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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi
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(An e-initiative by KCL)
NOTES
ON
Code : 107
Subject : Public International Law &
Human Rights
Course : VII
Class : LL.B. 1st
Yr
Note : Only KCL students are authorized to download the notes
KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi
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LL.B. Ist Year
International Law & Human Rights
Q.1 What are the different sources of International Law?
Ans. Sources :- Sources of International Law can be classified into the following Categories :-
1. International Conventions or Treaties :- The term “Conventions” applies to any treaty,
protocol or agreement, regardless of its title or form. According to Article 38 of the statute of
international Court of justice, it is the first source of International law. Art. 2 of Vienna
Convention on the Law of Treaties 1969, “A treaty is an agreement whereby two or more
states establish or seek to establish relationship between them governed by International
law.” International Treaties may be following two types :-
A) Law Making Treaties :- Law making treaties are those treaties which are entered into by a
large number of states. These are the direct sources of law. Treaties may be divided into
following two types.
(i) Treaties enuciating the rules of universal International Law :- Those treaties which are
signed by a majority of the states are called the Treaties enunciating the rules of universal
International Law. United nations charter is an example of type of treaties.
(ii) Those enunciating general principles :- Treaties which are entered into by a large number
of Countries enunciated general principles of International law 1958 and 1960. Geneva Con
ventions on the law of the Sea is good examples of such types of Treaties.
B) Treaty Contracts :- Treaty contracts are those treaties which are entered into by two or more
states Such type of treaties are also the source of International law because they held in the
development of customary rules of International law.
2. International Customs :- International Customs used to be the most important source of
International law in the past. In the modern period, their importance has lessened. In the
words of Viner, “A custom, in the intendment of law, in such a usage as hath obtained the
force of law.” Customary rules of international law have developed in the following three
Circumstances :- (a) Diplomatic relations between states (b) practice of organs of
KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi
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International Institutions and (c) State laws, decisions of the State‟s Courts and State‟s
parliamentary or administrative practices.
West Rand Central Gold Mining Co. Ltd. V.R. (1905) 2 K.B. 291 (Right of passage over
Indian Territory Case), Porttugal V. India (I.C.J. Rop. 1960 at 6) are good examples of
application of custom in international law.
3. General principles of law recognised by the civilized states :- The general principles of law
recognised by the civilized nations is an important source of law through which International
law adopts itself in accordance with the changing times and circumstances.
In the words of Lord Mc Nair, “it describes an inexhaustible reservoir of legal principles
from which the tribunals can enrich and develop public International Law,” Res Judicata,
estoppel, etc. are examples of the general principles of law recognised by civilized states.
Following are some of the important cases relating to the general principles of law
recognised by civilized states :-
a) R.Key (1876) 2 Ex. D.63 -
b) United States V. Schooner :-
c) Charzow factory (Indemnity Case), Pub. P.C.I. (1938), Serious A, NO.17 -
d) Bracelona Traction Case, Preliminary Objectives, (I.C.J Rep. (1964) P.6)
International Courts have recognised the following general principles :
(1) good faith
(2) responsibility
(3) prescription
(4) In the absence of any express provisions of the Contrary, every Court has a right
To determine the limits of its own jurisdiction
(5) a party to a dispute cannot himself be an arbitrator or judge
(6) resjudicata
(7) In any judicial proceeding, the Court shall give proper and equal opportunity of
KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi
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hearing to both parties.
4) Decisions of Judicial and Arbitral Tribunals - According to Art. 38 of the International Court
of Justice, the decision of Judicial and Arbitral Tribunals are Subsidiary means for the
determination of the rules of law, Art. 59 of the Statute of international Court of Justice
provides that they will have “no binding force except between the parties and in respect of that
particular case”.
5) Juristic Works :- The opinions of jurists are also regarded as subsidiary means for the
determinations of the rules of International law.
6) Decisions or Determations of the Organs of International Institutions :- In the modern
age the decisions of the organs of international institutions are also treated as sources of
International law. After the establishment of U.N. most of the development of International
law and its codification has taken place through the instrumentality of International
Organisation. The International Court of Justice has recognized it in a number of Cases such
as certain expenses of the U.N.(1962), South West African Cases (1966), Effects of Awards
of compensation made by the U.N. Administrative Tribunal (1954).
Some other Subsidiary sources of international law :- following are the other Subsidiary
sources of International law :-
1)International Comity
2) State papers
3) State guidance for their officers
4) Reason
5) Equity and justice
Q.2 Write a critical envoy on Universal declaration of Human Rights 1948.
Ans. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS :- In 1948, the General Assembly
passed the Universal Declaration of Human Rights. This has been hailed as a Victory of
Individuals in respect of Human Rights. There are 30 Articles in Declaration which describe in
KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi
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detail human rights and fundamental freedoms. For examples : Article I provides, “ All human
beings are born free and equal in dignity and rights, they are endowed with reason and
conscience and should act to one another in spirit of brotherhood.”
Some writers have expressed the view that the Universal Declaration has now assumed legal
value.
Dr. Nagendra Singh has remarked :- The Declaration, was not a mere resolution of the
General Assembly but a continuation of the charter and had the dignity f the Charter” This
seems to be the correct view.
Prof. Louis B.Sohn has also remarked that the Declaration “Constitutes an authoritative
interpretation of the Charter, which is binding upon Members to the extent that the charter is
binding,”
PROVISIONS OF THE U.N. DECLARATION ON HUMAN RIGHTS :-
Provisions of the Universal Declaration of Human Rights may be classified into four categories
:- General (Articles 1 and 2) Art.1 of the declaration provides that all human beings are born
free and equal in dignity and rights, they are endowed with reason and conscience and should
act towards one another in a spirit of brotherhood.
Art.2 provides that everyone is entitled to all the rights and freedoms set forth in the
Declaration without distinction of any kind, such as race, Colour, Sex, language, religion,
Political or other opinion, national or social origin, property, birth or other Status.
Civil and Political - Civil rights include rights such as right to life and liberty (Article 3)
Article 4 says that slavery and the slave trade shall be prohibited in all their forms.
Article 5 embodies that no one shall be subjected to torture or to cruel, in human or degrading
treatment or punishment.
Article 6 to 11 provides Rights to Equality before law and Legal Remedies.
Article 12 says that no one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence, nor to attacks upon his honour and reputation.
Article 13 provides Right to Freedom of Movement to leave any Country and return to his
country.
Article 14 Right to seek asylum
Article 15 Right to Nationality. Article 17 Right to own property
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Article 18 provides Right to freedom of Thought, Conscience and Religion, Article 19 :- Right to
Freedom of opinion and Expression Article 20 and 21 provides Right to freedom of peace
Assembly and Association.
ECONOMIC, SOCIAL AND CULTURAL RIGHTS :-
Article 22 :- Economic, Social and Cultural rights include the Right to Social Security.
Art 23 :- Right to work, free choice of employment.
Art 26 :- right to Education
Art 27 :- Right to enjoy Arts and share in Scientific achievement
Concluding Articles :- These articles recognize that everyone is entitled to a social and
international order in which the rights and freedoms set forth in this Declaration can be fully
realized (Article 28) and they stress the duties and responsibilities which the individual owes to
the Community (Article 29). Lastly, Article 30 provides that nothing in the Declaration may be
interpreted as implying for any state, group, or person any right to engage in any activity or to
perform any act aimed at the destruction of any of the rights and freedoms set forth in the
Declaration.
The Declaration was originally conceived of as a statement of objectives to be achieved by
Governments and as such, not part of binding law. But now, 54 years later, it is accepted by
so many states that it is considered to be an international standard against which their
behaviour is measured.
Q.3 Define State and non state entities point out the difference between Vassal Status and
protectorates.
Ans State - State is the main Subject of International law.
According to Salmond,” State is a Community of people which has been
established for some objectives such as, Internal order and external Security.”
Different kinds of States and Non-State entities
1. Confederation:-It is formed by states who are independent in the international field. Under
International law Confederation has no international personality the states forming
Confederation are not treated as International persons.
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2. Federal State:- Generally a federal state is formed by the merger of two or more sovereign
states. A federal state is an international person under international law.
3. Condominium:- Condominium is a territory where two or more states exercise Sovereignty.
New Hebrides is a good example of Condominium.
4. Vassal State:- A Vassal state is a state which is under the Suzerainty of another state. Its
Independence is so restricted that it has no Importance under international law.
5. Protectorate State:- A protectorate state is a state which entrusts some of its important
functions to another Sovereign State. It retains a Sufficient measure of Sovereignty and
remains a state under International law. For example, Bhutan is a protectorate state of India.
6. Trust Territories-Composition of the TRUSTEESHIP COUNCIL:- As provided under Article
86 of the U.N. charter, Trusteeship Council Comprises of the following members of the U.N.
(a) Those members who are administering trust territories‟.
(b) The permanent members of the Security Council as are not administering Trust territories
and
(c) As many other members elected for three years‟ term by the general Assembly as may be
necessary to ensure the total number of members of the Trusteeship Council is equally
divided between those members of the United Nations which administer trust Territories
and those which do not.
FUNCTIONS AND POWERS
(1) It may consider reports submitted by the Administering Authority.
(2) It may accept petitions and examine in Consultation with the Administering Authority.
(3) It may provide for periodic Visits to the respective Trust Territories at times agreed upon with
the Administering Authority.
The Trusteeship Council has done Commendable work. The number of
inhabitants living in trust Territories has been Constantly decreasing every year. The
last territory was Palau which became a member of the U.N. in December1994.
KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi
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Difference between protectorate and Vassal state
Protectorate State generally
1. A protectorate State generally entrusts
its defence, external
affairs etc. to another State.
2. A protectorate State remains a
State Under International law.
3. Since a protectorate State retains a
sufficient measure of Sovereignty,
declaration of war or peace made by
the protecting State with another State
is not binding upon it.
Vassal State
1. Vassal State is generally
autonomous in its internal matters
, but is Completely dependent upon
another state in external matters.
2. A Vassal State is not treated a State under
international law.
3 A Vassal State is bound by treaty of
war or peace entered into by the State
under whose international
guardianship in remains.
Q.4(a) Explain the Maxim Pacta Sunt Servanda.
(b) Write a short note on United National Commission of Human Rights.
Ans.(a) Pacta Sunt Servanda – According to Anzillotti, the binding force of International law is
founded on the fundamental principles known Pacta Sunt Servanda, which means that the
agreements entered into by the States must be followed by them in good faith. This principle,
though a fundamental and very important principle of International law, fails to explain the
binding force of customary rules of international law.
as aply remarked by an author, “The realization that international customary law does not rest
on agreements and that the tenet of “pacta Sunt Servand” is itself a rule of decided on a
formula which takes into account of usage as the fact which is the origin of the rules of
International Law. “States ought to behave a they have customarily behaved.”
(b) U.N. Commission on Human rights – The Commission on Human Rights was established by
the Economic and Social Council in February, 1946. It is the nearest approach to permanent
KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi
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machinery for the supervision of the “problem of protection” of human rights. It is one of the six
functional commission established by the Economic and Social Council. Under its terms of
reference the commission was directed to prepare recommendations and reports on (1) an
International Bill of Human Rights (2) International Conventions or declarations on Civil
liberties : the status of women, freedom of information and similar other matters.
3. The protections of minorities
4. The prevention of discrimination on the basis of race, sex, language or religion, and
5. Other matters concerning human rights.
The Commission‟s terms of reference are extensive : under them, it may deal with any
matter concerning human rights. The Commission makes studies and recommendations
either on its own initiative or at the request of the General Assembly or the Economic and
Social Council. The Commission consists of 43 members elected for 3 years terms and meets
annually or a period of five or six weeks. At present, these are 53 members of the
Commission. All Commission decisions are made by a majority of the members present and
voting. The Commission submits a report on each session to the Economic and Social Council.
At its first session in 1947, the Commission established the Sub-Commission on prevention of
Discriminations and protection of minorities. 842
the commission was held from 14th March to 22nd April, 2005 and discussed the report of the
Commission in Iraq.
Q.5 How for the individual can be said the subject of International Law.
Ans. In recent times several treaties have been entered into wherein certain rights have been
conferred and duties have been imposed upon the individuals. In this connection following
may be noted :
(i) Pirates – Pirates are treated as enemies of mankind under international law. Every
State can apprehend and punish them.
(ii) Harmful acts of Individuals – Under certain circumstance States are responsible for
the harmful acts of their individuals. If a person causes harm to the personal property of
the Ambassador of another State, then under international law the State is responsible
for his act. Such persons are, therefore, given stringent punishment.
KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi
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(iii) Foreigners – To some extent international law regulate the conduct of foreigners. It is
the duty of each State to give them those rights which it generally confers upon its own
citizens.
(iv) War Criminals – War criminal can be punished under international law. According to
Nuremberg and Tokyo Tribunals, since war crimes are committed by the individuals, it is
by punishing them the provisions of international law can be enforced.
(v) Espionage – Espionage is a crime under international law and, therefore, spies can be
apprehended and punished.
(vi) The United Nations Charter gives a place of importance to the individuals. An individual
of any member State of the U.N. who claims to be the victim of violation of Human
Rights by his own State may send a petition to the Commission through the Secretary-
General of the U.N.
(vii) The 1965 Convention on the Settlement of Investment Disputes between the State and
the Nationals of other States is a glaring example of such benign trend.
Thus slowly and gradually individuals are occupying an important place under
international law
Q.6 Write a short note on –
(i) (W.T.O.) World Trade Organisation
(ii) UNESCO
Ans. Establishment of WTO – As a result of the culmination of Uruguary Round of GATT
Negotiations for more than seven years at Marrakesh (Morocco) on April 15, 1994. The
new World Trade Organisation (WTO) which came into effect on January 1, 1995,
replaced the GATT.
W.T.O. is in fact the main organ for implementation of Multilateral Trade
Agreements.
Membership – There are two types of members –(i) original; and (ii) other members. The
original members comprise :
(a) The members of the GATT as on the date of entry into force of the agreement : and
KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi
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(b) the European Communities which accept this Agreement and the Multi Trade
Agreements and of which schedules of Concessions and Commitments are annexed
to the Gatt 1994 and four which also schedules of specific commitment are General
Agreement on Trade in Services.
Withdrawal from Membership - Any member may withdraw from this agreement by giving a
written notice to the Director-General of the W.T.O. The withdrawal takes effect after the expiry
of six months.
Structure – The W.T.O. consists of following bodies –
(i) The Ministerial Conference – It is the highest body comprising of the representatives
of all members. It is the executive of the W.T.O. and carries out functions of W.T.O. It
meets atleast once every two years.
(ii) The General Council – It is also comprised of the representatives of all members. It
meets between the meetings of Ministerial Conference and carries out the functions of
the W.T.O.
(iii) The Dispute Settlement Body
(iv) Trade Policy Review Body
(v) The Committee on Trade and Development, the Committee on Balance of
Payment Restrictions and Committee in Budget and Administration
(vi) Bodies provided under the plurilateral Trade agreements.
(vii) The Secretariat – The Secretariat is headed by a Director-General appointed by the
Ministerial Conference. On May 13, 2005, Pascal Lamy was elected the Director
General. He took over from Supachai Panit Chipakdi on September 1, 2005.
Functions of W.T.O. – According to Article III of the Agreement following are the
functions of the W.T.O.
(i) To facilitate the implementation operation, administration and the promotion of the
agreement (i.e. of 1994) and the Multilateral Trade Agreement and also of the
Plurilateral Trade Agreements;
(ii) To administer the rulers and procedures governing the settlement of disputes;
(iii) To administer the Trade Policy Review Mechanism (TPRM);
KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi
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(iv) To cooperate with International Monetary Fund (IMF), the International Bank for
Reconstruction and Development [IBRD or the World Bank] and its affiliated agencies to
bring about greater coherence in global economic policy making.
(ii) United Nations Educational<scientific and Cultural Organization. (UNESCO).- For
the establishment of the United Nation Educational, Scientific and Cultural Organization
a conference was held in London in November, 1945. It was finally established on
November, 14, 1946. Thereafter it was brought into relationship with the United Nations
through a special agreement which was approved by the General Assembly on
December, 14, 1946.
Objectives and Functions.- Article 1 of the Constitution of the United Nations
Educational, Scientific and Cultural Organization provides, “ Since wars begin in the
minds of men, it is in the minds of men that the defences of peace must be
constructed.” It aims to contribute for the maintenance of international peace and
security by creating respect for the rule of law, human rights and fundamental freedoms
through the medium of education, science and culture.
Composition.- Each member of the United Nations can become its member. Other
States may be made the member of the United Nations Educational, Scientific and
Cultural Organization through two-thirds majority of General Conference.
Q.7(a) How the Chairperson and members of National Human Rights are appointed under the
Human Rights Protection Act, 1993?
Ans. National Human Rights Commission :- Protection of Human Rights Act provides for the
establishment of the National Human Rights Commission consisting of the following :
(a) A chairperson who has been the Chief Justice of the Supreme Court;
(b) One member who is, or has been the Chief Justice of the Supreme Court.
(c) One member, who is or has been the Chief Justice of a High Court.
(d) Two members to be appointed amongst persons having knowledge of or practical experience
in matters relating to human rights.
Besides these, the chairpersons of National Commission for minorities the National
Commission for the Scheduled Casts and Scheduled Tribes and the National Commission
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for women shall be deemed to be the members of the commission for the discharge of the
functions specified in clauses (b) to (j) of Section 12 of the Act.
The headquarters of the National Human Rights Commission (NHRC) is located at
Delhi. The Chairperson and other members of the Commission are appointed by the President
by Warrant under his hand and seal after obtaining the recommendations of Committee
consisting of (1) Prime Minister (b) Speaker of the House of people (c) Minister in charge of
Home Affairs in the Government of India (d) Leader of the Opposition in the house of people
(e) Leader of opposition in the Council of States and (f) Deputy Chairmen of the Council of
State. The Chairperson and Members hold office for a term of five years.
Q.B What are the functions of the Human Rights Commission?
Ans Functions of the National Human Rights Commission :- According to Section 12 of the
Act the Commission shall perform the following functions :-
(a) Inquire, Sue Motu or on a petition presented by a Victim or any other person on his behalf into
complaint of –
(i) Violation of Human rights or abetment thereof; or;
(ii) Negligence in the prevention of such violation by a public servant;
(b) Intervene in any proceeding involving any allegation of violation of human rights pending
before a court with the approval of such Court;
(c) visit under intimation to the State Government any jail or any other institution under the control
of the State Government, where persons are detained or lodged for purposes of treatment
reformation or protection to study the living conditions of inmates and make recommendations
thereon;
(d) review the safeguards provided by or under the constitution or any other law for the time being
in force for the protection of human rights and recommend measures for their effective
implementation.
(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and
recommend appropriate remedial measures;
(f) Study treaties and other international punishments on human rights and make
recommendations for their effective implementation;
(g) Undertake and promote research in the field of human rights;
KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi
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(h) spread human rights literacy among various sections of the society and promote awareness of
the safeguards available for the protection of these rights through publications, media,
seminars and other available means;
(i) encourage the efforts of non-governmental and institutions working in the field of human right:
and
(j) such other functions as it may consider necessary for the promotion of human rights.
Under Section 20 of the protection of Human Rights Act, 1994, the National Human Right
Commission is required to submit an annual report to Central Government and to the State
Government, concerned and may at any time submit special reports on any matter which in its
opinions, if of such urgency or importance that it should not be deferred till submission of the
annual report. After the annual report is submitted by the commission the Central Government
and the State Government, as the Case may be, shall cause the annual and special reports of
the Commission to be laid before each house of parliament or the state Legislature
respectively, as the Case may be, along with a memorandum of action taken or proposed to be
taken on the recommendations of the Commission and the reasons for non-acceptance of the
recommendations, if any.
Q.8 International Law is Law in proper sense. Critically examine the statement. Give
your suggestions for improving International Law.
Ans. Whether International Law is law in the true sense of the term or not – The
Controversy whether International Law is true Law or not depends upon the definition of
the word „law‟. As remarked by “Prof. Glanville L.Williams, The largest of
jurisprudential controversy that as to the word „law‟ is a verbal dispute and nothing else.” If
we subscribe to the view of Hobbes, Austin and pufendorf, that law is command of
sovereign enforced by superior political authority, then International law cannot be
included in the category of law. On the other hand, if we subscribe to the view that the
term „law‟, can not be limited to the rules enacted by the superior political authority, then
international law can be included in the category of law.
The definition of law given by Austin is not correct. In the words of Prof.
Oppenheim, “This definition is not correct. It does not cover that part of Municipal law
which is termed as unwritten or customary law. There is, in fact, no community and no
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State in the word which exist with written law only, “In his view, law is, “a body of rules of
human conduct within a community which by consent of this community shall be enforced
by external power.”
Views of jurists, who regard international law as really law may be summed up as
follows –
(1) The term law cannot be limited to rules of conduct enacted by a sovereign authority. It has
been established by Historical Jurisprudence that in many communities a system of law
existed although such communities lacked a formal legislative authority. As pointed out by
Starke, such law did not differ from any State law with true legislative authority.
(2) As pointed out by Oppenheim, in practice, international law is recognized as law by the States
and they consider it binding on them.
(3) The Austiniam concept of law fails to account for the customary rules of International law.
(4) In some States (for example U.S.A. and U.K.), international law is treated as a part of their own
law.
(5) International conferences and conventions treat international law as law in the true sense of
the term,
(6) The statute of International Court of Justice provides that the court shall decide such disputes
as are submitted to it in Accordance with International Law.
(7) Those who deny the legal character of International law emphasize that it is frequently
violated. It is true that International law is frequently violated but it does not mean that it is not
law. Even State or municipal law is frequently violated. Frequency of violations of law and
the question of international law being law are two different things. Frequency of violation is
connected with the weakness or strength of the enforcement machinery. Though State or
municipal law is frequently violated, it is never said that it is not law. What is true of municipal
law should also hold good for International law.
Weakness of the International Law – Following are the weakness of the International Law –
1. It lacks effective authority to enforce its rules.
2. It lacks effective legislative machinery.
3. The International Court of Justice has no compulsory jurisdiction in the true sense of the terms.
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4. The sanctions behind international are very weak.
5. It cannot intervene in the matters which are within the domestic jurisdiction of States.
6. Many rules of International law are uncertain and vague.
7. International has failed to maintain order and peace in the world.
Suggestions for improving International Law –
(1) The international Court of Justice should be given compulsory jurisdiction in the true sense of
the term.
(2) An International criminal court should be established to decide cases of International crimes.
(3) International Law should be properly Codified and Scientifically revised from time to time.
(4) The machinery to enforce the decisions of the World Court should be strengthened.
(5) The power and scope of the activities of the International law Commission should be
expanded.
(6) The doctrine of judicial precedents should be applied in the field of International law.
(7) The legislative activities of the General Assembly should be further enlarged.
(8) The U.N charter should be amended as to authorize the U.N to intervene in such matters with
the domestic jurisdiction of States as are of international concern.
Q.9 What do you understand by „Intervention‟? What were the different grounds of
intervention.
Ans. Meaning and definition of Intervention:- The term „Intervention‟ has been defined by
Oppenheim in the following words: “ Intervention is dictatorial interference by a state in the affairs
of another state for the purpose of maintaining or altering the actual Condition of things”. In
principle, international law prohibik intervention. But as pointed out by Prof. Hans Kelsen,
international law does not prohibit intervention in all circumstances.
Article 2 (4) of the United Nations charter propounds the principle of non-intervention by states
in the following words,” All members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political Independence of any state or in other
manner in Consistent with the purpose of the United Nations Charter.”
The principle of non-intervention by the United Nations finds incorporated in Article 2 (7) of the
United Nations charter.Article2 (7) provides:- “Nothing contained in the present charter Shall
KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi
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authorize the United Nations to intervene in matters which are essentially within the domestic
jurisdiction of any state or shall requires the members to submit such matters to settlement under
the present charter, but this principle shall not prejudice the enforcement measures under chapter
VII.”
Grounds of intervention
(1) Self-defence:- It has been a Valid ground of intervention by one state in the affairs of
another state for a long-time. But as pointed out by Oppenheim, the use of force is self-
defence can by justified only when it is necessary for self preservation. In this Connection
Mr. Webster, the Secretary of United States of America propounded a very important
principle in the famous case,” The Caroline”.
In this case Mr. Webster declared that the necessity of self defence should be “instant”,
overwhelming leaving no choice of means and no moment for deliberation.”
The Unites Nations charter Confers upon every state the right if individual or collective self
defence under Article 51. But the right of self-defence under Article 51 is subject to
following Conditions‟.
(1) „There should be an armed attack.
(2) The right exists until the Security Council has taken any action:
(3) It should be reported to the Security Council:
(4) It is subjected to the review by the Security Council:
(5) The right shall not affect the responsibility of the Security Council for the
maintenance of peace and security:
(6) This right is not available against a non-member of the United Nations.
(2) Intervention on Humanitarian Grounds – The history is full of cases wherein intervention
was permitted on humanitarian grounds. England, France,and Russia jointly intervence in
the conflict of Greece and Turkey in 1827 to check violation of human rights. In 1860
intervention was made in favour of Christians of Mount Lebanon. In 1878 intervention was
made to protect the independence of a Balkan State. It is clear that the intervention on the
ground of the Violation of Human Rights can be permitted, only when the violation of
human rights in a member state poses a threat to international peace and security, that is
to say, U.N. can take action under chapter VII only on the ground of international peace
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and security. Unless and Until Security Council first determines that the Violation of
human rights poses a threat to international peace and security, action under Chapter VII
cannot be taken Thus, on the ground of human rights alone even the U.N. cannot
intervene in the affairs of a member state.
(3) To enforce Treaty Rights – This used to be a valid ground in the past, but in the
presence of the United Nations Charter this has ceased to be a valid ground for
intervention.
(4) Intervention to prevent illegal intervention – In past this used to be valid ground but the
United Nations charter has greatly affected intervention on this account also.
(5) Balance of Power – Intervention on the ground of balance of power used to be a valid
ground in the past but is no more a permissible ground of intervention in the presence of
the United Nations Charter.
(6) For protection of persons and property – The charter does not recognize this ground
and permits intervention only on the ground of self-defence.
(7) Collective Intervention – Under the United Nations Charter Collective intervention means
the intervention by the United Nations as permitted by the provision of the charter.
(8) Intervention to maintain International Law - The Charter nowhere provides that an
intervention can be mad to maintain international law. The charter simply provides for
intervention on the ground of maintaining or restoring international action peace and
security which may come under the broad “international law”. But no intervention is
permissible for maintaining international law as much.
(9) Intervention in civil wars – Generally speaking Article 2 (7) of the charter prohibits united
nations from intervening in the domestic affairs of any State, and as such ordinary, United
Nations cannot intervene in the civil war of any State. But if the civil war, assumes such
magnitude that it poses threat to international peace and security. The United Nations may
intervene because Article 2(7) which prohibits United Nations from intervering in the
domestic affairs of any State also provides that the Principal of non-intervention by the
United Nations in the international affairs of any State shall not prejudice the enforcement
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measures under chapter 7 of the charter. It may be noted that enforcement measures
under chapter 7 are taken by the Security Council to maintain or restore international
peace and security.
Thus, broadly speaking, there are only two grounds (one for member States of the
U.N. and one for the United Nations) ON which intervention is permissible under the
charter of the United Nations.
Q.10 Define Recognition. What are conditions for recognition of a new State. Critically
examine both – Constitutive and Declaratory theory in relation to the nature of
recognition under International law.
Ans. Meaning and Definition of the term „Recognition‟ :-
According to Prof. Oppenheim :- “ In recognizing a State as a member of international
community the existing states declare that in their opinion the new State fulfills the
conditions of statehood as required by International Law.”
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 the
definite territory of a human society, politically, independent of any other existing State and
capable of observing obligations of International Community.”
Conditions for recognition of a new State : According to Kelson , a Community to be
recognized as an international person must fulfil the four conditions
(a) The Community must be politically organized.
(b) It should have control over a definite territory.
(c) This control should tend towards permanence; and
(d) The Community thus constituted must be independent.
But International law does not provide as to how those essential conditions are to be
determined. International Law leaves the members of International Community free to
determine whether the States to be recognized contain essential conditions of Statehood. It is
because of this reason that recognition is very often said to be a political diplomatic function.
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THEORIES OF RECOGNITION :- There are two main theories of recognition :-
(1) Constitutive Theory
(2) Declaratory or Evidentiary Theory
(1) Constitutive Theory :- According to Oppenheim – “a State is, and becomes, an
international person through recognition only and exclusively”. According to this theory,
recognition clothes the recognized State with duties and rights under international law,
Recognition is a process through which a political community acquires international
personality of becoming a member of the family of nations. Hegel, Anzilloti Holland,
Oppenheim, etc are the chief exponents of this theory. Judge Lauterpacht has written that
there is a legal duty on the part of the States to recognize any community that has in fact
attained Statehood.
Criticism :- This theory has been severely criticized by many jurists. In practice, States do
not accept any obligation to recognize a community that has attained statehood, although
they may normally recognize it. According to this theory, unrecognized State can have
neither rights nor duties under International law. This is a very absurd suggestion.
(2) Declaratory Theory :- According to this theory, statehood or the authority of the new
government exists as such prior to and independently or recognition. Recognition is merely
formal acknowledgement through which established facts are accepted. The act of
recognition is merely declaratory of an existing fact that a particular State or government
possess the essential attributes of statehood as acquired under International law. The
chief exponents of this theory are Hall, Wagner, Brierly, Pitt Carbett and Fisher.
Brierly has remarked that :- the granting of recognition to a new state is not constitutive,‟
but a declaratory‟ act.
Criticism :-The view that recognition is only a declaratory of an existing fact is not
completely correct, In fact when a state is recognized, it is declaratory act. But the moment
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it is recognized, there ensue 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.
Oppenheim has admitted that :- “recognition is declaratory of an existing fact but
Constitutive in nature”.
Q.11(a) Write a short note on International Criminal Court.
(b) Write a short note on Hijacking.
Ans.(a) International Criminal Court
Establishment of the Court :- Article 1 of the Statute which establishes the International
Criminal Court provides that it shall be a permanent institution and shall have power to
exercise jurisdiction over persons for the most serious crimes of international concern, as
referred to in this statute and shall be complimentary to national criminal jurisdiction. It is
further provided that the court shall be brought into relationship with the U.N. through an
agreement to be approved by the Assembly of State parties to this and thereafter
concluded by the President of the court on its behalf. The seat of the Court shall be
established at the Hague in the Netherlands.
Jurisdiction :-The jurisdiction of the Court shall be limited to the most serious crimes of
concern to the international community as a whole. The Court has jurisdiction in
accordance with the statute with respect to the following crimes;
(1) The Crime of genocide
(2) Crimes against humanity;
(3) War Crimes;
(4) The crime of aggression.
(B) Hijacking :_
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Meaning and definition of the term „Hijacking‟ :- As pointed out by “Allona E.Evans,
“Aircraft Hijacking is a contemporary addition to the roster of International and national crimes
and the necessity for its control at international and national level is only beginning to be
recognized by the States”. In wider sense, hijacking is an act against the safety of traffic in the
air, is comparable to piracy, an act against the safety or traffic on the open sea.
Article 11 of the Tokyo Convention, 1963, which came into force on December 4, 1969,
provides;
1. When a person on board has unlawfully committed by force or threat thereof an act of
interference, Seizure or other wrongful exercise of control of an aircraft in fligh or when an
act is about to be committed, contracting states shall take all appropriate measures to
restore control of the aircraft to its lawful commander or to preserve his control of the
aircraft.
2. In the cases contemplated in the preceding para, the contracting state in which the aircraft
lands shall permit its passengers and crew to continue their journey as soon as practicable
and shall return the aircraft and the cargo to the person lawfully entitled to possession.”
The essentials elements of hijacking are as follows :
1. use of force or threat thereof, or any other form of intimidation committing the offence of
any attempt to do so;
2. the use of the means mentioned in (1) or attempts to use them should be for the purpose of
seizing or exercising control of an aircraft;
3. The use of force or threat there of is unlawful, &
4. The act mentioned above must be committed while the aircraft is in flight.
Q.12 What are the different categories of diplomatic agents ? Describe in short different
immunities and privileges of these agents in International law.
Ans. Classification :- In accordance with their status the following classification of diplomatic
agents was first made in the congress of Vienna, 1815:
1. Ambassador and Legates;
2. Minister pleni – potentiary and Envoys Extra- Ordinary; and
3. Charged‟ affairs.
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Some change was brought about in the above classification by the Congress of Aix-la –
Chappele, 1818. In this congress a fourth Category of diplomatic vagent namely. Minister
Resident was added and kept on the third place in order of priority. Thu the diplomatic agents
were the classified as follows :
(i) Ambassadors and Legates: - They are diplomatic agents of first category and are the
representatives of completely Sovereign States. The representatives appointed by Pope
are called legates.
(ii) Ministers pleni – Potentiary and Envoys Extra – Ordinary –Being the second category of
diplomatic agents, these representatives enjoy lesser privileges and immunities as
compared with those of the first category.
(iii) Minister-resident:-This Category was added in 1818 the Congress of Aix –La Chappele.
They are below the second Category and enjoy lesser privileges and immunities.
(iv) Charged‟ affairs – Charge d‟ affairs are the diplomatic agents of the last Category. They
are not appointed by the head of the State. They are appointed by the Foreign Minister of
State and in rights and duties they are Considered below the Ministers-Resident.
Article 14 of the Vienna Convention on Diplomatic Relations,1961, now once again
recognizes the following three Categories of diplomatic agents:-
1. Ambassadors or Nuncios accredited to Heads of States, and other Heads of Missions of
equivalent rank:
2. Envoys, Minister and Internuncios accredited to Heads of States, &.
3. Charged‟ affairs accredited to Minister of Foreign Affairs.
Immunities and Privileges of Diplomatic Agents;- Following are the immunities and
privileges of diplomatic agents.
(1) Inviolability of the person of Envoys :- This principle has been incorporated in
Article 29 of the Vienna Convention on the Diplomatic Relations,1961. Article 29
provides, “The person of diplomatic agent shall be inviolable. He shall not be liable
of any form of arrest or detention, the receiving State shall treat him with due respect
and shall take all appropriate steps to prevent any attack on his person, freedom or
dignity”.
(2) Immunity from criminal Jurisdiction of courts- The diplomatic agents are
immune from criminal jurisdiction of the Court of the States in which they are
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appointed, if a Case is filed in a court of law against diplomatic agent, it is sufficient
for such an agent to Inform the court that he is immune from the jurisdiction of the
Court.
(3) Immunity from civil Jurisdiction- The diplomatic agents are also immune from the
jurisdiction of the Civil Court, Suits for recovery of debts, breach of Contract, etc.
cannot be filed against diplomatic agents.
(4) Immunity regarding residence – The residences of diplomatic agents are generally
regarded inviolable.
(5) Immunity from being present as witness- Diplomatic agents cannot be presented
as witness in the Court. But a Diplomatic agent may himself waive this immunity and
personally present himself in the Court as a witness.
(6) Immunity from taxes- Under International Law the diplomatic agents are also
immune from payment of taxes, etc. These immunities are incorporated in Art 34
to36 of Vienna Convention on the Diplomatic Relation.
Relations :
(7) Immunity from police rules – The diplomatic agents are also immune from the
police rules of the State in which they are appointed.
(8) Right to worship – The diplomatic agents enjoy the right to worship. They are free
to follow any religion or perform the religious rituals and ceremonies, etc. in their
own way.
(9) Right to exercise control and jurisdiction over their officers and families –
(10) Right to travel freely in the territory of the receiving State under 26 of the
Vienna Convention on Diplomatic Relations, 1961, the diplomatic agents can travel
freely in the territory of the receiving States.
(11) Freedom of Communication for official purposes :- According to Article 27 of
the Vienna Convention on Diplomatic Relations, 1969, the diplomatic agents have
freedom to communicate with the home State in connection with their functions and
duties.
(12) Immunity from the local and military obligations – This provision finds
mention in Article 35 of the Vienna Convention on Diplomatic Relations, 1961.
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(13) Immunity from Inspection of Personal Baggage – Article 36 (2) of the Vienna
Convention provides that personal baggage of diplomatic agent be exempt from
inspection, unless there are serious grounds for presuming that it contains articles
not covered by exemptions mentioned in paragraph of this article or articles the
import of which is prohibited by the flaw or controlled by the quarantine regulations
of the receiving State.
(14) Immunity from Social Security provisions :- According to Article 33 of the
Vienna Convention, a diplomatic agent shall with respect to services rendered for
the sending State be exempt from social security provisions which may be in force in
the receiving State.
Duties of Diplomatic Agents : Following are the duties of diplomatic agents –
(1) Duty to respect laws and regulations of the receiving State ;
(2) Duty not to interfere in the internal affairs of the State;
(3) Official Business to be conducted with or through the Minister of Foreign Affairs
of receiving State or such other Ministry as may be agreed;
(4) Premises of Mission not to be used in any matter incompatible with the function
of the Mission; and
(5) Diplomatic agents not to practice for personal profit any professional or
commercial activity.
Q.13 How far various human rights have been included within the Constitution of India.
Explain
(Reference International law and Human Rights (Nutshell)13th edition, central law agency.
Ans. The Indian Constitution bears the impact of Universal Declaration of Human Rights, 1948.
When the Constitution of India was being drafted and adopted.
The universal declaration had already been passed by the General Assembly of
the U.N. The Supreme Court of India has recognized the influence of the universal
Declaration of Human Rights on the Indian Constitution. he Indian Constitution
incorporates human rights
in following three ways :
(1) Specifically inumerated Rights.
(2) Other Rights or Rights not specifically Enumerated.
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(3) Unenumerated Rights (and also not yet recognized rights).
(1) Specifically Enumerated Rights – By specifically enumerated rights we mean human
rights which find mention in international instruments such as Universal Declaration of
Human Rights and International Covenants on Human Rights and are also enumerated in
Indian Constitution either as fundamental rights or Directive Principles of State Policy. For
example a number of human rights which have been proclaimed in the Universal
Declaration on International Covenants on Human Rights have also been enumerated in
Indian Constitution. The following Charts will make the position clear.
(A) Civil and Political Rights :
_____________________________________________________________________
Universal Declaration of Human Rights Indian Constitution
_____________________________________________________________________
1. Right to Life and Security of Person (Article 3) ……………………………. Article 21
2. Prohibition of slavery, slavery trade etc. (Article 4) …………………………Article 23
3. Equality before law and non-discrimination (Article 7) ……….….Arts. 14 and 15(1)
4. Right to effective remedy (Article 8) …………………………………….…….Article 32
5. Right against arbitrary arrest, detention etc. (Article 9) ……………………..Article 22
6. Right against ex post facto laws [(Article 11 (2)]……………………..……Article 20(1)
7. Right to freedom of movement [(Article 13(1)] …………………….….Article 10(1) (d)
8. Right to own property and not to be deprived of
Property (Article 17)…………………………………………………..……Article 19(1)(f)
[ But it was omitted by the
Constitution of India, (42nd
Amendment) Act, 1978]
9. Right to freedom of thought, conscience and
Religion (Article 18)………………………………………………………….Article 25(1)
10. Right to freedom of opinion and expression
[(Article 19 ......................... ……………………………………………. Article 19(1)(a)
11. Right to freedom of peaceful assembly and
Association [(Article 20(1)] ……………………………………….……..Article 19(1)(b)
12. Right to equal access to public service [Article 21(2)] …………….……Article 16(1)
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13. Right to social security (Article 22)…………………………………….…..Article 29(1)
14. Right to form and to join trade Unions [Article 23(4)] ……………… Article 19(1)(c)
(B) Economic, Social and Cultural Rights :
____________________________________________________________________
Universal Declaration of Human Rights Indian Constitution
1. Right to work, to free choice of an employment,
To just and favourable conditions of work etc.
[ Article 23(1) ………………………………………………………………….. Article 41
2. Right to equal pay for equal work [Article 23(2)] …………………….…..Article 39(d)
3. Right to just and favourable remuneration [Article 23(3)] …………………Article 43
4. Right to rest and leisure (Article 24)………………………………………….Article 43
5. Right to everyone to a standard of living adequate
For his and his family [Article 25(1)]…………………………. Article 39(a) & Article 47
6. Right to education and free education in the „
Elementary and fundamental stages [Article 26(1) …………………Articles 41 & 45
7. Right to a proper social order (Article 28) ………………………..…………..Article 38
(C) Civil and Political Rights :
_____________________________________________________________________
International Covenant on Civil and Political Rights) Indian Constitution
1. Right to life, liberty security of person [Articles
6(1) & 9(1)] …………………………………………………………………….Article 21
2. Freedom from forced and compulsory labour [Article 8(3)] ……………….Article 23
3. Freedom from unlawful arrest and detention [Article 9(2), (3) & (4)]……… Article 22
4. Liberty of movement and choice of residence [Article 12(1)] ………..Article 19(1)(d)
5. Equality before courts & tribunals [Article 14(1)] ………………………….…Article 14
6. Right not to be compelled to testify himself or to
Confess guilt [Article 14(3) (g)]………………………………….…..Article 20(3)
7. Right against Double Jeopardy [Article 14(7)] ……………………..…….Article 20(2)
8. Right against ex post facto laws [Article 15(1)] …………………….…….Article 20(1)
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9. Freedom of thought, conscience and religion [Article 18 (1)] ………..…..Article 25
10. Right to hold opinion without interference and right to
Freedom of expression [Article 19(1) & (2)] ……………………Article 19(1)(a)
11. Right to peaceful assembly (Article 21)…………………………………Article 19(1)(b)
12. Right to freedom of association with others
(Article 22(1)] ………………………………………………………………Article 19(1)(c)
13. Right to have access, on general terms of equality
To public service in his country [Article 25(c)] …………………………...Article 16(1)
14. Equality before law & equal protection of law
Without any discrimination (Article 26) …………………………..…..Arts. 14 & 15(1)
15. Right of minorities to enjoy their own culture, to
Profess and practice own religion or-to use their
Own language (Article 27)………………………………………..………Arts. 29 & 30
(D) Economic, Social and Cultural Rights :
________________________________________________________________________
The International Covenant on Economic Indian Constitution
Social and Cultural Rights, 1966
_______________________________________________________________________
1. Equal pay for equal work [Article 7(a)(i)] ……………………………………..Article 39(d)
2. Protection of Children and young persons [Article 10(3)……………………Article 39(f)
3. Right to work [Article 6(1)] …………………………………………….…………. Article 41
4. Right to safe and healthy working conditions and
Right to protection of mothers before child birth
[Arts.7(b) & 10(2)] ……………………………………………………….…………Article 42
5. Right of workers of decent living for themselves
And their families and their right of rest, leisure
And reasonable limitation of working hours [Arts.
7(a)(ii) : 7(d)] ………………………………………………………………………..Article 43
6. Obligation of States to make secondary education
Generally available [Article 13(2)(A)] ……………………………………….……article 45
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7. Right of to an adequate standard of living for
Himself and his family (Article 11)………………………………………….…….Article 47
The human rights which are incorporated or specifically Indian enumerated in Part III of
the Constitution are of special importance. They are called fundamental rights. They are
fundamental in the sense that they are enforceable by courts. Moreover, they cannot be taken
away or abridged by the Executive or Legislature.
(Reference International Law and Human Rights (Nutshell) the Edition, Central Law Agency)
Q.14 Write a short note on
(a) Five freedoms of Air
(b) Maritime Belt or Territorial water
Ans. Five freedoms of Air – Convention of 1944 declared the following 5 freedoms of the air.
(i) Freedom to fly across the foreign territory without landing;
(ii) Freedom to land for non-traffic purposes;
(iii) Freedom to disembark in foreign territory, traffic originating in the state of the origin of the
craft;
(iv) Freedom to pick-up in foreign country, traffic destined for the state of the origin of the air
craft;
(v) Freedom to carry traffic between two foreign countries. In order to give a concrete shape of
the above five freedoms the following two agreements were entered into-
1. The International Air Service Agreement, 1944 – This agreement incorporated the first two
freedoms.
2. The International Air Transport Agreement, 1944 – This agreement incorporated the last three
freedoms.
The first agreement was signed by the majority of the states whereas the second was signed
only by a few states.
(B) Maritime Belt or Territorial waters – The 1958 Geneva convention on Territorial waters
and contiguous Zone provided that the coastal state exercises sovereignty over that part
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of the sea which is called Maritime or Territorial waters. The coastal state exercises
sovereignty not only over to territorial waters, but also over air space above it. Art 2 of the
U.N. convention on the law of the sea, 1982 contains a similar provision.
Problems of Width of the Territorial Waters –Up to 18th century the canon-shot rule was
prevalent. According toe Bynker-Shoek, the breadth of the maritime belt extends to that
distance where a conon can fire. Up to 19th century the range of canon-shot was generally
3 miles. In the 19th Century, the 3 mile canon-shot rule became very much prevalent. Scientific
inventions and discoveries made this rule inadequate because the range of canon-shot
increased considerably. According to Grotius the Sovereignty of a coastal state over maritime
belt should extend to that area up to which it can exercise effective control..
Q.15 Write a short note on
(i) Contiguous Zone
(ii) Prize Courts
Ans.(i)Contiguous Zone – Contiguous Zone is that part of the sea which is beyond and adjacent
to the territorial sea of the coastal state. According to Article 53 of the U.N. Convention on
the law of the Sea, 1982, in a zone contiguous to its territorial sea, the coastal state may
exercise the control necessary to – (a) prevent infringement of its customs, fiscal
immigration or sanitary regulation within its territory or territorial sea; (b) punish
infringement of the above regulations committed within its territory or territorial sea. The
contiguous may not extend beyond 24 miles from which the breadth of territorial sea is
measured. That is to say, it is twelve miles beyond the territorial sea.
(ii) Prize Courts – The enemy properties seized in the sea in violation of rules of blockade or
contraband are called prizes. But it should be noted here that simply by seizing such properties
or ship as prize, the belligerent State does not acquire the ownership over them. In order to
acquire ownership over such goods or ships the general practice is that such goods or ship are
produced before the courts which are called Prize-Courts.
Nature of Prize Courts – Prize Courts are national courts. They acquire validity from State
Law. They are not international courts. It was laid down in the famous case of The Zamora
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that the British Prize Courts are, in fact, national tribunals. They acquire validity from national
orders and notifications.
Jurisdiction of Prize Courts – The Prize Courts derive jurisdiction from the belligerent States
which establish them. The belligerent State establishes there courts because it is necessary
for them to get the validity of the goods or ships seized by them certified or verified by such
courts. Since Prize Courts are national courts, the State law and notifications are binding upon
them.
Q.16 What do you mean by Neutrality? What are the essential elements of Neutrality.
Ans. Meaning and definition of the term „Neutrality” - As pointed out by Oppenheim, neutrality is
“the attitude of impartiality adopted by third States towards the belligerent and recognized by
belligerent, such attitude creating rights and duties between the impartial States and
belligerents”. According to Lawrence, neutrality is the “condition of those States which in time
of war take no part in the contest but continue pacific intercourse with the belligerents.”
According to Starke, “In the popular sense, neutrality denotes the attitude of a State which is
not at war with belligerents and does not participate in the hostilities. In its technical sense,
however, it is more than an attitude, and denotes a legal status of a special nature, involving a
complex of rights, duties and privileges at international law, which must be respected by
belligerents and neutrals alike”.
On the basis of the above definitions we may conclude that there are following three
essential elements of neutrality :
(1) Attitude of Impartiality – Neutral State is a State which does not take part in war and
remains impartial. This impartiality is one of the essential elements of neutrality.
(2) Recognition and Impartiality by Belligerent States –It is also necessary that this
impartiality should be recognized by the belligerent States.
(3) Creation of rights and duties – The recognition of attitude of impartiality of the neutral
State gives rise or creates certain rights and duties. It gives certain rights to neutral States
and also imposes certain duties upon it. Similarly, the neutral State also acquires certain
rights because of the attitude of impartiality and neutrality adopted during the war between
the two belligerent States. These rights and duties are recognized under international law
and should be observed by the belligerent State as well as the neutral States.
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Q.17 What are the different modes through which new state – territories can be acquired
under international legal system.
Ans. Modes of acquiring territories – Following are the modes of acquiring territories under
International Law :
(1) Occupation – According to Starke, “Occupation consists in establishing sovereignty over a
territory not under the authority of any other State whether newly discovered or an unlikely
case – abandoned by the State formerly in control.”
A leading case regarding occupation is Island of Palamas Arbitration (1929).
In Eastern Greenland case, the Permanent Court of International Justice laid down the
following two tests :
(1) For occupation it is necessary that there must be an intention and will to act as Sovereign
over the territory concerned.
(2) There should be some actual exercise or display of such authority. The facts in this case
are as follows :
(II) Prescription – Yet another mode of acquiring territory is by prescription.
As pointed out by an eminent writer, D.H.N. Johnson, a state may acquire some territory
by prescription only when the following conditions are fulfilled :
(i) When it has not accepted the sovereignty of any other state over the said
territory.
(ii) Possession should be peaceful and uninterrupted.
(iii) Possession should be in public.
(iv) Possession should be for a definite period.
(III) Accretion – As pointed out by Starke, “Title by accretion occurs when new territory is
added mainly through natural causes, to territory already under the sovereignty of the acquired
State,” No formal act or assertion of title is necessary.
(IV) Cession – Territory may also be acquired through cession. It may either be a voluntary act
or in consequence of a war. Cession is generally considered valid only when the sovereignty of
the territory concerned is transferred to another State Case refer In re Berubari Union and
Exchange of Enclave
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Refer case Union of India v. Sukumar Sengupta (popularly known as Tin Bigha
case).
(V) Annexation – A territory may also be acquired by annexation. It is, however,
necessary that after conquest, sovereignty must be established over the territory. That
is to say, effective occupation after conquest is necessary. This mode has become obsolete
after the commencement of the Charter of the U.N. Article 2 (4) of the Charter make it
incumbent upon Member States to refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the purposes of the United Nations. In view of this provisions
acquisition of territory by annexation is no more legal. A recent example of this is the
annexation of Kuwait by Iraq.
(VI) Lease – Yet another mode of acquiring territory is by way of lease. A State may lease a
part of its territory to another State. For example, State of Malta has leased an island to Britain
for some time. Similarly, Panama leased Panama canal area to the U.S.A.
(VII) Pledge – Sometimes a State may pledge a part of its territory to another State in return of
some money.
(VIII) Plebiscite – There is controversy as to whether a territory may be acquired through
plebiscite or not. A recent example of acquiring territory by this mode is that of West Iran which
was claimed both by Netherlands and Indonesia. A plebiscite was held under the auspices of
United Nations.
(IX) Acquisition of territorial sovereignty by newly emerged State – Yet another method of
acquiring territorial sovereignty is through the emergence of a newly independent State. This is
particularly true in case of those states who were previously the colonies of some states. In
this connection the difficulty is how the territory which was previously part of another State ca
acquire sovereignty after becoming independent.
Q.18 Define Asylum. Write its classification.
Ans. Meaning and Definition – By „the term “Asylum” we generally mean the shelter and active
protection which is extended to a political refugee from another State by a State which admits
him on his request. As pointed out by Starke. Asylum involves two elements : (1) A shelter
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which is more than a temporary refuge; and (2) a degree of active protection on the part of the
authorities which have control over the territory of asylum.
Types of Asylum (i) Territorial asylum; and (ii) Extra-territorial asylum
Territorial Asylum – Territorial asylum is granted by a State in its own territory and is
considered as an attribute of territorial sovereignty of the State which grants Asylum.
This right has also been recognized in the draft declaration on Asylum adopted by the United
Nations Human Rights Commission.
Example of Dalai Lama and his Tibettan followers – The grant of asylum to Dalai Lama and
his followers was an indication of the exercise of territorial sovereignty by India. India as a
sovereign State was within her girths to grant asylum to Dalai Lama and his followers in the
territory of India.
Example of influx of refugees from Bangladesh – As pointed out earlier, each sovereign
State can admit or grant asylum to any individual within its territory. India was within her right
to grant asylum to millions of refugees from East Pakistan (Now Bangladesh) who fled from
their native land due to repressive policies followed by and ruthless prosecution caused by the
military regime of General Yahya Khan.
Extra-territorial or diplomatic asylum – A State may also grant asylumin its Embassy in
foreign countries or in its public vessels. Extra-territorial or diplomatic asylum may be classified
into following categories :
(a) Asylum in foreign Legation or Diplomatic Embassies – Since granting of diplomatic
asylum involves a derogation from the sovereignty of the State international law ordinarily
does not recognize a general right of a head of mission to grant asylum in the premises of
legation.
In the view of Starke asylum may be granted in the legation premises in the following
exceptional cases :
(i) Asylum may be granted, for a temporary period, to individuals who are physically in
danger from mob-violence or in case of fugitive who is in danger because of political
corruption in the local State.
(ii) Asylum may also be granted where there is a well-established and binding local
custom.
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(iii) Asylum may also be granted if there is a special a treaty between territorial State
and the state of the legation concerned.
(b) Asylum in Consular premises – The above principles also apply in case of grant of
asylum in consular premises.
(c) Asylum in the premises of International Institution – Generally speaking international
law does not recognize any rule regarding the grant of asylum in the premises of
International Institution. However, temporary asylum may be granted in case of danger of
imminent violence.
(d) Asylum in War Ships – There is a controversy in regard to the grant of asylum in War
Ships. Some writers are of the view that asylum can be granted in war ships in the territorial
waters of a Coastal State.
(e) Asylum in Merchant Vessels – Since merchant vessels do not enjoy immunity from
local jurisdiction, they are not competent to grant asylum to local offenders.
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Important Questions
Q.1 Explain in brief the object short title extent and commencement of the
Protection of Human Rights Act 1993.
Q.2 Write a critical envoy on universal declaration of Human rights 1948.
Q.3(a) How the Chairperson and members of National Human rights.
(b) Describe relevant provisions of the Protection of Human Rights Act 1993
regarding the tenure, conditions of service and the removal of above
mentioned members of the commission.
Q.4 What do you understand and by the term all facts and all fure recognition is
there any distinction between these two types of recognition.
Q.5 Write a short note on Indian
(A) Territorial Waters
(B) Write a short note on Amnesty International.
Q.6 International Law is Law in Proper Sense. Critically Examine the statement
is it true to call it a weak law.
Q.7 Define State and non state entities Point out the difference between vassal
status and protectorates.
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Q.8(a) Explain the Maxim Pacta Sunt Servanda.
(b) Write a short note on United National Commission of Human rights.
Q.9 Attempt a critical energy on Universal Declaration of Human Rights 1948.
Q.10(A)What are the functions of the National Commission for minority Act 1992.
(B) Duties of Prize Courts.
Q.11 What are the different sources of International Law?
Q.12 Discuss the composition of National Human rights commission. How far in
your opinion this commission has been able to protect the human rights of
Poor Indians uptil now.
Q.13 Where could you find the human rights in the Indian constitution. Write
down four such rights.
Q.14 How Human Rights have been defined in the Protection of Human rights
Act 1993?