedings with the Court. Conversely, it undertakes to appear
before the Court should proceedings be instituted against it by one or more other such States.

The declarations recognizing the jurisdiction of the Court as compulsory take the form of a
unilateral act of the State concerned and are deposited with the Secretary-General of the United
Nations.

Reservations : Given that the nature of the jurisdiction of the Court is strictly consensual, States
are free to include reservations in their declarations, as long as they are compatible with the Statute
of the Court. Reservations are limitations on or exceptions or qualifications to the commitments
made in the declaration to recognise the jurisdiction of the Court. They protect the declaring State
against undesired involvement in judicial proceedings to the extent specified. However,
declarations are made on condition of reciprocity. Consequently, except as otherwise provided,
any reservation will weaken to the same extent the opportunity of the declaring State to bring a
case to the Court against another State. Thus, any State against which the declaring State brings a
case can invoke the declaring State’s reservation against the declaring State itself.
(d) Forum prorogatum

If a State has not recognized the jurisdiction of the Court at the time when an application instituting
proceedings is filed against it, that State has the possibility of subsequently accepting such
jurisdiction to enable the Court to entertain the case: the Court thus has jurisdiction as of the date
of acceptance under the forum prorogatum rule.

(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 filing preliminary objections. Such preliminary objections
have been raised in Corfu Channel (United Kingdom v. Albania); Rights of Nationals of the United
States of America in Morocco (France v. United States of America); Ambatielos (Greece v. United
Kingdom); Anglo-Iranian Oil Co. (United Kingdom v. Iran); Nottebohm (Liechtenstein v.
Guatemala); Certain Norwegian Loans (France v. Norway); Right of Passage over Indian
Territory (Portugal v. India); Interhandel (Switzerland v. United States of America); Aerial
Incident of 27 July 1955 (Israel v. Bulgaria) (United States of America v. Bulgaria); Barcelona
Traction, Light and Power Company, Limited (Belgium v. Spain) etc.

(f) Interpretation of a judgment

Article 60 of the Statute: “In the event of dispute as to the meaning or scope of the judgment, the
Court shall construe it upon the request of any party.”

Thus, 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).

Applications for interpretation have been made by Colombia in respect of the Asylum
(Colombia/Peru) case, Tunisia (along with an application for revision) in respect of the Judgment
delivered by the Court on 24 February 1982 in the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya) case, Nigeria in respect of the Judgment delivered by the Court on 11 June 1998 on
the preliminary objections in the case concerning Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), etc.

(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).

An application for revision and interpretation of the judgment was filed by Tunisia in respect of
the Judgment of 24 February 1982 in the case concerning the Continental Shelf (Tunisia/Libyan
Arab Jamahiriya). On 24 April 2001, Yugoslavia filed an application for revision of the Court’s
Judgment of 11 July 1996 on the Preliminary Objections in the case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia).

ADVISORY JURISDICTION:

Since States alone are entitled to appear before the Court, public (governmental) international
organizations cannot be parties to a case before it. However, a special procedure, the advisory
procedure, is available to such organizations and to them alone. This procedure is available to five
United Nations organs, fifteen specialized agencies and one related organization. Though based
on contentious proceedings, advisory proceedings have distinctive features resulting from the
special nature and purpose of the advisory function.

Article 65-68 of the Statute which talk about Advisory Opinions is important in this regard. Article
65-

1. The Court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the
United Nations to make such a request.
 2. Questions upon which the advisory opinion of the Court is asked shall be laid
before the Court by means of a written request containing an exact statement of
the question upon which an opinion is required, and accompanied by all documents
likely to throw light upon the question.

Article 67 –

“The Court shall deliver its advisory opinions in open court, notice having been given
to the Secretary-General and to the representatives of Members of the United Nations,
of other states and of international organizations immediately concerned.”

Article 68 –

“In the exercise of its advisory functions the Court shall further be guided by the
provisions of the present Statute which apply in contentious cases to the extent to which
it recognizes them to be applicable.”

Thus, advisory proceedings begin with the filing of a written request for an advisory opinion
addressed to the Registrar by the United Nations Secretary-General or the director or secretary-
general of the entity requesting the opinion. In urgent cases the Court may take all appropriate
measures to speed up the proceedings. To assemble all the necessary information about the
question submitted to it, the Court is empowered to hold written and oral proceedings.

A few days after the request has been filed, the Court draws up a list of the States and international
organizations that are likely to be able to furnish information on the question before the Court.
Usually, the States listed are the member States of the organization requesting the opinion, while
sometimes the other States to which the Court is open in contentious proceedings are also included.
As a rule, organizations and States authorized to participate in the proceedings may submit written
statements, followed, if the Court considers it necessary, by written comments on others’s
statements. These written statements are generally made available to the public at the beginning
of the oral proceedings, if the Court considers that such proceedings should take place.

Contrary to judgments, and except in rare cases where it is expressly provided that they shall have
binding force (for example, as in the Convention on the Privileges and Immunities of the United
Nations, the Convention on the Privileges and Immunities of the Specialized Agencies of the
United Nations, and the Headquarters Agreement between the United Nations and the United
 States of America), the Court’s advisory opinions are not binding. The requesting organ, agency
or organization remains free to decide, as it sees fit, what effect to give to these opinions.

Despite having no binding force, the Court’s advisory opinions nevertheless carry great legal
weight and moral authority. They are often an instrument of preventive diplomacy and help to
keep the peace. In their own way, advisory opinions also contribute to the clarification and
development of international law and thereby to the strengthening of peaceful relations between
States.

Organs and agencies authorized to request advisory opinions

In accordance with Article 96, paragraph 1, of the Charter of the United Nations “[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 “[o]ther organs of the United Nations and
specialized agencies, which may at any time be so authorized by the General Assembly, may also
request advisory opinions of the Court on legal questions arising within the scope of their
activities.”

Suggestion- Students are supposed to include suggestions on the basis of class discussion.
 The International Criminal Court (ICC)
The Court’s origins
In the wake of World War II, Nuremberg Trials (the first international war crimes tribunal) was
launched by the Allied powers to prosecute top Nazi officials. Until the 1990s, the governments did
not coalesce around the idea of forming a permanent court to hold the individuals guilty for the
world’s most serious crimes. To deal with war crimes in Yugoslavia and Rwanda, the United Nations
had set up ad hoc international criminal tribunals, but these tribunals were considered to be inefficient
and inadequate by many international law experts. Trinidad and Tobago requested that a UN
commission look into the creation of a permanent court in 1989. Such efforts gained support in the
following years, especially in Europe and Africa. The European Union adopted a binding policy in
support of the International Criminal Court in 2011.
In July 1998, at a conference in Rome, the founding treaty of ICC was adopted by the UN General
Assembly. In July, 2001, the Rome Statute entered into force after it was ratified by more than sixty
countries.

Member states
There are 123 countries which are party to the Rome Statute. Countries including Ethiopia, North
Korea, Iraq, Turkey, Saudi Arabia, Indonesia, China and India never signed the treaty. Several dozen
other countries signed the statute, but it was never ratified by their legislatures. These countries
include Egypt, Israel, Iran, Sudan, Russia, Syria, and the US.

Jurisdiction of the Court

The following articles of Rome Statute are important for the purpose of jurisdiction of the Court-
Article 51 Crimes within the jurisdiction of the Court
The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international
community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the
following crimes:

a) The crime of genocide;

b) Crimes against humanity;
c) War crimes;
d) The crime of aggression.

Article 12 Preconditions to the exercise of jurisdiction

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court
with respect to the crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one
or more of the following States are Parties to this Statute or have accepted the jurisdiction
of the Court in accordance with paragraph 3:
a) The State on the territory of which the conduct in question occurred or, if the crime was
committed on board a vessel or aircraft, the State of registration of that vessel or
aircraft;
b) The State of which the person accused of the crime is a national.
 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph
2, that State may, by declaration lodged with the Registrar, accept the exercise of
jurisdiction by the Court with respect to the crime in question. The accepting State shall
cooperate with the Court without any delay or exception in accordance with Part 9.
Article 13 Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance
with the provisions of this Statute if:
a) A situation in which one or more of such crimes appears to have been committed is referred
to the Prosecutor by a State Party in accordance with article 14;
b) A situation in which one or more of such crimes appears to have been committed is referred
to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the
United Nations; or
c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with
article 15.
Article 14 Referral of a situation by a State Party
1. A State Party may refer to the Prosecutor a situation in which one or more crimes within
the jurisdiction of the Court appear to have been committed requesting the Prosecutor to
investigate the situation for the purpose of determining whether one or more specific
persons should be charged with the commission of such crimes.
2. As far as possible, a referral shall specify the relevant circumstances and be accompanied
by such supporting documentation as is available to the State referring the situation.

General Principles of Criminal Law

The following principles of criminal law given in the Rome Statute and followed during the
proceedings before ICC.
Article 22 Nullum crimen sine lege (no crime without law)
1. A person shall not be criminally responsible under this Statute unless the conduct in
question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.
2. The definition of a crime shall be strictly construed and shall not be extended by analogy.
In case of ambiguity, the definition shall be interpreted in favour of the person being
investigated, prosecuted or convicted. (principle of innocence)
3. This article shall not affect the characterization of any conduct as criminal under
international law independently of this Statute.
Article 23 Nulla poena sine lege (one cannot be punished for doing something that is not prohibited
by law)
A person convicted by the Court may be punished only in accordance with this Statute.
Article 24 Non-retroactivity ratione personae (No retrospective effect of criminal law)
1. No person shall be criminally responsible under this Statute for conduct prior to the entry
into force of the Statute.
2. In the event of a change in the law applicable to a given case prior to a final judgement, the
law more favourable to the person being investigated, prosecuted or convicted shall apply.
Article 25 Individual criminal responsibility (Individual liability)
1. The Court shall have jurisdiction over natural persons pursuant to this Statute. Except A
26 Minor cannot be tried by ICC.
 2. A person who commits a crime within the jurisdiction of the Court shall be individually
responsible and liable for punishment in accordance with this Statute.
3. *********
4. No provision in this Statute relating to individual criminal responsibility shall affect the
responsibility of States under international law.

Ten key facts about the legal process

In furtherance to the key features that are listed above, some of the basics are as follows:

1. The ICC does not prosecute those who are under the age of eighteen years when a crime
was committed. (A. 26)
2. Before a prosecutor can investigate, a preliminary examination must be conducted
considering the matters such as jurisdiction, gravity, complementarity, sufficient
evidence and the interests of justice.
3. While investigating, the Prosecutor must disclose and collect both incriminating and
exonerating evidence.
4. The defendant would be considered innocent until he/she is proven guilty. The onus of
proof lies with the Prosecutor.
5. During all stages of proceedings, that is, Pre-Trial, Trial and Appeals, it is the duty of
the prosecutor that the defendant should be given all the information related to the case
in a language he or she understands fully; thus the ICC proceedings are conducted in
multiple languages, with teams of interpreters and translators at work.
6. Pre-Trial judges may issue warrants of arrest and have to ensure that there is enough
evidence available so as to send a case for trial.
7. During the Pre-Trial phase, (before a case is committed to trial) the defendant is referred
to as a suspect and not as an accused. Once the case reaches its trial stage, the defendant
would be referred to as the accused as at that point the charges have been confirmed.
8. Trial judges hear the evidence from the defence, the Prosecutor and the victims’
lawyers, render a verdict, and sentence and decision on reparations if a person is found
guilty.
9. Judges who hear appeals render decisions on appeals from the defence or Prosecutor.
10. A case which has been closed without a verdict of guilty can be reopened if the
prosecutor brings on record new evidence.
India’s stand on International Criminal Court
The government of India has frequently opposed the ICC. India with holds in the vote adopting
the Rome Statute in [Link] main reason of not accepting the Rome Statute is that the Rome
Statute of the ICC defines war crimes including the ‘Armed Conflict not of an international
character’. The insertion of armed dispute not of Global nature for describing war crime in the
Article eight of Rome Statute for ICC has meet up with refusal by Indian Government.
 Reasons for Rejections of Indian Government to the Rome Statute

1. It makes the ICC inferior from the UN Security Council & there are many governmental
interventions by giving it the authority to transfer cases to ICC and the authority to stop
ICC’s hearings.
2. Give exceptional powers to the UN Security Council for binding non state parties to
ICC; this infringes basic concept of the Vienna convention of law of treaties that no
country shall be forced to accept an agreement or to be restrained by the provisions of
an agreement it has not approved.
3. Blurred lawful difference among normative customary law & treaty responsibility
especially in respect of interpretation of crime against humanity & their relevancy to
private conflicts, putting countries in apposition of being bound to concur through the
Rome Statute to provisions of Global treaties which they have not signed.
4. Allows no reservation or withdraw provisions to empower state for safeguarding their
involvement.
5. Awkwardly vested wide capacity & power to start investigations & target jurisdiction
of the court in the hand of a specific prosecutor.
6. Declines to designate the usage of nuclear arms & ammunition & terrorism among
offence within the fight of ICC, as suggested by India.

Important cases of ICC

Muammar Gaddafi
Muammar Gaddafi was indicted on 27 June 2011 on two counts of crimes against humanity with
regard to the situation in Libya. As the Leader of the Revolution (the de facto head of state) and
Commander of the Armed Forces of Libya he allegedly planned, in conjunction with his inner circle
of advisers, a policy of violent oppression of popular uprisings in the early weeks of the Libyan civil
war. He allegedly formulated a plan in response to the 2011 Tunisian and Egyptian revolutions
whereby Libyan state security forces under his authority were ordered to use all means necessarily
to quell public protests against his government. From 15 February 2011 until at least 28 February
2011, forces from government-organized militias, the national police, the Libyan Armed Forces, the
Revolutionary Guard Corps, and other security services, acting under Gaddafi's orders, allegedly
murdered hundreds of civilians and committed "inhuman acts that severely deprived the civilian
population of its fundamental rights" in the cities of Ajdabiya, Bayda, Benghazi, Derna, Misrata,
Tobruk, and Tripoli. Gaddafi was killed in the Libyan city of Sirte on 20 October 2011 and the Court
terminated proceedings against him on 22 November 2011.
Ahmad al-Mahdi
Ahmad al-Mahdi was indicted on 18 September 2015 with one count of war crimes with regard to
the situation in Mali. Al-Mahdi was alleged to have been the leader of Ansar Dine's "morality
brigade" during the time that it and al-Qaeda in the Islamic Maghreb controlled Timbuktu during the
Northern Mali conflict. It is alleged that between about 30 June 2012 to 10 July 2012 he directed and
participated in an attack against at least nine mausoleums and one mosque in the city. The majority
of the sites attacked constitute a World Heritage Site. He was indicted for the war crime of
"intentionally directing attacks against buildings dedicated to religion and/or historical monuments."
On 26 September 2015 he was transferred by the government of Niger to the custody of the Court,
and arrived the same day at the detention center in The Hague. He made his first appearance before
the Court on 30 September 2015. The confirmation of charges hearing took place on 1 March 2016
before Pre-Trial Chamber I, which confirmed the sole charge against al-Mahdi on 24 March 2016.
The trial commenced on 22 August 2016, during which al-Mahdi pleaded guilty to the charge. On
27 September 2016 the trial chamber found al-Mahdi guilty and sentenced him to nine years'
imprisonment.
Uhuru Kenyatta
Uhuru Kenyatta is the current President of the Republic of Kenya. He was indicted on 8 March 2011
on five counts of crimes against humanity with regard to the situation in the Republic of Kenya.
Kenyatta, as a supporter of Kenyan President Mwai Kibaki, is alleged to have planned, financed, and
coordinated the violence perpetrated against the perceived supporters of the Orange Democratic
Movement, the political party of the President's rival, during post-election violence from 27
December 2007 to 29 February 2008. Kenyatta is alleged to have "had control over the Mungiki
organization" and directed it to conduct murders, deportations, rapes and other forms of sexual
violence, persecutions, and other inhumane acts against civilians in the towns of Kibera, Kisumu,
Naivasha, and Nakuru. Kenyatta was summoned to appear before the Court on 8 April 2011 and the
confirmation of charges hearing was held from 21 September 2011 to 5 October 2011, in conjunction
with the cases against Mohammed Ali and Francis Muthaura. All the charges against Kenyatta were
confirmed by Pre-Trial Chamber II on 23 January 2012. However, before the trial began, the
Prosecutor announced on 3 December 2014 that she was withdrawing all of the charges. The Trial
Chamber terminated the proceedings against Mr. Kenyatta on 13 March 2015.
Germain Katanga
Germain Katanga was indicted on 2 July 2007 on three counts of crimes against humanity and six
counts of war crimes with regard to the situation in the Democratic Republic of the Congo (DRC).
On 26 June 2008, the charges were revised to four counts of crimes against humanity and nine counts
of war crimes. He was alleged to have been the leader of the Front for Patriotic Resistance in Ituri
(FRPI), an armed group composed mostly of members of the Ngiti ethnicity that was active during
the Ituri conflict. On and around 24 February 2003, he is alleged to have ordered his forces to attack
the village of Bogoro in a military operation coordinated with the Nationalist and Integrationist Front
(FNI), an allied armed group composed mostly of members of the Lendu ethnicity. The target of the
attack was alleged to have been both the village's predominantly Hema civilian population and the
base of the Hema armed group, the Union of Congolese Patriots (UPC), located in the center of the
village. Katanga is alleged to be responsible for the resulting crimes committed by FRPI and FNI
fighters, including the intentional attack on the civilian population of Bogoro, the destruction and
pillaging of Bogoro, the killing of at least 200 civilians, the use of child soldiers during the attack,
rape, outrages upon personal dignity, "inhumane acts of intentionally inflicting serious injuries upon
civilian residents", and "cruel treatment of civilian residents of, or persons present at Bogoro village
by detaining them, menacing them with weapons, and imprisoning them in a room filled with
corpses".

Katanga was arrested by Congolese authorities on 1 March 2005 in connection with an attack that
killed nine United Nations peacekeepers. After the Court issued a warrant for his arrest, Katanga was
transferred to the Court on 17 October 2007. His trial began on 24 November 2009. The Trial
Chamber delivered the judgment in the case on 7 March 2014, finding Katanga guilty of four counts
of war crimes and one count of crime against humanity. On 23 May 2014, Katanga was sentenced to
12 years' imprisonment. Although both the prosecution and the defense appealed the judgment and
the sentence, both parties discontinued their appeals on 25 June 2014, thus ending the proceedings.
On 13 November 2015, a panel of judges from the Appeals Chamber reduced Katanga's sentence of
12 years' imprisonment by 3 years and 8 months. The Court transferred Katanga to the Democratic
Republic of the Congo on 19 December 2015 to serve his sentence. Katanga completed his sentence
on 18 January 2016.
Criticism of ICC
The ICC is generally criticized for biasness, it is criticized for punishing commanders of small and
powerless states while avoiding crimes committed by richer and strong states. Till 2016 all the 9
cases which the ICC was working on were of African countries. The U.S. department of state
proclaims that there are inadequate checks and balances on the authority of ICC’s judges and
prosecutors. The International Criminal Court was set up for removing the load of requesting &
supervising the investigation & prosecution of International Criminal Law infringement from the UN
Security Council.
The ICC is usually blamed for being ineffective, incapable & expensive, given judgement only of 4
convictions which are (Katanga, Thomas Lubanga, Jaen Pierre Bemba & Al Mahdi) in fifteen years
of period.
International Criminal Court also faces difficulties which are sometimes unnoticed. Before a case is
prepared against an individual the Office of Prosecutor should investigate the condition in country to
examine if the court can act to determine the accused & to make case contrary to them.
No state co-operation in case of its own people.
No proper representation of states of the world in selection of judges.
Genocide cases, war crimes & crimes against humanity are very complicated & involve dealing with
big volumes of proofs from an overseas authority. As it is noticeable from an ad hoc panel which
opposed to the International Criminal Court are attentive on very 1st spot only. The International
panel for the past Yugoslavia & the International Criminal panel for Rwanda, these types of matters
take time & resource.