KLE LAW ACADEMY BELAGAVI

(Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College,
Hubballi, S.A. Manvi Law College, Gadag, KLE Society’s B.V. Bellad Law College, Belagavi, KLE Law
College, Chikodi, and KLE College of Law, Kalamboli, Navi Mumbai)

STUDY MATERIAL
for

PUBLIC INTERNATIONAL LAW

Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi
Reviewed by

Compiled by Santosh R. Patil, Principal

Jaihanuman H.K., Asst. Prof.

K.L.E. Society’s S.A. Manvi Law College, Gadag

This study material is intended to be used as supplementary material to the online classes and
recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation
for their examinations. Utmost care has been taken to ensure the accuracy of the content.
However, it is stressed that this material is not meant to be used as a replacement for textbooks
or commentaries on the subject. This is a compilation and the authors take no credit for the
originality of the content. Acknowledgement, wherever due, has been provided.
About the Study material
This Study material on Public International law is a compilation of resources on
the basis of the Karnataka State Law University syllabus. Notes are extracted from the
following sources

1. Text book Prescribed by University –‘Starke’s Public International Law, by S.H.

 Shearer, Eleventh edition, International student’s edition’
2. ‘International Law by Malcolm N. Shaw, Sixth Edition, Cambridge University Press,
Cambridge, UK, 2008,
3. International Law A Treatise by L. Oppenheim, Volume 1 Peace, Second Edition,
Longmans, Green And Co. London 1912
4. Official websites of World Trade Organization, United Nations Organization and
International Labour Organization

The Students can refer to the above books for further reading. The E Book of
International Law A treatise by L. Oppenheim Volume 1 is available at
http://www.gutenberg.org/ebooks/41046. The soft copy (pdf file format) of the Book –
International law by Malcolm N. Shaw, Sixth Edition is available at the below mentioned
link

http://euglobe.ru/wp-content/uploads/2017/01/Malcolm-N.-Shaw.-International-La
w-6th edition-2008.pdf

Note:

Students can have access to video lectures on different topics of Unit III and IV of Public
International law delivered by the compiler of this study material. Some of the links of the
video lecture on different topics of Public International Law are given in the annexure to
this study material. Before 30th June 2020 Video lectures on all the topics Unit IV and V
of Karnataka State Law University syllabus are going to be uploaded to the you tube
channel the link of which is shared in the annexure.
SYLLABUS
COURSE-I: PUBLIC INTERNATIONAL LAW
Objectives:
The course includes the study of general principles of international law including
law of Peace. Third world concerns in respect of security and development and the role
of U.N. and International Agencies in structuring solutions in the context of changing
balance of powers are also to be appreciated.
Course contents:
UNIT-I
Nature, definition, origin and basis of International Law; Sources of International Law;
Relationship between Municipal and International Law; Subjects of International Law.
UNIT- II
States as subjects of International Law: States in general; Recognition; State territorial
sovereignty.
UNIT –III
State Jurisdiction: Law of the sea; State Responsibility; Succession to rights and
Obligations. UNIT – IV
State and Individual - Extradition, Asylum and Nationality; the agents of international
business; diplomatic envoys, consuls and other representatives; the law and practice as
to treaties. UNIT – V
The United Nations Organization - Principal organs and their functions; World Trade
Organization- Main features; International Labour Organization.

Key topics on Public international Law

UNIT I
1. Origin and development of International Law.
2. Difference between Municipal law and International Law
3. Definition of international law. Theories regarding basis of international
law 4. Weakness of International Law
5. Sources of International Law.
6. Operation of International Law within the British municipal Sphere.
7. .Monistic theory.
8. “Dualistic Theory”.
9. “International Custom”.
10. Theories relating to relationship between international law and
municipal law 11. Juristic Works as sources of International Law.
12. Is International Law a True Law?
13. States are the only subjects of International Law- Critically analysis
14. Duties and rights of states are only the duties and rights of men who compose
them- An analysis
15. Extent to which individuals and international organizations are subjects of
international law.
16. Decisions of International Institution as a source of International
Law. UNIT II
17. Definition of State. Essential elements of the State.
18. “Condominium State”
19. Different kinds of state.
20. Microstates and condominium.
21. Modes of acquiring and loss of territory under International Law.
22. Meaning of recognition
23. Critical analysis of various Theories of recognition.
24. Legal effects of recognition of new state.
25. Distinction between ‘Dejure’ and ‘Defacto ‘-Analysis with decided
cases 26. Modes of acquisition and loss of territorial sovereignty
27. Withdrawal of recognition
28. Meaning of intervention.
29. Different types of intervention
30. Implied recognition
UNIT III
31. Meaning of territorial jurisdiction of the state
32. Principles governing the territorial jurisdiction.
33. State jurisdiction according to personal and protective Principles.
34. Definition of State succession
35. Rights and duties arising out of State Succession.
36. Kinds of state succession
37. Consequences of state succession in respect of Treaty rights and obligations
Contractual rights and obligations
38. “The Continental Shelf”
39. A state exercises its jurisdiction over property, person, acts and events occurring
within its territory- Analysis of the rule and its exception
40. Jurisdiction of maritime state over coastal waters
41. Privileges and immunities of diplomatic envoys
42. Contiguous zone
43. Jurisdiction of maritime state over coastal waters
44. Territorial sea and Continental Shelf
45. Exclusive economic zone
46. Principle involved in the ‘Lotus Case’
47. Freedom of High Seas
 48. Meaning of High Sea. Freedoms available to a state on the high sea 49.
Inter-oceanic canals, special treaty rules applicable to regulate their
administration 50. Maritime belt
51. Responsibility of a state for international delinquencies
52. Expropriation of foreign private property
53. Calvo clause
UNIT IV
54. Modes of acquiring and loss of Nationality
55. Meaning of extradition? Conditions for extradition
56. Classification of International Treaties
57. Importance of treaty in international law
58. Steps in the conclusion of an international treaty
59. Meaning of nationality. International importance of
Nationality 60. Interpretation of treaties
61. Meaning of asylum. Different types of Asylum
62. Consuls
63. Definition of the term “Treaty”
64. Stages of concluding Treaty
65. Termination of treaties
66. Double Nationality
67. Extradition, Laws governing extradition
68. Classification of treaties
69. Statelessness
UNIT V
70. Purposes and principles of United Nations Organization
(U.N.O.) 71. Powers and functions of the General Assembly of the
United Nations 72. Composition and functions of General
Assembly
73. Dispute settlement mechanism of World Trade Organization
(W.T.O.) 74. Suspension of members from United Nations
Organization (U.N.O.) 75. Objectives of International Labour
Organization. (I.L.O.) 76. Composition and voting procedure of
Security Council 77. “The Economic and Social Council”
78. ‘Laws applied by International Court of Justice’ to settle
 disputes 79. International court of justice
80. International labour organization
81. Compulsory Jurisdiction of the International Court of
Justice 82. Secretary General
83. Composition and Jurisdiction of International Court of
Justice 84. Secretariat
85. Main features of World Trade Organization

Origin and development of International Law

Definitions of International Law –

Traditional Definitions of International Law

International Law regulates the relations between or among states. States and only
states are subjects of International Law
Exponents: Oppenheim, J.L. Brierly and Hackworth
Oppenheim’s Definition:
“Law of Nations or International Law is “the name for the body of customary and
treaty rules which are considered legally binding by civilized states in their inter
Course with each other”
Key components in this definition are (a) It is a body of rules governing the relations
between states; (b) States regard these rules as binding on them in their relation with
one another. and (c) those rules are derived from customs and treaties.
Criticism of Oppenheim’s definition:
Not only states but also international organization is subjects of international law
P.E.Corbett: “The future of International law is one with the future of International
Organizations. Individuals and other private persons have rights and duties in
International Law. Not only customary and conventional International Law but it also
includes general principles of Law.
Modern Definitions of International Law
International Law not only regulates the relations between states but also deals with
International organizations, individuals and non – state entities.
Definition of J.G.Starke
“ International Law may be defined as that body of law which is composed for its greater part of
 the principles and rules of conduct which states feel themselves bound to observe, and therefore,
do commonly observe in their relations with each other, and which includes also;
(a) The rules of law relating to the functioning of international institutions or organizations, their
relations with each other, and their relations with states and individuals; and
(b) Certain rules of relating to individuals and non-states entities so far as the rights or duties of
such individuals and non-state entities are the concern of the international community.”
Reasons for emergence of new definition includes, eestablishment of a large number of
permanent international institutions or organisations, protection of human rights and
fundamental freedoms and creation of new rules for the punishment of persons
committing international crime

Nature of International Law (Theories of basis of International Law) There are two views
as to the nature of International Law. The first view is that ‘International Law is not a true
law.’ The chief exponents of this view are John Austin, Hobbes, Holland, Pufendorf, and
Bentham. The second view is that ‘International law is a true law.’ And the chief
exponents of this view are from Natural school of Law.

‘International Law is not a true law.’

Austin’s Views -
According to Austin, Law is a Command of Sovereign given by political superior to
political inferiors. International law is not true law, but a code of rules of conduct of moral
force only. Law in strict sense is the result of edicts issuing from a determinate
sovereign legislative authority this authority is politically superior if rules are not issued
by a sovereign authority or if there is no sovereign authority then rules are not legal
rules. Such rules are moral or ethical rules only, therefore international law is not a true
law but positive international morality. International laws are opinions or sentiments
current among nations generally.
‘International law is a true law.’
The chief exponents of the second view that International law is a true law are Luis
Henkin and Sir, Henry Maine:
According to Luis Henkin generally all the nations observe the principles of International
Law and their obligations. According to him Objective of any law ands its implementation
is most important and not the means and methods.
Sir Henry Maine considers that in primitive societies there was no sovereign political
authority yet there were laws. Austin’s concept of law denied customary rules of
international law, the status of law. Treaty and conventions are like legislation of
international law. States do not deny the existence of international law. Some states like
U.K. and USA treat International
Law as part of their laws. International law does not completely lack sanctions. Decisions
of International Court of Justice are binding upon parties to the dispute
Influence of Natural law theory on the nature of International Law
It has significant influence on international Law. Several characters and binding
force of international law is founded on the theories of law of nature Important
contentions of this theory are that ideal law founded on the nature of man as a
reasonable being, the body of rules which nature dictates to human reasons is law.
States submitted to international law because their relations were regulated by the
higher law that is law of nature. International law is a part of the law of nature. Natural
law contains those principles which natural law dictates to states. It is no less binding
upon them than it is upon individuals because, states are composed of men, their
policies are determined by men and these men are subject to the natural law

Theory of Positivism on the basis of International Law

International laws have same characters as Municipal law. International laws are
issued from the will of the state. International law can be reduced to a system of rules
depending for their validity only on the fact that states have consented to them. For
positivists state is a metaphysical reality. It has a value and significance and this
significance makes the state to have will of its own and this will is considered as the
sovereign authority. International law consists of those rules which. Various state-wills
have accepted by a voluntary self restriction. Without such manifestation of such
consent, the international law would not be binding on the society of states. Thus
international law is a branch of state law, an external public law. Only for this reason
they are binding on the state. Consent for the state may be express or implied(tacit).

Views of Aanzilotti

Binding force of international law can be traced back to one supreme, fundamental
principle or norm i.e. ‘The agreements between states are to be respected.’ this principle
is known as ‘pacta sunt servanda.’ Every legal order consists of a complex of norms.
They derive their obligatory character from a fundamental norm to which they relate to.
Pacta sunt servanda is the supreme norm.
Origin and development of international Law
History of modern system of international law is only of the last four hundred
years. It grew from the usages and practices of modern European states in their
intercourse and communications. Writings of jurists of sixteenth century, seventeenth
and eighteenth centuries had a profound impact on the modern international law.
Fundamental tenets of modern international law are national and territorial sovereignty,
perfect equality and independence of states. They are based on the modern European
state system. This system influenced the newly emerged non-European states.

History of early international law

Rules of conduct to regulate relations between nations emerged from the usages
in the period of antiquity. Treaties and immunities of ambassadors, and are found before
the dawn of Christianity in ancient Egypt and India. There were historical cases of
recourse to arbitration and mediation and in ancient China and Early Islamic world. In
Greek city states there were inter
municipal laws composed of customary rules which crystallised into law from
long-standing usages followed by city states. They are connected with need for prior
declaration of war, enslavement of prisoners of war etc. There were deep religious
influences and there were no distinctions made between law, morality, justice and
religion. During Rome’s dominance, distinction was made between legal rules and
religious aspects. This Roman law was later revived later in Europe

Instructions: For detailed discussion on the origin and development of International law,
students can refer to the Text book ‘Starke’s Public International Law, by S.H. Shearer,
Eleventh edition, International student’s edition, from Page no.7 to Page no.16

Sources of International Law

Introduction:
 Sources of international law are the materials and processes out of which the
rules and principles regulating the international personalities are developed. According
to Lawrence and Oppenheim there is only one source of International law and that is the
consent of nation. Brierly considers customs and reasons as the main sources of
international law.

Article 38(1) of the statute of the International Court of Justice is widely

recognized as the most authoritative statement as to the sources of International law.
On the basis of Article 38 of ICJ Statute five distinct sources can be identified. They are
International conventions/treaties, International customs, General principles of law,
Judicial decisions and writings of the publicists and Reason and equity.

International Conventions or Treaties:

It is the first and Important Source of International law. There is no Legislative organ in
the field of International Law, comparable to legislatures within the State, the enactments
of which could bind all the States. The Contracting Parties may, however, establish an
international organization by means of the treaty with authority to bind them by its
resolutions or may even lay down rules for their mutual conduct. In this sense,
multilateral treaties are a feeble approach to International Character. Treaties can be
divided into law Making Treaties and treaty Contracts

Law making Treaty-

Law making treaties are those treaties which are entered into by a large number of
States. These are the direct source of International Law. These treaties are binding. Law
making treaties may be divided into i) treaty giving the rule of Universal International
Law. ii) Treaty giving general principles.(i) Treaty giving the rule of Universal
International Law - These treaties are signed by a majority of the State. For Example
United Nation Charter. (ii) Treaty giving general principles - These treaties are entered
into and signed by a large number of countries giving
thereby general principles of International Like. Geneva Convention on Law of sea and
Vienna Convention on Diplomatic Relations, 1961 are examples of such a treaty.

Treaty Contract:
These are the treaties which are entered into by two or more States. The provisions of
such treaties are binding only on the parties to the treaty. Such type of treaties is also the
source of International Law because they help in the development of customary rules of
International Law.
It is criticized that the classification of treaties are misleading because they both create
binding rules. In conventions numbers of State, parties are involved. Majority of state
abides by the obligation and agreed voluntarily. Treaties create rules and principles of
International Law. The basis is the common consent of the States. There is no law
making authority in the international sphere. The role played by convention in the
absence of such Law making Authority is significance. The International convention
goes one step ahead of customary rules. Treaty stipulations override rules of
International customary law which are incompatible with them. This proposition received
approbation in the case of S.S Wimbledon 1923, where the Permanent Court of
International Justice held that treaty law takes priority over international Customary Law.
Conventional and customary rules of International Law are not the only source of
International Law, but they fill the gap in absence of law making authority.

Customs:

Custom is the older and original Source of International Law. It is as such Second
Important source of International Law. International Law Custom may mean a kind of
qualified practice, by the existence of a corresponding legal obligation to act according
to this practice, hence by the existence of the corresponding rule of International law.
The customs are evolved through the practices of and usages of the nation and their
recognition by the community of nations. Customary rules are those rules which are
practiced by most of the States by way of habit for a pretty long time.

International custom has developed by spontaneous practice and reflects a deeply felt
community of law. Its rules are regarded as possessing density and stability and it is the
repository of the general or common law of the nations.
The general Principles of Law:

The General Principles of law are based on moral Principles and law of nature; it
has relation with the State Practice. The statute of the International Court of Justice
authorizes the Court to apply the general principles of law recognized by civilized
nations in addition to international conventions and custom, which are the two main
sources of International law. It makes national legal systems as a source of law for the
creation of International Law.

The special arbitral tribunal between Germany and Portugal also applied the general
principles of law in the Maziua and Naulilaa case where the arbitrators observed that in
the absence of rules of International law applicable to the facts in dispute, they were of
the opinion that it was their duty to fill the gap by principles of equity fully taking into
account the spirit of International Law, which is applied by way of analogy and its
evolution.

D) Judicial Decision:

According to Article 38 of the Statute of the International Court of Justice, Judicial

Decisions are subsidiary sources of International Law. They are not the automatic
sources of law. Judicial Decisions by International Court of Justice, Permanent Court of
Justice, International Arbitral Tribunal and Municipal Courts are subsidiary sources of
International Law.

Article 59 of the Statute of the International Court of Justice expressly provides that the
decisions of the court have no binding force except between the parties and in respect of
that particular case. This means that the judicial decisions are binding only on the
disputed States. Under the provisions of this Article, the Court is specifically required not
to apply precedent or doctrine of stare decisis in its decisions. Decisions of International
Court of Justice are to have only persuasive value. The content of earlier decisions has
some element of law and it is clarified, impartially, as certainly carried by International
Court of Justice. How it contributes in the development of International Law? Its
repeated application is relied upon. Later on, it does not remain only persuasive and it
does convert into rules of International Law.
Text writers, Juristic Works and Commentators –

It is referred and relied on by International Court of Justice which author is quoted

in which decision. The opinion of jurist is also regarded as sources of international law
but they are subsidiary means for the determination of rules of international law. While
deciding the case, if the Court does not find any treaty or judicial decision or legislative
act or any established custom, the Court may take the help of opinion of jurist as
subsidiary means for the determination of rules of International law. Although juristic
works are not independent sources of law, sometimes juristic opinion leads to the
formation of International law. It throws light on the rules of International law and their
writing makes it easier to frame a particular rule. The value of juristic writings carries
more weight particularly in those fields of international law where treaty or customary
rules do not exist. The Writings of Ayala, Gentilis Grotius, Vattel, Kent Zouche, etc have
tended to transform the transitory state of usages into custom and represented a strong
element to consolidate the customary law.

Equity

Equity is used in the sense of consideration of fairness, reasonableness and policy often
necessary of the sensible application of the more settled rule of law. Though equity
cannot be the direct source of International Law, It is of great importance in those fields
where rules are not readily available.

Some jurists say that, it is not the formal source of law but it is a a subsidiary
source of law. Equity principles originate from culture and interest of state concerned,
equity principles vary from State to State. Equity in international law is uncertain. It is
subjective, and to bring objectively to the principles of equity as a principle of natural law
are considered. The Concept of Equity has been referred to in several cases.

Decision or determinations of the organs of International Institutions –

In the modern age the decisions or determination of the organs of international

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

Theories of relationship between international law and municipal law

Theories as to Relationship between International Law and Municipal Law can be

broadly classified in to two kinds known as Dualistic Theory and Monist theory
 Dualism & Monism: Dualists see International Law and Municipal Law as distinct
and separate – arising from different sources, governing different areas and
relationships, and different in substance. According to Dualists, international law is
inferior to and weaker than, domestic law. If international law ever becomes part of
domestic law, that can only be because domestic law, has chosen to incorporate it.
Monists on the other hand contend that there is only one system of law, of which
international and domestic laws are no more than two aspects. They justify this by
claiming that both of them govern sets of individuals (States being seen for this as
collection of individuals) both are binding, and both are manifestations of a single
concept of law. Hence international law is superior and stronger, as it represents the
system’s highest rules – jurisdiction on a domestic level being only delegated to states,
which cannot avoid being bound to apply international law at the domestic level. So, if
domestic law anywhere conflicts with international law that is the State’s fault, and will
not excuse the State’s obligations.

Viewed on the international plane, the dispute between these two schools of
thought is indeed academic. “Formally international and domestic law as systems can
never come into conflict. What may occur is something strictly different, namely a
conflict of obligations or an inability for a state on the domestic plane to act in the
manner required by international law”. It is well settled that international law will apply to
a state regardless of its domestic law and that a state cannot in the international forum
plead its own domestic law, or even its domestic constitution, as an excuse for breaches
of its international obligations.

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

Monists say that it will always form such a part; dualists, that it will form part only if
the domestic law has expressly as impliedly incorporated it. In fact, many States
expressly accept
international law as part of their domestic law, leaving academicians to debate whether
the acceptance was necessary or superfluous. But others do not.
 Where international law becomes incorporated in a State’s domestic law without
the need for specific legislation, those parts of it, which are sufficiently explicit to be
enforceable by the domestic courts, are known as ‘self executing.

Some States provide by their Constitutions that certain provisions of international

law shall be self-executing. For example, the Constitution of the U.S.A., provides that
international treaties are part of the law of the land.5 Other countries have gone even
further by not only making international law self executing, but assigning to it a rank in
the domestic hierarchy superior to all prior and subsequent legislation. Examples of this
are France and Germany. But there are other States that do not accept any international
law as self-executing, or so accept it in part. For example United Kingdom (U.K.). Where
International Law and Domestic Law coincide, there is of course no problem. But if they
differ – either because international law imposes an obligation on a State which is not
reflected in its domestic law, or because obligations imposed by international law and
domestic law respectively conflict with each other in a particular case – a domestic court
will generally have to apply the following rules.

(1) Where the domestic legal system is founded on a dualists view, and the
obligation under international law has not become self-executing under a
standing provision of the domestic law or been expressly re-enacted in that law,
the court must follow the domestic law and ignore the international law. (In U.K.
where the legal system is entirely dualist and there are no provision for
self-execution), U. K. courts are not entitled to take into account provision of
international treaties if the legislature has not expressly enabled them as part of
domestic law though U.K. is bound by treaty provision.

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

(3)If there are no such rules, it will probably be because the domestic legal
system is founded on the monistic view, and so international law will prevail.
Unfortunately, however, existing legal theories concerning such application of
international rights tend to belittle both the judicial agency and the desirability of judicial
participation in implementing even relatively uncontroversial international rights at
domestic levels. The existing pattern of marginalization of domestic enforcement of
International Human Rights Law is deeply rooted in a naive exploration of the theory of
relationship between domestic law and international law. The monist’s theory rightly
contemplates International Law and Domestic Law as just two manifestations of one
singular concept, “Law”. As such the judiciary in a monist country is ideally in a position
to directly apply international human rights norms. By contrast, unincorporated
international human rights treaties are considered as only having ‘persuasive’ and not
‘binding’ authority for judiciaries of dualist tradition, although as regards customary
international law most dualist court follow, if more theoretically than practically, a
notionally monist tradition of recognizing customary international human rights as
directly applicable part of national laws.

The traditional divide between ‘binding’ and ‘persuasive authority’ of international

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

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

While supporting the persuasive stance regarding non-binding international law,

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

Theories as to Application of International Law within Municipal Sphere

For conceptual clarity on relations ship between municipal law and international
law, it is pertinent to discuss the theories as to Application of International Law within the
Municipal sphere.

Specific Adoption, Specific Incorporation or Transformation Theory: The Dualist

considers that the rules of International Law cannot directly be applied within the
municipal sphere by State Courts. In order to be so applied such rules must undergo a
process of specific adoption or specific incorporation into municipal law. According to
Dualist Theory International Law and Municipal Law cannot impinge upon state law
unless Municipal Law allows its constitutional machinery to be used for that purpose as
they are two separate and structurally different systems. Dualists argue that, in the case
of treaty rules, there must be transformation of the treaty into state law. They further
claim that such transformation of treaty into state law should not merely a formal but a
substantive requirement, and that alone validates the extension to individuals of the
rules laid down in treaties.

These theories rest on the supposed consensual character of International Law

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

Delegation Theory: The ‘Delegation Theory’ which is put forward by the critics of
the transformation theory maintain that the Constitution Rules of International Law
delegated to each state Constitution, the right to determine when the provisions of a
treaty or a convention is to come into force and the manner in which they are to be
embodied in State law. Further, the supporters of Delegation theory contend that the
procedure and methods to be adopted for this purpose by the state are a continuation of
the process begun with the conclusion of the treaty or convention. They argue that,
there is no transformation, no fresh creation of rules of municipal law, but merely a
prolongation of one single act of creation and the constitutional requirements
of state law are thus merely part of a unitary mechanism for the creation of law While the
monist/dualist debate continues to shape academic discourse and judicial decisions, it is
unsatisfactory in many respects.

State Practice on the Domestic Application of International Law:

Domestic use of international human rights treaties has been a subject of debate
in almost all countries. This is mainly because of the effect of common law that had
great bearing on the jurisprudence of several countries since they were once colonies of
British Empire and even after liberation, common law still continue to influence the
jurisprudence of these countries. However, in recent years there is a sharp departure
from dualist approach and most national courts are tending towards monist view on the
subject. A brief overview of domestic application of international human rights law in
states other than India will offer comparative analysis of domestic use of international
human rights treaties. Further it will also help understand the prevailing trend and
interpretative techniques that are adopted to incorporate international human rights laws
in to the domestic jurisprudence.

Practice of United States of America

Application of International Treaty Rules in U.S.A:

Unlike India, the treaty making power and the status of international law in U.S. is
clearly provided under the U.S. Constitution. Article II Section 2 of the Constitution of
U.S.A. provides that; “the President shall have power, by and with the advise and
consent of the Senate, to make treaties, provided two-thirds of senators present
concur….” The President initiates and conducts negotiations of the treaties and after
signing them, places them before Senate for its “Advice and Consent”

A distinction is made in the U.S.A. between treaties and agreements. Treaties are
required by the Constitution to be submitted before the Senate for approval/ratification.
Whereas the agreements (known as executive agreements), are entered into and
signed by the President in exercise of his executive power. The types of agreements so
contemplated are those relating to foreign relations and military matters that do not
affect the rights and obligations of the citizens.
However, in the case of trade agreements, such agreements are subject to ratification by
both Houses but only by a simple majority.

England: Practice

The domestic application of international law in England draws a distinction

between i) customary rules of international law; ii) treaty rules.

Customary Rules of International Law: According to the 18th Century

“Blackstonian” Doctrine, generally known as incorporation doctrine, customary
international law was deemed automatically to be part of the common law. Treaty Rules:
The application of treaty rules in England is primarily conditioned by the constitutional
principles governing the relations between the executive (crown) and Parliament. The
negotiation, signature and ratification of treaties are matters belonging to the prerogative
powers of the crown.

Current Practice: The modern practice in England is of submitting treaties to

Parliament for ratification. This is because of a statement made on 1st April 1924 by Mr.
Ponson the Under Secretary of State for Foreign affairs in Parliament of the intention of
the new Government to lay on the table of both House of Parliament every treaty, when
signed, for a period of twenty one days, after which the treaty will be ratified and
published and circulated in the Treaty Series. The object of this practice is to secure
publicity for treaties and to afford opportunity for their discussion in Parliament if desired.
It apparently does not apply to those kinds of treaties, usually of minor or technical
importance, which do not require ratification. It appears that practice only applies to
treaties that are made subject to ratification. Thus, domestic application of international
human rights law in England reflects dualist approach in the sense that international
human rights treaties do not form part of the corpus juris of England unless Parliament
enacts a law incorporating the treaty provisions in to the English law. That means all
Multilateral Treaties including human rights are non-self executing treaties and in that
context English practice of domestic application of international treaties is completely
different from U.S. where treaties are regarded as supreme law of the land. However
customary international law is regarded as part and parcel of the law of land in both
England and U.S.
Subjects of International Law

Introduction

Some questions that are relevant to the study of international law include who can
create international law? Who has rights, duties, and powers under international law?
(or international legal personality); and who is regulated (governed), directly or indirectly,
by international law?

Dixon – “A subject of international law is a body or entity recognized or accepted

as being capable, or as in fact being capable, of possessing and exercising
international law rights and duties”

The terms “subjects of international law” refers to entities endowed with legal
personality, capable of exercising certain rights and duties on their own account under
the international legal system.
According to Starke, the term “Subject of international law” means; an incumbent
of rights and duties under international law; The holder of procedural privileges of
prosecuting a claim before an international tribunal; and The possessor of interests for
which provision is made by international law
Oppenheim says that an international person is one who possesses legal personality in
international law meaning one who is subject of international law so as to enjoy rights,
duties or powers established in international law. It also gives the capacity to act on the
international plane either directly or indirectly through the state.
Theories regarding subjects of International Law
1. Realist Theory (States alone are subjects of International Law)

According to the orthodox positivist doctrine, states are the only subjects of international
law. According to Prof. Oppenheim, “the law of nations is primarily a law of international
conduct of states and not of their citizens”. If individuals have any right then it can be
claimed only through the states. The Jurists of this school believes that the states are
the subjects of international law, while individuals are the objects of international law.
Criticism of Realist Theory

It is silent on the rights of the individuals and the international offences for which
individuals may be punished. In Reparation for injuries suffered in the services of the UN
case, the ICJ held “that the UN has the capacity to bring an international claim against
the State for obtaining reparation when an agent of UN suffers injury.”

2. Fictional Theory (Individuals alone are subjects of International Law) In this

theory, Jurists believe that Individuals are the only subjects of international law as states
do not have soul or capacity to form an autonomous will. Prof. Kelson opined that the
laws ultimately apply to the individuals and are for the individuals alone. As per this
theory, the welfare of an individual is the ultimate goal of international law.

Criticism of Fictional Theory

The primary concern of International law is the rights and duties of the states.
Individuals possess many rights under international law but their capacity to enforce
these rights is limited. In most of the cases, a state files the claims for the rights of the
citizens. In Mavrommatis Palestine Concession case (1934), the PCIJ observed that “It
is an elementary principle of international law that a state is entitled to protect its
subjects”.

3. Functional Theory (States, Individuals and some non-state entities are subjects of
International law)

The jurists with a moderate view criticize both of the above theories. These Jurists
believe that States, Individuals and certain non-state entities are subjects of international
law. Now, Individuals got right even against the states. An example of this is the
European Convention on Human Rights in 1950. Under International Covenants on
Human rights 1966, it is held that individuals can claim rights directly under international
law. In some cases, Non-state actors like Colonies and Protectorate states are treated
as subjects of international law.
International Organizations as subjects of International Law

The advent of international organizations in the 20th Century is having immense

significance. There are different types of International organizations, some are Global
like the United Nations and others are regional like the African Union

Individuals as subjects of International Law

Modern states practices have accepted in a limited way that Individuals have
international legal personality. This position of the individual is not equivalent to the
states; still, individuals have got legal personality due to many reasons. Individuals have
got various rights at International law, which gives them the confidence to be a part of it.
The Universal Declaration of Human rights, 1948, gives various rights to individuals at
an international forum.

Conclusion

Today in modern times, states are not the only subjects on international law. They are
still the main subjects but in changing character of international law, international
organizations, individuals and certain non-state entities got the status of subjects in
International Law. Now Individuals can enforce their rights in certain capacity against the
states. Though, there is a wide gap which exists between the rights of the states and
individuals at the other end.

State and Elements of State

A State stands identified with its four essential elements:

1. Population:

State is a community of persons. It is a human political institution. Without a

population there can be no State. Population can be more or less, but it has to be there.
There are States with very small populations like Switzerland, Canada, and there are
States like China, India and others, with very large populations.
The people living in the State are the citizens of the State. They enjoy rights and
freedom as citizens as well as perform several duties towards the State. When citizens
of another State are living in the territory of the State, they are called aliens. All the
persons, citizens as well as aliens, who are living in the territory of the State are duty
bound to obey the state laws and policies. The State exercises supreme authority over
them through its government.
There is no definite limit for the size of population essential for a State. However,
it is recognized that the population should be neither too large nor very small. It has to
be within a reasonable limit. It should be determined on the basis of the size of the
territory of the State, the available resources, the standard of living expected and needs
of defense, production of goods and supplies. India has a very large and fast growing
population and there is every need to check population growth. It is essential for
enhancing the ability of India to register a high level of sustainable development.
2. Territory:
Territory is the second essential element of the State. State is a territorial unit.
Definite territory is its essential component. A State cannot exist in the air or at sea. It is
essentially a territorial State. The size of the territory of a State can be big or small;
nevertheless it has to be a definite, well-marked portion of territory.
States like Russia, Canada, U.S.A., India, China, Brazil and some others are
large sized states whereas Nepal, Bhutan, Sri Lanka, Maldives, Switzerland, Togo,
Brandi and many others are States with small territories. The whole territory of the state
is under the sovereignty or
supreme power of the State. All persons, organizations, associations, institutions and
places located within its territory are under the sovereign jurisdiction of the State.

Further, it must be noted that the territory of the state includes not only the land
but also, rivers, lakes, canals inland seas if any, a portion of coastal sea—territorial
waters or maritime belt, continental shelf, mountains, hills and all other land features
along with the air space above the territory.

The territory of the state can also include some islands located in the sea. For
example Andaman & Nicobar and Daman and Diu are parts of India. State exercises
sovereignty over all parts of its territory. Ships of the State are its floating parts and
Aero-planes are its flying parts. Even a States can lease out its territory to another State
e.g. India has given on lease the Teen Bigha corridor to Bangladesh.

3. Government (Politically organized)

Government is the organization or machinery or agency or magistracy of the
State which makes, implements, enforces and adjudicates the laws of the state.
Government is the third essential element of the State. The state exercises its sovereign
power through its government. This sometimes creates the impression that there is no
difference between the State and Government. However it must be clearly noted that
government is just one element of the State. It is the agent or the working agency of the
State. Sovereignty belongs to the State; the government only uses it on behalf of the
State.
Organs of political organization:
(1) Legislature—which formulates the will of State i.e. performs law-making functions;
(2) Executive— enforces and implements the laws i.e. performs the law-application
functions; and
(3) Judiciary—which applies the laws to specific cases and settles the disputes i.e.
performs adjudication functions.
Government as a whole is the instrument through which the sovereign power of the
State gets used.
In ancient times, the King used to perform all functions of the government and all powers
of governance stood centralized in his hands. Gradually, however, the powers of King
got
decentralized and these came to be exercised by these three organs of the government:
Legislature, Executive and Judiciary.

Each of these three organs of the government carries out its assigned functions.
Independence of Judiciary is also a settled rule. The relationship between the
Legislature and Executive is defined by law and it corresponds to the adopted form of
government. In a Parliamentary form of government, like the one which is working in
India and Britain, the legislature and executive are closely related and the latter is
collectively responsible before the former.

In the Presidential form, as is in operation in the U.S.A., the legislature and

executive are two independent and separate organs with stable and fixed tenures, and
the executive is not responsible to legislature. It is directly responsible to the people.

Government is an essential element of State. However it keeps on changing after

regular intervals. Further, Government can be of any form—Monarchy or Aristocracy or
Dictatorship or Democracy. It can be either Parliamentary or Presidential or both. It can
be Unitary or Federal or of mixture of these two in its organisation and working. In
contemporary times every civilized State has a democratic representative, responsible
transparent and accountable government.

4. Sovereignty:

Sovereignty is the most exclusive element of State. State alone posses

sovereignty. Without sovereignty no state can exit. Some institutions can have the first
three elements (Population Territory and Government) but not sovereignty.

State has the exclusive title and prerogative to exercise supreme power over all
its people and territory. In fact, Sovereignty is the basis on which the State regulates all
aspects of the life of the people living in its territory.

Sovereignty has two dimensions:

Internal Sovereignty and External Sovereignty.

(i) Internal Sovereignty:

It means the power of the State to order and regulate the activities of all the people,
groups and institutions which are at work within its territory. All these institutions always
act in accordance with the laws of the State. The State can punish them for every
violation of any of its laws.

(ii) External Sovereignty:

It means complete independence of the State from external control. It also means
the full freedom of the State to participate in the activities of the community of nations.
Each state has the sovereign power to formulate and act on the basis of its independent
foreign policy.

We can define external sovereignty of the State as its sovereign equality with
every other state. State voluntarily accepts rules of international law. These cannot be
forced upon the State. India is free to sign or not to sign any treaty with any other state.
No state can force it to do so.

No State can really become a State without sovereignty. India became a State in
1947 when it got independence and sovereignty. After her independence, India got the
power to exercise both internal and external Sovereignty. Sovereignty permanently,
exclusively and absolutely belongs to the State. End of sovereignty means end of the
State. That is why sovereignty is accepted as the exclusive property and hallmark of the
State.

These are the four essential elements of a State. A State comes to be a state only
when it has all these elements. Out of these four elements, Sovereignty stands
accepted as the most important and exclusive element of the State.
 No other organization or institution can claim sovereignty. An institution can have
population, territory and government but not sovereignty. Andhra Pradesh, Tamil Nadu,
Orissa, Punjab, Sikkim, in fact all states of the Indian Union have their populations,
territories and governments.

These are also loosely called states. Yet these are not really states. These are
integral parts of the Indian State. Sovereignty belongs to India. Sikkim was a state
before it joined India in 1975. Now it is one of the 28 states of India. UNO is not a state
and so is the case of the Commonwealth of Nations, because these do not possess
sovereignty. SAARC is not a state. It is only a regional association of sovereign states of
South Asia.
India, China, U.S.A., U.K., France, Germany, Japan, Australia, Egypt, South Africa,
Brazil, Argentina and others such countries are States because each of these
possesses all the four essential elements of state. The presence of all these four
elements alone vests a State with real statehood.

No other organization or institution can claim sovereignty. An institution can have

population, territory and government but not sovereignty. Andhra Pradesh, Tamil Nadu,
Orissa, Punjab, Sikkim, in fact all states of the Indian Union have their populations,
territories and governments.

These are also loosely called states. Yet these are not really states. These are
integral parts of the Indian State. Sovereignty belongs to India. Sikkim was a state
before it joined India in 1975. Now it is one of the 28 states of India. UNO is not a state
and so is the case of the Commonwealth of Nations, because these do not possess
sovereignty. SAARC is not a state. It is only a regional association of sovereign states of
South Asia.

Kinds of State

Federal states and confederations

Protected and vassal states and protectorates
Condominium
Trust territories
Neutralised states

Federal states and confederations

 Mainly characterized by a constitutional division of sovereign competences
between the federal or central authority on the one hand and the authorities of the
federated entities on the other hand.
Confederations

Confederations are voluntary associations of independent states. Reasons for

voluntary association may be to secure some common purpose and agree to certain
limitations on their freedom of action and establish some joint machinery of consultation
or deliberation. It lacks effective executive authority and also lacks viable central
governments. Member states typically retain their separate military establishments and
separate diplomatic representation members are generally accorded equal status right
of secession from the confederation. It is first step toward the establishment of a
national state, usually as a federal union.

Illustration: Federal union of modern Switzerland - From confederation of the

Swiss canton and the federal constitution of the United States – From The
government of the Articles of Confederation. Confederations have also replaced more
centralized arrangements. Illustrations: The British Commonwealth

Protectorate sates

It is a relation between two States. It happens that a weak State surrenders itself
by treaty into the protection of a strong and mighty State Surrendering state transfers
the management of all its more important international affairs to the protecting State.
Through such treaty an international union is called into existence between the two
States this relation between the protected and protecting states is called protectorate.
The protecting State is internationally the superior of the protected State; The protected
state loses its full sovereignty and is henceforth
only a half-Sovereign State. Generally speaking, protectorate may called a kind of
international guardianship.

Neutralised state

A neutralized State is a State whose independence and integrity are for all the future
guaranteed by an international convention of the Powers. Such State binds itself never
to take up arms against any other State except for defense against attack. They never
to enter into such international obligations as could indirectly drag them into war.

Condominium state
In terms of international law, condominium refers to territory that is governed by
multiple sovereign powers who have formally agreed to share duties without necessarily
dividing the area into national zones.

Regarding international law, "condominium" refers to territory that is governed by

multiple sovereign powers who have formally agreed to share duties without necessarily
dividing the area into national zones. Despite the recognition of a condominium as a
theoretical possibility, the idea has been rare in practice. Complications often arise in
regards to maintaining mutual collaboration between countries. If the mutual
understanding fails, the situation then most likely becomes untenable. The recording for
the term condominium in English dates back to 1714.

Examples of Current Condominia

Throughout history, many condominia have been established in different places

throughout the world. Germany, Austria, and Switzerland consider themselves as holders
of a triple condominium over Lake Constance's main part. However, there exists no
international treaty that establishes where the three countries have their borders around
Lake Constance. Germany and Luxembourg hold a condominium over the Moselle
River together with its tributaries and the Our and Sauer. The condominium also
includes the tip of an island that is located near Schengen, 15 river islands of different
sizes and bridges. The condominium between the two countries was established
through a treaty in 1816. The Brock District which is located in Bosnia and Herzegovina
holds a condominium between Republika Srpska and the Federation of Bosnia and
Herzegovina. Honduras, Nicaragua and El Salvador hold a tridominium over
regions of the Gulf of Fonseca together with the territorial sea beyond its mouth.
Pheasant Island, which is also known as Conference Island, is located in the River
Bidassoa and forms a condominium which was established in 1659, through the Treaty
of the Pyrenees.

Examples of Proposed Condominia

Following years of dispute, the Danish and Canadian governments came close to
declaring Hans Island a condominium. However, another alternative was proposed which
involved dividing the island in half, but negotiations still continued. There has been a
hypothetical condominium proposed between Palestine over Jerusalem. However, the
condominium was to be within the Palestinian independence framework. During a
proposal for the Partition of Belgium, Wallonia and Flanders held a condominium over
Brussels. There are plenty of other proposed condominia that are yet to be confirmed.
In terms of international law, condominium refers to territory that is governed by multiple
sovereign powers who have formally agreed to share duties without necessarily dividing
the area into national zones.

Mode of acquisition and loss of territorial sovereignty

Introduction:
The state has four essentials namely population, territory, government and
sovereignty. Territory is one of the four elements which a state should possess in order
to be an international person. The state must have a fixed territory the territory of the
state includes not only land within its jurisdiction, but also the natural resources. Lakes,
rivers and the marginal sea. The air space above the land is also part of the territory.
The state jurisdiction is exercised by the state over persons and property within a
particular territory.
Definition:
Oppenheim: "State territory is that definite portion of the surface of the globe which is
subjected to the sovereignty of the state."

Modes of acquiring territory:

Following are modes of acquiring territory.
Occupation:
Occupation in international law means an act of appropriation by a state over a territory
which does not belong to any other state
Starke's views:
"In order to ascertain whether a state has occupied a particular territory, regard should
be given to the effectiveness of the control over the territory concerned. Essentials
elements for effective control are that, there is direct evidence of possession and an
exhibition of actual authority. Prescription:
If a state exercises control over a territory continuously for a long time without any
interruption and possess it defacto, the concerned territory becomes part of that state.
This mode is known as prescription international law does not fix any certain time so as
to a title by prescription. However length of time required for prescription is a matter
which should be decided by international court of justice or tribunal where the case is
brought for adjudication. Conditions:
A state may acquire some territory by prescription only when the following
conditions are fulfilled. Occupying state has not accepted the sovereignty of any other
state over the said
territory. Possession should be peaceful. There should be no interruption. Possession
should be for a definite period not less than 20 years.
Accretion:
If a new territory is added, mainly through natural causes to existing territory that is
already under sovereign of acquiring state it is accretion. Form of accretion can be
natural or artificial. Cession:

Cession is the transfer of sovereignty over a definite territory by one state to another
state. Forms of Cession can also be voluntary or under compulsion.

Annexation:
It is the acquisition of the territory of an enemy through the military force in time of war.
U. S Charter on Annexation: This mode has been greatly affected by UN charter by Art.
2(4) under which member state cannot acquire territories by annexation.

Adjudication:
Adjudication is also mode of acquiring territory. it occurs where a conference of the
victorious powers at the end of a war assigns territory to a particular state for the sake of
settlement of peace.

Modes of losing territory:

Cession:
The acquisition of territory by one state is loss to the other. the act of cession may be in
the nature of gift, sale, exchange or lease.
Operation of nature:
A state may lose territory by operation of nature for e. g. by earthquake, a coast of the
sea a Island may altogether disappear.
Subjugation:
As a state may acquire territory through annexation, the other state may lose it through
subjugation.
Revolt: When a new state takes birth in consequences of revolution or revolt it would be
loss of territory by revolt.
Renunciation:
Renunciation is a mode of losing territory by renunciation. it is the very opposite of the
occupation which requires both possession and intention.
Independence to a Colony:
Granting of independence to a colony is also a mode of losing imperialist state grants
independence to the areas under its control.

Recognition of state

Recognition of state under the International Legal System can be defined as “the
formal acknowledgement or acceptance of a new state as an international personality by
the existing States of the International community”. It is the acknowledgement by the
existing state that, a political entity has the characteristics of statehood.
Essentials for recognition as a state:
Under the International Law, Article 1 of the Montevideo Conference, 1933 defines
the state as a person and lays down following essentials that an entity should possess
in order to acquire recognition as a state:
1. It should have a permanent population.
2. A definite territory should be controlled by it.
3. There should be a government of that particular territory.
4. That entity should have the capacity to enter into relations with other
states. Legal Effects of such recognition
When a state acquires recognition, it gains certain rights, obligations and immunities
such as. 1. It acquires the capacity to enter into diplomatic relations with other
states. 2. It acquires the capacity to enter into treaties with other states.
3. The state is able to enjoy the rights and privileges of international
statehood. 4. The state can undergo state succession.
5. With the recognition of state comes the right to sue and to be sued.
6. The state can become a member of the United Nations organisation.
Theories of recognition
The recognition of a new entity as a sovereign state is based on two main
 theories: Constitutive Theory
Declaratory Theory
Constitutive Theory
The main exponents related to this theory are Oppenheim, Hegal and Anziloti.
According to this theory, for a State to be considered as an international person, its
recognition by the existing states as a sovereign required. This theory is of the view that
only after recognition a State gets the status of an International Person and becomes a
subject to
International Law. So, even if an entity possesses all the characteristics of a state, it
does not get the status of an international person unless recognized by the existing
States. This theory does not mean that a State does not exist unless recognized, but
according to this theory, a state only gets the exclusive rights and obligations and
becomes a subject to International Law after its recognition by other existing States.
Criticism of the theory
This theory has been criticized by several jurists. Few of the criticisms of this theory are:
This theory is criticized because unless a state is recognized by other existing
states, rights, duties and obligations of statehood community under International
Law is not applicable to it.
This theory also leads to confusion when a new state is acknowledged and
recognised by some of the existing states and not recognized by other states.
2. Declaratory Theory
The main exponents of the Declaratory Theory of Statehood are Wigner, Hall,
Fisher and Brierly. According to this theory, any new state is independent of the consent
by existing states. This theory has been laid down under Article 3 of the Montevideo
Conference of 1933. This theory states that the existence of a new state does not
depend on being recognised by the existing state. Even before recognition by other
states, the new state has the right to defend its integrity and independence under
International law.
The followers of theory consider the process of recognition as merely a formal
acknowledgement of statehood by other states.
Criticism of the theory
The declaratory theory of statehood has also been criticized. This theory has been
criticized on the ground that this theory alone cannot be applicable for recognition of a
state. When a state having essential characteristics comes into existence as a state, it
can exercise international rights and obligations and here comes the application of
declaratory theory, but when other states acknowledge its existence and the state gets
the legal rights of recognition, the consecutive theory comes into play.
Modes of Recognition
There are two modes of recognition of State:
1. De facto Recognition
2. De Jure Recognition
1. De facto Recognition
De facto recognition is a provisional recognition of statehood. It is a primary step
to de jure recognition. It is a temporary and factual recognition as a state, and it can
either be conditional or without any condition.
This mode recognition is granted when a new state holds a sufficient territory and
control over a particular territory, but the other existing states consider that it does not
have enough stability or any other unsetting issues. So, we can consider it as a test of
control for newly formed states. De facto recognition is a process of acknowledging a
new state by a non-committal act.
The state having de facto recognition is not eligible for being a member of the United
Nations. e.g., Israel, Taiwan, Bangladesh.
2. De jure Recognition
De jure recognition is the recognition of a new state by the existing state when
they consider that the new state fulfils all the essential characteristics of a state. The de
jure recognition can be granted either with or without granting de facto recognition. This
mode of recognition is granted when the newly formed state acquires permanent
stability and statehood The De jure mode of recognition grants the permanent status of
a newborn state as a sovereign state.
In the case of Luther v. Sagar, it was held in this case that for the purpose of
giving effect to the internal acts of the recognized authority there is no distinction
between de facto and de jure
Example of de facto and de jure recognition:
One of the examples of de facto and de jure recognition is the recognition of the
Soviet Union was established in 1917. It was de facto recognised by the
government of UK in 1921 but it was not given de jure recognition until 1924.
Bangladesh was established in March 1971. India and Bhutan recognised it just
after 9 months of establishment but the United States gave it legal recognition
after nearly 1 year in April 1972.

The distinction
between De Facto and
De Jure Recognition

o. De facto Recognition De jure Recognition

1. De facto recognition De jure recognition is

is a provisional and legal recognition.
factual recognition.

2. De facto recognition De jure recognition is

granted
is granted when
when the state fulfils all
there is the fulfilment
the
of the essential
essential condition of
conditions of states
statehood. along with sufficient
control
and permanency.

3. De facto recognition De jure recognition can

is a primary step be granted either with or
towards grant of de without
jure recognition. grant of de facto

recognition.

4. De facto recognition De jure recognition is a

final
can either be
and non-conditional
conditional or
recognition
non-conditional.
 5. De facto recognition De jure
7. recognition
The state
is with de The state with de jure
is revocable in non revocable.
facto cannot undergo recognition can under
state
nature. state succession.
succession.
6. The states The state recognised
8. The state with de The state with de jure
recognised under under this mode have the
facto recognition recognition enjoys full
this mode have only absolute
cannot enjoy
a few rights and right and obligations
obligations against against
other states.
other states.

full diplomatic diplomatic immunities.

immunities.

Forms of Recognition
When a newly formed state is recognized, its declaration can be made in
two forms: 1. Expressed Recognition
2. Implied Recognition
1. Expressed Recognition
When an existing state recognizes a new state expressly through official
declaration or notification, it is considered to be the expressed form of recognition.
Express recognition can be made through any express or formal means such as
sending or publishing declaration or statement to the opposite party. When a state is
recognized by expressed ways, it is a de jure recognition unless provided otherwise by
the recognizing state in the declaration.
2. Implied Recognition
When the existing state recognizes a newly formed state through any implied act,
then it is considered as an implied recognition. Implied recognition can be granted
through any implied means by which a current state treats the newly formed state as an
international person. The implied credit not granted through any official notification or
declaration. The recognition through implied means varies from case to case.
Conditional recognition
The recognition of state with which certain conditions are attached in order to
obtain its status as a sovereign state is conditional recognition. The conditions attached
vary from state to state such as religious freedom, the rule of law, democracy, human
rights etc. The recognition of any state is already associated with the essential
conditions to be fulfilled for the status of a sovereign state but when addition condition is
attached it is conditional recognition.
Criticism
Many jurists criticize conditional recognition. The conditional recognition is
criticized on the ground that recognition is a legal procedure, and no additional
conditions should be attached with it other than the conditions recognized by law.
Another reason for criticism is that the recognized state if it does not fulfill the condition
attached for its recognition, recognition is not extinguished and it should still be valid.
Withdrawal of Recognition
Withdrawal of De facto recognition
Under international law when a state having de facto recognition fails to fulfill the
essential conditions of statehood, its recognition can be withdrawn. The recognition can
be withdrawn by the recognizing state through declaration or through communicating
with the authorities of the recognized states. The withdrawal can also be done by issuing
a public statement.
2. Withdrawal of De Jure recognition
Withdrawal of de jure recognition is a very debatable issue under the International
Law. Withdrawal of de jure recognition is a very exceptional event. If strictly interpreted,
the de jure recognition can be withdrawn.
Even though the process of recognition is a political act, de jure recognition is of
legal nature. Jurists who consider de jure recognition as a political act considers it
revocable. Such revocation of de jure recognized states can be withdrawn only when a
state loses the essential characteristics of statehood or any other exceptional
circumstances. This type of revocation can be done expressly by the recognizing state
by issuing a public statement.
Recognition of government
For any statehood, the government is an important element. When a state is
formed, its government changes from time to time. When the government changes as
an ordinary course of political action, the recognition of government by the existing state
is not required but when the government changes due to any revolution, then its
recognition by the existing state is required.
For recognizing the new government established out of revolution, the existing states
need to consider that:
1. The new government has sufficient control over the territory and its people or not.
2. The new government is willing to fulfill the international duties and obligations or not.
When the existing states are satisfied that the new government resulting out of the
revolution is capable of fulfilling the conditions as mentioned above, then the new
government can be recognized by the existing states.
State Jurisdiction

Definition

State jurisdiction is the capacity of a State under International Law to prescribe

the rules of law, enforce the prescribed rules of law and to adjudicate. State Jurisdiction,
also means that a state court has the right to make a legally binding decision that affects
the parties involved in the case. It is derived from State sovereignty and constitutes its
vital and central feature. It is the authority of a State over persons, property and events
which are primarily within its territories.

Scope and Extent of State Jurisdiction

State jurisdiction may extend beyond its territory over persons and things which
have a national link. There are grounds or principles upon which the State can assert its
jurisdiction within and beyond its boundaries. Nevertheless, there are certain persons,
property and events within a State territory which are immune from its jurisdiction.

Types of State Jurisdiction It is of three types: legislative jurisdiction, executive

jurisdiction and judicial jurisdiction.

Legislative jurisdiction

Legislative jurisdiction is the capacity of a State to prescribe rules of law. A State

has the supremacy to make binding laws within its territory. It has legislative exclusivity
in many areas. This supremacy is entrusted to constitutionally recognized organs.

Although legislation is primarily enforceable within a state territory, it may extend

beyond its territory in certain circumstances. International Law, for example, accepts that
a State may levy taxes against persons not within its territory as long as there is a real
link between the State and the proposed taxpayer, whether it is nationality or
domicile.The legislative supremacy of a State within its territory is well established in
International Law. However, this supremacy may be challenged in cases where a State
adopts laws that are contrary to the rules of International Law. In such cases, a State will
be liable for breach of International Law. A State may also be liable for breach of
International Law if it abuses its rights to legislate for its nationals abroad.
Executive Jurisdiction

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

Judicial Jurisdiction

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

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

Principles of Jurisdiction

Generally, the exercise of civil jurisdiction by courts of a State has been claimed
upon far wider grounds than has been the case in criminal matters. As far as criminal
jurisdiction is concerned, the grounds or principles of jurisdiction mostly invoked by
States are as follows.

The Territorial Principle

This principle is derived from the concept of State sovereignty. It means that a
State has the primary jurisdiction over all events taking place in its territory regardless of
the nationality of the person responsible. It is the dominant ground of jurisdiction in
International Law. All other State must respect the supremacy of the State over its
territory, and consequently must not interfere in its internal affairs or in its territorial
jurisdiction.The territorial jurisdiction of State
extends over its land, its national airspace, its internal water, its territorial sea, its
national aircrafts, and its national vessels. It encompasses not only crimes committed on
its territory but also crimes that have effects within its territory. In such a case a
concurrent jurisdiction occurs, a subjective territorial jurisdiction may be exercised by the
State in whose territory the crime was committed, and an objective territorial jurisdiction
may be exercised by the State in whose territory the crime had its effect.
Although jurisdiction is primarily and predominantly territorial, it is not exclusive. A
State is free to confer upon other States the right to exercise certain jurisdiction within its
national territory. States are free to arrange the right of each one to exercise certain
jurisdiction within each national territory. The most significant recent examples of such
arrangements are:

The 1991 France-United Kingdom Protocol Concerning Frontier Control and

Policing, under which the frontier control laws and regulations of each State are
applicable and may be enforced by its officers in the control zones of the other;

The 1994 Israel-Jordan Peace Treaty, under which the Israeli criminal laws are
applicable to Israeli nationals and the activities involving only them in the specified
areas under Jordan’s sovereignty, and measures can be taken in the areas by Israel to
enforce such laws.

The Nationality Principle

The nationality principle implies that a State jurisdiction extends to its nationals
and actions they take beyond its territory. It is based upon the notion that the link
between the State and its nationals is a personal one independent of location.Criminal
jurisdiction based on the nationality principle is universally accepted. While civil law
countries make extensive use of it, the Common Law countries use it with respect to
major crimes such as murder and treason.The Common Law countries, however, do not
challenge the extensive use of this principle by other countries.
A State may prosecute its nationals for crimes committed anywhere in the world; the
ground of this jurisdiction is known as active nationality principle. Also, it may claim
jurisdiction for crimes committed by aliens against their nationals abroad; the ground of
this jurisdiction is known as passive national principle.
This last principle has been viewed as much weaker than the territorial or active
nationality principle as a basis for jurisdiction. It has been considered as a secondary
basis for jurisdiction, and a matter of considerable controversy among States. However,
in recent years this principle has come to be much acceptable by the international
community in the sphere of terrorist and other internationally condemned crimes.

The Protective Principle

The protective principle implies that a State may exercise jurisdiction over an alien
who commits an act outside its territory, which is deemed prejudicial to its security and
interests. It is universally accepted, although there are uncertainties as to its practical
extent, particularly as regard to the acts which may come within its domain. It is justified
on the basis of protection of State’s vital interests, particularly when the alien commits
an offence prejudicial to the State, which is not punishable under the law of the country
where he resides and extradition is refused.
Although the protective principle is used as a secondary basis for jurisdiction and in a
narrower sense than the territorial or the nationality principle, it can easily be abused,
particularly in order to undermine the jurisdiction of other States.

In practice however, this principle is applied in those cases where the acts of the
person which take place abroad constitute crimes against the sovereignty of the State,
such as plots to overthrow a government, treason, espionage, forging a currency,
economic crimes and breaking immigration laws and regulations.

This principle is often used in treaties providing for multiple jurisdictional grounds
with regard to specific crimes, such as the 1979 Hostage Convention and the 1970
Hague Aircraft Hijacking Convention.

Passive personality principle

This is a situation where the accused will be prosecuted in the country of the
nationality of the victim.
The Universality Principle
The universality principle, in its broad sense, implies that a State can claim
jurisdiction over certain crimes committed by any person anywhere in the world, without
any required connection to territory, nationality or special State interest.
Before the Second World War, such universal jurisdiction has been considered as
contrary to International Law by the Common Law countries, except for acts regarded as
crimes in all countries, and crimes against international community as a whole such as
piracy and slave trade.

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

United States of America v Noriega

General Manuel Noriega on February 14th 1988 was indicted on twelve counts of
engaging in a criminal enterprise in violation of U.S racketeering and drug laws. The
indictment alleged that Noriega participated in an international conspiracy to import
cocaine and materials used in producing cocaine in and out of the United States. He
was also alleged to have protected shipments of cocaine from Columbia through
Panama to the U.S. All these activities were allegedly taken for Noriega’s own profit.
Noriega asserted that the case against him should be dismissed because:
a) The District court of Florida lacked jurisdiction
b) Sovereign immunity precluded the exercise of jurisdiction
c) He was captured and brought before the court as a result of an illegal military
invasion d) A violation of international treaties had occurred.
The court found that it had extra-territorial jurisdiction as such jurisdiction was
upheld in the past over foreigners who conspired or intended to import narcotics into the
United States. The crimes that Noriega was charged with were intended to have
extra-territorial effects as such the court’s Jurisdiction was Reasonable.
Jurisdiction was also justified under the protective principle which permits the
exercise of jurisdiction over acts that threaten the existence of a state and have
potentially deleterious effects in the state. The alleged importation certain pounds of
cocaine would have harmful effects.
 As for the question of immunity, recent international practices have drawn a
distinction between private and public acts entitled to immunity. As with states, immunity
is extended to public officials for acts executed in their official capacity. Since the acts
carried out by Noriega were for his personal gain, he was not entitled to immunity. The
head of state immunity applies where one is recognized as the head of state by the
immunizing state. In Noriega’s case it was evident that he was not recognized as the
head of state by the Panamian constitution or by the United States.

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

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

Immunity of the Sovereign

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

This immunity can operate in two ways:

i. As a bar to jurisdiction.
The jurisdiction of the forum is barred; the state of the forum would exercise jurisdiction
but for the immunity.
ii. By making the subject matter non-justifiable or inadmissible.
The state of the forum has no jurisdiction; the jurisdiction never existed. In Buck V. A.-G
the Court of Appeal refused to declare whether or not the Constitution of Sierra Leone
as created by Order in Council of independence was valid. The reason given was the
non-existent of jurisdiction, a corollary of sovereign immunity.
Immunity is based on two principles:

a. Par in parem non habet jurisdictionem: legal persons of equal standing cannot
have disputes settled in the courts of one of them. This principle brings out the element
of pleading immunity by reason of the status of the defendant, that is, immunity atione
personae
b. Non-intervention in the internal affairs of other states. The nature of the subject
matter will lead a municipal court to hold that it has no jurisdiction. This immunity affects
essential competence of the local courts in relation to the subject matter, that is,
immunity ratione
materiae.
The Extent of Sovereign Immunity
State activity in the commercial sector has led courts such as those in Belgium
and Italy to differentiate between acts of government (jure imperii) and acts of a
commercial nature (jure gestionis). Immunity is availed with respect to the former but not
the latter. This is the doctrine of restrictive immunity.
There are several ways in which this doctrine finds application. These are: i. As
has been stated by differentiating between jure imperii and jure gestionis. The municipal
court will make the distinction based on whether there is a key transaction which has
been accomplished by way of a private law relationship for example a contract. This
criterion without further input is unsatisfactory when applied to a contract of employment
where the employee has been recruited to perform particular functions in the exercise of
governmental authority. Applying this criterion it would mean that this contract of
employment is jure gestionis.
ii. By municipal legislation
Under this method, immunity is provided as a general rule and further provision is
made for exceptions. This method has been adopted by United Kingdom. iii. By treaty
This has been done through the United Nations Convention on Jurisdictional
Immunities of States and their Property, 2004. This treaty has been ratified by 32 states
as at 28/10/2013. Kenya is not a signatory to this treaty. This convention generally
denies a foreign state the right to invoke immunity with respect to commercial
transactions, contracts of employment, pecuniary compensation for personal injuries
and damage to property. It however provides for exceptions, one of them being by
agreement. Article 11 (1) provides that unless otherwise agreed between the states
concerned, a state cannot invoke immunity from the jurisdiction before a court of
another state which is otherwise competent in a proceeding which relates to a contract of
employment between the state and an individual for work performed or to be performed,
in whole or in part, in the territory of that other State. Paragraph 2 of this Article details
the exceptions to paragraph 1. For instance, Paragraph 1 does not apply where the
employee has been recruited to perform particular functions in the exercise of
governmental authority. iv. By waiver.
Immunity can be waived expressly or by conduct. Examples of waivers include prior
contract, through a treaty, diplomatic communication, and actual submission to the
proceedings of the local court.

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

Diplomacy comprises of any means by which states establish or maintain mutual

relations, communicate with each other or carry out political or legal transactions. It
involves the exchange of permanent diplomatic missions between sates such that both
the receiving and the sending state have representatives.

Rationale of privileges and immunities

The essence of diplomatic relations is to allow the exercise by the sending

government, of state functions, on the territory of receiving state by license of the latter.
The explanation for this, though not supported by the legal position, was that the
diplomatic premises were “exterritorial”, that is, they acquired the territorial jurisdiction of
the sending state. However the legal position is that the diplomat acts as an agent of a
sovereign state which in this case is the sending state.

Inviolability of Missions

a. Premises

The mission premises including the surrounding land benefit from the immunity of
the sending state and hence are protected from any external interference. Article 22 of
the Vienna convention states that: the premises of the mission shall be inviolable. The
agents of the receiving state may not enter them, except with the consent of the head of
mission. The receiving state is under a special duty to protect the premises. The
premises, furnishings and other property are immune from search, requisition,
attachment or execution.

b. Archives, documents and official correspondence

The archives and documents of the mission, at any time and wherever they may
be, are inviolable including the official correspondence. The Vienna Convention also
provides that the diplomatic bag shall not be opened or detained at any time. However
the situation is different in the U.K where, due to abuse of the diplomatic bag through
the sale of drugs, scanning of the bags is done on specific occasions when there are
strong grounds of suspicion but ONLY in the presence of a member of the diplomatic
mission.

Inviolability Of Diplomatic Agents

This is provided for in article 29 which states: “The person of a diplomatic agent
shall be inviolable. He shall not be liable to any form of arrest or detention. The
receiving State shall treat him with due respect and shall take all appropriate steps to
prevent any attack on his person, freedom or dignity.”
The same inviolability of the diplomatic agent applies to the private residence of
the agent and all his papers, correspondence and his property. There is however an
exception to the inviolability of the property as provided in article 31(3).In the case
concerning United States diplomatic and consular staff in Tehran the Iran government
was universally condemned when it held members of the United States embassy in
Tehran as hostages from 1979 to 1981, following the admission of the deposed Shah of
Iran into the United States for medical treatment. In finding that the government of Iran
had violated its obligations under international law, in its judgment, the International
Court of Justice stressed on the principles of laws embodied in the Vienna convention
“the obligations of the Iranian government here in question is not merely
contractual…but also obligations under general international law. In that case the
government of Iran was held responsible for failing to prevent or for subsequently
approving, the actions of militants in invading the United States mission in Tehran and
holding the diplomatic and consular personnel as hostages.

Personal Immunities from Local Jurisdiction

Introduction
Diplomatic agents enjoy immunity from the jurisdiction of the local courts and not
an exemption from substantive law. However the immunity can be waived allowing the
application of the local law. The persons enjoying the privileges and immunity are
however under a duty to respect the laws and regulations of the receiving state. In the
application of immunity from local jurisdiction, every state has a standard procedure
which establishes the qualification for immunity to be conclusive prove to the local
courts.

Persons entitled to enjoy diplomatic immunity

a. Members of the family of a diplomatic agent if they are not nationals of the receiving
state. b. Members of the administrative and technical staff of the mission together with
their families if they are not national or permanent residents of the receiving state.
However, the immunity from civil and administrative jurisdiction of the receiving state
shall not extend to acts performed outside the course of their duties. c. Members of the
service staff who are not nationals or permanent residents of the receiving state but only
in respect of the acts performed in the course of their official duties.

d. Private servants of members of the mission who are not nationals of or permanent
residents in the receiving State are exempted from dues and taxes on the emoluments
they receive by reason of their employment. They may enjoy the privileges and
immunities only to the extent admitted by the receiving state.

Immunity from criminal jurisdiction

Article 31(1) provides that a diplomatic agent shall enjoy immunity from the criminal
jurisdiction of the receiving state. Immunity from civil and administrative jurisdiction. A
diplomatic agent is immune from the civil and administrative jurisdiction of the receiving
state except in the case of:

a) 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.
C. Waiver
The sending state may waive the immunity from jurisdiction; however, the waiver must
be express and not implied.
D. Immunity from jurisdiction for official acts
In regard to acts by the diplomatic agent which are in line with his official duties, the
immunity is permanent since it is that of the sending state. However in respect to private
acts immunity ceases when the agent leaves his post.
Other immunities
Exemption from all duties and taxes but with exceptions e.g. indirect taxes incorporated
in the prices of goods and services. Immunities from, custom duties, public service,
military obligations, social security provisions and giving evidence as witnesses.

Duration of Privileges and Immunities

This is covered under section 39 which provides:
Every person entitled to privileges and immunities shall enjoy them from the
moment he enters the territory of the receiving State on proceeding to take up his post
or, if already in its territory, from the moment when his appointment is notified to the
Ministry for Foreign Affairs or such other ministry as may be agreed.
When the functions of a person enjoying privileges and immunities have come to
an end, such privileges and immunities shall normally cease at the moment when he
leaves the country, or on expiry of a reasonable period in which to do so, but shall
subsist until that time, even in case of armed conflict. However, with respect to acts
performed by such a person in the exercise of his functions as a member of the mission,
immunity shall continue to subsist
.
Termination of the mission may occur through the recall of the diplomatic mission,
outbreak of War Between the States concerned, Extinction of one of the states
concerned.
Consular Relations
A consul is defined as an official appointed by a government to reside in a foreign
country herein the host and represent his or her government’s commercial interests and
assist in the welfare of its citizens in that host country. Their functions are varied and
include the protection of the sending states and its nationals, development of economic,
cultural relations, issuing of passports among other functions .The current term consul
began use in the 18th century and is based upon law rather than the general usage.
There is a special treaty known as theVienna Convention on Consular Relations of 1963

A consul must have the authority of sending state and authorization of receiving state
which must give consular officials and premises special protection

Consular Immunity Analysis

Introduction

The premise of consular immunity is enshrined in the Vienna Convention on

Consular Relations of 1963 (VCCR). Consular immunity is a principle in international law
that shields consuls from legal action or prosecution in their host country. Consular
immunity basically offers protections similar to diplomatic immunity, but the herein said
protections are not as extensive, given the functional differences between consuls and
diplomats. Together with the Vienna Convention on Diplomatic Relations (VCDR),
VCCR forms the core of international diplomatic and consular law. The two treaties
codified most modern consular and diplomatic practices including the famous immunity
principle under discussion here. Unlike diplomats there may be many consul offices set
up in one host country. There are two types of consuls: career consuls and honorary
consuls

Consuls: are professional salaried diplomats that are posted by the government of
their native countries in host countries. They further enjoy immunity honorary consuls:
they don’t make a living as diplomats. They usually live and work and pay taxes in the
host country that they operate on a voluntary/not salaried basis until their appointment is
revoked. In some cases they might not be citizens or origin of that country

The Concept of Consular Immunity

The essence of immunity is very important and core to the functions of the
consuls since it provides a workable environment for the consuls without the interruption
by the host states in the discharge of their duties. However host states have the power
to declare a consul or a diplomat persona non grata (‘an unwelcome person’) of which
now the home country has to replace him or her with another consul or diplomat. This is
the most serious form of censure a state can apply to foreign consuls and diplomats
who are otherwise protected by consular and diplomatic immunity from arrest and
normal prosecutions.
The immunity is provided according to the consular officer’s rank in a consular post and
according to the need for immunity in performing their duties. Consular officers are not
however
accorded absolute immunity from a host country’s criminal jurisdiction; they may be tried
for certain local crimes upon action by a local court and are immune from local
jurisdiction only in cases directly relating to consular functions.

Consuls serve in consulates hence have special protections and privileges in the
places they are posted. However, they have a lower level of criminal and civil immunity
than that of diplomatic officers. They are only immune to as far as acts performed as
part of their official duties are concerned. The various such consular immunities given to
the consular officials among the career consuls include, (a) Criminal and civil suit
immunities, (b) Exemption from tax, work permit social security, custom duties and
inspection (c) Immunity from arrests by the law enforcement agencies (d) Exempted
from all public services including military obligations.
Further the premises of consular are not inviolable from entry by agents of the
receiving state in respect to acts performed in the exercise of consular functions.
However the premises are to receive protection and security from the host country.
Princess Zizianoff v Khan & Bigelow

In 1926, a Princess Zizianoff, originally of Russia, sued Consul Bigelow for

defamation of character in a French court. Mr. Bigelow was an American official working
for the American Consulate General in Paris and in charge of passports and visas. After
turning down the Princess for a visa to enter the United States, he shared his rationale
for the visa denial with the press, including the accusation that Princess Zizianoff was an
international spy. Bigelow, along with persons associated with the Paris office of the
Boston Sunday Post, was successfully sued by the Princess in 1927 at the bar of the
Conventional Tribunal of the Seine. On Bigelow’s appeal, the case made its way to the
Court of Appeal of Paris in 1928. The court ruled that the 1853 Consular Convention did
not protect him from what the court called a “private act,” providing negative information
about the Princess to the public via the public press. The question for the court was
whether Bigelow’s action fell outside the purview of his official duties, and it ruled that
his action did so. Undoubtedly, the 1963 Consular Convention would not protect a
consular officer performing an injurious private act.

Situations of Impunity versus Immunity

There have been recent actions by consuls and diplomats that have cast the spotlight
on the meaning and role of ‘immunity’. This has involved consular officers and diplomats
who use immunity as a ‘Get out of jail free’ card after murders, drug trafficking and
sexual crimes. The concept has been dragged through many more mud of evils
including; (a) Drug trafficking

(b) Sexual crimes

(c) Murders

(d) Reckless and dangerous driving

(e) Human slavery

(f) Firearm trafficking

The consuls involved have left trails of unpaid bills and sexual crimes which have
become the most common results of the abuse of the concept of consular impunity. The
increased public cries for more monitoring and usage of the concept to prevent abuse
have led to Mr. Joshua Muravchik, a UN critic of the American Enterprise Institute
comment concerning this increasingly alarming abuse of the concept. Immunity, he
says, ‘Invites abuse. And sure enough, the invitation has been accepted’ In almost
every continent, the countries in one way or the other experienced the mixture of
impunity and immunity. An example in the USA, consular are accused of getting
tax-exempt real estate’s as part of the immunity they get from the host state only for
some unscrupulous consuls to use the property to turn a profit.

Reckless and drunk driving and drug trafficking have been too common of the
diplomats and the consular officers. The culprits always don’t end up facing suits since
they are often let go because of the protection by the consular immunity.

Law of Sea

Introduction
The seas have historically performed two important functions: first, as a medium
of communication, and secondly as a vast reservoir of resources, both living and
non-living. Both of these functions have stimulated the development of legal rules. The
fundamental principle governing the law of the sea is that ‘the land dominates the sea’
so that the land territorial situation constitutes the starting point for the determination of
the maritime rights of a coastal state.
A series of conferences have been held, which led to the four 1958 Conventions
on the Law of the Sea and then to the 1982 Convention on the Law of the Sea.5 The
1958 Convention on the High Seas was stated in its preamble to be ‘generally
declaratory of established principles of international law’, while the other three 1958
instruments can be generally accepted as containing both reiterations of existing rules
and new rules. The pressures leading to the Law of the Sea Conference, which lasted
between 1974 and 1982 and involved a very wide range of states and international
organizations, included a variety of economic, political and strategic factors. Many Third
World states wished to develop the exclusive economic zone idea, by which coastal
states would have extensive rights over a 200-mile zone beyond the territorial sea, and
were keen to establish international control over the deep seabed, so as to prevent the
technologically advanced states from being able to extract minerals from this vital and
vast source freely and without political constraint.
Western states were desirous of protecting their navigation routes by opposing
any weakening of the freedom of passage through international straits particularly, and
wished to protect their economic interests through free exploitation of the resources of
the high seas and the deep seabed. Other states and groups of states sought protection
of their particular interests. Examples here would include the landlocked and
geographically disadvantaged states, archipelagic states and coastal states. The effect
of this kaleidoscopic range of interests was very marked and led to the ‘package deal’
concept of the final draft. According to this approach, for example, the Third World
accepted passage through straits and enhanced continental shelf rights beyond the
200-mile limit from the coasts in return for the internationalization of deep sea mining.
The territorial sea

Internal waters

Internal waters are deemed to be such parts of the seas as are not either the high
seas or relevant zones or the territorial sea, and are accordingly classed as appertaining
to the land territory of the coastal state. Internal waters, whether harbors, lakes or rivers,
are such waters as are to be found on the landward side of the baselines from which the
width of the territorial and other zones is measured,13 and are assimilated with the
territory of the state. They differ from the territorial sea primarily in that there does not
exist any right of innocent passage from which the shipping of other states may benefit.
There is an exception to this rule where the straight baselines enclose as internal waters
what had been territorial waters. In general, a coastal state may exercise its jurisdiction
over foreign ships within its internal waters to enforce its laws, although the judicial
authorities of the flag state (i.e. the state whose flag the particular ship flies) may also
act where crimes have occurred on board ship. This concurrent jurisdiction may be seen
in two cases.
A merchant ship in a foreign port or in foreign internal waters is automatically
subject to the local jurisdiction (unless there is an express agreement to the contrary),
although where purely disciplinarian issues related to the ship’s crew are involved,
which do not concern the maintenance of peace within the territory of the coastal state,
then such matters would by courtesy be left to the authorities of the flag state to
regulate. Although some writers have pointed to theoretical differences between the
common law and French approaches, in practice the same fundamental proposition
applies.
However, a completely different situation operates where the foreign vessel
involved is a warship. In such cases, the authorization of the captain or of the flag state
is necessary before the coastal state may exercise its jurisdiction over the ship and its
crew. This is due to the status of the warship as a direct arm of the sovereign of the flag
state.
Baselines
The width of the territorial sea is defined from the low-water mark around the
coasts of the state. This is the traditional principle under customary international law and
was reiterated in article 3 of the Geneva Convention on the Territorial Sea and the
Contiguous Zone in 1958 and
article 5 of the 1982 Convention, and the low-water line along the coast is defined ‘as
marked on large-scale charts officially recognized by the coastal state’. In the majority of
cases, it will not be very difficult to locate the low water line which is to act as the
baseline for measuring the width of the territorial sea.
By virtue of the 1958 Convention on the Territorial Sea and the 1982 Law of the
Sea Convention, the low-water line of a low-tide elevation may now be used as a
baseline for measuring the breadth of the territorial sea if it is situated wholly or partly
within the the territorial sea measured from the mainland or an island. However, a
low-tide elevation wholly situated beyond the territorial sea will generate no territorial
sea of its own. When a low-tide elevation is situated in the overlapping area of the
territorial sea of two states, both are in principle entitled to use this as part of the
relevant low-water line in measuring their respective territorial sea. However, the
International Court has taken the view that low-tide elevations may not be regarded as
part of the territory of the state concerned and thus cannot be fully assimilated with
islands. A low-tide elevation with a lighthouse or similar installation built upon it may be
used for the purpose of drawing a straight baseline. Sometimes, however, the geography
of the state’s coasts will be such as to cause certain problems: for instance, where the
coastline is deeply indented or there are numerous islands running parallel to the
coasts, or where there exist bays cutting into the coastlines. Special rules have evolved
to deal with this issue, which is of importance to coastal states, particularly where
foreign vessels regularly fish close to the limits of the territorial sea. A more rational
method of drawing baselines might have the effect of enclosing larger areas of the sea
within the state’s internal waters, and thus extend the boundaries of the territorial sea
further than the traditional method might envisage.
The width of the territorial sea
There has historically been considerable disagreement as to how far the territorial
sea may extend from the baselines. Originally, the ‘cannon shot’ rule defined the width
required in terms of the range of shore-based artillery, but at the turn of the nineteenth
century, this was transmuted into the 3-mile rule. This was especially supported by the
United States and the United Kingdom, and any detraction had to be justified by virtue
of historic rights and general acquiescence as, for example, the Scandinavian claim to 4
miles. However, the issue was much confused by the claims of many coastal states to
exercise certain jurisdictional rights for particular purposes: for example, fisheries,
customs and immigration controls. It was not until
after the First World War that a clear distinction was made between claims to enlarge the
width of the territorial sea and claims over particular zones.
The 3-mile rule has been discarded as a rule of general application to be
superseded by contending assertions. The 1958 Geneva Convention on the Territorial
Sea did not include an article on the subject because of disagreements among the
states, while the 1960 Geneva Conference failed to accept a United States–Canadian
proposal for a 6-mile territorial sea coupled with an exclusive fisheries zone for a further
6 miles by only one vote. Article 3 of the 1982 Convention, however, notes that all states
have the right to establish the breadth of the territorial sea up to a limit not exceeding 12
nautical miles from the baselines. This clearly accords with the evolving practice of
states.78 The UK adopted a 12-mile limit in the Territorial Sea Act 1987, for instance, as
did the US by virtue of Proclamation No. 5928 in December 1988. The Juridical Nature of
the Territorial Sea
The territorial sea appertains to the territorial sovereignty of the coastal state and
thus belongs to it automatically. There have been a number of theories as to the precise
legal character of the territorial sea of the coastal state, ranging from treating the
territorial sea as part of the res communis, but subject to certain rights exercisable by
the coastal state, to regarding the territorial sea as part of the coastal state’s territorial
domain subject to a right of innocent passage by foreign vessels.82 Nevertheless, it
cannot be disputed that the coastal state enjoys sovereign rights over its maritime belt
and extensive jurisdictional control, having regard to the relevant rules of international
law. The fundamental restriction upon the sovereignty of the coastal state is the right of
other nations to innocent passage through the territorial sea, and this distinguishes the
territorial sea from the internal waters of the state, which are fully within the unrestricted
jurisdiction of the coastal nation. Articles 1 and 2 of the Convention on the Territorial Sea,
1958 provide that the coastal state’s sovereignty extends over its territorial sea and to
the airspace and seabed and subsoil thereof, subject to the provisions of the Convention
and of international law. The territorial sea forms an undeniable part of the land territory
to which it is bound, so that a cession of land will automatically include any band of
territorial waters. The coastal state may, if it so desires, exclude foreign nationals and
vessels from fishing within its territorial sea and (subject to agreements to the contrary)
from coastal trading (known as sabotage), and reserve these activities for its own
citizens. Similarly the coastal state has extensive powers of control relating to, amongst
others, security and customs matters. It should be noted, however, that how
far a state chooses to exercise the jurisdiction and sovereignty to which it may lay claim
under the principles of international law will depend upon the terms of its own municipal
legislation, and some states will not wish to take advantage of the full extent of the
powers permitted them within the international legal system.
The right of innocent passage
The right of foreign merchant ships (as distinct from warships) to pass unhindered
through the territorial sea of a coast has long been an accepted principle in customary
international law, the sovereignty of the coast state notwithstanding. However, the precise
extent of the doctrine is blurred and open to contrary interpretation, particularly with
respect to the requirement that the passage must be ‘innocent’. Article 17 of the 1982
Convention lays down the following principle: ‘ships of all states, whether coastal or
land-locked, enjoy the right of innocent passage through the territorial sea’. The doctrine
was elaborated in article 14 of the Convention on the Territorial Sea, 1958, which
emphasized that the coastal state must not hamper innocent passage and must
publicise any dangers to navigation in the territorial sea of which it is aware. Passage is
defined as navigation through the territorial sea for the purpose of crossing that sea
without Entering internal waters or of proceeding to or from that sea without entering
internal waters or of proceeding to or from internal waters. It may include temporary
stoppages, but only if they are incidental to ordinary navigation or necessitated by
distress or force majeure.
The coastal state may not impose charges for such passage unless they are in
payment for specific services,88 and ships engaged in passage are required to comply
with the coastal state’s regulations covering, for example, navigation in so far as they
are consistent with international law. Passage ceases to be innocent under article 14(4)
of the 1958 Convention where it is ‘prejudicial to the peace, good order or security of the
coastal state’ and in the case of foreign fishing vessels when they do not observe such
laws and regulations as the coastal state may make and publish to prevent these ships
from fishing in the territorial sea. In addition, submarines must navigate on the surface
and show their flag. Where passage is not innocent, the coastal state may take steps to
prevent it in its territorial sea and, where ships are proceeding to internal waters, it may
act to forestall any breach of the conditions to which admission of such ships to internal
waters is subject.
Coastal states have the power temporarily to suspend innocent passage of
foreign vessels where it is essential for security reasons, provided such suspension has
been published and provided it does not cover international straits. Article 19(2) of the
1982 Convention has developed the notion of innocent passage contained in article
14(4) of the 1958 Convention by the provision of examples of prejudicial passage such
as the threat or use of force; weapons practice; spying; propaganda; breach of customs,
fiscal, immigration or sanitary regulations; willful and serious pollution; fishing;
researcher survey activities and interference with coastal communications or other
facilities.
Article 21(1) of the 1982 Convention, which expressly provided that the coastal
state could adopt laws and regulations concerning innocent passage with regard to:
(a) The safety of navigation and the regulation of maritime traffic;
(b) The protection of navigational aids and facilities and other facilities or
installations; (c) The protection of cables and pipelines;
(d) The conservation of the living resources of the sea;
(e) The prevention of infringement of the fisheries laws and
regulations of the coastal state;
(f) The preservation of the environment of the coastal state and the
prevention, reduction and control of pollution thereof;
(g) Marine scientific research and hydrographic surveys;
(h) The prevention of infringement of the customs, fiscal,
immigration or sanitary laws and regulations of the coastal state.
Jurisdiction over foreign ships
Where foreign ships are in passage through the territorial sea, the coastal
state may only exercise its criminal jurisdiction as regards the arrest of any person or
the investigation of any matter connected with a crime committed on board ship in
defined situations. if the ship is passing through the territorial sea having left the
internal waters of the coastal state, then the coastal state may act in any manner
prescribed by its laws as regards arrest or investigation on board ship and is not
restricted by the terms of article 27(1).
Under article 28 of the 1982 Convention, the coastal state should not stop or divert a
foreign ship passing through its territorial sea for the purpose of exercising civil
jurisdiction in relation to a person on board ship, nor levy execution against or arrest
the ship, unless obligations are involved which were assumed by the ship itself in the
course of, or for the purpose of, its voyage through waters of the coastal state, or
unless the ship is passing through the territorial sea on its way from internal waters.
The above rules do not, however, prejudice the right of a state to levy execution
against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in
the territorial sea or passing through the territorial sea after leaving internal waters.
Warships and other government ships operated for non-commercial purposes
are immune from the jurisdiction of the coastal state, although they may be required
to leave the territorial sea immediately for breach of rules governing passage and the
flag state will bear international responsibility in cases of loss or damage suffered as
a result.
The contiguous zone
Historically some states have claimed to exercise certain rights over particular
zones of the high seas. This has involved some diminution of the principle of the
freedom of the high seas as the jurisdiction of the coastal state has been extended into
areas of the high seas contiguous to the territorial sea, albeit for defined purposes only.
Such restricted jurisdiction zones have been established or asserted for a number of
reasons: for instance, to prevent infringement of customs, immigration or sanitary laws
of the coastal state, or to conserve fishing stocks in a particular area, or to enable the
coastal state to have exclusive or principal rights to the resources of the proclaimed
zone.
In each case they enable the coastal state to protect what it regards as its vital or
important interests without having to extend the boundaries of its territorial sea further
into the high seas. It is thus a compromise between the interests of the coastal state
and the interests of other maritime nations seeking to maintain the status of the high
seas, and it marks a balance of competing claims. The extension of rights beyond the
territorial sea has, however, been seen not only in the context of preventing the
infringement of particular domestic laws, but also increasingly as a method of
maintaining and developing the economic interests of the coastal state regarding
maritime resources.
Contiguous zones were clearly differentiated from claims to full sovereignty as
parts of the territorial sea, by being referred to as part of the high seas over which the
coastal state may exercise particular rights. Unlike the territorial sea, which is
automatically attached to the land territory of the state, contiguous zones have to be
specifically claimed.
While sanitary and immigration laws are relatively recent additions to the rights
enforceable over zones of the high seas and may be regarded as stemming by analogy
from customs regulations, in practice they are really only justifiable since the 1958
Convention. On the other hand, customs zones have a long history and are recognized
in customary international law as well. Many states, including the UK and the USA, have
enacted legislation to enforce customs regulations over many years, outside their
territorial waters and within certain areas, in order to suppress smuggling which
appeared to thrive when faced only with territorial limits of 3 or 4 miles.118 Contiguous
zones, however, were limited to a maximum of 12 miles from the baselines from which
the territorial sea is measured. So if the coastal state already claimed a territorial sea of
12 miles, the question of contiguous zones would not arise

The Exclusive Economic Zone

This zone has developed out of earlier, more tentative claims, particularly relating
to fishing zones, and as a result of developments in the negotiating processes leading to
the 1982 Convention. It marks a compromise between those states seeking a 200-mile
territorial sea and those wishing a more restricted system of coastal state power.
 One of the major reasons for the call for a 200-mile exclusive economic zone has
been the controversy over fishing zones. The 1958 Geneva Convention on the Territorial
Sea did not reach agreement on the creation of fishing zones and article 24 of the
Convention does not give exclusive fishing rights in the contiguous zone. However,
increasing numbers of states have claimed fishing zones of widely varying widths. The
European Fisheries Convention, 1964, which was implemented in the UK by the Fishing
Limits Act 1964, provided that the coastal state has the exclusive right to fish and
exclusive jurisdiction in matters of fisheries in a 6-mile belt from the baseline of the
territorial sea; while within the belt between 6 and 12 miles from the baseline, other
parties to the Convention have the right to fish, provided they had habitually fished in
that belt between January 1953 and December 1962. This was an attempt to reconcile
the interests of the coastal state with those of other states who could prove customary
fishing operations in the relevant area. In view of the practice of many states in
accepting at one time or another a 12-mile exclusive fishing zone, either for themselves
or for some other states, it seems clear that there has already emerged an international
rule to that effect. Indeed, the International Court in the Fisheries Jurisdiction cases
stated that the concept of the fishing zone, the area in which a state may claim exclusive
jurisdiction independently of its territorial sea for this purpose had crystallized as
customary law in recent years and especially since the 1960 Geneva Conference, and
that ‘the extension of that fishing zone up to a twelve mile limit from the baselines
appears now to be generally accepted’. That much is clear, but the question was
whether international law recognized such a zone in excess of 12 miles.

UN Conference and the 1982 Convention. Article 55 of the 1982 Convention

provides that the exclusive economic zone is an area beyond and adjacent to the
territorial sea, subject to the specific legal regime established under the Convention. in
the exclusive economic zone, the coastal state has jurisdiction to apply customs laws
and regulations in respect of artificial islands, installations and structures.
Continental Shelf
The continental shelf is a geological expression referring to the ledges that
project fromthe continental landmass into the seas and which are covered with
only a relatively shallow layer of water (some 150–200 metres) and which
eventually fall away into the ocean depths. The vital fact about the continental
shelves is that they are rich in oil and gas resources and quite often are host to
extensive fishing grounds.
Definition
Article 76(1) of the 1982 Convention provides as to the outer limit of the
continental shelf that: The continental shelf of a coastal state comprises the
seabed and subsoil of the submarine areas that extend beyond its territorial sea
throughout the natural prolongation of its land territory to the outer edge of the
continental margin, or to a distance of 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured where the outer edge of
continental margin does not extend up to that distance.
The rights and duties of the coastal state
The coastal state may exercise ‘sovereign rights’ over the continental shelf
for the purposes of exploring it and exploiting its natural resources under article
77 of the 1982 Convention. Such rights are exclusive in that no other state may
undertake such activities without the express consent of the coastal state. These
sovereign rights (and thus not territorial title as such since the Convention does
not talk in terms of ‘sovereignty’) do not depend upon occupation or express
proclamation.161 The Truman concept of resources, which referred only to
mineral resources, has been extended to include organisms belonging to the
sedentary species
The High seas
The notion of the open seas and the concomitant freedom of the high seas
became popular during the eighteenth century. The essence of the freedom of the high
seas is that no state may acquire sovereignty over parts of them. This is the general
rule, but it is subject to the operation of the doctrines of recognition, acquiescence and
prescription, where, by long usage
accepted by other nations, certain areas of the high seas bounding on the territorial
waters of coastal states may be rendered subject to that state’s sovereignty.
The high seas were defined in Article 1 of the Geneva Convention on the High
Seas, 1958 as all parts of the sea that were not included in the territorial sea or in the
internal waters of a state and includes all parts of the sea that are not included in the
exclusive economic zone, in the territorial sea or in the internal waters of a state, or in
the archipelagic waters of an archipelagic state.
Article 87 of the 1982 Convention provides that the high seas are open to all
states and that the freedom of the high seas is exercised under the conditions laid down
in the Convention and by other rules of international law. It includes inter alia the
freedoms of navigation, over flight, the laying of submarine cables and pipelines,292 the
construction of artificial islands and other installations permitted under international
law,293 fishing, and the conduct of scientific research.294 Such freedoms are to be
exercised 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 the Convention
regarding activities in the International Seabed Area

State Succession
Introduction
Political entities are not immutable. They are subject to change. New states
appear and old states disappear.1 Federations, mergers, dissolutions and secessions
take place. International law has to incorporate such events into its general framework
with the minimum of disruption and instability. Such changes have come to the fore
since the end of the Second World War and the establishment of over 100 new,
independent countries. Art 2(1) (b) of the Vienna Convention on the succession of
States in respect of treaties in 1978 defines the term State succession as ‘the
replacement of one State by another in the responsibility for the international relations of
territory.

Circumstances of State Succession

State succession can arise in a number of defined circumstances, which mirror the ways
in which political sovereignty may be acquired. They are:
Decolonization of all or part of an existing territorial unit: This refers to situations where
the nation partially or completely overcomes itself from the holding of a superior nation.
The dismemberment of an existing State: This refers to a situation when the territory of
the Predecessor State becomes the territory of two or more new States who take over it.
Secession: This refers to a situation where a part of the State decides to withdraw from
the existing State.
Annexation: This refers to a situation where a State takes possession of
another State. Merger: This refers to the fusion of two or more free States into
a single free State.

Types of State Succession

In each of these cases, a once-recognized entity disappears in whole or in part to be
succeeded by some other authority, thus precipitating problems of transmission of rights
and obligations. There are two types of State succession and they are discussed below:
Universal Succession
This is also referred to as Total Succession. When the entire identity of the parent
State is destroyed and the old territory takes up the identity of the successor State, it is
known as Universal Succession. This can happen in cases of:
Merger
Annexation
Subjugation
In certain cases of universal succession, the old State gets divided into multiple
States. The dissolution of Czechoslovakia is an example of universal succession. The
new States of the Czech Republic and Slovakia are both successor States.
Partial Succession
Partial Succession occurs when a part of the territory of the State gets severed
from the parent State. This severed part now becomes an independent State. This can
occur when there is a civil war or a liberalization war.

Theories of State Succession

Universal Succession Theory

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

1. First that the State and the Sovereign gain all their power from God and a mere
change in Government shouldn’t cause any change in the powers.

2. Second, it is permanent and nothing can cause it to secede.

 The application of this theory can be seen in cases of fusion in the 20th century. The
fusion of Syria and Egypt, Somali Land and Somalia, Tanganyika and Zanzibar are
examples of this. However, this theory failed to get any attention from the majority of
States from the world and has also been criticized by scholars from the world due to its
Roman law analogy, a poor distinction between succession and internal change in
governments, etc.
Popular Continuity Theory
The Popular Continuity Theory can be described as another version of the Universal
Succession theory that was propounded by Fiore and Fradier following the unification of
the German and Italian nationals. According to this theory, the State has a
Political personality: It basically refers to the rights and obligations of the State
towards the government.

Social personality: lt basically refers to the territory and the population of the State.

Hence, upon succession, the political personality gets changed whereas the social
personality remains intact. So, a State succession would not alter the rights and duties
of the populace. However, this theory has not found its application in any country
outside Europe and also has been criticized on the grounds that it functioned according
to the municipal laws i.e, the local laws, which is why it was difficult to understand the
effect of State succession using this theory.

Organic Substitution Theory

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

Self Abnegation Theory

This theory was propounded in 1900 by Jellinek and is another version of the
universal theory of continuity. According to Jellinek, the successor State agrees to
observe the rules of international law and performs the obligations towards other States
created under them.
Although, this theory considers that the performance of the international obligation, is
merely ‘moral duty’ of the successor State, but at the same time it gives the right to the
other States, to insist upon the successor State to perform the existing obligation. If the
successor State refuses to accept, the other States may even withhold its recognition or
make the recognition conditional upon the acceptance of the predecessor’s commitment
towards them.
Clean Slate Theory
This theory was developed during the mid-19th and early 20th centuries. After
World War II, the jurists of the Soviet Nations started emphasizing on the right of
self-determination and on giving complete freedom to the States to maintain their
international relations. According to this theory, the Successor State doesn’t absorb the
personality of the Predecessor State in its political and economic interests. Upon
succession, the new State is completely free of the obligations of the Predecessor State.
The Successor State does not exercise its jurisdiction over the territory by virtue of a
transfer of power from its predecessor but it has acquired the possibility of expanding its
own sovereignty.
Communist Theory
According to the Communist Theory of State Succession, a successor State is
burdened by the economic and political commitments of the predecessor. Thus, this
comes as something completely contrary to the Negative Theory of State Succession
and unlike the Negative Theory, it doesn’t free the successor State from the obligations
of the predecessor State.
The Successor State is bound to adhere to the commitments of the predecessor State.
Political commitments involve peace, war and territorial treaties and agreements while
economic commitments include any amount of money borrowed or lent. All these have
to be fulfilled by the new State.

Rights and Duties arising out of State Succession

 The laws regarding State succession are still in a very nascent stage and keep
evolving with the changing times. As seen above, along with the territorial and power
transfers, there are transfers with regard to duties too. This section gives a brief idea
about the transfer and non transfer of political as well as non-political rights and duties.
Political Rights and Duties
No succession takes place with regard to political rights and duties of the States. The
peace treaties or the treaties of neutrality entered into by the previous State aren’t
binding on the new State. But the only exception here is in case of human rights treaties
since it would be desirable for the new State to adhere to such terms. Other than this,
the new State would have to enter into new political treaties of its own.

Rights of Natives or Local Rights

Unlike the political rights and duties, the local rights of the people do not secede with
the succession of the States. These rights refer to the rights such as property rights,
land rights or rights relating to railways, roads, water etc. In cases like these, the
succeeding States are bound by the duties, obligations and rights of the extinct State.

Fiscal Debts (State or Public Debts)

These refer to the financial obligations or debts of the Predecessor State. The Successor
State is bound to pay back the debts of the Predecessor State. This is because if the
new State is enjoying the benefits of the loans, it becomes a moral obligation as well to
pay back the money. Next, if there is a split in the State then the entire debt amount gets
divided between the predecessor and Successor State in accordance with the territory
and population of each. Effect of State Succession on Treaties The law on State
succession with regard to treaties has for a long time been dominated by two principles
in general: One is the alleged principle of universal succession and the other is the
tabula rasa approach i.e., clean State doctrine not granting State succession to treaties.
While the former principal keeps in mind, the interests of third States regarding upholding
or not upholding treaties, the latter favours a rather strict understanding of sovereignty
i.e., functions only according to the interests of the successor and predecessor State.
Neither of the two principles can, however, offer a practical solution for various
scenarios where State succession takes place. Accordingly, under customary
international law more nuanced solutions have been developed in the past or, at the
least, are in the process of being formed.
The Vienna Convention on State Succession provides that:

In case of the border treaties, no such significant changes would be observed and the
treaties would pass to the successor State. This is done keeping in mind the greater
interests of the
International Community. Similarly, other forms of local treaties related to land, territory,
etc. would also pass on to the Successor State upon succession. Treaties relating to
Human Rights are passed on to the successors with all their rights, duties and
obligations. In the case of treaties relating to peace or neutrality, no succession takes
place.

State Responsibility

Introduction

The law of State responsibility is the chapter of international law that concerns the
breach by a State of one or more of its international obligations. In international law,
responsibility is the corollary of obligation; every breach by a subject of international law
of its international obligations entails its international responsibility. The law of State
responsibility defines when an international obligation is to be held to have been
breached, as well as the consequences of that breach, including which States are
entitled to react, and the permissible means of that reaction.

Unlike national laws, wherein different rules often apply according to the source of
the obligation breached (e.g., contract law, tort law, criminal law), international law does
not concern itself with the source of the obligation that is breached; in principle (and
unless otherwise specifically provided) the same rules apply to the breach of an
obligation whether the source of the obligation is a treaty, customary international law, a
unilateral declaration, or the judgment of an international court.

In August 2001 the International Law Commission completed its Articles on the
Responsibility of States for Internationally Wrongful Acts (ARSIWA), a project on which it
had been working for more than forty years. The aim of the articles is to codify the
generally applicable rules of State responsibility.

It should be noted that the ARSIWA are envisaged as laying down general rules
that apply in default of any more specific rule applicable to the obligation in question. In
some cases, special rules may apply to an obligation (either as a result of the
formulation of the rule itself, or because the obligation in question forms part of a special
regime); for instance, it is possible that a particular obligation may be subject to a
special rule requiring fault or damage before there is held to be a breach, or it may be
that the category of States entitled to react is wider than the default position under the
ARSIWA. This is the principle of lex specialis (to the extent that
special rules are applicable and inconsistent with the rules contained in the ARSIWA, the
special rules will prevail and displace the more general rules).

The Elements of State Responsibility

The starting point of the articles is that “every internationally wrongful act of a
State entails the international responsibility of that State” . The act or omission of a State
will qualify as an “internationally wrongful act” if two conditions are met. First, the act or
omission must constitute a breach of an international obligation, or, as the articles put it,
must be “not in conformity with what is required” by the international obligation. This
implies that the obligation in question must be binding on the State at the time of the
conduct, which is said to constitute a breach. Second, the act or omission must be
“attributable” to the State.

The general rule is that a State is not responsible for the acts of private
individuals. The State is of course an abstract entity, unable to accomplish any physical
act itself. Just as in domestic law corporations act through their officers and agents, so
in international law the State normally acts through its organs and officials.

The first, and clearest, case of attribution is that of the organs of the State (e.g.,
police officers, the army) whose acts are attributable to the State even in instances
where they contravene their instructions, or exceed their authority as a matter of
national law. No distinction is made based on the level of the particular organ in the
organizational hierarchy of the State; State responsibility can arise from the actions of a
local policeman, just as it can from the actions of the highest officials, for instance a
head of state or a foreign minister. Nor is any distinction made upon the basis of the
separation of powers; State responsibility may arise from acts or omissions of the
legislature and the judiciary, although by the nature of things it is more common that an
internationally wrongful act is the consequence of an act or acts of the executive.
 Second, the rules of attribution cover situations in which individuals, not otherwise
State organs, are exercising “elements of governmental authority” at the time that they
act.

Third, acts of private individuals are attributable to the State if those individuals
are acting on the instructions of the State, or under its effective direction or control.
Fourth, in exceptional circumstances in which there is an absence or default of
governmental authority, the acts of private individuals may be attributable to the State if
those individuals, in effect, step into the breach and perform necessary governmental
functions.

With regard to certain obligations, a State may incur responsibility even though
actions have been carried out by private individuals, because the essence of the
obligation was to ensure that a given result occurred. For instance, if a foreign embassy
is overrun by a mob, or harm is done to diplomatic staff by private individuals, as
occurred with the U.S. embassy in Tehran during the Iranian revolution of 1979 to 1980,
a State may incur responsibility, even if those individuals act on their own initiative.
Equally, under Article V of the 1948 Convention on the Prevention and Punishment of
the Crime of Genocide, the obligation of a State to punish those responsible for
genocide earlier on related to genocide may be breached in instances in which a State
fails to punish any person responsible for the genocide, “whether they are
constitutionally responsible rulers, public officials, or private individuals.” There is
probably a similar rule in general international law in relation to crimes against humanity.
In both cases, the basis of responsibility here is not the attribution to the State of the
acts of the individuals; it is the failure by the State as an entity to comply with the
obligations of prevention and prosecution incumbent on it.

A somewhat anomalous instance of attribution is that covered by Article 10. As

was noted above, in the normal course of events, a State is not responsible for the acts
of private individuals; a fortiori, it is not responsible for the acts of insurrectional
movements, because, by definition, an insurrectional group acts in opposition to the
established state structures and its organization is distinct from the government of the
State to which it is opposed. However, Article 10(1) provides that “the conduct of an
insurrectional movement which becomes the new government of a State shall be
considered an act of that State under international law.” Article 10(2) provides for a
similar rule with respect to an insurrectional movement that succeeds in establishing a
new State within the territory of a pre-existing State. The effect of the rule is to attribute
retrospectively the conduct of the movement in question to the State. In the case of a
successful insurrectional movement, the acts of the movement are attributed to the State
as if the movement had been the government at the time of its acts, even though, if the
insurrection had failed, no attribution would be possible. In the case of the establishment
of a new State, the effect
is even more drastic because acts are attributed to the State retrospectively to a time
when it did not yet definitively exist.

Except in this case, there is no established machinery for attributing collective

responsibility (e.g., for war crimes, genocide, or crimes against humanity) to an armed
opposition group. In such circumstances individual responsibility is the only possibility at
the international level of ensuring a degree of responsibility for criminal acts.

Certain circumstances may serve to preclude the wrongfulness of a breach of

international law by a State, in much the same way that defenses and excuses work in
national criminal law. In international law these are termed circumstances precluding
wrongfulness. For instance, the consent of the state to which the obligation was owed
will prevent the breach being wrongful, as will, under certain restrictively defined
conditions, force majeure, distress, and necessity. Finally, a State taking
countermeasures (defined as the nonperformance of an obligation in response to a prior
wrongful act of another State, in order to induce that State to comply with its obligations)
may mean that what would otherwise be a breach of an international obligation is not in
fact wrongful. However, quite apart from the strict procedural conditions with which the
taking of countermeasures is hedged, it should be noted that certain obligations may not
be the object of countermeasures. Among these are the obligation to refrain from the
threat or use of force, obligations for the protection of fundamental human rights,
obligations of a humanitarian character prohibiting reprisals under peremptory norms of
general international law (jus cogens). This last limitation in fact applies generally to
circumstances precluding wrongfulness: it is never possible to plead that a breach of a
peremptory norm was justified.

The Content of International Responsibility

Upon the commission of an internationally wrongful act, new legal obligations

come into existence for the State responsible for that act. First, that State is under an
obligation to make full reparation for the injury caused by the internationally wrongful
act. Reparation may take one of three forms: restitution, compensation, or satisfaction
(or some combination of them). Traditionally, restitution has played the primary role,
although in instances in which restitution is materially impossible, the injured State may
have to content itself with compensation or satisfaction. Second, the responsible State
is under an obligation to conclude the internationally
wrongful act if it is continuing, and in an appropriate case, may be required to make
assurances and guarantees of non-repetition.

The Articles mark a decisive step away from the traditional bilateralism of
international law and toward what has been called “community interest” in the provisions
dealing with the States that are entitled to react to the breach of an internationally
wrongful act. Traditionally, only the State that was directly injured, or in some way
“targeted,” by the breach of an international obligation could demand reparation. In
addition, although any state could take unfriendly measures that did not constitute the
breach of an international obligation owed to the State at which they were directed, the
taking of countermeasures was commonly understood as being limited to these “injured
States.”

The first major move away from the strict bilateralism of international law was the
judgment of the International Court of Justice in the Barcelona Traction, Light and Power
Company Limited (Belgium v. Spain) case. In that case, the court stated:

Essential distinction should be drawn between the obligations of a State towards

the international community as a whole, and those arising vis-à-vis another State in the
field of diplomatic protection. By their very nature the former are the concern of all
States. In view of the importance of the rights involved, all States can be held to have a
legal interest in their protection.