Ahmednagar Jilha Maratha Vidya Prasarak Samaj’s

NEW LAW COLLEGE, AHMEDNAGAR

PUBLIC INTERNATIONAL LAW

(Subject Code-LC 0703)

STUDY MATERIAL

FOR

LL.B.-II (Sem-III) and BA.LL.B-IV (Sem-VII) Pattern 2017

By

Dr. Pandhare Balasaheb Dashrath

LL.M. Ph.D

And

Prof. Priyanka Chandrakant Khule

LL.M. NET

Assistant Professor

New Law College, Ahmednagar

ACADEMIC YEAR

2020-21

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 INDEX

MOULE PARTICULARS PAGE.

NO NO
I Nature and Development of International Law
1. Meaning and Definition of International Law
2. Theoretical Basis of International Law - Natural law Theory-
Positive Law Theory- Grotius Theory- Consent theory
3. Historical perspective of International Law-Codification of
International Law: work of International Law Commission
II Sources of International Law
1. Statute of the International Court of Justice, 1945 (Article 38)
2. International Treaties and Conventions-International Custom-
General Principles of
3. Law Recognized by Civilized Nations-Judicial Decisions of
International and
4. National Courts-Juristic Opinion
5. Other Sources of International Law-Resolutions of General
Assembly- Resolutions of Security Council
III Relationship between International Law and Municipal Law
1. Theories - Monistic Theory; Dualistic Theory; Transformation
theory; Delegation
2. Theory- Specific Adoption theory
3. Practice of States: United Kingdom, United States of America
and India

IV Subjects of International Law

1. Meaning and Definition of State
2. Kinds of Different States in International Law –Sovereign
States-Semi-Sovereign States-Protectorate-Vassal –Trust
Territories; Special type of States—Holy See—Neutralized
States
3. Individuals as subjects and object of International Law

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 4. Role and Status MNC’s

V Recognition of States:
1. Meaning and Significance of Recognition
2. Theories of Recognition - Constitute Theory –Declarative
Theory—-Stimson Doctrine- Estrada Doctrine
3. Types of Recognition-De facto –De jure--Differences between
De facto and De jure Recognition
4. Recognition of Insurgency and Belligerency
VI State Territory and State Succession
1. Meaning and Definition of State Territory
2. Types of Acquiring and Lo State Territory—Occupation-
Prescription—
3. Accretion—Cession—Session-Dismemberment—Retro-
Cession ( The Case of Hong Kong)
4. Meaning and Concept of State Succession-Difference between
State Succession and Succession of Governments
5. States Succession to Treaties – Membership of International
Organizations Recent Developments—State succession to
Public Property-Torts-Debts and Archives
6. Theories of State Succession to Treaties- Theory of Universal
Succession- Theory of Negativism- Contemporary Theories :
Neo-Universalism- Neo-Negativism Theory of Gestation or
Nyerere Doctrine
VII State Jurisdiction
1. Territorial Jurisdiction- Civil and Criminal jurisdiction -
Universal Jurisdiction- Extra territorial Jurisdiction of State
State jurisdiction and State Territory-Land Territory-National
Waters-Territorial sea-Contiguous zone-Exclusive Economic
Zone—Air and Outer Space – obligations of states under outer
space Treaty 1966
2. Jurisdiction based on Nationality- Modes of Acquiring and

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 losing Nationality- Double Nationality-nationality of Married
Women and Indian position
3. Meaning and Significance of Statelessness- Role of UNHCR
4. Meaning and Definition of Extradition- Types of offenders and
Process of Extradition
5. Definition and significance of Asylum—Territorial and Extra-
Territorial Asylum-
VIII State immunities and Privileges
1. State Immunity— Absolute theory and Restrictive Theory of
Immunity –views of the International Law Commission--
Waiver of Immunity
2. Significance and Importance of Diplomatic Agents and
Classification of Diplomatic Agents Functions and objectives
of Diplomatic Agents
3. Immunities and Privileges of Diplomatic Agents-Inviolability
of Diplomatic Agents-Inviolability of Premises—Immunity
from local, Civil, Administrative and Criminal Jurisdiction—
Immunity from Taxes and Custom Duties—Freedom of
Movement, Travel, Communication and worship
IX Law of State Responsibility
1. Nature and Basis of State Responsibility
2. Theories of State Responsibility—Fault or Subjective
Theory—Risk or Objective theory—Eclectic Theories of
Responsibility—Absolute Liability
3. Elements of State Responsibility—Act or Omission of
international and international acts
4. Significance of Doctrine of Culpa
5. Defenses precluding State Responsibility
X Law of Treaties
1. Meaning and Definition of a Treaty-Types of Treaties Parties
to a treaty—Formation of a Treaty- Significance of Pact Sunt

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 Servanda
2. Significance of Jus Cogens
3. Role Rebus Sic Stantitbus (Changed Circumstances) in
Treaties
4. Procedure for Termination of Treaties

XI Settlement of Dispute
1. Legal and Political Dispute
2. Extra Judicial pacific means negotiation good offices
mediation conciliation Inquiry and arbitration
3. Coercive and compulsive measures Retortion Reprisal
Embargo Pacific Blockade Intervention
XII International Institutions
1. Historical Origins of International Institutions
2. League of Nations- An Over View
3. United Nations- Purposes and Principles Structure Powers and
functions of Security Council-General Assembly- the
Economic and Social Council- Trusteeship Council-
Appointment, Powers and Functions of Secretary General
4. International Court of Justice-Historical Evolution-
Composition of the Court Types of Jurisdiction of the Court-
Contentious—Advisory Law Applied by the Court—Binding
Nature of Judgment
5. Legal Status of International Organizations
Bibliography and References

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Module 1:

1. Nature and development of International law

2. Theoretical basis of International Law-Natural Law Theory, Positive Law Theory ,
Grotius Theory-consent theory
3. Historical perspective of International Law- Codification of work of International
Law Commission
4. India’s contribution for the development of International Law- Ancient time to
modern times

1. Nature and development of International Law

The term international law has been defined in a variety of ways by different jurists. Some of the
definitions may be given as under:

In the view of European Scholars, modern International Law is determined by the modern
European system. According to Oppenheim, International Law is "essentially product of
Christian civilization and began gradually to grow from the second half of the Middle Ages."
This view is subject to criticism because there are several such principles and rules of
International Law as existed in their developed form in the ancient period.
Some of them are such as existed in their developed form in ancient India. The view of
Oppenheim and other Western jurists that International Law owes its birth to the modern
European system is not correct. International Law was in a developed state in the Ramayana and
Mahabharat period.
The example of International Law relating to Diplomatic Agents may be cited in this connection.
Thus the birth of International Law can be traced back to ancient times.' However, it cannot be
denied that the words International Law' were used for the first time by eminent British jurist,
Jermy Bentham in1780 .
Since then, these words have been used to denote the body of rules which regulate the relations
among the States. Though International law can be traced to ancient Greece, Rome and India, it
cannot be denied that the public International law which we know today, study and practice has
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come to us through Europe. It is determined by the modern European system. It will, therefore,
be proper to refer it as 'modern international law.'
Definition
1. ILL. Oppenhelm.— ProfeSsor Oppenheim has defined International Law in the
following words Law of Nations or International Law is the name for the body of customary a
conventional rules which are considered legally binding by civilized States in their
intercourse with each other.
Criticism.—Professor Oppenheims definition suffers from several serious defects.
It might have been good and adequate when it was given but now it has outlived its utility and
has become obsolete and inadequate.
"Indeed every important element in it can now be challenged." The definition of Oppenheim has
been subjected to following criticism -
In the first place, "it is now generally recognized that, not only "States" but public international
organisations, have rights and duties under International Law, even though they may not have all
the rights and duties that States have." In fact, "The future of International Law is one with the
future of International organisation."The use of the term 'civilized states' by Oppenheim is also
severely criticized. The criterion of distinguishing so-called 'uncivilized states' was neither long
history nor culture. Even though China had 5,000 years old culture, she was not included in the
group of civilized slates. So was the case of oriental States. In not too distant past, the Western
States regarded only the Christian States' as 'Civilized States'.
This criterion was undoubtedly wrong. At present there are as many as 193 members of the U.N.
which include Christian as well as non-Christian States. That is why, in later editors of
Oppenheim's book have deleted the term 'civilized slates'.
Thirdly, "More controversial but no longer untenable is the view that even individuals and other
private persons may have some such rights and duties."

Fourthly, "it is now widely recognised that International Law consists not only customary and
conventional rules but also of General Principles of Law.
Article 38 of the Statute of the International Court of Justice mention General Principles of Law
Recognised by Civilized States' as the third source in order under which the sources of
International Law are to be used while deciding an international dispute. That is to say, if the

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Court does not find any International Treaty or International custom on a particular point under
dispute, the Court may take the help of 'General Principles of Law Recognized by Civilized
States'. As aptly pointed out by Lord McNair, it describes, 'the inexhaustible reservoir of legal
principles from which tribunals can enrich arid develop public International Law."

2. Hall.—In the words of Hall : International Law consists of certain rules of conduct which
modern civilized states regard as binding on them in their relations with one another with
a force comparable in nature and degree to that binding the conscientious person to obey
the Jaws of his country and which they also regard as being enforceable by appropriate
means in case of infringement.'1
3. Chinese Definition and approach to International Law.— According to a Chinese
writer: "International Law like all other branches of law, is created in a definite stage of
mankind's social development. The origin of international law is directly related to the
creation of the state. International law is created as the political, economic, and the
relations among states emerge.

In his view, only the definition of international law given by Soviet scholars (for example, by
Vyshinsky given earlier), explains the question of thecontents and substance of international law.
This definition (i.e, of Vyshinsky) is adaptable to the 'international law of various historical
periods including the modern one."

He points out that international law possesses the following characteristics of law in general :

(i) it expresses the will of the ruling class;

(ii) it is the aggregate of norms adjusting definite social relations; and
(iii) it is guaranteed by enforcement measures. In his view, therefore, international law is a
kind of law possessing legal validity; it is not what are called self-executing norms of
morality.
The words of a Chinese author, 'International law, in addition to being a body' of
principles and norms which must be observed by every country, is also, just as any
law

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 a political instrument whether a country is a socialist or capitalist, it will to a certain
degree utilize international law in implementing its foreign policy"
4. Charles G. Fenwick.—In the words of Fenwick"International law may be defined
in broad terms as the body of general principles and specific rules which are binding
upon the members of the international community in their mutual relations".
Appraisal. Fens definition is better than all the above-mentioned definitions because
instead of the word states he uses the words members of the international community'
which include states, international institutions, individuals and non-stateentities. He
also uses the term 'general principles',
His definition is very short but pregnant with meaning and takes into account the
changes that have taken place after the Second World War. Indeed it is an appropriate
and correct definition of international law.
5. Whitemafl: defines International Law in the following words"International law is the
standard of conduct, at a given time, for states and other entities subject thereto."
Evaluation.—This is a very brief but adequate definition. The words "other entities
subject thereto" may include international organisations, individuals and non-State
entities. The words used in the definition are apparently very simple but they are
pregnant with meaning and very vast in their scope.
6. J.G. Starke.—In the words of 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
organisations, their relations with each other, and their relations with States and
individuals and
(b) certain rules of law 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."
The definition of Starke is appropriate because it takes into account the changing

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character of international law and truly reflects the present position of international
law.

Basis of International Law

After having arrived at the conclusion that International Law is Law in the true sense
of the term, it is necessary to see as to what is the true basis of international law.
There are two main theories in this connection.
They are:
(1) Theories as to Law of Nature and
(2) Positivism.
(1) Theories as to Law of Nature.—The jurists who adhere to this theory, are of the
view that International Law is a part of the Law of Nature. In their view, States follow
International Law, because it is a part of the Law of Nature. Explaining the view
point of Natural Law Theorists, Starke has written : .............States submitted to
International Law because their relations were regulated by higher law, the law of
nature of which International Law was but a part" 67 I n order to understand this
theory, it is necessary to understand the meaning of Law of Nature. In the beginning,
Law of Nature was connectod with religion. It was regarded as the divine law. The
jurists of 16th and 17th centuries secularised the concept of Law of Nature. Much of
the credit for this goes to the eminent jurist, Grotius.
He expounded the secularised concept of the Law of Nature. According to
him, natural law was the dictate of right reason. His followers applied the law of
nature as an ideal law which was founded on the nature of man as a reasonable being.
International
law was considered binding because it was in fact, natural law applied in special
circumstances. Vattel, a famous jurist of 18th century also expressed the view that
natural law was the basis of International Law. Pufendorf, Christian Thomasius, etc.
are other prominent exponents of Law of nature.
Criticism—The exponents of natural law are of the view that it is the basis of
international law and has conferred binding force on international law. It may,
however, benoted that each follower of the law of nature gives its different meaning.

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They use it as a metaphor. Different jurists give its different meaning such as, reason,
justice, utility,
general interest of international community, etc. Hence the meaning of law of nature
is very vague and uncertain. Moreover, the main defect of this theory is that it is not
based on realities and actual practices of the States.
Influence—Despite the above criticism, the Law of Nature has greatly, influenced
the growth of International Law. 'Traces of 'Natural Law' theories survive today,
albeit in a much less dogmatic form." bb The ideal nature of the Natural Law has also
greatly influenced the growth of international law.
(2) Positivism—Positivism is based on law positivum i.e. law which is in fact as
contrasted with law which ought to be.
According to the positivists, law enacted by
appropriate legislative authority is binding. The positivists base their views on the
actual practice of the States. In their view, treaties and customs are the main sources
of International Law. The positivist's view was in vogue in the 18th century. Bynker-
Shoek, one of the chief exponents of the Positivist School, wrote several books to
popularise his views. In the view of the positivists, in the ultimate analysis, will of the
States is the main source of International law.
1. Starke:
As pointed out by Starke. "... .International law can in logic be reduced to a system
of_rules depending for their validity only on the fact that States have consented to
them. ""
2. Brierly :As pointed out by Brierly, The doctrine of positivisms is the basis of
international law. teaches that international law is the sum 01 rules by which
States have consented to be bound, and that nothing can be law to which they
have not consented to be bound."·'"
The concept of the will of State was first propounded by the German Philosopher 3.
3. Hegel.
According to the positivists, international law is a body of rules which has been
consented to by the States and accepted as binding by way of voluntary restriction or
'auto limitation.'

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The Italian jurist, Anzilotti, one of the chief exponents of the Positivist School
deserves a special mention. According to him, the binding force of international .law
is founded on a supreme principle or norm known, as pacta sunt servanda. In his view
the basis of each rule of international law is pacta sunt servanda in some or the other
way.
The positivists admit that their view fails to explain the basis of customary
international law. In their view, there is an implied consent in regard to customary
rules of international law .
Criticism.-The positivist theory is based mostly on the actual practices of States.
But this view has been subjected to a lot of criticism. It can be criticised on the
following
Grounds :
(1) The concept of the will of State presented by the positivists is purely
metaphorical.

(2) The view of the positivists that the whole of international law is based on the
consent of the State is far from truth. As pointed out by an eminent author, 'custom i:;
said to be evicencc of a general practice accepted by law'. It is not required that there
should be any express recognition by States in order that this practice or international
custom shall be binding upon them.
The extreme positivist view which seeks to base all international law on th e 'consent
of states' has tried to establish that the rules of international custom are based on
"tacit agreements' between' states . But in reality it is not possible to" prove that these
rules come into existence in such a way. This is shown by among other things, the
fact that a new State entering the community of nations at once becomes bound by the
international customary rules and it is never suggested that any of these rules would
not be binding on it. It never happens that the State consent is sought or that it enters
into any agreement on the matter with the already existing States. On the other hand,
the new State is not bound by any international convention already in force unless it
expressly adheres to it. International custom constitutes genre of States. From this it

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 follows that the dictum pacta sunt servanda cannot be the 'basic norm' of international
law, it is itself a rule of international custom.
(3) In practice, it is not always necessary to show that in regard to a particular rule
of general international law, the State had given their consent.
(4) There are some principles of international law which are applicable on States
although States did not give their consent for them. The principle propounded under
Article 2(6) provides that the organisation shall ensure that States which are not
members of the U.N. act in accordance with the principles (contained in Article 2 of
the Charter) so far as may be necessary, for the maintenance of international peace
and security.
(5) The norm 'pacta sunt servanda, "has been abandoned by most theorists, since
it seems incompatible with the fact that not all obligations under international law
arise from 'pacta ', however widely that term is construed, so it has been replaced by
something less familiar ; the so-called rule that States shoula behave as they
customarily have."
(6) "Even apart from its lack of accord with reality the theory that international law
rests on agreements is problematic in another respect. Declarations of will are, of
course, in themselves pure facts which have legal effects only because some rule of
law gives them such effects ."
(7) According to the positivist view, treaties and customs are the only sources of
international law.
Grotius theory of law:
Grotius made distinction between the Jus Gentiurn, the customary Lawof Nations (which he
called Jus Voluntarium or Voluntary Law) and Jus naturrae or natural Law of Nations. He
concentrated more on the natural Law and regarded voluntary law of less importance. The
Grotians were somewhat between the Naturalists and the positivists. They maintained the
distinction between natural and Voluntary Law of Nations but they considered positive or
voluntary laws of equal importance to the natural laws.
Thus, according to the Grotians, international law has originated not only from
customs and treaties but also from natural law. This view, obviously, is not in
conformity with thepositivist view. The positivist view that treaties and customs are

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 only sources of international law is also not in conformity with Article 38 of the
Statute of International Court of Justice according to which General Principles of Law
Recognised by Civilized Nations" are also the sources of International Law. As
pointed out Manley Hudson, the provision relating to "the general principles of law
recognised by civilized nation"serves a useful purpose in that it emphasizes the
creative role to be played by the court.
It confers such a wide freedom of choice that no fixed and definite content can be
assigned to the term employed. It has widely hailed as a refutation of the extreme
positive conception of international laws.
(1) Theory of Consent.—In the view of the supporters of this theory, consent of
States is the basis of international law. States observe rules of international law
because they have given their consent for it. Positivists have given much support to
this view. The chief exponents of this theory are Anzilotti, Triepel, Oppenhetm. etc.
This theory fails to explain the basis of customary international law. In the view of
the supporters of this theory, States are bound to observe customary rules of
international law, because they have given their implied consent for their acceptance.
This theory has been subjected to severe criticism by many jurists, such as, Starke,
Brierly, Kelsen, Fenwick, etc. Following are some of the points of criticism levelled
against the theory :-

(i) As pointed out by Starke, in practice it is not necessary to prove that the other
State or States have given their consent n regard to a specific rule of international law
According to Prof. Smith, all States are bound by international law, no matter whether theyhave
given their consent or not.
(ii) In regard to customary rules of international law, the basis of implied consent is
far from correct. "The States are bound by general international law even against their
will."
Professor Kelsen has cited the example of new States, which get rights and duties
under international law immediately after becoming the subject of International law.
(iii) In the view of Fenwick, the theory of consent is not correct because it is against
the principles and things which the States have been accepting since the beginning of

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 intemational law.
(iv) Theory of consent fails to explain the case of recognition of new State. The
granting of recognition is the act of other States and hence it would be wrong to say
by getting recognition, the recognised State has given its consent in respect of
international law.
(v) According to Brierly the theory of consent cannot explain the true basis of
International law even if we distort facts and try to fit them in the theory.
Thus we see theory of consent cannot explain the true basis of international law and
can be severely criticised. As pointed out earlier, States follow international law for
the simple reason that they are States. As an ordinary person has to obey municipal
law, evenagainst his will, similarly, States are bound to follow international law. To
quote Sir CecilHurst again, "International law is, in fact, binding on States because
they are States.
Thus, "consent can never be the ultimate force of legal obligation" . 92 However, as
noted earlier 'common consent can be said to be the basis of international law as a
legal system in the sense that we "see the basis of international law in the existence of
an international community the common consent of whose members is that there shall
be a body of rules of law—international law—to govern their conduct as members of
that community."
3. Historical Development of International Law: Development of International
Law by International Organizations

A brief reference may also be made here to the development of international law by the
organs of the international organisations. The organs of international organizations contribute to
the clarification and development of international law. They help to create opinio juris but "state
practice becomes evidence of law only when the vast majority of states believe themselves to be
legally bound.

These organs often invoke legal principle in order to reach normative decisions. As pointed out
by Rosalyn Higgins. 'The collective processes in a United Nations organ help to focus attention
upon the need for mutual observance of the rules. Indeed, in some cases reference to a widely
accepted rule of law can serve a bridge between differing ideologies.

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The constituent instruments of international organisations represent an advanced stage of the
development of international law. They have "introduced a quasi-legislative element in the law
making processes at the expense of contractual element, facilitating a quicker response to the
problems of international social order What is true of the organs of the U.N. is also, even more,
true of the organs of the specialized agencies of the U.N. For example, both the World Health
Organisation (WHO)and the International Civil Aviation Organization (ICAO) carry out a wide
range of activities which contribute to the development of International Law.

This has become possible due to the provisions of the constitutions of these specialized agencies.
Under Article 21 ofthe Constitution of WHO, each Member has undertaken the obligation to take
action relative to the acceptance of the Conventions (adopted by a two-thirds votes of theHealth
Assembly) or agreement within a period of 18 months after its adoption by the Health Assembly.
In case a Member does not accept the convention or agreement within the said time, it is required
to furnish the Director-General with a statement of the reasons for non-acceptance. Article 37 of
the I.C.A.O. convention authorises the l.C.A.O. to adopt regulations 99 with a wide variety of
technical matters essential to the safe and swift operation of international civil aviation.
According to Article 90, an annex may be adopted by a two-thirds majority vote of the members
of the Council.

A regulation thus adopted comes into force three months after its submission to the member-
States or within the time specified by the Council. unless the majority of contracting States
register their disapproval with the Council." Under Article 38 of the I.C.A.O. convention, it a
member finds it difficult or impracticable to comply with any of the international standards or
procedures adopted by the Council, it is under the obligation to notify LC.A.O. immediately of
the differences between its own practices and the practice established by the Annex. If the
member concerned fails to notify or remains silent, it will amount to approval.

Under the Constitution of the ILO, members have undertaken an obligation to submit
conventions and recommendations adopted by the conference by a two-thirds majority for the
consideration of the national authorities competent to give effect to their provisions. Once
accepted, these conventions become binding upon members. The legislative procedure of the
ILO, when introduced in 1919, was a radical innovation in following three respects :

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"The whole conception of a convention being adopted by an international conference by a
two-thirds majority and authenticated by the President and the Secretary-General of the
conference instead of being signed by plenipotentiaries was then new." (2) "An even more
radical innovation than the substitution of adoption for signature was the participation in the
act of adoption of non-government delegates voting independently. This has remained a
unique feature of ILO procedure. "No less radical and unprecedented an innovation was the
obligation to submit conventions adopted by the International Labour Conference by a two-
thirds majority for parliamentary consideration irrespective of the attitude towards the
convention of the representatives of the Government concerned.
A brief reference may also be made to a similar provision in the Constitution of the
Universal Postal Union (UPU) which provides that those postal administrations which do
not respond to a proposal put to them by the International Bureau within a period of three
months, will be considered to be in agreement with the proposal.
As written by Codding, Jr., "The experiences of WHO and ICAO have a high potential
value. Other international agencies could possibly adopt them profitably to their own use,
particularly those agencies
whose activities are of a technical nature. A combination of all the specialprocedures of
ILO, WHO. ITU and UPU in one international organization provides
speculation. In any case, it is becoming increasingly obvious that some major changes
are needed in the international legislative process if the international community is to be
able to keep up with the amount of work that is being delegated by States to international
organizations. The WHO and ICAO have, at least, made a start."
Now the world is witnessing the third phase of the post-war development of
international organisations.
The first phase started immediately after 1945 when U.N.
system including the International Monetary Fund (IMF) and the World Bank was
established. The second phase started near about 1960 when common market,
organisation of European Co-operation and Regional Development Bank etc. were
established. The third phase started near about 1973 and is still continuing. In the third
phase, U.N. Environment Programme World Food Council, International Energy Agency
(lEA) etc. have been established.

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4. India’s contribution in development of international law:

A brief reference may also be made here of India's position in regard to the rules and
principles of international law. Like other new states, India has also sought to reject
or modify some of the rules and principles of the traditional international law. India
has neither accepted the whole nor has rejected the entire fabric of the traditional
international law. "India, like many other new nations, has expressed dissatisfaction
with some of the rules of international law as developed in the West. This, however,
does not mean that India's challenge of some of the rules of international law is
motivated by any desire to subvert the international legal order. Nor is India's
opposition of the same kind as that of the Soviet Challenge."
Further, 'In fact, India's argument would seem to indicate that it is far more
influenced by the Western rather than Soviet concepts of international law.
This should not be surprising. However, It must not be supposed that India would
agree to all the rules and principles that are identified as international law in the
West. Rather, it does not challenge the doctrine of international law in the same way
as the Soviets challenge it." Since her emergence as new state after the attainment of
independence,
India Constitution of India and International Law:
The ties of India’s Constitution with international law date back to the pre-
independence days. India was the separate member of the League of Nations. It is
also the founding-member of the United Nations. In this section, we will see the
general scheme of the Constitution with reference to international law and further
proceed to analyse other provisions and aspects.
Article 51 is considered the concrete provision dealing with the relation of Indian
Constitution and international law. But before we go into detailed analysis of it, we
should look at the Preamble, Part III and Part IV of the Constitution. The Preamble
enumerated certain basic values that India guarantees to its citizens and strives to
achieve. These values are accepted as universal and basic by most nations
throughout the world. The fundamental rights in Part III and the positive mandates

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 to the State in form of Directive Principles can be compared with the Universal
Declaration of Human Rights and commonalities can be traced. Shri Subhash C
Kashyap has prepared a detailed chart on the common principles in these two parts
as well as certain other laws of India
General Principles of International Law: India’s position and contribution on
the general principles and major issues of contemporary international law such as
recognition, self-determination, principles of non-use of force and non-
intervention, state responsibility, prohibition of use of nuclear weapons, terrorism,
legislative role of the UN Security Council, judicial review of the decisions of the
UN organs, terrorism, legislative role of the UN Security Council, judicial review
of the decisions of the UN organs, terrorism, jus cogens and erga omnes
obligations, the jurisdiction of the International Criminal Court, emerging system
of multilateral order and the United Nations and peaceful settlement of disputes,
illustrates the importance and consistency of the role India has been playing in the
pre-colonial era and in the post-independent phase in promoting rule of law in
international relations.

World Trade Organisation: With regards to the trade in services, it is clear that
services are subject to a number of non-tariff barriers, which mostly remain invisible. This, most
of the time, makes it difficult to quantify the exchange of concessions. There is a need to have
total transparency, along with a legally binding international code on restrictive business
practices. It is pertinent that developing countries should have a proper legislative framework on
restrictive practices. India has already adopted the Competition Act, 2002 (partly in force),
which, though not service specific legislation, will address the anti-competitive practices of the
enterprises.

19
Module 2: Sources of International Law
Topics for study;
1. Statute of International Court of Justice ,1945( Article 38)
2. International treaties, convention, international cutom
3. Law Recognized by Civilized Nations- Judicial Decisions
4. National Courts-Juristic opinion
5. Other sources of International Law-Resolution of General Assembly, Resolution of
Security Council
1. Statute of International Court of Justice ,1945( Article 38)

As pointed out by Starke, 'The material sources of international law may be defined
as the actual materials from which an international lawyer determines the rule applicable
to a given situation."
The term 'source' refers to methods or procedure by which International law is created. A
distinction is made between the formal sources and material sources of law. As pointed
out by G. Fitzmaurice they may also be described as, respectively, as direct and indirect,
as proximate or immediate and remote or ultimate.
Material sources may also be described the "origins" of law while the material, historical
or indirect sources represent the stuff out of which the law is made, that is to say, they go
to form the content of the law, the formal, legal and direct sources consist of the acts or
facts whereby this content is clothed with legal validity and obligatory force. The essence

20
of the distinction, therefore, is between the thing which inspires the content of law, and
the thing which gives that the content its binding character as law. 'The former are those
legal procedures and method for the creation of rules of general application whicli are
legally binding on the addressee. The material sources provide evidence of the existence
of rules which, when proved, have the status of legally binding rules of general
application."

The sources of international law may be classified into five categories—

(1) International conventions;
(2) International customs
(3) General Principles of Law Recognized by civilized Nations;
(4) Decisions of Judicial or Arbitral Tribunals and Juristic works
(5) Decisions or Determinations of the Organs of International Institutions.
The above-mentioned third source 'General Principles of Law Recognised by
Civilized Nations' was first mentioned in Article 38 of the statute of the Permanent Court
of International Justice, It was retained in Article 38 of the statute of the International
Court of Justice which mentions the following sources of international law.
(1) International conventions ;
(2) International customs;
(3) General principles of law recognized by civilised nations; and
(4) Judicial decisions and the teachings of most highly qualified
publicists of the various countries as subsidiary means for the determination of rules of
law. The above-mentioned Fifth source, i.e., Decisions or determinations of the Organs of
International institution does not find mention in Article 38 of the statute of the court but
it has now become a well-recognized source.
1. International Convention:
In the modern period, international treaties are the most important source of
international law. This is because the reason, inter a/ia, that states have found in this
source a deliberate method by which to create binding international law. Article 38 of
the statute of the International Court of Justice lists international conventions whether

21
general or particular, establishing rules expressly recognized by the contesting States'
as the first source of international law.
According to Article 2 of the Vienna Convention on the Law of the Treaties, 1969, 'A
treaty is an agreement whereby two or more States establish or seek to establish
relationship between them governed by international law".
But this definition is narrow and does not seem to be correct. As correctly pointed out
by Prof. Schwarzenberger, 'Treaties are agreements between subjects of international
law creating a binding obligation in international law."
However, it would be wrong to say that Vienna Convention does not show its
awareness to this fact for Article 3 provides that the fact that the present convention
does not apply to international agreements concluded between states and other
subjects of international law, or between other subjects of international law, or to
international agreements not in written form, shall not affect
(a) The legal force of such agreements
(b) The application to them of any of the rules set forth in the present convention to
which they would be subject under international law independently of the convention
(c) The application of the convention to the relations of states as between
themselves under international agreements as to which other subjects of international
law are also parties.
International treaties may be of the two types :
(A) Law-making treaties and
(B) Treaty contracts
(A) Law-making treaties—The provisions of law-making treaty are directly the
source of international law. The development of law-making treaties received an
impetus from the middle of 19th century. The main reason for this was that in view of
the changing circumstances, customs, which were hitherto the most important source
of international law, were proving to be inadequate. Consequently, States regarded it
necessary and expedient to enter into treaties and thereby established their relations in
accordance with the changing times and circumstances. Law-making treaties may
again be divided into
following two types:—

22
 (a) Treaties enunciating rules of universal international law.—United Nations Charter
is the best example of such type of treaty.
(b) International treaties which lay down general principles—These treaties are
entered into by a large number of countries. 1958 Geneva Conventions on the law of
the Sea and Vienna Convention on the Law of Treaties, 1969 are good examples of
such type of treaties.
Law-making treaties perform the same functions in the international field as
legislation does in the State field. Law-making treaties are the means through which
International law can be adapted to in accordance with the changing times and
circumstances and the rule OT law among the States can be strengthened. Treaty
process is also a useful means to develop universal international law. But an
international treaty can enunciate universal principle only when it receives the
support of the essential States.
For example a law-making treaty which does not receive the support of nations, such
as, Russia, Britain, America, France and China, cannot effectively enunciate general
or universal rules.
(B) Treaty contracts: As compared to law-making treaties, treaty contracts are
entered into by two or more States.
The provisions of such treaties are binding on the parties to the treaty. Such treaties
also help the formation of international law through the operation of the principles
governing the development of customary rules. This may happen when a similar rule
is incorporated in a number of treaty contracts. Beside this a treaty enter into by a few
States is subsequently accepted by many other States as they enter into similar
treaties. Finally, A treaty may be of considerable evidentiary value as to the existence
of a rule which has crystallised into law by an independent process of development."

2. International custom:
International customs have been regarded as one of the prominent sources of
International law for a long time. It "is the oldest and the original source, of international
as well as of law in general." 7 It is only in the modern period that the importance of
customs has suffered a setback. However, even today it is regarded as one of the

23
important sources of international law. Customary rules of international law are the rules
which have been developed in a long process of historical development.
Article 38(b) of the Statute of International Court of Justice recognises International
Custom, as evidence of general practice accepted as law', as one of the sources of
International law.
In order to understand the meaning of custom', it is necessary to know the meaning of
the word usage'. The words 'custom' and 'usage' are often used as synonymous. In fact,
there is difference between the usage and custom, and they are not synonyms. Usage is in
fact the early stage of custom. By usage we mean those habits which are often repeated
by the States. As pointed out by Starke, where a custom begins, usage ends. Usage is an
international habit which has yet not received the force of law.
In the words of Starke, "Usage represents the twilight stage of custom, custom begins
where usage ends. Usage is an international habit of action that has yet not received full
legal attestation. Usages may be inconsistent and opposed to each other. But this can
never be the case with the custom. When States in their international relations start
behaving in a particular way in certain circumstances, it is expected that in the similar
circumstances they will behave in the same way. This is called the usage. But when this
usage receives the general acceptance of recognition by the States in their relations with
each other, there develops a conception that such a habit or behaviour has become right
as well as obligation of the States and in this way usage becomes the custom. As aptly
remarked by Viner “A custom, in the intendment of law, is such usage as that obtained
the force of law”.
Ingredients or elements of custom
Following are the main ingredients of an international custom:-
(i) Long Duration—Long duration is generally said to be an essential ingredient of a
custom. This is particularly true of a custom in Municipal Law. In Municipal Law, a
custom is required to be ancient and immemorial. But this is not necessary for an
international custom. Article 38 of the Statute of the International Court of Justice directs
the World Court to apply 'international custom, as evidence of a general practice accepted
as law.
Emphasis is not given on a practice being repeated for a long duration. What is more

24
important is the practice of States accepting the practice concerned as law. In the field of
international law, customs have emerged in a short duration, for example, custom relating
to sovereignty over air space and the continental shelf.
(ii) Uniformity and consistency—The custom should also be uniform and
consistent.
In the Asylum case, the International Court of Justice observed that the rule
invoked should be 'in accordance with a constant and uniform usage practised by the
States in question, and that this usage is the expression of a right appertaining to the
State granting asylum and a duty incumbent on the territorial State.' This follows from
Article 38 of the Statute of the Court which refers to international custom 'as evidence of
a general practice accepted as law'. According to Mannley , Hudson, "The elements
necessary are the concordant and recurring action of numerous States in the domain of
international relation, the conception of each case that such action was enjoined by law,
and the failure of other States to challenge that conception at the time". It may, however,
be noted that complete uniformity is not necessary. Nevertheless, there must be
substantial uniformity.
(iii) Generality of Practice.: Although universality of practice is not necessary, the
practice should have been generally observed or repeated by numerous States.
(iv) Opinio juris et nessitatis: Accordiflg to Article 38 of the Statute of the
International Court of Justice, international custom should be the evidence of general
practice "accepted as law".
It is an important matter to see as to how international custom will be applied in
International law.
Leading cases on the point
(a) West Rand Central Gold Mining Company Ltd. v. R.—In this case a
test regarding the general recognition of custom was laid down. The Court ruled that for a
valid international custom if is necessary that it should be proved by satisfactory
evidence that the custom is of such nature that it has received general consent of the
States and no civilized State shall oppose it.
(b) In case concerning Military and Para-Military Activities in and Against Nicaragua,
the World Court observed

25
"If a state acts in a way prima facie in with a recognized rule, but defends
its conduct by appealing to exceptions or justifications contained within the rule itself,
then, whether or not the state's conduct is in fact justifiable on that basis, the significance
of that attitude is to confirm rather than to weaken the rule."
3. General Principles of Law recognized by State: As per Para1(c) of art.38 of
International Court of Justice it is the third source of International Law In the
modern period, it has become an important source. It constitutes an important
landmark in the history of international law inasmuch as the State Parties to the
statute did expressly recognise the existence of third source of international law
independent of custom or treaty. This source helps international law to adapt itself
in accordance with the changing times and circumstances.
Following are some of the important cases relating to the general principles of law
recognized by civilized States :-
(a) R. V. Keyn:- In this case the Court ruled that international law is based on
justice, equality and conscience which has been accepted by long practice of
States
(b) United States v. Schooner.-In this case Justice Storey of United States
of America ruled that International law should be based on the general principle
of law recognized by civilized States. He was giving decision relating to abolition
of system of Slavery.
The International Court have recognised as general principles:
(i) good faith;
(ii) responsibility ;
(iii) prescription ;
(iv) in the absertne of any express provision to the
contrary, every Court has right to determine the limits of its own jurisdiction ;
(v) a party to a dispute cannot himself be an arbitrator or judge ;
(vi) res judicata; and
(vii ) in any judicial proceeding the Court shall give proper and equal opportunity
of hearing to both parties.

26
 Since these principles have been recognised and applied by the Courts many a
times, Cheng has, and rightly too, suggested that these and such other principles
should be codified.
4. Decisions of Judicial or Arbitral Tribunal: International Judicial Decisions.
,ln the modern period International Court of Justice is the main International
Judicial Tribunal. It was established as a successor of the Permanent Court of
International Justice. It may, however, be noted that the decision of International
Court of Justice does not create a binding general rule of international law.
Article 59 of the Statute of the International Court of Justice makes it clear that
the decisions of the court will have "no binding force except between the parties
and in respect of that particular case". Earlier decisions of the Court are not
binding on the Court itself and the Court is free to deviate from its earlier
decisions.
However, ordinarily the Court does not deviate from its earlier decisions and it
changes its earlier decisions only in very special circumstances. Thus while in
principle it does not follow the doctrine of precedent, in practice, it ordinarily
follows it. So far as the advisory opinion of the 'International Court of Justice is
concerned, it is not binding at all. But it clarifies the rule of International law on a
particular point or matter.
According to Article (38)(1) (d), subject To the provisions of Art. 59 judicial
decisions are "subsidiary means for the determination of rules of law'. Thus
judicial decisions, unlike customs and treaties, are not direct sources of law, they
are subsidiary and indirect sources of International Law.
Decisions of International Arbitral Tribunals—In the view of some jurists the
decisions of International Arbitral Tribunals cannot be treated as source of
internationallaw. These jurists have, rightly too, pointed out that in most of the
arbitral cases,arbitrators act like mediators and diplomats rather than as judges.
The Kutch Award (1968) bears testimony to this fact. Consequently, their
decisions should be treated as source of International law. Generally the said
criticism is correct. It may, however, be noted that some of the decisions of the
Permanent Court of Arbitration are treated as weighty precedent and can be

27
 regarded as source of International law. Judge Lauterpacht has aptly written, "One
of the reasons usually given for its (in. Permanent Court of Arbitration)
inadequacy was that the awards rendered by its tribunals were not legal in form
and substance that they tend to confuse law with a diplomatic solution aiming at
pleasing both parties.
Juristic works:-Although juristic works cannot be treated as an independent
source of International Law. yet the view of the jurists may help in the
development of law.
The views of the jurists are not direct sources of international law. But they
sometimes become instrumental in the development of international customs
According to Article 28 of the International Court of Justice, the works of highly
qualified jurists are subsidiary means for the determination of the rules of
international law.
5. Decision or determinations of the organs of International institutions
Before the establishment of League of Nations, International Customs and
International Conventions were recognized as the main source of International
Law. In addition to these morn sources juristic works and decisions of judicial and
arbitral tribunals were regarded as subsidiary means for the determination of rules
of law. The statute of PCIJ under Art. 38 incorporated these sources and also
introduced one new source namely General principles of law recognised by
civilized nations". Article 38, however, did not at all mention decisions or
determinations of organs of International institution as source of law. The reason
for this was quite obvious that by this time International organizations had not
assumed such an important role as they have done now.
The evolution of International organisation represents a significant stage in the
history and development of International law. International organization in its
wider sense, is the process of organising complexity of International relations. In
a narrow sense, it is an International institution based on multilateral international
agreement entered into by sovereign states, its organs having autonomy of will,
having permanent organs and having distinct entity or personality separate from
its total of its membership. Even before the establishment of the League of

28
 Nations, some experiments were made for development of international
organisations.
In the view of Starke, organs of international institutions may lead to the
development of international law in the following ways
(i) In international matter their decisions are the intermediate or final steps in the
development of customary rules. For example, it was ruled by Security Council of
the United Nations that if any member absent from the Security Council meeting
then it will not be deemed to be a veto. This decision has helped in the
development of the international custom on this point. Similarly, the Security
Council can decide whether matter is procedural or important. Such decisions
may help in the development of an international custom on the point.
(ii) The resolutions of the organs of international institutions may be binding on
the members in regard to the internal matters of the institution.
(iii) Organs of international institution can decide the limits of their competence.
Sometimes the organs of international institution may make the interpretation of the
different provisions of their constitutional instruments. This decision becomes a part
of the law of international institution which in its turn becomes a part of the
international law.
6. Other Sources of International Law
Resolution and Declarations of General Assembly of the U.N. as the Source
of Universal International Law: There is a great controversy in regard to the
legal significance of the resolutions and declarations of the General Assembly of
the United Nations. Some Jurist are of the view that they are only of political
significance and have The decisions taken by the General Assembly prove to be
helpful in the development of International law. These decisions are in the form of
recommendations and resolutions and some of them are never implemented yet
they are helpful in the agreement
between Stains and contribute in preparing the necessary environment for the
development of the rules of International law no legal importance On the other
hand, some jurists hold the view that under certain special circumstances they
may have legal implications and some of them may even have binding effect.

29
 7. Art. 38 of Statute of International Court of Justice

The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the determination
of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if
the parties agree thereto.

30
 Chapter 3: Relationship between International Law and Municipal Law
Theories- Monistic Theory, Dualist Theory, Transformation Theory, Specific
Adoption Theory
Practice of State; United Kingdom,United States of America and India
Certain theories have been propounded to explain the relationship between International Law and
Municipal Law. Following are some of the prominent theories in this connection
(1) Monism
(2) Dualism ;
(3) Specific Adoption theory
(4) Transformation theory and
(5) Delegation theory.
These theories have been put forward to explain the relationship between International
Law and State Law, Of all these theories the most popular Monism' arid Dualism' and
they are diametrically opposed to each other.
1. Monism: The exponents of this theory emphasis on the scientific analysis of the
internal structure of law. According to them law is a unified branch of knowledge no
matter whether it applies on persons or other entities. "According to monist belief,
international obligation and municipal rules are facets of same phenomenon, the two
deriving ultimately from one basic norm and belonging to the unitary order
comprised by the conception of law."
According to the exponents of Monism International Law and Municipal law are intimately
connected with each other. International Law and Municipal Law are the two branches of
unified knowledge of law which are applicable to human community in some or the other
way. In the view of the monistic writers, in the ultimate analysis of law we find that man is
at the root to all laws. All laws are made for men and men only in the ultimate analysis.
Criticism. --Monism is a very sound theory. It is very difficult to disprove the view of
Kelsen that man lies at the root of all laws. But in actual practice states do not follow this
theory. They contend that Municipal Law and International Law are two separate systems
of law. Further, each state is sovereign and as such is not bound by international law.

31
States follow international law simply because they give their consent to be bound and on
account of other reasons.
2 . Dualism: In the view of the dualistic writers, international law and State
law are two separate laws. "The Monist view of law is part of philosophy according to which
totality is a single structure. But within the framework of the unitary universe is diversity of
phenomenon .Differences are significant and the dualist considers that Municipal law
differs markedly from international precepts." Monism remained in vogue for a long time.
Monism exercised a great influence upon international law, because it had closeassociation
with natural law. In the 19th century, however, the existence of State-will and
complete sovereignty of the State were emphasized. The conception of State-will was
taken from Hegel, a German scholar and was further developed. Dualism is based on the
complete sovereignty of States. The chief exponents of this theory are Triepel and
Anziloti. Triepel has pointed out the following differences between International Law and
State law
(a) Regarding subject. _—Individual is the subject of State law, whereas State is the
subject of international law.
(b) Regarding origin—Origin of State law is the will of the State whereas origin of the
international law is the common will of States. -
Criticism—It is not correct to cortend that International Law is binding only on
States. In the modern period, International Law is applicable on States, individuals and
certain other non-State entities. Besides this, the conception of State-will as the sourceof
State law is incorrect. In tact State-will is nothing but the will of the people who compose
it. Similarly, it is not correct to say that the origin or source of international law is common
will of the States. There are certain tundamental principles of international law which are
binding upon the State, even against their will. "Furthermore, it may be objected to
Triepel's theory that it does not explain the existence of a general International law. Even
international customary law becomes particular law for Triepel, its rules apply only to the
State which by conclusive acts have declared adherence to the 'tacit' agreements' upon
which they rest—a view that is at variance with reality. Anziloti has tried to explain the
difference between international law and State law in a different way. According to him,
there is a difference between the fundamental principles of international law and State law.

32
The fundamental principle of the State law is that laws, pacta sund servanda, namely,
agreement between States are to be respected. On this basis, Anzilloti contends that the legal
systems of international law and States laws are different. It cannot be denied that pacta sunt
servanda is an important fundamental principle of international law. But to assert that it is
the only basis of international law seems to be far from truth. In fact, it is an important
illustration of all the important fundamental principles of international law. It fails to explain
the binding force of customary rules of International Law in regard to which the States have
not given their consent.

Whether Monism or Dualism is the correct theory.—On the basis of above discussion,
monism appears to be the correct theory but no theory can be complete in itself and it is not
possible to include all the elements in it. The practice of States indicates that sometimes
there is the primacy of international law, sometimes there is the primacy of the Municipal
law and sometimes there is mixture of different legal system.
For example in the Greco-Bulgarian Communities case , The permanent Court of
International Justice held, it is a generally accepted principle of international law that in
relations between powers who are contracting parties to a treaty, the provisions of the
municipal law cannot prevail over the treaty." On the other hand, when the Municipal
Courts find that the conflict between the International law and Municipal law is of such
nature that cannot be avoided, they give primacy to the Municipal law. In this connection,
Mortensen v. Peters'and Sri Krishna Sharma v. The State of West Bengal deserve a
special mention.
2. Specifc adoption Theory: According to the positivists, international law cannot be
directly enforced in the field of State law. In order to enforce it in the field of
Municipal Law, it is necessary to make its specific adoption. In short International
Law can be applied in the field of Municipal law only when Municipal law either
permits it or adopts it specifically. This view is generally followed by States in
respect of International Treaties. It is argued that unless there is specific adoption of
the International Treaties(such as TkCOflVenti0n Act, 1975 and Vienna Convention
of Diplomatic Relations Act,1972 enacted by Indian Parliament) or there is some sort

33
 of transformation, International Treaties as such cannot be enforced in the municipal
field. While considering the International Covenants on Human Rights, the Supreme
Court of India observed, in Jolly George v. The Bank of Cochin,
"The positive commitment of the its Parties ignites legislative action at home but
does not automatically make the covenant enforceable part of the corpus juris of
India")
As regards specific adoption of international treaties by Indian Parliament the Anti-Apartheid
(United Nations Convention) Act, 1981, the Anti Hijacking Act, 1982, the Suppression of
Unlawful Act against the safety of Civil AviationAct, 1982 and the International Monetary Fund
and Bank (Amendment) Act, 1982 deserve a special mention.
Cri!icism. —This view is not correct in respect of the whole of international law because there
are many principles of international law (especially are applied in the field of municipal law
without specific adoption.
3. Transformation Theory.—The exponents of this theory contend that for the
application of international law in the fie l d of municipal law, the rules of
international law have to undergo transformation. Without transformation they
cannot be applied in the fie ld of municipal law.
Criticism—This theory is based an consensual theory which has already been criticized, it may
also be noted that it is not necessary for all treaties to undergo the process of transformation for
their application in the field of municipal law. There are several law-making treaties which
become applicable to the States even without undergoing the process of transformation. This
theory has been severely criticized by the critics. It is, therefore, incorrect to consider that the
transformation from one to other is materially essential.
Delegation Theory.—As pointed out earlier, transformation theory has
been severely criticized by a number of jurists. The critics of transformation theory have
put forward a new theory called Delegation theory. These critics point out that the
constitutional rule of international law permit each State to determine as to how
international treaties will become applicable in the field of State law. Thus, in fact, there is
no transformation nor is there specific adoption in every case. The rules of international
law are applied in the field of State law in accordance with the procedure and system
prevailing in each State in accordance with its Constitution.

34
Criticism. —This theory can be regarded simply as a reaction against the theory of
"dualism" and other theories based on positivism, one may ask where are and what are the
constitutional rules of international law? When and how these rules have delegated power
to state constitutions? This theory is far from true. In fact, each-state is equal and
Thus there is a great controversy in regard to application of international law in the
field of municipal law. In order to arrive at the right conclusion, it is necessary to go
through the practice of States in this respect. But before we do so, it will be desirable first
to consider the question of primacy.

Thus the view that State law will prevail in case of conflict between State law and
international law is not correct. If we accept this theory, it will mean that there will be the
primacy of more than 1193 state legal systems. Acceptance of such theory will create
anarchy and disorder in the international field. Besides this, this view is subject to the
following criticism
(a) If it is accepted that international law derives validity from the State Constitution,
it will mean that with the disappearance of the State Constitution, the validity of the rules
of international law will also disappear. This is a very absurd suggestion and cannot be
accepted. Almost all the jurists are agreed on the point that the disappearance of State
Constitution will not affect the validity of the rules of international law.
(b) When a new State is admitted to the family of nations, it becomes bound to obey
the rules of international law even against its will. In fact, the duty of each State is to
adopt its law and Constitution in accordance with the rules and principles of international
law.
(c) Most of the States have accepted the supremacy of International law in their
Constitutions.

4. Practices followed in U.K., U.S.A ,and India

A. U.K British Practice. —For the application of international law in Britain,
distinction is maintained in regard to the customary rules of international law and the
rules laid down by treaties. It will, therefore, be desirable to discuss them separately.

35
(A) British practice in regard to customary rules of international law.---In
Britain,customary rules of International Law are treated as a part of British laws.
British courts treat customary rules of international law as apart of their own law
subject however to the following conditions.
(a) Rules of international law should not be inconsistent with the
British Statutes ; and
(b) If the highest Court once determines the scope of a customary rule of
international law, then all the courts in Britian are bound by it.
Influence of the above practice—Following is the influence of the British practice in
regard to the customary rules of international law
(a) Rules of Construction—The British Courts interpret the Parliamentary Statutes
in such a way that they should not go against international law. In this connection the
presumption is that Parliament never intends to violate international law. This rule is
applicable only when the provisions of the Statutes are ambiguous. In case the
provisions of the Statutes are clear and unabmiguous, they prevail over the rules of
international law.
(b) Rule or Evidence—In Britain, the rules of international law need not be proved
through evidence.
Following are the exceptions of the British , practice in regard to customary rules of
international law:Acts of State do not come within the purview of the British courts,
irrespective' of the violation of international law.
(ii) Prerogative powers of Crown.—In some matters the British courts are bound
to obey the prerogative powers of Crown. For example, if the Crown grants
recognition to any State, the British courts are bound to accept it. They
can not question the matters coming within prerogative powers of the Crown.
(B) British Practice as to Treaties—In Britain the practice regarding the rule laid
down by treaties is different from the practice in regard to the customary rule of
international law. in regard to treaties, the British practice is based on the
constitutional principles governing the relationship between Executive or Crown and
Parliament.

36
 In regard to treaties, the matters, relating to negotiations, signatures, etc. are within
the prerogative powers of the Crown.
In Britain it is necessary that some type of treaties should receive the consent of
Parliament. Either the Parliament accords its consent or adopts it in State law through
the help of a statute. Such type of treaties are
(a) Treaties which affect the right of British citizens;
(b) Treaties which amend —or modify common law or Statute law of Britain ;
.c) Treaties which confer additional powers on Crown ; and
(d)Treaties which impose additional financial burden on the Government.
In addition to these, treaties which expressly provide that for their application the
consent of the Parliament is required, consent of the Parliament is essential for their
application.
5. Practice in America: In America also, the practice regarding customary rules of
international law and the rules laid down by treaty is different.
(A) American practice regarding customary rules of international law.—
The American practice regarding customary rules of international law is more or less
same as the British practice. In America also customary rules of international law are
treated as a part of American law. In the leading case Panama Habana Justice Gray
remarked,
"International law is a part of our law and must be ascertained and administreded by
the courts of justice of appropriate jurisdiction as often as questions of rights
depending on it are duly presented for their determination. For this purpose, "where
there is no treaty, and no controlling executive or legislative act or judicial decision,
resort must be had to the customs and usages of civilized nations ; and, as evidence
of these, to the works of jurists and commentators, who by years of labour, research
and experience, have made themselves peculiarly well acquainted with the subjects
of which they treat .”
Such works resorted to by judicial tribunals, not for the speculations of their authors
concerning what the law ought to be, but for the trustworthy evidence of what the
law really is.

37
 B) American practice regarding rules laid down by Treaties—American practice
regarding rules laid down by treaties is different from British practice. In case of
international treaties, the American practice is not based on the constitutional rules
governing the relationship of the executive and Congress. In America, everything
depends upon the provisions of the Constitution. Article VI of the American
Constitution provides that Constitution of the United States, all1iws made in
pursuance thereof and the international treaties entered into under the authority of the
United States shall be the supreme law of the land. Thus international treaties have
been placed in the same category as State law in America. It may, however, be noted
that in America the practice is that if there is a conflict in between international treaty
and a State law, whichever is
later in date shall prevail. If there is a conflict between American Constitution and an
International Treaty, the former (i.e. the Constitution) will prevail.

C. Practice in India:
Before the adoption of Indian Constitution the Indian practice in respect of relation of
international law to internal law was similar to the British practice. After the adoption of
the Constitution of India everything depended upon the provisions of Constitution. In
order to know the position of International Law in the post Constitution period, it is
necessary to examine the relevant provisions of the Constitution of India.
Art.51: The most relevant provision is contained in Article 51 which runs as follows:
"The State shall endeavour to—(a) promote international peace and security
(b)maintain just and honourable relations between nations
(c) foster, respect for international law and treaty obligations in the dealings of organised
peoples with one another; and (d) encourage settlement of international disputes by
arbitration.

But Article 51 does not give any clear guidance regarding the position of international law in
India as well as the relationship of municipal law and international law because this article is
contained in Part IV of the Constitution of India. Part IV of the
Constitution deals with the Directive Principles of State Policy. Article 37 of this Part

38
clearly provides that the provisions contained in this Part shall not be enforceable by any
court. "This Article (Article 51) falls in the Chapter on 'Directive Principles of State Policy'
which are non-justiciable.
Secondly, it is doubtful if the expression State includes the courts also within its ambit and if the
Directive Principles have been addressed to them too." However, it would be wrong to contend
that Article 51 is of no relevance and provides no guidance at all. Article 37 which provides that
provisions contained in Part IV of the Constitution are non-justiciable, adds in unmistakable
terms that the principles therein laid down are "nevertheless fundamental in the governance of
the country and it shall be the duty of the State to apply these principles in making laws." The
majority of constitutional experts in the country now subscribe to the view that simply because
the principles contained in Part Ill are non-justiciable, it cannot be successfully contended that
they are of no significance or even of less significance than the fundamental rights contained in
Part IV which are justiciable.
Art.372: Art. 372 (1) clearly provides : "Notwithstanding the repeal by this Constitution of the
enactments referred to in Article 395 but subject to other provisions of this Constitution,
all the laws in force in the territory of India immediately before the commencement of this
Constitution, shall continue in force therein before until altered or repealed or amended by
a competent Legislature or other competent authority."
Before the adoption of the Constitution of India, the British practice that customary
rules of international law are part of the law of the land, applied in India also. This practice
continued even after the adoption of the Constitution by virtue of the provisions of Article
372 until it was altered or repealed or amended by a competent Legislature or other
competent authority .
The Constitution of India did not alter that position for it provided, for the continued operation of
the law in force immediately preceding the commencement of the Constitution. Therefore, on the
analogy of the English Common law, the municipal courts of India have applied the provisions
of the treaties entered into by India if they have been incorporated into municipal law through
legislation, and the well recognised principles of international customary law have been
applied because they are supposed to form part of the law of the land. It is thus the dualist
view of international law which has been commenced by the British and Indian courts, viz.,
that international law can become a part of municipal law only by specific incorporation.

39
Thus, so far as customary rules of international law are concerned, the position prevailing
immediately preceding the commencement of the Constitution continues even after the coming
into force of the Constitution. In India also customary rules of international law are part of the
municipal law provided that they are not inconsistent with any legislative enactment or the
provisions of the Constitution of India. As regards the treaty rules also. India follows more or
less the British dualist view. That is to say, ordinarily, international law can become part of
municipal law of India if it has been specifically incorporated.
In State of Madras v. G.G. Menon, 2 the Supreme Court held
"The Indian Extradition Act, 1903, has been adopted but the Fugitive Offenders Act of the
British Parliament has been left severely alone. The provisions of the Act could only be
made applicable to India by incorporating them with the appropriate changes into an Act of
Indian Parliament and enacting on Indian Fugitive Offenders Act. In the absence of any
legislation on these fines it seems difficult to hold that sections of the Fugitive Offenders Act,
have force in India by the reason of the provisions of Article 372 of the Constitution.
Justice lyer reaffirmed view of H.R. Khanna, J. in
A.D.M. Jabalpurv.v. Shukla. 3which that in case there is no conflict between municipal law
andInternational law or where two constructions of municipal law are possible, Indian Courts
can give effect to International law by giving harmonious construction.

Present Legal Position in India—But the position will be different when there is no
conflict between International Conventions and the domestic law. As pointed out by the
Supreme Court in Vishaka v. State of Rajasthan, 4 in the absence of domestic law
occupying the field to formulate effective measures to check the evil of sexual
harassment of working women at all work places, the contents of International
Conventions and norms are significant for the purpose of interpretation of the guarantee
of gender equality and right to work with human dignity in Articles 14, 15, 19(1)(g) and 21
of the Constitution and the safeguards of sexual harassment implicit therein. Any

2
State of Madras v. G.G. Menon, AIR. 1954 S.C. 517.
3
A.D.M. Jabalpurv.v. Shukla A.I.B. 1976 S.C. 1207.

4
. Vishakha v. State of Rajsthan,AIR 1997 Sc 3011.

40
International Convention not inconsistent with the fundamental rights and in harmony with
its spirit must be read into these provisions to enlarge the meaning and content thereof, to
promote the object of constitutional guarantee. This is implicit from Article 51(c) and the
enabling power of Parliament to enact laws for implementing International Conventions,
and norms by virtue of Article 253 read with Entry 14 of the Union List in the Seventh
Schedule of the Constitution.
In this case, the Apex Court was dealing with the problem of harassment of working
women. Delivering the Judgement of the Three Judge Bench, J. S. Verrna, C II.. observed
that the meaning and content of the fundamental rights guaranteed in the Constitution are
of sufficient amplitude to encompass all the facets of gender equality including prevention
scheme. The Internationat Conventions (especially Convention on the Elimination of All
Forms of Discrimination Against Women) and norms are to be read into them in tile
absence of enacted domestic law occupying the field when there is no inconsistency
between them. It is now an accepted rule of judicial construction that regard must be had
to International Conventions and norms for construing domestic law when there is no
inconsistency between them and there is a void in the domestic law.

Module 4: Subjects of International Law

Topics for study:
1. Meaning and definition of State
2. Kinds of Different States in International Law – Sovereign States, Semi Sovereign
States, Protectorate- Vasssal- Trust Territories
Neutralized States, Holy
3. Individuals as subjects and object of International Law,

41
4. Role of MNCS

1. Meaning and definition of state:

State is the main subject of international law. It is very difficult to define the term
'State', but certain jurists have made their endeavours to this respect.
Salmond : According to Salmond, State is a community of people which has been
established for some objectives such as internal order and external security.
Lawrence : In the view of Lawrence, State is a society which is politically organised and
its members are bound with each other by being under some central authority and most of
the people automatically follow the rules of this central authority.
Oppenheim :As Pointed out by Oppenheim, the existence of State is possible only when
People of State have settled under highest government authority and habitually follow its
orders.
H.L.A Hart: According to Prof. H.L.A. Hart, "The expression 'a State' is .........a way of
referring to two facts : First, that a population inhabiting in a territory live under that
form of ordered government provided by a legal system which its characteristic structure
of Legislature, Courts, and primary rules ; and secondly, that the government enjoys a
vaguely defined degree or independence.
Essential Elements of a State.—According to Article 1 of Montevideo
Convention 1933, "The State as a person of international law should possess the
following qualifications :
(a) A permanent population
(b) A definite territory
(c) A Government and ( Capacity to enter into relations with other States".
Oppenheim has pointed out the following essential elements of a State
(1) Population
(2) A definite territory ,
(3) Government and
(4) Sovereignty.

42
The famous jurist Holland has added one more essential element, namely, to some extent,
'civilization' because of which the State becomes the member of international community.

Functions of States.—Modern period has witnessed revolutionary changes in

regard to functions of a State. Previously there was the conception of a police Stale,
according to which, the essential functions of a State were to maintain internal peace and
order and to defend it from external aggression. It cannot be denied that even today these
are the essential functions of a State but in the present period the conception of State has
undergone significant changes. Instead of the conception of police State, the present
conception is that of a welfare State. That is to say, for the benefit of the people, State
has to perform many social, economic, educational and cultural functions. But these
functions do not come under the category of essential functions. They are in fact
subsidiary functions. Nevertheless these are also the functions of a State in the modern
time and the importance of these functions is constantly increasing.

Kinds of State:
1. Sovereign State:
In the view of jurists, only sovereign States are entitled to be the members of the
Family of Nations. According to Austin, "If a determinate human superior, not in the
habitof obedience to a like superior, receive habitual obedience from the bulk of a
given society, that determinate superior is sovereign in that society, and the society,
(including determinate superior) is a society political and independent'. In relation
between States, Max Huber defines the concept of sovereignty as
"Sovereignty in the relation between States signifies independence.
Independence in regard to a portion of the globe is the right to exercise therein to the
exclusion of any other State, the functions of a State”.
Every sovereign State can exercise the functions of State, to the exclusion of all other
States. In other words, it exercises complete sovereignty within its territories. Since
territories, of a State are circumscribed by its boundaries, it has been rightly said,
'Boundaries are one of the most significant manifestation of State territorial

43
 sovereignty". According to Austin, sovereignty is indivisible and illimitable.

In International law of a good example of the application of the principle sovereignty

is the 'Theory of auto-limitation'. According to the theory, States follow international law
because they have by their consent reduced their powers. This principle is based on the
principle of State sovereignty. The chief exponents of this principle were Anzilotti and
Triepel. It has been pointed out in an earlier chapter that the theory of auto-limitation
suffers from several defects and does not appear to be correct. It has been severely
criticized by many jurists. In the modern period, there have been revolutionary changes in
respect of the theory of sovereignty of States. In the present time it is not proper to say
that State sovereignty is indivisible and illimitable. Ordinarily over one and the same
territory there can be only one sovereign. In practice, however, there can be several
exceptions such as the first and probably the only real exception is the condominium
which existsbetween two or more States exercising sovereignty jointly over a territory,
e.g.,condominium of Austria and Prussia over Schleswig Holstein Lanenburg from 1864
till1866, condominium of Great Britain and Egypt over Sudan from 1898 to 1955 and
condominium of Great Britain and France over the New Hebrides (now the independent
State of Vanuatu) can be cited as example.
(2) Semi- Sovereign State:
One State exercising sovereignty which is, in law vested elsewhere, i.e., where a
territory is administered by a foreign power with the consent of the owner State. For
example, Great Britain exercised sovereignty over Turkish Island from 1878 to 1914.
(3) The third exception is that of giving territory on lease or pledge by the owner
State to a foreign power. For example, in 1998 China leased the district of Kiaochow to
Germany, Wei-Hai-Wei and the land opposite the Island of Hongkong to Great Britain,
Kuang Chouwan to France and Port Arthur to Russia.
(4) Where the use, occupation and control of the territory are granted in perpetuity
by the grantor State to the other State. For example, in 1903 the Republic of Panama
transferred to the United States of America a ten-mile territory for construction,
administration and defence of the Panama Canal.

44
 3) Condominium.—W hen two or more States exercise rights over a territory, it is
called Condominium. "A Condominium exists when over a particular territory joint
dominion is exercised by two or more external powers." 36 New Hebrides is a good
example of a Condominium. Both England and France exercised control and had rights
over the territory of New Hebrides between 1914 and 1980. Thus there is a joint
sovereignty of France and Britain over New Hebrides. Other examples of condominium
are those of Austria and Prussia over Schleswig-Holstein and Lanenburg from 1864 till
1866, of Great Britain and Egypt over Sudan from 1898 to 1955, and of Great Britain and
France over Islands of Canada and Endenbury after 1939. In respect of rivers, gulfs or
bays also sometimes the idea of condominium is used.
(4) Vassal State.—A State which is under the suzerainty of another State is called
a Vassal State. Its independence is so restricted that it has no importance under
international law. As remarked by Starke, 'Vassal State is one which is completely under
the suzerainty of another State. Internationally its independence is so restricted as
scarcely to exist at all .38 In its foreign affairs, the Vassal State possesses no power and
all its foreign policies are governed by the State of which it is a Vassal State.
(5) Protectorate State.—According to Starke, "Although not completely independent, a
Protectorate State may enjoy a sufficient measure of sovereignty to claim jurisdictional
immunity in the territory of another State, If may also still remain a State
under international law."
Often Protectorate Sates entrust matters of foreign policy and the matters regarding
defence to other States. For example, Sikkim was a protectorate State of India before it
was made an associate State of India. Subsequently, it was completely merged in India
and became a State in the Indian Union. Thus it lost all vestige of international
personality and became a constituent unit and a part and parcel of India.
Starke has rightly pointed out, "Protectorates in the strict sense, have for all practical
purposes now disappeared from the international scene.

(6) Holy See or Vatican City:

Holy See or Vatican City is a place where the religious head of Catholic Christians
(Pope) resides. Holy See is smallest sovereign State. In the middle of 19th century, the

45
 rulers of Italy seized the territory of Pope and occupied his capital, Rome. Consequently
Pope went away and settled in his residential place called Vatican City. Since Pope was
religious head, the Government of Italy passed a law in 1871 whereby some guarantee
was given to Pope. The said Act conferred some privileges and immunities upon Pope
more or less equal to those privileges and immunities which are enjoyed by head of the
States. Next important change took place in 1929 when a treaty was concluded between
Pope and the Government of Italy whereby Vatican City comprising of 100 acres of land
was accepted as a State and Pope was conferred upon the rights to enter into diplomatic
relations with other States. Thus by the treaty of 1929, Vatican State assumed the status
of an international person under the international law. The present position of Vatican
City is that it is an international person and possesses all the rights and duties of a
sovereign State. It is a natural State. It is not a member of the United Nations. In short,
Vatican Cityis an international person and is fully independent and sovereign State under
International Law.

(7) Neutral State:

According to Grotius, "It is the duty of those who keep out of war to do nothing whereby
he who supports a wicked cause may be rendered more powerful, or where by the
movements of him who wages an unjust war may be hampered." These duties, however,
did not include the positive obligation to assist actively the state fighting a just war.
Neutral state do not support either party during war. it is generally deemed a temporary
statue and can be terminated by joining either of part at war. Neutralised state is such
state whose independence collectively accepted by big powers thought some agreement.
(8) Trust State:
The State, which is given a mandate or a trust territory, exercises sovereignty over it
although the territory is not its own.
In the present time, States have accepted many restrictions under international -
treaties and in international institution whereby they have impliedly surrendered a part of
their sovereignty. For example, the members of the United Nations and International
Labour Organization, have accepted many obligations because of which their sovereignty
has ceased to be illimitable and indivisible. Thus, "Sovereignty" has a much restricted

46
meaning today than in eighteenth and nineteenth centuries, when, with the emergence of
powerful highly nationalised States, few limits on States autonomy were acknowledged.
At the present time there is hardly a State which in the interests of the International
community, has not accepted restrictions on its liberty of action.
Individuals as subject of International Law:
There are certain jurists who have expressed the view that in the ultimate
analysis of international law it will be evident that only individuals are the subjects of
international law.
The chief exponent of this theory is Prof. Kelsen. Even before Kelsen,
Westlake had remarked, "The duties and rights of the States are only the duties and rights
of men who compose them." 9 Kelsen has analysed the concept of State and expressed
the view that it is a technical legal concept and includes the rules of law applicable on the
persons living in a definite territory. Hence, under international law the duties of the
States are ultimately the duties of the individuals. Truly speaking there is no difference
between international law and State law. In his view, both laws apply on the individuals
and they are for the individuals. He, however, admits that the difference is only this that
the State law applies on individuals 'intermediately' whereas international law applies
upon the individuals 'mediately'.
Criticism.—I's views appear to be logically sound. But so far as the practice
of the States is concerned it is seen that the primary concern of the international law is
with the rights and duties of the States. From time to time certain treaties have been
entered into which have conferred certain rights upon individuals. Although the statute of
the International Court of Justice adheres to the traditional view that only States can be
parties to international proceedings, a number of other international instruments have
recognised the procedural capacity of the individuals. Although, individual possesses a
number of rights under international jaw, his procedural capacity to enforce the
observance of these rights is grossly deficient. In most of the cases claim on his behalf
can be brought only by the State whose national he is and as pointed out by the
Permanent Court of International Justice. "It is an elementary principle of international
law that a State is entitled to protect its subjects when injured by acts contrary to

47
international law committed by another State,from whom they have been unable to obtain
satisfaction through the ordinary channels.
By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own
rights—its right to ensure, in the person of its subjects respect for the rules of
international law" one may, however, still argue that the substantive right belongs to the
individual because the amount of the claim is based on the injury suffered by the
individual and normally the award is given to him. It may, therefore, be concluded that
the extreme view that the individuals alone are the subjects of international law cannot be
accepted.
Individuals are now recognized as subject of international law and they can now
(although in a very few rather negligible cases) even claim rights against States
(including his own) ' but their procedural capacity to enforce their rights is grossly
deficient. In practice, International law for its major part still deals with the rights and
duties of States.
Therefore, it would be absurd to contend that States are not the subjects of international
law. The correct position therefore is that besides States, individuals, public international
organisations and some non-State entities are also the subjects of International law.

Module 5: Recognition of States

1. Meaning and significance of Recognition

48
2. Theories of Recognition- Constitutive Theory, Declaratory Theory, Stimson
Doctrine and Estrada Doctrine
3. Types of Recognition-De-facto and De- Jure
4. Recognition of Insurgency and Belligerency

1. Meaning and significance of Recognition:

Professor G. Schwarzenberger : As aptly remarked by Professor G.
Schwarzenberger, "The growth of international law is best understood as an
expanding process from a nucleus of entities which have accepted each others
negative sovereignty and on the basis of consent, are prepared to maintain and
possibly expand the scope of their legal relations. Like most clubs, the society of
sovereign states is based on the principle of co-option. In exercising this
prerogative the existing subjects of international law employ the device of
recognition.
2. Prof. L. Oppenheim : According to Prof. L. Oppenheim, "In recognising a State
as member of international community, the existing States declare that in their
opinion the new State fulfils the conditions of statehood as required by
International law."
3. Fenwick : Fenwick also subscribes to theview that through recognition the
members of the international community formally acknowledge that the new State
has acquired international personality.
4. The Institute of International Law has defined the term recognition in the
following words it is " the free act by which one or more States acknowledge the
existence of a definite territory of a human society politically organized
independent of any other existing States and capable of observing obligations of
international law by which they manifest through their intention to consider it a
member of international community.
5. According to Kelsen, a community to be recognised as an international person
must fulfill the following conditions:
(1) The community must be politically organised
(2) It should have control over a definite territory ;
(3) This definite control should tend towards permanence ; and

49
 (4) The community thus constituted must be independent.
In short, we may say that through recognition, the recognising State acknowledges that
the recognised State possesses the essential conditions of statehood. However,
international law does not provide as to how these essential conditions are to be
determined. In fact, international law leaves members of international community free to
determine by themselves whether the recognised States contain the essential conditions of
statehood. It is because of this reason that very often recognition is said to be a political
diplomatic function .

Essentials: – The main essentials of recognition may be given as under:

1. That the community ( of new state ) must be politically organized,

2. That it should have control over a definite territory,
3. That the control should tend towards permanency,
That such community must be independent. In other words, the attributes of statehood are
people, territory, Government, and sovereign

Theories of Recognition:
There are two main theories of recognition
(1) Constitutive theory ; and
(2)Declaratory or Evidentiary theory.
(1) Constitutive theory:

According to this theory, recognition clothes the recognized State with rights and duties
under International law. Recognition is a process through which a political community
acquires international personality by becoming a member of family of nations. Hegel,
Anzilloti, Oppenheim, etc are the chief exponents of constitutive theory. In the words of
Professor Opperiheim, "A State is, and becomes, an international person, through,
recognition only and exclusively."

50
"According to the Constitutive theory, statehood and participation in the international
legal order are attained by political group only in so far as they are recognised by
established State."
Holland also supports the Constitutive theory. In his view, recognition, confers maturity
upon State and until and unless a State is recognised, it cannot acquire rights under
international law.
In the view of Judge Lauterpacht, Constitutive theory is in accordance with the practices
of the State and is based on sound legal principles. The practice of States, however,
indicates the contrary. In practice most of the States accept the Declaratory theory. In this
connection, Judge Lauterpacht has remarked that the wide acceptance of Declaratory
theory is due to the reaction against the traditional conception of recognition as a political
act purely and simply. In his view, there is a legal duty on the part of the State to
recognize any community that has in fact acquired the characteristics.
of statehood. the Constitutive theory. The view of Judge
Criticism. —jurists have criticized Lauterpacht that there is legal duty on the part of the
existing States to recognize any community that has in fact acquired the characteristics of
statehood, does not seem to be correct. In practice. State do not accept any such
obligation. "The practice indicates, however, that although established States normally
recognize new States and new governments that in fact exist, they have not consented to
law norms that obligate them to do so." Besides this, the Constitutive theory presents
several other serious difficulties. According to this theory, if a State is not recognized it
can have neither duty nor rights under international law. This is a very absurd suggestion.
If we accept this preposition, it will create difficulties in the case of new State which is
recognized by some States but not recognized by others. The examples of China and
Bangladesh can be cited in this connection. China was not recognized by America and
other Western countries for a number of years although China possessed all the essential
attributes of State. But to assert that China, therefore, did not have rights and duties under
international law would be an absurd proposition. Similarly, Bangladesh was not
recognised for sometime by China, Pakistan, Albania, etc.
However, in support of the Constitutive theory, it must be admitted that once a state
cognized as such by the municipal courts of the is recognized it acquires status and is re

51
recognising state.

2) Declaratory Theory:
According to this theory, statehood or the authority of the new government exists
as such prior to and independently of recognition. Recognition is merely a formal
acknowledgment through which established facts are accepted.
The act of recognition is merely declaratory of an existing fact that a particular State or
government possesses the essential attributes as required under international law. The
chief exponents of this theory are Hall,Wagner, Brierty, Pitt Cobbet and Fisher.
According to Prof. Hall, a State enters into the family of nations as of right when it
has acquired the essential attributes of statehood. Pitt Cobbet has expressed the view that
existence of a State is a matter of fact. In his words, "So long as a political community
possesses in fact the requisites of a statehood, formal recognition would not appear to be
a condition precedent to acquisition of the ordinary rights and obligaitons incident
thereto."
Brierly has also remarked, "the granting of recognition to a new State is not a
'Constitutive' but a 'Declaratory' act. A State may exist without being recognized and if it
exists in fact, then whether or not, it has been formally recognized by other States it has a
right to be treated by them as a State."
Soviet view and practice are also in favour of the declaratory theory of recognition.
According to the Soviet view, birth of a State is the act of internal law rather than that of
International law.
Criticism—This theory has also been subject to criticism. The view that recoginition
is only a declaratory of an existing fact is not completely correct. In fact when a State is
recognized, it is a declaratory act. But the moment it is recognized, there ensue some
legal effects of recognition which may be said to be of constitutive nature.
Conclusion.—On the basis of the above discussion, it may be concluded that recognition
is declaratory as well as constitutive act. "Probably the truth lies somewhere between
these two theories The one or the other theory may be applicable to different sets of facts.
Judge Lauterpatcht has also expressed the view that it is declaratory of
a simple fact of existence of political community after ascertaining facts of statehood in

52
the functional way.
On such declaration of statements, recognitionis constitutive of
certain legal consequences. Svarlien has also subscribed to this view. Prof. Oppenheim
who has been classed among the exponents of constitutive theory, has admitted that
"Recognition is declaratory of an existing fact but constitutive in nature."
In the Ninth Edition of Oppenheim's International Law it has been pointed out that there
is "no settled view whether recognition is the only means through which a new State
becomes part of the international community". On the one hand there is the view that a
new State comes into existence as a matter of fact and becomes a member of international
community irrespective of the fact whether it has been recognised or not. On the other
hand the view is that recognition constitutes the new State as a member of the
international community no State has a duty to recognise a new State and that no new
State has a right to be recognised by other State.
Indeed, "The problem is largely theoretical because state practice is inconclusive and may
be reationalised either way.' Prof. Briggs has rightly remarked, "Juridical theories of
recognition deduced from jurisprudential concepts fail to explain the facts of State
conduct, and inductions from State conduct have failed to provide a juridical
unambiguous theory of recognition."
The exponents of constitutive theory want the institution of recognition to be under a
system of law and that is why, Lauterpacht the chief exponent of constitutive theory,
posits a legal duty on the part of existing States to recognize any community that has in
fact acquired the characteristics of statehood. The act of recognition is thereby defined as
a clearly legal act, with new States having the legal right to be recognised and established
States having the legal duty to recognize them. Similar reasoning is used to posit a legal
duty to recognize new governments that in fact come to power in existing States."
On the other hand, exponents of declaratory theory contend that international personality
does not depend upon recognition. They regard the State as the ultimate source of
international rights and on the other hand, exponents of declaratory theory contend that
international personality does not depend upon recognition.
They regard the State as the ultimate source of international rights and duties. According
to them, there is no legal duty to recognise State even after it has attained Statehood.

53
Thus, according to the declaratory theory, recognition depends upon the discretion or
sweet will of the recognising States. States are, in practice, not prepared to be bound by
any norms in this connection. However as was aptly remarked by an eminent writer Non-
recognition based n political considerations has lost most of its meaning.
It no longer produces all the effects it was meant to in the past ......Since institutions of
international law are but reflex of history, they are produced by it and in turn influence its
further course. That is why in the long turn the institution of recognition will surely be
more and more affected by inevitable trend towards greater mutual understanding and
towards the adoption of principles and criteria reflecting the growing co-operation of
States of different political and economic structure."
3. Estrada Doctrine
This doctrine was propounded by Mr. Estrada, the Foreign Minister of Mexico. In this
doctrine he declared that regarding the establishment of diplomatic relations with other
States, Mexico Government considers itself free to determine it in accordance with the
facts and circumstances of each case. In other words if the Mexico Government
considers that after the change of government in any State through revolution, a
revolutionary government commands the support of the people, it may establish
diplomatic relations with A. This doctrine has been subject to servere criticism because it
disregards the rules of International Law. It encourages the individual appraisal in this
field. However in practice it takes a new way so far as the recognition of new States are
concerned. As pointed out by Philip C. Jessup..........the Estrada doctrine properly
assumes that diplomatic representatives should be considered as accredited to the State
and not to the governmenthis doctrine, therefore, does not seem to be correct aid
needs to be discouraged.
5. Stimson Doctrine
This doctrine was propounded by Mr. Stimson, Secretary of State of the United
States of America. This doctrine is also often called the doctrine of non-recognition.
According to this doctrine if a State grants recognition to another State in violation of
international treaty, such a recognition would not be valid. By international treaty, the
Stimson doctrine mainly meant the Pact of Paris, 1928, or Kellog Briand Pact, through
which the State parties renounced war as an instrument of their national policy. The

54
League Assembly also passed a resolution that any State who violated the Pact of Paris.
1928, would not be granted recognition. The Secretary of the State of the United States of
America prpounded this doctrine,after Japan attacked Manchuria in 1931. In this doctrine
the American Secretary of States declared that any contract or treaty which was contrary
to the Paris Pact of 1928 would not be acceptable. it may be noted here that China, Japan
and America were all parties to the Pans Pact, 1928. Although this doctrine has much to
recommend itself, it is not always followed by the States so far as the grant of recognition
to new State is concerned. States refuse to accept any such obligation and treat
recognition as a political diplomatic function.

Modes of Recognition
Recognition may be of two kinds—De facto and do jure recognition. The practice of
States shows that in first stage the State generally give do facto recognition. Later on,
when they are satisfied that the recognized State is capable of fulfilling international
obligations, they confer do jure recognition on it. That is why, it is sometimes said, do
facto recognition of State is a step towards do jure recognition
De facto Recognition
According to Prof. G. Schwarzenberger, "When a State wants to delay the de jure
recognition of any State, it may, in the first stage grant de facto recognition." The reason
for granting do facto recognition is that it is doubted that the State recognized may be
stable or it may be able and willing to fulfil its obligations under international law.
Besides this, it is also possible that the State recognized may refuse to solve its main
problems.
De facto recognition means that the State recognized possesses the essential elements
of statehood and is fit to be a subject of international law. However, the effects of do jure
recognition are more far-reaching. In the words of Oppenheim, "The de facto recognition
of a State or government takes place when, in the view of the recognising State the new
authority although actually independent and wielding effective power in the territory
under its control, has not acquired sufficient stability or does not yet offer prospects of
complying other requirements of recognition such as, willingness or ability to fulfil
International obligations." In the view of Judg; Lauterpacht, do facto recognition shows

55
that the recognizing State wants to establish its relations with the recognised State
without establishing diplomatic relations. As remarked by Prof. Oppenheim, “De facto
recognition is, in a sense, provisional and liable to be withdrawn if the absent requirement
of recognition fails to materialize”.
In the view of Judge Philip C. Jessup, "Do facto recognition is a term which has been
used without precision when properly used to mean the recognition of the do facto
character of a government, it is objectionable and indeed could be identical with the
practice suggested of extended recognition without resuming diplomatic relations."
2. De jure Recognition
De jure recognition is granted when in the opinion of recognizing State, the
recognized State or its Government possesses all the essential requirements of
statehood, and it is capable of being a member of the international community. As
pointed out by Prof. H.A. Smith, the British practice shows that three conditions
precedent are required for the grant of de lure recognition of a new State or a new
Government. The three conditions are as
(i) A reasonable assurance of stability and permanence
(ii) statehood
As observed by Prof. G. Schwarzenberg, "De juro recognition is by nature
provisional and may be made dependent on conditions with which the new
entity has to comply. It differs from De jure recognition in that there is not yet
formal exchange of diplomatic representatives De jure recognition ......is
complete implying full and normal diplomatic relation." In the words of
Kelsen ;" ......de jure recognition is final, whereas de facto recognition is only
provisional arid thus may be withdrawn."
According to Prof. Oppenheim,so far as the legislative and other internal acts
of the State recognized are concerned, there is hardly any difference between
de facto and do jure recognition . Thus we see that from the point of legal
effect, there is hardly any difference between De jure and do facto recognition
of a State. As a matter of fact, De facto Government enjoys same immunities
from suits as De jure Government. However, diplomatic courtesies and
representations are usually not accorded to de facto government except in

56
 extraordinary circumstances occurring in limes of war. Thus, "The distinction
between De jure and De facto recognition is in essence that the former is the
fullest kind of recognition while the latter is a lesser degree of recognition,
taking account on a provisional basis of present realities."
Recognition of Insurgency:
Insurgency denotes the state of political revolt in a State. Insurgency, presupposes
a civil war .
"Insurgency is used to denote the condition of political revolt in a country
where the rebels have not attained the character of belligerents. Thus insurrection is a
war of citizens against the State for the purposes of obtaining power in the whole or part
It always implies a sustained armed struggle by a group of citizenry against an
established order in fact, insurgency is an intermediate stage between tranquility and
belligerency In the view of Judge Lauterpacht if the State recognizes the insurgents of
another State, it would imply that it would not treat such insurgents as violators of law. It
also implies that such a State wishes to establish relations with such insurgents on a
temporary basis The ettect of insurgency is that it partially internationalises the conflict
In the view of Judge LauterPacth. it is not against international law to recognize insurgent
as a de facto government over the territory under their control. It is merely an
acknowledgment of tact situation for practical purposes.
Essential Conditions:
(1) Control over a considerable part of the territory
(2)Considerable support to the insurgents from the majority of the people living in
the territory and
(3)insurgents should have the capacity and will to carry out the international obligations.
Effects of recognition of insurgency—The recognition of insurgency is less important
than the recognition of belligerents. The following effects ensue from the recognition of
insurgency
(1) They (i.e. insurgents) are not treated as pirates
(2) The rebels of civil strife are treated as hostes generis humani (the public enemy)until
they are recognized as insurgents
(3) The international rules of war become applicable to them.

57
Recognition of belligerency:
When the insurgents are well organized, conduct hostilities according to laws of war
and have a determinate territory under their control they may be recognized as
belligerents whether or not the parent State has already recognized that status." As in
the case of a recognition of a State recognition of belligerency is the question of policy
and not of law. Consequently some States find It convenient to recognise belligerency
and some do not. The policy of State in this regard hinges upon national interest of
recognizing State. The belligerency is in fact the final status of three stages of the
ascending Intents of the conflict which presents a 'violent challenge to the sovereign
authority within a State'. "Recogniton of belligerency is the acknowledgment of a
juridical fact that there exists a state of hostilities between two factions contending for
power or authority.
Essential conditions for the recognition of belligerents
Recognition of belligerency is treated to be an unfriendly act until the following
conditions are present:
(1) The armed conflict is to be of general character;
(2) The insurgents occupy and administer a considerable portion of the national territory.
(3) They conduct hostilities through armed forces under a responsible authority.
Moreover, they conduct hostilities in accordance with the rules of war; and
(4) The hostilities are to be of such magnitude that the foreign States may find it
necessary to define their attitude towards the belligerents and the established government.
Effects of recognition of belligerents.— Following are the effects or consequences of
the recognition of belligerency:
(1) From the date on which the recognition of belligerency is accorded international law
rules governing the conduct of hostilities apply.
(2) The conflict is internationalised and the belligerents get some rights under
International Law.
(3) The relations between the recognized belligerent authorities established government
and the recognising States are governed by International Law rather than Municipal law.

58
MODULE 06 STATE TERRITORY AND STATE SUCCESSION

1. MEANING AND DEFINITION OF STATE TERRITORY

State territory has been defined as portion of globe which is subjected to the sovereignty of a
state. A state without a territory is not possible, although the necessary territory may be very
small, as with Vatican City A wandering tribe, although it has a government and is otherwise
organized, is not a state until it has settled down in a territory of its own. 5 The importance of
state territory is that it is the space with in which the state exercises its supreme and normally
exclusive authority. The exclusive domain of a state with in its territory is basic to the
international system

The words “territorial sovereignty” implies the authority and control exercised by a State
within its boundaries over individuals and property to the exclusion of other States. In the case of
Island of Palmas Arbitration6Max Huber, the Arbitrator described territorial sovereignty in the
following words. “Sovereignty in the relation between States signifies independence.
Independence in regard to a portion of the
globe is the right to exercise therein, to the exclusion of any other State.”
In Western Sahara Case, 7the International Court of Justice gave a landmark opinion
where it pointed out that one of the characteristics of the existence of territorial sovereignty is
State activity on an adequate scale showing conclusively the exercise of authority.
Article 2(4) of the UN Charter requires all members to restrain in their international
relations from the threat or use of force against the territorial independence of any state.It
comprises land territory, territorial waters, national waters and air-space over the territory and
also the subsoil.
According to kelson: “the territory of the state is a space with in which the acts of the state,
and especially its coercive acts are allowed by general international law to be carried out, a space
with in which the acts of a state may legally be performed. 8

5
Oppenheim’s International Law (eds. R. Y. Jennings and A. D. Watts), 9th edn, London, 1992, chapter 5
6
(1928) 22 Am J Int’l L. 875,
7
Advisory Opinion, ICJ Rep 1975, 12.
8
S. P. Sharma, Territorial Acquisition, Disputes and International Law, The Hague, 1997

59
 According to Savarlien: “the territory of a state composed of all the land and water surface
within its boundaries and jurisdiction, all the earth and water below this surface, and all the air
above it.9

Oppenheim has defined the word“State Territory” as “a portion of globe which is subjected
to the sovereignty of a State. AState without territory is not possible, although the necessary
territory may be very smallas with Vatican City. A wandering tribe, although it has a government
and is otherwiseorganized is not a State until it has settled down in a territory of its own”. 10 The
importanceof State territory is that it is the space within which the State exercises its supreme
andnormally exclusive authority

2. TYPES OF ACQUIRING AND LOSING STATE TERRITORY

The five common modes of acquiring territory are occupation, prescription, accretion,
cession and conquest.

2.1. OCCUPATION

Oppenheim has defined the term “occupation” as the act of appropriation by a State by
which it intentionally acquires sovereignty over such territory as it is at the time not under the
sovereignty of any other State. It should be kept in mind that the subject matter of occupation is
terra nullius. Hence the territory which is a subject matter of occupation should not belong to any
State. Thus occupation consists in establishing sovereignty over a territory not under the
authority of any
other State whether newly discovered or an unlikely case abandoned by the State formerly in
control. 11 Merely occupying territory does not amount to occupation because there should be
effective occupation.
To determine whether there is effective occupation of a territory by a State it is necessary
that two essential conditions must be fulfilled. Firstly, possession and secondly, administration.
Once possession is established over a territory, the State possessing the territory must establish
some kind of administration over the said territory.
9
Ibid p. 231
10
Supra Note 1, p. 236
11
N. Hill, Claims to Territory in International Law and Relations, London, 1945

60
 In Eastern Greenland case (Denmark Vs Norway),12It was in clear cut terms held by
the Permanent Court of International Justice that foroccupation of a territory, the occupying State
must fulfill two conditions:
1. An intention or will to act as sovereign
2. Adequate exercise of display of sovereignty
The intention of the State occupying the territory to act as sovereign is ascertained from
the underlying circumstances. The intention must be to assume permanent control of the
occupied territory. To make the occupation look real and as a consequence to transform the
inchoate title of the occupying State into a perfect title it is important that the second condition
also be fulfilled by the occupying State’s legislative or executive measures affecting the
occupied territory i.e. signing treaties with other States concerning sovereignty of the said
territory and the fixing of the boundaries in respect of that territory.
In another case i.e. the Island of Palmas (United States Vs Netherlands), 13The dispute
wasbetween United States and the Netherlands wherein the United States claimedsovereignty
over the island on the basis of a treaty which it signed with Spain in theyear 1898. Netherlands
contented that it was in possession of the island over a longperiod and also established
sovereignty over the island. Spain at no point of time hadoccupied the island although it had
discovered the island and since its title wasdefective, it had no right to transfer the island to the
United States.
However, both theStates decided to refer the matter to arbitration. Arbitrator Huber ruled
that a mere actof discovery by one State is not sufficient to confer a title by occupation and gave
thedecision in favour of Netherlands on the ground that Netherlands not only exercised a long,
continuous and effective authority over the island but also established contacts with the
inhabitants of the island.
2.2. PRESCRIPTION
Another method of acquiring territory is prescription. Where a State establishes
occupation and exercise control over a certain territory for a long duration of time, it is deemed

12
1933 PCIJ [(Ser. A/B) No. 53].
13
2 UN Rep Int’l Arb Awards 829 (1928): (1928) 22 Am J Int’l L 875.

61
that the State exercises de-facto sovereignty over the territory then as a consequence the said
territory becomes a part of the territory of that State. 14
In the words of J.G. Starke “Title by prescription i.e. acquisitive prescription is the result
of the peaceable exercise of de-facto sovereignty for a long period over a territory subject to
thesovereignty of another and this may be as the consequence of immemorial exercise of
suchsovereignty (i.e., for such period of time as in effect to extinguish memories of the
exerciseof sovereignty by a predecessor) or as the result of lengthy adverse possession only”.15 A
State may acquire territory by prescription only when some conditions are satisfied such as:
1. A State may acquire some territory by prescription only when it has not accepted the
sovereignty of any other State over the said territory.
2. Possession must be peaceful and uninterrupted.
3. Possession should be in public.
4. Possession should be for a definite period of time.
Some jurists are of the opinion that international law does not recognize the acquisition of
territory through prescription but, another section of jurists are of the opinion that some
precedents exist in international law, precedents such as the case of Island of Palmas Arbitration.
2.3. ACCRETION
Accretion is the name given for the increase or decrease of land through new formations.
Title by accretion occurs when new territory is added mainly through natural causes or calamities
(such as earthquakes, volcanic eruptions, tsunami or even flash floods in international rivers), to
territory already under the sovereignty of the acquiring State. In all such cases there is no need
for any formal act or assertion of title. For instance, an island may rise within the territorial
waters of a State then the State ipso facto acquires sovereignty over the new formation. 16
It is a customary rule of international law that any enlargement or expansion of territory
of a State as a result of new formations, the State takes it ipso facto through accretion without the
State concerned taking any special step for the purpose of extending its sovereignty.

14
Supra Note 7, p. 136
15
J.G. Strake, Introduction to International Law, (10th Ed. 1994), p. 232
16
Ibid p. 244

62
2.4. CESSION
Through cession also territory may be acquired. Cession of State territory is the transfer
of sovereignty over State territory by the State which owns the territory to another State. The
cession of a territory may be voluntary it may be made under compulsion as a result of war
fought successfully by the State to which the territory is to be ceded. Cession is affected through
a treaty or agreement between the ceding State and the acquiring State. However, such treaties or
agreements could be a result of peaceful negotiations or war. Cession is considered valid only
when sovereignty of a territory is transferred to another State.
In the case of In re Berubari Union and Exchange of Enclaves 17The Supreme Court of
India observed: “…it is an essential attribute of sovereigntythat a sovereign State can acquire
foreign territory and can, in case of necessity, cede apart of its territory in favour of a sovereign
State and this can be done in exercise of itstreaty making power. Cession of national territory in
law amounts to transfer ofsovereignty over the said territory by the owner State in favour of
another State…. Thispower, it may be added, is of course subject to the limitations which the
constitution of theState may either expressly or by implication impose in that behalf.”
A similar view was taken by the Supreme Court of India i.e. cession indisputably
involves transfer of sovereignty from one sovereign State to another, in the case of Union of
India v.Sudhansu Mozumdar,18
In another case i.e. Sugandha Roy v. Union of India,19the Calcutta High Court had to
determine the question whether giving of Teen Bigha (Zameen) to Bangladesh on lease in
perpetuity under agreements between India and Bangladesh of 1974 and 1982 amounted to
cession of territory. The Calcutta High Court held: “the implementation of these two agreements
would not involve cession of anyterritory to Bangladesh in respect of Teen Bigha. There is no
question of transfer ofsovereignty, wholly or partially, in respect of the said area. What has
merely been done isto enable the Government of Bangladesh and its nationals to exercise certain
rights inrespect of the said area which otherwise they would not have been able to enjoy”

17
AIR 1960 SC845
18
(1971) 3 SCC 265: AIR 1971 SC 1594.
19
(AIR 1983 Cal 468)

63
2.5. DISMEMBERMENT

The dismemberment of a state takes place when its territory becomes the territory of two
or more new states. Consequently, the predecessor state ceases to exist and the newly formed
States are regarded as its successors (Art.18 of Vienna Convention)

2.6. RETROCESSION

It is a process through which certain territories are returned peacefully to its original State
by executing special agreement. The People's Republic of China and Great Britain have set a
precedent in negotiating the peaceful return of Hong Kong's sovereignty and administration to
China. 20 The Joint Declaration on Hong Kong establishes the legal framework for continued
prosperity and stability in Hong Kong to the year 2047 under Chinese leadership.

The Joint Declaration states:

The Hong Kong Special Administrative Region Government shall maintain the rights and
freedoms as provided for by the laws previously in force in Hong Kong, including freedom of
speech, of the press, of correspondence, of travel, of movement, of strike, of demonstration, of
choice of occupation, of academic research, of belief, inviolability of the home, the freedom to
marry and the right to raise a family freely. 21

3. MEANING AND CONCEPT OF STATE SUCCESSION

The concept of State succession has its origin in the Roman legal system and was made a
part of international law by Hugo Grotius. Under the Roman legal system when an individual
dies his rights and duties are succeeded to by his successors or legal heirs. This principle was
applied by Grotius in International Law as well. 22
Succession of states means the replacement of one state by another in the responsibility
for the international relations of territory. There is a succession of states where the territory of
one state passes from its supremacy to that of another. The state the territory of which passes to
another state, or the sate which has been replaced by another state on the occurrence of a

20
R. Y. Jennings, The Acquisition of Territory in International Law, Manchester, 1963
21
D. P. O’Connell, State Succession in Municipal Law and International Law, Cambridge, 2 vols., 1967
22
K. Zemanek, ‘State Succession after Decolonisation’, 116 HR, 1965, p. 180

64
succession of states, is termed as the predecessor state.23While the succeeding state, or the state
which has replaced another state on the occurrence of a succession of states, is called the
successor state.

OPPENHEIM: A succession of International person occurs when one or more international

person take the place of another international person, in consequences of certain changes in the
latter’s condition. 24

STARKE: transmission of rights and obligations from States which have altered or lost their
identity to other state or entities, such alteration or loss of identity occurring Primarily when
complete or partial changes of sovereignty take place over portions of territory. 25

VIENNA CONVENTION ON SUCCESSION OF STATES, 1983 (ART. 2): The

replacement of one state by another in the responsibility for the international relations of
territory.State Succession occurs through Universal Succession and Partial Succession.

According to O’Connell, “If the legal identity of a community is completely destroyed there
issaid to be a ‘total succession’ of States. If the territory is lost while personality and
legalresponsibility remain untouched, the process is described as ‘partial succession’. This does
notimply a total or partial succession respectively to the legal relation of the previous
sovereign,but is merely an abbreviated way of defining the extent of the change.”26

3.1. DIFFERENCE BETWEEN STATE SUCCESSION AND SUCCESSION TO

GIVERNMENTS

A succession of government occurs, when the government of a state is replaced with a

new one. State succession occurs when sate ceases to exist or a new state is formed within the
territory of an existing State or a territory is transferred from one state to another state.

23
Oppenheim’s International Law (eds. R. Y. Jennings and A. D. Watts), 9th edn, London, 1992, p. 208
24
Ibid p. 218
25
Ibid p. 228
26
Supra Note 17, p. 116

65
 According to Edward Collins “A succession of government occurs when the government
of a State is replaced with a new one. State succession occurs when a State ceases to exist or a
new State is formed within the territory of an existing State or territory is transferred from one
State to another State. When a succession situation arises, the point of chief legal interest is the
effect, if any, on the rights and obligations of the State or States concerned.” 27

4. CONSEQUENCES OF STATE SUCCESSION

4.1. TREATIES

Vienna Convention on Succession of States in Respect of Treaties was adopted on 23 rd

August 1978 it came into force on Nov.6 1996. As per this convention clean state rule has been
followed and due recognition has been given to the consent of states.According to clean state
rule, a newly independent state is unencumbered by the obligations and commitments of the
predecessor state.It has full freedom to continue or discontinue the treaties. 28

The traditional doctrine of state succession in respect of treaties has been rejected bythe
large number of newly independent states. These newly independent states haverelied upon the
rules of "moving treaty frontiers" and "clean slate". These rules are notsimply reactions against
the inheritance treaties and devolution agreements but werenecessitated by the changing times
and circumstances. 29Clean Slate rule lays down thatwhen a State succeeds over the territory of
another state, it wipes of all the obligationsof the earlier state arising from the treaties signed by
the extinct State and start afresh.

The rule of moving treaty frontiers lays down that when a State succeeds over theterritory
of another state, it claims membership to multilateral treaties which have beensigned by the
extinct state on the basis of prior nexus of the extinct state with suchtreaties.

27
Ibid p. 144
28
International Law Association, The Effect of Independence on Treaties, London, 1965
29
O. Udokang, Succession of New States to International Treaties, New York, 1972

66
4.2. MEMBERSHIP OF INT. ORGANIZATION

It is settled that membership of International Organizations and the obligations incidental

thereto do not pass to a successor State.India continued to be a member of the United nations,
and Pakistan was subsequently admitted to membership as a new State on September 30,
1947.30The question of succession regarding membership of the United Nations came up after
the partition of India and Pakistan. India was originally a member of the United Nations. After
partition, Pakistan claimed that since it was part of India, it should get themembership of the
United Nations in succession automatically.

The General Assembly ofthe United Nations rejected this claim of Pakistan and stated
that it can become themember of the United Nations only after it is admitted in accordance with
the provisions ofthe Charter by applying for the membership. A State is admitted as a member of
UnitedNations by the decisions of the General Assembly by two third majority of the
memberspresent and voting on the recommendation of the Security Council. 31 Thus, the principle
ofsuccession does not apply in case of membership to the United Nations.

4.3. PUBIC PROPERTY

The Vienna Convention of 7th April, 1983, on State Succession in respect of State
Property, Achieves and Debts enumerates provisions as to the passing of State property to the
successor state. The successor state takes all the public and proprietary rights of the predecessor
state. Such as, State Property, State railways and fiscal funds. It also takes all the assets of
predecessor state, including such assets as state funds, funds invested abroad, movable and
immovable property. It also acquires the right to collect taxes due to the predecessor state. It also
acquires the right to collect taxes due to the predecessor state. The successor state in general,
takes over the predecessor’s State property without compensation When part of the territory of a
state is transferred to another state, in the absence of any agreement, immovable property situate
in the territory taken over by the successor State is to pass to it.

30
Gurdip Singh, International Law (2nd ed., 2011)
31
UN, Materials on Succession of States in Matters Other than Treaties, New York, 1978

67
4.4. PUBIC DEBT

There is a controversy in regard to the succession of public debts. Jurists are of the view
that it depends upon the discretion of the succeeding state whether to pay the public debts of the
predecessor state. The succeeding states in such cases gives due regard to the purpose of the debt
i.e. whether they are taken for the financing of wars or other hostile undertaking against the
successor state. Part IV of the Vienna Convention on State Property, Archive and Debts, 1983
deals with state debts32

Art. 36 –Succession does not affect the rights and obligations of creditors. When the
successor state is newly independent state, no state debt shall pass to the new state, unless an
agreement between the two states provides otherwise.

Art. 40- in case of separation of part of the territory of state debt of predecessor state
should pass to the successor state in an equitable proportion.

4.5. CONTRACTS
A Majority of the jurists are of the view that the succeeding state shall be bound by the
contracts entered into by the extinct state. But, in the West Rand Central Gold MiningCo Ltd
v. King,33 the King's Bench of England ruled just the reverse. In this case, the court ruled that the
succeeding state is entitled to decide whether it would accept the financial obligations of the
former state. In the instant case, West Rand Central Gold Mining Co. Ltd., was registered in
England.
It was engaged in digging gold mines in Transvaal, South Africa. In 1899, two parcels
containing, gold was seized by the officers of the South African state and according to the law
prevailing at the time, it was the responsibility of the South African State to return the parcels of
gold or equivalent money in place of the parcels. Subsequently war broke out between Britain
and the state of South Africa and the latter was annexed by Britain in October 1899.34
West Rand Central Gold mining Co Ltd, filed a petition to claim the parcels of gold on
the ground that after conquering the South African State, the obligations of the State of South

32
Ibid p. 311
33
(1905) 2 KB 391
34
Supra Note 28, p. 335

68
Africa automatically became the obligations of Britain. It was, therefore, argued that the British
government was liable to return either the parcels of gold or pay its value in money.
The court rejected the Private contractual obligations of the conquered state. International
law does not impose any obligations upon the conquering state to fulfil the obligations of the
conquered state. The court further observed that ‘Acts of State’ are beyond the jurisdiction of
municipal Courts. Conquest of the state of South Africa being an ‘act of State’ the appellant
company will not have any relief in a municipal court.

4.6. TORTS

The succeeding states are under no liability for the torts of the predecessor state This was
held in Robert E. Brown’s claim (1923)35 Robert E Brown was an American Citizen, in 1894
he went to south Africa and started the work of digging gold mines. After some time the head of
the state of South Africa declared that in the eastern part of that area, State would undertake the
work. Robert Brown submitted an application of Licence for carrying on digging of goldmines
but it was rejected. Later on the Government withdrew its earliaer order for carrying on digging
of goldmines. Robert brown filed suit in 1895 for recovery of compesnation.

But the case could no proceed because in the men time Great Britain conquered South
Africa and incorporated it in its Empire. The Government of America contended that her citizen
Mr, Brown had been authorized to carry on digging of goldmines but this right subsequently
snatched from him before South Africa was annexed by Britain. It was agreed to refer this
dispute arbitrators. The arbitrators had to decide mainly two questions.

1. whether South Africa refused to do justice to Robert E. Brown? And

2. if justice was denied to him, whether the succeeding state of South Africa would be
responsible for the loss and damages.

In other words, whether Britain was liable to pay compensation?

35
Supra Note 29, p. 211

69
 In reply to the first question, the arbitrators held that justice was denied to Robert E. Brown
because if the case had, proceeded, South Africa would have been liable to pay damages.

In reply to the second question refereed to them, the arbitrators decided that the peace
agreement under which South Africa surrendered Great Britain, Britain did not undertake the
liability for tortscommitted by South Africa, hence Britain was not liable. But if the former state
had accepted or had decided to pay the compensation, then the succeeding State should pay the
damages for torts

4.7. ARCHIVES

Art. 25 of Vienna Convention on State Property, Archive and Debts, 1983 lays special
emphasis on preserving the integral character of grounds of State Archives of the predecessor
State. It provides that the passing of or appropriate reproduction of State archives of the
predecessor state to a newly independent successor state should be determined in such a way
that, Each of those states can benefit as widely and equitably as possible from those achieves.
Bilateral agreements between the two states should not infringe the right of the peoples of those
states to development, to information about their history, and to their cultural heritage,

5. THEORIES OF STATE SUCCESSION

5.1. NEGATIVE SUCCESSION

Since the universal succession theory did not take into account the existing facts of
international practice, negative theories were developed during the latter half of the nineteenth
century and early part of the twentieth century. According to these theories “the Sovereignty of
the predecessor state over the absorbed territory is abandoned. 36 The successor state does not
exercise its jurisdiction over the territory in virtue of a transfer of power from its predecessor, but
solely because it has acquired the possibility of expanding its own sovereignty in the manner
dictated by its own will. None of incidences of the sovereignty passes to the successor state. The
latter seizes what it can and repudiates what it will.

36
M. Craven, ‘The Problem of State Succession and the Identity of States under International Law’, 9 EJIL, 1998, p.
142

70
5.2. THE UNIVERSAL SUCCESSION THEORY

According to this theory upon change of sovereignty over a given territory, the new
soverign i.e. successor state succeeds all the rights and obligations of the predecessor state in
37
relation to the territory affected by such change, without exceptions and modifications. This
theory says that all the rights and obligations of predecessor state pass to successor state upon
change of sovereignty.

5.3. NYERERE DOCTRINE OF STATE SUCCESSION

Julius Nyerere, the first President of Tanzania, considered that international agreements
dating from colonial times should be renegotiated when a State becomes independent, as the
nation should not be bound by something that the nation was not in a sovereign position to agree
to at that time. According to this doctrine, a newly independent State can – upon independence –
review the international treaties that it stands to inherit and decide which of the agreements it
will accept and which it will repudiate. 38 Although such an “optional” approach to events of
State succession was not new and was already recognized by customary international law,

Nyerere is recognized for the modern formulation of the optional doctrine of the law of
State succession. It is worth mentioning that this doctrine came to existence after Nyerere (the
Prime Minister of newly independent Tanganyika) made a unilateral declaration to the Acting
general Secretary of the UN in 1961. Nyerere doctrine is advantageous in several ways;
such as it allows states to fill the void created by the lapse of predecessor’s treaties while
maintaining the right to examine each treaty individually before deciding whether to maintain
such legal obligations.

With the above advantage, Nyerere doctrine is also important as it rectifies the
aforementioned shortcomings with regards to negative succession or clean-slate
doctrine. 39 Unlike the clean-slate doctrine under which a new State starts without any of the
obligations of the predecessor State, Nyerere doctrine of succession however, does not rule out

37
Yearbook of the ILC, 1962, vol. II, pp. 101–3.
38
O’Connell, State Succession, vol. II, pp. 155–7
39
Ibid p. 176

71
or prejudice the possibility or desirability of renewal (after a legal interruption during the
succession) of commitments or agreements of mutual interest to the parties concerned..

6. CONCLUSION
Succession is a concept that has been taken from traditional rules of international law and
denotes a transmission of rights and obligations of one state to another, in consequence of
occupying territory or has changed or lost its identity to the other state or entity.

72
MODULE 07 STATE JURISDICTION

1. TERRITORIAL JURISDICTION
Power of the state under international law to regulate or otherwise impact upon people,
property and circumstances and reflects the basic principles of state sovereignty, equality of
states and non-interference in domestic affairs. Each state has its own territorial Jurisdiction over
its people property etc. each state is sovereign in its territories. it can make civil or criminal law
for its people. it is called as territorial Jurisdiction of a state or protective Jurisdiction. 40 State
Jurisdiction is the power of a state under international law to govern persons and property by its
municipal law, it includes both the power to prescribe rules prescriptive Jurisdiction and power
to enforce them enforcement Jurisdiction41

2. CIVIL JURISDICTION

The municipal courts apply private international law in those cases where foreign element
is involved. “Substantial Connection” between foreign elements and forum either by allegiance
or by domicile is necessary absence of such connection leads to international responsibility of
state.42

3. CRIMINIL JURISDICTION

In criminal matters also, “the substantial connection” between the alleged offender or the
offence with the state exercising jurisdiction is necessary. The state practice discloses four
general principles on the basis of which states generally claim penal jurisdiction. First, territorial
principle determines jurisdiction by reference to place where the offence is committed. Second,
the nationality principles which determines jurisdiction by reference to nationality either of the
people committing the offence even with respect to events occurring entirely abroad or with
reference to the nationality of the person injured by the offence. Third, the protective principle

40
M. Akehurst, ‘Jurisdiction in International Law’, 46 BYIL, 1972–3, p. 145
41
F. A. Mann, ‘The Doctrine of Jurisdiction in International Law’, 111 HR, 1964, p. 1
42
M. Hirst, Jurisdiction and the Ambit of the Criminal Law, Oxford, 2003

73
refers to jurisdiction according to national interest of the state. Fourth, the universality principle
provides jurisdiction by reference to the nature of crime. E.g. piracy. 43

4. UNIVERSAL JURISDICTION

The term “universal jurisdiction” refers to the idea that a national court may prosecute
individuals for serious crimes against international law such as crimes against humanity, war
crimes, genocide, and torture based on the principle that such crimes harm the international
community or international order itself. 44 Generally, universal jurisdiction is invoked when other,
traditional bases of criminal jurisdiction are not available, for example: the defendant is not a
national of the State, the defendant did not commit a crime in that State’s territory or against its
nationals, or the State’s own national interests are not adversely affected.45 National courts can
exercise universal jurisdiction when the State has adopted legislation recognizing the relevant
crimes and authorizing their prosecution. Sometimes this national legislation is mandated by
international agreements, such as the Convention against Torture and Inter-American
Convention to Prevent and Punish Torture, which require States parties to adopt the laws
necessary to prosecute or extradite any person accused of torture who is within the State party’s
territorial jurisdiction.46

A national or international court’s authority to prosecute individuals for international

crimes committed in other territories depends on both the domestic legal framework and the facts
of each particular case.

5. STATE JURISDICTION AND STATE TERRITORY

For the purpose of exercising State Jurisdiction customary international law recognizes
the state territory as follows

43
Ibid, p.226
44
L. Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives, Oxford, 2002
45
Ibid, p.22
46
Ibid, p.43

74
5.1. LAND TERRITORY

It consists of land within its boundaries. A boundary is a line on the surface of the earth
which separates the territory of one state from that of other or from un appropriated territory.
Boundaries may be of two kinds, Natural boundaries, such as rivers, arrange of rocks or
mountains, deserts or forest and Artificial boundaries, which are constructed for the purpose of
dividing territories.47 They may consist of walls pillars, poles and trenches etc. Boundaries may
be demarked either by the States concerned themselves or by the international agencies.
Demarcation of Boundary in 199l between Iraq and Kuwait by iraq-kuwait Boundary
Demarcation Commission set up by the Security Council of the UN.48

5.2. NATIONAL WATERS

It includes waters in its rivers together with their mouths, canals, ports, harbors and in some
of its gulfs and bays it was also referred as internal water. Rivers are of four kinds. Those who
flow from its source to its mouth, within the boundaries of one and the same state called as
national rivers. Rivers which separate two different states from each other called as Boundary
Rivers. Rivers which runs successively through two or more states and therefore called as
multilateral or plurilateral or non-national rivers. 49 They are owned by one or more states.
Fourthly that plurilateral river which are navigable from the open sea and which, though
belonging to the territories of the different states concerned, are nevertheless named international
rivers.50 For such rivers there is a rule of international law that a state cannot alter the natural
flow of the river .

5.3. TERRITORIAL SEA

As per United Nations convention on the law of sea 1982 territorial sea is a belt of coastal
waters extending at most 12 nautical miles 22.2 kilometers from the baseline of a costal state, it
is regarded as a sovereign territory of a state, although foreign ships are allowed innocent

47
N. Hill, Claims to Territory in International Law and Relations, London, 1945
48
Ibid, p.122
49
Brown, International Law of the Sea, vol. I, chapter 5
50
O’Connell, International Law of the Sea, vol. I, chapter 9

75
passage through it. 51 This sovereignty also extends to the airspace over and seabed below.
Adjustment of these boundaries is called as maritime delimitation. If it overlaps with other states
territorial sea the border is taken as the median point between the states baseline. Unless a state
in question agree otherwise. A state can also choose to claim a smaller territorial sea. 52

5.4. THE CONTIGUOUS ZONE

The contiguous zone is a band of water extending further from the outer edge of the
territorial sea to up to 24 nautical miles 44.4 kilometers from the baseline, within which a state
can exert limited control to prevent and punish infringements of its customs, fiscal, immigration,
and sanitary law with in its territory or territorial sea53

5.5. EXCLUSIVE ECONOMIC ZONE

An exclusive economic zone is a sea zone prescribed by the 1982 United Nations
Convention on the law of Sea over which a state has special rights regarding the exploration and
use of marine resources, including energy production from water and wind. From baseline to two
hundred nautical miles [three seventy kilometers from its cost]54

The difference between the territorial sea and the exclusive economic zone is that the first
confers full sovereignty over the waters, whereas the second is merely a sovereign right which
refers to the sea. The surface waters are international waters. The law relating to this is codified
by the United Nations convention on the Territorial Sea and Contiguous Zone, 1958. 55 The
difference between the territorial sea and the exclusive economic zone is that the first confers full
sovereignty over the waters, whereas the second is merely a sovereign right which refers to the
sea. The surface waters are international waters. The law relating to this is codified by the United
Nations convention on the Territorial Sea and Contiguous Zone, 1958, which came into force
from Ten Sep 1964. The Parliament of India al so enacted an act named as Territorial Waters,

51
Churchill and Lowe, Law of the Sea, pp. 65
52
Article 5(1) of the 1958 Convention on the Territorial Sea and article 8(1) of the 1982 Convention.
53
W. M. Reisman and G. S. Westerman, Straight Baselines in International Maritime Boundary Delimitation, New
York, 1992
54
J. A. Roach and R. W. Smith, United States Responses to Excessive Maritime Claims, 2nd edn, The Hague, 1996
55
Ibid, p.22

76
Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1970 to implement
this convention and convention on law relating to Sea. 56

5.6. AIR AND OUTER SPACE

1.6.1. AIR SPACE

Air space means all space in which man made instruments- air crafts weather controlled or
not, can be in operation at any given time. There were five theories in connection with the
questions of the sovereignty of a state over the superjacent air space. The subjacent territorial
state has absolute sovereignty over the whole space of atmosphere above its territory to unlimited
height.57 The air space is absolutely free and open being analogous to high seas. The territorial
sovereignty of subjacent state extends only up to a particular height of the air space. The
remaining part of the airspace is free and open. A subjacent state has a right to impose
regulations, to protect its interest, on passing foreign aircrafts even above the air belt though such
air space beyond the belt is not subject to sovereignty of the state58

The sovereignty of the subjacent state extends to the unlimited air space but the other State
has a servitude or right of innocent passage for their civil aircrafts. After the outbreak of First
World War the question of sovereignty over air space underwent a radical change. The only
theory that was universally accepted was the first theory, which conceded sovereignty to an
unlimited height over the subjacent air space. 59

In 1919, the conference of Paris adopted the convention for the regulation of aerial
Navigation. This convention accepted the following four broad principles.60

 The subjacent state has absolute sovereignty over its air space in peace time,

56
Shilpa Jain: Introduction to Public International Law (EBC 2016)
57
C. Q. Christol, The Modern International Law of Outer Space, New York, 1982
58
S. Gorove, ‘International Space Law in Perspective’, 181 HR, 1983, p. 349
59
B. Cheng, ‘The 1967 Space Treaty’, Journal de Droit International, 1968, p. 532
60
Cheng, ‘The Legal Status of Outer Space’, Journal of Space Law, 1983, p. 89

77
  Freedom of innocent passage is to be accepted to aircrafts of the parties to the
convention, but regular international Airlines have no such right unless the
subjacent territory gives its consent.
 No aircraft is to be registered in a country unless it belongs only to the nationals
of that country
 No aircrafts can be registered in more than one country

Chicago Conference, 1944, 61 certain freedoms were granted to airlines of each state,
modern state use to establish closed air space for security purpose. Air defense identification
zones reserved for the aircrafts of subjacent state only called as ‘Air corridors’

Euro-control an International agency for common air traffic control service for upper air
space established by six states in western Europe including UK. 62

1.6.2. OUTER SPACE

According to NASA outer space to be the area beyond fifty miles about eighty Kilometers
above sea level, outer space is the area beyond the Karman line, which is about sixty two miles
above sea level63 According to scientist the inner boundary of outer space is 100+ 10 Kilometer
above sea level. The boundary between air and outer space is generally accepted as above 100
Kilometer because space craft cannot descend below this height, and aircraft cannot climb at
these altitudes. 64 There is no definition given by the United Nations as to where outer space
begins.

1.6.3. LAW RELATING TO OUTER SPACE

The initial phase of development started in 1957, when the Soviet Union launched its first
satellite (Sputnik). On 13th December, 1958, the GA of the UN passed a resolution, recognizing
"the common interest of mankind in outer space" and "that it is the common aim that outer space

61
V.K. Ahuja, Public International Law (Lexis Nexus 2016)
62
Cheng, ‘The UN and the Development of International Law Relating to Outer Space’, 16 Thesaurus Acroasium,
Thessaloniki, 1990, p. 49,
63
Shaw, M. N. (1997). International Law. Cambridge University Press.
64
S.K. Verma: An introduction to Public International Law ( Prentice Hall 1998)

78
should be used for peaceful purposes only."65 "Declaration of Legal Principles Governing the
Activities of States in the Exploration and use of Outer Space" was unanimously adopted by the
General Assembly 13th December, 1963

The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of
Objects Launched into Outer Space, 1967

1.6.3.1. THE OUTER SPACE TREATY, 1967

Outer space, which includes the moon and other celestial bodies, shall be free for exploration
by all States without any discrimination. There shall be freedom of scientific research. Outer
space is not subject to national appropriation by claim of sovereignty, by means of occupation, or
by a other means. State parties to the treaty undertake not to place in orbit around the earth
objects carrying nuclear weapons or weapons of mass destruction, install such weapons on
celestial bodies or station such weapons in outer space. 66

The moon and other celestial bodies shall be used by all States parties to the treaty
exclusively for peaceful purposes. State parties to the treaty shall treat astronauts as envoys of
mankind in outer space, provide all possible assistance in the event of accident, distress or
emergency landing on the territory of another State Party or on the high seas. When astronauts
make such a landing they shall be safely and promptly returned to the state of registry of their
space vehicle. The establishment of military bases, installations and fortifications, the testing of
any type of weapon, conducting of military exercises on celestial bodies shall be forbidden. State
Parties to the Treaty shall bear international responsibility for national activities in outer space. 67

Each State Party to the Treaty that launches or procures the launching of an object in
outer space, the moon and other celestial bodies and each State Party from whose territory or
facility an object is launched, is internationally liable for damage to another state party by such
object or its component parts on the earth, in air space or in outer space. A State Party which

65
N. Matte, Treatise on Air– Aeronautical Law, Montreal, 1981, chapters 4 and 5
66
Ibid p. 31
67
Cheng, ‘The Moon Treaty’, 33 Current Legal Problems, 1980, p. 213

79
launches an object in outer space shall retain jurisdiction and control over such object and
personnel while in outer space including celestial bodies. 68

 The Convention on International Liability for Damage caused by Space Objects -1971
 The Convention on Registration of Objects Launched into Outer space – 1974
 The Agreement Governing the Activities of States on the Moon and other Celestial
Bodies – 1979
 Vienna Convention on the Exploration and Peaceful Uses of Outer-space (UNISPACE II)
AND (UNISPACE III)

6. THE EXTRA-TERRITORIAL JURISDICTION

The ‘extra-territorial operation’ constitute of two key words, ‘extra-territorial’ and

‘operation’. The term extra-territorial connotes the exercise of jurisdiction, or legal power,
outside territorial borders. The Constitution of India authorizes the Parliament to legislate with
extra-territorial operation of law. 69

The concept of ‘extra-territorial operation of law’ is an extension as well as a contradiction to

the concept of sovereignty and refers to the application of the laws of one country to persons,
conduct, or relationships outside of that country. 70 The very first line of the preamble of the
Constitution of India declares that India is a Sovereign country. Chapter-1 of the Part XI of the
Constitution of India provides distribution of legislative powers. Article 245 provides for the
extent of laws made by Parliament and by legislatures of States subject to the provisions of the
Constitution. The Parliament makes laws for the whole or any part of the territory of India, and
the legislature of a State may make laws for the whole or any part of State. Clause 2 of article
245 provides that no law made by Parliament shall be deemed to be invalid on the ground that it
would have extra-territorial operation.71

68
Ibid p. 45
69
Gurdip Singh, International Law (2nd ed., 2011)
70
Ibid p. 66
71
Ibid p. 78

80
 The Legislature of State has no power to legislate on the matter of extra-territorial law.
Following legislations enacted by Parliament contains a Provisions having extra-territorial
operation.

 Indian Penal Code 1908 (Section 3 and 4)

 Code of Criminal Procedure 1973 (Section 188)
 Hindu Marriage Act 1955 Section 1(2) and 19
 Income Tax Act, 1961 Section 9 (1)
 Information Technology Act, 2000 Section 1(2) and 75
 Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services)
Act, 2016 Section 2(1)

7. JURISDICTION BASED ON NATIONALITY

Nationality is the principal link between an Individual a d International Law. Nationality
is often determined by State laws. Under International law, nationality has often been used as a
justification for the intervention of a Government to protect another country. It may, however, be
noted that international law does not create a correlative right in favor of the individuals. It
creates rights only in favor of the states whose nationals they are. As pointed out by Starke, the
laws relating to nationality have following importance under International Law. 72
 The protection of rights of Diplomatic agents
 Responsibility of state for harmful acts committed by its nationals against other state
 Loyalty towards particular state
 Compelled to do military services for the state
 State can refuse to extradite its own nationals
 During war enemy character is determined by nationality.
 It is basis to exercise jurisdiction over criminal and other matters by the state.

72
Oppenheim’s, International Law, (9th Ed. 1992) p. 188

81
7.1. MEANING OF NATIONALITY
It is bond which unites a person to a given State which constitutes his membership in the
particular state, which gives him a claim to the protection of that state and which subject him to
the obligation created by the laws of that state.73
NATIONALITY AND DOMICILE
Nationality denotes the relation of man with his nation which protects him and the person
is bound to follow the rules enacted by that state. Domicile denotes the residence of the person.
Person may acquire nationality through domicile. In different countries there are different rules
and processes in regard to the acquisition of nationality through domicile. 74
NATIONALITY AND CITIZENSHIP

Nationality means the legal relationships which exist between the Nation and the Individual.
Citizenship, on the other hand, denotes the relations between the person and the state law. In
other words through nationality the civil and natural rights of a person may come under
international law whereas the rights of citizenship are the sole concern of the state law. 75 It is
possible that all the citizens may possess the nationality of a particular State, but it is not
necessary that all the nationals may be the citizens of that particular state. Citizens are those
persons, who possess full political rights in that state. But a person who possesses only
nationality in a particular State may not possess all political rights. 76

7.2. MODES OF ACQUISITION OF NATIONALITY

 Article 15(1) of the Universal Declaration of Human Rights (UDHR), 1948 provides,
“Everyone has a right to nationality”.
 Article 20(1) of American Convention on Human Rights, 1969 says, “every person has a
right to nationality”.
International law, however, does not provide for a particular way in which a state may make
law for acquisition of nationality. There are two main principles, on which nationality is based,
firstly bloodline or lineage (jus sanguinis) and Secondly birth on the soil of a State’s territory

73
Ibid p. 195
74
Ibid p. 98
75
Ibid p. 111
76
Ibid p. 134

82
(jus soli). Experts generally consider these two principles to be sanctioned by customary
international law. 77
MODES OF ACQUISITION OF NATIONALITY

By Birth: a person acquires nationality of the state where he is born. He also acquires the
nationality of his parents at the time of his birth.

Naturalization: when a person living in a foreign state for a long time acquires the citizenship of
that state.78

By resumption: sometimes it so happen that a person may lose his nationality because of certain
reasons. Subsequently, he may resume his nationality after fulfilling certain conditions. 79

By Subjugation: when a state is defeated or conquered, all the citizens acquire the nationality of
the conquering State.80

Cession: when a state has been ceded in another state, all the people of the territory acquire
nationality of the state in which their territory has been merged. 81

Marriage: The laws of many States provide that on marriage, a woman will acquire the
nationality of her husband. Under the Convention on Nationality of Married Woman, 1957, more
protection is given to the woman, as the Convention provides that upon marriage with a
foreigner, it does not automatically affect the nationality of the woman. 82A similar provision also
exists in Article 9 of the Convention on the Elimination of all Forms of Discrimination Against
Women, 1979, which, inter alia, requires the state parties to grant women equal rights with men
to acquire, retain or change their nationality and upon marriage with an alien, will not change
nationality automatically. 83
In India a similar provision exists under the Citizenship Act, 1955.

77
Ibid p. 212
78
Ibid p. 218
79
Ibid p. 225
80
Ibid p. 232
81
J.G. Strake, Introduction to International Law, (10th Ed. 1994), p.132
82
Ibid p. 141
83
Ibid p. 148

83
Adoption and Legitimation, According to the laws of some States, adoption and legitimation
creates new nationality for a child.

7.3. MODES OF LOSS OF NATIONALITY

International law does not prescribe any rule under which a person may lose his
nationality. It is left to the discretion of the States. However, this is directly a matter of
international law, for a person without nationality is a stateless person and survival for such a
person becomes difficult in the international community. Generally, a person may lose his
nationality by certain modes, which are discussed below:
RELEASE: Some States authorize their citizens to seek release from their nationality. Such
release, when granted, deprives the person of the nationality of the State granting such release. 84

DEPRIVATION: Many countries have laws, which provide that a particular act or conduct of a
national will deprive him of his nationality. Acts such as entering into Foreign Service, taking
oath of allegiance to a Foreign State, joining foreign armed forces, unlawful trading with the
enemy during war and prolonged stay abroad are some of such grounds. 85
Article 15(2) of UDHR, 1948 provides that no one shall be deprived of his nationality. But, the
above grounds are not arbitrary and justified for depriving a person of his nationality.
EXPIRATION: Some States have laws, which provide that nationality of a person expires when
he has left the country and resided abroad for a long duration of time.
Thus, the Indian Citizenship Act, 1955 provides that an ordinary citizen of India, if stays
beyond seven years abroad without approved course, shall cease to be a citizen (National) of
India.
RENUNCIATION:A person may renounce his nationality in a manner prescribed such as
signing a deal before the designated authority or by exercising the right of renunciation on
attaining majority or acquiring the nationality of more than one country. 86
SUBSTITUTION: This is not a universal mode of losing nationality. Under the British
Nationality Act, 1981, naturalization in a foreign State does not involve loss of
nationality.Britain does not object to their citizens acquiring another nationality apart from the
84
Ibid p. 152
85
Ibid p. 158
86
Ibid p. 161

84
one they already possess. But in many States, naturalization abroad, ipso facto, terminates the
original nationality of a person. 87

7.4. DOUBLE NATIONALITY

Due to variations on domestic law of countries, there may be situations where persons
may have dual nationality or no nationality at all i.e. statelessness. International law does not
have binding rules on nationality and the States have discretion to formulate their own laws.
A is born in X State where nationality is based on jus soli (place of birth). A gets the
nationality of state X. If A is the child of a foreign couple who belong to a State where the
nationality law is based on jus sanguinis (by descent), A also gets the nationality of his parents.
Thus, A has double nationality or dual nationality. 88
In cases of dual nationality, some States provide that a person may, on attaining majority,
give up one of the nationalities. Dual nationality may be acquired by a woman through marriage
also Suppose A is born in Z State while his parents belong to Y State. If they happen to be in Z
State at the time of birth of A. If the rule of nationality in Z State is based on jus sanguinis and
since the parents of A are not nationals of that State A does not get their nationality. Since the
nationality rule of state Y is based on the principle of jus soli, A again does not get the
nationality of State Y because he was born on foreign soil. Therefore, he ends up without any
nationality and becomes stateless.
7.5. EFFECT OF DOUBLE NATIONALITY
The position of an individual having double nationality is an awkward one. Being a
national of two States, both may claim his allegiance. While in the State of second nationality, he
cannot avail himself of the protection of the first State's nationality against the authorities of the
foreign country i.e. a third State.
The Hague Convention on Certain Questions Relating to Conflict of Nationality Laws,
1930 provides that if a person has more than one nationality, he shall, within the third State, be
treated as if he had only one and it will be determined by applying the test of “Genuine link or
effective nationality” or “real connection”.89

87
Ibid p. 165
88
Ibid p. 171
89
Malcom N Shaw. International law; 5th edition. Cambridge University Press, 2003.

85
7.6. NATIONALITY OF MARRIED WOMEN
Marriage of a woman with a foreigner may change her nationality and on dissolution of
marriage, she may lose her nationality and thus become a Stateless person. This problem has
been a concern of international law. The Hague Convention on Conflict of Nationality Laws,
1930 regulates some aspects of nationality of married women Convention on the Nationality of
Married Woman 1957 provides that celebration or dissolution of marriage between a States
national and an alien or change of nationality by the husband during marriage shall not
automatically affect the nationality of the wife. 90
Convention on the Elimination of all Forms of Discrimination Against Woman, 1979 also
obligates States to ensure that women should be given equal rights and that women are not
rendered stateless on account of marriage with aliens or change of nationality by husbands. 91
8. STATELESSNESS
A person without any nationality is known as a Stateless Person. This situation may arise
through conflict of nationality laws, change of sovereignty over territory or denationalization by
the State of nationality. 92 All individuals who have lost their original nationality without having
another are Stateless persons. According to traditional international law, persons having lost the
link of nationality between them and international law did not get any protection of the latter.93
Even under modern rules of international law, they cannot get diplomatic protection, consular
assistance and international claims for the damage suffered at the hands of a state.

8.1. INTERNATIONAL EFFORTS TO REDUCE STATELESSNESS

 The Convention on the Conflict of Nationalities Laws, 1930

 The Convention Relating to the Status of Stateless Persons, 1954
 The Convention on the Reduction of Stateless Persons 1961
 The Convention on the Reduction of Statelessness, 1961

90
Prof lauterpacht H. Problems of jurisdictional immunity of foreign states, Year book of International law 1951,
Oxford University press p.228
91
Ibid p. 332
92
Ibid p. 335
93
Ibid p. 342

86
 Inter alia provides that a contracting State shall grant its nationality to a person born on
its territory who would otherwise be stateless. A child born of wedlock on the territory of a
state party to the convention and whose mother is a national of that state will get the
nationality of his mother if he would otherwise be stateless. Renunciation of nationality shall
not result in loss of nationality unless the person has acquired another nationality. 94

The 1954 Convention Relating to the Status of Stateless Persons and the 1961
Convention on the Reduction of Statelessness are key legal instruments in the protection of
stateless people around the world and in the prevention and reduction of statelessness. While
they are complemented by regional treaty standards and international human rights law, the
two statelessness conventions are the only global conventions of their kind. As on 6 July
2015, there are 23 signatories and 86 parties to the 1954 Convention and five signatories and
63 parties to the 1961 Convention.95

8.2. ROLE OF UNHCR FOR STATESSNESS

Its primary purpose is to safeguard the rights and wellbeing of refugees, It strives to
ensure that everyone can exercise the right to seek asylum and find safe refuge in another
state, with the option to return home voluntarily, integrate locally or to resettle in a third
country.96 Headquarter is in Geneva, Switzerland and it is a member of the United Nations
Development Group. It has won two Nobel peace prizes, once in 1954 and again in 1981.
UNHCR activities in the field are grouped into four categories. 97

Identification- gathers information on statelessness, its scope, causes and consequences

Prevention- Address the causes of statelessness and promote accession to the 1961
Convention on the reduction of statelessness

Reduction- support legislative changes and improvements to procedures to allow stateless

people to acquire a nationality and help individuals to take advantage of these changes.

94
Ibid p. 345
95
See report of the International Law Commission, 1991. P.134
96
Ibid p. 145
97
Ibid p. 152

87
 Protection- intervenes to help stateless people to exercise their rights and promote accession
to the 1954 Convention relating to the status of Stateless persons.

9. MEANING AND DEFINITION OF EXTRADITION

A person after committing a crime may flee to another State. The State has territorial
sovereignty and it may permit an alien to stay on its territory. Such a criminal shall not be
arrested or prosecuted by the State, where he happens to reside since he has not committed any
crime on the territory of that state. The first State where he is alleged to have committed the
crime cannot arrest and prosecute him due to the territorial sovereignty of the other State. But
the aim of the law is to punish the criminal. Therefore, the State on whose territory the criminal
has committed the offence may request the State on whose territory the criminal is physically
present or residing to deliver him for his trial and prosecution. Such a process of demanding the
criminal from the latter State by the former is called extradition.

a. DEFINITION OF EXTRADITION

Extradition is the formal surrender of a person by one state to another state for
prosecution or punishment.

OPPENHEIM "Extradition is the delivery of an accused or convicted individual to the State

where he is accused of or has been convicted of a crime, by the state on whose territory he
happens for the time to be."98

"Extradition" means the delivery of a person by one State to another as provided under a
treaty, convention or national legislation. Customary international law does not impose any duty
on States to surrender criminals. States have, in the absence of a treaty, upheld their right to
grant asylum to foreign individuals on the basis of territorial sovereignty. 99

98
Philip. C. Jessup, A Modern Law of Nations: An Introduction ,(1968)
99
Ian Brownlie, Principles of Public International Law, (5th Ed. 1998), p. 287

88
PROCESS OF EXTRADITION

EXTRADITION TREATIES

Modern civilization demanded extradition of criminals as a rule and, as such, prior

treaties between States were concluded. In the beginning, initially there were bilateral treaties
which gradually have been extended as multilateral.

MUNICIPAL LEGISLATION

Various States have enacted extradition laws which lay down the procedure and a list of
extraditable crimes. Belgium was the first country which enacted such legislation in 1833.100 The
UK enacted the Extradition Act, 1870 which has been replaced by the Extradition Act, 1989.
Extradition Act, 1903 was modeled on the British enactment. Now, the Extradition Act, 1962 is
on the Indian statute book.101 Grant of extradition and procedure are generally matters of national
law and, therefore, there is no uniformity in such laws. But certain principles are now
established.

The law of extradition is a dual law. It is ostensibly a municipal law, yet it is a part of
international law also. Request for extradition is made through the diplomatic channel. There
should be an extraditable person as well as an extraditable crime. 102

PRINCIPLE OF DOUBLE CRIMINALITY

States refuse to grant extradition under this rule which is normally incorporated in the
extradition treaties. Under this principle extradition is granted only when the act committed
constitutes an offence under the laws of both the requesting and the requested States. 103
In Factor v. Laubenheimer,104British authorities sought the extradition of Factor on the
charge of receiving in London money which he knew to have been fraudulently obtained. When

100
Deng F, Sovereignty, Responsibility and Accountability ,(1995), p.115
101
Ibid, p.122
102
Ibid, p.128
103
Ibid, p.132
104
(1933), 290 US 276

89
extradition was initiated, Factor was residing in the State of Illinois in the US. The offence for
which Factor was charged was not an offence in Illinois.
The US Supreme Court held that this did not prevent extradition if, according to criminal
law generally of the US, the offence was punishable. The above being the first dimension of the
principle, a second dimension was added to the principle which stated that even the punishment
for the offence committed must be the same under the laws of both the requesting and the
requested states.
This dimension was the result of the Soering case. 105 where Mr. Soering, a German
national while pursuing higher studies in an American university fell in love with an American
girl who was his classmate. Both wanted to get married but, the parents of the girl were against
the marriage which prompted them to murder the parents of the girl. Subsequently both fled to
U.K. and when U.S. government initiated proceedings for their extradition the U.K. government
stated that even the punishment must be the same. Since punishment for murder under U.K. law
was imprisonment for life because the European Union and many countries have abolished death
penalty as punishment and in United States it is death penalty, the British government refused to
extradite. However, the British government tried and punished Soering and his girlfriend under
British criminal law.
RULE OF SPECIALTY
This rule also finds place in the extradition treaties and national laws. According to the
rule, the requesting State can punish the extradited person only for the offence for which he was
extradited and for no other offence. If a person is extradited for murder, he shall not be tried for
causing grievous hurt.106
RENDITION
The States on the basis of reciprocity may make ad hoc arrangements under which an
offender may be returned to a State to be tried by that State. This is called Rendition.107

TYPES OF OFFENDERS

105
(1989) 11 ECHR 439
106
Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, (1953), p.122
107
Ibid p. 131

90
 There is no legal prohibition in extraditing a person for any crime. However, in general,
extradition is made in respect of crimes of a more serious nature. It is evident from the common
practice of the states to list such crimes in a bilateral extradition treaty. Generally the following
crimes are not subject to extradition proceedings under customary rules of international law,
Crimes such as Political Crimes, Military Offences, for example desertion, and Religious
Offences.108

POLITICAL CRIMES

There is no agreed definition of political crime under international law. The definition of
such a crime has been left to the national laws. The States now accept the rule that political
criminals should not be extradited. But the experts of international law have expressed doubts
regarding the existence of any rule of customary international law which prevents a State from
extraditing political offenders. Various criteria have been adopted to define a political crime such
as:109

 The motive behind the crime

 The circumstances under which it was committed
 It would embrace specific offences such as treason or attempted treason.
 The act should be directed against any political organization on the territory of the
requesting State.
 There should be political unrest and the existence of two political parties striving for
establishment of political control in the State.

The difficulty in defining a political crime or offence is inherent in the very nature of the
concept. A group of States may consider a particular movement for achieving political ends as
deserving protection; while another group of states may consider the members of such a
movement as a "band of criminals" deserving punishment. 110 Sometimes ordinary criminals
might be sought in extradition by a State on political considerations. Mutual relations between

108
Ibid p. 135
109
Ibid p. 139
110
Ibid p. 142

91
the demanding state and the extraditing State may also play a significant or important role. This
is evident from the decisions of courts of law. Some of the landmark cases are discussed below.
Castioni, Re111 In the instant case, the prisoner was a Swiss national, who was arrested by
the British authorities on a warrant for his extradition to Switzerland. He was accused of the
charge that he had in an uprising, shot a member of the member of the Council of the Canton of
Ticino in the course of seizing the municipal Palace. The British court discharged the prisoner on
the ground that his crime was of a political nature. The court noted three things for a political
crime namely: (1) acting in pursuance of political ideals (2) political unrest, and (3) a conflict
between two or more political parties in the State trying to establish a Government.
Meunier, Re112 According to the facts of this case, the prisoner was an anarchist who had
caused two bomb explosions in a military barrack in France in which two individuals were killed
and who fled to England. However, the British court refused to accept his crime as political by
excluding anarchist and terrorist acts from the category of political crimes.
France v. Great Britain (Reports of International Arbitral Awards, 113 Savarkar
Case: Savarkar, a freedom fighter from India was beingbrought to India from Britain. While the
British ship was anchored at a French port, Savarkarjumped from the ship and swam ashore in
Marseilles Harbour. A French policeman arrestedhim and handed him over to the British ship
captain. French authorities realized that therewas no obligation on their part to return Savarkar
and therefore asked for the return ofSavarkar.
The British ship captain refused to return Savarkar, giving rise to a disputebetween the
two countries. The permanent Court of arbitration decided in favour of GreatBritain. It observed,
"while admitting that an irregularity was committed by the arrest ofSavarkar and by his being
handed over to the British police, there is no role of international lawimposing, in circumstances
such as those which have been set out above, any obligation on thePower which has in its
custody a prisoner, to restore him because of a mistake committed bythe foreign agent who
delivered him up to that Power."
R. v. Governor of Brixton Prison, Ex parte Kolczynski & others114

111
(1891) 1 QB 149
112
(1894) 2 QB 415:
113
Vol.11, 24-2- 1911, 243-55)
114
(1955) 1 QB 540

92
 In this case the facts are as follows. Seven Polish seamen had overpowered the captain
and other members of a Polish vessel and had brought it to England and sought asylum. The
government of Poland initiated extradition proceedings and requested the British government to
extradite them. The English court refused the extradition on the ground that the act of the seven
crewmen was of a political nature. In this case, the court did not follow Castioni re case because
in Poland there was no struggle between two political parties for political power. The court,
instead observed that the words “offence of a political character” must always be considered
according to the circumstances existing at the time when they have to be considered.
Govt. of India v. Mubarak Ali Ahmed115
In the instant case, the prisoner had committed forgery and crossed over to Pakistan.
India could not get the accused extradited from Pakistan. Subsequently the prisoner left Pakistan
and went to England. India requested for his extradition. He pleaded that he would not get a fair
trial in India for political reasons. The court, however refused to treat him as a political criminal.
The court further observed that the fact that the prisoner has been a subject of a cute
political controversy in the requesting State, does not make him a political offender. International
law leaves it to the States to determine whether a particular act is of political nature or not. But, it
seems reasonable that the discretion of the States in this regard would be restricted by the general
rules of international law.
Therefore, States will be under pressure to extradite persons who have committed acts of
genocide, war crimes, crimes against humanity and terrorist acts. Such offenders cannot be
protected under the category of political offenders.
Abu Salem Extradition case116Abu Salem was charged for various offences including the
1993 Mumbai bomb blasts. After the blast he left India and subsequently located himself in
Portugal. India did not sign an extradition treaty with Portugal. However, India sought
extradition under the United Nations Convention on Suppression of Terrorism, 2000. Since India
and Portugal are parties to this Convention they are under an obligation to help each other in the
war against terrorism. Meanwhile, Abu Salem and his girlfriend Monica Bedi were prosecuted
and sentenced by the court of Law in Portugal.

115
(1952) 1 All ER 1060
116
www.theguardian.com

93
 The court also ordered the extradition of both the fugitives to India after completion of
the sentence. Abu Salem and Monica Bedi moved the European Court of Human Rights against
extradition, which refused to intervene in the matter. They were extradited on the assurance of
the
government of India that they would not be sentenced to death. However, in India, the CBI
included a new charge, which was against the Rule of Speciality.
On Salem's application, the Supreme Court of Portugal terminated his extradition to
India. On a direction given by the Supreme Court of India, the CBI dropped the additional charge
against Abu Salem. His trial is in progress. In CBI v. Abu Salem Abdul Kayyam Ansari i.e.
(Pradeep Jain's murder case),117Abu Salem has been sentenced to life imprisonment.

INITIATIVES TO RESTRICT THE SCOPE OF POLITICAL OFFENCES

The term "political offence" has been vague. There is no internationally agreed definition
of this term. It is argued that the most heinous crimes such as genocide, war crimes and crimes
against humanity, are not political crimes for refusing extradition. International
law has, however, made various efforts to limit the meaning and scope of this term. Some of
these initiatives are listed below: 118
Attentat clause: It originated in 1856 in Belgium and was followed by other States. This clause
provides that a murder of the head of a foreign State or of a member of his family should not be
considered as a political crime.

Genocide Convention, 1948: Under Article 7 of this Convention states that the crime of
genocide is not to be considered as a political crime as it is excluded from the category of
political offences for the purposes of extradition.
The European Convention for the Suppression of Terrorism excludes terrorist acts from the
ambit of political crimes.
The Statute of the International Criminal Court, 1998 puts a general obligation on the States
parties to the convention to "cooperate fully with the court in its investigation and prosecution of

117
www.theguardian.com
118
Ibid p. 178

94
crimes within the jurisdiction of the court". Crimes within the jurisdiction of the court are the
crimes of genocide, crimes against humanity, war crimes and the crime of aggression.

CONCLUSION
The concept of extradition is one of the principal concepts that was developed by
International jurists for the purpose of proper administration of criminal justice. A person who
commits an offence on the territory of one State and escapes to another State, the State on whose
territory the offence was committed is unable to punish him. The State on whose territory the
offender resides through the concept of extradition should surrender him to the other State. If due
to restrictions imposed by international law the State is not in a position to extradite, then it has
to punish him under its own laws. Therefore no offender shall go unpunished in the world.

10. DEFINITION AND SIGNIFICANCE OF ASYLUM

The literal meaning of the term ‘Asylum’ is sanctuary or place of refuge and safety
especially for criminals. In international law, it is more than a temporary refuge followed by a
degree of active protection on the part of the state granting asylum to a person of another state
who seeks such refuge and protection. 119 A State may, at its discretion, grant or refuse to grant
asylum. This right is an incident of territorial supremacy. Extradition and asylum are closely
connected and very commonly stated that extradition starts where asylum ends. Writers on
international law have expressed a doubt whether the right of asylum is recognized by general
international law. Since most of the extradition treaties generally refuse extradition of political
offenders, the practice to grant asylum is closely connected with the principle of non-extradition
of political offenders. 120

Article 14 of the Universal Declaration of Human Rights, 1948 states that every person
has a right to seek and enjoy in other countries asylum. The Universal Declaration of Human
Rights while conferring the right of asylum to individuals does not impose an obligation upon
the States to grant asylum. Similarly the Declaration on Territorial Asylum, 1967 makes certain

119
J.G.Strake, Introduction to International Law, (10th Ed. 1994), p.144
120
Ibid p. 148

95
recommendations to States on asylum. 121 The United Nations Declaration on Territorial Asylum
was adopted by the General Assembly and the Declaration called upon governments to refrain
from taking steps such as rejecting the persons seeking asylum at the frontier itself. It has been
claimed that these instruments do not confer a right to receive asylum. 122 However, humanitarian
considerations influence States in granting asylum. The so called right of asylum is actually the
competence of every State to allow a prosecuted alien to enter and remain on the territory under
its sovereignty. Such fugitive alien enjoys hospitality of the State which grants him asylum It is
absolutely necessary for him to be placed under surveillance or even to confine him in some
place to make his entry conditional. 123 It is an obligation of every State in the international
community to prevent individuals living on its territory from posing to the state on whose
territory he is alleged to have committed an offence, any kind of threat or danger to the safety
and security of the head of the State, members of its government or its property.

10.1. KINDS OF ASYLUM

Asylum is either territorial or extra-territorial. Territorial asylum is again an incident of

territorial sovereignty and extra-territorial asylum is derogation from the sovereignty of the
territorial state.

10.1.1. TERRITORIAL ASYLUM

Granting asylum to all kinds of refugees including fugitive offenders in its territory
emanates from the doctrine of territorial supremacy. Generally, a State may not grant asylum to
aliens on a vessel anchored or sailing in its territorial sea. 124 According to the World Court, in the
case of territorial asylum, the refugee is within the territory of the State of refuge and a decision
relating to extradition depends upon the normal exercise of territorial sovereignty. 125 In other
words, the refugee is outside the territory of the State where the offence was committed and a

121
Ibid p. 155
122
Ibid p. 162
123
Ibid p. 168
124
Ibid p. 172
125
Ibid p. 181

96
decision to grant asylum to such a person does not in any manner derogate from the sovereignty
of that State.

However, there is no unanimity on the issue whether a State can grant asylum to
prisoners of war belonging to a state which has been conquered, and who are not willing to be
repatriated for fear of prosecution. Territorial asylum is granted by a State on its own territory
and is considered as an attribute of the territorial sovereignty of that State. 126 The Convention on
Territorial Asylum was signed in 1945.

Article 1 of the Convention states that “Every State has a right in the exercise of its
sovereignty, to admit into its territory such persons as it deems advisable without, through the
exercise of the right giving rise to a complaint by any other State.”

In the year 1967, the General Assembly of the United Nations recommended that, the
States in practice should do the following: 127

When a person requests for asylum, his request should not be rejected or if he tries to enter
the territory of such State he should not be expelled from the frontier itself but, when they come
in large numbers the request for asylum could be rejected on the ground of national security of
its own people. If any State experiences difficulty in granting asylum, it should adopt appropriate
measures by considering it as an international duty, through the medium of individual states or
the United Nations.

When State grants asylum to the fugitives, other States must respect such a decision of the
State granting asylum, Political asylum, in the case of defectors. Refugee asylum, in the case of
persons who genuinely fear persecution or prosecution in their own country; and finally General
Asylum, in the case of persons who have fled their country for economic betterment and have no
status of immigrants.

126
Gray, C. (1987). Judicial Remedies on International Law. Oxford.
127
Shaw, M. N. (1997). International Law. Cambridge University Press.

97
10.1.2. EXTRA-TERRITORIAL ASYLUM

In the case of extra-territorial or diplomatic asylum, the person who is given refugee
status is within the territory of the State where he is alleged to have committed an offence. Any
decision on the part of the other State to grant diplomatic asylum in the premises of its embassy
is deemed to be derogatory to the sovereignty of the territorial State because it withdraws the
offender from the jurisdiction of the territorial State and constitutes an interference in a matter
which is essentially and exclusively within the competence of that State. 128

States enjoy certain privileges and immunities on the territories of other States in respect
of places such as the diplomatic missions of other States. Extra-territorial Asylum or Diplomatic
Asylum is granted by a State outside its territory, such as in its embassy premises or its war ships
sailing on the high seas or the oceans. 129 As far as granting of diplomatic asylum is concerned,
international law does not recognize a general right of a person heading a mission to grant
asylum in the premises of the embassy or legation, for the obvious reason that such an act would
prevent territorial law from taking its own course and would involve a derogation from the
sovereignty of that State.

The premises of diplomatic envoys are notionally treated as the territory of the sending
State and, therefore, immune from the jurisdiction of the receiving State. Likewise, a warship has
a special status and immunity from the jurisdiction of other States even in the territorial sea. 130 A
person of the coastal State after committing an offence may be given refuge in a warship. Such
Asylum is called extra-territorial asylum. But grant of such asylum is not an absolute right and
rules of international law or not well settled on such asylum. Such asylum may take place in the
following ways:

Diplomatic Asylum: Oppenheim traces the history of diplomatic asylum in ancient practice
where the envoy's residence was considered in every aspect outside the territory of the receiving
State and even extended to the whole quarter of the town in which such residence was

128
Gurdip Singh, International Law (2nd ed., 2011)
129
V.K. Ahuja, Public International Law (Lexis Nexus 2016)
130
Ibid p. 132

98
situated.131 This used to be called franchise du quartier and interference from this was the so-
called right of asylum, whereby envoys claim the right, within the boundaries of the residential
quarters, to any individual who took refuge there.

This was opposed by the States and by the 19th century, the general right to grant extra-
territorial asylum vanished leaving only traces of it in the Latin American practice. Under the
Vienna Convention on Diplomatic Relations, 1961, the premises of the embassy is inviolable and
immune from search, acquisition, attachment or execution. The private residence of a diplomatic
envoy is likewise inviolable. 132 The Convention, however, does not mention the right of
diplomatic asylum.

In fact, Article 41(1) states that it is a duty of "all persons enjoying privileges and
immunities to respect the laws" of the receiving State and "not to interfere in the internal affairs
of that State". Again, clause (3) of article 41 lays down that the premises of the mission is not to
be used in any manner incompatible with the functions of the mission. Granting diplomatic
asylum is not the function of the mission and Article 3 of the Convention. Therefore, it may be
concluded that present international law does not endorse diplomatic asylum.

DALAI LAMA ASYLUM

Due to the oppressive and repressive policies of China, the spiritual leader, Dalai Lama
and his followers fled from Tibet and took political refuge in India. China accused India of
interfering in its internal affairs. India on its part was fully within its legal parameters while
granting asylum to Dalai lama because India as a sovereign country has exercised the right
conferred on it by international law. Therefore, there is no violation of International Law. 133

REFUGEES FROM BANGLADESH

The atrocities committed by the military regime of General Yahya Khan and the
intentional and well planned war crime of genocide committed by the military personnel of
Pakistan compelled millions of refugees to seek political refuge in India. India had not only

131
Ibid p. 138
132
Ibid p. 141
133
Ibid p. 145

99
granted refugee status, but also proved to the world by providing hospitality although it was not a
party to the Refugee Convention and which was unparalleled in the annals of the history of
international relations. If not for this great and magnanimous gesture by India, the return or
expulsion would have resulted in compelling them to return and to remain in a territory where
there was well-founded fear of persecution endangering their lives or physical integrity. 134

JULIAN ASSANGE WIKI LEAKS ASYLUM CASE

Julian Assange had taken shelter in the embassy of Ecuador in United Kingdom. The
wiki leaks editor Assange is an Australian and faces prosecution in the United States for
allegedly leaking United States classified documents. Assange has also been charged by Sweden
of sexual assault. Arrest warrant (European) was issued for his arrest and since June 19 2012 he
has been in the Ecuadorian Embassy in London. Assange claims that his extradition to Sweden
is a ploy to hand him over to the United States.135

EDWARD SNOWDEN CASE

Edward Snowden is an American national, who worked for National Security Agency
(NSA) of United States as a contractor. He left United States in May 2013 and travelled to Hong
Kong and leaked through Guardian and the Washington post newspapers the covert mass internet
surveillance by National Security Agency of the US. The US has charged him with theft and
under the Espionage Act, 1917. After he left Hong Kong, he was stuck in the transit area of
Sheremetyevo International Airport in Russia as the US cancelled his passport.136

Snowden sought asylum from several countries including India without success. In the
absence of a passport he cannot travel to any country. However, he can be granted asylum under
Article 31 of the UN Convention Relating to the Status of Refugees, 1951 as he is a political
offender. Russia granted temporary asylum to Snowden on August 2013 for one year. Russia has
granted him a resident permit and Snowden is in Russia from July 2015. 137

134
Ibid p. 148
135
www.bbc.com
136
www. indiatoday.in
137
www.theguardian.com

100
MODULE 08 STATE IMMUNITIESAND PRIVILEGES

1. STATE IMMUNITY

State Immunity is a principle of public International Law that is often relied on by states
to claim that the particular court or tribunal does not have jurisdiction over it or to prevent
enforcement of an award or judgment against any of its assets. In other words, it can create
difficulties for a counter party seeking to enforce its contractual rights against a State, as such
state Immunity should always be considered when dealing with States. In International Law,
certain persons and institutions are immune, from the jurisdiction of foreign Municipal courts.
The principal ones are sovereign states and foreign heads of state, diplomatic agents’, consuls
and International institutions, their officials and agents. It is a basic principle of International
Law that a sovereign state does not adjudicate on the conduct of a foreign state. 138 This immunity
extends to both criminal and civil liability.

2. ABSOLUTE IMMUNITY

Initially, the first and only approach, the absolute doctrine still applies in some
Jurisdictions, notably China and Hong Kong. Under this doctrine, any proceeding against foreign
States are inadmissible unless the State expressly agrees to waive Immunity. This simply means
that no sovereign State could be impleaded in the court of another without its consent. States
based on this rule to enjoy absolute immunity in all their acts, is they public or private. 139
Absolute Immunity thus refers to the privileges and exemptions, granted by one state through its
judicial machinery to another, against whom it is sought to entertain proceeding, attachments of
property or the execution of judgments.

The relatively uncomplicated role of the sovereign and of the government in the 18th and
19th century, logically gave rise to the concept of absolute Immunity whereby the Sovereign was
completely immune from foreign Jurisdiction in all cases regardless of circumstances. However
the unparalleled growth in the activities of the State, especially with regard to commercial
matters, has led to problems in most countries to a modification of the above rule. 140Furthermore,
138
H. Fox, The Law of State Immunity, Oxford, 2002
139
Ibid, p.22
140
Ibid, p.28

101
commercial activities like any other individual and the growth of the activities of the state in
commercial matters, the concept of absolute immunity has been called to question: the base of
the question is that granting Absolute Immunity to state will give them advantage over private
enterprises that engage in commercial contract with that State. Accordingly many states began
to give their support for the restrictive 141Immunity approach, which shall be discussed later.

Immunity was available as regards governmental (acts Jure Imperii) but not for
commercial acts which are termed (Jure gestionis). The classical case of the doctrine of absolute
Immunity is the case of Schooner Exchange V Mc Faddon142where Marshall, CJ delivering the
judgement of the United States Supreme court held; that the vessel of war of a foreign State with
which the United States was at peace and which the government of the United states allowed to
enter its harbours, was exempted from the jurisdiction of its courts.

3. RESTRICTIVE IMMUNITY

Due to the increasing involvement of states in World Trade activities, led to the
development of a more restrictive approach to State Immunity, where a distinction is drawn
between acts of a foreign sovereign nature (act jure imperii) and acts of a commercial nature
(acts Jure gestionis).143 Under the restrictive approach, Immunity is only available in respect of
acts resulting from the exercise of a Sovereign power. As such, States may not claim immunity
in respect of commercial activities or over commercial assets. Immunity from Jurisdiction is
usually available in the case of Jure Imperii but usually denied in the case of Jure gestionis. A
number of States in fact started adopting the restrictive approach to Immunity at early stage. The
Supreme Court of Austria in 1950 concluded that in the light of the increased activity of states in
the commercial field, the classic doctrine of absolute Immunity had lost its meaning and was no
longer a rule of International law Dralle V. Republic of Czechslovakia 144

4. WAIVER OF IMMUNITY

141
Ibid, p.34
142
Ibid, p.40
143
Ibid, p.56
144
(1950) 17 international law report (ILR) p.155

102
 Waiver of Immunity connotes the willing submission of a foreign Sovereign or Sovereign
representative to the Jurisdiction of the Courts in another State. Immunity belongs to the state
and not to the Individual beneficiary, therefore it is only the state and not to the Individual
beneficiary, hence it is only the State that has the capacity to waive the Immunity.

In a Memorandum entitled: Department of State guidance for Law enforcement officers

with regard to personal rights and Immunities of foreign Diplomatic and consular personnel, the
point was made that waiver of Immunity does not belong to the Individual concerned, but is for
the benefit of the sending state. The issue of waiver is provided for in Article 32 of the Vienna
Convention on diplomatic Immunities.

5. SIGNIFICANCE AND IMPORTANCE OF DIPLOMATIC AGENTS

The opinion of Oppenheim and other Western jurists that international law originated in
Europe and its credit goes to the Western civilization is not correct. The study of the original
text books of Ramayana and Mahabharata prove that the contention of western jurists is false. In
his view, during the period of Ramayana and Mahabharata some aspects of international law
were in an advanced stage.145 The permanent appointment of diplomatic envoys began from the
17th century. The rights, duties, immunities and privileges etc., of the diplomatic agents which
began in 18th and 19th centuries were mostly in the form of customary rules of international law.

The first landmark event, therefore, was the Congress of Vienna, 1815 wherein the
customary law relating to diplomatic agents was clarified and codified. After 1815 also, the law
relating to diplomatic agents was in the process of development and eventually a Convention was
adopted in April 1961.146 This convention is known as the Vienna Convention on Diplomatic
Relations. Along with this convention an optional Protocol relating to compulsory settlement of
disputes was signed in April 1961. The Protocol provided that disputes arising out of
interpretation and application of the provisions of the convention shall be referred to the
compulsory jurisdiction of the International Court of Justice.

5.1. CLASSIFICATION OF DIPLOMATIC AGENTS

145
E. Denza, Diplomatic Law, 3rd edn, Oxford, 2008
146
B. Sen, A Diplomat’s Handbook of International Law and Practice, 3rd edn, The Hague, 1988

103
 The diplomatic agents have been categorized in accordance with their status and
functions. The first classification of diplomatic agents was made in the Congress of Vienna,
1815. The Congress of Vienna, classified the diplomatic agents as follows: 147

 Firstly, Ambassadors and legates;

 Secondly, Ministers Plenipotentiary and Envoys extraordinary; and
 Thirdly, Charge-d'affaires.

In the Vienna Congress fourth category of diplomatic agents namely Ministers Resident
was added and kept in the third place in order of priority, but was dropped by the 1961
Convention on Diplomatic Relations. Thus, at present, the classification of diplomatic envoys is
as follows:148

5.1.1. AMBASSADORS, HIGH COMMISSIONERS AND LEGATES

They are diplomatic agents of the first category. They are the representatives of the
completely sovereign states. They are either appointed as Ambassadors or Permanent
Representatives of their countries in the United Nations. 149 The representatives appointed by the
commonwealth countries are known as High Commissioners and when appointed by the Pope
are known as Legates.

5.1.2. MINISTERS PLENIPOTENTIARY AND ENVOYS EXTRAORDINARY

They are diplomatic agents of the second category and as compared to the diplomatic
agents of the first category; they enjoy less privileges and immunities. 150

5.1.3. CHARGE-D' AFFAIRES

147
Ibid, p.55
148
Ibid, p.66
149
J. Brown, ‘Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations’, 37
ICLQ, 1988, p. 53
150
Ibid, p.45

104
 They are diplomatic agents of the last category. The main reason for this is that they are
not appointed by the head of the State. But they are appointed by the Foreign Ministers of
States.151 In rights and status they are considered below the Minister resident.

FUNCTIONS OF DIPLOMATIC AGENTS

According to Article 3 of the Vienna Convention on Diplomatic Relations, the functions

of a diplomatic mission consist of the following:

 Representing the sending State in the receiving State;

 Protecting in the receiving State the interests of the sending State and its nationals, within
the limits permitted by international law;
 Negotiating with the government of the receiving State;
 Ascertainment by lawful means and conditions and developments in the receiving State;
and
 Reporting thereon to the government of the sending State;
 Promoting friendly relations between the sending State in the receiving State, and
developing their economic, cultural and scientific relations.

6. THE BASIS OF IMMUNITIES AND PRIVILEGES

Before discussing the immunities and privileges of the diplomatic agents, it will be
necessary and desirable to know as to what is the basis of these immunities and privileges. To
put it more precisely, the question as to why diplomatic agents are given certain immunities and
privileges?

There are two theories prevalent in this connection, the first one is Theory of
Extraterritoriality and secondly, Functional Theory.152

Theory of Extraterritoriality:

According to this theory, the diplomatic agents enjoy immunities and privileges because they
are deemed to be outside the jurisdiction of the State in which they are appointed.

151
Ibid, p.88
152
Ibid, p.95

105
Functional Theory:

In fact, the true basis of the immunities and privileges enjoyed by the diplomatic agents is
not the theory of extraterritoriality but the special functions which these agents perform.

That is diplomatic agents are given certain immunities and privileges due to the special
functions which they perform. It is thought necessary and expedient to grant these immunities
and privileges to them, otherwise they would be greatly hampered in the performance of their
functions.

7. IMMUNITIES AND PRIVILEGES

Inviolability of the Person of envoys:

It is a well recognised principle of international law that the person of envoys is regarded
inviolable. It may be noted here that international law relating to inviolability of the persons of
envoys was recognised in India from very ancient times. 153 In the Ramayana this very principle-
the inviolability of person of the envoy is affirmed and enforced on several occasions-sometimes
even against the wishes of the sovereign who in a fit of anger wanted to slay the envoy for
having delivered a rude ultimatum on behalf of his sovereign." 154 In this connection the example
of Lord Hanuman who was sent as a messenger to the court of Ravana may be cited. On the basis
of inviolability of person of envoys, diplomatic agents cannot be arrested for debts et cetera. If a
diplomatic agent is attacked and insulted, it is considered to be an attack on and an insult to the
sovereign of the state whose representative he is.

On this basis, all cases against him are invalidated. In the present period this immunity
has been incorporated in Article 29 of the Vienna Convention on the Diplomatic Relations.

Immunity from criminal jurisdiction

The diplomatic agents also enjoy immunities from criminal jurisdiction of courts.
However, it is generally understood that they will not violate the provisions of the law of the
State where they are appointed. Apart from this it must be noted that there are conditions under

153
C. E. Wilson, Diplomatic Privileges and Immunities, Tucson, 1967
154
Ibid, p.61

106
which the diplomatic agents may lose their immunities. 155 For example, they will lose the
immunity if they are guilty of conspiracy against the head of the State.

Immunity from civil jurisdiction

The diplomatic agents enjoy immunities from the jurisdiction of civil courts. Suits for
recovery of debt or breach of contract cannot be filed against diplomatic agents. However, there
are certain exceptions to this rule. Article 31 of the Vienna Convention which recognizes this
immunity also provides three exceptions. 156

 Firstly, An 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;
 Secondly, an action relating to succession in which the diplomatic agent is involved as
executor, administrator or legatee or as a private person and not on behalf of the sending
State; and
 Thirdly, an action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State which is outside his official functions.

Immunity of residence

Yet another immunity enjoyed by the diplomatic agents is regarding the residence. the
residences are regarded inviolable. This immunity has been reaffirmed by the International Court
of Justice in the Case concerning the United States Diplomatic and Consular Staff in
Tehran157 if a person is wanted by police and he's not enjoying any immunity from arrest, then
the proper course is that, the diplomatic agents should hand over such a person to the police.
Ordinarily, the diplomatic agents resort to such behaviour.

Immunity from being presented as witness

155
Ibid, p.72
156
Ibid, p.78
157
(I.C.J. Reports (1980) page.3)

107
 Diplomatic agents enjoy immunity from being presented as a witness in a court of law.
They cannot be compelled to come to the court and give evidence in a case whatsoever the case
may be. But if any diplomatic agent himself waives this immunity then he may personally
present himself and give evidence, then he will be subject to the jurisdiction of the court for it
will be deemed that he had waived his immunity in this regard.158

Immunity from taxes and dues

Under international law the diplomatic agents are immune from payment of taxes, etc.
These immunities are incorporated in articles 34 and 36 of the Vienna Convention on Diplomatic
Relations. Article 34 provides that a diplomatic agent shall be exempt from all dues and taxes,
personal or real, national, regional or municipal, except: 159

a) Indirect taxes which are normally incorporated in the price of goods and services;

b) Reducing taxes on private immovable property situated in the territory of the receiving
State, unless he holds it on behalf of the sending State for the purposes of the mission;

c) A State succession or inheritance duties levied by the receiving State, subject to the
provisions of paragraph 4 of Article 39;

d) Reducing taxes on private income having its source in the receiving state and capital
taxes on investments made in commercial undertakings in the receiving State;

e) Charges levied for specific services rendered, registration, court or record fees,
mortgage dues and stamp duty, with respect to immovable property, subject to the
provisions of Article 23.

Immunity from police rules

158
Ibid, p.82
159
J. C. Barker, The Abuse of Diplomatic Privileges and Immunities, Aldershot, 1996

108
 The diplomatic agents are immune from the police rules of the States in which they are
appointed. However, by courtesy and for the sake of good relations with the receiving State they
generally follow such rules.160

Right to worship

The diplomatic agents enjoy the right to worship and no interference can be made in this
respect. They are free to follow any religion or perform the religious rituals, ceremonies, etc. in
their own way.

Right to exercise control and jurisdiction over their officers and families

The diplomatic agents have right to exercise control and jurisdiction over their officers
and families.

Right to travel freely in territory of the receiving State

This new right was, for the first time introduced in Article 26 of the Vienna Convention
on Diplomatic Relations. Article 26 provides that diplomatic agents can travel anywhere in the
territory of the receiving State subject to the condition that they cannot go to prohibited places or
places which are important from the point of view of the security of the receiving State.

Freedom of communication for official purpose

The freedom has been conferred upon by Article 27 of the Vienna Convention on the
Diplomatic Relations. This Article provides that they have freedom to communicate with the
home-State in connection with their functions and duties.

Immunity from local and military obligations

Diplomatic agents are also exempt from local and military obligations. This provision has
been incorporated in Article 35 of the Vienna Convention.

Immunity from inspection of personal baggage

160
Ibid, p.54

109
 Article 36(2) of the Vienna Convention provides that the personal baggage of a
diplomatic agent should be exempt from inspection, unless there are serious grounds for
presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of
this Article, or Articles the import of which is prohibited by the law or controlled by the
quarantine regulations of the receiving State.

State inspection shall be conducted only in the presence of the diplomatic agent or his
authorized agent.

Immunity from Social Security Provisions

According to Article 33, a diplomatic agent shall with respect to services rendered for the
sending State be exempt from Social Security provisions which may be in force in the receiving
State.

8. DUTIES OF DIPLOMATIC AGENTS

1) Duty to respect laws and regulations

According to paragraph 1 of Article 41 of Vienna Convention on Diplomatic
Relations, without prejudice to the privileges and immunities, it is the duty of all persons
enjoying such privileges and immunities to respect the laws and regulations of the
receiving State.
2) Duty not to interfere in Internal Affairs
They have a duty not to interfere in the internal affairs of that State.
3) Official business to be conducted only through the Ministry of foreign affairs of
receiving State
All official business with the receiving state entrusted to the mission by the
sending State shall be conducted with or through the Ministry of foreign affairs of the
receiving State or such ministry as may be agreed.
4) Premises of Mission not to be used in any manner inconsistent with the Mission
Article 41, paragraph 3 provides that the premises of the mission must not be used
in any manner incompatible with the functions of the mission as laid down in the Vienna
Convention or by the rules of general international law or by special agreements in force
between the sending and the receiving State.

110
5) Diplomatic agent not to establish office of profit

According to article 42 of the Vienna Convention, a diplomatic agent shall not in

the receiving State practice for personal profit or pursue any professional or commercial
activity.

111
MODULE 09 LAW OF STATE RESPONSIBILITY

1. INTRODUCTION

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 concerns the breach by a State of one or more of its international
obligations. 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.

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.

2. NATURE AND BASIS OF STATE RESPONSIBILITY

The doctrine of state responsibility is one of the core tenets of international law. Legally
speaking state responsibility is ‘simply the principle which establishes an obligation to make
good any violation of international law producing injury’. State responsibility arises out of the
legal maxim stated by Grotius in 1646 that ‘every fault creates the obligation to make good the
losses’. 161
As states are the conventional subjects of international law, technically the principle of
state responsibility applies only on the state-to-state level
VIOLATION OF INTERNATIONAL LAW

In order to establish the existence of a violation of International law, it is necessary to

establish, firstly, that there is a specific behavior consisting in action or inaction, that may,
according to international law, be imputed to a given state, and secondly that such behavior
constitutes a violation of that states in international obligations. 162 As a rule, responsibility arises

161
J. Crawford, The International Law Commission’s Articles on State Responsibility, Cambridge, 2002
162
C. Eagleton, The Responsibility of States in International Law, New York, 1928

112
when actions by the state violating the law cause material or non-material damage to the
legitimate interests of another state.
However, in the case of violations that are especially dangerous, responsibility may arise
on the grounds that the damage affects the international community as a whole. Liability arises
only when there is a direct causal relation between the damage that is experienced and the
illegitimate behavior of a given state

STATES MAY PERFORM ACTIONS OR FAIL TO ACT ONLY THROUGH NATURAL

PERSONS

In 1947 the International Military Tribunal at Nuremberg stated that “crimes against
international law are committed by men, not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of international law be enforced” 163
A
state can be liable only on the grounds of the behavior of persons possessing specific legal
relations with that state, in those who are its organs or officials. Thus the term “liability” is
employed in international practice to denote a specific relationship between a persons or a group
of persons that commit a certain action or inaction, on the one hand, and the state that is
responsible for their activities, on the other. 164 This means that, from the point of view of
international law, they must be viewed as activities, on the other. This means that, from the point
of view of international law, they must be viewed as activities of that state.
THE POSITION OF CORRESPONDING STATE BODIES

The position of corresponding state bodies within that states organizational structure does
not pay a substantial role in the emergence of the state ’s international legal responsibility.
The actions of legislative bodies leading to international responsibility include primarily the
adoption of laws or any other normative acts that contradict the state’s international
obligations. 165 In such cases it becomes liable immediately upon the promulgation of the law.

163
Nuremberg trial
164
I. Brownlie, System of the Law of Nations: State Responsibility, Part I, Oxford, 1983
165
Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, London, 1953

113
The failure to pass a law needed to carry out an international obligation gives rise to international
liability only when there have been unlawful acts resulting from the failure to pass such laws 166
The state is also subject to international legal responsibility for actions by its executive
organs (ranging from the government itself to representatives of lower levels of the executive
power), these bodies account for the majority of violations, there have been numerous instances
of diplomats of imperialist states committing a variety of hostile acts against host countries,
including direct violations of their laws, helping to organize conspiracies and coups d’etat,
engaging in an espionage etc.,
A state’s international obligations may also be violated by the actions or failures to act of
national courts since them, too, are organs of the state. The principle of the independence of the
juridical power does not preclude the state responsibility, for this principle refers to the
independence of courts in relation to governments, not to states.
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. 167 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. 168 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.

ORGANS OR OFFICIAL PERSONS ACTING OUTSIDE THEIR FORMAL

COMPETENCE,

State responsibility also arises for actions by its organs or official persons committed
outside their formal competence, i.e. if they have exceeded their powers or violated instructions.

166
G.I. Tunkin, International Law, (1986), p. 225
167
Deng F, Sovereignty, Responsibility and Accountability ,(1995), p.5
168
Ibid, p.22

114
Acts by an official person who uses his official position or service equipment to harm a foreign
state or its citizens are viewed as actions by the state itself, for which it is held responsible.

ACTS COMMITTED ON ITS TERRITORY BY PRIVATE PERSONS

A state’s responsibility may arise as a result of acts committed on its territory by private
persons (its own citizens or foreigners) and their organizations. States are not responsible for the
actions of private individuals, but for the behavior of their organs in failing to prevent such
action or to punish the guilty parties, as they are obliged under the law. This is especially serious
in the case of such acts by private individuals as international terrorism, war propaganda, racial
discrimination and genocide. 169
It is generally recognized in international relations that a state cannot avoid international
responsibility by referring to its domestic law, i.e. by arguing that its organs acted in full
compliance with the prescriptions of domestic law. A state’s responsibility under international
law relates exclusively to inter-state relations, and a state is responsible for the non-fulfillment of
its international obligation independently of legislative acts relating to its domestic law

RESPONSIBILITY OF A STATE ARISES FROM ACTIONS BY ORGANS OF OTHER

STATES

It has already been noted earlier that, in principle, as a subject of international law, the
state bears international legal responsibility only for its own actions, i.e. those of its own organs.
This also applies to cases in which the responsibility of a state arises from actions by organs of
other states that contradict international law and are initiated on its territory, or else from its
territory against third states.170
Two categories of such actions should be distinguished, namely, actions by another state
carried out on the territory of the given state within its consent, and actions performed without its
consent.
If actions of another state, directed against a third state and violating international law,
are conducted on the territory or from the territory of the given state with its consent it becomes a

169
Ibid, p.28
170
Ibid, p.32

115
party to the foreign states unlawful actions. This consent may be either adhoc or general. This
issue often arises when there are imperialist military bases on the territory of another state. The
state on whose territory there exist foreign military bases which are used for unlawful activities,
in relation to a third state is an accomplice in such actions and bears responsibility for them since
they are conducted with its consent, expressed in the agreement on the establishment of these
bases. 171
When, on the other hand, illegitimate actions by a foreign state directed against a third
state are conducted on the territory or else from the territory of a given state without its clearly
expressed or tacit consent, then it is responsible for such activities only if it organs have not
shown’ due diligence in taking measures to end such activities by foreign states. When a state
permits on its territory activities by a foreign state that are, by their very nature, directed against
another state the problem of due diligence’ does not arise, and such a state is responsible as an
accomplice for any illegitimate activities by the foreign state initiated on its territory or else from
its territory against a third state

3. ELEMENTS OF STATE RESPONSIBILITY

State responsibility is mainly founded on three key elements: 172

 The existence of an international legal obligation
 The omission of an act or occurrence of a wrongful act in its violation
 Loss or damage must result from such a wrongful act or omission.

ATTRIBUTABLE TO A STATE
A State is international responsible when it has performed an internationally wrongful
act, meaning conduct consisting of an action or omission that is attributable to a State under
international law and that constitutes a breach of the international obligation of the State. 173 In
some cases, a State’s actions may be justified because of circumstances precluding wrongfulness.

171171
Ibid, p.39
172
Ian Brownlie, System of the Law of Nations – State Responsibility, Part I (1983), p. 35
173
C. Eagleton, The Responsibility of States in International Law, New York, 1928

116
Examples of such circumstances are consent, self-defence, force majeure, distress and necessity.
This is for the respondent State to assert and prove.174
The rules of attribution specify the actors whose conduct may engage the responsibility
of the State. A State will generally only be liable for its conduct of its organs or officials acting
as such.175 Acts of private persons will usually not lead to State responsibility. However, a State
may be liable for its failure to prevent such acts, or to take action to punish the individuals
responsible.176 The acts of mobs or private individuals may also be attributable to the State if the
State had authorized or controlled the acts, 177 or if and to the extent that the State acknowledges
and adopts the conduct in question as its own.178
BREACH OF A LEGAL DUTY
There must as well be a breach of a legal duty in order for international responsibility to
incur. It does not matter if it is a treaty obligation or customary international law or any other
obligation owed under international law. Neither does the kind of conduct matter. Lysén
exemplifies that State conduct might be comprised of “positive acts, omissions, failure to achieve
a certain result, or failure to meet a standard of due care, or diligent control or pure lack of
vigilance that is lawful according to the national law of that State”179

4. STATE RESPONSIBILITY IN DIFFERENT FIELDS

4.1.INTERNATIONAL DELINQUENCY
Is any injury to another state committed by the head or government of a state in violation
of an international legal duty. It is equivalent with the act of officials or other individuals
commanded or authorised by the head.It rages from ordinary breaches of treaty obligations,

174
ILC’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, Article 1
175
Ibid., Article 4.
176
Crawford, and Olleson, p. 455. For example, in the Tehran Hostage Case, Iran was held to have breached its
special obligation of protection of the US embassy, even before the students occupied the embassy. ICJ Reports
1980, p. 32, paragraph 63
177
ILC’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, Article 8
178
Ibid., Article 11. An example of this is the Tehran Hostage Case where the students’ acts were translated into acts
of Iran subsequent a decree of Ayatollah Khomeini. ICJ Reports 1980, pp. 35-6, paragraphs 73-4
179
Ibid, p.55

117
involving not more than pecuniary compensation to violations of international law amounting to
a criminal act in the generally, accepted term.180
According to starke, international delinquency is a wrongful act committed by a state
which is not a breach of a purely contractual obligation. It is wrongful act committed by an
official or organ of the state concerned which may be imputed or attributed to the state.181

4.2.IN1URY TO ALIEN
State is under obligation to protect rights of aliens in the same way as they protect the
rights of their citizens. State responsibilities towards aliens may be of following types. 182

4.2.1. FOR ACTS OF PRIVATE INDIVIDUALS

State in under duty to exercise due diligence to prevent its own sub1ects as well as
foreign sub1ects who live within its territory from committing injurious acts against other states.
State responsibility for official acts of administrative officials and members of armed forces is
extensive,183
Responsibility for private persons is limited because in practice it is impossible for a state
to prevent a private person from committing in1urious act against a foreign state.
The duty of state is simply to exercise due diligence and where in1urious acts have
nevertheless been committed, to procure satisfaction and reparation for the wrongful act, as far as
possible, by punishing the offenders and compelling them to pay compensation if necessary.
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 184 . 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. 185

180
Ibid, p.112
181
Ibid, p.122
182
International Law of State Responsibility for Injuries to Aliens (ed. R. B. Lillich), Charlottesville, 1983
183
Ibid, p.36
184
Ibid, p.45
185
Ibid, p.65

118
 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.” 186 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.

4.2.2. FOR ACTS OF MOB VIOLENCE

Same as for acts of private individuals, generally state may be held responsible for mob
violence only when it had not made due diligence to prevent it. United states diplomatic and
consular staff in Tehran reports Rioters and other militants attacked and occupied us diplomatic
and consular premises in Iran They also seized the occupants and held them as hostages.187
Since the rioters and militants were persons without official status in the initial stages
their acts could not be imputed to the state, the IC1 held Iran not responsible for the initial stages
of their acts. But subsequently the situation changed when the militants became agents of the
state and hence Iran was held responsible for their acts The Israel government was held
responsible to pay compensation.

186
R. B. Lillich, ‘Duties of States Regarding the Civil Rights of Aliens’, 161 HR, 1978, p. 329
187
United Nations Codification of State Responsibility (eds.M. Spinedi and B. Simma), New York, 1987

119
 4.2.3. FOR ACTS OF INSURGENTS
The state is not responsible for acts of the insurgents, but is only obliged to exercise due
diligence to prevent or immediately crush the insurrection, and to punish those responsible for
in1uries to foreigners.188
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.

5. THEORIES OF STATE RESPONSIBILITY

There exist various theses about international responsibility of States; most of them
concern responsibility of some kind for a wrongful act and one is about liability without a
wrongful act. Thus, there is a difference between the terms responsibility and liability in
contemporary international law. By responsibility, it is usually meant the consequences arising

188
Ibid, p.211

120
from the breach of an international obligation while liability means the duty to compensate
damage in the absence of a violation of international law.

5.1. FAULT OR SUBJECTIVE THEORY

Fault responsibility (or subjective responsibility) mostly refers to the intention (dolus) or
negligence (culpa) of the actor. State is not responsible to another state for unlawful acts
committed by its agents unless such acts are committed willfully and maliciously or with
culpable negligence. 189 The necessary measures have thus not been taken to avoid the injurious
event .
In situations where acts of private persons result in damage and the acts are not
attributable to the State, the State may still be responsible because of failure to control. In the
Corfu Channel Case190,where Albania was held responsible since it must have known that the
mines had been recently laid and even so failed to warn the British warships passing through the
strait of the imminent danger, the court said that:
It is clear that knowledge of the mine laying cannot be imputed to the Albanian
Government by reason merely of the fact that a minefield discovered in Albanian territorial
waters caused the explosions of which the British warships were the victims It cannot be
concluded from the mere fact of the control exercised by a State over its territory and waters that
that State necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor
yet that it necessarily knew, or should have known, the authors. This fact, by itself and apart
from other circumstances, neither involves prima facie responsibility nor shifts the burden of
proof.

5.2. RISK OR OBJECTIVE THEORY

This theory is based on the premise that a state must be liable once an unlawful act which
violates a clear international obligation is done, notwithstanding the intention of the official
involved or any fault. “191 the doctrine of the “objective responsibility” of the state, that is the
responsibility for the acts of the officials or organs of a state …may devolve upon it even in the

189
Ian Brownlie, System of the Law of Nations – State Responsibility, Part I (1983), p. 55
190
ICJ Reports 1949
191
Ian Brownlie, Principles of Public International Law, (5th Ed. 1998), p. 281

121
absence of any “fault” of its own … The state also bears an international responsibility for all
acts committed by its officials or its organs which are delictual according to international law,
regardless of whether the official organ has acted within the limits of its competence or has
exceeded those limits …
However, in order to justify the admission of this objective responsibility of the state for
acts committed by its officials or organs outside their competence, it is necessary that they
should have acted, at least apparently, as authorised officials or organs, or that, in acting, they
should have used powers or measures appropriate to their official character”.192
5.3. ABSOLUTE LIABILITY
Lastly, alongside the various theories of responsibility for a wrongful act, there is also the
regime of liability without a wrongful act. Here, the causal link between the activity and the
damage done leads to the obligation to pay compensation, or liability, even though the damage
occurred from a lawful activity. 193 It has often been for practical reasons, because of scientific
and technological developments,194 that international liability has advanced. The developments
have lead to activities that are beneficial to society, but that also involve a certain degree of risk
of causing harm. Examples of such activities are the transportation of oil, the production of
nuclear energy and operations in outer space. 195
This has resulted in several treaties regulating these activities contain special liability
rules. 196 Most treaties containing rules on liability concerns civil liability, meaning that the
operator or owner of a certain activity is obliged to pay compensation for damage resulting from
the activity. The liability regarding an accident is restricted to an insurable sum of money and the
national courts are the forum for a proceeding.
The point is that victims should be appropriately compensated and status quo be restored.
A few conventions have assumed international liability.46 Since the State parties are not too
fond of such solution they instead prefer definite standards to be met by the State parties and/or

192
Ibid, p.286
193
Ibid, p.289
194
Ibid, p.292
195
Ibid, p.296
196
R.Ago, Eight Report on State Responsibility, Circumstances Precluding Wrongfulness, (U.N. Doc. A/CN.
4.318/Add. 1-7); Reports of the ILC on the work of its XXXI and XXXII Sessions, New York, 1979 and 1980
(U.N.Doc.A/34/10, pp. 239-69 and U.N.Doc. A/35/10, pp.59-135)

122
creating civil liability regimes. 197 Conclusively, there is not a very large amount of treaties
containing liability, and liability is neither common in customary international law. 198

5.4. ECLECTIC THEORIES OF RESPONSIBILITY

There are also eclectic theories of responsibility that are a compromise between the fault
theory and the theory of objective responsibility. This idea concerns the objective and relative
responsibility together with a special regime for the particular rules containing the duty of
diligence. There are various opinions about this theory. One group of authors claim that it is the
interpreter alone, who shall estimate if the wrongful act requires fault. 199
Swarzenberger believes “the judge’s discretion, reasonableness and equity are the guide
for seeing whether, in each specific case, in order to have a wrongful act, an additional element
to the breach of an international obligation must be required”. Subjective fault sometimes may be
considered, especially “when the international obligation is defined in terms of goals and when
the lawfulness of the State conduct is to be judged by reference to given standards of
diligence. 200 Some authors are instead more careful about distinguishing between cases adhering
to fault responsibility and those subject to the principle of objective responsibility.
In order to do so, they differentiate among groups of wrongful acts and sometimes among
groups of norms or of international obligations. Brownlie has argued that objective
responsibility is the main rule, but that fault may come into play when a State is obliged by
international law to exercise control, accordingly standards of due diligence, over specific
activities in order not to cause harm. 201
Thus, it is the content of the international norm in question, which settles whether fault is
relevant Because of the lack of consensus among the authors, it is therefore doubtful whether the
eclectic theories can be considered to be a theory of the same significance as the theories of
objective responsibility and of fault responsibility.

197
Ibid, p.67
198
Ibid, p.73
199
Report of the International Law Commission on the work of its 25th session, 1973, Paragraph 58, in notes on
Draft Article 3 on State Responsibility, referring to this case of negligence Rebecca. M.M. Wallace, International
Law; (2nd Ed.1993), p. 169
200
Ibid p. 172
201
Ibid p. 178

123
6. SIGNIFICANCE OF DOCTRINE OF CULPA
Culpa can be explained as the actor’s attitude of will, blameworthy because of reasonable
foreseeability or recklessness. The necessary measures have thus not been taken to avoid the
injurious event. In situations where acts of private persons result in damage and the acts are not
attributable to the State, the State may still be responsible because of failure to control. 202
Standards of due diligence may be considered to determine the possible fault of a State. The
claimant State then has to prove, in addition to the breach of the international obligation, the
wilful or negligent conduct of the organs of the respondent State of the wrongful act. 203
Fault responsibility (or subjective responsibility) 204 mostly refers to the intention (dolus)
or negligence (culpa) of the actor. Dolus means that the actor behaves in a certain way with the
intention to cause harm. Dolus can be helpful in solving the problem of attributability and
determining the breach of duty as well as having effect on the remoteness of damage.
Noteworthy is that even in case of an ultra vires act of a State organ performed with dolus
and, independent of whether the act is permitted by law or not, the responsibility of the State is
not affected.205

7. DEFENSES PRECLUDING STATE RESPONSIBILITY

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” 206
CONSENT
For a state to successfully plead this defense there must be existence of a valid consent. It
must be shown that the state that breached its responsibility was within the scope of that consent.

COUNTERMEASURES

202
Ibid p. 182
203
Ibid p. 185
204
Ibid p. 189
205
Ibid p. 194
206
Supra Note 39, p. 122-143

124
 The International Law Commission Articles recognize the fact that states are entitled to
resort to countermeasures. Countermeasures MUST NOT be forcible. Non-forcible anticipatory
countermeasures are unlawful. This is because countermeasures constitute a response to an
unlawful act. Countermeasures are temporary, reversible steps aimed at inducing the wrongdoing
state to comply with its obligations under international law.

FORCE MAJEURE

Article 23 of the ICL Articles defines force majeure as ‘the occurrence of an irresistible
force or of an unforeseen event, beyond the control of the state, making it materially impossible
in the circumstances to perform the obligation’. However, paragraph 2 of art 23 excludes a
defence based on force majeure:
a) situation of force majeure is due, either alone or in combination with other
factors, to the conduct of the state invoking it; or
b) The state has assumed the risk of that situation occurring.
Force majeure was pleaded by Albania in the Corfu Channel Case (1949) ICJ.
The ICJ rejected the defence on the ground that Albania did not show that it was an
absolute impossibility to notify the existence of a minefield in its territorial waters to the UK
warships

NECESSITY
1. There must be exceptional circumstances of extreme urgency,
2. The status quo ante must be re-established as soon as possible and
3. The state concerned must act in good faith.
Article 25 of the International Law Commission Articles defines the conditions
for invoking a defence based on necessity.
DISTRESS
Article 24 of the ILC Articles provides that the situation of distress occurs when ‘the
author of the act in question has no other reasonable way, in a situation of distress, of saving the

125
author’s life or the lives of other persons entrusted to the author’s care’. Under art 24 it provides
that distress cannot be invoked if:
 The situation of distress is due, either alone or in combination with other factors, to the
conduct of the state invoking it;or
 The act in question is likely to create a comparable or greater peril.
In a situation of distress there is always a choice
1. To respect an international obligation
2. To sacrifice one’s life or the lives of others who are in one’s care

To illustrate a situation of distress, the International Law Commission gave an example

of the unauthorized entry of an aircraft into a foreign territory to save the life of a passenger or
passengers.

SELF-DEFENCE
Self-defence as defined in international law, especially under art 51 of the Charter of the
United Nations and in customary international law, will preclude the wrongfulness of the
conduct concerned.
In customary international law, under the principles established in the Caroline Case:
USA v UK (1837), a pre-emptive strike was a perfectly lawful means of anticipatory self-
defence in the face of a threat of force; indeed, it was the only possible means of defence against
such threats as they could only be countered by an attack to pre-empt the harm that they would
otherwise cause.

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MODULE 10 LAW OF TREATIES

1. INTRODUCION
In the modern day period international treaties have become the first and foremost source
of international law pushing custom to the second position. The reason being that after the
Second World War, the States felt that they should sign a large number of treaties to lend support
to the newly established United Nations Organization. Therefore modern international law
comprises of treaty rules or positive rules of international law. The significance of treaties is
evident from the fact that whenever the International Court of Justice has to decide an
international dispute, its first endeavor would be to find out whether there is any international
treaty or convention on the point in dispute. In case there is an international treaty governing the
matter under dispute, the decision of the court is based on the provisions of that treaty or
convention. 207

2. MEANING AND DEFINITION OF A TREATY

In the view of Prof Oppenheim, "International treaties are agreements of a contractual
character between States or Organisations of States creating legal rights and duties".208
According to Starke, "In nearly all the cases the object of the treaty is to impose binding
obligations on the States who are parties to it. The term "treaty" has also been defined in the209
Vienna Convention on the Law of treaties, 1969. Article 2 (1)(a) of the Convention defines treaty
as an international agreement concluded between States in written form and governed by
international law."210
The basis for the binding force of International treaties is the concept of Pacta Sunt
Servanda. There is a great controversy among the jurists with regard to the binding force ofan
international treaty. In the view of Italian jurist, Anzilotti, the binding force of aninternational

207
Oppenheim’s, International Law, (9th Ed. 1992) p.55
208
A. D.McNair, The Law of Treaties, Oxford, 1961, pp. 81–97
209
Ibid, p.111
210
Ibid, p.116

127
treaty is because of the fundamental principle known as Pacta Sunt Servanda the meaning of
which is “obligations must be kept in good faith”. 211
In view of the significance of the Law of the treaties, the International Law Commission
decided in 1945 to attempt its codification by preparing a Draft Convention on the Law of the
Treaties. The commission completed its work in 1966. On 23rd May, 1969, the United Nations
Conference on the Law of Treaties adopted the Vienna Convention on the Law of the Treaties. 212
3. TYPES OF TREATIES
McNair has classified the treaties under the following categories: (1) Treaties having the
character of conveyances;213
(2) Treaty contracts;
(3) Lawmaking treaties; and
(4) Other treaties, such as the Treaty of Universal Postal Union.
4. PARTIES TO TREATY
Generally speaking, only sovereign States are competent to sign a treaty. In accordance
with the principle of sovereignty, sovereign States have unlimited powers to sign treaties. Those
States which are not completely sovereign are not competent to sign it. Mostly the
representatives of the sovereign States initially sign the treaties but the treaties that are signed do
not bind the governments or States until such treaties are ratified. 214
Various modes by which a State may express its consent to be bound by a treaty may be
expressed in the following means:215
1. By Signature
The consent of the State to be bound by a treaty is expressed when its representative puts his
signature on the text of the treaty and when: 216
 the treaty provides that signature shall have that effect;

211
Ibid, p.122
212
Ibid, p.132
213
A. Aust, Modern Treaty Law and Practice, 2nd edn, Cambridge, 2007, chapter 10
214
Ibid, p.65
215
Ibid, p.76

128
 it is otherwise established that the negotiating States have agreed that signature should
have that effect; or
 the intention of the State to give that effect to the signature appears from the full powers
of its representative or was expressed during the negotiation.
2. By an exchange of instruments consisting of the text of the treaty:
The consent of States to be bound by a treaty may also be expressed by an exchange of
instruments constituting the text of the treaty between them when:
 the instruments provide that the exchange shall have that affect;
 it is otherwise established that the States have agreed that the exchange of instruments
should have that effect.
3. By Ratification, acceptance or approval: The consent of a State to be bound by a treaty
is expressed by ratification when:
 the treaty so provides for such consent to be expressed by means of ratification or
 it is otherwise established that the negotiating States have agreed that ratification should
be required or
 the representative of the State has signed the treaty subject to ratification; or
 the intention of the State to sign the treaty is subject to ratification appears from the full
powers of its representative was expressed during the negotiation.
 The consent of a State to be bound by a treaty is expressed by acceptance or approval
under conditions similar to those which apply to ratification.
4. By Accession: The consent of a State to be bound by a treaty is expressed by accession
when:
 A treaty provides that such consent may be expressed by that State by means of
accession; or
 it is otherwise established that the negotiating States have agreed that such consent may
be expressed by means of accession; or
 All the parties have subsequently agreed that such consent may be expressed by a State
by means of accession.

129
 5. FORMATION OF TREATIES
A formation of a treaty involves the following stages: 217
1) Accrediting of persons on behalf of contracting parties: The first step in the formation of a
treaty is the accrediting of persons on behalf of the contracting parties. States authorize some
representatives to represent them during the negotiation, adoption and signature, etc. of a treaty.
Unless these representatives are accredited or authorized, they cannot participate in the
negotiations and deliberations of a treaty or conference.
2) Negotiation and Adoption: The accredited persons of contracting parties enter into
negotiations and deliberations for the adoption of the treaty. After the States come on to a
common platform in respect of their interests and the matter is settled then the treaty is adopted.
3) Signatures: After negotiation, the next important stage is the signature of the accredited
persons of the contracting parties. The authorized representatives of the State parties sign a treaty
on behalf of their States. It may however, be noted that the treaty does not become binding upon
the States until it is formally ratified by the respective States.
4) Ratification: Ratification is a very important step in the formation of a treaty. Generally
speaking, until and unless a treaty is ratified it does not bind the States concerned. By ratification
it is meant that the head of a State or the government of a State in accordance with the provisions
of the Constitution confirms or approves the signature made by the authorized representatives of
the State to the treaty. The States parties become bound by the Treaty after ratification.
The advantage of ratification is that the government of a State gets the opportunity to
read the text of the treaty between the lines to ensure that any provision or provisions of the
treaty are not in conflict with the interests of the State, if they are then to exclude totally, alter,
modify or amend such provision or provisions and also to extract opinion from the public on the
question whether the State should sign the treaty or not.
5) Accession or Adhesion: The practice of the States show that those States which have not
signed the treaty may also accede to it later or subsequently. This is called accession. The treaty
comes into force only when it is ratified by the prescribed number of States which are parties to
the treaty. Even after the prescribed numbers of State parties have ratified the treaty, other States
may at any point of time also adhere to the treaty by subsequently signing it. This is called
adhesion.

217
Ibid, p.78

130
6) Entry into force: The entry into force of the treaty depends upon the
provisions of the treaty. Some treaties enter into force immediately after the signatures. But a
treaty for which ratification is necessary to enter into force shall come into force only when it is
ratified by the prescribed number of State parties. Now the question is whether a treaty becomes
binding law only among the States which have signed and ratified such a treaty. It is a
fundamental principle of international law that only parties
to a treaty are bound by that treaty, this is often expressed by the maxim 'pacta tertiis nec nocent
nec prosunt'.
7) Registration and Publication: After a treaty comes into force its registration and publication
are also ordinarily considered essential. Article 102 of the United Nations Charter provides that
the registration and publication of every international treaty entered into by the members is
essential. It is made clear in this article that if an international treaty or agreement is not
registered, it cannot be invoked before any organ of the United Nations.
Therefore, international treaties or agreements should be registered and published. This
provision, however, does not mean that if a treaty is not registered and published it will not come
into force or become invalid. In fact Article 102 means that if a treaty is not registered with the
United Nations, it cannot be invoked before any organ of the United Nations. The object of
Article 102 was to prevent the practice of secret agreements between States, and to make it
possible for the people of democratic States to repudiate such treaties when publicly disclosed.
8) Application and Enforcement: The last stage in the formation of the treaty is its application
and enforcement. After a treaty is ratified, published and registered, it is applied and enforced.

Ratification
The principle of ratification of a treaty means, as pointed out earlier ratification is an
important stage in the formation of a treaty. Normally, without ratification a treaty shall not
become binding. Ratification means that the head of the State or its government approves the
signatures of its authorized representative. 218 Article 2 of the Vienna Convention on the Law of
Treaties lays down that “Ratification is an international act ... ... Whereby a State establisheson

218
Ibid, p.85

131
the international plain its consent to be bound by a treaty. It is generally agreed thatratification
becomes effective from the day when it is made”. There is no retroactive effect.219
On the basis of the principle of sovereignty sovereign States possess unlimited powers in
respect of treaties. If a treaty has been signed by the authorized representative of the State, it
does not create binding obligations on the State concerned nor is the concerned State bound to
ratify such a treaty. In other words, we may say international law does not impose any duty upon
the States to ratify those treaties which have been signed by their representatives.220 Nor is it
necessary for the States to explain the reason for not ratifying the treaty.
In fact, it depends upon the sweet will of the State concerned whether or not to ratify a
treaty. Ordinarily State parties are not bound by treaties until they ratify them. Hence ratification
of the treaty is very important. However it may be noted that it is not necessary in all cases of a
treaty to be binding without ratification. If a State party has intended that the ratification was
essential then the treaty becomes enforceable in law only after ratification. But if ratification is
not essential then under some special circumstances the provisions of a treaty may create binding
force.

Reservation
Reservation to treaties in the modern day period has created a great controversy. There
are very few aspects of the law of the treaties that have generated greater controversy in the past
20 years than the question of reservation to multilateral treaties and conventions. 221
The term reservation has been defined in Article 2(1) of the Vienna Convention on the
Law of the treaties, 1969. It runs as follows: “Reservations means a unilateral statement ... ...
Madeby a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby,
itpurports to exclude or modify the legal effect of certain provisions of the treaty in
theirapplication to the State”.222
Where a State makes a reservation to a bilateral treaty, it is not a problem because the
other State is entitled to terminate the treaty, but a reservation when made to a multilateral treaty

219
R.Higgins in The Effect of Treaties in Domestic Law (eds. F. Jacobs and S. Roberts), London, 1987, p. 123
220
Ibid, p.133
221
Ibid, p.138
222
Ibid, p.142

132
or convention by one or more parties creates a problem. The controversy regarding reservation
being made to multilateral treaties and conventions was finally settled by the International Court
of Justice through its advisory opinion given in the year 1950 when reservations were made to
the Genocide Convention-1948 by Germany. The opinion was given in a three stage formula. 223
6. SIGNIFICANCE OF PACT SUNT SERVANDA
It is doctrine borrowed from the Roman law and has been adopted as a principle
governing treaties in international law. 224 In the view of Italian Jurist Anzilotti, pacta sunt
servanda is the basis of the binding force of international law. This principle means that states
are bound to fulfill in good faith of the obligations assumed by them under agreements. 225
According to Prof. Oppenheim, “treaties are legally binding because there exists a
customary rule of international law that treaties are binding. The binding effect of that rule rests
in the last resort on the fundamental assumption. This is neither consensual nor necessarily legal
of the objectively binding force of an international law.” 226 This assumption is frequently
expressed by the norm or principle, ‘pacta sunt servanda’. The International Court of Justice has
described it as ‘a time knowned basic principle’. 227
Accordingly to Fenwick, “philosophers, theologians and jurists have recognized with
unanimity that unless the pledged word of a state could be relied upon the relation of the entire
international community would be imperiled and law itself would disappear”. 228
The PCIJ has consistently held that the provisions of municipal law cannot prevail over
these of treaty. The Court observed in the case concerning the Treatmentof Polish National in
Danzig: “a state cannot adduce as against another state its own constitution with a view to
evading obligation incumbent upon it under international law or treaties in force”. 229 Again it
was observed in the Free Zone case; “it is certain that France cannot rely on her own legislation
to limit the scope of international obligations”. The same view was repeated in the Greco

223
Ibid, p.144
224
M.P.Tandon, Public International Law, (2001), p. 250
225
I. Sinclair and S. J. Dickson, ‘National Treaty Law and Practice: United Kingdom’ I National Treaty Law and
Practice (eds.M. Leigh and M. R. Blakeslee), 1995, p. 223
226
Ibid, p.232
227
Ibid, p.242
228
Ibid, p.248
229
Ibid, p.252

133
Bulgarian Communities by the PCIJ in its Advisory Opinion; “it is a generally accepted principle
of international law that in the relations between powers who are contracting parties to a treaty,
the provisions of municipal law cannot prevail over those of the treaty”. 230
Article 26 of the Vienna Convention on the Law of Treaties 1969, specifically embodies
the doctrine of Pacta Sunt Servanda when it lays down that every treaty in force is binding upon
the parties to it and must be performed by them in good faith 231. It is not hard to see why this is
so. In the absence of a certain minimum belief that states will perform their treaty obligations in
good faith, there is no reason for countries to enter into such obligations with each other.
In Paul Reuter’s words, the principle can be translated by the following formula: treaties
“are what the authors wanted them to be and only what they wanted them to be and because they
wanted them to be the way they are”. A party is not authorized to invoke the provisions of its
internal law as justification for its failure to perform a treaty (Article 27). Generally speaking,
this solid legal link neither is nor even weakened in the case severance of diplomatic relations
between the parties to a given treaty (Article 63). 232 But apparently states expect increasingly out
of realism that the treaties they conclude in certain areas, in particular with regard to the
protection of the environment, will note be properly implemented by all states parties just out of
respect for the “Pacta Sunt Servanda” rule.

7. SIGNIFICANCE OF JUS COGENS

A peremptory norm is a fundamental principle of international law, which is accepted by the
international community of states as a norm from which no derogation is ever permitted. There is
no clear agreement regarding precisely which norms are neither Jus Cogens nor how a norm
reaches that status, but it is generally accepted that Jus Cogens includes the prohibition of
genocide, maritime piracy, slaving in general (to include slavery as well as the slave trade),
torture, and war of aggression. 233 Unlike ordinary customary law, this has traditionally required
consent and allows the alteration of its obligations between states through treaties. Peremptory

230
Ibid, p.255
231
Ibid p.251
232
Shilpa Jain : Introduction to International Law (2016) Eastern Book Company
233
V.K. Ahuja, Public International Law (Lexis Nexus 2016)

134
norms cannot be violated by a state “through international treaties or local or special customs or
even general customary rules not endowed with same normative force” 234.
Under the Vienna Convention on the Law of Treaties, any treaty that conflicts with a
peremptory norm is void 235. The treaty allows for the emergency of new peremptory norms, but
does not it self specify any peremptory norms. “A treaty is void if, at the time of its conclusion it
conflicts with a peremptory norm of general international law. For the purpose of the present
convention, a peremptory norm of general international law is a norm accepted and recognized
by the international community of states as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general international law
having the same character”236.
The number of peremptory norms is considered limited but not exclusively catalogued.
They are not listed or defined by any authoritative body, but arise out of case laws and changing
social and political attitudes. Generally included are prohibitions on waging aggressive war,
crimes against humanity, war crimes, maritime piracy, genocide, apartheid, slavery and
torture237.

8. SIGNIFICANCE OFREBUS SIC STANTIBUS

Rebus sic stantibus is also a ground for the termination of treaty. The maxim Rebus sic
stantibus means that when the fundamental circumstances under which the treaty was entered
into change then this change entitles the other party to terminate the treaty.

9. PROCEDURE FOR TERMINATION OF TREATIES

Treaties may be terminated by operation of law or by act of the State parties.
1. By Operation of Law: Termination of treaties by operation of law may be made in the
following ways:

234
Prosecutor V Furodzila, International Criminal Tribunal for the Former Yugoslavia, (2002), 121
International Law Reports 213 (2002)
235
Vienna Convention on the Law of Treaties, Article 53, May 23,1969, 1155 U.N.T.S 331, 8
International Legal Materials 679 (1969)
236
U.N.Doc. A/CONF, 39/27 (1969), reprinted in 63 Am.J. Int’l L 875 (1969)
237
International Law Reports, 213, (2002)

135
  When either party to a bilateral treaty becomes extinct it may amount to termination
of the treaty.
 Outbreak of war: According to the old view, the outbreak of war between parties
resulted in the termination of the treaties. But in the modern period all treaties do not end
at the outbreak of war. With regard to the operation of treaties at the outbreak of war,
Starke has pointed out as follows:
1) Treaties between States for which general, political and good relations are
essential, cease at the outbreak of war because political treaties depend upon friendly
relations.
2) Treaties relating to completed situations, such as fixation of boundaries remain
unaffected by war.
3) Treaties dealing with the rules of international law relating to war remain in force
and it is binding upon the parties. Hague Convention of 1899 and 1907 and the four
Geneva Conventions of 1949 are the standing examples of such type of treaties.
4) Some multilateral treaties relating to health, service, protection of industrial
property, etc., do not totally end at the outbreak of war. They simply remain
suspended during the period of war and revived as soon as the war ends.
2. A material breach of bilateral treaty: A material breach of a bilateral treaty by one party
entitles the other party to terminate the treaty.
3. Impossibility of performance: The impossibility of performance of a treaty also is a valid
ground for determination of a treaty. This provision is contained in Article 61 of the Vienna
Convention on the Law of the treaties, 1969.
4. Rebus sic stantibus: Rebus sic stantibus is also a ground for the termination of treaty. The
maxim Rebus sic stantibus means that when the fundamental circumstances under which the
treaty was entered into change then this change entitles the other party to terminate the treaty.
5. Expiration of fixed term: If the treaty has been concluded for a fixed period, the expiry of the
fixed term will automatically terminate the treaty.
6. Successive denunciation: Successive denunciation may also lead to the termination of a
treaty. The provision relating to this is contained in Article 55 of the Vienna Convention on the
Law of treaties, 1969.

136
7. Jus Cogens or emergence of a new peremptory norm of general international law:
According to article 64 of the Vienna Convention, if a new peremptory norm ofgeneral
international law emerges any existing treaties which are in conflict with thatnorm becomes void
and automatically terminates.
International treaties have been signed by the States from a very long period. Initially
customs played an important role in the settlement of disputes in the international community.
After the two world wars a large number of treaties were signed by the States and therefore
modern international law today is composed of treaties and conventions. Treaties play a very
significant role in bringing the States together and also in governing their relations.

137
MODULE 11 SETTLEMENT OF DISPUTE

1. INTRODUCTION

International dispute means in a very broad sense, a misunderstanding, an opposition

between two or more states that have reached the stage in which the parties have formed claims
or counter-claims, and which constitute an element of disruption of relations between them.
International disputes can be born not only between states, but also between them and
international organizations or only between international organizations.

The Permanent Court of International Justice: "a disagreement on a matter of law or fact,
a contradiction, an opposition of legal or interest-based theses." The UN Charter, in Article 34,
establishes, in this respect, the right of the Security Council to "investigate any dispute or
situation that could lead to international friction or could give rise to a dispute in order to
determine whether the extension of the dispute or the situation could endanger international
peacekeeping and security".

2. LEGAL AND POLITICAL DISPUTES

One of the most commonly used definitions characterizes ‘political’ or non justiciable
disputes as the cases that involve the vital national interests of the disputants. The resolutions of
such disputes between nations would inevitably impinge upon the sovereignty of the states. 238
Accordingly, legal questions refer to the disagreements which ‘do not involve the life and future
fate of nations, no matter in whose favor a judicial judgment may be rendered’ The Statute of the
International Court of Justice. 239 Art. 36 defines an international legal dispute as a ‘disagreement
on a question of law or fact, a conflict, a clash of legal views or of interests’ drawing such
distinction between legal and political questions is particularly difficult for international tribunals
is that all the disagreements between sovereign states essentially arise from the desire to protect
their vital national interests.

Even the cases concerning the territorial and maritime boundary disputes such as the
delimitation of the continental shelf between Nicaragua and Colombia in 2001, albeit highly

238
K. Oellers-Frahm and N. W¨uhler, Dispute Settlement in Public International Law, New York, 1984, pp. 92
239
Ibid, p.96

138
technical, would inevitably involve the clash of political interests and the long-term hostility
between the two parties. Hence, if the term ‘political’ is defined as the cases in which the
national interests of the state parties are threatened, none of the contentious cases on the World
Court’s docket would be considered justiciable 240

3. EXTRA-JUDICIAL PACIFIC MEANS

Article 2 of the Charter lays out the principles under which the UN and its members are
required to pursue the aims of Article 1. Article 2 (3) states that ‘all members shall settle their
international disputes by peaceful means in such a manner that international peace and security,
and justice, are not endangered. Article 33 (1) catalogs various methods to be employed by states
to settle disputes pacifically:

The parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall, first of all, seek a solution by negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice.

3.1. NEGOTIATION

Negotiation is a simple diplomatic means and one of the oldest and most used in the
peaceful settlement of disputes between states. This means does not suppose the intervention of a
third party. The primordial role currently played by diplomatic talks lies in the fact that they
offer, due to their direct nature and the direct contract between the parties involved, additional
possibilities of identifying convergent points of view, allowing the overtaking with patience, tact,
understanding of all obstacles or difficulties, as well as agreeing solutions acceptable for all
interested parties. 241 Acceptance and use of this means do not automatically resolve the dispute.
Solutions can be diverse, such as waiving claims, accepting them, engaging in a compromise,
essential to meeting the commitments made by the parties at the end of the negotiations. If the
dispute is not settled, the parties will have the obligation to resort to other means of settlement,
but only by peaceful means.

240
Ibid, p.111
241
Ibid, p.132

139
3.2. GOOD OFFICES

These consist of the action taken by states parties to a dispute by a third - state or
international organization - on their own initiative or at the request of the parties, in order to
persuade disputed states to resolve disputes through diplomatic negotiations. The good offices
are characterized by the fact that the one who offers them does not participate in the negotiations
between the states in question, and its office ceases as soon as the litigants have begun
negotiations. Although they are optional, good offices are means to boost and conclude
negotiations. 242 Their features and functions are similar to those of the negotiations, enrolling
them in the same category of diplomatic, informal and non-judicial methods. In terms of
purpose, the good offices only seek to start or resume negotiations, they end when the parties sit
at the negotiating table

3.3. MEDIATION

In solving the dispute, mediation means active participation of the third party in the
negotiations, "can offer advice and proposals to resolve the conflict", the negotiator's action ends
only after a final result has been reached. Mediation is about conducting negotiations, the
substance of the dispute, to reach a peaceful and convenient solution for the third parties.
Mediation was defined as "the action of a third party, an international organization or even a
recognized personality, aiming at creating the necessary atmosphere for the negotiation between
the parties to the dispute and the direct provision of the services of the third party for finding
solutions favourable to the parties".243

3.4. INQUIRY OR FACT-FINDING

Two parties to a dispute may initiate a commission of inquiry or fact-finding to establish

the basic information about the case, to see if the claimed infraction was indeed committed, to
ascertain what obligations or treaties may have been violated, and to suggest remedies or actions
to be undertaken by the parties. These findings and recommendations are not legally binding, and

242
J. G. Merrills, International Dispute Settlement, 4th edn, Cambridge, 2005, and Merrills, ‘The Mosaic of
International Dispute Settlement Procedures: Complementary or Contradictory?’, 54 NILR, 2007, p. 361
243
Ibid, p.132

140
the parties ultimately decide what action to take.244 A commission of inquiry may usefully be
employed in parallel with other methods of dispute resolution—for instance, negotiation,
mediation, or conciliation—as factual clarity is an important factor in any dispute resolution
strategy.

In 1991, the General Assembly adopted resolution 46/59, which contains detailed rules
for fact-finding by organs of the UN, and the UN Legal Office manual explains in detail the
process and phases of inquiry. Notably, such commissions precede the UN, and originated in The
Hague Conventions for the Pacific Settlement of International Disputes of 1899 and 1907.

3.5. ARBITRATION

The most concrete achievement of the 1899 Hague Peace Conference was the
establishment of the Permanent Court of Arbitration (PCA), located in the Peace Palace in The
Hague. Arbitration represents a ‘qualitative leap’ over the other measures, as it necessitates the
settlement of the dispute in accordance with existing international legal standards. Parties agree
to submit disputes to arbitration, and thereby commit to respect in good faith the outcome, which
is binding. 245 The PCA, which is always accessible, has competence in all arbitration cases
submitted to it by agreement of the parties involved. The PCA provides a list of arbitrators,
appointed by states parties to the Hague Convention, from which parties submitting a dispute to
arbitration can choose.

3.6. CONCILIATION

Conciliation combines fact-finding and mediation. A conciliation commission functions not

only to engage in enquiry to set out clearly the facts of the case—but also to act as a mediator, to
propose solutions mutually acceptable to the disputing parties. 246 Such commissions may be
permanent, or temporarily established by parties to a particular dispute. The commission’s
proposals are not binding, but each party has the option of declaring unilaterally that it will adopt

244
Ibid, p.136
245
J. Collier and V. Lowe, The Settlement of Disputes in International Law, Cambridge, 1999
246
Ibid, p.43

141
the recommendations. Several international treaties feature provisions for the systematic referral
of disputes for compulsory conciliation. 247

The 1969 Vienna Convention on the Law of Treaties articulated a procedure for the
submission by states of requests to the UN Secretary-General for the initiation of conciliation.
On 11 December 1995, the General Assembly adopted resolution 50/50, containing the UN
Model Rules for the Conciliation of Disputes between States, which substantiates and clarifies
conciliation procedures.

4. COERCIVE OR COMPULSIVE MEASURES

4.1. RETORTION

Generally the retortion method used by the state is a legal but deliberately an unfriendly
act with a retaliatory or coercive purpose. When a state behaves in a discourteous manner with
another state, the latter has right to retaliate under the international law. But in doing so only the
measures allowed under law are permitted.248 Consequently, the general mechanisms applied in
retaliations are – recall of diplomats, rupture of diplomatic ties, declaring diplomatic staff as non-
persona grata (undesirable person), economic sanctions etc. Action under retortion can be taken
both in terms of kind and direct or explicit nature. A common form of Retortion consists in
retaliatory increase in tariff rates against states which discriminate against the product of a
particular nation.249 That is why it is called retaliation in kind.

But sometimes when a state acts in reply to legal but discourteous, unfriendly, unfair on
inequitable act with an act of similar type, then retortion is not limited to retaliation in kind.
However, the use of retortion is limited by some provisions of the UN Charter. Most important
among them is the provision under article 2(3) of the charter which prevents the use of retortion
if it endangers the international peace and security and justice in the global order. As a result,
even if it is permitted in some cases then also it should not be in contravention to the possibility
of creation of dangers to peace and security in the international system.

247
Ibid, p.48
248
Ibid, p.55
249
United Nations, Handbook on the Peaceful Settlement of Disputes Between States, New York, 1992

142
 1.2. REPRISAL

It is another type of coercive method used by the states involving generally all kinds of
forceful measures. It is related to the methods adopted by states for securing redress from another
state by taking retaliatory measures. In earlier times, the term has been restricted to the seizure of
property and persons, but in contemporary times it connotes coercive measures adopted by one
state against another for the purpose of settling some disputes brought about by the latter’s illegal
or unjustified conduct.250 Practice of International law has evolved the following principles on
the basis of which this concept can operate

(a) Reprisal is only justified, if at all, where the state against which it is directed has been guilty
of conduct in the nature of an international delinquency.

(b) Reprisal would not be justified if the delinquent state had not been previously requested to
give satisfaction for the wrong done, or if the measures of reprisals were ‘excessive’
proportionally in relation to the injury suffered.

(c) Reprisals are only justified if their purpose is to bring about a satisfactory settlement of a
dispute.

(d) Reprisals should not be resorted to unless and until negotiations for the purpose of securing
redress from the delinquent state fail.

At the outset it must be clear that retaliatory acts between belligerent states in the course of
war are a different matter from reprisals, although they are also termed ‘reprisals’. Therefore
reprisals have always been a controversial matter. 251 However, the basic distinction between
reprisals and retortion is that the former consist of acts which would generally otherwise be quite
illegal, whereas the latter consists of retaliatory conduct to which no legal objection can be taken.
Though, it is agreed that reprisals are based on the use of violent means short of war, yet on the
basis of use of means, these can be divided into four categories: (a) Positive; (b) Negative; (c)
Special; and (d) General.

250
Ibid, p.76
251
Ibid, p.81

143
 Positive reprisals are based on the use of primitive laws for retaliation, i.e. law of ‘an eye for
eye’. Negative reprisals are conducted by not using the violent means, rather the methods like
non-payment of debts or non-obligation of treaties are applied. Special reprisals are based on the
methods used during the middle ages.252 They are resorted to for the indemnification of private
individuals for injuries and losses inflicted on them by subjects of other nations. General
reprisals take place when an aggrieved state performs warlike operations without the intention of
making war.253

Thus, the above-mentioned different types of reprisals are permitted by the orthodox view of
International law where either denial of justice is involved or a situation of international
delinquency exists. To operationalise reprisals numerous strategies can be adopted depending
upon the situations and context of the problems. Generally adopted methods to implement
reprisals are: (i) boycott of goods; (ii) an embargo; (iii) a naval demonstrations; and (iv)
bombardment.254

But the use of these methods is not without any limitations. Both the provisions of UN
Charter as well as the practice of international system placed the following restrictions on the
working of this concept:

(i) Under Article 2(3) of the UN Charter, the member states are restrained to settle their disputes
by peaceful means in such a way as not to ‘endanger’ international peace and security.

(ii) Under Article 2(4) of the UN Charter, the member states are to refrain from the threat or use
of force against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the purposes of the UN.

(iii) In practice, the UNSC in 1964, by a majority, condemned reprisals as being ‘incompatible
with the purposes and principles of the UN’.

252
Ibid, p.86
253
Ibid, p.91
254
Ibid, p.94

144
(iv) On 24 October 1970, the UN General Assembly, while adopting the ‘Declaration on
Principles of International Law concerning Friendly Relations and Cooperation Among States’
declared that: ‘States have a duty to refrain from acts of reprisal involving the use of force.’

Even the uses of force under ‘self defence’ (Article 51) and for ‘collective action’
(Article 33) are limited in terms of: ‘consisted in the threat or the exercise of military force
against another state in such a way as to prejudice its territorial integrity or political
independence would presumably be illegal’; and, the non-use of peaceful means prior to resort to
force would be considered illegal. Thus, reprisals are justified if other state has committed an
international crime or violated any international law. It is justified only if its objectives are
justified and satisfactory to settle international disputes.

1.3. EMBARGO

It is another type of coercive method used by the states to retaliate the action of
belligerent state. If a state violates international law or commits some international crime, then
the affected nation uses the tactics of embargo. Through this strategy, the nation tries to prohibit
the shipment of all goods or certain goods to a particular country or a group of countries.
However, this obstruction of ships can be done only in the area of territorial waters. It is because
beyond this jurisdiction high seas has been considered as an area for the use of humanity at
large.255 This can be imposed both by unofficial or official manner, i.e. this may be initiated by
private groups or public sentiments or by governments. Similarly it can be utilised in both partial
and full manner.

Thus, in a limited sense, the restriction of economic and like activities by the state against
any other state can create problems for the nations which violate international law. However,
this kind of restrictions cannot be utilized beyond the sovereign jurisdiction area of the state
applying embargo.

255
B. S. Murty, ‘Settlement of Disputes’ in Manual of Public International Law (ed. M. Sørensen), London, 1968, p.
673

145
 1.4. PACIFIC BLOCKADE

In the time of war, the blockade of a belligerent state’s ports is a very common naval
operation. The pacific blockade, however, is a measure employed in times of peace. It is
generally designed to coerce the state whose ports are blockaded into complying with a request
for satisfaction by the blockading state.256 Therefore, while applying this ‘ingress’ and ‘egress’
of the ports of the states, are blockaded so that ships of other states may not reach those ports.
Simultaneously it is also ensured that ships of blockaded state may not go out of the ports.257
Therefore, this strategy is used by the state to compel the other side to settle disputes. Here it
must also be clarified that while operationalizing it, the blockading state has no right to seize
ships of third states which endeavor to break a pacific blockade.

Consequently, it follows that the third states are not duly bound to respect such a
blockade. The strategy of pacific blockade is not without limitations. Article 2(3) of the UN
Charter prohibits any such action under pacific blockade if it endangers international peace and
security. However, under Article 42 of the UN Charter, it is justified as a collective measure
taken under chapter VII of the UN Charter. Besides, it is advantageous in two more ways; (i) it is
far less violent means of action than war; and (ii) it is also more elastic as compared to other
such methods. But its utility as unilateral measures has been disapproved by the UN. Hence, in
present times it has become an obsolete method.

1.5. INTERVENTION

It is another compulsive measure used by the states for the resolution of conflict. It can be
both diplomatic and military-oriented in its application. In principle, there are some provisions of
the UN Charter which prohibit the use of intervention. As under Article 2(4), the unilateral use of
force or threat thereof by states in their international relations is prohibited. Similarly, under
Article 2(7), the UN is not allowed to intervene in the domestic affairs of the states. Even some
resolutions passed by the United Nations, from time to time, do not allow the UN to intervene in
the matters of states. However, this does not mean that intervention is ruled out for all purposes.

256
Ibid, p.693
257
Ibid, p.700

146
 Practically speaking, it is allowed both individually and collectively on the basis of the
following two major principles:

(i) Principle of Self Defence: Under this principle, intervention is allowed by an individual state
against the other state.

The right to self-defence is provided under Article 51 of the UN Charter but with
numerous limitations. The limitations like – allowed only in case of arms attack; through UN
system; review by security council; threatening international peace and security; not-available
against non-UN members etc. restricts its operation in a very limited manner.

(ii) Principle of Collective Measures: Besides individualist manner, it is also allowed as

collective activity under the UN system.

In the name of collective intervention it is permitted on humanitarian ground on the basis

of Articles 1, 55 and 56, because the violation of human rights provides legal obligation upon the
members in respect of human

147
MODULE12 INTERNATIONAL INSTITUTIONS

1. HISTORICAL ORIGINS OF INTERNATIONAL INSTITUTIONS

The process of international organization had its origins in the nineteenth century, largely
in Europe. Innovations associated with the rise of industrialism and the introduction of new
methods of transport and communication stimulated the creation of special-purpose agencies,
usually called public international unions, designed to facilitate the collaboration of governments
in dealing with economic, social, and technical problems. Notable among these were the
International Telegraphic Union (1865) and the Universal Postal Union (1874), which survived
to become specialized agencies of the United Nations system (the former under the title
International Telecommunication Union) after World War II.258 In the political field, an effort to
institutionalize the dominant role of the great powers of Europe was undertaken at the Congress
of Vienna in 1815.259

While the resultant Concert of Europe did not assume the character of a standing political
organization, the same pattern functioned until World War I as the framework for a system of
occasional great-power conferences which lent some substance to the idea that the European
family of states constituted an organized entity. This concept was broadened by the Hague
Conferences of 1899 and 1907, which admitted small states as well as great powers, and extra-
European as well as European states, to participation in collective political deliberations. 260 Near
the end of the nineteenth century, the establishment of the Pan American Union and the initiation
of a series of inter-American conferences reinforced the Monroe Doctrine and Simón Bolívar’s
pronouncements by giving institutional expression to the idea that the states of the Western
Hemisphere constituted a distinct subgroup within the larger multi-state system.261

These nineteenth-century beginnings provided, in large measure, the basis for the
phenomenal development of international organization since World War I. Certain distinctions
which emerged during this period—between political and non-political agencies, between the

258
Bowett’s Law of International Institutions (eds. P. Sands and P. Klein), 5th edn, London, 2001
259
Ibid, p.22
260
Ibid, p.28
261
Ibid, p.38

148
status of great powers and that of small states, between regional and geographically undefined
organizations—were to prove significant in the later course of international organization. Basic
patterns of institutional structure and procedure were evolved. 262

The trend toward broadening the conception of international organization to include

entities beyond the confines of the European state system was initiated. Most importantly, the
dual motivations of international institution building—(a) the urge to promote coordinated
responses by states to the problems of peaceful intercourse in an era of growing economic,
social, and technical interdependence, and(b)the recognition of the necessity for moderating
conflict in the political and military spheres became operative in this period. 263

The establishment of the League of Nations and its affiliate, the International Labour
Organisation, at the end of World War I represented the first attempt to combine into one general
organization the disparate elements of organizational development which had emerged during
the previous century.264 The League was the first general international organization in several
senses: (a) it pulled together the threads of the great-power council, the general conference of
statesmen, and the technically oriented international bureau; (b) it was a multipurpose
organization, although its primary focus was onthe political and security problems of war and
peace; and (c) it was, in principle, a world-wide institution, even though it retained much of the
nineteenth-century emphasis upon the centrality of Europe in international affairs. 265

After World War-II, the League was superseded by the United Nations, a general
organization which derived its major features from the nineteenth-century heritage and the
lessons of experience, both positive and negative, provided by the League. The United Nations
was conceived as the central component of a varied and decentralized system of international
institutions that would include both autonomous specialized agencies, following the pattern first
set by the public international unions, and such regional organizations as existed or might be
created by limited groups of states. 266 The organizational design formulated in the United

262
Ibid, p.44
263
Ibid, p.48
264
The United Nations and a JustWorld Order (eds. R. A. Falk, S. S. Kim and S. H.Mendlovitz), Boulder, 1991
265
Ibid, p.54
266
Ibid, p.65

149
Nations Charter called for the active coordination of the work of the specialized agencies by the
central institution, primarily through the agency of its Economic and Social Council, and the
utilization and control of regional agencies, largely through the Security Council. 267

In actuality, the organizational system of the post-World War II era has involved the
operation of approximately a dozen specialized agencies, many of them newly created, and
coordinated with varying degrees of effectiveness by the United Nations. 268 The post-1945
system has also involved the proliferation of regional organizations of every sort, most of them
functioning quite independently, without any genuine tie to the central organization. The term
“United Nations system” may, therefore, properly be used to refer to the United Nations and the
specialized agencies, but it does not embrace the considerable number of regional organizations
which have developed independently. 269

The total network of international institutions also comprises more than one hundred
intergovernmental agencies outside the scope of the United Nations system, dealing with a vast
range of problems and providing variety of mechanisms for the conduct of relations among
states. 270 These are supplemented by approximately 1,500 non govern-mental organizations
which promote international consultation and activity in specialized fields at the unofficial level
(Yearbook of International Organizations 1962-1963).271

2. LEAGUE OF NATIONS- AN OVER VIEW

The League of Nations was established at the end of World War I as an international
peacekeeping organization. Although US President Woodrow Wilson was an enthusiastic
proponent of the League, the United States did not officially join the League of Nations due to
opposition from isolationists in Congress. 272

The League of Nations effectively resolved some international conflicts but failed to
prevent the outbreak of the Second World War. World War I was the most destructive conflict in
267
Ibid, p.77
268
The Charter of the United Nations (ed. B. Simma), 2nd edn, Oxford, 2002;
269
Ibid, p.65
270
Ibid, p.67
271
Ibid, p.72
272
Ibid, p.77

150
human history, fought in brutal trench warfare conditions and claiming millions of casualties on
all sides. The industrial and technological sophistication of weapons created a deadly efficiency
of mass slaughter. The nature of the war was thus one of attrition, with each side attempting to
wear the other down through a prolonged series of small-scale attacks that frequently resulted in
stalemate.273

In the immediate aftermath of the war, American and European leaders gathered in Paris
to debate and implement far-reaching changes to the pattern of international relations. The
League of Nations was seen as the epitome of a new world order based on mutual co-operation
and the peaceful resolution of international conflicts.

The establishment of the League of Nations

The Treaty of Versailles was negotiated at the Paris Peace Conference of 1919, and
included a covenant establishing the League of Nations, which convened its first council meeting
on January 16, 1920. The League was composed of a General Assembly, which included
delegations from all member states, a permanent secretariat that oversaw administrative
functions, and an Executive Council, the membership of which was restricted to the great
powers.274

The Council consisted of four permanent members (Great Britain, France, Japan, and
Italy) and four non-permanent members. At its largest, the League of Nations was comprised of
58 member-states. The Soviet Union joined in 1934 but was expelled in 1939 for invading
Finland.275

Members of the League of Nations were required to respect the territorial integrity and
sovereignty of all other nation-states and to disavow the use or threat of military force as a means
of resolving international conflicts. The League sought to peacefully resolve territorial disputes
between members and was in some cases highly effective. For instance, in 1926 the League
negotiated a peaceful outcome to the conflict between Iraq and Turkey over the province of
Mosul, and in the early 1930s successfully mediated a resolution to the border dispute between
273
Ibid, p.82
274
Ibid, p.85
275
Ibid, p.89

151
Colombia and Peru. 276 However, the League ultimately failed to prevent the outbreak of the
Second World War, and has therefore been viewed by historians as a largely weak, ineffective,
and essentially powerless organization. 277 Not only did the League lack effective enforcement
mechanisms, but many countries refused to join and were therefore not bound to respect the rules
and obligations of membership.

3. UNITED NATIONS- PURPOSES AND PRINCIPLES

The 20th century was a witness to two devastating world wars. The League of Nations
often called the child of war was established immediately after the First World War. The main
objective of the League of Nations was to establish peace and security in the world. The
League of Nations was partially successful and partially failed to achieve its objective. It is
evident from the fact that the Second World War was ample proof of the utter failure of the
League of Nations to establish peace in the world.
The Second World War forced the states in the world to bear the effects of the war and to
establish an international organisation, which would help in the peaceful settlement of disputes,
and to ensure that peace and security could be established in the world. Subsequently, the then
great nations of the world signed the San Francisco Conference on January 26, 1945, whereby
the United Nations Charter was adopted and signed by 51 nations of the world, and it came into
force on October 21, 1945, which is today celebrated as the United Nations Day. 278
PURPOSES OF UNITED NATIONS
The purposes of the United Nations are enshrined in Article 1 of the Charter. According
to Article 1, following are the purposes of the United Nations:
1) To maintain international peace and security
The most important responsibility of the United Nations is to maintain international peace
and security. After having expressed their determination in the preamble "to save succeeding
generations from thescourge of war" it was but natural and appropriate for the framers of the
United Nations Charter to consider "Maintenance of International peace and security" as the first
and foremost purpose of the United Nations. Article (1) provides that one of the purposes of the
United Nations is to maintain international peace and security and to that end: “totake effective
276
S. Chesterman, T. M. Franck and D. M. Malone, Law and Practice of the United Nations, Oxford, 2008
277
Ibid, p.24
278
Ibid, p.28

152
collective measures for the prevention and removal of threats to the peaceand further
suppression of acts of aggression or other breaches of peace, and to bring aboutpeaceful means,
and in conformity with the principles of justice and international law,adjustment or settlement of
international dispute or situation which may lead to breach ofthe peace.”
2) To develop friendly relations among nations:
The second purpose of the United Nations is to develop friendly relations among nations
based on respect for the principle of equal rights and self-determination of people to take other
appropriate measures to strengthen universal peace.
3) International cooperation in solving international problems of economic, social and
humanitarian character
The third purpose of the United Nations is to achieveinternational cooperation in solving
international problems of economic, social, culturalor humanitarian character and in promoting
and encouraging respect for human rightsand fundamental freedoms for all without distinction as
to race, sex, language or religion.
4) To make the United Nations a centre for the attainment of the above, and ends:
The last purpose of the United Nations is to make it a centre for harmonising the actions
in the attainment of those common ends.
PRINCIPLES OF THE UNITED NATIONS
Article 2 of the United Nations charter provides that the organization and its members, in
pursuit of the purposes enshrined in article 1, shall act in accordance with the following
principles:
1) Principle of sovereign equality of all its members:
The first principle of the United Nations is that the organization is based on the principle
of sovereign equality of all its members. According to this principle, all the members of the
United Nations are equal in the eyes of law irrespective of the size and strength.
2) Principle of fulfilling obligations in good faith:
The second principle of the United Nations is that all members, in order to ensure to all of
them, the rights and benefits resulting from the membership, shall fulfil in good faith the
obligations assumed by them
in accordance with the present Charter.
3) Peaceful settlement of international disputes:

153
 All members shall settle their international disputes by peaceful means in such a manner
that international peace and security and justice are not endangered.
4) Principle of non-intervention: All members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political independence of any state, or
any other manner inconsistent with the purposes of the United Nations.
5) Principle of assistance to UNO:
The next principle is that all members shall give the United Nations every assistance in
any common action it takes in accordance with the present Charter, and shall refrain from giving
assistance to any state against which the United Nations in taking preventive or enforcement
action.
6) Principle of maintenance of international peace and security:
The UN shall ensure that States which are not members of the United Nations act in
accordance with these principles so far as may be necessary, for maintenance of international
peace and security.
7) Non-intervention in domestic matters of state:
The last principle of the United Nations states that nothing contained in the present
Charter shall authorise the United Nations to intervene in matters which are essentially within the
domestic jurisdiction of any state or shall require the members to submit such matters to
settlement under the present Charter.
Membership
According to the Charter of the United Nations, there may be two types of members:
(i) Original members, and
(ii) States which may be admitted to the United Nations in accordance with provisions of Article
4 of the Charter.
As regards the original members, Article 3 of the Charter provides that the original
members of the United Nations shall be states which, having participated in the United Nations
Conference on international organisation at San Francisco, having previously signed the
Declaration of the United Nations on January 1, 1942 signed the present Charter and ratified it in
accordance with Article 110. As regards admission of the members of the United Nations,
Article 4 provides that states may be admitted to the United Nations on the affirmative

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recommendations of the Security Council and by the election of the General Assembly by two-
thirds majority. 279
Since the admission of states to the United Nations is an important matter affirmative
votes of nine members of the Security Council including five permanent members are necessary.
Moreover, Article 4 provides the five requirements or conditions for the state to become a
member of the United Nations. They are: (1) It must be a State; (2) It must be peace loving; (3) It
must accept the obligations of the Charter; (4) It must be willing to carry out the obligations; (5)
It must be able to carry out these obligations.280
Expulsion of a Member from the United Nations
The provision regarding the expulsion of a member from United Nations is contained in
Article 6 of the Charter. It provides that a member of the United Nations, which had persistently
violated the principles contained in the present Charter, may be expelled from the organization
by the General Assembly upon the recommendations of the Security Council. 281
Suspension of Members
The provision relating to the suspension of a member is found in Article 5 of the Charter.
Article 5 provides that member of the United Nations against which preventive or enforcement
action has been taken by the Security Council may be suspended from the exercise of the rights
and privileges of membership by the General Assembly, upon the
recommendations of the Security Council. 282 It further provides that the exercise of these rights
and privileges may be restored by the Security Council.
4. STRUCTURE POWERS AND FUNCTIONS OF PRINCIPLE ORGANS OF THE
UNITED NATIONS
Following are the six principal organs of the United Nations:
4.1. GENERAL ASSEMBLY
It is one of the principal organs and policymaking body of the United Nations. The
General Assembly consists of all the members of the United Nations. Each member may
have not more than five representatives in the General Assembly. At present, the General

279
Ibid, p.32
280
Ibid, p.38
281
Ibid, p.42
282
Ibid, p.45

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 Assembly comprises of 192 members. 283 Each member of the General Assembly has one
vote. Decisions on important questions are made by a two-thirds majority of the members
present and voting. Such questions include matters relating to maintenance of international
peace and security; the election of non-permanent members of the Security Council; the
election of the members of the Economic and Social Council and Trusteeship Council; the
admission of new members of the United Nations; the suspension of the rights and privileges
of membership; the expulsion of members; questions relating to the operation of the
trusteeship system; and budgetary questions. Questions on other matters, including the
determination of additional categories of questions to be decided by a two thirds majority,
shall be made by a majority of members present and voting. 284 Professor Leonard has
classified the powers and functions of the General Assembly under five headings, they are as
follows: firstly, Deliberative functions; secondly, Supervisory functions; thirdly, Financial
functions; fourthly, Elective functions; and lastly, Constituent functions. 285
The resolutions passed by the General Assembly are not binding upon the states in the
international community. The General Assembly can deliberate on any matter within the
scope of the United Nations Charter. However, when the Security Council is considering any
matter the General Assembly will not interfere in the matter. Where the Security Council
fails to maintain peace and security then the General Assembly shall assume the
responsibility of maintaining peace and security under a resolution known as Uniting for
Peace Resolution passed by it in the year 1950. 286
4.2. SECURITY COUNCIL
The Dumbarton Oaks proposals emphasized the establishment of an executive
organ, whose membership might be limited and whichcould be entrusted with the
primary responsibility of the maintenance of International Peace and Security. In San
Francisco Conference, it was finally decided to establish suchan organ in the form of the
Security Council. In accordance with the provisions of Articleof the United Nations
Charter, the Security Council is one of the principal organs of theUnited Nations. It

283
Ibid, p.55
284
B. Conforti, The Law and Practice of the United Nations, 2nd edn, The Hague, 2000;
285
Ibid, p.76
286
Ibid, p.79

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 comprises of 15 members, five permanent members and 10 non-permanentmembers.
China, Russia, America, France and Britain are the permanentmembers of the Security
Council. 287 Before the amendment even without exercising Veto,the permanent members
could prevent the Security Council from taking action on anymatter because the Security
Council then consisted of 11 members and action onordinary or non-substantial matters
required seven affirmative votes. If one permanentmember voted against the proposal,
Security Council could not take any decision on it.
But, this is no more possible because now the Security Council consists of 15
members fivepermanent and 10 non-permanent members and in cases of all non-
substantial orprocedural matters nine affirmative votes are required. Thus, on a non-
substantialmatter, the Security Council can take a decision on the basis of affirmative
votes of non-permanent members. 10 non-permanent members are elected by the General
Assemblyfor a period of two years. 288 The primary responsibility of maintaining
international peace and security in theworld is that of the Security Council. In the
discharge of this responsibility, the SecurityCouncil is empowered to take enforcement
action against states, which regularly violatethe principles of the United Nations Charter
and the general rules of international law. 289
The enforcement action includes: firstly warning, secondly economic sanctions,
andthirdly use of force by land, air and sea. The resolutions passed by the Security
Councilare considered as a potential source of international law. They are binding upon
thestates in the international community. 290
4.3. ECONOMIC AND SOCIAL COUNCIL (ECOSOC)
The Economic and Social Council consists of 54 members who are elected by the
General Assembly, one third of its members are elected each year by the General
Assembly for a term of three years. Prior to 31st August, 1965, the economic and social
Council consisted of 18 members.

287
Ibid, p.85
288
Ibid, p.88
289
Ibid, p.98
290
Ibid, p.112

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 This number increased to 27 by an amendment of the Charter in 1963, which
came into force in 1965. Subsequent amendment to Article 61, which entered into force
on 24th September, 1973, further increased the membership of the Council from 27 to 54.
Since the membership of the UN has now increased to 192, a plea can be made for further
increase in the membership of the Economic and Social Council to make it more
representative. 291
Each member of the Economic and Social Council is entitled to have only one
representative in the Council. At present India is one of the members of the Council.
Each member of the Economic and Social Council is entitled to have one vote. The
additions of the Economic and Social Council are made by a majority of members present
and voting.
4.4. TRUSTEESHIP COUNCIL
As provided under Article 86 of the Charter, Trusteeship Council consists of the
following members of the United Nations: (a) Those members who are administering
trust Territories; (b) The permanent members of the Security Council as are not
administering trust Territories; (c) As many other members elected for three years term
by the General Assembly is really necessary to ensure that the total number of members
of the Trusteeship Council is equally divided between those members of the United
Nations which administered trust Territories and those which did not. At present,
trusteeship Council members are the United States as an administering authority and
China, France, the Russian Federation and United Kingdom serve as permanent members
of the Security Council. Each member of the trusteeship Council has one vote. The
decisions of the Trusteeship Council are made by a majority of the members present and
voting. That is to say, no member possesses veto power in the Trusteeship Council. 292
4.5. SECRETARIAT
The Secretariat is one of the principal organs of the United Nations. The
Secretariat comprises of a secretary general and such staff as the organization may
require. The Secretary General is appointed by the General Assembly upon the

291
R. Higgins, The Development of International Law Through the Political Organs of the United Nations, Oxford,
1963
292
Ibid, p.62

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 recommendations of the Security Council. He is designated as “The Chief Administrative
Officer of the Organisation”. He is thus not only the chief administrative officer of the
Secretariat, but of the whole organisation. It is his duty to present a report on the overall
functioning of the United Nations Organization in the annual session of the General
Assembly. 293 From the practice of the United Nations Organization, it can be seen that
the Secretary General is appointed normally from a smaller and neutral state
5. INTERNATIONAL COURT OF JUSTICE
5.1. HISTORICAL EVOLUTION
The International Court of Justice is based upon a statute known as the statute of
International Court of Justice. The statute of International Court of Justice originally belonged to
the Permanent Court of International Justice which was established as the principal judicial
organ of the League of Nations. Therefore, it is aptly stated that the International Court of Justice
has stepped into the shoes of the Permanent Court of International Justice. 294
According to Article 7 of the United Nations Charter International Court of Justice is one
of the principal organs of the United Nations. It is the principal judicial organ of the United
Nations Organization and is based upon a statute which is an integral part of the United Nations
Charter. The World Court is the first truly permanent judicial international institution and it is
served by an efficient registry. 295 All members of the United Nations organization are ipso facto
the members of the Statute of the International Court of Justice. Any State, which is not a
member of the United Nations organization may also become a party to the Statute of the
International Court of Justice on the recommendations of the Security Council and on the
conditions laid down by the General Assembly.
5.2. COMPOSITION OF THE COURT
The International Court of Justice consists of 15 judges who are elected regardless of
their nationality from among persons of high moral character and who possess the required
qualifications in their respective countries, by the General Assembly and the Security Council

293
Ibid, p.22
294
S. Rosenne, The Law and Practice of the International Court, 1920–2005, 4th edn, Leiden, 4 vols., 2006
295
Ibid, p.43

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separately. These judges are elected for a term of nine years and can also be re-elected after the
expiry of their term. 296
All the decisions of the court are taken on the basis of the majority of the judges. The
president of the court is empowered to give a casting vote in case of a tie. It has become a well
founded practice that five judges are from the five permanent members of the Security
Council. 297 The court is constituted in such a way that Latin America, Europe, Africa and Asia
are represented in it so as to represent the main forms of civilization and the principal legal
systems of the world.298 The permanent seat of the court is in Hague. Although all the judges
may sit and decide a case but the required quorum for the court to take decisions shall be nine
judges.
5.3. TYPES OF JURISDICTION OF THE COURT
Since there is no universal authority over the states in the international community, an
international tribunal cannot exercise any kind of jurisdiction over the sovereign states without
the states giving their consent.299 The jurisdiction of the International Court of Justice is also on
similar lines. This principle of consensual jurisdiction of the court can be noticed in many of the
decisions rendered by the court, for instance, in the Corfu Channel Case(United Kingdom v.
Albania)300, The court has held that the consent of the parties confers jurisdiction on the court.
Doctrine of Forum Prorogatum
The principle of forum prorogatum means jurisdiction can be conferred upon an existing
tribunal not otherwise competent by the litigants during the proceedings, it is also known as
prorogated jurisdiction and is found in the Roman Legal System. The principle of prorogated
jurisdiction crept into many modern systems of law which developed from the Roman legal
system. In the realm of international law the doctrine of forum prorogatum is the result of the
pronouncements of both the Permanent Court of International Justice and the International Court
of Justice. 301

296
Ibid, p.52
297
M. S. M. Amr, The Role of the International Court of Justice as thePrincipal Judicial Organ of
theUnitedNations,TheHague, 2003
298
Ibid, p.58
299
Ibid, p.62
300
ICJ Rep 1948, pages 15, 27.
301
Fifty Years of the International Court of Justice (eds. A. V. Lowe and M. Fitzmaurice), Cambridge, 1996

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 The doctrine of forum prorogatum lays emphasis on the fact that acceptance of unilateral
summons to appear before the court confers jurisdiction on the court. If the respondent state,
either expressly or by implication from conduct submits to the court’s jurisdiction, the court is
irrevocably seized of the case. The International Court of Justice adopted the doctrine of forum
prorogatum in the Corfu Channel Case.
KINDS OF JURISDICTION
The International Court of Justice basically exercises two kinds of jurisdiction i.e.
contentious jurisdiction and advisory jurisdiction. Contentious jurisdiction again is of two kinds
namely voluntary jurisdiction and compulsory or optional jurisdiction.
Voluntary jurisdiction of the court applies to cases which are voluntarily referred to the court
by the parties to the dispute as well as cases brought before the court by one of the parties and
the other party impliedly or expressly accepts the jurisdiction of the court. Article 36(1) of the
statute of the court lays down that voluntary jurisdiction is “The
jurisdiction of the court comprises all cases which the parties refer to it and all the matters
specially provided for in the Charter of the United Nations or in treaties and conventions in
force”.
Compulsory jurisdiction or which is popularly known as optional clause on the other hand is
contained in Article 36(2) of the statute which provides that states parties to the statute may
confer compulsory jurisdiction on the court by making such a declaration in respect of any other
state which also accepts similar obligations. This can be done without any special agreement and
a state party to the statute may confer compulsory jurisdiction on the court in matters relating to
1. Firstly, interpretation of a treaty;
2. Any question of international law; and
3. Thirdly, the existence of any fact if established would constitute a breach of international
obligations and
4. The nature and extent of the reparation to be made for the breach of an international
obligation.
The clause gives option to the states to make their respective declarations for accepting
the jurisdiction of the court. Where such a declaration is once made by a state, the jurisdiction of
the court becomes compulsory in relation to other states accepting the same obligation. The
significance of the optional clause is the fact that it provides a means of accepting compulsory

161
jurisdiction generally for all legal disputes and as against any state undertaking the same
obligations.
Interim Measures: The statute of the International Court of Justice lays down that under Article
41 the court shall have the power to indicate if it considers that circumstances so require, any
provisional measure which has to be taken to protect the rights of both the parties. When a case
is pending before the court should not allow injustice by further delaying the final judgement and
leaving the legal interests involved in the case entirely at the mercy of unavoidable
circumstances.
Therefore the instrument of interim measures of protection originated for the purpose of
ensuring interim justice pending the final judgement. The court grants interim relief only when
there is every possibility of injury being caused to the rights of the parties which cannot be
compensated and the ultimate goal of such an interim measure is to protect and secure the rights
of the parties.
Transferred Jurisdiction: The International Court of Justice exercises another type of
jurisdiction known as transferred jurisdiction. Article 36(5) of the statute of International Court
of Justice states “Declaration made under Article 36 of the statute of the Permanent Court of
International Justice and which are still in force shall be deemed, as between the parties to the
present statute, to be acceptance of the compulsory jurisdiction of the International Court of
Justice for the period which they still have to run and in accordance with their terms”. For
instance if X and Y states conferred jurisdiction upon the Permanent Court of International
Justice for a period of 15 years and the Permanent Court of International Justice was dissolved
after expiry of 10 years, then the present court would exercise jurisdiction for the remaining
period of 5 years.
Revisional Jurisdiction: Article 61 of the statute of International Court of Justice lays down the
conditions for the acceptance of an application for revision. The conditions are as follows:
1. An application for revision of a judgement may be made only when it is based upon the
discovery of some fact of such a nature as to be a decisive factor, which fact was, when the
judgement was given, unknown to the court and also to the party claiming revision always
provided that such ignorance was not due to negligence.

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2. The proceedings for the revision shall be opened by a judgement of the court expressly
recording the existence of a new fact, recognizing that it has such a character as to lay the case
open to revision and declaring the application admissible on this ground.
3. The court may require previous compliance with the terms of the judgement before it admits
proceedings in revision.
4. The application for revision must be made at least within six months of the discovery of the
new fact.
5. No application for revision may be made after a lapse of ten years from the date of the
judgement.
According to Article 62 of the statute, the court has the power to allow a state to
intervene in a dispute to which it is not a party. It provides as follows:
1. Should a state consider that it has an interest of a legal nature which may be effected by the
decision in the case, it may submit a request to the court to be permitted to intervene.
2. It shall be for the court to decide upon this request.
In the case of Case Concerning Continental Shelf (Tunisia Vs Libya)302, the dispute
was between Tunisia and Libya relating to the delimitation oftheir continental shelf. While the
court was considering the above case, another stateMalta submitted a request to the court to
permit it to intervene in the above dispute.Malta wanted the court to take into consideration its
own interest in the continental shelfwhile fixing the limits of the continental shelves of states of
Tunisia and Libya. The courtallowed Malta to intervene.
Advisory Jurisdiction
Apart from the jurisdictions mentioned above the court also exercises advisory
jurisdiction. According to this jurisdiction an advisory opinion under Article 96(1) of the statute
is given by the court when the General Assembly or Security council request for such an opinion
on any legal question. Other organs of the United Nations and the specialized agencies can also
seek advisory opinion from the court subject to the approval by the General Assembly in respect
of legal questions arising within the scope of their activities.
Further if the General Assembly wants to seek advisory opinion from the court then
under Article 18(2) of the charter two thirds majority is required. Similarly if the Security
Council wants to seek advisory opinion from the court under Article 27(3) of the charter, then

302
ICJ Rep, 1982, page 49

163
affirmative votes of nine members including the votes of the five permanent members are
required. The advisory opinion of the International Court of Justice is different from the
judgement of the International Court of Justice because firstly, advisory opinion is not legally
binding upon the requesting party, secondly advisory opinion does not give rise to Res Judicata,
thirdly, there are no parties to the proceedings strictly speaking. On the other hand the
contentious jurisdiction of the International Court of Justice contains all the three elements
mentioned above. Therefore an advisory opinion is a weak legal statement when compared to the
judgment of the court.
5.4. LAW APPLIED BY THE COURT
According to Article 38 of the Statute of the International Court of Justice, the Court shall
decide the dispute submitted to it in accordance with international law and shall use the sources
of international law in the following order:
International Conventions: Whenever a dispute is referred to the International Court of Justice
by the States, the first endeavor on the part of the court would be to see whether there is any
convention or treaty signed by the states in the international community and which would
provide a solution to the dispute before it. In the event of such a treaty existing, the court would
decide only in accordance with that treaty or convention. In the absence of a treaty or convention
the court would fall upon the second source i.e. International Custom.
International Custom: This originally was the primary source of international law has been
pushed down to the second place. Custom is usage or practice employed by the states in
resolving their disputes. We have,
General principles of law recognized by civilized nations: It comprises of those legal
principles which are common to and recognized as such by the principal legal systems in the
world. Principles such as Res Judicata, Estoppel, Subrogation, Double Jeopardy and Principles
of Natural Justice.
Juristic works: There are the published research works of highly qualified and eminent persons
in the field of law as a subsidiary means for determining the rules of international law subject to
the provisions of Article 59 of the statute of International Court of Justice. Article 38 of the
statute of International Court of Justice also empowers the world court to decide cases in
accordance with principle of ex aequo et bono if the parties agree thereto. The purpose of this

164
clause is to allow the court to apply principles of equity, if necessary in modification or even
derogation of the law.

5.5. BINDING NATURE OF JUDGMENT

Judgments delivered by the Court (or by one of its Chambers) in disputes between States
are binding upon the parties concerned. Article 94 of the United Nations Charter provides that
“each Member of the United Nations undertakes to comply with the decision of the Court in any
case to which it is a party”. 303

Judgments are final and without appeal. If there is a dispute about the meaning or scope
of a judgment, the only possibility is for one of the parties to make a request to the Court for an
interpretation. In the event of the discovery of a fact hitherto unknown to the Court which might
be a decisive factor, either party may apply for revision of the judgment. 304

As regards advisory opinions, it is usually for the United Nations organs and specialized
agencies requesting them to give effect to them or not, by whichever means they see fit.

6. LEGAL STATUS OF INTERNATIONAL ORGANIZATIONS

In the realm of International Law States are the primary subjects, according to traditional
international law whereas, modern International Law has incorporated international
organizations, international institutions and also certain other non-state entities such as, the
Vatican City, even individuals today are considered as subjects of international law. With the end
of the Second World War and the establishment of the United Nations Organization, the
statesmen of the world at that point of time felt that the States in the international community
should enter into treaties and agreements in order to lend support to the United National
Organization in the maintenance of international peace and security. Therefore, a large number
of international organizations such as, ILO and EU, had come into existence.305

303
Bowett’s Law of International Institutions (eds. P. Sands and P. Klein), 5th edn, London, 2001
304
Ibid, p.76
305
Ibid, p.82

165
Bibliography and References

1) Robert Jennings and Arthur Watts (eds.), Oppenheim’s International Law [Vol. I – Peace]
(9th ed., 1996)
2) I. Brownlie, Principles of Public International Law (7th ed., 2008)
3) I.A. Shearer, Starke’s International Law (1st Indian ed., 2007)
4) D.J. Harris, Cases and Materials on International Law (7th ed., 2010)
5) Malcolm N. Shaw, International Law (7th ed., 2015)
6) J.G. Strake: Introduction to International Law, (latest Edition)
7) D.w. Bowetts: Law of International Instittuions (6th edn) 2011, (sweet and Maxwell)
8) S.K. Verma: An introduction to Public International Law ( Prentice Hall 1998)
9) Gurdip Singh, International Law (2nd ed., 2011)
10) V.K. Ahuja, Public International Law (Lexis Nexus 2016)
11) Shilpa Jain: Introduction to Public International Law (EBC 2016)
12) T.S.N. Sastry, State Succession in Indian context (Dominant 2004) Chapters 1 & 2
13) Shilpa Jain : Introduction to International Law (2016) Eastern Book Company
14) Visit the Web Site of Dr tsnsastry.weebly.com for research papers on some of the areas.

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