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UNIT – I

NATURE AND DEFINITION OF INTERNATIONAL LAW

Introduction: - The word “International Law” was used for the first time by Jermy
Bentham in 1780. Since then these words have been used to denote the body of rules and
principles which regulate the relations among the members of international community.
The term „members of International community‟ now denotes States, International
organizations, individuals and certain non-State entities.

International law is a body of rules which regulates the relationship between and among
[Link] rules of international law are derived from custom and treaties which are
enumerated under article 38 statutes of International court of justice.

Public International law is that the rules applied on states uniformly. Tradionally
International law regulates the states relationship [Link] modern International law is
concerned of not only states, individuals, international organisations and international
institutions.

Private international law is the law of different states (conflict of laws) and matters of
individuals which may fall under the jurisdiction of two or more states. eg. Contract of
sale.

Definition:-

Prof. L. Oppenheim has defined International Law in the following words:– “The 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”.

Criticism
1. The definition was given by Oppenheim in 1905. Now it became inadequate.
Because traditionally international law is the relationship of states and states only.
But now generally recognized that not only states but also private individuals and
international organisations are also having rights and duties under internatational
law. Effets of awards , compensation made by U.N. administrative tribunals,The
convention of 1965 on settlement of investment disputes between states and
Nationals of other states, Universal Declaration of Human Rights (UDHR) 1948,
International Covenants on Economic, social and cultural rights,optional protocol
to covenants on Civil and Political rights 1966, and European Convention on
Human rights 1950 etc.

2. International law now consists of not only customary & conventional rules but also
general principals of law. Article 38 statute of ICJ mentions general principles as a
third source.

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3. In 9th edition of Oppenheim‟s international law contains that international law is

the body of rules which are legally binding on states in their intercourse with
each other.

According to C.G. Fenwick international law is the body of general principles and specific
rules which are binding upon the members of international community in their mutual
relations.

According to J.G .Starke, international law is the 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 do observe in their relations with each other and includes: the rules of law
relating to the function of international institutions or international organisations, their
relations with each other and relations with state and individuals.
According to Hall “International Law consists of certain rules of conduct which modern
civilized States regard as being 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”.
According Gray: “International Law or the Law of Nations is the name of body of rules
which according to the usual definitions regulate the conduct of the States in their
intercourse with one another”.
In the words of Hackworth “International Law consists of a body of rules governing the
relations between States. It is a system of jurisprudence which for the most part, has
evolved out of the experiences and the necessities of situations that have arisen from time
to time”.
According to 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”.
[Link] case:-Permanent Court of International Justice (P.C.I.J) defined International
Law in the following words: “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”.
Whiteman defines International Law in the following words: “International Law is the
standard of conduct, at a given time, for State and other entities subject thereto”.
Nature of International Law:-
Is international law a true law:-This question is now only of academic interest because it
has been well established for once and for all times that International Law is true Law.
However, a discussion on this question is still important for it helps to understand the
nature of International Law. The controversy whether International Law is true law or not
depends upon the definition of the word law. As to Glanville l. Williams that law is a
verbal dispute and nothing [Link] are two views: In view of Hobbes, Pufendorf and
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Austin law is a command of sovereign and enforced by a superior political [Link]

law is the command of determinate superior, no law exists where there is no supreme
lawgiver and no coercive enforcement agency. Laws are limited to rules of conduct
enacted by a determinate legislature authority and enforced by physical sanction. In view
of Austin sanction occupies an important place in the enforcement of law. People follow
law because they fear that if they do not follow, they may be punished.

According to Hobbes, man is by nature nasty, brutish and violent. The fear of sanction
which is inherent in law is necessary to maintain order in society.
The definition of law given by Austin is not correct. If these views are accepted, then
international law cannot be included in the category of law. Hobbes, Bentham, Puffendorff
states that international law is not binding on states. They held their arguments when
compare to municipal law, International law lacks effective legislative machinery, there is
no executive power to enforce the decisions of ICJ and lacks a potential judiciary and lacks
sanction which is an essential element of law.
In the words of Prof. Oppenheim, “this definition is not correct. It does not cover that
part of municipal law which is termed as unwritten or customary law. There is, in fact, no
community and no State in the world which exist with written law only.
According to Oppenheim the existence of law presupposes the existence of three
prerequisites:- A community, A body or rules and common consent of the community that
if necessary these rules shall be enforced by the external [Link] he argued that
international law is constantly recognized as law in practice. The government of different
states feels that they are legally as well as morally bound to follow international law.
[Link] states that in the practice of states certain rules are regularly respected. For
example:- claims for compensation for breach of rules, crimes against peace and humanity,
Trade Organization, Labour Conventions, transport control and health regulations.
Henry Maine states that even before enacted laws communities were ruled by customs and
usages which enjoyed force of law as rules of conduct.
Most of the jurists now subscribe to the view that international law is law. [Link]
viewed that international law is really law if put-forth his argument that modern historical
jurisprudence has established in many communities, a system of law existed and observed
by the community. Such a law did not differ in the binding force of municipal law.
Customary rules of international law are diminishing and are replaced by law making
bodies. United Nations is based on the true legality of international law. It has been pointed
out that sanction is not an essential element of law. In some states like U.S.A and U.K.
international customary rules are treated as part of their own domestic laws. For example-
Paquet Habana.
Even sanction considered as an essential element, in international law there are sanctions.
For example charter of United Nations, Article 2(4), 2(7), chapter VI (Article 33 to 36) and
chapter-VII (Article 39 to 51), Article 94, the decisions of ICJ are binding on particular
disputes and parties. If the disputed party does not follow the decision, on the request of
other party the Security Council take necessary measures.

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Distinction between Public International Law and Private International Law:-The

main points of difference between Public International Law and Private International Law
are the following:
1) Public International Law for its major part, deals with States and to a lesser extent
with the individuals. Private International Law deals with the individuals.
2) Public International Law is a part of Municipal Law but so it is not always the case
with Public International Law.
3) Public International Law is same for all the States whereas Private International
Law may be different in different States.
4) Private International Law determines as to which Law will apply in a case having a
foreign element. There is no such problem in the field of Public International Law.
5) Private International Law also determines the court which will have jurisdiction to
decide the issue in question. In this respect also it differs from Public International
Law.
Weakness of the International Law:
Following are the weakness of the International Law:-
1) It lacks effective authority to enforce its rules.
2) It lacks effective legislative machinery.
3) The International Court of Justice has no compulsory jurisdiction in the true sense
of the terms.
4) The sanctions behind international law are very weak.
5) It cannot intervene in the matters which are within the domestic jurisdiction of
States.
6) Many rules of international law are uncertain and vague.
7) International law has failed to maintain order and peace in the world.
Suggestions for improving International Law:
1) The International Court of Justice should be given compulsory jurisdiction in the
true sense of the term.
2) An International Criminal Court should be established to decide cases of
International crimes.
3) International Law should be properly codified and scientifically revised from time
to time.
4) The machinery to enforce the decisions of the World Court should be strengthened.
5) The powers and scope of the activities of the International Law Commission should
be expanded.
6) The legislative activities of the General Assembly should be further enlarged.
7) The U.N. Charter should be amended as to authorize the U.N. to intervene in such
matters with the domestic jurisdiction of States as are of international concern.
8) The doctrine of judicial precedents should be applied in the field of international
Law.
9) In order to strengthen the legislative machinery of international law more law-
making treaties and conventions should be made and there should be a provision for
their revision from time to time.
BASIS OF INTERNTIONAL LAW:-There are the two main theories which attempt to
explain the basis of international law:- Theories as to law of Nature; and Positivism.

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1. Theories as to the Law of Nature:-According to the exponents of this theory

international law is a part of the law of nature. States follow international law because it is
a part of the law of nature which is a higher law. In their view, it is the natural law which
has conferred binding force on international law. In the beginning Natural Law was
associated with religion. International Law was considered binding because it was in fact,
natural law applied to special circumstances.
Criticism: Each follower of the natural law gives a different definition of the term of
„natural law‟. They use it as a metaphor. Different jurists ascribe different meaning to it
such as reason justice, utility general interest of international community etc. Thus the
meaning of the term „natural law‟ is very vague and uncertain. Besides this, the main
defect of this theory is that it is not based on realities and actual practice of the States. It
must however, be admitted that the law of nature has greatly influenced the growth of
international law.

2. Theory of Positivism:-Positivists base their theory on the actual practice of the States.
According to them in the ultimate analysis, will of States is the main source of
international law. International law they say, is binding because the States have given their
consent for the rules of international law. According to Italian jurist, Anzillotti, the
binding force of international law is based on a fundamental principle known as Pacta Sunt
Servanda (Agreements entered into by States must be respected and followed in good
faith).
Criticism: Positivists views have been severely criticized by many jurists. Following are
the main points of criticism:
1) The concept of will of State is purely metaphorical. The will of State is noting but
the will of the people who compose it.
2) In practice, it is never necessary to show in regard to any particular rule of
customary international law that the States had given their consent.
3) The positivists have based their theory on consent which has been severely
criticized by jurists.
4) It fails to explain the case of the admission of a new State into the family of nations.
When a state is admitted to the family of nations, international law becomes
applicable to it even without its consent.
Some other theories regarding the basis of International Law:-Following are some
other theories regarding the basis of international law:
Theory of Consent:-This is based on the Positivists view and has been criticized earlier.
This theory fails to explain the basis of international law. According to this theory States
observe rules of international law because they have given their consent for them.
Auto-Limitation Theory:-This theory is also based on the theory of consent and fails to
explain the basis of international law. It is based on the presumption that State has a will.
Moreover, auto-limitation is no limitation at all.
Pacta Sunt Servanda:- According to Anzillotti, the binding force of international law is
founded on the fundamental principles known PactaSuntServanda, which means that the
agreements entered into by the States must be followed by them in good faith. This
principle, though a fundamental and very important principle of international law, fails to
explain the binding force of customary rules of international law.
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Theory of Fundamental Rights:- the theory is based on naturalistic view. According to this
theory prior to the existence of state, man used to live in natural state and in state man
possessed some fundamental rights such as independence, equality, right to self-
preservation etc. Like individual state is also possessed these fundamental rights.
On the basis of the above arguments it may be concluded that international law is in fact
law. International Law operated entirely in a different setting. It operates in a
decentralized system.
ORIGIN AND BASIS OF INTERNATIONAL LAW
International law is the product of the experience of the civilized countries of the world and
it is the continuous growth of many centuries. In the view of Oppenheim, international is a
product of Christians civilization and gradually growth from the second half of the middle
ages. But some other Jurists were of the view that International Law was found in
Ramanaya & Mahabharatha.
For the origin of International Law, the contribution of Jews, Romans, Greeks, Hindus and
Muslims are of significant.

Jews: The ancient history reveals that the Jews had relations with other states. Their
relations with other countries were regulated and governed by certain rules. They strictly
followed the treaties entered into by them with other countries and they conferred
previlages and immuniteies on the diplomatic envoys.
Romans : In earlier period Rome was a small city- state and they had relations with other
states. Romans were following two types of war i.e. Just and Unjust war. Just War are:-
i. Atttack on Roman territories .
ii. Violation of the Previlages of Ambassadors
iii. Contravention of treaties.
The termination of war was:-
i. Through treaty of peace, conquest and annexation of the conquered territory.
ii. Treaty of friendship and
iii. Treaty of hospitality.
Greeks: Ancient history reveals that Greeks had achieved great advancements in different
fields and the philosophers like Socrates, Plato and Aristotle had enlightened the world
through their ideas. Greeks lived in small city – states. The mutual relations of states were
regulated and governed by some definite rules and principles. They had formulated definite
laws of war and peace. They used to reserve their disputes through Arbitration. Prior
declartion was made before the commencement of war. Oppenhim remarked that the
Greeks had shown to the world how Sovereign states could live in mutual co-operation
with each other.
Hindus: Ramayana reveals that the relations between Sovereigns in the age were governed
by a code of conduct based on principles which were recognised and observed by all the
sovereign states. Any violoation by any individual is condemmed by others.
Bhaghavathgeetha reveals the just and unjust wars and the declartion of war before its
[Link] and Mahabharatha reveals that diplomatic envoys was enjoying

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privileges and [Link] the Manu‟s view, killing of wounded and sick soldiers in war
was [Link] also contains the rules relating to the treatment of prisoners of war.
Muslims:The Muslim rulers of India had relations with other [Link] received the
ambassadors of other states and entered into treaties with [Link] muslim rulers
recognised the distinction between combatants and non-combatants. During the war,
women and children were protected.
16th and 17th century Treaty of west Phalia of 1648 was a great landmark which ended the
thirty years of war of [Link] was the beginning of the acceptance of new political order
in [Link] was also realised that no state can live alone and required perfect human
association.
Hugo Grotius was the father of mordern internatonal law. He published two treatises in
1609 and 1625.i.e. Mare liberum (Freedom of the sea) and Dejure Belli ac Pacis (On the
law of war and peace). He strongly argued Maritime powers were appropriating different
parts of the sea.
He held that sea‟s are the common hertitage of mankind and no state has complete control
over the sea and the prevailing conditions of that time were made in the [Link]
supplied a legal basis of international relations which were lacking at that [Link] that he
is called as Father of modern international [Link] writers were also contributted during
this time.i.e. Professor Bologna, Belli, Gentilis, Suarez, Ayala etc.

The followers of Grotius are called as Grotians and they held that international law has
originated not only from natural law but customs and treaties are also it‟s [Link]
defined natural law has the dictate of right reason and the act or omission is either
forbddien or commanded by god, the author of nature.
Positivists claimed their theory based on the actul practice of states enacted legislative
authority is binding.
19th and 20th century
In this period, the relations of the state and their mutual contracts had greatly increased and
many rules and principles were formulated on the basis of practice of [Link] are:
Congress of Vienna (1815):-It was the first Europen conference where many rules of
international law were formulated.e.g. rules relating to international rivers,classification of
depolmatic agents etc.
Declaration of Paris (1856):-In this treaty many rules relating to naval warfare were laid
down. Attack on undefended people during naval war was [Link] ships could
be sunk or destroyed during [Link] before doing so precautions to be taken to save the
life of the crew.
Geneva Convention (1864):-Many rules relating to the wounded and sick soldiers of land
warfare were laid down.
Hague conference of 1899 and 1907:-These conferences emphasized the settlement of
International disputes through peaceful means. Many rules of International law relating to
land warfare and naval warfare were formulated. Attempts were made to determine the

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limits of armaments and disarmaments. Duties and rights of neutral states during war were
laid down. The great contribution is the establishment of the permanent court of arbitration.
The League of Nations: -The League of Nations for the first time imposed certain
restrictions on Nations rights to resort to war at their will. It provided that before resorting
to war, they would first settle their dispute through Arbitration , Judicial settlement or
enquiry. Even if failed, not to wage war till the expiry of three months. Another great
achievement is the establishment of the permanent court of International justice.
Treaty of Locorno :- France, Britain, Germany and Italy etc concluded the treaty
whereby Germany, France and Belgium undertook the obligation of not to use force in
their settlement of boundry disputes.
Pact of Paris or Kellog-Briand (1928):-The parties to the treaty renounced war as an
instrument of their policy for the settlement of international disputes.
Geneva Convention (1929):- Many rules relating to the treatment of prisoners of war
were laid down. Reprisal against prisoners of war, cruelty and collective penalties against
them were prohibited. Rules relating to medical and other facilities were formulated.
Second World War:- During Second World War all-most all the rules of above are
violated. It sowed the seeds of a future word organisation.
United Nations:- It came into force on 24th October 1945. It is an international treaty
which regulates the mutual relations of its members. International law comission was
established by General Assembly to conduct and research in different aspects. For
Eg: declarations have been enunciated, important Principles have been formulated, new
conventions are drafted etc. For Eg. Vienna conventions on state succession etc.

In addition specialized agencies like FAO, IBRD, IMF, WHO, WMO etc are also
established.

SOURCES OF INTERNATIONAL LAW:-source means the origin or refers to method

or procedure created or discovered.
SOURCES

Formal Sources Material Sources

Main Sources

Art.38 Statute of ICJ (1) (a).International Conventions;

(b).International Customs;
(c).General Principles of Law recognized by civilized nations;
Subsidiary Sources

(d).Decisions of Judicial or Arbitral Tribunals;&Juristic Works;

(e).Decisions or Determinations of the organs of InternationalInstitutions.
Art.38(2) ex aequo et bono, if the parties agree the power of court to decide.

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OTHER SOURCES

International Comity
State Papers
State guidance for their officers
Reason

Formal Sources are the direct sources which are clothed by legal validity and obligatory
force.

Material sources are those contents of law and having the binding force.

The first five sources find mention in Art. 38 of the Statute of International Court of Justice
(ICJ) and the sixth source is conspicuous by its absence from the said Article for the
obvious reason that when Art. 38 was drafted and adopted for the first time, this source
was not in a sufficiently developed State.

a. International Conventions:-The term convention applies to any treaty protocol or

agreement regardless of its title or form. According to Art. 38 of the Statute of
International Court of Justice, it is the first sources of international law. In the modern
period, international treaties are most important sources of international law. As defined
by Art. 2 of Vienna Convention on the Law of Treaties, 1969, a treaty is an agreement
whereby two or more States establish or seek to establish relationship between them
governed by international law.

According to [Link], treaties are agreements between subjects of

international law creating a binding obligation in international law.

International Treaties may be following two types– Law-making Treaties; and Treaty-
Contracts.

(i). Law-Making Treaties:- Law Making Treaties are those treaties which are entered into
by a large number of States. These are the direct sources of international law. Law
making treaties may divided into following two types; (i) Treaties enunciating the rules of
Universal International Law: Those treaties which are signed by a majority of the States
are called the Treaties enunciating the rules of universal international law. (ii) Those
enunciating general principles: Treaties which are entered into by a large number of
countries enunciated general principles of international law 1958 and 1960. Geneva
Conventions on the Law of the Sea and Vienna Convention on Diplomatic Relations, 1961,
are good examples of such types of treaties.

(ii). Treaty Contracts: - Treaty Contracts are those 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 the source of international law because they held in the
development of customary rules of international [Link] example:- International Civil
Aviation Organisation (ICAO), Extradition Treaties.

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b. International Customs: - International Customs used to be the most important source

of international law in the past. In the modern period, their importance has lessened.
Article.38(b) of statute of ICJ recognizes international custom as evidence of general
practice accepted as law. The word custom and usage are not synonymous. Usage is a habit
which are often repeated by the states which has not yet received the force of law. When
states in their international relations start behaving in a particular way in certain
circumstance, it is expected that in similar circumstances they will behave in the same way.
This is called the usage. When usage receives the general acceptance of recognition by the
states in their relations with each other, there develops a conception that such a habit or
behaviour has become right as well as obligation of the state. In this way usage becomes
custom. Custom is a habit which has been repeated for a long time and has ultimately
assumed the force of law. Customary rules of international law have developed in the
following three circumstances – (a) Diplomatic relations between States;
(i) Practice of Organs of International Institutions;
(ii) State Laws, decisions of the State‟s Courts and State‟s Parliamentary or administrative
practices.
Ingredients or Elements of Custom:-
Following are main elements of an international custom:-
(i). Long duration
(ii).Uniformity and consistency;
(iii).General Practice accepted as an evidence of a law
(iv) Opinio juris ncessitatis.
(i). Long duration:- A custom should be ancient and immemorial. Long duration is not an
important fact but the practice must be accepted by states concerned as law. For example,
custom relating to sovereignty over Air-space and the Continental shelf.
(ii). Uniformity and consistency:- in Asylum case (Columbia V/s Peru), a person who had
been declared a fugitive after an unsuccessful rebellion led by him in Peru, was granted asylum by
the Columbian Embassy in Peru. Columbia sought from Peru a safe custody to allow him to leave
the country, but Peru refused to grant this. Under the 1928 Havana Convention on Political
Asylum, to which both the countries were parties, a political fugitive if granted diplomatic asylum,
was entitled to safe custody. However, Peru refused to accept the Columbian contention that it is
for the State granting the asylum to determine the nature of the crime, which would be binding on
the territorial state, and this rule is accepted as a customary rule among the Latin American
countries. Peru considered him merely a common criminal under its laws. The ICJ to whom the
dispute was referred for adjudication, refused to accept the Columbina contention that such a
custom exists among the Latin American States, since it failed to establish any clear evidence in
support of its contention. ICJ further held that the custom has no place in this case and also
the party which relies on custom must prove that the rule invoked should be in accordance
with a constant and uniform usage practiced by states. This usage is the expression of right
appertaining to the state granting Asylum and duty incumbent on the territorial state.

In Military and Paramilitary activities in and againstNicargua (Nicargua V/s USA)

the ICJ in referring occasional violations of the principle of non-intervention observed that
it is not to be expected in the practice states as the rules in question should be perfect i.e.,
complete consistency and the use of force or from intervention in each other‟s internal

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affairs. The court does not consider the rigorous conformity with the rule. To deduce the
existence of customary is that the conduct of states should be in general.
(iii).General Practice accepted as an evidence of a law:-It is not necessary of universal
practice but the practice should have been generally observed or repeated by numerous
states. In West Rand Central Gold Mining [Link]., V/s R, the court held that
international custom should be proved by satisfactory evidence that the custom has
received the general consent of states and not opposed by any civilized states.

The International Court of Justice has held, however, in the Right of Passage over Indian
Territory Case (Portugal-India), that a particular practice between two states only, which is
accepted by them as law, may give rise to a binding customary rule inter parties. The facts of this
case are as follows:--

This case deals with the question relating to the right of Protugal to send its national and military
through the Indian territory. Until 1954 Portugal possessed the right of passage through Indian
territory which was in between Dadra and Nagar Haveli and Daman. The right was however
subject to control and regulation by India. The relation between India and Portugal worsened, the
people of Dadra revolted against the Portuguese Government. Consequently the Government of
India suspended the right of passage of Protugal over this area. India contended that it had become
necessary due to the special circumstances that had arisen. Portugal took this matter to the ICJ.
The It may be noted that the claim of Portugal was based on the treaty of 1779. The ICJ decided
that Portugal was not entitled to send its armed forces through the way which fell within the Indian
territory. The Court ruled that India did not act contrary to its obligations. The Court, however,
ruled that the Treaty of 1779 was a valid treaty and Portugal was entitled to get passage through
Indian territory in consequence of the provisions of the said treaty. The decision is important in so
far as that the ICJ ruled that if under a treaty a Sate gets right of passage through the territory of
another State and if it continues for a long time, then it gains the force of law and thereby imposes
the obligation upon the State affected to continue to give right to such passage.

A single act of a state agency or authority could not create any rights of custom in favour of
another state which had benefited by the act; conduct to be creative of customary law must be
regular and reputed. Material departures from a practice may negative the existence of a customary
rule, but minor deviations may not necessarily have this negative consequence. Apart from
recurrence, the antiquity of the acts may be also a pertinent consideration. Yet even a short time
may be enough where the state practice has been extensive and for all practical purposes uniform.

Thus, ICJ held that a rule of law to become a binding customary rule, a matter or practice
should be repeatedly followed by states from a long time.
(iv) Opinio juris ncessitatis:-To establish the existence of international custom is to be
generally recognized among states of a certain practice as obligatory. In North Sea
Continental Shelf case, ICJ held that a state practice to constitute opinion juris not only
the acts concerned amount to a settled practice but they must also be evidence belief that
the practice rendered obligatory. It is subjective element which is implicit in the very
notion of the opinion juris.
c. General Principles of Law recognized by civilized nations:
According to Art. 38 of the Statute of International Court of Justice, the general principles
of law recognized by the civilized Nations are also one of the sources of international law.
This is an important source of law through which international law adapts itself in
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accordance with the changing times and circumstances. The general principles of law are
those principles which are recognized by most of the civilized States. When the court finds
that a principle has received general recognition, the court may apply it as a principle of
international law.
As pointed out by B. Cheng, International Courts have recognized the following general
principles: (i) good faith; (ii) responsibility; (iii) prescription; (iv) in the absence of any
express provisions of the contrary, every court has a right to determine the limits of its own
jurisdiction; (v) a party to a dispute cannot himself be an arbitrator or judge, (vi) res
judicata; (vii) in any judicial proceeding, the court shall give proper and equal opportunity
of hearing to both parties.
Following are some of the important cases relating to the general principles of law
recognized by civilized States:
(a) R. V/s Keyn: In this case the court rules that international law is based on justice,
equity and good conscience which has been accepted by long practice of States.
(b) Barcelona Traction Case: In this case also the International Court of Justice applied
the principle of estoppel.
(c) United States V/s Schooner: In this case Justice Storey of U.S.A ruled that
International Law should be based on the general principles of law recognized by
civilized States. He was giving decision relating to Abolition of System of Slavery.
d. Decisions of Judiciary or Arbitral Tribunals & Juristic Works:-The decisions of
Judicial and Arbitral Tribunals are also the sources of International Law. But according to
Art.38 of the International Court of Justice, they are subsidiary means for the determination
of the rules of law. This source includes international as well as State decisions. As
regards the decisions of the International Court of Justice, Art. 59 of the Statute of
International Court of Justice provide that they will have “no binding force except between
the parties and in respect of that particular case”. The arbitral decisions have still less value
because it is generally said that arbitrators work more as mediators rather than as judges.
The state judicial decisions are regarded as weighty precedent and customary rule of
international law.
International Arbitral Tribunals, the awards rendered by them are regarded as legally in
form and substance.
The opinions of jurists are also regarded as sources of International Law. But they are
also subsidiary means for the determinations of the rules of International Law. For
example Paquete Habana. While deciding the case, if the court does not find any treaty or
judicial decision or legislative act or any established custom, the court may take the help of
opinion of jurists as subsidiary means for the determination of rules of international law.
e. Decisions or Determinations of the Organs of International Institutions:-In the
modern age the decisions or determinations of organs of international institutions are also
treated as sources of International Law. In view of the constant change in the form and
content of international law, international organizations have also become a subject of
international law. The decisions and determinations of the organs of such institutions are
also, therefore, regarded as the source of international law because they held in the
development of customary rules of international law. ICJ being its principal judicial organ
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rendered significant service for the development of international law. For example,
Certain Expenses of U.N, Suez-Canal, and Congo crises.
The resolutions of the organs of international institutions may be binding on the members.
The Security Council can decide whether matter is procedural or important. Such decisions
may help in the development of international custom on the point.
Ex aequo et bono:- Article 38(2) of ICJ provides that where the parties agreed to go
outside the realm of law reaching its decisions. It is based on fair dealing and good faith.
This power has been conferred on ICJ by mutual agreements between the parties.
Some other subsidiary sources of International Law:-Following are the other subsidiary
sources of international law:-
(a) International Comity:-Since mutual relations of nations are often based on the principle
of comity, international comity has helped the development of international law.
(b) State Papers: -In the modern period, almost all the civilized Stated have diplomatic
relations with each other. They send letters to each other in respect of matters of
mutual interests. These letters are sometimes published. Sometimes these State papers
help in the solution of a conflict or controversy.
(c) State guidance of their officers:- It is mostly seen that a number of matters of the
Governments of respective States are resolved on the advice of their legal advisers.
These advices are also, therefore, sometimes treated as sources of international law.
(d) Reason:-“Reason” has occupied a special position in all ages. In modern period also it
occupies an important place. It has performed a special role in the development of
international law.

RELATIONSHIP BETWEEN MUNICIPAL LAW AND INTERNATIONAL

LAW
There are five theories regarding the relationship between International Law and
Municipal Law.
a) Monism Theory;
b) Dualism Theory;
c) Specific Adoption Theory;
d) Transformation Theory;
e) Delegation Theory.
I. Monism Theory:
The exponents of this theory state the scientific analysis of the internal structure of Law.
According to this theory law is a unified field of knowledge, no matter whether it applies
on individuals, States or entities. Thus international law and State law are intimately
connected with each other. According to Monist belief, international obligation and
municipal rules are facets of same phenomenon, the two are deriving, ultimately from one
basic norm and belonging to the unitary order comprised by the conception of law. Kelsen,
Duguit and Wright are the prominent exponents of this theory both are two branches of
unified knowledge of Law which are applicable to human beings. In the ultimate analysis
of law we find that man is at the root to all laws and all laws are made for men only.

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Criticism:- Theoretically and logically this appears to be the correct theory and it is very
difficult to disprove it. But in actual practice states do not follow this theory. Both are
separate sysytems and each state is sovereign and not bound by International Law. States
follow international law because they had given consent to bound by international law.
II. Dualism Theory:
According to this theory both international law and municipal law are two separate laws.
The theory is based on diversity of phenomena with in the framework of unitary
[Link] and Anzilloti are the chief exponents of this theory. According to Triepel
international law and State law are different because their subject and origin are different.
In his view individual is the subject of State law whereas State is the subject of
international law. Besides this, origin of the State law is the will of State, but origin of the
international law is common will of the States. In the view of Anzilloti, the fundamental
principle of international law is pacta sunt servanda (i.e., agreements, between the states
are to be respected in good faith).
Criticism:- It is incorrect to say that statewill as the source of state [Link] is certain
fundamental principles of international law which are binding on states even against their
will. For Eg. Pacta- Sunt-Servanda.
III. Specific Adoption Theory:
This theory is based on the theory of positivists. According to this theory international law
can be enforced in the field of State law only after it has been specifically adopted by State
law. This theory can also be subjected to criticism because there are several principles of
international law which are applied in the field of municipal or the state law without
specific adoption. It is argued that unless there is specific adoption of the international
treaties such as Tokyo Convention Act, 1975 and Vienna Convention of Diplomatic
Relations Act, 1972 enacted by Indian parliament or there is some sort of transformation,
international treaties as such cannot be enforced in the municipal field.

While considering the International Convention on Civil and Political Rights of Supreme
Court of India has held in Jolly George v/s The Bank of Cochin, “the positive
commitment of the State Parties ignites legislative action at home but does not
automatically make the covenant enforceable part of the corpus juris of India”.
Criticism: - Many Principles of International Law (Customary rules) applied in Municipal
law without specific adoption.
IV. Transformation Theory:
According to the exponents of this theory the rules of international law to be applied in the
field of municipal law must undergo transformation. Without transformation International
Law cannot be applied in municipal Law.
Criticism: - This theory is also based on the theory of consent which has been already
criticized earlier. There are several law-making treaties and principles of international law
which become applicable in the field of Municipal law without undergoing the process of
transformation.

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V. Delegation Theory:
The critics of transformation theory have put forward a new theory called Delegation
Theory. According to this theory the constitutional rules of international law permit each
state to determine as to how international treaties will become applicable in the field of
state law. The Constitution of each state contains provision in this connection. Thus no
transformation takes place.
Criticism: - This theory is based on presumption and has been severely criticized that the
theory is far from truth. When and how these rules have delegated power to state
constitution. Each state is sovereign and equal and not recognises any authority over and
above it.
State Practices regarding the relationship between international Law & Municipal Law
This can be dealt under three state practice:-
1. British Practice :

With regard to customary rules of international law:- In Britain, the customary rules of
internationl law are treated as a part of British Laws i.e statues. British Courts treat
customary rules as a part of their own laws subject to conditions that,
a. Rules of International Law should not be inconsistent With the British
statutes.
b. If the High Courts once determines the scope of customary rule of
International Law, then all the courts in Britian are bound by it
(Precedent).
With regard to practice of treaties:- In Britain, it is based on the constitutional Principles
governing the relationship between Executive or Crown and Parliament. Treaties relating
to negotiations, signature etc. is within the prerogative powers of the crown. For some
treaties the consent of Parliament is required such are:
i. Treaties affect the right of British Citizens.
ii. Treaties which amend or modify common law or statute law of Britain.
iii. Treaties which confer additional powers on crown.
iv. Treaties which impose additional financial burden on the government.
2. American Practice :-
With regard to customary rules of international law:- In America, the customary rules
of International Law are treated as a part of American Law. In Paquete Habana, Justice
Gray remarked that International Law is a part of our Law and must be ascertained and
administred by the courts of Justice. The American Court Interpret the statute of Congress
as not to go against International Law
With regard to practice of treaties:- Regard to treaty rules, treaties have divided into two
categories.
Self - executing treaties and non-self executing treaties.

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Self - executing treaties become applicible without the consent of congress and non-self
executing treaties which are applicable only after the consent of the Congress. Thus
international treaties are placed in the same category as state law in America.

3. Indian Practice :- Before the adoption of Indian Constitution, the Indian Practice in
respect of International Law was similar to British Practice. After adoption of constitution
everything depended on the provision of constitution. In order to know the position of
International Law in the post constitution period, it is necessary to examine the relevant provisions
of the Constitution of India. The most relevant provision is contained in Article 51.

Article 51 of the Indian Constitution provides that the state to endevour:-

(a) To promote International Peace & security.
(b)Maintain just and honourable relations between nations.
(c) Respect for International Law and treaty obligations.
(d) Encourage settlement of International disputes by arbitration.
Under Article 253 of Indian Constitution, the parliament has the power to enact Laws for
implementing Internationals conventions and norms. In Re-Berubari Union and Exchange
of Enclaves, the Supreme Court had to decide whether any legislation was necessary for the
agreement relating to Berubari Union. Since it involved the cession of Indian territory, the highest
tribunal answered in alternative. The Supreme Court observed that the treaty-making power would
have to be exercised in the manner contemplated by the Constitution and subject to the limitations
imposed by it. Whether the treaty made can be implemented by ordinary legislation or by the
constitutional amendments will naturally depend on the provisions of the constitution itself.

This was held by the Supreme Court of India in Jolly George Garghese v. Bank of Cochin, in the
judgment of the Court quoted that international conventional law must go through the process of
transformation into the municipal law before the international treaty can become an internal law.
In Gramophone Company of India Ltd. v. Birendera Bahadur Pandey, the Supreme Court
observed that if in respect of any principle of international law the Parliament says 'no', the
national court cannot say 'Yes'. National court shall approve international law only when it does
not conflict with national law. In case however the conflict is inevitable, the national law shall
prevail.

It was pointed out by Supreme Court in Vishaka V/s State of Rajasthan, in the absence of
domestic Law, to check the evil of sexual harassement of working women at all work
places, the contents of international conventions and norms are significant for the purpose
of Interpretation of the guarantee of gender equality and right to work with human diginity
in Article 14, 15, 19 (1) (g) and Article 21 of the Indian Constitution.

SUBJECTS OF INTERNATIONAL LAW:- International Law primarily cocenred with

rights,duties and interest of [Link] the rules of Law confers certain rights,duties, capacity
and responsibility on states. The law commands its subjects but it merely regulates the use
and disposition of objects. Ordinarily international law deals with the rights and duties of
the States and its rules are for States. Generally it is the States who enter into treaties with
each other and are thus bound by its provisions. This does not, however, mean that other
entities or individuals are outside the scope of international law. International law applies
upon individuals and certain non - State entities and States.
Various theories regarding Subjects of International Law:-

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Following are the three main theories prevalent in regard to the subjects of International
Law;
i. According to realist theory States alone are the subjects of International Law.
ii. According to fiction theory Individuals alone are the Subjects of International Law.
iii. According to functional theory States are main Subjects, but to a lesser extent individuals
and certain non-state entities have certain rights and duties under International Law.

1. Only States are subjects of International Law:-

Some jurists have expressed the view that only States are the subjects of International Law.
In their view international law regulates the conduct of States and only States alone are the
subjects of international law. As pointed out by Percy E. Corbett: “The triupth of
positivism in the late eighteenth century made the individual an object, not a subject of
international law. This law more and more emphasized the separateness of States, making
their sovereignty, indeed its basic principles”.
Criticism: This view has been subjected to severe criticism by jurists. This theory fails to
explain the case of slaves and pirates. Under international law slaves have been conferred
upon some rights by the Community of States. Similarly pirates are treated as the enemies
of mankind and they may be punished for piracy by the States. But the jurists who
subscribe to the view that only States are subjects of international law to reconcile these
exceptions by contending that they are not the subjects, but objects of international law.
Modern international Law recongnised not only states, public international organasations,
individuals but also certain other non-state entities are also the subjects of international
Law.
In Reparation for injuries suffered in the services of UN,the ICJ held that UN‟s has the
capacity to bring an international claim against the state for obtainig reparation when an
agent of U.N. suffers injury in the performance of his duties in circumstances involving the
responsibility of a state. The court by implication, rejected the proposition that only states
are subjects of international Law.
2. Only individuals are the Subjects of International Law:
Just contrary to above theory there are certain jurists who have expressed the view that in
the ultimate analysis of international law it will be evident that only individuals are the
subjects of international law. The chief exponent of this theory is Prof. Kelsen. Even
before Kelsen, Westlake had remarked, “The duties and rights of the States are only the
duties and rights of men who compose them”. Hence under international law the duties of
the states are ultimately the duties of the individuals. Both international law and state law
applies on the individuals. Kelsen has analyzed the concept of State and expressed the view
that it is a technical legal concept and includes the rules of law applicable on the person
living in a definite territory. Truly speaking there is no difference between international
law and State law.
Criticism: Kelsen‟s views appear to be logically sound. But so far as the practice of the
States is concerned it is seen that the primary concern of the international law is with the
rights and duties of the States. From time to time certain treaties have been entered into
which have conferred certain rights upon individuals.

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Although the statute of the international court of justice adheres to the traditional view that
only States can be parties to international proceedings, a number of other international
instruments have recognized the procedural capacity of the [Link] are examples
in international law which applies individuals directly. PCIJ in its advisory opinion relating
to postal service in Danzig it held that nothing is there in international law to prevent
individuals from acquiring directly rights under a treaty.
3. States, individual and certain non-State Entities are Subjects:
The third view not only combines the first and second views but goes a step ahead to
include international organizations and certain other non-state entities as subjects of
international law. This view undoubtedly appears to be far better than the first two views.
Following arguments may be put forward in support of this view:
1) In the present time several treaties have conferred upon individuals certain rights
and duties. International Covenants on Human Rights and 1965 Convention on the
Settlement of Investment Disputes between States and Nationals of other States
deserve a special mention in this connection.
2) 1949 Geneva Convention on the Prisoners of War has conferred certain rights upon
the Prisoners of War.
3) The Genocide Convention of 1948 has imposed certain duties directly upon the
individuals. According to the convention, persons guilty of crime of genocide may
be punished, no matter whether they are the head of the State, high officials or
ordinary individuals.
4) In regard to the international criminal law, the law-making treaties have imposed
certain obligations upon the individuals and the States have consented to it. In this
connection, Narcotic Drugs Convention, 1961, Hague Convention for the
Suppression of Unlawful Seizure of Aircrafts 1970, etc. deserve special mention.
5) The Nuremberg and Tokyo Tribunals propounded the principle that international
law may impose obligations directly upon the individuals. Tribunals observed that
crimes against international law are committed by men, not by abstract entities and
only by punishing individiuals who commit crimes the provisions of intrenational
law are [Link] convention of 1948 has impossed certain rights directly
on individuals. Further it held that person guilty of crime of genocide may be
punished, no matter whether they are the head of the state, high officials or ordinary
individuals.
6) In Reparation case, ICJ held that UN is an international [Link] regard to
crimanal law,law-making treaties have imposed certain obligations upon individuals
and states.
Subjects of International law, State are becoming increasingly realistic in acknowledging
the position of the individual in the legal order. International law today without
qualification be described as the law between States. Thus slowly and gradually
individuals are occupying a place of importance under international law. They are no more
mere objects of international law. They are in fact the subjects of international law. It
cannot however, be denied that even today States are the main subjects of international law
and the bulk of international law deals with their rights and duties.

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UNIT – II

STATES AS SUBJECTS OF INTERNATIONAL LAW

STATES IN GENERAL:
State is the main subject of international law. It is very difficult to define the term „State‟,
but certain jurists have made their endeavors to this respect Population . According to
Salmond, State is a community of people which has been established for some objectives
such as internal order and external security. According to Prof. H.L.A. Hart, “the
expression „a State is a way of referring to two facts: First, that a population inhabiting in a
territory live under that form of ordered government provided by a legal system which its
characteristic structure of Legislature, Courts, and primary rules; and Secondly, that the
government enjoys a vaguely defined degree or independence”.
According to Lawrence, State is a society which is politically organised and its members
are bound with each other by being under some central authority and most of the people to
follow the rules.
According to Oppeheim, the existence of state is possible only when people of state have
settled under highest authority and habitually follow its orders.
Essential Elements of a State:
According to Art. 1 of Montevideo Convention 1933, on rights duties of states, the
State as a person of international law should possess the following qualifications: (a) A
permanent population; (b) A defined territory; (c) A Government; and (d) Capacity to enter
into relations with other States”.
Oppnheim has pointed out the following essential elements of a State:
(a) Population;
(b) A definite territory;
(c) Government and
(d) Capacity to enter into relation with other States.
The famous jurist Holland has added one more essential element, namely, to some extent
„civilization‟ because of which the State becomes the member of international community.
Art. 4 of Montevideo Convention on the Rights and Duties of States provide that States
are juridical equal, enjoy the same rights and have equal capacity in their exercise. The
rights of each one do not depend upon power which it possesses to assure its exercise, but
upon the simple fact of existence of a person under international law.
Art. 6 of the convention provide that 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.
Functions of States:
Modern period has witnessed revolutionary changes in regard to functions of a State.
Previously there was the conception of a police [Link] to which the essential
functions of a State were to maintain internal peace and order and to defend it feom
external aggression. It cannot be denied the conception of state has undergone significant
changes. Instead of the conception of police State, the present conception is that of a
welfare State. That is to say, for benefit of the people, State has to perform many social,
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economic, educational and cultural functions. But these functions do not come under the
category of essential functions. They are in fact subsidiary functions. Nevertheless, these
are also the functions of a State in the modern time and the importance of these functions is
constantly increasing.
Rights and Duties of States:
The doctrine of basic or fundamental rights and duties was enunciated by the naturalist
writers. In their view, the doctrine of fundamental rights and duties owns its existence to
the Law of Nature.
Rights and duties of the States are in fact the rights and duties which have been recognized
by the community of States. Although there is much force in the above criticism, it cannot
be accepted as a whole. Whether we call them basic or fundamental, there seems to be a
general consensus in respect of certain rights and duties.
Some of the more important of such rights include:
(1) Sovereignty and independence of States:
(2) Equality of States;
(3) Territorial jurisdiction;
(4) Right to self-defence and self-preservation;
(5) Power exclusively to control its own domestic affairs;
(6) Power to admit or expel aliens;
(7) Privileges and immunities of diplomatic envoys in other States;
(8) Exclusive jurisdiction over crimes committed within its territory.
So is the case with certain duties which include:
(1) Duty not to resort to war;
(2) To fulfil treaty obligations in good faith;
(3) The duty of non-intervention.
Case Law: Nicargua‟s case, Trail Smelter case, Corfu Channel case.
Different kinds of States:
Following are different kinds of States;
1. Confederation:-Confederation is formed by independent States. Under
international law confederation has no international personality. The aim and
objective of confederation is to establish a sort or co-ordination among the States,
leaving States independent in their internal and external matters. But under
international law, these States are not international persons.
2. Federal State:-Generally a Federal State is formed by the merger of two sovereign
States. Under international law, a Federal State is an international person. The
Federal State exercises control and has rights not only over the member States but
also over the citizens of the States. In a Federal State, generally there is a division of
powers between the central authority and the States through a contribution. For ex:
USA, Switzerland and India.
3. Condominium:-When two or more States exercise rights over a territory, it is
called Condominium. “A Condominium exists over a particular territory joint

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dominion is exercised by two or more external powers”. For ex: New Hebrides is
controlled by England and France.
4. Vassal State:
A State which is under the suzerainty of another State is called a Vassal State. Its
independence is so restricted that it has no importance under international law.
5. Protectorate State:
According to Starke, “Although not completely independent, a Protectorate State may
enjoy a sufficient measure of sovereignty to claim jurisdictional immunity in the territory
of another State.
RECOGNITION
Meaning and Definition of the term „Recognition‟:- Recognition is a political
acknowledgement of exisiting states that a new state has fulfilled the requirements of
statehood. It is the discretion of the state to recongnise a state or not to recongnise.
In the words of Prof. Oppenheim, “In recognizing a State as a member of international
community the existing States declare that in their opinion the new State fulfils the
conditions of statehood as required by International Law.
In the view of international institution, It is the free act by which one or more States
acknowledge the existence of the definite territory of a human society, politically
organized, independent of any other existing State and capable of observing obligations of
international community.
According to Kelsen, a community to be recognized as a international person must fulfill
the four conditions:-
a) The community must be politically organized;
b) It should have control over a definite territory;
c) This control should tend towards permanence;
d) The community thus constituted must be independent.
Theories of Recognition:
There are two main theories of recognition;
1) Constitutive Theory.
2) Declaratory or Evidentiary Theory.
I. Constitutive Theory:
According to Oppenheim, “a State is and becomes an international person through
recognition only and exclusively”. According to this theory recognition clothes the
recognized State with duties and rights under international law. Recognition is a process
through which a poltical community acquires international personality by becoming a
member of the family of nations. Hegel, Anzilloti, Holland and Oppenhiem etc. are the
chief exponents of this theory. As pointed out by P.E. Corbett, “according to the
constitutive theory, Statehood and participation in the international legal order are attained
by political groups only in so far as they are recognized by established States”.
Criticism: This theory has been severely criticized by many jurists. In practice, States do
not accept any obligation to recognize a community that has attained Statehood, although
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they may normally recognize it. According to this theory, unrecognized State can have
neither rights nor duties under international law. This is a very absurd suggestion.
II. Declaratory or Evidentiary Theory:
According to this theory statehood or the authority of the new government exists as such
prior to and independently of recognition. Recognition is merely formal acknowledgement
through which established facts are accepted. The act of recognition is merely declaratory
of an existing fact that a particular State or government possesses the essential attributes of
statehood as acquired under international law. The chief exponents of this theory are Hall,
Wagner, Brierly, Pitt Corbett and Fisher.
Criticism: This theory has also been subjected to criticism. The view that recognition is
only a declaratory of an existing fact is not completely correct. In fact when a Sate is
recognized, it is a declaratory act. But the moment it is recognized, there ensue legal
effects of recognition which may be said to be of constitutive nature.
Modes or Kinds of Recognition:
1. De facto recognition;
2. De jure recognition;
3. Implied recognition;
4. Recognition subject to a condition;
5. Collective recognition.
I. De facto Recognition:- As pointed by Prof. Schwarzenberger, “When a State wants to
delay recognition de jure of any State, it may, in the first stage grant de facto
recognition. De facto recognition is given because it is doubted that the State
recognized may not be stable or it may not be able and willing to fulfil its obligation
under international law.
De facto recognition means that the State or government takes place when in the view of
the recognizing State the new authority although actually independent and wielding
effective powers in the territory under its control, has not acquired sufficient stability or
does not yet offer prospects of complying other requirements of recognition such as
willgness or ability to fulfil international obligations. In the view of Judge Philip C.
Jessup, De facto recognition is a term which has been used without precision when
properly used to mean the recognition of the de facto character of a government; it is
objectionable and indeed could be identical with the practice suggested of extended
recognition without resuming diplomatic relations”.
II. De jure Recognition:- De jure recognition is granted when in the opinion of the
recognizing State the recognized State or its government possesses all the essential
requirements of statehood and is capable of being a member of the international
community. According to Phillip Marshall Brown, “Recognition de jure results from
an expressed declaration or from a positive act indicating clearly the intention to grant
this recognition, such as establishment of diplomatic relations”.
Luther vs Sagar,in june 1918 Russia nationalised timber and other [Link] result the
mill of the plaintiff was [Link] August 1920,the representative of the Russian
Government entered into a contract with the defendant to sell timber [Link] plaintiff
requested the court to declare that all the goods purchased under the contract were his
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[Link] defendant contended that Russia was a Sovereign state,the ownership of the
plaintiff was [Link] had given defacto recognition to [Link] court decided in
favour of the government of [Link] was held that there is no difference for present
purpose between a defacto and the dejure government.
The same was applied in Bank of Ethopia v/s National Bank of Egypt, the British
government granted recognition to Italian government as being the defacto government.
The court given effect to Italian decree.

III. Implied Recognition: - Ordinarily recognition is an unilateral act of a State and when a
State recognizes another State is makes an express declaration, either orally or in writing;
but sometimes recognition may be implied. Implied recognition may be inferred when
circumstances show that the State concerned has been accepted as a member of
international community.
The following circumstances such recognition may also indicate implied recognition;

(a) Participation of the State concerned in a multi-lateral treaty;

(b) Participation in an international conference;
(c) The start of negotiations between the recognizing and the recognized States.
IV. Recognition subject to a condition: - Recognition denotes that the recognized State
possesses the essentials of statehood and is fit to be a member of international
community. As pointed out by Starke, “It is true, however, that if recognition should
under international law become purely and simply the cognitive act of registering the
statehood or of government activities, it should not be subject to any such extrinsic
terms or conditions”.
V. Collective Recognition: -Collective recognition means the recognition granted by a
number of States collectively. For example, when a State is admitted to the United Nations
it amounts to collective recognition by those States who vote in favour of the admission of
such State.
Distinction between a state and government:
Generally a state is recongnised when it possess essential elements of [Link]
regard to recongnition of government and state are, once a state is recongnised, it becomes
a member of international community. When a government is recognised, it means that a
government can represent the state concerned and dependes on facts and [Link]
eg. If there is civil war in state and through revolution the government of that state
changes. The other states have to take a decision as to wheather to grant recognition to that
government or not. If the change in the government take place in accordance with the
constitutional provision through peaceful means, then such a government ordinarly
receives recognition from other states and the existing ambassadors continue without any
change are their formal re-appointment on the same [Link] eg. The National Front
Government was replaced by congress government which was recongnised as new
government was implicit in continuance of the existing diplomatic envoys.
Legal effect of Recognition:
Although recognition is a political diplomatic function and depends upon the discretion of
recognizing State, once recognition is accorded, certain legal effects ensue:
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Following are the main legal effects of recognition:

1) The recognized State becomes entitled to sue in the courts of recognizing State;
2) The courts of the recognizing State give effect the past as well as present legislation
and executive acts of the recognized State;
3) In regard to the property and diplomatic relations, the recognized State can claim
certain immunity;
4) The diplomatic envoys of the recognized State get a number of privileges and
immunities in the recognizing State.
Consequences of non-recognition:
Following are the consequences of non-recognition:
1) A non-recognized State cannot sue in the courts of the State which has not
recognized.
2) The unrecognized State can neither establish diplomatic relations nor enter into a
treaty with the States which have not recognized it.
3) Diplomatic representatives of an unrecognized State do not possess privileges and
immunities which have not recognized it.
4) An unrecognized State is also not entitled to claim its property situated in foreign
country.
Retrospective effect of recognition:
De-jure recognition has retrospective effect. Civil Air Transport incorporated company
vs Central Air Transport Corporation, the privy council held that at the date when the
transaction regarding the sale of property of the respondent corporation took place, the
nationalist China was dejure government of china and hence it was having the right to sell
its [Link] granting of dejure recognition of a comunist government of china would not
invalidate the legal effects of the former dejure government.
STATE TERRITORIAL SOVEREIGNTY
State Territorial sovereignty means the competence of a state to exercise Jurisdiction with
in its territory over persons and property .In the words of Max Huber while defining in
Island of Palmas Arbitration, Sovereignty in relation between states signifies
independence. Independence in regard to a portion of the globe is the right to exercise
therein to the exclusion of any other state.
According to John Bodin, soverignty is the law- making power.
Hobbes expressed soverignty meant the absolute and complete power of the sovereign
which is defined as the supreme power over a definite territory unrestricted by any earthly
power.
State territory may be defined as “portion of globe which exercises complete sovereignty
within its territories is called as state territorial sovereignty. A State without territory is not
possible, although the necessary territory may be very small, as with Vatican City. A
wandering tribe, although it has a government and is otherwise organized, is not a state
until it has settled down in a territory of its own”.

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The importance of state territory is that it is the space within which the state exercises its
supreme and normally exclusive authority. State territory is an object of international law,
because that law recognizes the supreme authority of which must of course be exercised in
accordance with international law.
Modes of acquiring territories:-Following are the modes of acquiring territories under
international law:-
1. Occupation:- According to Starke, “Occupation consists in establishing sovereignty
over a territory not under the authority of any other state whether newly discovered an
unlikely case – abandoned by the State formerly in control”.It can be illustrated by the
leading case. In Island of Palmas, there was a dispute between America and
Netherlands. America contended that it had acquired the Island under a treaty of 1898
with Spain. Netherlands contended that Island was never under the occupation of
Spain. As Spain had no authority to transfer the Island to any other state. Both states
referred the matter to Arbitration. The decision was given in favour of Netherlands.
The arbitration court held that for acquiring sovereignty over a particular territory
effective occupation is necessary. i.e. There should be occupation and contacts with
the inhabitants of the territory should be established. To constitute occupation, there
should be two elements:
i. Willing to exercise sovereignty and
ii. The exhibition of actual authority.
The arbitrator found that the Spaniards never had the contacts with inhabitants or
occupied the Island which had failed to prove by any record. Whereas Netherlands not
only established contacts with the people but also had exercised sovereignty over the
Island since 1700. As such Island of Palmas was a part of its territory.
In Eastren Greenland case, on 10th July,1931, Norway declared her sovereignty over
the eastern part of Greenland through a Government decree. Denmark has also claimed
her sovereignty over said area during the Second World War. Afterwards several allied
powers had declared that the whole Greenland was a part of Denmark. The foreign
minister of Norway had also accepted and made clear that Norway has no objection in
this connection. The PCIJ decided that Eastren Greenland was under the sovereignty of
Denmark. It also held that to claim sovereignty two elements to shown i.e., intention
and willingness to establish and actual physical authority over the land.
Reference can also made in Minquires and Ecrehos (France and UK), the Minquires
and Ecrehos are two groups of islet situated between the British island of Jersy and the
coast of France. After the conquest of England, Duke of Normandy in 1066 formed the
Island between England and Normandy. In 1204 Philip Augustus of France conquered
Normandy but he failed to occupy the Island. Both entered into treaties and Islands
were united with England. France held that the two islands are referred in the
treaties.U.K filed a suit against France and the court observed in November 17, 1953
that none of the treaties stated specifically island was held either by England or France.
The I.C.J. held that the decisive importance was not indirect presumption based on
matters but direct evidence of possession and actual exercise of sovereignty.

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After gone through the evidence, the court held that the sovereignty over the islets and
rocks of Ecrehos and Minquires groups are capable of appropriation belongs to U.K.
2. Prescription:-Yet another mode of acquiring territory is by prescription. In the words
of Starke, “Title by prescription is the result of peaceable exercise of de facto
sovereignty for a very long period over a territory subject to the sovereignty of another
state”.
As pointed out by an eminent writer, D.H.N. Johnson, a state may acquire some
territory by prescription only when the following conditions are fulfilled:
(i) When it has not accepted the sovereignty of any other state 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.
3. Accretion:-As pointed out by Starke, “Title by accretion occurs when new territory is
added mainly through natural causes, to territory already under the sovereignty of the
acquired State.
4. Cession:- Territory may also be acquired through cession. It may either be a voluntary
act or in consequence of war. Cession is generally considered valid only when the
sovereignty of the territory concerned is transferred to another State. In Union of India
V/s Sukumar Sengupta (Popularly known as Tin Bigha Case). Tin Bigha area was
given to Bangladesh by India under the 1974 and 1983 agreements to connect Dhagram
with PanbariMouza ([Link]) of Bangladesh. As per agreement “lease in perpetuity”
was given over the area at the rate of Rs.1/2 per annum but the government of India
waived its right to charge such rent in respect of the leased area.
The Agreement provided that “Sovereignty over the leased area shall continue to vest in
India”. Delivering the judgment, C.J. SabyachiMukarjee as observed: “A fortiori the
said transaction did not amount to cession of the said area of Teen Bigh in favour of
Bangladesh. Cession as understood in international law would result in an actual and
physical transfer of the said area to Bangladesh following which Bangladesh would
have the exclusive right to treat the said transferred territory as part of its own territory
and exercise full control, dominion and right over the same. This is not the position or
the situation which is contemplated under the agreement. The rights intended to be
conferred on Bangladesh under the said agreements would amount to what is known as
„servitude‟ in International Law.
5. Annexation:- A territory may also be acquired by annexation. It is however, necessary
that after conquest, sovereignty must be established over the territory. This mode has
become obsolete after the commencement of the Charter of the [Link].2(4) of the
Charter make it incumbent upon Member States to refrain in their international
relations from the threat or use of force against the territorial integrity or political
independence of any state.
A recent example of this is the annexation of Kuwait by Iraq. After annexation Iraq
declared Kuwait to be its 19th province. But the Security Council of the U.N. declared
the annexation of Kuwait as well as the said declaration of Iraq as null and void.
Subsequently Kuwait was freed.
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6. Lease:-Another mode of acquiring territory is by way of lease. A State may lease a

part of its territory to another State. For example, State of Malta has leased an island to
Britain for some time. Similarly, Panama leased Panama Canal area to the U.S.A.
7. Pledge:- Sometime a State may pledge a part of its territory to another State in return of
some money.
8. Plebiscite:- There is controversy as to whether a territory may be acquired through
plebiscite or not. A recent example of acquiring territory by this mode is that of West
Iran which was claimed by Netherlands and Indonesia. A plebiscite was held under the
auspices of U.N. The people of West Iran decided to merge with Indonesia.
Modes of loss of territory:- Following are the modes through which a territory may
be lost:
1. Cession:-As one State acquires the territory through cession, the other State looses it.
2. Operation of Nature:-Sometimes a State may lose its territory through the operation of
nature such as earthquake etc.
3. Subjugation:-A State may acquire territory through the operation of nature.
4. Prescription:-When a State occupies a particular territory for a long period then it is
entitled to acquire it through prescription. On the contrary, the state which had occupation
over it earlier may lose it.

5. Revolt:-Sometimes a state may lose its territory and a new state may emerge. For
example, as a result of revolt, Pakistan lost the territory of East Pakistan and a new
State of Bangladesh emerged.
6. Dereliction:-When a state renounces a part of its territory or fails to excise or slackness,
to exercise sovereignty over it, then it may lose such territory. Such examples are
however, very rare in history.
7. Losing a Territory by Granting of Independence to a colony:- Britain, France and
other imperialist states lost territories during last few decades by granting independence
to colonies or otherwise acquiring of independence by the colonies.

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UNIT – III
STATE JURISDICTION
“State Jurisdiction is the power of the State under International Law to govern persons and
property by its Municipal law. It includes both the power to prescribe rules and the power
to enforce them. The latter includes both executive and judicial powers of enforcement.
Jurisdiction may be concurrent with the jurisdiction of other States or it may be exclusive.
It may be civil or criminal. The rules of State jurisdiction identify the persons and the
property within the permissible range of State‟s law and its procedures for enforcing that
law. They are not concerned with the content of a State‟s law except in so far as it purports
to subject a person to it or to prescribe procedures to enforce it”.

State Jurisdiction means “essentially the extent of each State‟s right to regulate conduct on
the consequences of events”. A State may regulate its jurisdiction by legislation, through
its courts or by taking executive or administrative action. State jurisdiction concerns both
international law and internal law of the State. While the former determines the
permissible limit of a State‟s jurisdiction in the various forms it may take, the latter
prescribes the extent to which and manner in which the State in fact asserts its jurisdiction.
Judge Moore observed in Lotus case that it is an addmitted principle of International law
that a nation possesses and exercise within its own territory an absoulte and exclusive
jurisdiction. An exception to this right must be traced to the consent of the nation, either
express or implied.
There may be certain situations and circumstances wherein a State may not be able to
exercise the jurisdiction within its territory and [Link] may exercise jurisdiction in
certain cases outside its geographical limits.
A State may not be able to exercise jurisdiction in respect of the:
(1) Diplomatic agents;
(2) Foreign Embassies;
(3) Foreign Sovereigns;
(4) International organizations;
(5) Immunity in respect of public property of a foreign sovereign State;
(6) Foreign Troops;
(7) Extradition Treaties.
(8) War ship and crew.
Criminal Jurisdiction in International Law:
There is a great controversy among the States in regard to criminal jurisdiction under
international law.
Following are some of the prevalent views in this connection:-

1) According to the first view, each State can exercise criminal jurisdiction only with
its territory, known as the theory of territoriality of criminal jurisdiction. Great
Britain, America, and some other States subscribe to this theory.

2) The second view is the modification of the first view, France, Germany, etc. are of
the view that each State is entitled to exercise jurisdiction within its territory, but

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there are some exceptions to this rule i.e., a State may exercise criminal jurisdiction
even outside its territory on the economic grounds and on the ground of national
security.

3) Those countries (such as Turkey, Italy) which do not subscribe to the theory of
territoriality of criminal jurisdiction have put forward a new theory known as extra
territoriality of criminal jurisdiction.

A leading case on the extra-territoriality of criminal jurisdiction is [Link]. The facts in

this case are as follows:

In the S. S. Lotus case, a stricter requirement was laid down by the court for a customary rule to
evolve. IN that case, the French Ship S S Lotus had collided on the high sea with Turkish Vessel,
killing thereby eight Turkish nationals. When the Lotus arrived in Turkish waters, criminal
proceedings were initiated in Turkish Court against the captain of Lotus along with the captain of
Turkish Vessel for manslaughter, and sentenced. The French Government protested against
Turkish action, and by an agreement between the parties the dispute was submitted to Permanent
Court of International Justice. The French Government argued that under the Customary
International Law, criminal jurisdiction pertains to the flag state of the vessel in which the crime is
committed. Evidence for this alleged rule existed in the state practice where the court had
generally abstained from exercising criminal jurisdiction in deference to the flag state, thereby
giving rise to the assumption that there had been a tacit acceptance by States of the rule that in
criminal matters, the flag state was entitled to exclusive jurisdiction. The court rejected the French
contention and observed that the circumstances alleged by the French Government merely show
that States had often, in practice, abstained from instituting criminal proceedings, and not that they
recognized themselves as being alleged to do so. The alleged fact does not allow one to infer that
states have conscious of having such a duty.

The Permanent Court of International Justice gave its decision in favour of Turkey. The
court gave its verdict that by prosecuting and convicting Mr. Demons Turkey did not
violate International Law. The court laid down the following principles:

1. Under International Law no State can exercise jurisdiction over the territory of another
State.

2. International Law does not prohibit a State to exercise Jurisdiction over an act which
has taken place outside its territory.

3. The contention of the French Government that it was necessary for the Turkish Court to
show some specific rule of International Law authorizing it to exercise jurisdiction over
acts committed outside its territory was rejected.

4. Even the States which believe in the principle of territoriality of criminal jurisdiction
under International Law admit that the crime will be treated to have been committed in
their territory if any element of its related to their own territory.

On the basis of the aforesaid principles and facts of the case the Permanent Court
International Justice gave the verdict that by prosecuting and convicting Mr. Demons,
Turkey did not violate International Law and in particular, Art. 15 of the Convention of
Lausanne 1923.

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LAW OF THE SEA

Introduction:- The law the sea was long back recognised for protection and balancing the
common interest of [Link] to 20th century sea was considered as freedom for all. IN
modern period law of the sea became inadequate to reflect the present needs in
international [Link] a result conflicts arised between great maritime belts and they
began to wider claims on to protect their own economic [Link] reconcil they claim two
United Nations Conferences were held at Geneva in 1958 and 1960. The first
[Link] on the Law of the Sea was held in 1958 at Geneva which adopted four
conventions. They are:

(1) Convention on the territorial sea and contiguous zone;

(2) Convention on the High Seas;

(3) Convention on Fishing and Conservation of Living Resources;

(4) Convention on the Continental Shelf. Since the first U.N. Conference failed to fix the
breadth of the territorial sea, the second U.N. Conference was held at Geneva in 1960 but it
could not achieve success.

After the two U.N. Conferences on the Law of the Sea, certain developments emerged
which changed the situation. One of the most important of such developments was that
rapid progress in science and technology made possible commercial exploitation of mineral
resources at greater depths of the Sea [Link] the third law of the sea was signed on
10th December, 1982.

International Sea-bed Authority:-As per agreement that has been reached so far
Authority will comprise of the following organs:
1. Assembly;
2. council;
3. Secretariat;
4. Enterprise.

The Assembly, Council and Secretariat shall be the principal organs of the Authority. The
Enterprise will be established as an organ through which the Authority shall directly carry
out activities in the Area. The Assembly, a policy making organ, shall consist of all the
members of the Authority.

The Council shall consist of 36 members of the Authority elected by the Assembly. The
council shall establish its two organs – An Economic Planning Commission; and A
Technical Commission. The Secretariat shall comprise of a Secretary-General and such
staff as the Authority may require. The Secretary-General shall be appointed by the
Assembly upon the recommendation of the Council.

Establishment of International Tribunal for the Law of the Sea:-After coming into
force of the U.N. Convention on the Law of the Sea on November 16, 1994 vigorous
efforts were made for the establishment of the international Tribunal for the Law of the
Sea. In August 1996, 21 judges of the Tribunal including Dr. P. Chandrasekhar Rao of
India were elected on the basis of „equitable geographical distribution‟. The international
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Tribunal for the Law of the Sea was finally established on October 21, 1996. The
jurisdiction of the Tribunal is not compulsory. It is optional and based on the consent of
the states. The Tribunal comprises of a body 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. In the Tribunal as a whole the representation of the principal legal systems
of the world and equitable geographical distribution shall be assured.

Jurisdiction:-According to Art. 288 of the Convention on the Law of the Sea, 1982 the
Tribunal shall have jurisdiction over any dispute concerning the interpretation or
application of the Convention which is submitted to in accordance with Part XV of the
Convention. The Tribunal shall also have jurisdiction over any dispute concerning the
interpretation or application of an international agreement related to the purposes of the
Convention, which is submitted to it in accordance with the agreement.

Settlement of Disputes:-Part XV of the Convention which deals with the Settlement of

Disputes may broadly be divided into two parts:
(a) General Provisions;
(b) Compulsory Provisions Entailing Binding Decisions.

As regards the General Provisions, Art. 279 imposes obligation upon States Parties to settle
their disputes by peaceful means. The Convention also provides for procedures where no
settlement has been reached by the Parties.

As regards compulsory procedures Entailing Binding Decisions, Art. 286 provides that any
dispute concerning the interpretation or application of the convention shall, where no
settlement has been reached by recourse to Sec. I, be submitted at the request of any part to
the dispute to the Court or Tribunal having jurisdiction subject to certain limitations
contained in Art. 297, 298 and 299.

Applicable Law:-The Tribunal shall decide all disputes and applications in accordance
with Art. 293 of the U.N. Convention on the Law of the Sea. According to Art. 293 the
Tribunal shall apply the convention and other rules of international law not incompatible
with the Convention.

MARITIME BELT OR TERRITORIAL WATERS

The 1958 Geneva Convention on Territorial Waters and Contiguous Zone provided that the
coastal state exercises sovereignty over that part of the sea which is called maritime or
territorial waters. The coastal state exercises sovereignty not only over the territorial
waters, but also over air-space above it. Art.2 of the U.N. Convention on the Law of the
Sea, 1982 contains a similar provision.

Problem of breadth of Territorial Waters

As costal state exercises sovereignty over the part of the sea, there was need for definite
limit of the breadth of territorial [Link] was a great contravercy regarding the
breadth of territorial [Link] to Bynkershoek, the breadth of maritime belt
extends to that distance where a canon can fire. Up to eighteenth century, the range of
canon shot rule was 3 miles became prevailing principle.
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In the view of Grotius, the sovereignty of the costal state should extend only to that area up
to which it canexercise effectively.

After 19th century, due to scientific inventions and discoveries, the range of canon shot
rule was increased. The first attempt to fix the breadth of maritime belt was made in 1930
Hague conference and 1958 Geneva Convention. But it failed to obtain consensus among
the states.

In second UN conference on Law of the sea 1960, America presented a compromise

formula which provided that the breadth of territorial waters should be six miles and
beyond these six miles, the coastal states should be given rights for fishing etc,. For other
six miles. Different countries have claimed breadth of territorial waters in between three
miles to twelve miles. Eg., Chile, Peru, Equador claiming to 200 nautical miles. India, in
1956, claimed three miles of breadth. In third Law of the sea, 1982, there was a general
consensus on the twelve miles which has already became the part of customary
international law. As such Article three of Law of the Sea on 1982 provides that every state
has the right to establish the breadth of terrotrial waters upto 12 nautical miles measured
from baseline.

Contiguous Zone:-Contiguous Zone is that part of the sea which beyond and adjacent to
the territorial sea of the coastal state.

According to Article 53 of the U.N. Convention on the Law of the Sea, 1982, in a Zone
contiguous to its territorial sea, the coastal state may exercise the control necessary to;

(a) Prevent infringement of its customs, fiscal, immigration or sanitary regulation within its
territory or territorial sea;

(b) Punish infringement of the above regulations committed within its territory or territorial
Sea.

The contiguous may not extend beyond 24 miles from which the breadth of territorial Sea
is measured. That is to say, it is 12 miles beyond the territorial Sea.

Exclusive Economic Zone (EEZ):- The concept of EEZ was advocated by Keneya for
the first time. The provisions of EEZ were settled in third law of the sea 1982.

Article 55: -Specific legal regime of the exclusive economic zone:- The exclusive
economic zone 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.

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
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superjacent to the sea-bed and of the sea-bed 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 sea-bed and subsoil shall be exercised
in accordance with Part VI (Continental shelf).

Article 57:- Breadth of the exclusive economic zone: - The exclusive economic zone
shall not extend beyond 200 nautical miles from the baselines from which the breadth of
the territorial sea is measured.

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. The rules relating to High Seas (Articles 88 to 115 ) and other pertinent rules of
international law to be observed in EEZ.

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.

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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 61:- Conservation of the living resources:-

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1. The coastal State shall determine the allowable catch of the living resources in its
exclusive economic zone.

2. The coastal State, taking into account the best scientific evidence available to it, shall
ensure through proper conservation and management measures that the maintenance of the
living resources in the exclusive economic zone is not endangered by over-exploitation. As
appropriate, the coastal State and competent international organizations, whether
subregional, regional or global, shall co-operate to this end.

3. Such measures shall also be designed to maintain or restore populations of harvested

species at levels which can produce the maximum sustainable yield, as qualified by
relevant environmental and economic factors, including the economic needs of coastal
fishing communities and the special requirements of developing States, and taking into
account fishing patterns, the interdependence of stocks and any generally recommended
international minimum standards, whether subregional, regional or global.

4. In taking such measures the coastal State shall take into consideration the effects on
species associated with or dependent upon harvested species with a view to maintaining or
restoring populations of such associated or dependent species above levels at which their
reproduction may become seriously threatened.

5. Available scientific information, catch and fishing effort statistics, and other data
relevant to the conservation of fish stocks shall be contributed and exchanged on a regular
basis through competent international organizations, whether subregional, regional or
global, where appropriate and with participation by all States concerned, including States
whose nationals are allowed to fish in the exclusive economic zone.

6. Coastal States shall give due notice of conservation and management laws and
regulations.

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;

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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 co-operate 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

1. Geographically disadvantaged 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. For the purposes of this Part, "geographically disadvantaged States" means coastal
States, including States bordering enclosed or semi-enclosed seas, whose geographical
situation makes them dependent upon the exploitation of the living resources of the
exclusive economic zones of other States in the subregion or region for adequate supplies
of fish for the nutritional purposes of their populations or parts thereof, and coastal States
which can claim no exclusive economic zones of their own.

3. 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:

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a. the need to avoid effects detrimental to fishing communities or fishing industries of

the coastal State;
b. the extent to which the geographically disadvantaged 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 geographically disadvantaged States and landlocked 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.

4. 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 co-operate in the establishment of
equitable arrangements on a bilateral, subregional or regional basis to allow for
participation of developing geographically disadvantaged 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 3 shall also be taken into account.

5. Developed geographically disadvantaged 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.

6. The above provisions are without prejudice to arrangements agreed upon in subregions
or regions where the coastal States may grant to geographically disadvantaged States of the
same subregion or region equal or preferential rights for the exploitation of the living
resources in the exclusive economic zones.

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.
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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.

CONTINENTAL SHELF

Continental shelf means the sea-bed and sub-soil of the fringe of shallow sea which may be
several hundred miles [Link] legal concept of continetal shelf came into light since
Trueman proclamation of 1945. He declared that the USA considered the resource of the
shelf contiguous to the USA as appertaining to the USA and subject to its jurisdiction and
control. But the declaration did not the continental shelf. Subsequently USA state
department press release definied as submarine land which is contiguous to the continent
and covered by no more than 100 fathoms of water.

Geneva Convention on continental shelf 1958, defined under article 1 as follows:

Continental shelf is

(a) The sea- bed and sub-soil of the sub-marine areas adjacent to the coast
but outside the area of territorial sea to a depth of 200 nautical miles or
beyond that limit to where the depth of superjacent waters admits of the
exploitation natural resources of said areas.
(b) To the sea-bed and sub-soil of similar sub- marine areas adjcent to the
cost of Island.

The definition contains three elements :(i). Adjacenccy (ii) depth of sea (iii) exploitability.

This was not accepted to majority of the states and may benefit to few states. It was felt to
re-draft Artilcle 1 of 1958 convention. In third Law of the sea (UNCLOS) of 1982, the
consensus of states has emerged in favour of the “ Natural Prolongation” theory.

Article 76:- Definition of the continental shelf

1. The continental shelf of a coastal State comprises the sea-bed 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.

2. The continental shelf of a coastal State shall not extend beyond the limits provided for in
paragraphs 4 to 6.

3. The continental margin comprises the submerged prolongation of the land mass of the
coastal State, and consists of the sea-bed and subsoil of the shelf the slope and the rise. It
does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.

a. For the purposes of this Convention, the coastal State shall establish the outer edge
of the continental margin wherever the margin extends beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured, by
either:
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i. A line delineated in accordance with paragraph 7 by reference to the

outermost fixed points at each of which the thickness of sedimentary rocks is
at least 1 per cent of the shortest distance from such point to the foot of the
continental slope; or
ii. A line delineated in accordance with paragraph 7 by reference to fixed points
not more than 60 nautical miles from the foot of the continental slope.
b. In the absence of evidence to the contrary, the foot of the continental slope shall be
determined as the point of maximum change in the gradient at its base.

5. The fixed points comprising the line of the outer limits of the continental shelf on the
sea-bed, drawn in accordance with paragraph 4 (a) (i) and (ii), either shall not exceed 350
nautical miles from the baselines from which the breadth of the territorial sea is measured
or shall not exceed 100 nautical miles from the 2,500 metreisobath, which is a line
connecting the depth of 2,500 metres.

Case laws: North sea continental shelf,:- The International Court of Justice, for the first time
has the occasion to determine the adequacy of the rule enshrined in Art. 6 in the North Sea
Continental Shelf cases. In the two separate cases against West Germany filed by the Netherlands
and Denmark, the Court was asked to decide about the „applicable‟ principles and rules of
international law „to the determination as between the Parties of the areas of the continental shelf
in the North Sea which appertain to each of them beyond the partial boundary.

The two cases were joined by the Court. Denmark and the Netherlands argued that the
„equidistance/special circumstances rule‟ in Art. 6 would be applied. Germany, instead proposed
„the doctrine of the just and equitable share‟. Germany‟s opposition to the „equidistance rule‟ was
based on the fact that the rule, if applied on a concave coastline, such as that of North Sea, shared
by all the three States concerned, would result into giving the State in the middle, and in this case
Germany, a smaller continental shelf than it might otherwise obtain. The Court rejected both these
contentions and held that applying the equidistance principle will lead to inequitable results
because of the peculiar coastline of the States concerned and opined that the notion of equidistance
could not be logically be compulsorily applied in all situations. It is not consonant with certain
basic legal notions, „those principles being that delimitation must be the object of agreement
between the States concerned, and the such agreement must be arrived at in accordance with
equitable principles.‟
Thus, in the following the „equitable principles‟, the factors to be taken into account are: the
relevant circumstances, i.e., the geographical situation of the parties and natural configuration of
the coast; proportionally, i.e., the extent of the continental shelf areas appertaining to coastal State
and the length of the coast measured in the general direction of the coastline; and the concept of
natural prolongation, i.e., shelf is an appurtenant to the land territory.

Delimitation of the Maritime Boundary in the gulf of marine area (Canada v/s U.S.):- The
approach taken by the International Court of Justice on the „equidistance principle‟ has been followed by
the Court in the Continental Shelf case (Tunisia V. Libya) case, the Court was asked to specify principles
and rules of international law which were applicable to the delimitation of continental shelf between
Tunisia and Libya. They have a single continental shelf as the natural prolongation of their land territory,
and hence no principle of „natural prolongation‟ as such could be applied. The Court observed that since the
two countries abutted on a common continental shelf, physical criterion was of no assistance for the
purpose of delimitation. The application of the equidistance method could not, in particular circumstances
of the case, lead to an equitable result, and in such a case, the delimitation can be effected on the basis of
„equitable principles‟, taking into account all the relevant circumstances.

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The Continental Shelf (Libya V. Malta) case was the first case decided by the Court after
signing of the 1982 Convention. Though both the States were signatories to the Convention, they
agreed for the dispute to be governed by customary international law. The Court, however, looked
into the provisions of the Convention as a rule of customary international law, and observed that
„the principles and rules, applicable to the delimitation of continental shelf areas are those which
are appropriate to bring about an equitable result.‟ In deciding the dispute, the Court placed great
reliance on the „equidistance principle‟. But to achieve an equitable result, it will be necessary to
first draw a line, every point of which should be equidistant from the coast of the two opposite
States concerned and then to make adjustments in the light of all the relevant circumstances. The
Court once again discounted the „natural prolongation‟ factor propounded in the North Sea
Continental Shelf cases, which was subservient to the equitable principle.

Article 77:- Rights of the coastal State over the continental shelf

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 referred to in paragraph 1 are exclusive in the sense that if the coastal State
does not explore the continental shelf or exploit its natural resources, no one may
undertake these activities without the express consent of the coastal State.

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 referred to in this Part consist of the mineral and other non-living
resources of the sea-bed 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 sea-bed or are unable to move except in constant physical contact with the sea-
bed or the subsoil.

Article 78:- Legal status of the superjacent waters and air space and the rights and
freedoms of other States

1. The rights of the coastal State over the continental shelf do not affect the legal status of
the superjacent waters or of the air space above those waters.

2. The exercise of the rights of the coastal State over the continental shelf must not infringe
or result in any unjustifiable interference with navigation and other rights and freedoms of
other States as provided for in this Convention.

Article 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 the laying or maintenance of
such cables or pipelines.

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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. The coastal State shall have the exclusive right to
authorize and regulate drilling on the continental shelf for all purposes.

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.

HIGH SEAS

In the ancient period it was generally believed that High Seas are common heritage of
mankind and are not within the property of any states. During 16 and 17th centuries states
started occuping different parts of the High Seas. In 1609, Grotious expressed that the sea
and air are the property of all mankind and no state can claim occupation over them.

Article 87 provides that the high seas are open to all States, whether coastal or land-
locked. Freedom of the high seas is exercised under the conditions laid down by this
Convention and by other rules of international law. It comprises, inter alia, both for coastal
and land-locked States.

The freedoms of the High Seas are:

a. freedom of navigation;
b. freedom of overflight;
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, subject to the conditions laid down in section 2;
f. Freedom of scientific research,

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.

Definition of piracy:- Piracy consists of any of the following acts:

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a. any illegal acts of violence or detention, or any act of depredation, committed for
private ends by the crew or the passengers of a private ship or a private aircraft, and
directed:
i. on the high seas, against another ship or aircraft, or against persons or
property on board such ship or aircraft;
ii. against a ship, aircraft, persons or property in a place outside the jurisdiction
of any State;
b. any act of voluntary participation in the operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or aircraft;
c. any act of inciting or of intentionally facilitating an act described in subparagraph
(a) or (b).

Article 111:- Right of hot pursuit

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 the laws and
regulations of that State. Such pursuit must be commenced when the foreign ship or one of
its boats is within the internal waters, the archipelagic waters, the territorial sea or the
contiguous zone of the pursuing State, and may only be continued outside the territorial sea
or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the
time when the foreign ship within the territorial sea or the contiguous zone receives the
order to stop, the ship giving the order should likewise be within the territorial sea or the
contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 33,
the pursuit may only be undertaken if there has been a violation of the rights for the
protection of which the zone was established.

2. The right of hot pursuit shall apply mutatis mutandis to violations in the exclusive
economic zone or on the continental shelf, including safety zones around continental shelf
installations, of the laws and regulations of the coastal State applicable in accordance with
this Convention to the exclusive economic zone or the continental shelf, including such
safety zones.

3. 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.

4. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by
such practicable means as may be available that the ship pursued 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 territorial sea, or, as the case may be, within the contiguous zone or the
exclusive economic zone or above the continental shelf. 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.

5. The right of hot pursuit may be exercised only by warships or military aircraft, or other
ships or aircraft clearly marked and identifiable as being on government service and
authorized to that effect.

Innocent Passage:- The right of foreign merchant vessels to have “innocent passage”
through the territorial waters of a state is a well recognized principle of international law.
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The law is this connection was codified in the Geneva Convention on the territorial Sea
and the Contiguous Zone, 1958. Section III of this convention comprising of Art. 14 to 23
deals with the right of innocent passage. Art.14 provides that ships of all states, whether
coastal or not, shall enjoy the right of innocent passage through the territorial Sea. Passage
means navigation through the territorial sea for the purpose either of traversing that without
entering internal waters or for proceeding to internal waters, or of making for the High
Seas from internal waters.

Passage includes stopping and anchoring but only in so far as the same are incidental to or
are rendered necessary by force majored or by distress. Passage is innocent so long as it is
not prejudicial to the peace, good order or security of the coastal state. Passage of foreign
fishing vessels shall not be considered innocent if they do not observe such laws and
regulations as the coastal state may make and publish in order to prevent these vessels from
fishing in the territorial sea. Submarines are required to navigate on the surface and to
show their flag.

Foreign ships exercising the right of innocent passage shall comply with the laws and
regulations enacted by the coastal state in conformity with the convention and other rules
of International Law and in particular, with such laws and regulations relating to transport
and navigation.

STATE RESPONSIBILITY

Meaning of the „State Responsibility‟:- According to Starke, “The rules of international

law as to State responsibility concern the circumstances in which and the principles
whereby, the injured State becomes entitled to redress for the damage suffered”.

In the Chorzow Factory (indemnity) case the permanent court of International justice said
that it is a Principle of International Law and even a general conception of Law any breach
of an engagement involves an obligation to make reparation .

In the Corfu Channel case the International Court of justice held that Albania is responsible
for the explosions which occurred in its territorial waters . Because there is a duty upon
Albania to pay compensation to United Kingdom.

Generally speaking, a person who goes to live in the territory of a foreign State must
submit to its laws; but that is not to say that certain duties under international law in respect
to the treatment of that person do no bind the State. Examples are the duty of the State to
provide proper judicial remedies for damage suffered, and the duty to protect alien citizens
form gratuitous personal injury by its officials or subjects”.

State responsibilities are of two kinds: I. Original and II. Vicarious responsibility.

Original resposibility of a state arises directly for the works of its [Link] as acts
of its government or its official or private individuals performed neither at the
government‟s command nor with its authorisation.

Vicarious responsibility arises out of certain iInternationally injurious acts of private

individuals wheather nationals or alians in its territory and of officials acting without
authorisation.
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State Responsibility in different fields:-

International delinquency:-As pointed out by Prof. Oppenheim, „every neglect of an

international duty constitutes an international delinquency and the injured State can subject
to its obligation of pacific settlement through reprisals or even war, compel the delinquent
State to fulfil its international duties‟.

Starke has explained the term “International Delinquency” in the following words: “In
practice, most cases of responsibility, at least before international tribunals, arise out of
wrongs alleged to have been committed by the State concerned. By wrong in this
connection is meant the breach of some duty which rests on a State at International Law
and which is not the breach of purely contractual obligation. To such wrongs, more
frequently the term „international delinquency‟ is applied. Most of cases that come under
this head concern injuries suffered by citizens abroad.

State Responsibilities for the Acts of aliens:-It is generally agreed that aliens living in a
State should be given same rights which are given to the citizens of that State. It is the
responsibility of the State to protect the rights of aliens in the same way as they protect the
rights of their own citizens.

State responsibilities towards aliens may be of following types:

(a) State responsibility for the acts of individuals: If a citizen of a State caused damage
or harm to an alien, that alien gets the right to file a suit for the compensation
according to the law of that State.

(b) State responsibility for the acts of Mob Violence: Generally, state may be held
responsible for the mob-violence only when it has not made due diligence to prevent
[Link] may be made here to Youman‟s case. In this case, the Mayor of the
town (in Mexico) orderd a lieutenant of state forces to suppress riots and attack
against certain American citizens. Instead of dispersing the rioters , the troops did just
the reverse. They started firing on the house in which the Americans had taken
refuge. In the process, one American was killed. The other two Americans were
forced to leave the house and were killled by the troops and rioters. In opening the
fire against the Americans the troops had disobeyed the orders of the Mayor and had
acted beyond the scope of their authority. The Mexicon Government was held liable
for the wrongfull acts of the troops.

Reference can also be made to Reparation for injuries suffered in the services of
United Nations.

(c) The State responsibility for the acts of insurgents:

In this connection the general rule is that it is the responsibility of a State to try to prevent
the violent acts of revolutionaries.

According to Fenwick, State responsibility for the acts of insurgents is different from State
responsibility for the acts of mob violence. In his words, “The very existence of organized
revolution raises a presumption of „due diligence‟ on the part of the State for suppressing it

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since the Government had an immediate interest in such an open attack upon its authority”.
A brief reference may also be made here of Calvo Doctrine.

Calvo Doctrine: - It was propounded by Mr. K. Calvo of Argentina. In his view during
civil war the State is not responsible for the losses suffered by alien persons because if the
responsibility is accepted, big nations will get an excuse to intervene in the weaker States.
Many States, such as, America and England do not accept this doctrine. They point out,
since the revolt or insurrections are frequent is the States the presumption that the States
made „due diligence‟ becomes weak. As pointed out by Starke, “The object of such a
clause is to ensure that legal disputes arising out of the contract shall be referred to the
municipal courts of the State granting the concession or other right and to oust the
jurisdiction of international arbitral tribunals or to prevent any appeal for diplomatic action
to the national State of the company or individual enjoying the concession etc.

1) State responsibility for the acts of governmental organs: -A State is responsible

for the acts performed by its representatives or high officials towards alien persons.
The State will be responsible only to the extent when the officials concerned act
beyond their powers and jurisdiction.

2) State responsibility for contracts with foreigners: -As a matter of fact, the State is
not responsible under international law if there is a breach of contract entered into
by a State with aliens. However, the alien person may avail the local means
available to him in the law of the State concerned.

3) Responsibility for the breach of treaty or contractual obligations: -State

responsibility as a result of the breach of the treaty will depend upon the provisions
of the treaty. If there is a breach of treaty obligations, the State concerned shall be
responsible to pay the compensation. Reference can be made to Anglo-Iranian oil
company case.

4) State Responsibility in respect of Expropriation of Foreign Property: -There is a

great controversy in regard to the expropriation of foreign property situated in a
State. However, in the modern period, significant changes have taken place in this
connection. Till the 19th century, if any State expropriated the foreign property it
was considered to be the violation of international law making the said State liable
for the same. But in the modern period, in view of the complete control of States
over their Economic system and in consequence of the nationalization of different
industries, it has become difficult to recognize such expropriation as the violation of
international law. It may be noted here that the term „Expropriation‟ includes
nationalization and confiscation of property.

Reference can be made to Anglo-Iranian oil company case.

5) State Liability for Acts of Multinational Corporation:-There is lack of definite

international law in respect of liability of transnational or multinational
Corporations. The Charter of Economic Rights and Duties adopted by the General
Assembly on 12th December 1974, recognizes the right of each State “to regulate
and supervise the activities of transnational Corporations within its national
jurisdiction and take measures to ensure that such activities comply with its laws,
rules and regulations and conform to its economic and social policies.
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Reference can be made M. C. Mehta V/s Union of India (Leakage of Oleum Gas).

SUCCESSION

SUCCESSION TO RIGHTS AND OBLIGATIONS:- Oppenheim has described „State

Succession‟ in the following words:- “A succession of international person occurs when
one or more international persons take place of another international person, in
consequence of certain changes in the latter‟s conditions”.

The rule of State succession was incorporated from the Roman law by Grotius. In Roman
law, when a person died his rights and duties were succeeded by his successors. This
principle was applied by Grotius in international law also. Later on certain international
treaties were entered into to develop the rules of State succession. The Law of State
Succession is still developing. The United Nations Conference on Succession of States in
respect of Treaties adopted on 23 August 1978 a convention known as Vienna Convention
on Succession of States in Respect of Treaties.

Kinds of State Succession:-State Successions are of two types: –

(1) Universal Succession.
(2) Partial Succession.

(1) Universal Succession:

Universal succession takes place under the following circumstances:

(a) When a State is completely merged with another State; either through subjugation
or voluntary merger;

(b) When a breaks into several parts and each part becomes a separate international
person.

(2) Partial Succession:- Partial succession takes place: -

(a) When a part of the State revolts and after achieving freedom becomes a separate
international person. The breaking away of Bangladesh and becoming a separate
international person is a glaring example of partial succession;

(b) When a part of a State is ceded to another State;

(c) When a sovereign State loses part of its independence by joining the federal State or
when a State accepts the suzerainty or becomes a protectorate of another State.

Rights and duties arising out of State Succession:

1. Political rights and duties:-No succession takes place in respect of political rights and
duties, hence succeeding State is not bound by the political treaties of the former State
such as treaties of peace or neutrality.

2. Local rights and duties: -A genuine succession takes place in respect of local rights and
duties, such as land, rivers, roads, railways, etc.

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3. State property:- Art. 11 of the Vienna Convention on State Property, Archives and
Debts, 1983 provides that unless otherwise agreed the passing of State property will take
place without compensation. Art. 12 provide that property, rights and interests owned
by a third State should not be affected by a succession of State. Art. 13 ask the
Predecessor State to take all measures to prevent damage or destruction to State property
which passes to Successor State. Art.15 allows special reference to be made to bilateral
agreements between the Predecessor State and the newly independent State but it shall
not infringe the principle of the permanent sovereignty of every people over its wealth
and natural resources.

4. State Archives:-Art. 25 of the Vienna Convention on State Property, Archives and

Debts, 1983 lay emphasis on preserving the integral character of groups of State
archives of the PredecessorState. Art. 28 of the convention provides that the passing or
appropriate reproduction of State archives of the predecessor State to a newly
independent successor State should be determined by agreement in such a manner that
“each of those States can benefit as widely and equitably as possible” from those
archives.

5. State or Public Debts:-Art. 36 of the Vienna Convention on State Property Archives

and Debts, 1983 provides that the succession of a State does not as such affect the
rights and obligations of creditors.

6. Contracts:-Majority of jurists are of the view that the succeeding States should be
bound by the contract entered into by the extinct State.

7. Concessionary Contracts:-By concessionary contracts we mean the contracts through

which certain concession such as digging of mines, laying of railways, etc. are granted
through contracts.

8. Laws: -So far as the laws of the former State are concerned, civil law continues until it
is changed by the succeeding State.

9. Un-liquidated damages for Torts:-No succession takes place in respect of unliquidated

damages for torts. But the succeeding State will bound if the former State had accepted
or had decided to pay compensation.

10. Nationality:-The nationals for the former State loose their nationality at the extinction
of the State and become the nationals of the new international person. Generally such
nationals are given a certain period within which they have to decide whether they will
continue their loyalty towards the former state or will accept the citizenship of the
succeeding State.

11. Succession to property in foreign States: - The succeeding state becomes the successor.

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UNIT – IV

EXTRADITION
Each State exercises complete jurisdiction over all the persons within its territory. But a
difficult problem arises when a person after committing crime runs away to another
country. In such a situation, peace and order can be maintained only when there is
international co-operation among the States. There is, therefore, a social need to punish
such criminals. In order to fulfil this social necessity, the principle of extradition has been
recognized.

As pointed out by Edward Collins: “The inability of a State to exercise its jurisdiction
within the territory of another State would seriously undermine the maintenance of law and
order if there were no co-operation in the administration of justice. The awareness among
national decision- makers of the Social necessity of jurisdiction co-operation is illustrated
by the wide spread practice of returning a person who is accused or who has been
convicted of a crime to the State in which the crime was committed”.

Definition of the term Extradition:

In the words of Oppenheim, “extradition is the delivery of an accused or a convicted
individual to the State on whose territory the alleged to have committed, or to have
convicted of a crime by a State on whose territory the alleged criminal happens to be for
the time being”.

According to Starke, it is a process whereby under treaty or upon a basis of reciprocity one
state surrenders to another state at its request a person accused or convicted of a criminal
offence commited against the laws of the requesting state. Such requesting state being
competent to try the alleged offender, pointed out earlier, under International Law
extradition is mostly a matter of bilateral treaties. There is no general duty of States in
respect of extradition of criminals.

ESSENTIALS OF EXTRADITION
1. Non-extradition for political Crimes.
2. Non-extradition for military Crimes.
3. Non-extradition for religious crimes.
4. The rule of specialty.
5. Double criminality

1. Non-extradition for political Crimes:- It is a well-established principle of international

law that persons accused of political crime are not extradited although sometimes a
problem arises as to what is a „political crime‟. The practice of non-extradition of political
crime began with the French Revolution of 1789. Later on, other states followed the
practice. In the modern period all the States recognize this principle.

A leading case of non-extradition of political crime is Re Castioni. In this case extradition

of a man named Castioni was demanded by the Swiss Government. Castioni was accused
of murdering a Member of the State Council of the Canton of Tacinite. Political discontent
was going on in the said Canton for some time. An armed mob attacked the Municipal
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Palace and killed a member of the State Council. There evidence that the shot had been
fired by Casstioni. But the Queen‟s Bench of England held that Castioni had committed a
political crime and therefore, he could not be extradited.

In another case Re Munier, the accused was an anarchist and was charged with causing
two explosions in a Paris Caffe and some barracks. After committing the crime he fled
away to England. The French Government requested for the extradition. The accused
contended that he cannot be extradited because he was accused of a political crime. In this
case the accused did not belong to any particular political party. He was anarchist and was
opposed to all sorts of Governments. The Court ordered for his extradition and held that
this was not a political crime. The Court also tried to explain the question as to what is a
„political crime‟.

When an accused is extradited then the receiving State must try him for that specific
offence for which his extradition was sought for.

2. Non-extradition for military crimes

3 Non-extraditions for religious crimes

4 Rule of specialty:-The accused must be tried only for that offence for that offence for
which extradition is sought by receiving state. This is known as rule of speciality. U.S. V/s
Rausher, America got extradition of Rausher from England. He murdered a fellow
servant in a ship and ran away. In America Rausher was tried for greivous hurt and not for
murder. The Supreme Court of America held that when a person is brought under the
Jurisdiction of Court under the extraditon treaty, he may be tried only for such offence for
which extraditon was sought.

5. Double Criminality: -The specific offence, for which his extradition is sought for, must
be an offence in both the State requesting for extradition and the State extradited accused.
This is called the rule of double criminality. Factor V/s Luben Heimer: A British Citizen
charged for receiving money in London knowingly as fradulent. After commting the crime
he ran away to Illionis state. According to Illionis charging of fradulent money was not an
offence. Suprme Court of United states held in U.S.A it is generally punishable offence.
Extradition depends on the provisions of the existing extradition treaties.

Indian case-Savarkar‟s case: Savarkar was an Indian revolutionary who was brought to
India to proscute on the ground of crimes which he was alleged to have commited. When
the ship was in the port of Marcelese, Savarkar escaped but later he was apprehended by
French Police. But the captain of the French Ship returned Savarkar to the captain of the
British ship under the wrong impresssion that it was his duty to do so, Later French
Government requested the British Governemnt to return Sarvarkar on the ground that the
rules relating to extradition were not strictly observed. This case was entrusted to the
Permenent Court of Arbitration, Hague for its decision. The Court decided that
International Law did not impose any obligation upon the State to return the criminal.

Abu Salem‟s case: Abu Salem was one of the accused in the Mumbai blasts of 1993. He
was living in Portugal and government of India sought for extradition. The Suprme Court
of Portugal in 2005, January held that Salem could be extradited to India for the trial in
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major offences. Thus Abu Salem was extradited to India and his wife, Monica bedi, was
also extradited to India and facing trial. Subsequently no changes were proved and she was
released.
Extradition Treaty between India and Germany:- India and Germany signed an
extradition treaty in Berlin on 27th June, 2001. The treaty will enable the two countries to
extradite a person wanted in „extraditable offences”. Under the treaty “extraditable
offences” are the offences which are punishable under the laws of both the States and are
punishable by a term of imprisonment of not less than one year.

Extradition Treaty between India and Hongkong:-An extradition treaty between India
and Hongkong was signed in June 1997. The treaty was signed before a few days of
transfer of sovereignty on Hongkong from Britain to China. Since China has declared that
it will respect all treaties entered into before Hongkong became a part of China. It is hoped
that Hongkong will abide by the treaty.
ASYLUM
Meaning and Definition: -By the term „Asylum‟ we generally mean the shelter and active
protection which is extended to a political refugee from another State by a State which
admits him or his request.

As pointed out by Starke, Asylum involves two elements:-

(1) As shelter which is more than a temporary refuge;
(2) A degree of active protection on the part of the authorities which have control over the
territory of Asylum.

Right to Asylum:-According to Art. 14 of the Universal Declaration of Human Rights

(UDHR), “Everyone has a right to seek and enjoy in other countries asylum from
prosecution”. It may, however, be noted that the Declaration simply recognizes the right of
asylum, it does not grant right to receive asylum. Thus although everyone has a right to
seek asylum yet there is no corresponding duty of State to grant asylum.

As pointed out by Prof. Oppenheim: “The so-called right of asylum is nothing but the
competence of every State to allow a prosecuted alien to enter and to remain on its territory
under its protection and thereby to grant asylum to him. Such fugitive enjoys the
hospitality of the State which grants him asylum; but it might be necessary to place him
under surveillance or even to intern him at some place in the interest of the State which is
seeking him to prosecute him. For it is the duty of every State to prevent individuals living
in its territory form endangering the safety of another State by organizing-hostile or by
preparing common crime against its head, members of its government or its property”.

Types of Asylum:-Asylum may be classified into two categories:

(1) Territorial Asylum;
(2) Extra-territorial Asylum.

(1).Territorial Asylum: -Territorial asylum is granted by a State in its own territory and is
considered as an attribute of territorial sovereignty of the State which grants asylum.

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Example of Dalai Lama and his Tibetian followers: The grant of asylum to Dalai Lama
and his followers was an indication of the exercise of territorial sovereignty by India. India
as a sovereign State was within her girths to grant asylum to Dalai Lama and his followers
in the territory of India.

Example of influx of refugees from Bangladesh: As pointed out earlier, each sovereign
State can admit or grant asylum to any individual within its territory. India was within her
right to grant asylum to millions of refugees from East Pakistan (now Bangladesh) who
fled from their native land due to repressive policies followed by and ruthless prosecution
caused by the military regime of General Yahya Khan.

(2). Extra-territorial or Diplomatic asylum: -A state may also grant asylum in its
Embassy in foreign countries or in its public vessels.

Extra-territorial or Diplomatic asylum may be classified into following categories:

(a). Asylum in foreign Legation or Diplomatic Embassies:-Since granting of diplomatic

asylum involves a derogation from the sovereignty of the State international law ordinarily
does not recognize a general right of a head of mission to grant asylum in the premises of
legation.

A leading case on asylum in foreign legations is Haya Dela Torra case. The facts of this
case: Haya Dela Torra, a Peruvian citizen, was charged with rebellion. Columbia granted
him Asylum, in her embassy in Peru. After granting asylum, Ambassdor of Columbia
requested Peruvian Government to provide facility to enable Columbia to take
HayaDelaTorra outside Peru. This request was made on the basis of Bolivian Agreement,
1911 and Pan American Havana Covention on Asylum, 1928. Columbia contended that
asylum was granted because HayaDelaTorra was accused of a political crime. Peru did not
agree with this contention and rejected this request. The matter was referred to the
International Court of Justice.

The court held that “Columbia as the State granting asylum is not competent to qualify the
offence by a unilateral and definitive decision, binding on Peru”. However, the court held
that Peru had failed to prove that HayaDelaTorra was accused of an ordinary crime, and
not a political crime. The court added that asylum to HayaDelaTorra had been irregularly
granted because three months had passed after the suppression of the military rebellion
which clearly showed that the urgency prescribed by Havana Convention as a condition for
the granting of asylum had ceased to exist. But since HayaDelaTorra was a political
offender the Court held that despite the fact that asylum had been irregularly granted,
Columbia was not bound to surrender HayaDelaTorra.

The International Court of Justice held: “to infer an obligation to surresnder a person to
whom asylum has been irregularly granted would be to disregard both the rule of the extra
legal factors involved in the development of asylum in Latin America and the spirit of
Havana Convention”.

(b). Asylum in Consular premises:-The above principles also apply in case of the grant of
asylum in consular premises.
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(c). Asylum in the premises of International Institution:-Generally speaking

international law does not recognize any rule regarding the grant of asylum in the premises
of International Institution.

(d). Asylum in War Ships:-There is a controversy in regard to the grant of asylum in War
Ships. Some writers are of the view that asylum can be granted in war ships in the
territorial waters of a CoastalState. On the other hand, some writers have expressed the
view that such fugitive should be immediately handed over to the local police. But it is
conceded that asylum may be granted to political offenders.

(e). Asylum in Merchant Vessels:-Since merchant vessels do not enjoy immunity from
local jurisdiction, they are not competent to grant asylum to local offenders.

NATIONALITY
Nationality is the status of natural person who is attached to a State by the tie of allegiance.
In the words of Hyde, “Nationality refers to the relationship between a State and an
individual which is such that the former may with reason regard the latter as owing
allegiance to itself.

According to Starke, nationality may be defined, “as the status of membership of the
collectivity of individuals whose acts, decisions and policy are vouchasafed through the
legal conception of the State representing those individuals”.

Fenwick defines the term „Nationality‟ in the following words: “Nationality may be
defined as the bond which unites a person to a given state which constitutes his
membership in the particular stage; which given him a claim to the protection of that State
and which subjects him to the obligation created by the laws of that State”.

It is clear from the above definitions that the basis of nationality is the membership of an
independent community.

Development of the Law of Nationality:-The rules of nationality are determined by State

laws. But due to lack of uniformity in State laws in regard to nationality, many difficulties
were experienced. Consequently difficult problems of statelessness, double nationality,
etc. arose. In Hague Conference of 1930, an endeavour was made to end the conflicts
arising out of divergent State laws in respect of nationality.

International importance of nationality:-Nationality is often determined by State Laws.

As pointed out by Oppenheim, nationality is the link through which an individual can
enjoy the benefit of International Law.

As pointed out by Starke, the laws relating to nationality have following importance under
International Law:

(a) The protection of rights of diplomatic agents is in consequence of nationality.

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(b) If a State does not prevent offences of its nationals or allows them to commit such
harmful acts as might affect other States, then that State shall be responsible for the
acts committed by such a person.

(c) Ordinarily, states do not refuse to take back the persons of their nationality. By
nationality we mean loyalty towards a particular State.

(d) Yet another effect of nationality is that the State can refuse to extradite its own
nationals.

(e) According to the practice of large number of States during war, enemy character is
determined on the basis of nationality.

(f) According to theory of extra-territoriality, states exercise jurisdiction over civil and
criminal matters over the persons of their nationality.

Modes of Acquisition and Loss of Nationality:-

Acquisition of Nationality:-Following are the modes of acquisition of nationality:

1. By Birth:-A person acquires nationality of the State where he is born. He also acquires
the nationality of his parents at the time of his birth.

2. By Naturalization:-Nationality may also be acquired by naturalization. When a person

living in foreign State acquires the citizenship of that State then it is said to be acquired
nationality through naturalization.

In Nottebohm case, the International Court of Justice decided that in respect of grant of
nationality there is no obligation of the states if that man has no relationship with the State
of Naturalization.

Nottebohm Case: Born in 1881 in Germany, Nottebohm went to Gautemala in 1905. But
he continued his business relations with Germany and went to Germany several times.
After 1931, he visited his brother in Liechtenstein. In 1938, he left Gautemala. After
reaching Leichtenstein, he through his attorney, submitted an application for naturalization
as a citizen of Leichtenstein, and the same was granted in October, 1939.

He returned to Gautemala his change of nationality was enrolled on the Register of Aliens.
As a result of war measures, his property was taken in 1943 and he was arrested and
transferred to the U.S.A. After being refused re-admission to Gautemala in 1946,
Nottebohm went to Leichtenstein. In 1951 Leichtenstein filed a case against Gautemala in
the International Court of Justice. The World Court had to decide whether by the fact of
grant of nationality by naturalization to Nottebohm by Leichtenstein would directly entail
an obligation on the part of Gautemala to recognize Leichtenstein‟s right to exercise its
protection over Nottebohm.

Propounding the principle of „effective nationality‟ the World Court observed: “It
must ascertain whether the factual connection between Nottebohm and Leichtenstein in the
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period preceding contemporaneous with and following his naturalization appears to be

sufficiently close, so preponderant in relation to any connection which may have existed
between him and any other States that it is possible connection which may have existed
between him and any other States that it is possible to regard the nationality conferred upon
him real and effective, as the exact judicial expression of social fact, of a connection which
existed previously or came into existence thereafter”.

The Court noted that Gautemala was the main centre of Nottebohm‟s business and he
remained there for a many as 34 years, even after his removal in 1943. As a result of war
measures, Gautemala remained main seat of his business. As the time of his application
for naturalization, he had neither any settled abode nor resided in that country for along
time. Nor did he intend to transfer his business activities to Leichtenstein. Applying the
above principle, the International Court of Justice held, by a majority of eleven votes to
three, that Nottebohm did not enjoy the nationality of Leichtenstein.

3. By Resumption:-Sometimes a person may lose his nationality because of certain

reasons. Subsequently, he may resume his nationality after fulfilling certain conditions.

4. By Subjugation:-When a State is defeated or conquered then all the citizens acquire the
nationality of the conquering State.

5. Cession:- When a State has been ceded in another State, then the people of the territory
which has been ceded acquire the nationality of the State in which territory has been
merged.

Loss of Nationality:-Following are the modes of loss of nationality:

1. By Release:-In some States law provides that the citizens may lose the nationality by
release. In the loss of nationality by release it is necessary to submit an application for the
same. If the application is accepted, the person concerned is released from the nationality
of the State concerned.

2. By Deprivation:- In certain States law provides that if the nationals of that State without
seeking prior permission of the government obtains employment in another State, then he
may be deprived of his nationality.

3. Long Residence Abroad:-Yet another mode of loss of nationality is the long residence
abroad. The State laws of many States contain provisions in this connection. Thus, if a
person resides for a long period abroad then his nationality ends.

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

5. Substitution:-Some States provide for the substitution of nationality. According to this

principle, a person may get nationality of a State in place of the nationality of another
State. This is called nationality by substitution whereby he loses the nationality of one
State and acquires the nationality of another State.
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THE AGENTS OF INTERNATIONAL BUSINESS; DIPLOMATIC ENVOYS,

CONSULS AND OTHER REPRESENTATIVE
International Law relating to diplomatic agents may be cited in this connection.
Consequent on a development over some hundred of years the Institution of Diplomatic
Representatives has come to be the principal machinery by which the intercourse between
States in conducted. The permanent appointment of diplomatic envoys began from the 17th
century. The rights, duties, immunities and privileges etc., of the diplomatic agents in 18 th
and 19th centuries were mostly in the form of customary rules of International Law.

Classification of Diplomatic Agents:-The diplomatic agents have been classified

according to their status and functions. The first classification of diplomatic agent was
made in the congress of Vienna, 1815. The Congress of Vienna, 1815, classified the
diplomatic agents under following categories:

1. Ambassadors and Legates:- Ambassadors and Legates are the diplomatic agents of
first category. They are the representatiatives of the completely Sovereign States. They
are either appointed as Ambassadors or permanent Representatives of their respective
countries in the United Nations. The representatiatives appointed by Pope are called
Legates.

2. Ministers Pleni-potentiary and Envoys Extraordinary:-Minister Pleni-potentiary and

Envoys Extraordinary are the diplomatic agents of second category and as compared to the
diplomatic agents of the first category; they enjoy less privilege and immunities.
3. Charge-d Affairs:- Charge-d Affaires are the diplomatic agents of the last category.
The main reason for this is that they are not appointed by the head of the State. They are
appointed by the Foreign Ministers of States. In rights and status they are considered
below the Minister Resident.
Functions of Diplomatic Agents:-According to Art. 3 of Vienna Convention, the
functions of a Diplomatic mission consist inter alia in:
(a) Representing the sending State in the receiving State.
(b) Protecting in the receiving State the interests of the sending State and of its
nationals, within limits permitted by international law.
(c) Negotiating with the government of the receiving State.
(d) Ascertainment by all lawful means conditions and developments in the receiving
State; and reporting thereon to the government of the sending State.
(e) Promoting friendly relations between the sending State and the receiving State, and
developing their economic cultural and scientific relations.
Immunities and Privileges of Diplomatic Agents:- One of the pillars of modern
International law is the diplomatic immunities of the Ambassadors.
1. Inviolability of Persons of Envoys:- It is a well-recognized principle of international
law that the person to Envoys is regarded inviolable. It may be noted here that
international law relating to inviolability of the persons of envoys was recognized in India
from a very early time. The right of inviolability extends to the person of diplomatic
officials as well as diplomatic agents, their premises, archives, papers, documents and
correspondence, and the receiving State must take appropriate steps to prevent any attack
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on their person freedom of dignity as violation of any fraction of this right constitutes a
serious breach.
2. Immunity from Criminal Jurisdiction of the Courts:- The diplomatic agents also
enjoy immunities from criminal jurisdiction of Courts. However, it is generally believed
that they will not violate the provisions of the law of the State where they are appointed.
Beside this it may also be noted that there are conditions under which the diplomatic agents
may lost their immunities.
3. Immunity from Civil Jurisdiction of the Courts:- The diplomatic agents enjoy
immunities from the jurisdiction civil courts. Suits for recovery of debt or breach of
contract cannot be filed against diplomatic agents. However, there are certain exceptions
to this rule. Art. 31 of Vienna Convention which recognizes this immunity also provides
three exceptions.
That is to say the rules of immunity from civil and administrative jurisdiction will not
apply in the following three cases:
(a) Real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of the
mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions.

4. Immunity regarding residence:- Yet another immunity enjoyed by the diplomatic

agents is regarding their residence. Ordinarily, their residences are regarded inviolable.
This immunity has been reaffirmed by the International Court of Justice in case concerning
the United States Diplomatic and Consular Staff in Tehran which has been discussed
earlier. If a person is wanted by police and he is not enjoying any immunity of arrest then
the proper course is that the diplomatic agents should hand over such person to the police.
5. Immunity from being presented as witness:- Diplomatic agents enjoy the immunity
from being presented as a witness in the court. They cannot be compelled to come to the
court and give evidence in a case howsoever grave the case may be. But if any diplomatic
agent himself waives this immunity then he may personally present himself and give
evidence. In that case he will be deemed to be within the jurisdiction of the court for it will
be considered that he had waived his immunity in this connection.
6. Immunity from taxes dues, etc.,:- Under International Law the diplomatic agents are
immune from the payment of taxes, etc. These immunities are incorporated in Art. 34 and
36 of the Vienna Convention on Diplomatic Relations, 1961.
Art. 34 provides that a diplomatic agent shall be exempt from all dues and taxes, personal
or real national, regional or municipal, except,

(a) Indirect taxes of a kind which are normally incorporated in the price of goods or
services;
(b) Dues and taxes on private immovable property situated in the territory of the receiving
State, unless he holds it on behalf of the sending State for the purposes of the mission;
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(c) Estate, succession or inheritance duties, levied by the receiving State, subject to the
provisions of para 4 of Art. 39;
(d) Dues and taxes on private income having its source in the receiving State and capital
taxes on investments made in commercial undertakings in the receiving State;
(e) Charges levied for specific services rendred; registration, Court or record fees,
mortgages dues and stamp duty, with respect to immovable property, subject of the
provisions of Art. 23.
7. Immunity from police rules:- The diplomatic agents are immune from the police rules
of the States which they are appointed. However, by courtesy and for the sake of good
relations with the receiving State, they generally follow such rules.
8. Right to worship: -The diplomatic agents enjoy right to worship and no interference can
be made in this respect. They are free to follow any religion or perform the religious
rituals, ceremonies, etc. in their own way.
9. Right to Exercise control and jurisdiction over their officers and families:-The
diplomatic agents have right to exercise control and jurisdiction over their officers and
families.
10. Right to travel freely in territory of the receiving State:-This new right has for the
first time been introduced in Art. 26 of the Vienna Convention on Diplomatic Relations
1961. Art. 26 provides that diplomatic agents can travel in the territory of the receiving
State subject, of course, to the condition that they cannot go to the prohibited places or the
places which are important form the point of view of the security of the receiving State.
11. Freedom of Communication for official purpose:-This freedom has been conferred
upon by Art. 27 of the Vienna Convention on the Diplomatic Relations, 1961. This article
provides that they have freedom to communicate with their home state in connection with
their functions and duties.
12. Immunity from local and military obligations:-Diplomatic agents are also exempt
form local and military obligations.
13. Immunity from social security provisions:- According to Art. 33 a diplomatic agent
shall with respect to services rendered for the sending State be exempt from social security
provisions which may be in force in the receiving State.
Duties of Diplomatic Agents etc.
1. Duty to respect laws and regulations of the receiving state:- According to the Vienna
Convention on Diplomatic Relations, 1961, without prejudice to their privileges and
immunities, it is the duty of all persons enjoying such privileges and immunities to respect
the laws and regulations of the receiving state.
2. Duty not to interfere in the internal Affairs of the State:- They have a duty not to
interference in the internal affairs of the State.
3. Official business to be conducted with or through the Ministry of Foreign Affairs of
Receiving State or such other Ministry as may be agreed:- All official business with the
receiving state entrusted to the mission by the sending state shall be conducted with or
through the ministry for Foreign Affairs of the receiving state or such ministry as may be
agreed.
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4. Premises of Mission not to be used in any matter incompatible with the function of
the Mission:- Art. 41 paragraphs 3 provides, the premises of the mission must not be used
in any manner incompatible with the functions of the mission as laid down in the Vienna
Convention, 1961 or by other rules of general international law or by special agreements in
force between the sending and the receiving state.
5. Diplomatic Agent not to practice for personal profit any professional or
commercial activity:- According to Art. 42 of the Vienna Convention, a diplomatic agent
shall not in the receiving state practice for personal profit any professional or commercial
activity.
Termination of Diplomatic Mission:-A Diplomatic Mission may be terminated through
any of the following ways: -
(a) Recall of Envoy:-If the appointing State recalls the envoy, the diplomatic mission
comes to an end. Such a step is taken only when relations between the States deteriorate
and there are very remote chances of their improving.
(b). Notification in regard to the end of Envoys functions.
(c). On the request of the receiving State.
(d). By delivery of passport.
(e). Persona non-gratia:-The receiving State is entitled to declare at any time that a
diplomatic agent has become persona non-gratia i,e, undesirable person.
(f).End of the object of mission:- The diplomatic mission comes to an end when the
object of the mission has been achieved.
(g). Expiration of Letter of Credence:- When a diplomatic agent has been appointed for a
fixed period then his mission comes to an end after the expiration of that fixed period.

In addition to the above conditions and circumstances diplomatic mission may also end on
account of the following reasons:
(1) By death.
(2) Removal from post.
(3) Breaking of diplomatic relations.
(4) Constitutional changes.
(5) Revolutionary changes in Government.
(6) End of the work of mission by some Conference.
(7) War.
(8) Changes in the post of diplomatic agent.

CONSULS
Consuls are the representatives of their States but they are not deemed to be diplomatic
agent. The function of these Consuls is generally to look after the commercial and trade
interests of their countries. Since their main function is to look after the commercial
interests of their countries, they are certainly treated to be far below in status than the
diplomatic agents. But these consuls perform very important functions so far as trade and
commerce between States are concerned.

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In the modern period, the importance of trade and commerce is constantly increasing
because of the interdependence of the States and because of the specialization of certain
States in certain goods and things. The activities of the Consuls have increased manifold
during the last 50 years. It was, therefore, thought desirable to modify the law relating to
Consuls.
A convention was, therefore, adopted at Vienna on 24th April, 1963. In this convention it
has been made clear that the matters, in which there is no express provision in the
convention, will continue to be determined by the customary rules of International Law.
Thus at present the bulk of international law relating to Consuls has been incorporated in
Vienna Convention, 1963 and the remaining is still in the form of customs.
Classification of Consuls:
1. Consul-General:- Consul-General is of the first category of Consuls and is generally
appointed in main commercial cities and generally heads the Consul office.
2. Consuls:- Consuls occupy the second place, that is, below Consul – General and are
either appointed at small cities or they assist the work of Consul-General.
3. Vice-Consuls:- Vice Consuls are below the Consuls and in some States they are
appointed by Consul-General.
4. Consul Agents:-They are of the last category and are appointed either by Consul-
General or in some States even by Consul. The Consuls are often appointed by the head of
the States and the receiving State accepts them by issuing a “Letter of Permission”, namely
„Exequator‟.
Functions of Consuls:-Following are the four functions of Consuls:
1. They protect commercial interests of their States.
2. They supervise and look after the shipping, etc. of the country.
3. They also look after the interests of their citizens and assist them in cases and for
getting passport etc.
4. They also perform certain other functions for the citizens of their States, such as to
testify signatures, registration of marriage, birth, death, etc.

Rights and immunities of Consuls:-As pointed out earlier, Consuls are not regarded as
diplomatic agents hence they do not enjoy those immunities and privileges which are
enjoyed by the diplomatic agents. But ordinarily they are conferred upon special
immunities and privileges by bilateral treaty which generally grants them immunity from
the jurisdiction of the local courts. It is also generally agreed that they perform the
functions on behalf of their States and therefore the local courts cannot proceed against
them unless and until they seek prior permission from the Government. Hence, it is clear
that although the Consuls are as a matter of right not entitled to enjoy those immunities and
privileges which the diplomatic agents enjoy, yet by bilateral treaties and on the reciprocal
basis, they are conferred upon almost the similar privileges and immunities.
THE LAW AND PRACTICE AS TO TREATIES
Definition and meaning of the term “International Treaties”:-In the modern period
International treaties have been the first and foremost source of International Law.
International treaties occupy the same significant position in the field of International Law
as the legislation occupies in the Municipal Law.
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In the view of Prof. Oppenheim, “International Treaties are agreements of a contractual

character between States or Organizations of States creating legal rights and treaties”.
According to Prof. Schwarzenberger, “Treaties are agreements between subjects of
international law creating a binding obligation in International Law”.
According to Starke, “in nearly all the cases the object of the treaty is to impose binding
obligations on the States who are parties to it”.
The term “treaty” has also been defined in the Vienna Convention on the Law of Treaties,
1969. Art. 2(1) (a) of the Convention defines treaty as “an International agreements
concluded between States in written form and governed by International Law”.
Vienna Convention on the Law of Treaties, 1969:-In view of the significance of the Law
of Treaties, the International Law Commission decided in 1945 to attempt its codification
in Draft Convention on the Law of Treaties. The Commission completed its work in 1966.
On 23rd May, 1969, the United Nations Conference on the Law of Treaties adopted the
Vienna Convention on the Law of Treaties. As on 18th April, 2006, 105 States have
ratified the Convention. As remarked by I.M. Sinclair, “The Convention without question,
a major works of codification of progressive development comparable in most to the
Geneva Convention on the Law of Sea and augurs well for the movements towards the
progressive development of International Law and codification”.
Classification of Treaties:- McNair has classified the treaties under the following
categories:
(1) Treaties having the character of conveyances;
(2) Treaty Contracts;
(3) Law-making Treaties;
(4) Other treaties.
The famous jurist Vattel has also classified treaties into four categories. But Prof.
Oppenheim has classified treaties into the two categories:- (1) Law-Making treaties; (2)
The Treaties for their purposes. The full powers of its representative or was expressed
during the negotiation.
Formation of Treaties:-Following are the main steps in the formation of treaty:
1. Accrediting of persons on behalf of contracting parties:-The first step in the
formation of treaty is the accrediting of persons on behalf of the contracting parties. States
authorize some representatives to represent them for the negotiation, adoption and
signature, etc. of a treaty.
2. Negotiation and adoption:-The accredited persons of contracting parties enter into
negotiations for the adoption of the treaty. After the matters are settled, the treaty is
adopted.
3. Signatures:-After negotiation, next important step is the signature of the accredited
representatives of the contracting parties. The authorized representatives of the State
parties sign the treaty on behalf of their States.
4. Ratification:- Ratification is a very important step in the formation of a treaty.
Ordinarily, unless and until a treaty is ratified it does not bind the States concerned.

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5. Accession or Adhesion:- The practice of the States shows that those States which have
not signed the treaties may also accept it later on. This is called accession. A treaty
becomes a law only after it has been ratified by the prescribed number of State parties.
6. Entry into force:-The entry into force depends upon the provisions of the treaty. Some
treaties enter into force immediately after the signature. But the treaty in which ratification
is necessary enters into force only after they have been ratified by the prescribed number of
State parties.
7. Registration and Publication:- After a treaty comes into force its registration and
publication are also ordinarily considered essential. Art. 102 of the U. N. Charter provide
that the registration and publication of every international treaty entered into by the
members is essential.
8. Application and Enforcement:- The last step of the formation of treaty is its
application and enforcement. After a treaty is ratified, published and registered, it is
applied and enforced.
Interpretation of Treaties:- Following are the general principles of interpretation of
treaties:
1. Grammatical interpretation:-In the first instance, the words and phrases are considered
according to their plain and natural meaning. This is called grammatical interpretation of
treaty.
2. Object and content of treaty: -In case the words and phrases are ambiguous, they are
considered keeping in view the general object of the treaty and its context.
3. Reasonable and consistent:- It is a general principle of law of the treaties that treaties
should be interpreted so as to give reasonable and consistent meaning of the phrases and
words.
4. Principle of effectiveness:-Yet another general principle of the law of treaties is that the
treaties are interpreted in such a way as may prove to be most effective and useful.
5. Recourse to extrinsic material:-There is a controversy in regard to the recourse of
extrinsic material. International Law Commission proposed that resort may be had to
extrinsic material for interpretation of the treaty.
Termination of Treaties:-Treaties may be terminated by
(a) Operation of law;
(b) By act of the State parties.
(a). By operation of Law:-Termination of treaties by operation of law may be made in the
following cases:
(i). Extinction of either party to a bilateral treaty:-Extinction of either party to bilateral
treaty may amount to the termination of the treaty.
(ii).A material breach of bilateral treaty:-A material breach of a bilateral treaty by one
party entitles the other party to terminate treaty.
(iii). Impossibility of performance:-The impossibility of the performance of a treaty also
is a valid ground for the termination of treaty. This provision is contained in Article 61 of
the Vienna Convention on Law of Treaties, 1969.
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(iv). Rebus sic stantibus:-Rebus sic stantibus is also a ground for the termination of treaty.
The maxim rebus sic stantibus means that when the fundamental circumstances under
which the treaty.
(v). Expiration of fixed term:- If the treaty has been concluded for a fixed period, the
expiration of the fixed term will automatically terminate the treaty.
(vi). Successive Denunciation:- Successive denunciation may also lead to the termination
of a treaty. The provision relating to this is contained in Art. 55 of the Vienna Convention
on the Law of Treaties, 1969.
(vii). Jus Cogens of Emergence of new Peremptory Norm of General International
Law:-According to Art. 64 of the Vienna Convention, if a new peremptory norm of
general International Law emerges any existing treaty which is in conflict with that norm
become void and terminates.

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UNIT – V

THE UNITED NATIONS ORGANISATION

After the First World War the League of Nations was established but is failed to prevent
the Second World War. The Second World War once again compelled the nations of the
word to endeavour to establish an international organization which could prevent future
war and maintain peace and security in the world. During the Second World War itself the
great powers had started making efforts in this direction. Their efforts led to the holding of
the San Francisco Conference in which the United Nations Charter was adopted and signed
by 51 nations of the world. After the Charter was ratified by the prescribed number of
states, it came into force on October 24, 1945. Thus the United Nations was finally
established. It may, however, be noted that it was the untiring efforts for a number of years
which led to the establishment of the United Nations.

The more important factors and efforts which led to the establishment of the United
Nations may be briefly mentioned below:-

b. The Declaration of [Link] (June 12, 1941)

c. The Atlantic Charter (Aug. 14, 1941)
d. The United Nations Declaration (January 1, 1942)
e. Moscow Declaration (October 30, 1943)
f. The Tehran Conference (December 1, 1943)
g. Dumbarton Oaks Conference(1944)
h. The Yalta Conference (Feb. 11, 1945)
i. San Francisco Conference (June 25, 1945)
Preamble of the United Nations Charter:-The Preamble indicates that the Charter of the
U.N. is born as a result of the experiences of a devastating war and that it holds out hope
for a lasting peace based on recognition of fundamental human rights which have been the
causalities of war, on a recognition of sovereign equality of all States and no better
economic and social conditions for the millions who have been victims of the oppression
and exploitation. It is significant to note that as compared to the world, “The High
contracting parties” used in the covenant of the League of Nations, the Charter uses the
words, “We the people of the United Nations”.

In the view of Schuman the use of these words in the Charter is misleading because “those
who drafter it spoke for governments, not people and established not a federation of
peoples, but a league of States. Fulfillment of hopes of its founders required continuing
co-operation among great powers. With the advent of „cold war‟ these hopes faded”.

Purposes of United Nations: -The purposes of the United Nations are mentioned in Art.1
of the Charter. They are:-

(a). To maintain International Peace and Security:-The most important purpose of the
United Nations is to maintain international peace and security. Art. 1 provides that one of
the purposes of the United Nations is to “maintain international peace and security‟ and to
that end, „to take effective and collective measures for the prevention and removal of
threats to the peace, and for the suppression of acts of aggression or other breaches of
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peace and to bring about by peaceful means and in conformity with the principles of justice
and international law, adjustment or settlement of international disputes or situation which
may lead to a breach of peace.

(b). To Develop Friendly Relations among Nations:-Yet another purpose of the United
Nations is to develop friendly relations among nations on respect of the principles of equal
rights and self-determination if peoples and to take other appropriate measures to
strengthen universal peace.

(c). International Co-operation in Solving International Problems of Social, Cultural

and Humanitarian character:-The third purpose of the United Nations is to achieve
international co-operation in solving international problems of economic, social, cultural
and humanitarian character and promoting and encouraging respect of human rights and
fundamental freedom for all without distinction as to race, sex, language or religion.

(d). To make the United Nations a centre for the attainment of above common ends:-
The last purpose of the United Nations is to make it a centre for harmonizing the actions of
the nations in the attainment of the above mentioned ends.

Principles of the United Nations:-Art. 2 of the United Nations describe the principles of
the United Nations and provide that the organization and its members, in pursuit of the
purposes described in Article 1, shall act in accordance with the following principles:-

Art. 2(1). The Principle of Sovereign Equality of all Members:- The first principle of
the United Nations is that the organization is based on the principle of sovereign equality
of all members. Thus in the eye of law all members are equal.

Art. 2(2) Members to fulfil in good faith the obligations assumed by them:-The second
principle of the United Nations is that all members, in order to ensure to all of them the
rights and benefits resulting from the membership shall fulfil in good faith the obligations
assumed by them in accordance with the present Charter.

Art. 2(3) Peaceful Settlements of International Disputes:-According to the third

principle of the United Nations all members shall settle their international disputes by
peaceful means in such a manner that international peace and security and justice are not
endangered.

Art. 2(4) Principles of Non-Intervention:-The fourth principle of the United Nations is

that 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 any other manner
inconsistent with the purposes of the United Nations.

Art. 2(5) Members to Assist the United Nations in Common Action:-The fifth principle
of the United Nations is that all members shall give the United Nations every assistance in
common action it takes in accordance with the present Charter and shall refrain from
giving assistance to any state against which the United Nations is taking preventive or
enforcement action.

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Art. 2(6) Non-members also to act in accordance with the principles of United Nations
for the maintenance of International Peace and Security.

Art. 2(7) Non-Intervention in Domestic Matters of Member States:-Seventh and last

principle of the United Nations prohibits the United Nations to intervene in the domestic
affairs of a member State. It provides that nothing contained in the present Charter shall
authorize the United Nations to intervene in the matter which are essentially within the
domestic jurisdiction of any State or shall require the members to submit such matters of
settlement under the present Charter.

Membership:-Charter of the United Nations provides for two types of members,

a) Original Members;
b) States admitted as members according to Art. 4 of the Charter.

Original members of the United Nations are those members which participated in the
United Nations Conference on International Organisation at San Francisco or previously
signed the United Nations Declaration of January 1, 1942, and subsequently signed the
present Charter and ratified it in accordance with Art.110 of the Charter.

As regards the admission of members, Article 4 of the Charter provides that a State may
be admitted to the United Nations on the affirmative recommendation of the Security
Council and by election of the General Assembly by 2/3rd majority. Admission of states
being an important matter, it is necessary that the Security Council must recommend it by a
majority of 9 members including the five permanent members.
Further, Art.4 provides that for a State to become a member of the United Nations:
(i).It must be a State;
(ii).It must be peace-loving;
(iii).It must accept the obligations of the Charter;
(iv).It must be willing to carry out those obligations;
(v).It must be able to carry out those obligations.
Suspension of members:- Article 5 of the United Nations Charter provides that member
of the U.N. against which preventive or enforcement action has been taken by the Security
Council, may be suspended form the exercise of the rights and privileges of membership
by the General Assembly upon the recommendations of the Security Council. But the
exercise of these rights and privileges may be restored by the Security Council.

Article 6 Expulsion of members:- It provides that a member of the United Nations which
had persistently violated the principles contained in the present Charter may be expelled
from the Organisation by the General Assembly upon the recommendation of the Security
Council. Since Expulsion of members is a substantial question under the Charter, a
decission on it will require nine affimative votes of Security Council including those of the
permanent members and a decision by General Assembly to two-thirds majority.

PRINCIPAL ORGANS OF THE UNITED NATIONS:- There are the 6 principal organs
of the United Nations:

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1. General Assembly;
2. Security Council;
3. The Economic and Social Council;
4. The Trusteeship Council;
5. The Secretariat;
6. The International Court of Justice.
THE GENERAL ASSEMBLY:- Composition, powers and functions:-
General Assembly is one of the principal rgans of the United Nations. The General
assembly consists of all the member of the Unted Nations. Each member may have not
more than five representatives in the General assembly.
Voting rights: Each member of the General Asembly has one vote. Decisions on
important questions are made by the two-thirds majority of the members present and
voting. Such questions include the matters relating to maintanance of international peace
and security, the election of the non-permanent members of the Security Council, the
election of the members of the Economic and Social Council and Trusteeship- Council, the
admission of new members of the United Nations, the suspension of the rights aand
privileges of membership. The expulsion of members, questions relating to the operation
of the trusteeship system, and budgetary questions. Decisions on other questions,
including the determinations of the additional categories of questions to be decided by a
two-third‟s majorty, shall be made by a majority of members present and voting.

Article 19 of the charter of United Nations lays down that, a member shall have no vote in
the General Assembly which is in arrears in the payment of its financial contributin to the
organisation which is due from two years. But if it satisfied that, the failure to pay is due
to conditions beyond the control of the member state, permits to vote.

Powers and Functions of General Assembly:-

1. Deliberative functions:-
(i) The General Assembly may discuss any question or any matter within the scope of the
present Charter or relating to the powers and functions of any organs provided for in the
present Charter. (Article 10)

(ii) The General Assembly may consider general principles of co-operation in the
maintenance of international peace and security including the principles governing
disarmament and regulations of armaments, and may make recommendations with regard
to such principles to the members or to the Security Council or to both (Article 11(1).

(iii) The General Assembly may call the attention of the Security Council to situation
which is likely to endanger international peace and security(Article 11(3).

2. Supervisory functions:- By Supervisory functions we mean those functions through

which the General Assembly supervises the functions of other principal organs and
specialized agencies of the United Nations. The General Assembly particularly exercise
sufficient control over the two principal organs of the United Nations, namely the
Economic and Social Council and Trusteeship Council. It considers and Annual and
special reports of Security Council and other organs of United Nations.
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3. Financial functions:- The General Assembly also performs important fincancial

functions. It considers and approves the budget of the United Nations. It decides the share
of expenses to be borne by each member. Art.17 provides that the General Assembly shall
considers and approves the financial and budgetory arrengements with specialised
agencies and exeminations the administrative budegts of these agencies and makes
recommendations to them.

4. Elective functions:- The General Assembly performs two types of elective functions:-

(i) Regarding admissions of new States to the United Nations; the new state is admitted
to U.N by decision of the General Assembly by two-third majority of the members present
and voting upon the recommendations of the Security Council. Besides this, General
Assembly possesses certain powers in respect of suspension and explulsion of members.
(ii) Election of members for other organs: The General Assebly performs the following
functions:
a. It elects ten-non permanent members of the Security Council.
b. It elects 54 members of the Economic and Social Council.
c. It elects some members of the Trusteeship Council.
d. It also takes part in the election the judeges of the International Court of the
Justice.
e. It also appoints the Secretary- General

5. Constituent functions:- The General Assembly performs important constituent

functions also. It takes part in the amendment of the Charter. Art. 108 clearly provides
that amendments to the present Charter shall come into force for all members of the United
Nations when they have been adopted by a vote of two-thirds of the members of the
General Assembly and ratified in accordance with their respective constitutional process by
2/3rd of the members of the United Nations including all the permanent members of the
Security Council.

Uniting for peace resolution: Uniting for Peace Resolution 1950:- on account of mutual
conflict and non-operation among the permanent members of the Security Council, the
Security Council has failed miserably to perform its primary responsibilty for maintenance
of world peace. The provisions enshrined in Article 48 for the contribution of armed
forces to the United Nations by member states, could not be enforced because special
agreements were necessary for this but they could not be entered into because of the
conflict among the major powers. Consequently, the Security Council proved to be a very
weak organ so far as the maintenance of peace and security was concerned. The first
important achievement of the Security Council was that of action taken in Korean conflict
of 1950. When it decided that North Korea was an aggreessor and ordered for action to be
taken to repel the aggression. This decision by the Security Council could be possible
because when this matter was being considered by Security Coucil, the Russian
representative was not present. On August 1, 1950 when the Russian representative
returned to the Security Council, the Security Council became incapable of taking any
action because of the exercise of veto by Russia. America, therefore, took initative with
the support of France, Britain and other Western countries to equip united Nations with
necessary and adequate machinery to deal with the matters relating to International peace
and security. Due to the initiative of America, supported by Western countriries, the
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General assembly of the United Nations passed uniting for peace Resoution on November
3, 1950. This resolution provided the following:
1. A Special emergency session of the General Asembly can be called by the 9
affirmative votes of the Security Council to that effect or by the majority of the
members of the General Assembly.
2. If the Security Council fails to prevent any aggression or to take any action in
respect of any breach of peace, the General Assembly may consider this matter.
3. This resolution empowered the General Assembly to take collective measures
including the use of the armed forces for the maintenance of peace and security.
4. A 14 member peace Observation Commission established to supervise conflict
areas and to submit report to the General Assembly in that regard. It may,
however, be noted that this commission could go to the conflict area when the
state concerned gives its consent in this connection.
5. Each member was asked, under the resolution, to maintain certain elements within
its armed forces fully equipped so that the same could be available to the United
Nations at its demand.
6. A 14 member Collective Measures Committee was also established under the
resolution so as to study and report the matters relating to Interational Peace and
Security.

THE SECURITY COUNCIL

COMPOSITION, POWERS AND FUNCTIONS:- The Security Council is one of the

principal organs of the United Nations which comprises of 15 members out of which 5
permanent and 10 are non-permanent members. China, Russia, America, France and
Britain are the permanent members of the Council. The 10 non – permanent members are
elected by the General Assembly for a term of 2 years.

Voting rights: Accoring to Article 27, each member of the Security Council shall have one
vote. The decisions of the Security Council on procedural matters shall be made by
affirmative votes of 9 members. But decision on substantial matters requires affirmative
votes of 9 members including the affirmative votes of 5 permanent members. There is,
however, an exception to this rule, for any decisions under Chapter VI and under paragraph
3 of Article 62, a party to a dispute shall abstain from voting. A negative vote cast by a
permanent member on substantial matters is called a „veto‟. For casting a veto it is
necessary that the representative of the permanent member desiring to exercise this right
must be present and cast his vote in the meeting of the Security Council.

Functions and Powers:

1. Maintenance of International Peace and Security:- In order to ensure prompt and
effective action by the United Nations, State members have conferred upon the Security
Council the primary responsibility for the maintenance of international peace and security.
The members have also agreed that in carrying out its duties the Security Council acts on
their behalf. The members of the U.N. have also agreed to accept and carry out the
decisions of the Security Council with the least diversion for the armaments and the
world‟s human and economic resources.

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Pacific settlement of disputes: Chapter VI of the United Nations Charter deals with
the pacific settlement of disputes. Article 33 of the Charter provides that the parties to
any disputes, continuance of which is likely to endanger the maintenance of
International peace and Security shall, first of all, seek a solution by negotiations,
enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their own choice. Further, the
Security Council, shall when it deems necessary, call upon parties to settle their
disputes by such means. It is also provided in the Charter that if the parties to a dispute
fail to settle it by the means mentioned in Article 33 they shall refer it to the Security
Council. It is further privided that if the Security Council deems that the continuance
of disputes is in fact likely to endanger the maintenance of international peace and
security, it shall decide whether to take action or to recommend such terms of
settlement as it may consider appropriate.

Enforcement measures: Chapter VII of the charter deals with the action with respect
to threats, breach of peace and acts of aggression and confers upon the Security Council
wide powers in this respect. The Security Council possesses the following powers in
this respect:-
1. The Security Council first determines whether there exists any threat of
peace, breach of peace or an act of aggression has taken place, and then it
may recommend what measures shall be taken to maintain or restore
international peace and security.
2. The Security Council may decide what meaures not involving the use of
armed forces are to be employed to give effect to its decisions and may call
upon the members of the United Nations to apply such measures which
include complete or partial interruption of economic relations and of rail, sea,
postal, telegraph, radio and other means of communication and the severance
of diplomatic relations.
3. If the measures mentioned above (i.e., in Artcle-41) prove to be inadequate,
the Security Council 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 operation by sea, or
land forces of the members of the United Nations.
4. It is further provided that the Security Council may ask the members of the
United Nations to contribute to the maintenance of International peace and
Security and to make available on its call armed forces, etc., for the purposes
of maintenance of International Peace and Security (Article-43).
5. There is also a provision for the establishment of Military Staff Committee to
advise and assist the Security Council on all questions relating to its military
requirements for the maintenance of International Peace and Security, the
employment and command of the forces, placed it on its disposal, the
regulation of armament, and possible disarmament.

Contribution of Security Council in maintenance of peace and security: The Security

Councial has been able to contribute to the maintenance of peace and security in cases of
Indonesia (1949), Palestine problem, Indo-Pak conflicts (1948, 1965 and 1971), Congo
(1960), Cyprus and Arab Israeli Conflicts (1973), Iran–Iraq wars and Gulf war (1961). It
would, therefore, be wrong to say that the Security Council has proved to be complete
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failure, it has been successful in a number of cases to prevent escalation of armed conflict
and to effect cease-fire. It is also one of the great achievements of the Security Council
that since the inception of the United Nations there has been no world war. However, the
Security Council has been successful only to prevent escalation of war and to effect
temporary cease fire. It is also one of the great achievements of the Security Council that
since the inception of the United Nations there has been no world war. However, the
Security Council has been successful only prevent escalation of war and to effect
temporary cease-fires. It has failed to find out permanent political solutions of the
problems. This has been mainly due to mutual fears and distrust, non-co-operation and
conflict among great powers.

2. Elective Functions:- The Security Council also performs some elective functions. For
example, Security Council and the General Assembly separately elect the judges of the
International Court of Justice. In this way the Security Council participates in the election
of the judges of the world court.

3. Supervisory Functions:- The Security Council also performs some supervisory

functions. That is to say, it supervises the functions of the organization as a whole
although its supervisory functions are not as wide as that the General Assembly.

4. Constituent Functions:- The Constituent powers of the Security Council are very
important. Art. 108 of the Charter provides amendments to the present charter shall come
into force for all members of the U.N. when they have been adopted by a vote of 2/3 rd of
the members of the General Assembly, and ratified in accordance with their respective
constitutional processes by members of the Security Council.

THE ECONOMIC AND SOCIAL COUNCIL

Originally the Economic and Social Council comprised of 18 members elected by the
General Assembly. In the year 1963, the Charter was amended and the membership of the
Economic and Social Council was increased to 27. It came into force on 31 August, 1965.
In the year 1971, the Charter was once again amended and the membership of the Council
was increased to 54. It came into force 24th September 1973. At present the Economic and
Social Council comprises of 54 members. Since the membership of the U.N. has now
swelled to 190, a plea can be made for further increase in the membership of the Economic
and Social Council.

Powers and Functions:-The Economic and Social performs the following functions:
(a) The Economic and Social Council may make or initiate studies and reports with
respect to economic, social, cultural, educational, health and related matters and
may make recommendations with respect to any such matters to the General
Assembly, to the members of the U.N. and to specialized agencies concerned.
(b) It may make recommendation for the purpose of promoting respect for and
observance o human rights and fundamental freedoms for all.
(c) It may prepare draft conventions for submission to the General Assembly with
respect to matters falling within its competence.

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(d) It may call, in accordance with the rules prescribed by the U.N. International
Conference on matters falling within its competence.
(e) The Economic and Social Council may furnish information to the Security Council
and shall assist the Security Council upon its request.

(f) The Economic and Social Council shall perform such functions as fall within its
competence in connection with the carrying out of the recommendations of the
General Assembly.

(g) It may, with the approval of the General Assembly, perform services at the request
of the members of the U.N. and at the request of the specialized agencies.

THE TRUSTEESHIP COUNCIL

As provided under Art. 86 of the U.N. Charter, Trusteeship Council comprises of the
following members of the U.N: -
(i) Those members who are administering Trust territories;
(ii) The permanent members of the Security Council as are not administering Trust
territories;
(iii) As many other members elected for 3 years „term by the General Assembly as may be
necessary to ensure the total number of members of the Trusteeship Council is equally
divided between those members of the U.N. which administer trust Territories and those
which do not.

Functions and Powers:- Trusteeship Council performs the following functions under
authority of the General Assembly:

(a) It may consider reports submitted by the Administering Authority.

(b) It may accept petitions and examine in consultation with the Administering
Authority.
(c) It may provide for periodic visits to the respective Trust Territories at times agreed
upon with the Administering Authority.
(d) The Trusteeship Council shall formulate a questionnaire for each TrustTerritory
within the competence of the General Assembly and shall make annual report to the
General Assembly upon the basis of such questionnaire.
(e) The Trusteeship Council may avail itself of the assistance of the Economic and
Social Council and of the specialized agencies in regard to matters with which they
are respectively concerned.

THE SECRETARIAT
According to Article 7 of the U.N. Charter, the Secretariat is one of the principal organ of
the United Nations.
The Secretariat comprises of a Secretary-General and such staff as the organization may
require. The Secretary-General is appointed by the General Assembly upon the
recommendation of the Security Council. He is designated as “the Chief Administrative
Officer of the Organisation”.

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He is appointed by the General Assembly upon the recommendation of the Security

Council by a vote of 9 members including concurring votes of permanent members. Trigve
Lie was the first Secretary-General of the United Nations. He was succeeded by Dag
Hammarskjold. He was proved to be the most powerful and influential Secretary-General.
He was succeeded by [Link]. After him Mr. Kurt Waldheim was succeeded Mr. Zavier
Perez De Cuellar. He was succeeded by Mr. Boutros Boutrois Ghali. He was succeeded by
Kofi Annan who was demonstrated his diplomatice skills and capability. HE was
instrumental in preventing the Gulf war between the United States of America and Iraq.

Powers and Functions of the Secretary-General:-The Secretary-General performs the

following functions:-

(a) The Secretary-General is the Chief Administrative Officer of the Organisation.

(b) The Secretary – General acts in the capacity of the Chief Administrative Officer of
the Organisation in all meetings of the General Assembly, of the Security Council,
of the Economic and Social Council and of the Trusteeship Council and performs
such other functions as are entrusted to him by these organs.
(c) The Secretary-General makes annual report to the General Assembly on the work
of the organisaton. In fact the Annual Session of the General Assembly being with
the discussion of the report of the Secretary-General on the work of the
organization as a whole.
(d) The Secretary–General may bring to the notice of the Security Council any matter
which in his opinion threatens the maintenance of international peace and security.
(e) The Secretary–General gets collected all the statistics in regard to the economic
conditions of the whole world and submits those datas to the Economic and Social
Council.
THE INTERNATIONAL COURT OF JUSTICE
COMPOSITION AND JURISDICTION:- According to Article 7, International Court of
Justice is one of the principal organs of the U.N. It is the chief judicial organ of the United
Nations and is based upon a Statute which is integral part of the U.N. Charter. All
members of the U.N. are ipso-facto the members of the Statute of the International Court of
Justice. Any State which is not a member of the U.N. may also become a party of the
Statute of the International Court of Justice on the recommendation of the Security Council
and on the conditions laid down by the General Assembly. The International Court of
Justice consists of 15 judges which are elected by the General Assembly and the Security
Council separately. These Judges are elected for a term of 9 years and can also be re-
elected after the expiry of their term. All the decisions of the Court are made on the basis
of the majority of the judges.
Law applied by the International Court of Justice:-According to Art. 38 (1) of the
Statute of the International Court of Justice, the Court shall decide the disputes submitted
to it in accordance with International Law and shall use the sources of international law in
the following order:
(i) International conventions;
(ii) International customs;
(iii) General principles of law recognized by civilized nations;
(iv) Judicial decisions or the works of jurists, etc.

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Ex aequo et bono article 38(2):- Where the parties agreed that the Court may decide
exqequo et bono, the provision of the statues enables the court to go outside the realm of
law for reaching its decision. It makes possible a decision based upon considerations of
fair dealing and good faith, which may be independent or even countray to the law. It must
proceed upon objective considerations of what is fair and just. According to Article 59 of
the of the International Court of Justice, the decisions of the court shall not have a binding
force except upon the parties to a dispute and only in respect of particular dispute between
them.
Jurisdiction: -The International Court of Justice is open for all states of the world. Only
the states may be a party to any dispute before the Court. Individuals cannot be a party to a
dispute before the court. International organisations may request the court to give advisory
opinion on legal matters.

Broadly speaking, the jurisdiction of the court may be divided into the following two main
head:
1. Contentious; and
2. Advisory
Contentious Jurisdiction: contentious jurisdiction may be further divided into the
floowing two heads :
a. Voluntary jursidiction and
b. Optional jursidiction
The jurisidiction of the court may be classified into the following categories:

(1) Voluntray Jurisdiction: In accordance with Article 36 (1) of the Statute of the
International Court of Justice, the Court has jurisdiction over all such cases
which the parties entrust to it and also those matters which are expressly
mentioned to be within the jurisidiction under the United Nationsl Charter or
under International Treeaties. This type of Jurisidiction is called voluntary
jurisidiction.
(2) Optional jurisdiction: Article 36(2) of the statue confers optional jurisidiction
upon the Court which provides that the existing parties to the statute may confer
compulsory jurisidiction upon the court by making such declaration in respect of
any other state which also accepts similar obligations. This can be done without
any special agreemnt to the same effect. This is called optional jurisidiction of
the court. Under this provision the state party to the statute may confer
compulsory jurisidiction upon the Court in respect of the following matters:
i. Interpretation
ii. Any question of International Law;
iii. The existence of any fact which if established
would constitute of breach of international
obligations;
iv. The nature and the extent of the reparation to be
made for the breach of an internatinal obligation.
(ii) Advisory jurisdiction: The ICJ may also give advisory opinion to the Security Council
and the General Assembly and also to other organs of the United Nations and the
specialised agencies of the United Nations.

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Article 65 of the ICJ provides that the court may give an advisory opinion on any legal
question at the request of whatever body may be authorised by or in accordance with the
charter of the U.N to make such a request. Article 68 of the statute further provides that in
the exercise of its Advisory functions the court shall furhter be guided by the provisionss of
the present statute.

Contribution of International Court of Jusitce in the development of International

Law:-It is one of the functions of the United Nations to make the Progressive development
of the International Law and its codification. The Internatial Court of Justice as the chief
judicial organisation of the United Nations has done commendable wok in this conncetion.
The world Court has contributed much in the progressive development of International
Law. The Interantinal Court of Jusitce has been able to make the progressive development
of International Law in the following ways:

1. When there is no Internatinal treaty or convention a particular point in

dispute, the Court, as provided under Article 38 of the statute of Internatinal
Court of Justice can apply the general principles of law recognised by
civilised states and therby contribute to the progressive development of
Internatinal law.
2. It clarifies the vague rules of International Law although Article 59 of the
statute of the International Court of Justice, undermines or even prohibits
doctrine of precedent by providing that the decisions of the Court shall not be
binding except upon the parties to a dispute and only in that dispute, yet court
does not ordinarily deviate from its past decisions.
3. By interpreting charter or other treaties.

Reference may be made here to a few cases wherein the World Court has helped the
development of Internatinal Law. In Anglo Norwegian Fisheries case, the World Court
clarified the law relating to delimitation of fisheries zone and the method of measurement
of territorial sea. In the Corfu Channel case, the court clarified the law releating to self-
defence in the foreign territory, intervention, innocent passage through maritime belt, etc.,
In Nuclear Test case, the court by granting an injunction restraining France from
conducting planned neclear tests, made it clear by implication that a state is not authorised
to do anything within its territory if it affects the health and well-being of other states.
That is to say, every sovereign state is free to do whatever it likes within its territory
provided that its acts do not affect the other sovereign states. (Principal-21of Stock Home
Declaration 1972 and Trail Smelter case).

In case concerning U.S. Diplomatic and Consular staff in Tehran (U.S. v Iran) in 1979,
the court clarified the law relating to diplomatic and consular envoys, especially their
immunities.

The continental shelf ( Tunisia/Libya) case concerning Delimitation of the Maritime

Boundary in the Gulf of Main Area, Continental Shelf (Libya v. Malta) the world
court clasified the law relating to delimination of continental shelf between adjacent states.
In military and Paramilitary, Activities in and Against Nicaragua (Nicaragua V. U.S), the
Internatinal Court of Justice has interpreted the U.N. charter provisions relating to
intervention.
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WORLD TRADE ORGANISATION (W.T.O.)

Bretton Woods‟s conference held in 1944 was the starting point for a new world order. It
was envisaged that the New Word Economic Order would be organized around three
international institutions:-

(1) The International Bank for Reconstruction and Development (IBRD also called World
Bank)
(2) International Monetary Fund (IMF)
(3) International Trade Organizations(I.T.O).

While the first two institutions were established and exist even today, the third institution
i.e. I.T.O never came into existence. After the approval of the Governments of the U.S.
and the U.K. proposals for the establishment of I.T.O were discussed at an international
conference on Trade and Development first in London in 1946, the 2nd at Geneva and
finally in Havana in 1947-1948. A charter for an I.T.O was signed by 53 nations. In order
to come into force it was required to be ratified by the member nations. The I.T.O never
came into existence as the U.S. Senate not prepared to ratify it.

Uruguay Round:-The Uruguay Round of discussions started in Uruguay in September,

1986 and culminated on December 15, 1993. Delegations from 117 countries accepted by
consensus a GATT World Trade Treaty to open international markets and to ensure global
economic growth into the 10th century. The Dunkel Draft Text or Dunkel Package or the
Dunkel Draft Act embodying the results of Uruguay Round of Multi- Lateral Trade
Negotiation was released on 20th December 1991. The Uruguay Round of Multi Lateral
Trade Negotiations was concluded on 15th December, 1993. As many as 125 countries
including India signed the Final Act on April 15, 1994 at Marrakesh (Morocco). Thus the
General Agreement on Tariff and Trade (GATT) 1994 more popularly known as the
Dunkel Agreement, finally emerged as World Trade Organization (WTO) in 1995.

Establishment of WTO:- As a result of the culmination of Uruguay Round of GATT

Negotiations for more than 7 years at Marrakesh (Morocco) on April 15, 1994. The new
World Trade Organisation which came into effect on January 1, 1995, replaced the GATT.
The world treaty signed by 125 countries including India was estimated to add an annual $
235 billion to the world economic income within a decade. The treaty was expected to
boost World Trade by $ 755 billion each year by 2005 i.e. a decade after it taken effect on
15th April 1994.

WTO is in fact the main organ for implementation of Multilateral Trade Agreements. It is
the negotiating forum for the members. It can be regarded as the third economic pillar of
World Wide Trade and Commerce dimensions along with the International Monetary Fund
(IMF) and International Bank for Reconstruction and Development (World Bank).

World Trade Organisation headquarters are located at Geneva (Switzerland).

Membership:-There are two types of members: –

(1) Original members
(2) Other members.

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The Original Members comprise:

(a) The members of the GATT as on the date of entry into force of the agreement;
(b) The European Communities which accept this Agreement and the Multi Trade
Agreements and of which schedules of Concessions and Commitments are annexed to the
GATT 1994 and for which also Schedules of specific Commitments are annexed to the
General Agreement on Trade in Service.

WTO had 76 members at its creation. A further 72 members joined over the following ten
years. As of August 19, 2005 there are 148 members of the organization.

Withdrawal from Membership:-Any member may withdraw from this agreement by

giving a written notice to the Director-General of the WTO. The withdrawal takes effect
after the expiry of six months.

Structure:-The WTO consists of following bodies:

(1) The Ministerial Conference: It is the highest body comprising of the

representatives of all members. It is the executive of the WTO and carries
out functions of WTO. It meets at least once every two years.
(2) The General Council: It is also comprised of the representatives of all
members. It meets between the meetings of Ministerial Conference and
carries out the functions of the WTO.
(3) The Dispute Settlement Body.
(4) Trade Policy Review Body.
(5) The Committee on Trade and Development, the Committee on Balance of
Payment Restrictions and Committee in Budget and Administration.
(6) Bodies provided under the Plurilateral Trade Agreements.
(7) The Secretariat: The Secretariat is headed by a Director-General appointed
by the Ministerial Conference. On May 13, 2005, Pascal Lamy was elected
the Director General. He took over from Supachai Panit Chipakdi on
September 1, 2005.
Functions of World Trade Organisation: - According to Art. III of the Agreement
following are the functions of the World Trade Organisation:

(a) To facilitate the implementation operation, administration and the promotion of the
agreement and the Multilateral Trade Agreements and also of the Pulurilateral
Trade Agreements;
(b) To provide the forum for negotiations among its members in respect of multi trade
regarding their matters under the agreements of GATT and also to provide a forum
for further negotiations among its members regarding their multilateral trade
relations and a framework for implementation of the result of such negotiations.
(c) To administer the rules and procedures governing the settlement of disputes;
(d) To administer the Trade Policy Review Mechanism;
(e) To co-operate with International Monetary Fund (IMF), the International Bank for
Reconstruction and Development(IBRD) or the World Bank and its affiliated
agencies to bring about great coherence in economic policy making.

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Dispute Settlement Mechanism:-Following are the main stages in settling disputes under
WTO;
(a) Consultation;
(b) Establishment of a Panel;
(c) Report of the Panel;
(d) Adoption of Panel Report;
(e) Appellate Review before Standing Appellate Body;
(f) Implementation.
Meetings of the Ministerial Conference:- As noted above, the Ministerial Conference
meets at least once in every two years. So far it has held following meetings:
(1) The First Ministerial Conference, 1996 at Singapore.
(2) The Second Ministerial Conference, 1998 at Geneva.
(3) The Third Ministerial Conference, 1999 at Seattle, U.S.
(4) Fourth Ministerial Conference, November 2001 at Doha (Qatar).
(5) Fifth Ministerial Conference, September, 2003 at Cancum (Mexico).

INTERNATIONAL LABOUR ORGANISATION (I.L.O)

International Labour Organisation was established in 1919 as an autonomous partner of the
League of Nations. Its Head Office is situated in Geneva. It was brought into relationship
with the United Nations in 1946 through a specials agreement. This special agreement was
approved by the General Assembly on December 14, 1946. International
LabourOrganisation functions in close collaboration with the United Nations. International
LabourOrganisation was awarded the Nobel Prize for Peace in 1969.
Composition and Functions:- Its membership is open for all the States. In 1970 it had
121 States as its members. At present it has more than 150 members. Following are main
organs of the International LabourOrganisation:
(a). General Conference:- Each Member State gets representation in the General
Conference. Each State has 4 representatives in the General Conference-two
representatives of the State Government and one each representative of the workers and
employers. Each representative has one vote. Most of the decisions of the Conference are
in the form of Conventions and recommendations and they require the majority of 2/3rd
members present and voting. It is the obligation of the member-State to implement
through their State Legislatures the conventions adopted by the General Conference. All
the conventions and recommendations combined together are called International Labour
Code which indicates the international standards of policy. It comprises of 130
conventions and 134 recommendations.

As it is made clear in the Code itself. “The International Labour Code is primarily a Code
of internationally approved standards, certain of which are capable of becoming, and have
in many cases become, binding upon the States by reason of the ratification by those States
of the relevant International Labour Conventions and in respect of all of which members of
the organization have an obligation to report on the position of their national law and
practice at appropriate intervals as requested by the governing body”.

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(b). Governing Body:- The Governing body comprises of 54 members and is a tripartite
body and includes the representatives of State Governments employers and workers. The
Governing Body appoints the Director General and supervises the functions of the
organization.
(c). International Labour Office or Secretariat:-The head of the International Labour
Office is a Director – General. Its head office is situated in Geneva and its branches are in
New York and in several countries of Europe and Asia. Its main function is to collect
information related to industrial life and labour and to assist the members to make laws in
accordance with the decisions of the General Conference.

The General Conference of the International LabourOrganisation held in 1940, in

Philadelphia clarified its objectives through a declaration.
According to Article 3 of the Declaration following are its main objectives:-
(a) Full employment and rise in living standards;
(b) Minimum living wage;
(c) Recognition to the rights of collective bargaining;
(d) Social Security;
(e) Proper security of the health of the workers;
(f) Child welfare;
(g) Proper arrangements of housing, entertainment etc.
(h) Assurance of equal opportunity in education and employment.
Evaluation:- International Labour Organisation (I.L.O) is a very successful inter –
governmental institution and specialized agency. It has done a commendable work to
achieve social justice for the workers. In the field of international legislation, International
Labour Code is a significant achievement.

In the words of [Link], “The International Labour Code has become for labour lawyers
throughout the world what corpus jurisciviles is for the civilians or works of authority of
the common law for the common lawyers”.

The most significant thing in the constitution of he International LabourOrganisation has

the representation of not only the States, but also of the workers and employers. This
tripartite partnership has made this organization the most representative and democratic in
the real sense of the term.
Besides this, as pointed out by Jenks, “No less radical and unprecedented an innovation
was the obligation to submit conventions adopted by International Labour Conference by a
2/3rd majority for parliamentary consideration, irrespective of the attitude towards the
convention of the representatives of the Government concerned”.

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