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Study Material Prepared by: Ujal Kumar Mookherjee, Assistant Professor of Law, Indian Institute of Legal Studies

STUDY MATERIALS FOR PUBLIC INTERNATIONAL LAW

For 9 th Semester Students (JULY- DECEMBER,2020)

Prepared by: Ujal Kumar Mookherjee, Assistant Professor of Law, IILS

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SYLLABUS

• Definition, Nature and Basis of International Law • Subjects of International Law • Sources of International Law • Relationship Between International Law & Municipal Law • States: The Most Important Subject of International Law • State Jurisdiction •

Law of the Seas • Recognition • Individuals as Subjects of International Law • Nationality • Asylum and Extradition • Peaceful Settlement of Disputes • Neutrality

Table of Contents

Definitions of International Law........................................................................................7

What is meant by the International System? / What is International Law? / What is the utility of International Law?.............................................................................................10

Role of Consent in International Law................................................................................13

History and Development of Public International Law with Relevant Jurisprudential Interface..........................................................................................................................15

Natural Law School.............................................................................................................................................15

Pre-Decline Natural Law Theories.......................................................................................................................15

The Period of Decline, saw the rise of Positivist theories.....................................................................................15

After this, the Natural Law School Revived..........................................................................................................15

How International Law Developed......................................................................................................................16

Greece:............................................................................................................................................................16

Rome:..............................................................................................................................................................16

Byzantine........................................................................................................................................................17

Gradual Emergence of Modern Natural Law:......................................................................................................17

Middle Ages:...................................................................................................................................................17

Renaissance Period: Interplay Between Natural Law and Positivism..............................................................18

Nineteenth Century: Era of Positivism.................................................................................................................20

Twentieth Century: Era of Enormous Growth......................................................................................................20

Nature of International Law............................................................................................21

Basis of International Law...............................................................................................26

International Law Is Weak Law.......................................................................................27

Relationship Between International and Municipal Laws.................................................30

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What are municipal laws?...................................................................................................................................30

Introduction to the Module.................................................................................................................................31

Theories Relating to Such Interrelationship: Dualism and Monism.....................................................................32

The role of municipal rules in international law..................................................................................................35

Relevant Provisions of Law Relating to the Issue:...........................................................................................35

Judicial Decisions.............................................................................................................................................36

The role of International Law in Municipal Plane................................................................................................39

State Practices: United Kingdom.........................................................................................................................41

Customary International Law..........................................................................................................................41

Treaties...........................................................................................................................................................44

State Practices: USA............................................................................................................................................47

Customary International Law:.........................................................................................................................47

Treaties...........................................................................................................................................................49

State Practices: India...........................................................................................................................................50

Customary International Law..........................................................................................................................50

Treaties...........................................................................................................................................................51

Sources of International Law............................................................................................54

Customs as a Source of International Law..........................................................................................................56

Treaties as a Source of International Law...........................................................................................................64

General Principles Recognised by Nations:..........................................................................................................68

Writings of Jurists as a Subsidiary Source............................................................................................................71

Subjects of International Law...........................................................................................72

States..................................................................................................................................................................73

How is a State Born?.......................................................................................................................................74

State Recognition.............................................................................................................76

Meaning:.............................................................................................................................................................76

Definitions...........................................................................................................................................................77

Theories of Recognition.......................................................................................................................................77

Features of Constitutive Theory: Recognition Constitutes Statehood.............................................................77

Features of Declaratory Theory: Recognition merely declares/acknowledges Statehood..............................77

Features of Kelsen’s View: Natural & Juridical Statehood(personality)...........................................................77

Effects of Recognition..........................................................................................................................................78

Forms of Recognition: Article 7 of Montevideo Convention on Rights ad Duties of States, 1933........................78

Modes of Recognition: De jure and De facto.......................................................................................................78

Cases Related to De jure v. De facto:...................................................................................................................78

Tobar Doctrine: Doctrine of legitimacy...............................................................................................................79

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Estrada Doctrine: Doctrine of effectiveness.........................................................................................................80

Conditional Recognition......................................................................................................................................81

Recognition of Belligerency:................................................................................................................................81

Recognition of insurgency:..................................................................................................................................81

Rights and Duties of State Under International Law.........................................................82

Independence......................................................................................................................................................82

Sovereign Equality...............................................................................................................................................84

Peaceful Coexistence...........................................................................................................................................85

Protectorate States..........................................................................................................86

Individuals as Subjects of International Law.....................................................................87

International Organisations as Subjects of International Law...........................................88

Law of the Seas................................................................................................................89

Points to Remember:...........................................................................................................................................91

Internal waters....................................................................................................................................................92

Baselines.............................................................................................................................................................93

Exclusive Economic Zone.....................................................................................................................................94

Continental Shelf:................................................................................................................................................95

Deep Sea Bed......................................................................................................................................................98

The 1982 Law of the Sea Convention (Part XI)..............................................................................................99

The Reciprocating States Regime.................................................................................................................100

Nationality.....................................................................................................................102

Main theories related to Nationality.................................................................................................................103

Acquisition of Nationality..................................................................................................................................104

Nationality by Birth.......................................................................................................................................104

By descent from a State’s National...............................................................................................................104

By Naturalization...........................................................................................................................................104

Nationality by Marriage................................................................................................................................105

Nationality by Adoption................................................................................................................................106

Nationality by Cessation................................................................................................................................106

Loss of Nationality.............................................................................................................................................106

Voluntary loss of citizenship..........................................................................................................................107

Involuntary loss of citizenship.......................................................................................................................107

By Expatriation..............................................................................................................................................107

Renunciation of Nationality..........................................................................................................................107

Loss of nationality by Substitution................................................................................................................108

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Loss of nationality by Expiration...................................................................................................................108

Statelessness: International Framework...........................................................................................................108

Extradition.....................................................................................................................112

Basic Principles Governing Extradition..............................................................................................................113

Principle of relative Seriousness of the offence............................................................................................113

Principle of Dual Criminality:.........................................................................................................................113

Existence of prima facie case against the fugitive.........................................................................................113

Principle of proportionality between offence and sentence:........................................................................113

Rule of specialty:...........................................................................................................................................114

Extradition and India.........................................................................................................................................114

Procedure Under the (Indian) Extradition Act, 1962 (Act)............................................................................114

Extradition Treaty Between India & UK.........................................................................................................116

Extradition Treaty Between India & the United States (US)..........................................................................117

Extradition Treaty Between India & UAE.......................................................................................................117

Absolute Exemption of Nationals..................................................................................................................118

Process in Case of Multiple Extradition Requests..........................................................................................119

Absence of a Formal Extradition Treaty........................................................................................................120

List of Extradition Treaties and Arrangements for India................................................................................121

Asylum...........................................................................................................................121

Definitions.........................................................................................................................................................121

Basis of Asylum.................................................................................................................................................122

Reasons for Asylum:..........................................................................................................................................122

Is asylum right of a person?..............................................................................................................................123

Kinds/ Types of Asylum:....................................................................................................................................123

Territorial Asylum:.............................................................................................................................................124

Extra-territorial Asylum -...................................................................................................................................124

Diplomatic Asylum / Asylum in Legation:......................................................................................................125

Asylum in consular premises -.......................................................................................................................125

Asylum in the premises of international institution -....................................................................................125

Asylum in Warship -......................................................................................................................................125

Asylum in Merchant Vessels.........................................................................................................................125

Asylum in the premises of international Institution......................................................................................126

Settlement of Disputes by Peaceful Means.....................................................................126

Arbitration as a Means of Settlement of International Dispute.......................................129

Negotiation as a Means to Settle International Disputes................................................131

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Definitions of International Law

For your benefit, some of the most important definitions of International Law have been

provided here.

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1) Oppenheim’s Old Definition: Law of Nations or International Law is a body of

customary and treaty rules which are considered legally binding by States in their intercourse

with each other.

Criticisms:

• With regards to the subjects, only states have been regarded as subjects of international law.

But as we know that today, States are not the only subjects of international law. International

Organisations, MNCs and to a limited extent, individuals are also subjects of international

law today.

• As regards to sources, the definition says that only customs and treaties are considered to be

sources of international law. But if we refer to Article 38 of the Statute of ICJ, we will find

general principles recognised by civilised nations is also an important source. Besides there

are subsidiary sources, which have been ignored in this definition.

• The expression ‘body of rules’ denotes that international law is static. However, it is

extremely dynamic in nature.

2) Hall: International Law consists of certain rules of conduct which modern civilised States

regard as being binding on them in their relations with one another.

Criticisms:

• As regards to subjects, again, like Oppenheim, States have been considered to be the only

subjects of International Law.

• Usage of the adjective “civilised” before “State” creates unnecessary confusion. What is

meant by civilised? What are the requirements of being a civilised State? No criteria

specified.

• Certain rules of conduct again gives an impression that international law is static.

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3) Lord Coleridge in Franconia Case1: The Law of Nations is that collection of usages

which civilised States have agreed to observe in their dealings with one another.

Criticisms:

• Same as those of Hall’s definition.

4) Oppenheim’s Revised Definition: International Law is the body of rules which are

legally binding on States in their intercourse with each other. These rules are primarily those

which govern the relations of States, but States are not the only subjects of International Law.

International Organisations and to so some extent, individuals maybe the subjects of rights

conferred and duties imposed upon International Law.

Criticisms:

• Though this definition rectified certain criticisms levelled against his older definition, his

definition is still lacking. What happens if any entity not recognised today as an international

law subject is provided with international personality tomorrow? Then the definition will not

be adequate.

5) Starke: 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: 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 other individuals. b) Certain rules of law relating to

1 R v. Keyn (1876) 2 Ex. D. 63

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individuals and non-state entities so far as the rights and duties of such individuals and non

State entities are the concern of the international community.

Criticisms: • Same as those of Oppenheim’s revised definition.

6) Schwarzenberger: International Law as the body of legal rules which apply between

sovereign states and such other entities as have been granted international personality.

Criticisms

• Can you figure out?

7) Brierly: International Law may be defined as the body of rules and principles of action

which are binding upon civilised States in their relations with one another.

Criticisms: Task for you. Find out! Apply your mind!

What is meant by the International System? / What is International Law? / What is the utility of International Law?

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The key to such a search lies within the unique attributes of the international system

in the sense of the network of relationships existing primarily, if not exclusively,

between states recognising certain common principles and ways of doing things.

While the legal structure within all but the most primitive societies2 is hierarchical

and authority is vertical, the international system is horizontal, consisting of over

190 independent states, all equal in status legally speaking, and recognising no one in

authority over them. The law is above individuals in domestic systems, but

international law only exists as between the states. Individuals in domestic systems do

not create the law. That is done by specific institutions3. In international law, on the

other hand, it is the states themselves that create the law and obey or disobey it. This,

of course, has profound repercussions as regards the sources of law as well as the

means for enforcing accepted legal rules. International law is primarily formulated by

international agreements, which create rules binding up on the signatories, and

customary rules, which are basically state practices recognised by the community at

large as laying down patterns of conduct that have to be complied with4. However, it

may be argued that since states themselves sign treaties and engage in action that they

may or may not regard as legally obligatory, international law would appear to consist

of a series of rules from which states may pick and choose. Contrary to popular belief,

states do observe international law, and violations are comparatively rare. However,

such violations (like armed attacks and racial oppression) are well publicised and

strike at the heart of the system, the creation and preservation of international peace

and justice. But just as incidents of murder, robbery and rape do occur within national

legal orders without destroying the system as such, so analogously assaults upon

international legal rules point up the weaknesses of the system, but that does not mean

that the international system is invalid or something. Thus, despite the occasional

gross violation, the vast majority of the provisions of international law are generally

followed.

In the daily routine of international life, large numbers of agreements and customs are

complied with5. However, the need is felt for some kind of regulatory framework or

rules network within which the game can be played, and international law fulfils that

2 Domestic/Municipal societies3 Like Parliaments, State Legislatures etc.4 Most important sources of international law are treaties, customs etc. 5 So if a Prime Minister/President of a country visits India, it is rare that the PM/President of India wont meet him.

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requirement. States feel this necessity because it imports an element of stability and

predictability into what is to be done in a particular situation, i.e. how should the

game be played? Where countries are involved in a disagreement or a dispute, it is

handy to have recourse to the rules of international law even if there are conflicting

interpretations since at least there is a common frame of reference and one state will

be aware of how the other state will develop its argument. They will both be talking a

common language and this factor of communication is vital since misunderstandings

occur so easily and often with tragic consequences.

Where the antagonists dispute the understanding of a particular rule and adopt

opposing stands as regards its implementation, they are at least on the same

wavelength and communicate by means of the same phrases. That is something.

International Law is not everything, for it is a mistake as well as inaccurate to claim

for international law more than it can possibly deliver. However it can constitute a

mutually understandable vocabulary book and suggest possible solutions which

follow from a study of its principles. What it cannot do is solve every problem no

matter how dangerous or complex merely by being there. International law has not yet

been developed, if it ever will, to that particular stage and one should not exaggerate

its capabilities while pointing to its positive features.

But what is to stop a state from simply ignoring international law when proceeding

upon its chosen policy? Can a legal rule against aggression, for example, of itself

prevail over political temptations? There is no international police force to prevent

such an action, but there are a series of other considerations closely bound up with the

character of international law which might well cause a potential aggressor to forbear.

There is the element of reciprocity at work and a powerful weapon it can be. States

quite often do not pursue one particular course of action which might bring them

short-term gains, because it could disrupt the mesh of reciprocal tolerance which

could very well bring long-term disadvantages. For example, states everywhere

protect the immunity of foreign diplomats for not to do so would place their own

officials abroad at risk. This constitutes an inducement to states to act reasonably and

moderate demands in the expectation that this will similarly encourage other states to

act reasonably and so avoid confrontations.

Another significant factor is the advantages, or 'rewards', that may occur in certain

situations from an observance of international law. It may encourage friendly or

neutral states to side with one country involved in a conflict rather than its opponent,

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and even take a more active role than might otherwise have been the case. In many

ways, it is an appeal to public opinion for support and all states employ this tactic. In

many ways, it reflects the esteem in which law is held. The Soviet Union made

considerable use of legal arguments in its effort to establish its non-liability to

contribute towards the peacekeeping operations of the United Nations6 and the

Americans too, justified their activities with regard to Cuba7 and Vietnam8 by

reference to international law. In some cases, it may work and bring considerable

support in its wake, in many cases it will not, but in any event the very fact that all

states do it is a constructive sign.

A further element worth mentioning in this context is the constant formulation of

international business in characteristically legal terms. Points of view and disputes, in

particular, are framed legally with references to precedent, international agreements

and even the opinions of juristic authors. Claims are pursued with regard to the rules

of international law and not in terms of, for example, morality or ethics. This has

brought into being a class of officials throughout governmental departments, in

addition to those working in international institutions, versed in international law and

carrying on the everyday functions of government in a law-oriented way9.

Role of Consent in International LawHaving come to the conclusion that states do observe international law and will usually only

violate it on an issue regarded as vital to their interests, the question arises as to the basis of

this sense of obligation. The nineteenth century, with its business-oriented philosophy,

stressed the importance of the contract, as the legal basis of an agreement freely entered into

by both (or all) sides, and this influenced the theory of consent in international law. States

were independent, and free agents, and accordingly they could only be bound with their own

consent. There was no authority in existence able theoretically or practically to impose rules

upon the various nation-states. This approach found its extreme expression in the theory of

auto-limitation, or self-limitation, which declared that states could only be obliged to comply

6 See the case of Certain Expenses of the United Nations, ICJ Reports, 1962, p. 1517 See Cuban Missile Crisis8 See Vietnam War9 The Current Foreign Affairs Minister in India is S. Jaishankar who has been an Indian diplomat and has served in U.S, China etc.

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with international legal rules if they had first agreed to be so obliged. Nevertheless, this

theory is most unsatisfactory as an account of why international law is regarded as binding or

even as an explanation of the international legal system. To give one example, there are about

100 states that have come into existence since the end of the Second World War and by no

stretch of the imagination can it be said that such states have consented to all the rules of

international law formed prior to their establishment. It could be argued that by 'accepting

independence', states consent to all existing rules, but to take this view relegates consent to

the role of a mere fiction. This theory also fails as an adequate explanation of the

international legal system, because it does not take into account the tremendous growth in

international institutions and the network of rules and regulations that have emerged from

them within the last generation.

To accept consent as the basis for obligation in international law36 begs the question as to

what happens when consent is withdrawn. The state's reversal of its agreement to a rule does

not render that rule optional or remove from it its aura of legality. It merely places that state

in breach of its obligations under international law if that state proceeds to act upon its

decision. Indeed, the principle that agreements are binding (pacta sunt servanda) upon which

all treaty law must be based cannot itself be based upon consent. One current approach to this

problem is to refer to the doctrine of consensus. This reflects the influence of the majority in

creating new norms of international law and the acceptance by other states of such new rules.

It attempts to put into focus the change of emphasis that is beginning to take place from

exclusive concentration upon the nation-state to a consideration of the developing forms of

international co-operation where such concepts as consent and sanction are inadequate to

explain what is happening.

Of course, one cannot ignore the role of consent in international law. To recognise its

limitations is not to neglect its significance. Much of international law is constituted by states

expressly agreeing to specific normative standards, most obviously by entering into treaties.

This cannot be minimised. Nevertheless, it is preferable to consider consent as important

not only with regard to specific rules specifically accepted. In a broad sense, states accept

or consent to the general system of international law, for in reality without that no such

system could possibly operate.

It is important to note that while states from time to time object to particular rules of

international law and seek to change them, no state has sought to maintain that it is free to

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object to the system as a whole. Each individual state, of course, has the right to seek to

influence by word or deed the development of specific rules of international law, but the

creation of new customary rules is not dependent upon the express consent of each particular

state10.

History and Development of Public International Law with Relevant Jurisprudential

Interface

For an understanding of this topic, we need to refer briefly to the timeline of natural law and

positivist theories of jurisprudence. I can discuss with you the entire timeline of jurisprudence

one day. But, for the purposes of understanding of this topic, only this portion is relevant and

shall suffice.

Natural Law School Pre-Decline Natural Law Theories Revival Era Natural Law Theories

Pre-Decline Natural Law Theories Ancient Period Medieval Period Modern Period/Renaissance

Period

Socrates, Aristotle, Plato Acquinas, Grotius, Hobbes, Locke, Rousseau

10 We will study the details of customary international law in details.

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Pufendorf

The Period of Decline, saw the rise of Positivist theories In this phase, the important philosophers were David Hume, Jeremy Bentham, John Austin

After this, the Natural Law School Revived (because positivism failed to provide answers to modern complex problems of the

society)

In this phase, the important philosophers were John Rawls, Lon L Fuller and Rudolf

Stammler

How International Law Developed Greece:The era of classical Greece, from about the sixth century BC and onwards for a couple of

hundred years, has, one must note, been of utmost significance for European thought. Its

critical and rational turn of mind, its constant questioning and analysis of man and nature and

its love of argument and debate were its important contributions. They were later spread

throughout Europe and the Mediterranean world by the Roman Empire and penetrated

Western consciousness with the Renaissance. However, Greek awareness was limited to their

own competitive city-states and colonies. Those of different origin were regarded as

barbarians and not deemed worthy of association. The value of Greece in a study of

international law lies partly in the philosophical, scientific and political analyses and the

numerous treaties linked the city-states together in a network of commercial and political

associations. Rights were often granted to the citizens of the states in each other's territories

and rules regarding the sanctity and protection of diplomatic envoys developed. However, no

sense of a world community can be traced to Greek ideology in spite of the growth of Greek

colonies throughout the Mediterranean area. The Greeks can be credited with the birth of the

natural law philosophies which laid down the preliminary foundation for later growth of

international law.

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Rome: The Romans had a profound respect for organisation and the law. The law knitted together

their empire and constituted a vital source of reference for every inhabitant of the far-flung

domain. The early Roman law (the jus civile or civil law) applied only to Roman citizens. It

was formalistic and hard and reflected the status of a small, unsophisticated society rooted in

the soil. It was totally unable to meet the needs for an expanding, developing nation. This

need was served by the creation and progressive augmentation of the jus gentium. This

provided simplified rules to govern the relations between foreigners, and between foreigners

and citizens. The progressive rules of the jus gentium gradually overrode the narrow jus

civile until the latter system ceased to exist. Thus, the jus gentium became the common law of

the Roman Empire and was deemed to be of universal application, i.e. both to citizens and

foreigners who came to the Roman empire. It is this all-embracing factor which so strongly

distinguishes the Roman from the Greek experience.

One of the most influential of Greek concepts taken up by the Romans was the idea of

Natural Law. This was formulated by the Stoic philosophers of the third century BC and their

theory was that it constituted a body of rules of universal relevance. Such rules were rational

and logical, and because the ideas and precepts of the 'law of nature' were rooted in human

intelligence, it followed that such rules could not be restricted to any nation or any group but

were of worldwide relevance. This element of universality is basic to modern doctrines of

international law and the Stoic emphasis on the human powers of reasoning as the basis of

discovering the law foreshadows the rational philosophies of the West. In addition to being a

fundamental concept in legal theory, Natural Law is vital to an understanding of

international law, as well as being an indispensible precursor to contemporary concern

with human rights. Certain Roman philosophers incorporated those Greek ideas of Natural

Law into their own legal theories, often as a kind of ultimate justification of the jus gentium,

which was deemed to enshrine rational principles common to all civilised nations. Infact, it

was through incorporation of natural law principles that Roman jus civile was altered to jus

gentium.(Jus civile + jus naturale= jus gentium)

ByzantineThe classical rules of Roman law were collated in the Corpus Juris Civilis, a compilation of

legal material by a series of Byzantine philosophers completed in AD 534. Such a collection

was to be invaluable because when the darkness of the early Middle Ages, following the

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Roman collapse, began gradually to evaporate, there was a body of developed laws ready-

made and awaiting transference to an awakening Europe.

Gradual Emergence of Modern Natural Law:

Middle Ages:The essence of the new approach to international law can be traced back to the Spanish

philosophers of that country's Golden Age. The leading figure of this school was Francisco

Vitoria, Professor of Theology at the University of Salamanca (1480-1546). His lectures

were preserved by his students and published posthumously. He demonstrated a remarkably

progressive attitude for his time towards the Spanish conquest of the South American Indians

and, contrary to the views prevalent until then, maintained that the Indian peoples should be

regarded as nations with their own legitimate interests. War against them could only be

justified on the grounds of a just cause. International law was founded on the universal law of

nature and this meant that non-Europeans must be included within its ambit. However,

Vitoria by no means advocated the recognition of the Indian nations as equal to the Christian

states of Europe. For him, opposing the work of the missionaries in the territories was a just

reason for war, and he adopted a rather extensive view as to the rights of the Spaniards in

South America. Vitoria was no liberal and indeed acted on behalf of the Spanish Inquisition,

but his lectures did mark a step forward in the right direction.

Suarez (1548-1617) was a Jesuit and Professor of Theology who was deeply immersed in

medieval culture. He noted that the obligatory character of international law was based upon

Natural Law, while its substance derived from the Natural Law rule of carrying out

agreements entered into.

Renaissance Period: Interplay Between Natural Law and Positivism

It is, however, Hugo Grotius, a Dutch scholar, who towers over this period and has been

celebrated, if a little exaggeratedly, as the father of international law. A scholar of

tremendous learning, he mastered history, theology, mathematics and the law. His primary

work was the De Jure Belli ac Pacis, written during 1623 and 1624. It is an extensive work

and includes rather more devotion to the exposition of private law notions than would seem

appropriate today. He refers both to Vitoria and Gentili, the latter being of special influence

17


with regard to many matters, particularly organisation of material. Grotius finally excised

theology from international law and emphasised the irrelevance in such a study of any

conception of a divine law11. He remarked that the laws of nature would be valid even if

there were no God: a statement which, although suitably clothed in religious protestation, was

extremely daring. The law of nature now reverted to being founded exclusively on reason.

Justice was part of man's social make-up and thus not only useful but essential. Grotius

conceived of a comprehensive system of international law and his work rapidly became a

university textbook.

Following Grotius, but by no means divorced from the thought of previous scholars, a split

can be detected and two different schools identified. On the one hand there was the 'naturalist'

school, exemplified by Samuel Pufendorf (1632-94), who attempted to identify international

law completely with the law of nature; and on the other hand there were the exponents of

'positivism', who distinguished between international law and Natural Law and emphasised

practical problems and current state practices. Pufendorf regarded Natural Law as a

moralistic system. Other 'naturalists' echoed those sentiments in minimising or ignoring the

actual practices of states in favour of a theoretical construction of absolute values that seemed

slowly to drift away from the complexities of political reality.

One of the principal initiators of the positivist school was Richard Zouche (1590-1660), who

lived at the same time as Pufendorf, but in England. While completely dismissing Natural

Law, he paid scant regard to the traditional doctrines

In similar style Bynkershoek (1673-1743) stressed the importance of modern practice and

virtually ignored Natural Law. He made great contributions to the developing theories of the

rights and duties of neutrals in war, and after careful studies of the relevant facts decided in

favour of the freedom of the seas.

The positivist approach, like much of modern thought, was derived from the empirical

method12 adopted by the Renaissance. It was not concerned with absolute and abstract

principles, but rather with viewing events as they occurred and discussing actual problems

that had arisen.

The idea of the social contract, that an agreement between individuals pre-dated and justified

civil society, emphasised the central role of the individual, and whether such a theory was

11 One of the features of Renaissance12 Empiricism, pioneered by the likes of John Locke and David Hume.

18


interpreted pessimistically to demand an absolute sovereign as Hobbes declared, or

optimistically to mean a conditional acceptance of authority as Locke maintained, it could

not fail to be a revolutionary doctrine. The rights of man constitute the heart of the American

and French Revolutions and the essence of modern democratic society. Yet, on the other

hand, the doctrine of Natural Law has been employed to preserve the absoluteness of

sovereignty and the sanctity of private possessions.

Positivism developed as the modern nation-state system emerged, after the Peace of

Westphalia in 1648, from the religious war. It coincided, too, with theories of sovereignty

such as those propounded by Jean Bodin and Hobbes, which underlined the supreme power

of the sovereign and led to notions of the sovereignty of states13.

Elements of both positivism and naturalism appear in the works of Vattel (1714-67)14, a

Swiss lawyer. His theory was based on Natural Law principles yet was practically oriented.

He introduced the doctrine of the equality of states15 into international law, declaring that a

small republic was no less a sovereign than the most powerful kingdom, just as a dwarf was

as much a man as a giant.

Nineteenth Century: Era of Positivism

The eighteenth century was a ferment of intellectual ideas and rationalist philosophies that

contributed to the evolution of the doctrine of international law. The nineteenth century by

contrast was a practical, expansionist and positivist era. The Congress of Vienna, which

marked the conclusion of the Napoleonic wars, enshrined the new international order which

was to be based upon the European balance of power. International law became Eurocentric.

Positivist theories dominate this century. The proliferation of the powers of gave force to the

idea that laws were basically commands issuing from a sovereign person or body. Any

question of ethics or morality was irrelevant to a discussion of the validity of man-made laws.

The approach was transferred onto the international scene and immediately came face to face

with the reality of a lack of supreme authority.

Since law was ultimately dependent upon the will of the sovereign in national systems, it

seemed to follow that international law depended upon the will of the sovereign states.13 One of the most important principles of international law. Also known as “Westphalian sovereignty”14 Ecclectic school15 One of the most important principles of international law

19


Twentieth Century: Era of Enormous Growth The First World War marked the close of a dynamic and optimistic century. European

empires ruled the world and European ideologies reigned supreme, but the 1914-18 Great

War undermined the foundations of European civilisation. Self-confidence faded and self-

questioning was the order of the day and law as well as art reflected this.

The first most significant development was the creation of the League of Nations. The old

anarchic system had failed and it was felt that new institutions to preserve and secure peace

were necessary. The League consisted of an Assembly and an executive Council, but was

crippled from the start by the absence of the United States and the Soviet Union for most of

its life and remained a basically European organisation. While it did have certain minor

successes with regard to the maintenance of international order, it failed when confronted

with determined aggressors.

Nevertheless, much useful groundwork was achieved by the League in its short existence and

this helped to consolidate the United Nations later on. The Permanent Court of International

Justice was set up in 1921 at The Hague and was succeeded in 1946 by the International

Court of Justice. The International Labour Organisation was established soon after the end of

the First World War and still exists today, and many other international institutions were

inaugurated or increased their work during this period. After the trauma of the Second World

War the League was succeeded in 1946 by the United Nations Organisation, which tried to

remedy many of the defects of its predecessor. It established its site at New York, reflecting

the realities of the shift of power away from Europe, and determined to become a truly

universal institution.

Many of the trends which first came to prominence in the nineteenth century have continued

to this day. The vast increase in the number of international agreements and customs, the

strengthening of the system of arbitration and the development of international organisations

have established the essence of international law as it exists today.

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Nature of International Law

Is International Law true Law?

One of the most controversial issues that has long been debated and on which the opinions of

the jurists are sharply divided concerns the status of international law. The debatable question

is: Is international law really law? One view is that international law is not a true law. It is a

code of rules of conduct of moral force only. Another view is that international law is a true

law, and it is to be regarded as law in the same way as that of ordinary laws of a State which

are binding upon the individuals. The controversy whether international law is a law or not

revolves on the divergent definitions of the word law' given by the jurists.

Austin's view

According to Austin, law is a command of the sovereign attended by sanction in case of

violation of the command. In other words, law should be limited to rules of conduct enacted

by a determinate legislative authority and enforced by physical sanction. The superior,

according to him, is the real sovereign.

The definition contains four important elements:

1. Firstly, law is a command

2. Enacted by the sovereign

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3. It imposes a duty on some people, and

4. It must be enforced by the sovereign authority.

Austin said that international law cannot be called law proper in the true sense, because it has

neither sovereign legislative authority to enact law nor there is an adequate sanction behind it.

Moreover, there is no enforcement agency which can enforce it as a body of rules. The rules

commonly called international law are in fact the rules of positive morality; the rules are

analogous to the rules binding a club or society. International law is a code of conduct with

moral force and nothing more. It consists of opinions or sentiments current among nations

generally'. A rule is a rule of morality, if by common consent of the community it applies

to conscience and to conscience only.

Such rules are different from rules of law wherein by common consent of the community it is

eventually enforced by external/superior power. International law is a body of rules

governing the relations of sovereign States inter se, but there is no sovereign power over and

above a sovereign State which could enforce the rules of international law. It is also argued

that there is no such executive power in international law as may enforce the decisions of the

International Court of Justice and ensure the observance of the provisions of the treaties.

International law lacks a potent judiciary. That is why, some writers call international law

a quasi-law (Lathan Brown), Other noted jurists holding similar opinion are Holland,

Hobbes, Pufendorf, etc.

Criticism of Austin's view

The above view which denies the legal character of international law has been severely

criticised by a large number of jurists.

According to Oppenheim, law is a body of rules for general conduct within a community

which by common consent of this community shall be enforced by external power.According

to this definition:

1. firstly, there must be community

22


2. secondly, there must be a body of rules for human conduct within that community (all

the communities submit to the rule of law because they wish to afford due respect and

protection to the dignity of men and nations); and

3. thirdly, there must be common consent of that community that these rules shall be

enforced by external powers.

It means that it is not necessary that rules should be enacted through a law-making authority

or there should exist a law administering court within the community concerned. Oppenheim

said that the three requirements of this definite on are satisfied by international law, to a

greater or lesser extent.

However, definition given by Oppenheim will be regarded correct only when it is proved that

there exists an international society or community. Oppenheim is of the opinion that the

States of the world do together constitute a body bound together through common interests

which create extensive intercourse between them, and differences in culture, economic

structure, or political system, do not affect as such the existence of an international

community as one of the basic factors of international law.

According to Sir Frederic Pollock: the only essential conditions for the existence of law are

the existence of a political community and the recognition by its members of settled rules

binding upon them in that capacity, international law seem on the whole to satisfy these

conditions.

According to Louis Henkin: what matter is not whether the international law has legislative,

judicial or executive branches corresponding to those we have become accustomed to seek in

a domestic society; what matter is whether international law is reflected in the policies of

nations and in relations between nations.

Oppenheim regards international law as law because of the following two reasons: firstly,

international law is constantly recognized as law in practice, the Government of different

States feel that they are legally as well as morally bound to follow it; secondly, while

breaking it, States never deny its legal existence, rather they recognise its existence and try to

interpret international law as justifying their conduct.

23


According to Brierly: the best evidence for the existence of international law is that every

State recognizes that it does exist and that it is itself under obligation to observe it. States may

often violate international law, just as individuals often violate municipal law; but no more

than individuals do, States defend their violations by claiming that they are above the law.

As pointed out by Edward Collins: International law is created and is deemed to be legally

binding by authoritative national and international decision makers because they understand

that generally agreed upon rules and principles of action serve the indispensable function of

providing a basis for the orderly management of international relations.

According to Starke, international law is really law.He has put forward four main arguments:

1. firstly, in many primitive communities, a system of law existed without there being a

formal legislative authority;

2. secondly, international legislation in the form of law-making treaties and conventions

has come into existence today;

3. thirdly, the authoritative agencies responsible for the maintenance of international

intercourse do not regard international law as merely a moral code;

4. lastly, the United Nations is based on the true legality of international law.

The arguments of the jurists who regard international law as really law, may be summed up

as follows:

i. The term law cannot be limited to rules of conduct enacted by a sovereign authority.

Customary rules of law do exist viz. common law of England. The rules laid down by

treaties are binding although they do not emanate from a sovereign political authority.

The procedure for formulating international rules is well settled by means of treaties,

etc.

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ii. When international questions arise, States do not rely upon moral arguments but rely

upon treaties, precedents and opinions of specialists. Thus, States do not deny the

existence of international law. In some States (e.g. USA and UK), international law is

treated as part of their own law (Paquete v. Habanna (1900) 175 US 677), As aptly

remarked by Prof. Hart, international law is law because States regard it as law.

Nothing need be further proved.

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iii. International conferences and conventions also treat international law as law in its true

sense. The United Nations is based on the true legality of international law. As per

statute of the International Court of Justice, the Court to decide disputes as are

submitted to it in accordance with international law. The Court's decisions are binding

upon the parties to a dispute, and under certain conditions its decisions can be

enforced. Besides this there are a variety of International Tribunals such as

International Tribunal for the Law of the Sea.

iv. So far as sanction in law is concerned, international law does not completely lack it.

v. International law is not very frequently violated.

Thousands of treaties have been concluded by the States, but the instances of their violation

are very few. Rules regarding immunities provided to diplomatic agents are generally

observed. Other rules of international law including the laws of warfare are also observed

usually. Every State or municipal law is violated. Frequent violations of law indicate the

weakness of enforcement machinery and have nothing to do with the legality of the rules.

Basis of International Law

The roots of international law go deep into history and evidence of treaties, immunities of

ambassadors, usages of war, etc. can be found in ancient Egypt, India, the Greek and Roman

empires. The present day international law owes its origin to the great jurist Grotius whose

work De jure Belli ac Paces (1625) lent legal basis to many areas of international relations.

His main idea is that there are certain eternal, unchangeable and independent rules of law

25


which have roots in human reason. This law of reason is called by him as Natural Law.

In the Grotian theory, there are three basis of international law: Laws of reason,

Customs, and Treaties. Emanating from his conception are two theories as to true basis

of international law:

a. Naturalist theory (Pufendrof): There exists a system of law which emanates from

God or reason or morals. Law of nations is only a part of law of nature. Hart explains

that a minimum content of law flowing from the immutable nature of man is that

which is necessary for survival of mankind. International peace and security being

necessary for survival of human kind, all laws relating to it are thus parts of law of

nature. The theory is criticised on the ground that it is too vague.

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b. Positivist theory (Bynkershook): Only those principles may be deemed as law

which have been adopted with the consent of the States. Law is that which exists in

fact. It is that law which is enacted or followed by States (i.e. emanate from their own

free will) and is hence binding upon States. Customs and treaties come into existence

from express or tacit consent of States. The theory is criticised as all rules of

international law are not derived from customs and treaties. Further, a treaty may be

binding on third States as well, and, States in some cases are bound by general

international law even against their will.

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c. Eclectic theory: The views taken by the naturalists and positivists are extreme views.

A theory giving equal importance to both the views appears to be correct. As to the

true basis of international law, contemporary sociological theories tend to support

Naturalism because they argue that international law is based on social

interdependence and aims at bringing about international social justice. Thus, natural

law underlies even at the positive law (customs and treaties) which is only an

expression of this social interdependence.

26


International Law Is Weak Law

Starke has expressed the view that international law is a weak law. Existing international

legislative machinery, operating mainly through law-making conventions, is not comparable

in efficiency to State legislative machinery.

Some other weaknesses of international law are as follows:

i. There is no effective executive authority to enforce the rules of international law.

ii. The International Court of Justice lacks compulsory jurisdiction in the true sense of

the term. The court does not have jurisdiction to decide the disputes of all the States

since the court acts with the consent of the States only. Further, the court does not

have any real power to enforce its decisions.

iii. As compared to rules of State law, the rules of international law suffer from greater

uncertainty. Further, rules expressed in treaties, etc. are sometimes formulated in such

a way so as to give wide options to the State parties.

iv. Due to lack of effective sanctions, rules of international law are frequently violated.

Further, to compel the strong' States for the observance of the rules of international

law becomes difficult on a number of occasions.

v. International law has, in many cases, failed to maintain order and peace in the world.

A great limitation of international law is that it cannot intervene in the matters which are

within the domestic jurisdiction of States. Thus, international law is a weak law in

comparison to the municipal law. However, it must be noted that, unlike municipal law,

international law operates in a purely decentralised system. All States consider themselves

independent and sovereign. International law must be understood and appreciated in the

peculiar system in which it operates.

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It is as good and effective as it can be under the circumstances and peculiar system under

which it operates. It is really creditable that rules of international law are considered binding

upon the States because either through treaties or otherwise States have consented to

surrender a part of their sovereignties.

Suggestions for improving international law:

i. The machinery to enforce the rules of international law should be strengthened. The

United Nations Charter should be amended so as to authorise the U.N. to intervene in

such matters within the domestic jurisdiction of the States as are of international

concern.

ii. The International Court of Justice should be given compulsory jurisdiction in the true

sense of the term, over all international disputes. Further, an International Criminal

Court should be established to adjudicate cases relating to international crimes.

iii. In order to make international law changeable and adaptable in accordance with the

changing times and circumstances, powers and scope of the activities of the

International Law Commission should be expanded.

iv. The doctrine of judicial precedents should be applied in the field of international law.

This will help to strengthen it. In order to strengthen the rule of law in international

relations, the General Assembly of U.N. in 1989 declared the period 1990-99 as

the United Nations Decade of International Law. The assembly stated by adopting

a resolution that the main purposes of the Decade should be, inter alia

(a) to promote acceptance of and respect for the principles of international law

(b) to promote means and methods for the peaceful settlement of disputes between

States, including resort to and full respect of the international court of justice

(c) to encourage the progressive development and codification of international law

(d) to encourage the teaching, study, dissemination and wider appreciation of

international law.

These activities are likely to play a positive role in removing the weaknesses of international

28


law. It is felt that the weaknesses generally pointed out are not the weaknesses of the rules of

international law.

In fact, they reveal and bring to the fore the lack of feeling on the part of the States as to its

imperative character. International law is very much a law, but its observance, progress and

development will depend upon the attitude of nations. In order to strengthen international

law, it should be clearly recognized by all States that the observance of the rules of

international law is in their own interest and hence they should ensure that there are no

breaches of the rules of international law.

Relationship Between International and Municipal Laws

What are municipal laws?

For the convenience of understanding, law can be classified in many ways: public|private,

substantive|procedural, civil|criminal etc. One such classification is the classification between

municipal|international laws. All such classifications are based on certain differences between

the two branches of the laws. Hence, certain such distinctions exist between what we regard

as international law and what we regard as municipal law.

Municipal/ Domestic/ National Laws are those that are applied by the sovereign states of the

world to regulate the relationships between the State and its citizens on one hand and the

citizens inter se16. They are the laws of one particular nation.

In the earliest of times, only municipal law existed and there was no conception of

International Law. Since means of communication was low, the options to venture out of

16 This does not mean that municipal law does not apply to foreigners. Whenever a foreigner is in the territory of a country, he is bound to follow the municipal laws of that country.

29


one’s own territory was not a possibility. But with the growth of communication systems, this

situation started changing as people from one part of the country could easily venture out of

their territory into the territory of others. When modern nation-states emerged, the need to

interact with one another was felt by the nation states. There was what we can say, an

emergency of an international society of sorts where the individuals were the nation States.

Now as we know that for individuals to live together in a society peacefully, certain rules

need formulation for the regulation of mutual interactions. Hence emerged the rules for

regulating the behaviour of the States. But unlike a society within a country, there was no

authority to lay down the rules in the international society. Neither was there any authority to

perform the tasks that courts perform in a domestic system, i.e. to adjudicate upon the

violation of the rules. So why would a State obey international rules, if there was nothing to

punish them for the violations of the same? It was the fear of sanction by the other members

of the international society. Let us say, five states sign a treaty. If anyone of them disobeys

the treaty, other states may become hostile to that state. At first the basis of these

international laws were customary practices which the States used to practice17. Later on,

treaties voluntarily entered by the States became the most important source of international

law.

Today, some major differences between International and Municipal Laws are:

Subjects: ML: Individuals. IL: Nation States primarily.

Application: ML: Vertically, IL: Horizontally.

Superiority: ML: Municipal Law superior on municipal plane, IL: International Law

superior in international plane.

Sovereign: ML: All nation states are sovereign in municipal law and have absolute

power in the domestic field. There is a sovereign and there are subjects subjected to

the sovereign’s powers. IL: Under IL all the subjects are sovereign. There is no one

above the subjects.

Basis: ML: Basis of municipal law is sovereignty. IL: Basis of IL is pacta sunt

servanda

17 For eg: We know that the Kings used to send messengers/emissaries to other states, to negotiate with the other kings. And no King used to harm the messenger/emissary as a matter of custom. Based on that developed the practice of diplomatic immunity under international law.

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This module consists of two parts. One is the jurisprudential views regarding the

interrelationship between International Law and Municipal Law. Part Two consists of the

State practices relating to how International Law is applied in the domestic sphere.

Introduction to the Module

The role of the state in the modern world is a complex one. According to legal theory,

each state is sovereign and equal. In reality though, with the phenomenal growth in

communications and consciousness, with the rise of the globalised world where each

state has a different function to play in the world economy, not even the most

powerful of states can be entirely sovereign. Interdependence and the close-knit

character of contemporary international commercial and political society ensures that

virtually any action of a state could well have profound repercussions upon the system

as a whole and the decisions under consideration by other states. Thus, reality

circumscribes the concept of sovereignty in operation and increases the necessity for

worldwide co-ordination of matters as different18 as the policies adopted to combat

economic problems, environmental dangers and terrorist threats.

Even in domestic field, certain actions are there that the State cannot take. For eg: a

State cannot commit mass genocide of a section of its population within its territory, it

cannot send back refugees, it cannot arbitrarily deprive its subjects of citizenship. All

these are prohibited by the international obligations States undertake by signing

treaties or because such prohibitions constitute customary rules of International Law.

There are many instances where problems can emerge and lead to difficulties between

the two systems. In a case before a municipal court a rule of international law may be

brought forward as a defence to a charge. For example, In Mohammad Salimullah

(Rohingya refugees in India case)19, one of the arguments advanced on behalf of the

Rohingya petitioners is that India cannot turn out the Rohingyas as doing so will be a

violation of customary international laws.

18 For example, India is a sovereign state. But if today, India decides to go to a war against Pakistan, then the international community will look at the move with disapproval. They will bring sanctions against India like boycotting Indian exports, stoppage of trade with India etc. Hence, though a state is a full sovereign today, the concept of sovereignty in today’s world is limited sovereignty.19 Writ Petition Civil No. 793/2017; See, Apoorva Mandhani, SC to Hear Petition Against Deportation of Rohingya Refugees on Monday, Live Law, available at: https://www.livelaw.in/sc-hear-petition-deportation-rohingya-muslims-monday-read-petition/, last accessed on 24/12/2019

31

https://www.livelaw.in/sc-hear-petition-deportation-rohingya-muslims-monday-read-petition/

https://www.livelaw.in/sc-hear-petition-deportation-rohingya-muslims-monday-read-petition/


There may also be questions as to the precise status of a municipal legal rule before an

international tribunal. For eg: when the validity of death sentence in India was

challenged in the case of Bachan Singh20, the argument advanced was framed in light

of India’s international obligations.

It is from this aspect that the study of the interrelationship between the two becomes

highly relevant.

Theories Relating to Such Interrelationship: Dualism and Monism

1) Dualism: Main Proponents: Anzilloti, Triepel, Strupp

Positivism stresses the overwhelming importance of the state and tends to regard

international law as founded upon the consent of states. Accordingly, when positivists

such as Triepe1 and Strupp consider the relationship of international law to municipal

law, they do so upon the basis of the supremacy of the state, and the existence of wide

differences between the two functioning orders. This theory is known as dualism (or

sometimes as pluralism) and stresses that the rules of the systems of international law

and municipal law exist separately and cannot purport to have an effect on, or

overrule, the other21. This is because of the fundamentally different nature of inter-

state and intra-state relations and the different legal structure employed on the one

hand by the state and on the other hand as between states. Where municipal

legislation permits the exercise of international law rules, only then can international

law apply on municipal plane.

2) Monism: Main proponents: Kelsen, Lauterpacht.

Those writers who disagree with this theory and who adopt the monist approach tend

to fall into two distinct categories: those who, like Lauterpacht, uphold a strong

ethical position with a deep concern for human rights, and others, like Kelsen, who

maintain a monist position on formalistic logical grounds. The monists are united in

20 AIR 1980 SC 89821 International Law is supreme in international plane and municipal law is supreme in domestic plane.

32


accepting a unitary view of law as a whole and are opposed to the strict division

posited by the positivists. The two proponents of Monism belong to different schools

and hence their theories are also quite distinct.

The 'naturalist' strand represented in England by Lauterpacht's works sees the primary

function of all law as concerned with the well-being of individuals, and advocates the

supremacy of international law as the best method available of attaining this. His idea

emanates from his concern for human rights. He thinks that if protecting human rights

of citizens is made an internal affair of a State, then human rights may not be

effectively protected. It must be remembered that in modern times, State is one of the

biggest violators of human rights22. It is an approach characterised by deep suspicion

of an international system based upon the sovereignty and absolute independence of

states, and illuminated by faith in the capacity of the rules of international law to

imbue the international order with a sense of moral purpose and justice founded upon

respect for human rights and the welfare of individual.

The method by which Kelsen elucidates his theory of monism is markedly different

and utilises the philosophy of Kant as its basis. Law is regarded as constituting an

order which lays down patterns of behaviour that ought to be followed, coupled with

provision for sanctions which are employed once an illegal act or course of conduct

has occurred or been embarked upon. Since the same definition appertains within both

the internal sphere and the international sphere, a logical unity is forged, and because

states owe their legal relationship to one another to the rules of international law, such

as the one positing equality, since states cannot be equal before the law without a rule

to that effect, it follows that international law is superior to or more basic than

municipal law. Kelsen's hierarchical system whereby the legality of a particular norm

is affirmed once it conforms to an anterior norm23. This process of referring back to

previous or higher rules ends with the so-called basic norm of the legal order.

However, this basic norm is basic only in a relative sense, since the legal character of

states, such as their jurisdiction, sovereignty and equality, is fixed by international

law. Thus, Kelsen emphasises the unity of the entire legal order upon the basis of the

predominance of international law by declaring that it is the basic norm of the

international legal order which is the ultimate reason of validity of the national legal

orders too.

22 See for eg: the Rohingya Muslims crisis in Myanmar 23 Remember Kelsen’s Grundnorm?

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3) A Third Approach: Proponents: Fitzmaurice, Rousseau

A third approach, being somewhat a modification of the dualist position and

formulated by Fitzmaurice and Rousseau amongst others, attempts to establish a

recognised theoretical framework tied to reality. This approach begins by denying that

any common field of operation exists as between international law and municipal law

by which one system is superior or inferior to the other. Each order is supreme in its

own sphere, much as French law and English law are in France and England. And just

as one cannot talk in terms of the supremacy of French law over English law, but only

of two distinct legal systems each operating within its own field, so it is possible to

treat international law and municipal law in the same way. They are both the legal

element contained within the domestic and international systems respectively, and

they exist within different juridical orders.

However, it may be pointed out that none of the theories can be held to be absolutely correct

in themselves as this method of solving the problem does not delve deeply into theoretical

considerations, but aims at being practical and in accord with the majority of state practice

and international judicial decision.

The role of municipal rules in international law

The general rule with regard to the position of municipal law within the international sphere

is that a state which has broken a stipulation of international law cannot justify itself by

referring to its domestic legal situation. It is no defence to a breach of an international

obligation to argue that the state acted in such a manner because it was following the dictates

of its own municipal laws. The reasons for this inability to put forward internal rules as an

excuse to evade international responsibility are obvious. Any other situation would permit

international law to be evaded by the simple method of domestic legislation. Accordingly,

state practice and decided cases have established this provision and thereby prevented

countries involved in international litigation from pleading municipal law as a method of

circumventing international law.

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Relevant Provisions of Law Relating to the Issue:

International Treaties are interpreted according to the provisions of the Vienna Convention

on Law of Treaties, 1969.

Article 27 of the Vienna Convention on the Law of Treaties, 1969 lays down that in so far as

treaties are concerned, a party may not invoke the provisions of its internal law as

justification for its failure to carry out an international agreement, while article 46(1)

provides that a state may not invoke the fact that its consent to be bound by a treaty has

been expressed in violation of a provision of its internal law regarding competence to

conclude treaties as invalidating its consent. This is so unless the violation of its internal law

in question was 'manifest and concerned a rule of fundamental importance'. Article 46(2)

states that such a violation is manifest where it would be objectively evident to any state

conducting itself in the matter in accordance with normal practice and in good faith.

Judicial DecisionsCameroon v. Nigeria24

Nigeria's argument that the Maroua Declaration of 1975 signed by the two heads of state was

not valid as it had not been ratified was rejected by the ICJ.

Alabama Claims Arbitration

In what was called the Alabama Claims, in 1869 the United States claimed direct and

collateral damage against Great Britain25. The United States objected strenuously when

Britain allowed construction of warships, knowing fully well that those were going to be used

by the Confederates26 and allowing the Confederate ship to sail from Liverpool to prey upon

American shipping. It was held that the absence of British legislation necessary to prevent the

construction or departure of the vessel could not be brought forward as a defence, and Britain

was accordingly liable to pay damages for the depredations caused by the warship in

question.

Lockerbie Case27

24 ICJ Reports, 2002, para. 26525 See, the Confederate States of America26 See, Confederate States of America27 ICJ Reports, 1992, pp. 3, 32

35


Judge Shahabuddeen emphasised in the Lockerbie case that inability under domestic law to

act was no defence to non-compliance with an international obligation.

On the 21st of December 1988, Pan Am flight 103 exploded over Lockerbie killing all 259

people aboard and eleven on the ground. Although there was evidence implicating Iran and

Syria in the bombing, United States and Scottish investigators, relying on fragments of a

timer, identified Libyan agents as being responsible for the bombing. Following the

indictment of the suspects before a grand jury in the District of Columbia and a charge by the

Lord Advocate in Scotland, the United States and the United Kingdom issued a joint

declaration on the 27th of November 1991, calling on Libya to surrender for trial those

indicted, to supply information relating to the crime, and to immediately pay appropriate

compensation. Libya claimed that its domestic law did not permit the extradition of nationals,

but agreed to institute proceedings against the suspects and requested assistance from United

States and United Kingdom investigators. Libya also offered an opportunity for observers

from the two countries to be present at the proceedings. These requests were apparently

ignored. On the 21st of January 1992, the Security Council passed Resolution 731 which

expressed concern over the results of the indictment implicating officials of the Libyan

government and deplored Libya's lack of response to the United States' and United

Kingdom's joint declaration. On the 3rd of March, Libya filed two applications in the

International Court, relying on Article 14(1) of the Montreal Convention contending that it

had not been possible to settle the dispute by negotiation and that the parties had been unable

to agree on the organization of an arbitration. Libya contended that the United States and the

United Kingdom had rejected Libyan efforts to resolve the matter under the framework of

international law and the Convention and that both Countries were pressuring Libya into

surrendering the Libyan nationals. In one application, Libya requested the Court to declare on

the legality of the actions of the respective parties under the Convention.

The Court heard the matter on the 26th to the 28th of March 1992. Three days later, on the

31st of March 1992, the Security Council, acting under Chapter VII of the Charter, adopted

Resolution 748 wherein Libya was called upon to extradite the individuals concerned by the

15th of April or suffer sanctions. On the 14th of April the International Court denied interim

measures.

La Grande’s case28

28 ICJ Reports, 2001, paras. 90-1. A Copy of this Judgement shall also be uploaded.

36


Inability under domestic law to act was no defence to non-compliance with an international

obligation29. This was reinforced in the LaGrand case, where the Court noted that the effect

of the US “procedural default rule”, which prevented counsels for the LaGrand brothers

from raising the issue of violation by the US of its obligations under the Vienna Convention

on Consular Relations before the US federal courts system, had no impact upon the

responsibility of the US for the breach of the convention.

However, such expressions of the supremacy of international law over municipal law in

international tribunals do not mean that the provisions of domestic legislation are either

irrelevant or unnecessary. On the contrary, the role of internal legal rules is vital to the

workings of the international legal machine. One of the ways that it is possible to

understand and discover a state's legal position on a variety of topics important to

international law is by examining municipal laws. A country will express its opinion on such

vital international matters as the extent of its territorial sea, or the jurisdiction it claims or

the conditions for the acquisition of nationality through the medium of its domestic law-

making. Thus, it is quite often that in the course of deciding a case before it, an international

court will feel the necessity to make a study of relevant pieces of municipal legislation.

Indeed, there have been instances, such as the Serbian Loans case of 192930 when the

crucial issues turned upon the interpretation of internal law, and the rules of international

law in a strict sense were not at issue. Further, a court may turn to municipal law concepts

where this is necessary in the circumstance31. However, it is clear that caution is necessary

where an international court or tribunal is considering concepts of national law in the

absence of an express or implied requirement so to do and no automatic transposition

should occur.

In addition to the role of municipal law in revealing the legal position of the state on topics

of international importance, the rules of municipal law can be utilised as evidence of

compliance or non-compliance with international obligations. This was emphasised in the

Certain German Interests in Polish Upper Silesia case32, where the Permanent Court of

International Justice declared that:

29 This point was highlighted by Judge Shahbudeen in Lockerbie case(refer earlier lecture)30 IJ, Series A, No. 20 31 In Barcelona Traction case, the court referred to the municipal laws for ascertaining the limited liability of a company. ICJ Reports, 1970, p. 332 PCIJ, Series A, No. 7, p. 19

37


From the standpoint of International Law and of the Court, which is its organ,

municipal laws are merely facts which express the will and constitute the activities of

States, in the same manner as do legal decisions or administrative measures. The

Court is certainly not called upon to interpret the Polish law as such; but there is

nothing to prevent the Court's giving judgment on the question whether or not, in

applying that law, Poland is acting in conformity with its obligations towards

Germany under the Geneva Convention.

Nevertheless, and despite the many functions that municipal law rules perform within the

sphere of international law, the point must be emphasised that the presence or absence of

a particular provision within the internal legal structure of a state, including its constitution

if there is one, cannot be applied to evade an international obligation. Any other solution

would render the operations of international law rather precarious.

The role of International Law in Municipal Plane

The problem of the role of international law within the municipal law system is, however,

rather more complicated and there have been a number of different approaches to it. States

are, of course, under a general obligation to act in conformity with the rules of international

law and will bear responsibility for breaches of it, whether committed by the legislative,

executive or judicial organs. Further, international treaties may impose requirements of

domestic legislation upon states parties, while binding Security Council Resolutions may

require the states to take certain measures within their territory, failure to do which exposes

the State to the risk of enforcement action by the Security Council, particularly under Chapter

VII of the Charter of the United Nations.

We may say there is a clear trend on penetration of International Law in the municipal plane.

If we take India as an illustrative example of the same, we will see that several rights

mentioned in the international instruments have been extensively referred to by the Indian

courts in their decisions. In Bachan Singh v. State of Punjab33, Justice Bhagwati’s minority

opinion extensively referred to India’s international obligation to abolish capital sentences, in

33 AIR 1982 SC 1325

38


Vishaka34, the CEDAW was widely relied upon for decision making and in Puttaswamy35,

intrnational instruments were widely referred with regards to right to privacy in India.

There are certain doctrine as regards to applicability of International Law on the Municipal

plane, which needs to be understood first.

Doctrine of transformation:

This is based upon the perception of two quite distinct systems of law, operating separately,

and maintains that before any rule or principle of international law can have any effect within

the domestic jurisdiction, it must be expressly and specifically 'transformed' into municipal

law by the use of the appropriate constitutional machinery, such as an Act of Parliament. This

doctrine grew from the procedure whereby international agreements are rendered operative in

municipal law by the device of ratification by the sovereign and the idea has developed from

this that any rule of international law must be transformed, or specifically adopted, to be valid

within the internal legal order. This is also known as Specific Adoption theory. India, it may

be said, follows this approach. In Jolly George Varghese v. Bank of Cochin36, the court, while

dealing with the ICCPR37 held that until the municipal law of the country is changed to

accommodate the Convention, court is bound by existing municipal laws.

Doctrine of Incorporation:

Another approach, known as the doctrine of incorporation, holds that international law is part

of the municipal law automatically without the necessity for the interposition of a

constitutional ratification procedure. The best-known exponent of this theory is the

eighteenth-century lawyer Blackstone, who declared in his Commentaries. United States may

be said to follow this doctrine by and large.

34 AIR 1997 SC 301135 (2017) 10 SCC 136 AIR 1980 SC 47037 International Convention for Civil and Political Rights

39


However, having learnt the aforesaid, it has to be kept in mind that how a nation applies

international law in municipal fields varies according to the nature of the international law.

Practices of the States vary. For customary international law, the rules are different than

treaties. In the next lecture we will learn about the State practices of the United Kingdom,

United States and India with reference to case laws.

State Practices: United Kingdom

The state practices of the United Kingdom shall be studies under two different heads:

How Customary International Law is Incorporated

How treaty laws are incorporated.

Customary International Law

It is in this sphere that the doctrine of incorporation38 has become the main British approach.

It is an old-established theory dating back to the eighteenth century, In the case of Buvot v.

Barbuit39, Lord Talbot declared unambiguously that 'the law of nations in its full extent was

part of the law of England'. This was followed twenty-seven years later by Triquet v.Bath40

where Lord Mansfield, discussing the issue as to whether a domestic servant of the Bavarian

Minister to Britain could claim diplomatic immunity, upheld the earlier case and specifically

referred to Talbot's statement. This acceptance of customary international law rules as part

and parcel of the common law of England, so vigorously stated in a series of eighteenth-

century cases, was subject to the priority granted to Acts of Parliament. Accordingly, a rule

of international law would not be implemented if it ran counter to a statute or decision

by a higher court. So, basically, doctrine of incorporation was followed in the UK with

regards to CIL. In the nineteenth century, a series of cases occurred which led many writers

to dispute the validity of the hitherto accepted incorporation doctrine and replace it with the

38 Refer to the notes from the last class39 (1737) Cases t. Talbot 281 40 (1764) 3 Burr. 1478.

40


theory of transformation, according to which the rules of customary international law only

form part of English law if they have been specifically adopted, either by legislation or case-

law. The turning point in this saga is marked by the case of R v. Keyn41(Franconia case)

which concerned a German ship, the Franconia, which collided with and sank a British vessel

in the English Channel within three miles of the English coast. The German captain was

indicted for manslaughter following the death of a passenger from the British ship, and the

question that came before the Court was whether an English court did indeed have

jurisdiction to try the offence in such circumstances. The Court came to the conclusion that

no British legislation existed which provided for jurisdiction over the three-mile territorial

sea around the coasts. It was true that such a rule might be said to exist in international law,

but it was one thing to say that the state had the right to legislate over a part of what had

previously been the high seas, and quite another to conclude that the state's laws operate at

once there, independently of any legislation. One thing did not follow from another, and it

was imperative to keep distinct on the one hand the power of Parliament to make laws, and

on the other the authority of the courts, without appropriate legislation, to apply the criminal

law where it could not have been applied before. The question, as Lord Cockburn

emphasised, was whether, acting judicially, the Court could treat the power of Parliament to

legislate as making up for the absence of actual legislation. The answer came in the

negative and the German captain was released.

This case was seen by some as marking a change to a transformation approach, but the

judgment was in many respects ambiguous, dealing primarily with the existence or not of any

right of jurisdiction over the territorial sea.

The opinions put forward in the West Rand Gold Mining Co. case42 showed a blurring of the

distinction between the incorporation and transformation theories. Lord Alverstone declared

that whatever had received the common consent of civilised nations must also have received

the assent of Great Britain and as such would be applied by the municipal tribunals43.

However, he went on to modify the impact of this by noting that any proposed rule of

international law would have to be proved by satisfactory evidence to have been 'recognised

and acted upon by our own country' or else be of such a nature that it could hardly be

supposed any civilised state would repudiate it44. Hence, as we can see, the gap between the

41 (1876) 2 Ex.D. 6342 [I905] 2 KB 391.43 This line sounds like incorporation theory. 44 This takes the rule nearer to transformation

41


two rules have been narrowed down here. Lord Mansfield's view in Triquet's case could not

be so interpreted as to include within the common law rules of international law which appear

in the opinions of textbook writers and as to which there is no evidence that Britain ever

assented. This emphasis on assent, it must be noted, bears a close resemblance to the views

put forward by the Court in R v. Keyn as to the necessity for conclusive evidence regarding

the existence and scope of any particular rule of customary law. Indeed, the problem is often

one of the uncertainties of existence and scope of customary law.

This modified incorporation doctrine was clearly defined by Lord Atkin in Chung Chi

Cheung v. R45 noted that international law has no validity except in so far as its principles are

accepted and adopted by our own domestic law. However, it held:

“The courts acknowledge the existence of a body of rules which nations accept

among themselves. On any judicial issue they seek to ascertain what the relevant rule

is, and having found it they will treat it as incorporated into the domestic law, so far

as it is not inconsistent with rules enacted by statutes or finally declared by their

tribunals.”

It goes without saying, of course, that any alleged rule of customary law must be proved to be

a valid rule of international law, and not merely an unsupported proposition.

One effect of the doctrines46 as enunciated by the courts in practice is that international

law is not treated as a foreign law but in an evidential manner as part of the law of the

land. This means that whereas any rule of foreign law has to be proved as a fact by evidence,

as occurs with other facts, the courts take judicial notice of any rule of international law and

may refer, for example, to textbooks rather than require the presence and testimony of expert

opinion.

In ascertaining the existence and nature of any particular rule, the courts may have recourse

to a wider range of authoritative material than would normally be the case, such as

'international treaties and conventions, authoritative textbooks, practice and judicial decisions'

of the courts of other countries. The case of Trendtex Trading Corporation v. Central Bank

of Nigeria47 raised anew many of these issues. The case concerned a claim for sovereign or

state immunity by the Central Bank of Nigeria. In Trendtex all three judges of the Court of

Appeal accepted the incorporation doctrine as the correct one. Lord Denning, reversing his 45 [I939] AC 160 46 Relating to incorporation47 [I977] 2 WLR 356

42


opinion in an earlier case, stressed that otherwise the courts could not recognise changes in

the norms of international law.

The issue of stare decisis, or precedent, and customary international law was also discussed in

this case. It had previously been accepted that the doctrine of stare decisis would apply in

cases involving customary international law principles as in all other cases before the courts,

irrespective of any changes in the meantime in such law.

This approach was reaffirmed in Thai-Europe Tapioca Service Ltd v. Government of

Pakistan48. However, in Trendtex, Lord Denning and Shaw LJ emphasised that international

law did not know a rule of stare decisis. Where international law had changed, the court could

implement that change 'without waiting for the House of Lords to do it'. The true principle,

noted Shaw LJ, was that 'the English courts must at any given time discover what the

prevailing international rule is and apply that rule'. This marked a significant approach and

one that in the future may have some interesting consequences, for example, in the human

rights field.

Treaties

As far as treaties are concerned, different rules apply as to their application within the

domestic jurisdiction for very good historical and political reasons. While customary law

develops through the evolution of state practice, international conventions are in the form of

contracts binding upon the signatories. For a custom to emerge it is usual, though not always

necessary, for several states to act in a certain manner believing it to be in conformity with

the law. Therefore, in normal circumstances the influence of one particular state is not usually

decisive. In the case of treaties, the states involved may create new law that would be binding

upon them irrespective of previous practice or contemporary practice. In other words, the

influence of the executive is generally of greater impact where treaty law is concerned than is

the case with customary law. It follows from this that were treaties to be rendered applicable

directly within the state without any intermediate stage after signature and ratification and

before domestic operation, the executive would be able to legislate without the legislature.

Because of this, any incorporation theory approach to treaty law has been rejected. Indeed, as

far as this topic is concerned, it seems to turn more upon the particular relationship between

48 [1975] 3 All ER 961

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the executive and legislative branches of government than upon any preconceived notions of

international law. One of the principal cases in English law illustrating this situation is the

case of the Parlement Belge49. It involved a collision between this ship and a British tug, and

the claim for damages brought by the latter vessel before the Probate, Divorce and Admiralty

division of the High Court. The Parlement Belge belonged to the King of the Belgians and

was used as a cargo boat. During the case, the Attorney General intervened to state that the

Court had no jurisdiction over the vessel as it was the property of the Belgian monarch, and

that further, by a political agreement of 1876 between Britain and Belgium, the same

immunity from foreign legal process as applied to warships should apply also to this packet

boat. In discussing the case, the Court concluded that only public ships of war were entitled

to such immunity and that such immunity could not be extended to other categories by a

treaty without parliamentary consent. Indeed, it was stated that this would be 'a use of the

treaty-making prerogative of the Crown without precedent, and in principle contrary to the

law of the constitution. It is the Crown which in the UK possesses the constitutional authority

to enter into treaties and this prerogative power cannot be impugned by the However, this

power may be affected by legislation. Section 6 of the European Parliamentary Elections Act

1978 provided, for example, that no treaty providing for any increase in the powers of the

European Parliament would be ratified by the UK without being first approved by Parliament.

Thus, it is that treaties cannot operate of themselves within the state, but require the passing

of an enabling statute.

The Crown in Britain retains the right to sign and ratify international agreements, but is

unable to legislate directly. Before a treaty can become part of English law, an Act of

Parliament is essential. This fundamental proposition was clearly spelt out by Lord Oliver in

the House of Lords decision in Maclaine Watson v. Department of Trade and Industry50 He

noted that:

as a matter of the constitutional law of the United Kingdom, the royal prerogative, whilst it

embraces the making of treaties, does not extend to altering the law or conferring rights on

individuals or depriving individuals of rights which they enjoy in domestic law without the

intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing.

Quite simply, a treaty is not part of English law unless and until it has been incorporated into

the law by legislation.

49 (1879) 4 PD 12950 I989 13 All ER 523,531; 81 ILR, pp. 671,684

44


It therefore followed that as far as individuals were concerned such treaties were res inter

alia acta51 from which they could derive rights and by which they could not be deprived of

rights or subjected to obligations. Lord Templeman emphasised that:

“Except to the extent that a treaty becomes incorporated into the laws of the United Kingdom

by statute, the courts of the United Kingdom have no power to enforce treaty rights and

obligations at the behest of a sovereign government or at the behest of a private

individual52.”

An exception to this rule is where reference to a treaty is needed in order to explain the

relevant factual background, for example, where the terms of a treaty are incorporated into a

contract. Where the legislation in question refers expressly to a relevant but unincorporated

treaty, it is permissible to utilise the latter in order to constrain any discretion provided for in

the former. Further, it has been argued that ratification of an international treaty (where no

incorporation has taken place) may give rise to legitimate expectations that the executive, in

the absence of statutory or executive indications to the contrary, will act in conformity with

the treaty.

However, treaties relating to the conduct of war, cession of territory and the imposition

of charges on the public purses do not need an intervening act of legislation before they

can be made binding upon the citizens of the country. A similar situation exists also with

regard to relatively unimportant administrative agreements which do not require ratification,

providing of course they do not purport to alter municipal law. In certain cases, Parliament

will give its approval generically in advance for the conclusion of treaties in certain fields

within specified limits, subject to the terms negotiated for particular treaties being

promulgated by statutory instrument (secondary legislation). Such exceptions occur because

it is felt that, having in mind the historical compromises upon which the British constitutional

structure is founded, no significant legislative powers are being lost by Parliament. In all

other cases where the rights and duties of British subjects are affected, an Act of Parliament

is necessary to render the provisions of the particular treaty operative within Britain.

Posonby Rule: The text of any agreement requiring ratification, acceptance, approval or

accession has to be laid before Parliament at least twenty-one sitting days before any of these

actions is taken.89 This is termed the 'Ponsonby Rule'. All treaties signed after 1 January

1997 and laid before Parliament under this rule are accompanied by an Explanatory 51 Meaning- a thing done between others does not harm or benefit another.52 [1989] 3 All ER 523,531

45


Memorandum. There is in English law a presumption that legislation is to be so construed as

to avoid a conflict with international law53. This operates particularly where the Act of

Parliament which is intended to bring the treaty into effect is itself ambiguous. Accordingly,

where the provisions of a statute implementing a treaty are capable of more than one

meaning, and one interpretation is compatible with the terms of the treaty while others are

not, it is the former approach that will be adopted.

State Practices: USA

Customary International Law: As far as the American position on the relationship between municipal law and

customary international law is concerned, it appears to be very similar to British

practice, apart from the need to take the Constitution into account. The US Supreme

Court in Boos v. Barry54 emphasised that, as a general proposition, it is of course

correct that the United States has a vital national interest in complying with

international law. However, the rules of international law were subject to the

Constitution. Hence, here, like UK, initially, incorporation is followed, but the

incorporation is subjected to constitutional provisions of the country.

Later on the practice however, was later modified as in the UK. It was stated in the

Paquete Habana case55 that international law is part of the law of the land and must

be ascertained and administered by the courts of justice of appropriate jurisdiction as

often as questions of right depending upon it are duly presented for their

determination.

The current position is that customary international law in the US is federal law and

that its determination by the federal courts is binding on the state court. From pure

incorporation followed in earlier times, now there exists a more cautious approach on

the matter.

The similarity of approach with the UK is not surprising in view of common historical

and cultural traditions. American courts are bound by the doctrine of precedent and

the necessity to proceed according to previously decided cases, and they too must

apply statute as against any rules of customary international law that do not accord

53 This is one of the cardinal principles of interpretation of international treaties.54 99 L Ed 2d 333, 345-755 175 US 677 (1900)

46


with it. The Court of Appeals reaffirmed this position in the Committee of United

States Citizens Living in Nicaragua v. Reagan case56 where it was noted that no

enactment of Congress can be challenged on the ground that it violates customary

international law.

It is now accepted that statutes supersede earlier treaties or customary rules of

international law.

There does exist, as in English law, a presumption that legislation is not assumed to

run counter to international law.

Emergence of Human Rights has however influenced as to how international

customary law is interpreted and re-examined in the US. In the significant case of

Filartiga v. Pena Irala57 Court noted that in ascertaining the content of international

law, the contemporary rules and principles of international law were to be interpreted

and not those as of the date of the prescribing statute58.

Filartiga v. Pena Irala

United States had a statute, the Alien Torts Act. By virtue of this act, the district courts of US

has original jurisdiction of any civil action by an alien for a tort only, committed in violation

of the law of nations or a treaty of the United States. In this case of 1980, court has

interpreted this statute to allow foreign citizens to seek remedies in U.S. courts for human-

rights violations for conduct committed outside the United States. In 1980, the U.S. Court of

Appeals for the Second Circuit decided Filártiga v. Peña-Irala,and it paved the way for a new

conceptualization of the ATS". In Filartiga, two Paraguayan citizens resident in the U.S.,

represented by the Center for Constitutional Rights, brought suit against a Paraguayan former

police chief who was also living in the United States. The plaintiffs alleged that the defendant

had tortured and murdered a member of their family, and they asserted that U.S. federal

courts had jurisdiction over their suit under the ATS. The district court dismissed for lack of

subject-matter jurisdiction, holding that the "law of nations" does not regulate a state's

treatment of its own citizens. The U.S. Court of Appeals for the Second Circuit reversed the

decision of the district court. First, it held that the ATS, which allowed jurisdiction in the

federal courts over a suit between two aliens, was a constitutional exercise of Congress's

power, because "the law of nations...has always been part of the federal common law", and 56 859 F. 2d 929 (1988)57 630 F. 2d 876, 881(1980)58 Details of the case shall be provided for your reading

47


thus the statute fell within federal-question jurisdiction. Second, the court held that the

contemporary law of nations had expanded to prohibit state-sanctioned torture. The court

found that multilateral treaties and domestic prohibitions on torture evidenced a consistent

state practice of proscribing official torture. The court similarly found that United Nations

declarations, such as the Universal Declaration on Human Rights, manifested an expectation

of adherence to the prohibition of official torture. The court therefore held that the right to be

free from torture had become a principle of customary international law.

Treaties

The relative convergence of practice between Britain and the United States with respect to the

assimilation of customary law is not reflected as regards the treatment of international treaties. In

the United Kingdom, it is the executive branch which negotiates, signs and ratifies international

agreements, with the proviso that parliamentary action is required prior to the provisions of the

agreement being accepted as part of English law.

In the United States, on the other hand, Article VI Section 2 of the Constitution provides that:

“all Treaties made or which shall be made with the authority of the United States, shall be the

supreme law of the land and the Judges in every state shall be bound thereby, anything in the

Constitution or Laws of any state to the contrary notwithstanding.”

There is also a difference in the method of approval of treaties, for Article II of the Constitution notes

that while the President has the power to make international agreements, he may only ratify them if

at least two-thirds of the Senate approve. There is an exception and this is the institution of the

executive agreements. These are usually made by the President on his own authority, but still

constitute valid treaties within the framework of international law. As distinct from ordinary treaties,

the creation of executive agreements is not expressly covered by the Constitution, but rather implied

from its terms and subsequent practice, and they have been extensively used.

American doctrines as to the understanding of treaty law are founded - upon the distinction

between 'self-executing' and 'non-self-executing' treaties.' The former are able to operate

48


automatically within the domestic sphere, without the need for any municipal legislation, while the

latter require enabling acts before they can function inside the country and bind the American

courts. Self-executing treaties apply directly within the United States as part of the supreme law of

the land, whereas those conventions deemed not self-executing are obliged to undergo a legislative

transformation and, until they do so, they cannot be regarded as legally enforceable against

American citizens or institution. So, in case of self-executing treaties, incorporation is adopted and in

case of non self-executing treaties, transformation is adopted.

But how does one know when an international agreement falls into one category or the other?

This matter has absorbed the courts of the United States for many years, and the distinction appears

to have been made upon the basis of political content. If the treaty deals with a political question,

then the issue should be left to the legislative organs of the nation, rather than automatic operation.

Examples of this would include the acquisition or loss of territory and financial arrangements.

State Practices: India

Article 51 of the Indian Constitution calls for promotion of respect for international

obligations. But being a DPSP, the same is not enforceable. Now, Indian State practice on the

point varies for customary international law and for treaty law. Hence, we shall discuss the

topic under two heads.

Customary International Law

In India, customary rules of International law are automatically incorporated until and unless

they are contrary to the provisions of the Constitution. The Rule of Law relating to the same

has been clearly expressed in the following case

In Gramophone Company of India Ltd. v. Birendra Pandey59 the Supreme Court while

acknowledging that nations must march with the international community and the Municipal

law must respect rules of International law observed that “comity of Nations” requires that

59 AIR 1984 SC 667

49


Rules of International law may be accommodated in the Municipal Law without express

legislative sanction provided they do not run into conflict with Acts of Parliament. “But

when they do run into such conflict” the Court observed, “the sovereignty and the integrity of

the Republic and the supremacy of the constituted legislatures in making the laws may not be

subjected to external rules except to the extent legitimately accepted by the constituted

legislatures themselves”.

This is the leading case in this regard which clearly specifies that unless contrary to

constitution, rules of International Law has to be automatically incorporated.

This was also reiterated in the following case:

In People's Union for Civil Liberties v. Union of India60 , the Supreme Court reiterated if

there is nothing against the customary principle of international law in the domestic sphere, it

would be part of the domestic law of the land

Treaties

Indian State practice with regard to treaties are however different. Indian judiciary, though

not empowered to make legislations, has interpreted India’s obligations under international

law into the constitutional provisions relating to implementation of international law in

pronouncing its decision in a case concerning issues of international law. Through “judicial

activism” the Indian judiciary has played a proactive role in implementing India’s

international obligations under International treaties, especially in the field of human rights

and environmental law.

In India, the executive branch has been entrusted the responsibility to negotiate treaty with

foreign states. It is for the government of India to enter into and ratify treaties and

agreements. It is not obligatory on the part of the Government, to seek approval of the

Parliament to such treaties, unless there is a provision in the treaty itself to that effect. The

Government of India has executive power to enter into and implement international treaties

under Articles 246 and 253 read with Entry 14 of List I of the Seventh Schedule of the Indian

Constitution. In this regard, it is to be noted that the executive powers of the Union and State

governments are co-extensive with their respective legislative powers. Executive powers of

60 (1997) 2 SCC 301

50


the Union of India are specifically vested in the President under Article 53 of the Indian

Constitution. Apart from vesting the executive power, this provision also provides for the

exercise of such executive power either by him directly or through the officers subordinate to

him in accordance with the Constitution. It is pertinent to note that Article 73 of the Indian

Constitution confers upon the government of India executive powers over all subjects in

which parliament has legislative competence.

Article 73(1) reads as follows: “Extent of executive powers of the Union, (1) Subject to the

provisions of this Constitution, the executive power of the Union shall extend (a) To the

matters with respect to which Parliament has powers to make laws; and (b) To the exercise

of such rights, authority and jurisdiction as are exercisable by the Government of India by

virtue of any treaty or agreement: Provided that the executive power referred to in sub clause

(a) shall not, save as expressly provided in this constitution or in any law made by

Parliament, extend in any State to matters with respect in which the Legislature of the State

has also power to make laws.”

The executive power of the Government of India extends to matters with regard to which

Parliament can make laws. However, executive power of government of India to enter into

international treaties does not mean that international law, ipso facto, is enforceable upon

ratification. This is because Indian constitution follows the dualist doctrine with respect to

international law. Therefore, international treaties do not automatically form part of national

law. They must, where appropriate, be incorporated into the legal system by a legislation

made by the Parliament.

A treaty may be implemented by exercise of executive power. However, where

implementation of a treaty requires legislation, the parliament has exclusive powers to enact a

statute or legislation under Article 253 of the Indian Constitution. The Article 253 empowers

the Parliament to make any law, for the whole or any part of the territory of India, for

implementing “any treaty, agreement or convention with any other country or countries or

any decision made at any international conference, association or other body.” Conferment of

this power on the Parliament is evidently in line with the power conferred upon it by Entries

13 and 14 of List I under the Seventh Schedule. Article 253 makes it amply clear that this

power is available to Parliament, notwithstanding, the division of power between the Centre

and States effected by Article 246 read with the Seventh Schedule.

51


The rule of law regarding this was laid down by Justice V.R. Krishna Iyer in the case of Jolly

George Varghese v. Bank of Cochin61 where he held that a treaty signed by India does not

automatically become a part of domestic law until and unless specifically adopted by the

legislature.

This view has been reiterated in a number of other cases like the Civil Rights Vigilance

Committee v. Union of India62 where, inspite of signing the Gleneagles Accord, India

allowed South African origin players in English cricket team to play in India. The Supreme

Court allowed such an action based on the aforesaid reasoning.

However, in Vishakha Vs. State of Rajasthan63 the Court made applicable the provisions of

international law for the purpose of guarantying gender equality, right to work with human

dignity in Articles 14,15,19(1)(g) and 21 of the Constitution and the safeguards against

sexual harassment implicit therein. Interestingly, the Court observed that it is implicit from

Article 51(c) and the enabling power of the Parliament to enact laws for implementing the

International Conventions and norms by virtue of Article 253 read with Entry 14 of the Union

List in Seventh Schedule of the Constitution that any 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 the

constitutional guarantee.

In a number of judgements since, the Indian Supreme Court has extensively referred to

international instruments to broaden the ambit of the rights provided under the Indian

Constitution, by interpreting them in a broad and expansive manner.

(FEW OTHER CASES TO BE DISCUSSED IN CLASS)

61 AIR 1980 SC 47062 AIR 1983 KAR 8563 AIR 1997 SC 3011

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Sources of International Law

Ascertainment of the law on any given point in domestic legal orders is not usually too

difficult a process.' In the Indian legal system, for example, one looks to see whether the

matter is covered by an Act of Parliament and, if it is, then it constitutes the best source of

law. Besides the Parliamentary statutes, customs and precedents are the other most important

sources of law. Now sometimes, in interpreting a law, the court refers to what we call

“travaux preparatories”, writings of eminent jurists, in civil law the principle of justice, equity

and good conscience is applied, dictionaries are referred etc. So ascertaining what the sources

of law are in the domestic plane is not a very difficult task. There is a hierarchical character

53


of a national legal order with its gradations of authority imparting to the law a large measure

of stability and predictability64.

However, under International Law, the situation is not so. The lack of a legislature, executive

and structure of courts within international law has been noted and the effects of this will

become clearer as one proceeds. There is no single body able to create laws internationally

binding upon everyone, nor a proper system of courts with comprehensive and compulsory

jurisdiction to interpret and extend the law. One is therefore faced with the problem of

discovering where the law is to be found and how one can tell whether a particular

proposition amounts to a legal rule. This perplexity is reinforced because of the anarchic

nature of world affairs and the clash of competing sovereignties.

Nevertheless, international law does exist and is ascertainable. There are 'sources' available

from which the rules may be extracted and analysed. Article 38(1) of the Statute of the

International Court of Justice is widely recognised as the most authoritative statement as to

the sources of international law. Though technically it was meant to be guide to the ICJ as to

what laws they can apply, in absence of any better way to ascertain the sources of

international law, often Article 38(1) is treated as laying down the sources of international

law. It provides that the Court, whose function is to decide in accordance with international

law such disputes as are submitted to it, shall apply:

international conventions, whether general or particular, establishing rules expressly

recognised by the contesting states;

international custom, as evidence of a general practice accepted as law;

the general principles of law recognised by civilised nations;

subject to the provisions of Article 59 of the Statute, 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.

The article further mentions that the courts can also decide the matters ex aequo et bono if

parties agree thereto.

Although this formulation is technically limited to the sources of international law which

the International Court must apply, in fact since the function of the Court is to decide disputes

submitted to it 'in accordance with international law' and since all member states of the

United Nations are ipso facto parties to the Statute by virtue of article 93 of the United 64 If statute law is clear, it prevails over every other source. The doctrine of stare decisis helps the courts to understand which judicial decision has the precedence etc.

54


Nations Charter there is no serious contention that the provision expresses the universal

perception as to the enumeration of sources of international law.

Some writers have sought to categorise the distinctions in this provision, so that international

conventions, custom and the general principles of law are described as the three exclusive

law-creating processes while judicial decisions and academic writings are regarded as law-

determining agencies, dealing with the verification of alleged rules. But in reality it is not

always possible to make hard and fast divisions. The different functions overlap to a great

extent so that in many cases treaties (or conventions) merely reiterate accepted rules of

customary law, and judgments of the International Court of Justice may actually create law in

the same way that municipal judges formulate new law in the process of interpreting existing

1aw.

A distinction has sometimes been made between formal and material sources. The former, it

is claimed, confer upon the rules an obligatory character, while the latter comprise the actual

content of the rules. Thus, the formal sources appear to embody the constitutional mechanism

for identifying law while the material sources incorporate the essence or subject-matter of the

regulations. This division has been criticised particularly in view of the peculiar

constitutional set-up of international law, and it tends to distract attention from some of the

more important problems by its attempt to establish a clear separation of substantive and

procedural elements, something difficult to maintain in international law.

Customs as a Source of International Law

In any primitive society certain rules of behaviour emerge and prescribe what is permitted

and what is not. Such rules develop almost subconsciously within the group and are

maintained by the members of the group by social pressures and with the aid of various other

more tangible implements. They are not, at least in the early stages, written down or codified,

and survive ultimately because of what can be called an aura of historical legitimacy. As the

community develops it will modernise its code of behaviour by the creation of legal

machinery, such as courts and legislature. Custom is regarded as an authentic expression of

the needs and values of the community at any given time. Custom within domestic legal

systems, particularly in the developed world, is relatively cumbersome and unimportant and

often of only nostalgic value. In international law on the other hand it is a dynamic source of

55


law in the light of the nature of the international system and its lack of centralised

government organs.

The existence of customary rules can be deduced from the practice and behaviour of states

and this is where the problems begin. How can one tell when a particular line of action

adopted by a state reflects a legal rule or is merely prompted by, for example, courtesy?

Indeed, how can one discover what precisely a state is doing or why? Other issues concern

the speed of creation of new rules and the effect of protests. There are disagreements as to the

value of a customary system in international law. Some writers deny that custom can be

significant today as a source of law, noting that it is too clumsy and slow-moving to

accommodate the evolution of international law any more. We have to keep in mind that the

development of international law in the past one century has been very rapid. Others declare

that it is a dynamic process of law creation and more important than treaties since it is of

universal application. Another view recognises that custom is of value since it is activated by

spontaneous behaviour and thus mirrors the contemporary concerns of society. However,

since international law now has to contend with a massive increase in the pace and variety

of state activities as well as having to come to terms with many different cultural and political

traditions, the role of custom is perceived to be much diminished.

Malcolm Shaw points out that there are elements of truth in each of these approaches. Amidst

a wide variety of conflicting behaviour, it is not easy to isolate the emergence of a new rule

of customary law and there are immense problems involved in collating all the necessary

information. It is not always the best instrument available for the regulation of complex

issues that arise in world affairs, particular after treaty signing has increased manifolds.

However, custom does mirror the characteristics of the decentralised international system. It

reflects the consensus approach to decision- making with the ability of the majority to create

new law binding upon all, while the very participation of states encourages their compliance

with customary rules. Its imprecision means flexibility as well as ambiguity.

The essence of custom according to article 38 is that it should constitute 'evidence of a

general practice accepted as law: Thus, it is possible to detect two basic elements in the

make-up of a custom. These are the material facts, that is, the actual behaviour of states, and

the psychological or subjective belief that such behaviour is 'law'.

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Custom as a source of law may be studied under the following heads:

Duration

Uniformity/Consistency

Generality

Opinio Juris

Duration:

When a particular usage is practiced65 by States for a long period of time, it has the tendency

to become a custom. However, there cannot be any stipulation as to how many years a

practice should be followed so as to transform a usage to custom. Though a stipulation of 100

years was mentioned by Lord Stowell in The Young, Jacob and Johanna66 , but such a

formula does not hold good. As will be seen, it is possible to point to something called

'instant' customary law in certain circumstances that can prescribe valid rules without having

to undergo a long period of gestation. The concept of continental shelf was first conceived in

1945 and by 1958 in the North Sea Continental Shelf case67 it had been held to be customary

rule of international law.

65 Read the difference between a custom and an usage.66 IC Rob 19(1789)67 ICJ Reports (1969)

57


Figure showing the various parts of a sea. See continental shelf. Read Trueman

Declaration of 1945, and Arvid Pardo Principle.

Uniformity/ Consistency:

As held by the PCIJ in the Lotus case, the practice should be constant and uniform. Complete

uniformity is not required, substantial uniformity is enough. Occasional violation of the

principle doesn’t affect the existence of the rule.

Generality:

Generality of a practice is the most important element that transforms a usage into a custom.

This evidences consent amongst the states with regards to a particular practice. Generality

implies how widely a thing is practiced across nations. In West Rand Gold Mining Co. Ltd v.

R68, it was held that it has to be satisfactorily proved that a practice is so widely followed and

generally accepted that no civilised state can repudiate it. The ICJ emphasised its view that

some degree of uniformity amongst state practices was essential before a custom could come 68 (1905) 2 KB 391

58


into existence in the Anglo-Norwegian Fisheries case69. The United Kingdom, in its

arguments against the Norwegian method of measuring the breadth of the territorial sea,

referred to an alleged rule of custom whereby a straight line may be drawn across bays of less

than ten miles from one projection to the other, which could then be regarded as the baseline

for the measurement of the territorial sea. The Court dismissed this by pointing out that the

actual practice of states did not justify the creation of any such custom. In other words, there

had been insufficient uniformity of behaviour.

Opinio Juris:

Once one has established the existence of a specified usage, it becomes necessary to consider

how the state views its own behaviour. Is it to be regarded as a moral or political or legal act

or statement? The opinio juris, or belief that a state activity is legally obligatory, is the factor

which turns the usage into a custom and renders it part of the rules of international law. To

put it slightly differently, states will behave a certain way because they are convinced it is

binding upon them to do so. The Permanent Court of International Justice expressed this

point of view when it dealt with the Lotus case. The issue at hand concerned a collision on

the high seas (where international law applies) between the Lotus, a French ship, and the

Boz-Kourt, a Turkish ship. Several people aboard the latter ship were drowned and Turkey

alleged negligence by the French officer of the watch. When the Lotus reached Istanbul, the

French officer was arrested on a charge of manslaughter and the case turned on whether

Turkey had jurisdiction to try him. Among the various arguments adduced, the French

maintained that there existed a rule of customary law to the effect that the flag state of the

accused (France) had exclusive jurisdiction in such cases and that accordingly the national

state of the victim (Turkey) was barred from trying him. To justify this, France referred to the

absence of previous criminal prosecutions by such states in similar situations and from this

deduced tacit consent in the practice which therefore became a legal custom. The Court

rejected this and declared that even if such a practice of abstention from instituting criminal

proceedings could be proved in fact, it would not amount to a custom. It held that 'only if

such abstention were based on their [the states] being conscious of a duty to abstain would it

be possible to speak of an international custom. Thus, the essential ingredient of obligation

was lacking and the practice remained a practice, nothing more.

69 ICJ Reports, 1951, pp. 116, 131 and 138

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A similar approach occurred in the North Sea Continental Shelf cases. In the general process

of delimiting the continental shelf of the North Sea in pursuance of oil and gas exploration,

lines were drawn dividing the whole area into national spheres. However, West Germany

could not agree with either Holland or Denmark over the respective boundary lines and the

matter came before the International Court of Justice. Article 6 of the Geneva Convention on

the Continental Shelf of 1958 provided that where agreement could not be reached, and

unless special circumstances justified a different approach, the boundary line was to be

determined in accordance with the principle of equidistance from the nearest points of the

baselines from which the breadth of the territorial sea of each state is measured. This would

mean a series of lines drawn at the point where Germany met Holland on the one side and

Denmark on the other and projected outwards into the North Sea. However, because

Germany's coastline is concave, such equidistant lines would converge and enclose a

relatively small triangle of the North Sea. The Federal Republic had signed but not ratified

the 1958 Geneva Convention and was therefore not bound by its terms. The question thus

was whether a case could be made out that the 'equidistance - special circumstances principle'

had been absorbed into customary law and was accordingly binding upon Germany. The

Court concluded in the negative and held that the provision in the Geneva Convention did not

reflect an already existing custom. It was emphasised that when the International Law

Commission had considered this point in the draft treaty which formed the basis of discussion

at Geneva, the principle of equidistance had been proposed with considerable hesitation,

somewhat on an experimental basis and not at all as an emerging rule of customary

international law. The issue then turned on whether practice subsequent to the Convention

had created a customary rule. The Court answered in the negative and declared that although

time was not of itself a decisive factor (only three years had elapsed before the proceedings

were brought) an indispensable requirement would be that within the period in question, short

though it might be, state practice, including that of states whose interests are specially

affected, should have been both extensive and virtually uniform in the sense of the provision

invoked, and should moreover have occurred in such a way as to show a general recognition

that a rule of law or legal obligation is involved.

This approach was maintained by the Court in the Nicaragua case5" and express reference

was made to the North Sea Continental Shelf cases. The Court noted that:

for a new customary rule to be formed, not only must the acts concerned 'amount to a settled

practice', but they must be accompanied by the opinio juris sive necessitatis. Either the States

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taking such action or other States in a position to react to it, must have behaved so that their

conduct is 'evidence of a belief that this practice is rendered obligatory by the existence of a

rule of law requiring it. The need for such a belief, i.e. the existence of a subjective element,

is implicit in the very notion of the opinio juris sive necessitatis.' '"

It is thus clear that the Court has adopted and maintained a high threshold with regard to the

overt proving of the subjective constituent of customary law formation. The great problem

connected with the opinio juris is that if it calls for behaviour in accordance with law, how

can new customary rules be created since that obviously requires action different from or

contrary to what until then is regarded as law? If a country claims a three-mile territorial sea

in the belief that this is legal, how can the rule be changed in customary law to allow claims

of, for example, twelve miles, since that cannot also be in accordance with prevailing law?

Obviously if one takes a restricted view of the psychological aspects, then logically the law

will become stultified and this demonstrably has not happened. Thus, one has to treat the

matter in terms of a process whereby states behave in a certain way in the belief that such

behaviour is law or is becoming law. It will then depend upon how other states react as to

whether this process of legislation is accepted or rejected. It follows that rigid definitions as

to legality have to be modified to see whether the legitimating stamp of state activity can be

provided or not. If a state proclaims a twelve- mile limit to its territorial sea in the belief that

although the three-mile - limit has been accepted law, the circumstances are so altering that a

twelve- mile limit might now be treated as becoming law, it is vindicated if other states

follow suit and a new rule of customary law is established. If other states reject the

proposition, then the projected rule withers away and the original rule stands, reinforced by

state practice and common acceptance. As the Court itself noted in the Nicaragua case,

reliance by a State on a novel right or an unprecedented exception to the principle might, if

shared in principle by other States, tend towards a modification of customary international

law'. The difficulty in this kind of approach is that it is sometimes hard to pinpoint exactly

when one rule supersedes another, but that is a complication inherent in the nature of custom.

Change is rarely smooth but rather spasmodic. This means taking a more flexible view of the

opinio juris and tying it more firmly with the overt manifestations of a custom into the

context of national and international behaviour. This should be done to accommodate the idea

of an action which, while contrary to law, contains the germ of a new law and relates to the

difficulty of actually proving that a state, in behaving a certain way, does so in the belief that

it is in accordance with the law. An extreme expression of this approach is to infer or deduce

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the opinio juris from the material acts. Judge Tanaka, in his Dissenting Opinion in the North

Sea Continental Shelf cases, remarked that there was no other way than to ascertain the

existence of opinio juris from the fact of the external existence of a certain custom and its

necessity felt in the international community, rather than to seek evidence as to the subjective

motives for each example of State practice." However, states must be made aware that when

one state takes a course of action, it does so because it regards it as within the confines of

international law, and not as, for example, purely a political or moral gesture. There has to

be an aspect of legality about the behaviour and the acting state will have to confirm that this

is so, so that the international community can easily distinguish legal from non-legal

practices. This is essential to the development and presentation of a legal framework amongst

the states.

Regional and local custom

It is possible for rules to develop which will bind only a set group of states, such as those in

Latin America, or indeed just two states. Such an approach may be seen as part of the need

for 'respect for regional legal tradition. In the Asylum case70, the International Court of

Justice discussed the Colombian claim of a regional or local custom peculiar to the Latin

American states, which would validate its position over the granting of asylum. The Court

declared that the 'party which relies on a custom of this kind must prove that this custom is

established in such a manner that it has become binding on the other party'. It found that such

a custom could not be proved because of uncertain and contradictory evidence. In such cases,

the standard of proof required, especially as regards the obligation accepted by the party

against whom the local custom is maintained, is higher than in cases where an ordinary or

general custom is alleged.

In the Right of Passage over Indian Territory case71, Portugal claimed that there existed a

right of passage over Indian territory as between the Portuguese enclaves, and this was

upheld by the International Court of Justice over India's objections that no local custom could

be established between only two states. The Court declared that it was satisfied that there had

in the past existed a constant and uniform practice allowing free passage and that the 'practice

was accepted as law by the parties and has given rise to a right and a correlative obligation'.

70 Asylum of Haya de la Torre ICJ Reports, 1950, p. 26671 ICJ Reports, 1960, p. 6

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Such local customs therefore depend upon a particular activity by one state being accepted by

the other state (or states) as an expression of a legal obligation or right. While in the case of a

general customary rule the process of consensus is at work so that a majority or a substantial

minority of interested states can be sufficient to create a new custom, a local custom needs

the positive acceptance of both (or all) parties to the rule. This is because local customs are an

exception to the general nature of customary law, which involves a fairly flexible approach to

law-making by all states, and instead constitutes a reminder of the former theory of consent

whereby states are bound only by what they assent to. Exceptions may prove the rule, but

they need greater proof than the rule to establish themselves.

Treaties as a Source of International Law

In contrast with the process of creating law through custom, treaties (or international

conventions) are a more modern and more deliberate method. Article 38 refers to

'international conventions, whether general or particular, establishing rules expressly

recognised by the contracting states'. Treaties, accordingly, for many writers, are regarded to

be the most important source of international law between parties because they require

express consent of the parties72 and because of their easily ascertainable nature. They are

hence seen as superior to customs, which are regarded as tacit agreements73. Its obligatory

nature is derived from the principle of pacta sunt servanda- a customary international law

principle that means all agreements are binding74.

Treaties may be of two types: General and Particular75. General treaties are those wherein

most of the States of the international community participate and are generally open to

accession by any of the other States of the community. Some examples may be: Hague

Convetntion,1989 and 1907, Geneva Protocol, 1925, Geneva Conventions of 1949 etc.

Particular treaties are bilateral or plurilateral treaties wherein number of parties are two or

more. Extradition treaties between two countries may be an example of such a treaty. They

are also known as treaty-contracts.

72 Supra Note 6.73 Tunkin, “Theory of International Law”, pp 91-11374 Supra Note 6.75 Article 38(1) of the Statute of the International Court of Justice

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Law making treaties are normally general in nature. Law-making treaties create legal

obligations, the one-time observance of which does not discharge the obligations76. They are

those treaties through which the States elaborate their perception of International Law upon

any given topic or establish new rules for guidance in future conduct77. Such law making

treaties requires the participation of a large number of States and may produce rules that may

bind all the States. But this may depend to a large extent on what the attitudes of a large

number of States are. It does not constitute a form of international legislation78. Examples of

such treaties are Antarctic Treaty, the Genocide Convention, etc. Parties that do not ratify a

treaty are generally not bound by it79. However, when treaties reflect customary international

law, then non-parties are bound by it, not because it is a treaty provision, but because it

reflects a rule of customary international law80.

International Law Commission draft made an effort to define the meaning of “treaty”:

“any international agreement in written form, whether embodied in a single instrument or in

two or more related instruments and whatever its particular designation (treaty, convention,

protocol, covenant, charter, statute, act, declaration, concordat, exchange of notes, agreed

minute, memorandum of agreement, modus vivendi or any other appellation), concluded

between two or more States or other subjects of international law and governed by

international law.81”

Article 2(1) of the Vienna Convention on Law of Treaties, 1969 has provided a definition

for treaties:

“an international agreement concluded between States in written form and governed by

international law, whether embodied in a single instrument or in two or more related

instruments and whatever its particular designation”

So as is evident from above, a treaty has the following essential elements:

international agreement

concluded between States, i.e. there must be more that one party to a treaty

76 Crawford, James, “Brownlie’s Principles of Public International Law”, Oxford University Press, Eighth edition(2012)77 Supra Note 6.78 Oppenheim’s International Law at Page 32.79 North Sea Continental Shelf cases, ICJ Reports,1969, pp 3,2580 Supra Not 6 at pp. 7181 International Law Commission Yearbook 1962/II, 161

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it must be in written form.

it must be governed by international law

it may be embodied in a single or two or more related instruments.

However, a non-written verbal agreement between two States does not become invalid

because of this Article. It only implies that such form of treaty is excluded from the scope of

the Convention.

Judge Jessup who has served in the International Court of Justice once regarded that it was

too difficult to ascertain the exact meaning of a treaty. He said that the notions that there is a

clear and ascertainable meaning for the word ‘treaty’ is a mirage82 . According to de

Arechaga, the meaning of a treaty is not merely an academic interest but also of practical

significance83. Fawcett pointed out that owing to a large number of treaties entered into by the

States to fulfil their different needs, many forms of treaties have come into existence84. The

interpretation of treaties on the international plane, in recent times, has been severely

influenced by coming into force of certain “soft laws” in the form of guiding principles,

declarations, who lack in legal force, but have great political force, so as to influence the

interpretation of treaties on the international plane.

Basically, a treaty becomes binding on parties willing to observe the obligations in good

faith. The ‘good faith’ element is quintessential for formation of any treaty. In Nuclear Test

case85, the court emphasised on this element of good faith. Article 26 of the Vienna

Convention on the Law of Treaties, 1969, which embodies the rule of pacta sunt servanda

also speaks about this element of good faith. In Gabcikovo-Nagymaros86 case, both the

elements of binding character of a treaty and the requirement of good faith were reaffirmed.

Treaties have become very important source of law making in recent times. Some treaties

have become customary principles of International Law, that binds even the non-signatory

States.

82 South West Africa case, Ethiopia v. South Africa (1966] ICJ Rep 6.Seperate Opinion of Judge Jessup, at pp. 40283 De Arechaga, “International Law in the Past Third Century”, Vol 1 (1978) p. 3584 Fawcett, J.E.S, “The Legal Character of International Agreements”, British Yearbook of International Law, Vol.30 (1958) p.8185 Australia & New Zealand v. France I.C.J. 1974 86 Hungary v. Slovakia 1997 I.C.J. 7, reprinted in 37 I.L.M. 162 (1998)

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Another important element in a treaty is the intention to create legal obligations. Without the

presence of this element, there can be no treaty. Ascertainment of what this intention is, was

much easier earlier as the treaties earlier used to be bilateral, or the number of signatories to a

treaty used to be limited in number. But, with the surge in the numbers of multilateral treaties

over the last few decades, the ascertainment of intention of the parties has become difficult.

Intention to create legal obligation is the sine qua non for a treaty and interpretation thereof.

In South West Africa case87, it was held the intention has to be interpreted from the

circumstances of each case. It is so because many agreements between states are nothing but

restatements of commonly held principles or objectives and are not intended to establish

binding legal obligations. For eg: a declaration by a number of States towards a particular

political system may be without any intention to obligate them legally. In this case88 it was

held that the League of Nations mandate system is a treaty. For interpretation of its terms, the

trust agreement assumes significance. The intention to create legal relations as an essential

for a valid treaty was reaffirmed in the Third U.S Restatement of Foreign Relations Law,

Washington, 198789. In Anglo-Iranian Oil Co. case90, doubts were expressed if concession

agreement between a private company and a state could be considered an international

agreement in the sense of a treaty. In the Fisheries jurisdiction cases91, optional delarations

with regard to compulsory jurisdiction of the ICJ was held to be treaty provision under

Article 36(2) of the Statute of the International Court of Justice. According to the view of the

United States Assistant Legal Advisor for Treaty Affairs, the test for ascertainment of the

intention shall be focussed upon the following:

The language of the document

its context

circumstances of its conclusion, and

explanations given by the parties.92

Memorandum of Understandings, for example, are not treaties, simply because in normal

course of inter-state dealings, informal non-treaty instruments are usually preferred precisely

because they are non-binding in nature, and hence are flexible in nature. Though it may have

87 Supra Note 20.88 Supra Note 20.89 Third U.S Restatement of Foreign Relations Law, Washington, (1987), Vol.1, p.14990 ICJ Reports, 1952 pp 93,11291 ICJ Reports, 1973, pp 253, 26792 88 AJIL, 1994, P.515

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legal consequences93, it is this intention of not willing to create binding legal obligations that

distinguish between a treaty and a non-treaty. In Qatar v. Bahrain94, it was held by the ICJ

that whether an agreement is a treaty or not would depend upon its actual terms and upon the

circumstances in which it had been drawn up95.

General Principles Recognised by Nations:

In any domestic system of law, a situation may very well arise where the court in considering

a case before it realises that there is no law covering exactly that point, neither parliamentary

statute nor judicial precedent. In such instances the judge will proceed to deduce a rule that

will be relevant, by analogy from already existing rules or directly from the general principles

that guide the legal system. Such a situation is perhaps even more likely to arise in

international law because of the relative underdevelopment of the system in relation to the

needs with which it is faced. There are fewer decided cases in international law than in a

municipal system and no method of legislating to provide rules to govern new situations.

Also, because the doctrine of precedent is not applicable to the decisions of the ICJ. It is for

such a reason that the provision of 'the general principles of law recognised by civilised

nations' was inserted into article 38 as a source of law, to close the gap that might be

uncovered in international law and solve this problem which is known legally as non 1iquet.

There are various opinions as to what the general principles of law concept is intended

to refer. It is not clear in all cases, whether what is involved is a general principle of law

appearing in municipal systems or a general principle of international law. While the

reservoir from which one can draw contains the legal operations of 190 or so states, it does

not follow that judges have to be experts in every legal system. There are certain common

themes that run through the many different orders. Anglo-American common law has

influenced a number of states throughout the world, as have the French and Germanic

systems. There are many common elements in the law in Latin America, and most Afro-

Asian states have borrowed heavily from the European experience in their efforts to

modernise the structure administering the state and westernise economic and other

enterprises.

93 Supra Note 6..94 ICJ Reports, 1994, p.11295 ICJ Reports, 1994, p. 121

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Another point that must be kept in mind in this regard is the term “civilised” states has no

practical significance today while determination of the general principles. It is now treated as

superfluous.

Reference will now be made to some of the leading cases in this field to illustrate how this

problem has been addressed. In the Chorzow Factory case in 1928, which followed the

seizure of a nitrate factory in Upper Silesia by Poland, the Permanent Court of International

Justice declared that 'it is a general conception of law that every violation of an engagement

involves an obligation to make reparation'. The Court also regarded it as:

“a principle of international law that the reparation of a wrong may consist in an indemnity

corresponding to the damage which the nationals of the injured state have suffered as a

result of the act which is contrary to international law.”

The most fertile fields, however, for the implementation of municipal law analogies have

been those of procedure, evidence and the machinery of the judicial process. The

International Court of Justice in the Corfu Channel case, when referring to circumstantial

evidence, pointed out that 'this indirect evidence is admitted in all systems of law and its use

is recognised by international decisions'.

International judicial reference has also been made to the concept of res judicata, that is that

the decision in the circumstances is final, binding and without appeal. In the Administrative

Tribunal case, the Court dealt with the problem of the dismissal of members of the United

Nations Secretariat staff and whether the General Assembly had the right to refuse to give

effect to awards to them made by the relevant Tribunal. In giving its negative reply, the Court

emphasised that:

according to a well-established and generally recognised principle of law, a judgment

rendered by such a judicial body is res judicata and has binding force between the parties to

the dispute."

In the Laguna del Desierto (Argentina/Chile) case, the Tribunal noted that:

A judgment having the authority of res judicata is judicially binding on the Parties to the

dispute. This is a fundamental principle of the law of nations repeatedly invoked in the

jurisprudence, which regards the authority of res judicata as a universal and absolute

principle of international law.

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Further, the Court in the preliminary objections phase of the Right of Passage case stated that:

it is a rule of law generally accepted, as well as one acted upon in the past by the Court, that,

once the Court has been validly seized of a dispute, unilateral action by the respondent state

in terminating its Declaration [i.e. accepting the jurisdiction of the Court], in whole or in

part, cannot divest the Court of jurisdiction.

The Court has also considered the principle of estoppel which provides that a party that has

acquiesced in a particular situation cannot then proceed to challenge it. In the Temple case

the International Court of Justice applied the doctrine. As the International Court noted in the

ELSI case, there were limitations upon the process of inferring an estoppel in all

circumstances, since although it cannot be excluded that an estoppel could in certain

circumstances arise from a silence when something ought to have been said, there are

obvious difficulties in constructing an estoppel from a mere failure to mention a matter at a

particular point in somewhat desultory diplomatic exchange.

Another example of a general principle was provided by the Arbitration Tribunal in the

AMCO v. Republic of Indonesia case, where it was stated that 'the full compensation of

prejudice, by awarding to the injured party the damnum ernergens and lucrum cessans is a

principle common to the main systems of municipal law, and therefore, a general principle of

law which may be considered as a source of international law'.

Another principle would be that of respect for acquired rights. One crucial general principle

of international law is that of pacta sunt servanda, or the idea that international agreements

are binding. The law of treaties rests inexorably upon this principle since the whole concept

of binding international agreements can only rest upon the presupposition that such

instruments are commonly accepted as possessing that quality.

Perhaps the most important general principle, underpinning many international legal rules, is

that of good faith. This principle is enshrined in the United Nations Charter, which provides

in article 2(2) that 'all Members, in order to ensure to all of them the rights and benefits

resulting from membership, shall fulfil in good faith the obligations assumed by them in

accordance with the present Charter', and the elaboration of this provision in the Declaration

on Principles of International Law Concerning Friendly Relations and Co-operation among

States adopted by the General Assembly in resolution 2625 (XXV), 1970, referred to the

obligations upon states to fulfil in good faith their obligations resulting from international law

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generally, including treaties. It therefore constitutes an indispensable part of the rules of

international law generally. The International Court declared in the Nuclear Tests cases that:

One of the basic principles governing the creation and performance of legal obligations,

whatever their source, is the principle of good faith. Trust and confidence are inherent in

international co-operation, in particular in an age when this co-operation in many fields is

becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of

treaties is based on good faith, so also is the binding character of an international obligation

assumed by unilateral obligation.

Writings of Jurists as a Subsidiary Source

Article 38 includes as a subsidiary means for the determination of rules of law, 'the teachings

of the most highly qualified publicists of the various nations'. Historically, of course, the

influence of academic writers on the development of international law has been marked. In

the heyday of Natural Law it was analyses and juristic opinions that were crucial, while the

role of state practice and court decisions was of less value. Writers such as Gentili, Grotius,

Pufendorf, Bynkershoek and Vattel were the supreme authorities of the sixteenth to

eighteenth centuries and determined the scope, form and content of international law. With

the rise of positivism and the consequent emphasis upon state sovereignty, treaties and

custom assumed the dominant position in the exposition of the rules of the international

system, and the importance of legalistic writings began to decline. Thus, one finds that

textbooks are used as a method of discovering what the law is on any particular point rather

than as the fount or source of actual rules. There are still some writers who have had a

formative impact upon the evolution of particular laws, for example Gidel on the law of the

sea, and others whose general works on international law tend to be referred to virtually as

classics, for example Oppenheim and Rousseau, but the general influence of textbook writers

has somewhat declined. Nevertheless, books are important as a way of arranging and putting

into focus the structure and form of international law and of elucidating the nature, history

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and practice of the rules of law. Academic writings also have a useful role to play in

stimulating thought about the values and aims of international law as well as pointing out the

defects that exist within the system, and making suggestions as to the future. Because of the

lack of supreme authorities and institutions in the international legal order, the responsibility

is all the greater upon the publicists of the various nations to inject an element of coherence

and order into the subject as well as to question the direction and purposes of the rules. States

in their presentation of claims, national law officials in their opinions to their governments,

the various international judicial and arbitral bodies in considering their decisions, and the

judges of municipal courts when the need arises, all consult and quote the writings of the

leading juristic authorities. Of course, the claim can be made, and often is, that textbook

writers merely reflect and reinforce national prejudice, but it is an allegation which has been

exaggerated. It should not lead us to dismiss the value of writers, but rather to assess correctly

the writer within his particular environment.

Subjects of International Law

In any legal system, certain entities, whether they be individuals or companies, will be

regarded as possessing rights and duties enforceable at law. Thus, an individual may

prosecute or be prosecuted for assault and a company can sue for breach of contract. They are

able to do this because the law recognises them as 'legal persons' possessing the capacity to

have and to maintain certain rights, and being subject to perform specific duties. Just which

persons will be entitled to what rights in what circumstances will depend upon the scope and

character of the law. But it is the function of the law to apportion such rights and duties to

such entities as it sees fit. Legal personality is crucial. Without it, institutions and groups

cannot operate, for they need to be able to maintain and enforce claims. In municipal law

individuals, limited companies and public corporations are recognised as each possessing a

distinct legal personality, the terms of which are circumscribed by the relevant legislation. It

is the law which will determine the scope and nature of personality. Personality involves the

examination of certain concepts within the law such as status, capacity, competence, as well

as the nature and extent of particular rights and duties.

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Personality in international law necessitates the consideration of the interrelationship between

rights and duties afforded under the international system and capacity to enforce claims. One

needs to have close regard to the rules of international law in order to determine the precise

nature of the capacity of the entity in question. Certain preliminary issues need to be faced.

Does the personality of a particular claimant, for instance, depend upon its possession of the

capacity to enforce rights? Indeed, is there any test of the nature of enforcement, or can even

the most restrictive form of operation on the international scene be sufficient? One view

suggests, for example, that while the quality of responsibility for violation of a rule usually

co-exists with the quality of being able to enforce a complaint against a breach in any legal

person, it would be useful to consider those possessing one of these qualities as indeed having

juridical personality. Other writers, on the other hand, emphasise the crucial role played by

the element of enforceability of rights within the international system. However, a range of

factors needs to be carefully examined before it can be determined whether an entity has

international personality and, if so, what rights, duties and competences apply in the

particular case.

Generally, States are regarded as the main subject of international law. This is also true about

classical international law, where States were regarded as the only subjects. However, with

the changing international scenario, some other entities are now also regarded as subjects of

international law. These include international organisations, regional organisations, non-

government organisations, public companies, private companies and individuals.

States

As Lauterpacht observes: 'the orthodox positivist doctrine has been explicit in the affirmation

that only states are subjects of international law'. However, it is less clear that in practice this

position was maintained. The Holy See (particularly from 1871 to 1929), insurgents and

belligerents, international organisations, chartered companies and various territorial entities

such as the League of Cities were all at one time or another treated as possessing the capacity

to become international persons.

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How is a State Born?

Article 1 of the Montevideo Convention on Rights and Duties of States, 1933 lays down

the most widely accepted formulation of the criteria of statehood in international law. It notes

that the state as an international person should possess the following qualifications:

(a) a permanent population;

(b) a defined territory;

(c) government; and

(d) capacity to enter into relations with other states.

The Arbitration Commission of the European Conference on Yugoslavia in Opinion No. 196

declared that 'the state is commonly defined as a community which consists of a territory and

a population subject to an organised political authority and that such a state is characterised

by sovereignty. It was also noted that the form of internal political organisation and

constitutional provisions constituted 'mere facts', although it was necessary to take them into

account in order to determine the government's sway over the population and the territory.

Such provisions are neither exhaustive nor immutable. As will be seen below, other factors

may be relevant, including self-determination and recognition, while the relative weight

given to such criteria in particular situations may very well vary. What is clear, however, is

that the relevant framework revolves essentially around territorial effectiveness.

Permanent Population: The existence of a permanent population is naturally required and

there is no specification of a minimum number of inhabitants, as examples such as Nauru and

Tuvalu97 demonstrate. However, the word permanent must not be so interpreted as to construe

that the entire population of the State must remain permanent. It implies there must be some

sort of permanency attached to the population.

Defined Territory: The need for a defined territory focuses upon the requirement for a

particular territorial base upon which to operate. However, there is no necessity in

international law for defined and settled boundaries. What “defined” essentially means that a 96 Established pursuant to the Declaration of 27 August 1991 of the European Community.97 Populations of some 12,000 and 10,000 respectively

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group of wandering people cannot constitute a State. A state may be recognised as a legal

person even though it is involved in a dispute with its neighbours as to the precise

demarcation of its frontiers, so long as there is a consistent band of territory which is

undeniably controlled by the government of the alleged state. For this reason at least,

therefore, the 'State of Palestine' declared in November 1988 at a conference in Algiers

cannot be regarded as a valid state. The Palestinian organisations did not control any part of

the territory they claim. Albania prior to the First World War was recognised by many

countries even though its borders were in dispute. More recently, Israel has been accepted by

the majority of nations as well as the United Nations as a valid state despite the fact that its

frontiers have not been finally settled and despite its involvement in hostilities with its Arab

neighbours over its existence and territorial delineation. What matters is the presence of a

stable community within a certain area, even though its frontiers may be uncertain. Indeed, it

is possible for the territory of the state to be split into distinct parts, for example Pakistan

prior to the Bangladesh secession of 1971.

Government: For a political society to function reasonably effectively it needs some form of

government or central control. However, this is not a pre- condition for recognition as an

independent country. It should be regarded more as an indication of some sort of coherent

political structure and society, than the necessity for a sophisticated apparatus of executive

and legislative organs. The requirement relates to the nineteenth-century concern with

'civilisation' as an essential of independent statehood and ignores the modern tendency to

regard sovereignty for non-independent peoples as the paramount consideration, irrespective

of administrative condition. As an example of the earlier practice can be noted from the

Aaland Islands case of 1920. The report of the International Committee of Jurists appointed

to investigate the status of the islands remarked, with regard to the establishment of the

Finnish Republic in the disordered days following the Russian revolution, that it was

extremely difficult to name the date that Finland became a sovereign state. It was noted that:

[tlhis certainly did not take place until a stable political organisation had been created, and

until the public authorities had become strong enough to assert themselves throughout the

territories of the state without the assistance of the foreign

Recent practice with regard to the new states of Croatia and Bosnia and Herzegovina

emerging out of the former Yugoslavia suggests the modification of the criterion of effective

exercise of control by a government throughout its territory. Both Croatia and Bosnia and

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Herzegovina were recognised as independent states by European Community member states

and admitted to membership of the United Nations (which is limited to 'states' by article 4 of

the UN Charter) at a time when both states were faced with a situation where non-

governmental forces controlled substantial areas of the territories in question in civil war

conditions.

Capacity to enter into relations with other states: It is an aspect of the existence of the entity

in question as well as an indication of the importance attached to recognition by other

countries. It is a capacity not limited to sovereign nations, since both international

organisations and non-independent states can enter into legal relations with other entities

under the rules of international law. But it is essential for a sovereign state to be able to create

such legal relations with other units as it sees fit. Where this is not present, the entity cannot

be an independent state. The essence of such capacity is independence. This is crucial to

statehood and amounts to a conclusion of law in the light of particular circumstances. It is a

formal statement that the state is subject to no other sovereignty and is unaffected either by

factual dependence upon other states or by submission to the rules of international laws. It is

arguable that a degree of actual as well as formal independence may also be necessary.

State Recognition

Meaning:

Recognition is a method of accepting certain factual situations and endowing them with legal

significance, but this relationship is a complicated one. In the context of the creation of

statehood, recognition may be viewed as constitutive or declaratory, as will be noted in more

detail later. The former theory maintains that it is only through recognition that a state comes

into being under international law, whereas the latter approach maintains that once the factual

criteria of statehood have been satisfied, a new state exists as an international person,

recognition becoming merely a political and not a legal act in this context.

Recognition a political rather than a legal act. Whether to recognise a country or not is a

question mired with the relationship of the recognising State with the recognised State, and

75


hence, political premises. Also, codification of this branch of law is deemed unwanted

because whether to recognise a State or not is a matter intrinsically connected to the notion of

state sovereignty. Currently the law is governed by State practices and judicial precedents.

Definitions

Judge Jessup: Acknowledgement of the political entity of another State by OVERT or

COVERT act.

Oppenheim: State can be regarded as an international person possessing rights and

duties, quoad the recognising State.

Theories of Recognition

Features of Constitutive Theory: Recognition Constitutes Statehood.

Hint of Positivism

Main proponents: Anzillotti, Oppenheim & Holland.

Defects: The States are not recognised all at the same time. Discretionary Rights of

the States in this regard undesirable. Not based on sound reason. Retrospective effect.

Features of Declaratory Theory: Recognition merely declares/acknowledges Statehood

Hall, Brierley, Fisher.

Supplying evidence to a fact.

Right to be treated as a State.

Features of Kelsen’s View: Natural & Juridical Statehood(personality)

Recognition merely supplies juridical personality. Natural Personality already there.

Recognition constitutes juridical statehood.

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Effects of Recognition

Establishment of Diplomatic Relations

Exclusion of Competing Claims

The totality of rights and duties.

Forms of Recognition: Article 7 of Montevideo Convention on Rights ad Duties of States, 1933.

Express: By Notification/Declaration/ Public Statement/ Diplomatic Note/

Parliamentary Announcement/ Message from Head of State

India’s Recognition of Bangladesh

India’s Recognition of Lithuania, Latvia, Estonia.

Implied:

1. By Unilateral Acts,

2. By Collective Acts

Modes of Recognition: De jure and De facto.

Internal Affairs: No difference

Immunity Before Courts

De facto precedes de jure generally.

De jure recognition is permanent.

Cases Related to De jure v. De facto:

Luther v. Sagor98: Luther was a British Citizen who used to run a Timber industry in Soviet

Russia. On 1917 the Russian Government nationalized his factory and thereafter Mr Luther

left Russia and went to the UK. In 1920 Mr. Sagor came to an agreement with Russian

Nationalized business company to buy some timber, the company sent timbers accordingly

but when timers reached in UK Mr. Luther claimed that those timbers were his timbers, he

pointed that as UK never recognized the government of Russia, as well as Russia, wrongfully

took over his factory, therefore, the civilized court of UK cannot validate the rule of Russian

98 (UK) 1921

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law. The lower court held the judgment in Luther’s favour but on appeal to the Kings Bench

Division it held that they cannot interfere in an internal matter of another state, because in the

meantime Russia was given the De Facto Recognition, the court also declare the retrospective

effective on that recognition form 1917. So, this case, in effect declared that there is no

practical difference between de jure and de facto recognition.

Arantzanzu Mandi99: Arantzazu Mendi was a Spanish ship which was registered under the

Bilbao area of Spain. In 1936 there was a civil war in Spain between two-party the Republics

and the Nationalists. Nationalists were under the comment of General Franco. The UK

recognized de jure the Republican government of Spain, on the other hand, they also

recognized de facto the rebel government (the Nationalists). Slowly General Franco overtook

many areas including Bilbao and at that time the Republics nationalized all the (Registered)

ships of that area. At that time the ship Arantzazu Mendi was anchored at a port of UK. The

De Facto Nationalist government of Spain who was recognized by UK appeal to the UK that

as The United Kingdom gave them the legal recognition the Arantzazu Mendi ship legally

belongs to the Nationalist government and therefor UK should cease the ship and handover to

the Nationalist government.

The main issue in this case was: Whether the republican government shall have the right to

possess the ship? Decision was: A de facto government has control over state assets within

the territory it controls. A de jure government has control even overstate assets abroad.

Reasoning was: It was held by the House of Lords that since the Nationalist was a de-facto

recognized sovereign ineffective contract over a large portion of Spain, it was immune from

the jurisdiction of the local courts of other sovereigns.

Tobar Doctrine: Doctrine of legitimacy

Estrada Doctrine: Doctrine of effectiveness On September 12, 1931, Mexico was admitted to the League of Nations. That was a

significant event as it had not been invited since the creation of the intergovernmental

organization once the First World War ended, which can be attributed mainly to some

unsolved problems between Mexico and the United States. In the heart of the forum, Mexico

established its position in favour of the international law and the principles of non-

intervention and self-determination. The Mexican government always supported the peaceful

resolution of disputes and rejected the use of force in international relations. All of that gave

99 (UK) 1939

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the country a major international prestige. As for its southern neighbours in Latin

America and the Caribbean, Mexico returned to the International Conference of American

States, where it had been previously excluded because the government had not been

recognized by the US. The country gained an outstanding prestige in the conferences that

took place in Havana (1928) and Montevideo (1933), which postured for Latin American

union and international law.

Meanwhile, Mexico had the opportunity to spread its position towards the international

practice of recognition, known as the Estrada Doctrine. Secretary of Foreign Affairs, Genaro

Estrada, pointed out on September 27, 1930:

The government of Mexico restricts itself to keep or retire, when considered appropriate,

its diplomatic agents and to continue accepting, when considered appropriate as well, similar

diplomatic agents whose respective nations have accredited in Mexico, without qualifying,

neither hastily nor a posteriori, the right that nations have to accept, keep or replace their

governments or authorities.

The Estrada Doctrine suggests that under the establishment of de facto governments in other

countries, Mexico did not support giving recognition because it is considered a degrading

practice. By injuring the sovereignty of other states, recognition puts them in a vulnerable

position because their internal affairs can be judged by other governments, which assume a

critical attitude when deciding about the legality and legitimacy of foreign

governments. Mexico was itself harmed because of the practice, as it was difficult to obtain

recognition of its independence.

The most extended use of the Estrada Doctrine was in the 1970s, when Mexico did not

withdraw its recognition of any South American government that was formed through a coup

d'état. The only measure Mexico could use against such governments was withdrawing

its diplomatic mission.

In other words, the Estrada Doctrine states that Mexico should not make positive or negative

judgements about the governments, or changes in government, of other nations, because such

an action would imply a breach to their sovereignty. In addition, the doctrine is based on the

universally-recognized principles of self-determination and non-intervention, which are

considered essential for mutual respect and cooperation amongst nations.

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Conditional Recognition

When recognition is granted subject to certain conditions it is called conditional recognition.

Conditional recognition becomes full recognition on the fulfilment of the following conditions:

Continuity

Effectiveness

Others

Recognition of Belligerency: Civil War

If rebels organised

Starke’s 4 Conditions:

Hostilities of general character

Rebels must be in control of substantial part

Both parties must act according to laws of warfare

The rebels must be organised under proper command

Entitled to exercise belligerent rights on recognition

Recognising state can be impartial in the conflict

Recognition of insurgency: More Localised character

Not under organised force

Not following laws of warfare

Civil war

Rights and Duties of State Under International Law

The fundamental rights of states exist by virtue of the international legal order, which is able,

as in the case of other legal orders, to define the characteristics of its subject.

Independence

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Perhaps the outstanding characteristic of a state is its independence, or sovereignty. This was

defined in the Draft Declaration on the Rights and Duties of States prepared in 1949 by the

International Law Commission as the capacity of a state to provide for its own well-being and

development free from the domination of other states, provided it does not impair or violate

the legitimate right of another State.

Any political or economic dependence that may in reality exist does not affect the legal

independence of the state, unless that state is formally compelled to submit to the demands of

a superior state, in which case dependent status is concerned. A discussion on the meaning

and nature of independence took place in the Austro-German Customs Union case before

the Permanent Court of International Justice in 1931100. It concerned a proposal to create a

free trade customs union between the two German-speaking states and whether this was

incompatible with the 1919 Peace Treaties (coupled with a subsequent protocol of 1922)

pledging Austria to take no action to compromise its independence. In the event, and in the

circumstances of the case, the Court held that the proposed union would adversely affect

Austria's sovereignty. Judge Anzilotti noted that restrictions upon a state's liberty, whether

arising out of customary law or treaty obligations, do not as such affect its independence. As

long as such restrictions do not place the state under the legal authority of another state, the

former maintains - its status as an independent country.

The Permanent Court emphasised in the Lotus case101 that restrictions upon the independence

of states cannot therefore be presumed. A similar point in different circumstances was made

by the International Court of Justice in the Nicaragua case102, where it was stated that in

international law there are no rules, other than such rules as may be accepted by the state

concerned, by treaty or otherwise, whereby the level of armaments of a sovereign state can be

limited, and this principle is valid for all states without exception.

The Court also underlined in the Legality of the Threat or Use of Nuclear Weapons Case103

that state practice shows that the illegality of the use of certain weapons as such does not

result from an absence of authorisation but, on the contrary, is formulated in terms of

prohibition. The starting point for the consideration of the rights and obligations of states

within the international legal system remains that international law permits freedom of action

for states, unless there is a rule constraining this. However, such freedom exists within and 100 PCIJ, Series A/B, No. 41, 1931; 6 AD, p. 26101 PCIJ, Series A, No. 10, 1927, p. 18; 4 AD, pp. 153, 155 102 ICJ Reports, 1986, pp. 14, 135; 76 ILR, pp. 349, 469 103 ICJ Reports, 1996, pp. 226,238-9; 110 ILR, p. 163.

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not outside the international legal system and it is therefore international law which dictates

the scope and content of the independence of states and not the states themselves individually

and unilaterally.

The notion of independence in international law implies a number of rights and duties: for

example, the right of a state to exercise jurisdiction over its territory and permanent

population, or the right to engage upon an act of self-defence in certain situations. It implies

also the duty not to intervene in the internal affairs of other sovereign states. Precisely what

constitutes the internal affairs of a state is open to dispute and is in any event a constantly

changing standard. It was maintained by the Western powers for many years that any

discussion or action by the United Nations with regard to their colonial possessions was

contrary to international law. However, this argument by the European colonial powers did

not succeed and the United Nations examined many colonial situations. In addition, issues

related to human rights and racial oppression do not now fall within the closed category of

domestic jurisdiction. It was stated on behalf of the European Community, for example, that

the 'protection of human rights and fundamental freedoms can in no way be considered an

interference in a state's internal affairs: Reference was also made to 'the moral right to

intervene whenever human rights are violated'104. This duty not to intervene in matters within

the domestic jurisdiction of any state was included in the Declaration on Principles of Inter-

national Law Concerning Friendly Relations and Co-operation among States adopted in

October 1970 by the United Nations General Assembly. It was emphasised that

[n]o state or group of states has the right to intervene, directly or indirectly, for any reason

whatever, in the internal or external affairs of any other state. Consequently, armed

intervention and all other forms of interference or attempted threats against the personality of

the state or against its political, economic and cultural elements, are in violation of

international law.

The prohibition also covers any assistance or aid to subversive elements aiming at the violent

overthrow of the government of a state. In particular, the use of force to deprive peoples of

their national identity amounts to a violation of this principle of non-intervention. The

principles surrounding sovereignty, such as non-intervention, are essential in the maintenance

of a reasonably stable system of competing states. Setting limits on the powers of states vis-a-

vis other states con- tributes to some extent to a degree of stability within the legal order. As

104 EICN.4/1991/SR. 43, p.8

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the International Court of Justice pointed out in the Corfu Channel case in 1949, 'between

independent states, respect for territorial sovereignty is an essential foundation of

international relations'105.

Sovereign Equality

One other crucial principle is the legal equality of states, that is equality of legal rights and

duties. States, irrespective of size or power, have the same juridical capacities and functions,

and are likewise entitled to one vote in the United Nations General Assembly. The doctrine of

the legal equality of states is an umbrella category for it includes within its scope the

recognised rights and obligations which fall upon all states.

This was recognised in the 1970 Declaration on Principles of International Law. This

provides that:

All states enjoy sovereign equality. They have equal rights and duties and are equal members

of the international community notwithstanding differences of an economic, social, political

or other nature. In particular, sovereign equality includes the following elements:

o States are juridically equal;

o Each state enjoys the rights inherent in full sovereignty;

o Each state has the duty to respect the personality of other states;

o The territorial integrity and political independence of the state are inviolable;

o Each state has the right freely to choose and develop its political, social,

economic and cultural systems;

o Each state has the duty to comply fully and in good faith with its international

obligations and to live in peace with other state.

In many respects this doctrine owes its origins to Natural Law thinking. Just as equality was

regarded as the essence of man and thus contributed philosophically to the foundation of the

state, so naturalist scholars treated equality as the natural condition of states. With the rise in

positivism, the emphasis altered and, rather than postulating a general rule applicable to all

and from which a series of rights and duties may be deduced, international lawyers

concentrated upon the sovereignty of each and every state, and the necessity that international

105 ICJ Reports, 1949, pp. 4, 35; 16 AD, pp. 155, 167

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law be founded upon the consent of states. The notion of equality before the law is accepted

by states in the sense of equality of legal personality and capacity. However, it would not be

strictly accurate to talk in terms of the equality of states in creating law. The major states will

always have an influence commensurate with their status, if only because their concerns are

much wider, their interests much deeper and their power more effective. Within the General

Assembly of the United Nations, the doctrine of equality is maintained by the rule of one

state, one vote. However, one should not overlook the existence of the veto possessed by the

USA, Russia, China, France and the United Kingdom in the Security Council.

Peaceful Coexistence

This concept has been formulated in different ways and with different views as to its legal

nature by the USSR, China and the Third World. It was elaborated in 1954 as the Five

Principles of Peaceful Co-existence by India and China, which concerned mutual respect for

each other's territorial integrity and sovereignty, mutual non-aggression, non-interference in

each other's affairs and the principle of equality. The idea was expanded in a number of

international documents such as the final communique of the Bandung Conference in 1955

and in various resolutions of the United Nations. Its recognised constituents also appear in the

list of Principles of the Charter of the Organisation of African Unity. Among the points

enumerated are the concepts of sovereign equality, non-interference in the internal affairs of

states, respect for the sovereignty and territorial integrity of states, as well as a condemnation

of subversive activities carried out from one state and aimed against another. Other concepts

that have been included in this category comprise such principles as non-aggression and the

execution of international obligations in good faith. The Soviet Union had also expressed the

view that peaceful co-existence constituted the guiding principle in contemporary

international law.

Protectorate States

A distinction is sometimes made between a protectorate and a protected state. In the former

case, in general, the entity concerned enters into an arrangement with a state under which,

while separate legal personality may be involved, separate statehood is not. In the case of a

84


protected state, the entity concerned retains its status as a separate state but enters into a valid

treaty relationship with another state affording the latter certain extensive functions possibly

internally and externally. However, precisely which type of arrangement is made and the

nature of the status, rights and duties in question will depend upon the circumstances and, in

particular, the terms of the relevant agreement and third-party attitudes. In the case of

Morocco, the Treaty of Fez of 1912 with France gave the latter the power to exercise certain

sovereign powers on behalf of the former, including all of its international relations.

Nevertheless, the ICJ emphasised that Morocco had in the circumstances of the case

remained a sovereign state. In the case of sub-Saharan Africa in the colonial period, treaties

of protection were entered into with tribal entities that were not states. Such institutions were

termed 'colonial protectorates' and constituted internal colonial arrangements. They did not

constitute international treaties with internationally recognised states. The extent of powers

delegated to the protecting state in such circumstances may vary, as may the manner of the

termination of the arrangement. In these cases, formal sovereignty remains unaffected and the

entity in question retains its status as a state, and may act as such in the various international

fora, regard being had of course to the terms of the arrangement. The obligation may be

merely to take note of the advice of the protecting state, or it may extend to a form of

diplomatic delegation subject to instruction, as in the case of Liechtenstein. Liechtenstein was

refused admission to the League of Nations since it was held unable to discharge all the

international obligations imposed by the Covenant in the light of its delegation of sovereign

powers, such as diplomatic representation, administration of post, telegraph and telephone

services and final decisions in certain judicial cases. Liechtenstein, however, has been a party

to the Statute of the International Court of Justice and was a party to the Nottebohm case

before the Court, a facility only open to states. Liechtenstein joined the United Nations in

1990.

Individuals as Subjects of International Law

The question of the status in international law of individuals is closely bound up with the rise

in the international protection of human rights. The object theory in this regard maintains that

individuals constitute only the subject-matter of intended legal regulation as such. Only

states, and possibly international organisations, are subjects of International Law. This has

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been a theory of limited value. The essence of international law has always been its ultimate

concern for the human being and this was clearly manifest in the Natural Law origins of

classical international law. The growth of positivist theories, particularly in the nineteenth

century, obscured this and emphasised the centrality and even exclusivity of the state in this

regard. Nevertheless, modern practice does demonstrate that individuals have become

increasingly recognised as participants and subjects of international law. This has occurred

primarily but not exclusively through human rights law. The link between the state and the

individual for international law purposes has historically been the concept of nationality. This

was and remains crucial, particularly in the spheres of jurisdiction and the international

protection of the individual by the state. It is often noted that the claim of an individual

against a foreign state, for example, becomes subsumed under that of his national state. Each

state has the capacity to determine who are to be its nationals and this is to be recognised by

other states in so far as it is consistent with international law, although in order for other

states to accept this nationality there has to be a genuine connection between the state and the

individual in question.

Individuals as a general rule lack standing to assert violations of international treaties in the

absence of a protest by the state of nationality, although states may agree to confer particular

rights on individuals which will be enforceable under international law, independently of

municipal law. Under article 304(b) of the Treaty of Versailles, 1919, for example, nationals

of the Allied and Associated Powers could bring cases against Germany before the Mixed

Arbitral Tribunal in their own names for compensation, while the Treaty of 1907 between

five Central American states establishing the Central American Court of Justice provided for

individuals to bring cases directly before the Court. This proposition was reiterated in the

Danzig Railway Officials case106 by the Permanent Court of International Justice, which

emphasised that under international law treaties did not as such create direct rights and

obligations for private individuals, although particular treaties could provide for the adoption

of individual rights and obligations enforceable by the national courts where this was the

intention of the contracting parties. Under the provisions concerned with minority protection

in the 1919 Peace Treaties, it was possible for individuals to apply directly to an international

court in particular instances. Similarly, the Tribunal created under the Upper Silesia

Convention of 1922 decided that it was competent to hear cases by the nationals of a state

against that state107. Since then a wide range of other treaties have provided for individuals to 106 PCIJ, Series B, No. 15 (1928); 4 AD, p. 287. 107 e.g. Steiner and Gross v. Polish State 4 AD, p. 291

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have rights directly and have enabled individuals to have direct access to international courts

and tribunals. One may mention as examples the European Convention on Human Rights,

1950; the European Communities treaties, 1957; the Inter-American Convention on Human

Rights, 1969; the Optional Protocol to the International Covenant on Civil and Political

Rights, 1966; the International Convention for the Elimination of All Forms of Racial

Discrimination, 1965 and the Convention on the Settlement of Investment Disputes, 1965.

International Organisations as Subjects of International Law

International organisations have played a crucial role in the sphere of international

personality. Since the nineteenth century a growing number of such organisations have

appeared and thus raised the issue of international legal personality. In principle it is now

well established that international organisations may indeed possess objective international

legal personality. Whether that will be so in any particular instance will depend upon the

particular circumstances of that case. Whether an organisation possesses personality in

international law will hinge upon its constitutional status, its actual powers and practice.

Significant factors in this context will include the capacity to enter into relations with states

and other organisations and conclude treaties with them, and the status it has been given

under municipal law. Such elements are known in international law as the indicia of

personality. Some Important cases: Reparation for Injuries case, ICJ Reports, 1949, p. 174;

16 AD, p. 318. See also the Interpretation of the Agreement of 25 March 1951 between the

WHO and Egypt case, ICJ Reports, 1980, pp. 73,89-90; 62 ILR, pp. 450,473-4.

Law of the Seas

The seas have historically performed two important functions: first, as a medium of

communication, and secondly, as a vast reservoir of resources, both living and non-living.

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Both of these functions have stimulated the development of legal rules. The seas were at one

time thought capable of subjection to national sovereignties. The Portuguese in particular in

the seventeenth century proclaimed huge tracts of the high seas as part of their territorial

domain, but these claims stimulated a response by Grotius who elaborated the doctrine of the

open seas, whereby the oceans as res communis were to be accessible to all nations but

incapable of appropriation. This view prevailed, partly because it accorded with the interests

of the North European states, which demanded freedom of the seas for the purposes of

exploration and expanding commercial intercourse with the East. The freedom of the high

seas rapidly became a basic principle of international law, but not all the seas were so

characterised. It was permissible for a coastal state to appropriate a maritime belt around its

coastline. territorial waters, or territorial sea, and treat it as an indivisible part of its domain.

Much of the history of the law of the sea has centred on the extent of the territorial sea or

the precise location of the dividing line between it and the high seas and other recognised

zones. The original stipulation linked the width of the territorial sea to the ability of the

coastal state to dominate it by military means from the confines of its own shore. But the

present century has witnessed continual pressure by states to enlarge the maritime belt and

thus subject more of the oceans to their exclusive jurisdiction. Beyond the territorial sea,

other jurisdictional zones have been in process of development. Coastal states may now

exercise particular jurisdictional functions in the contiguous zone, and the trend of

international law today is moving rapidly in favour of even larger zones in which the coastal

state may enjoy certain rights to the exclusion of other nations, such as fishery zones,

continental shelves and, more recently, exclusive economic zones. However, in each case

whether a state is entitled to a territorial sea, continental shelf or exclusive economic zone is a

question to be decided by the law of the sea. This gradual shift in the law of the sea towards

the enlargement of the territorial sea (the accepted limit is now a width of 12 miles in contrast

to 3 miles some thirty years ago), coupled with the continual assertion of jurisdictional rights

over portions of what were regarded as high seas, reflects a basic change in emphasis in the

attitude of states to the sea. The predominance of the concept of the freedom of the high seas

has been modified by the realisation of resources present in the seas and seabed beyond the

territorial seas. Parallel with the developing tendency to assert ever greater claims over the

high seas, however, has been the move towards proclaiming a 'common heritage of

mankind' regime over the seabed of the high seas. The law relating to the seas, therefore, has

been in a state of flux for several decades as the conflicting principles have manifested

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themselves. A series of conferences have been held, which led to the four 1958 Conventions

on the Law of the Sea and then to the 1982 Convention on the Law of the Sea.

The 1958 Convention on the High Seas was stated in its preamble to be 'generally declaratory

of established principles of international law', while the other three 1958 instruments can be

generally accepted as containing both reiterations of existing rules and new rules. The

pressures leading to the Law of the Sea Conference, which lasted between 1974 and 1982 and

involved a very wide range of states and international organisations, included a variety of

economic, political and strategic factors. Many Third World states wished to develop the

exclusive economic zone idea, by which coastal states would have extensive rights over a

200-mile zone beyond the territorial sea, and were keen to establish international control over

the deep seabed, so as to prevent the technologically advanced states from being able to

extract minerals from this vital and vast source freely and without political constraint.

Western states were desirous of protecting their navigation routes by opposing any

weakening of the freedom of passage through international straits particularly, and wished to

protect their economic interests through free exploitation of the resources of the high seas and

the deep seabed. Other states and groups of states sought protection of their particular

interests.' Examples here would include the landlocked and geographically disadvantaged

states, archipelagic states and coastal states. The 1982 Convention contains 320 articles and 9

Annexes. It was adopted by 130 votes to 4, with 17 abstentions. The Convention entered into

force on 16 November 1994, twelve months after the required 60 ratifications. In order

primarily to meet Western concerns with regard to the International Seabed Area (Part XI of

the Convention), an Agreement relating to the Implementation of Part XI of the 1982

Convention was adopted on 29 July 1994. Many of the provisions in the 1982 Convention

repeat principles enshrined in the earlier instruments and others have since become customary

rules, but many new rules were proposed. Accordingly, a complicated series of relationships

between the various states exists in this field, based on customary rules and treaty rules.8 All

states are prima facie bound by the accepted customary rules, while only the parties to the

five treaties involved will be bound by the new rules contained therein, and since one must

envisage some states not adhering to the 1982 Conventions, the 1958 rules will continue to be

of importance. During the twelve-year period between the signing of the Convention and its

coming into force, the influence of its provisions was clear in the process of law creation by

state practice.

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Points to Remember:

“Land dominates the sea” and “Seas cannot be owned”.

Selden-Grotius Debate Regarding the Law of the Seas

Earlier, the sea was divided into three parts: Territorial Sea, Contiguous Zone and

High Seas. This was the settled position till about 19th century.

Confusion started from 1909 onwards when Russia claimed the territorial sea upto 12

miles and other states up to 4 miles (earlier it was 3).

1930 Hague Codification Conference made an attempt to resolve the issue, but in

vain.

A lot of the development of this branch of law has centred around the breadth of the

territorial sea. First there was Bynkershoek’s cannon shot rule, but later replaced by

the 3 nm rule. Scandinavian countries though claimed 4nm.

Trueman Declaration, 1945.

Some states claimed territorial sea upto 200nm.

First United Nations Conference, 1958:

Four Conventions were adopted: Convention on Territorial Sea and

Contiguous Zone, Convention on High Seas, Convention on Fishing and

Conservation of Living Resources & the Convention on Continental Shelf.

But the breadth of the territorial sea remained unresolved.

Hence Second Conference called.

Second Conference, 1960

Failed to resolve the issues again due to differing claims.

It was realised that the laws formulated under Geneva were insufficient in

view of the vast mineral and gas deposits and the increased capacity of States

to exploit them.

Arvid Pardo Principle, 1967:

o Representative of Malta to the UN

o Sea bed and the ocean floor should be treated as “common heritage of

mankind”

Arvid Pardo Principle adopted by the UNGA vide Res 2749 (XXV) of Dec, 1970:

Declaration on Principles Governing the Sea-Bed and the Ocean Floor Beyond the

Limits of the National Jurisdiction.

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Third UNCLOS was also called, first in 1973.

After ten sessions, in the 11th session, the outcome was written in a draft, which was

adopted by an overwhelming majority of states.

Internal waters Internal waters are deemed to be such parts of the seas as are not either the high seas

or relevant zones or the territorial sea, and are accordingly classed as appertaining to

the land territory of the coastal state.

Internal waters, whether harbours, lakes or rivers, are such waters as are to be found

on the landward side of the baselines from which the width of the territorial and other

zones is measured, and are assimilated with the territory of the state.

They differ from the territorial sea primarily in that there does not exist any right of

innocent passage from which the shipping of other states may benefit.

In general, a coastal state may exercise its jurisdiction over foreign ships within its

internal waters to enforce its laws, although the judicial authorities of the flag state

(i.e. the state whose flag the particular ship flies) may also act where crimes have

occurred on board ship. This concurrent jurisdiction may be seen in two cases.

In R v. Anderson108, in 1868, the Court of Criminal Appeal in the UK declared that an

American national who had committed manslaughter on board a British vessel in

French internal waters was subject to the jurisdiction of the British courts, even

though he was also within the sovereignty of French justice (and American justice by

reason of his nationality), and thus could be correctly convicted under English law.

The US Supreme Court held in Wildenhus case109 that the American courts had

jurisdiction to try a crew member of a Belgian vessel for the murder of another

Belgian national when the ship was docked in the port of Jersey City in New York.

A merchant ship in a foreign port or in foreign internal waters is automatically subject

to the local jurisdiction (unless there is an express agreement to the contrary),

although where purely disciplinarian issues related to the ship's crew are involved,

which do not concern the maintenance of peace within the territory of the coastal

state, then such matters would by courtesy be left to the authorities of the flag ship to

regulate.

108 1 Cox's Criminal Cases 198109 120 US 1 (1887).

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However, a completely different situation operates where the foreign vessel involved

is a warship. In such cases, the authorisation of the captain or of the flag state is

necessary before the coastal state may exercise its jurisdiction over the ship and its

crew. This is due to the status of the warship as a direct arm of the sovereign of the

flag state.

Baselines The width of the territorial sea is defined from the low-water mark around the coasts

of the state.

This is the traditional principle under customary international law and was reiterated

in article 3 of the Geneva Convention on the Territorial Sea and the Contiguous Zone

in 1958 and article 5 of the 1982 Convention, and the low-water line along the coast is

defined 'as marked on large-scale charts officially recognised by the coastal State. In

the majority of cases, it will not be very difficult to locate the low- water line which is

to act as the baseline for measuring the width of the territorial sea.

By virtue of the 1958 Convention on the Territorial Sea and the 1982 Law of the Sea

Convention, the low-water line of a low-tide elevation may now be used as a baseline

for measuring the breadth of the territorial sea.

Exclusive Economic Zone This Zone was absent under Geneva Conventions, 1958.

It emerged out of tentative claims on fishing zones, emerging in 1972. Kenya was the

state that first propounded the concept of EEZ.

Marks as a compromise between those States who wanted territorial sea to be of

200nm and those who wanted a smaller breadth for the TS.

Geneva didn’t give exclusive fishing rights even in contiguous zone. The European

Fisheries Convention, 1964 gave exclusive fishing rights till about 6 nm. Between 6-

12 nms, if other states had historically been fishing in that area, they also had rights to

fish. –Fisheries Jurisdiction case.

In 1972, in order to prevent depletion of fish resources Iceland proclaimed 50 nm of

exclusive fishing zone.

Court justified Iceland’s move on the grounds of “preferential rights”.

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Under UNCLOS, 1982 Arcticle 56.

Rights of Coastal State:

In the exclusive economic zone, the coastal State has:

(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the

natural resources, whether living or non-living, of the waters superadjacent to the seabed and

of the seabed and its subsoil, and with regard to other activities for the economic exploitation

and exploration of the zone, such as the production of energy from the water, currents and

winds;

(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:

the establishment and use of artificial islands, installations and structures;

(ii) marine scientific research;

(iii) the protection and preservation of the marine environment;

(c) other rights and duties provided for in this Convention.

In exercising its rights and performing its duties under this Convention in the exclusive

economic zone, the coastal State shall have due regard to the rights and duties of other States

and shall act in a manner compatible with the provisions of this Convention.

Rights of Other States

1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject

to the relevant provisions of this Convention, the freedoms that are available on the high seas

relating to navigation and overflight and of the laying of submarine cables and pipelines, and

other internationally lawful uses of the sea related to these freedoms, such as those associated

with the operation of ships, aircraft and submarine cables and pipelines, and compatible with

the other provisions of this Convention.

2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive

economic zone in so far as they are not incompatible with this Part.

3. In exercising their rights and performing their duties under this Convention in the

exclusive economic zone, States shall have due regard to the rights and duties of the coastal

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State and shall comply with the laws and regulations adopted by the coastal State in

accordance with the provisions of this Convention and other rules of international law.

Continental Shelf:

Trueman Declaration, 1945

"Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf".

Whereas the Government of the United States of America, aware of the long range world-

wide need for new sources of petroleum and other minerals, holds the view that efforts to

discover and make available new supplies of these resources should be encouraged; and

Whereas its competent experts are of the opinion that such resources underlie many parts of

the continental shelf off the coasts of the United States of America, and that with modern

technological progress their utilisation is already practicable or will become so at any early

date; and

Whereas recognized jurisdiction over these resources is required in the interest of their

conservation and prudent utilisation when and as development is undertaken; and

Whereas it is the view of the Government of the United States that the exercise of jurisdiction

over the natural resources of the subsoil and sea bed of the continental shelf by the

contiguous nation is reasonable and just, since the effectiveness of measures to utilise or

conserve these resources would be contingent upon cooperation and protection from shore,

since the continental shelf may be regarded as an extension of the land mass of the coastal

nation and thus naturally appurtenant to it, since these resources frequently form a seaward

extension of a pool or deposit lying within the territory, and since self-protection compels the

coastal nation to keep close watch over activities off its shores which are of their nature

necessary for utilisation of these resources;

NOW THEREFORE I, HARRY S. TRUEMAN, President of the United States of America, do

hereby proclaim the following policy of the United States of America with respect to the

natural resources of the subsoil and sea bed of the continental shelf.

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Having concern for the urgency of conserving and prudently utilizing its natural resources,

the Government of the United States regards the natural resources of the subsoil and sea bed

of the continental shelf beneath the high seas but contiguous to the coasts of the United

States as appertaining to the United states, subject to its jurisdiction and control. In cases

where the continental shelf extends to the shores of another States, or is shared with an

adjacent State, the boundary shall be determined by the United States and the State

concerned in accordance with equitable principles. The character as high seas of the waters

above the continental shelf and the right to their free and unimpeded navigation are in no

way thus affected.

Development of the Concept of CS

Ever since Trueman Declaration. Various claims have been made.

Overlapping between EEZ and CS: Coastal State has sovereign rights over all the

natural resources lying in its exclusive economic zone, including seabed resources. So

States have two sets of rights with regards to the sea bed, though, the extent of the

continental shelf may extend beyond the EEZ.

Definition under Geneva, 1957:

the continental shelf is the sea bed and sub soil of the submarine areas adjacent to the

coast, but outside the area of territorial sea, to a depth of 200 meters or beyond the

limit, to where the depth of 200 meters or beyond that limit, to where the depth of the

suprajacent waters admit of the exploitation of natural resources of the said area.

Problems: Allowed the States to wantonly claim the CS. By this definition, almost

the entire sea could be owned.

North Sea Continental Shelf Case: ICJ held that there is an inherent right over the

continental shelf and need not be proclaimed.

Definition under UNCLOS 1982:

The continental shelf of a coastal State comprises the seabed and subsoil of the

submarine areas that extend beyond its territorial sea throughout the natural

prolongation of its land territory to the outer edge of the continental margin, or to a

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distance of 200 nautical miles from the baselines from which the breadth of the

territorial sea is measured where the outer edge of the continental margin does not

extend up to that distance.

Shall not exceed 350 nm or 100 miles from the 2500 metre

isobath(GEOGRAPHICAL FACTOR) even when there is a natural prolongation.

Commission on the Limits of the Continental Shelf consisting of 21 experts chosen

by the States: States willing to extend their CS beyond 200nm must submit particulars

of such limit to the Commission along with the necessary documentation. Limits of

shelf established according to such recommendations shall be binding.

Case Concerning Libya & Malta: There is no requirement to ascribe any role to

geographical or geophysical factors within 200nm.

States are to make payments & contributions with regards to exploration beyond

200nms.

Issue of Maritime Delimitation: Equidistance Method applied in delimiting

continental shelf.

Rights of Coastal States

Area earlier fell within the High Seas, so coastal states do not enjoy sovereign rights

over this area. But they have the full rights to exploit the resources lying in this area.

Resources may be both living and non-living.

Exploiting natural resources beyond the 200nm, payments need to be made to the

International Sea Bed Authority. Authority shall distribute them among the States on

equal sharing criterion.

Rights of Other States

Laying Submarine cables with the consent of the State

Deep Sea Bed

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In recent years the degree of wealth contained beneath the high seas has become more and

more apparent. It is estimated that some 175 billion dry tonnes of mineable manganese

nodules are in existence, scattered over some 15 per cent of the seabed. This far exceeds the

land-based reserves of the metals involved (primarily manganese, nickel, copper and While

this source of mineral wealth is of great potential importance to the developed nations

possessing or soon to possess the technical capacity to mine such nodules, it poses severe

problems for developing states, particularly those who are dependent upon the export

earnings of a few categories of minerals. Zaire, for example, accounts for over one third of

total cobalt production, while Gabon and India each account for around 8 per cent of total

manganese production. By the early 1990s, there appeared to be six major deep sea mining

consortia with the participation of numerous American, Japanese, Canadian, British, Belgian,

German, Dutch and French companies. The technology to mine is at an advanced stage and

some basic investment has been made, although it is unlikely that there will be considerable

mining activity for several years to come. In 1969, the UN General Assembly adopted

resolution 2574 (XXIV) calling for a moratorium on deep seabed activities and a year later a

Declaration of Principles Governing the Seabed and Ocean Floor and the Subsoil Thereof,

beyond the Limits of National Jurisdiction (‘the Area’) was adopted. This provided that the

Area and its resources were the ‘common heritage of mankind’ and could not be

appropriated, and that no rights at all could be acquired over it except in conformity

with an international regime to be established to govern its exploration and exploitation.

The 1982 Law of the Sea Convention (Part XI)

Under the Convention, “the Area'" and its resources are deemed to be the common heritage of

mankind and no sovereign or other rights may be recognised. Minerals recovered from the

Area in accordance with the Convention are alienable. However, activities in the Area are to

be carried out for the benefit of mankind as a whole by or on behalf of the International

Seabed Authority (the Authority) established under the Convention. The Authority is to

provide for the equitable sharing of such benefits. Activities in the Area are to be carried out

under article 153 by the Enterprise (i.e. the organ of the Authority established as its operating

arm) and by states parties or state enterprises, or persons possessing the nationality of state

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parties or effectively controlled by them, acting in association with the Authority. The latter

'qualified applicants' will be required to submit formal written plans of work to be approved

by the Council after review by the Legal and Technical Commission. This plan of work is to

specify two sites of equal estimated commercial value. The Authority may then approve a

plan of work relating to one of these sites and designate the other as a 'reserved site' which

may only be exploited by the Authority, via the Enterprise or in association with developing

states. Resolution I of the Conference established a Preparatory Commission to make

arrangements for the operation of the Authority and the Inter- national Tribunal for the Law

of the Resolution I1 of the Conference made special provision for eight 'pioneer investors',

four from France, Japan, India and the USSR and four from Belgium, Canada, the Federal

Republic of Germany, Italy, Japan, the Netherlands, the UK and the USA, and possibly

others from developing states, to be given pioneer status. Each investor must have invested at

least $30 million in preparation for seabed mining, at least 10 per cent of which must be

invested in a specific site. Sponsoring states must provide certification that this has

happened. Such pioneer investors are to be able to carry out exploration activities pending

entry into force of the Convention with priority over the other applicants (apart from the

Enter- prise) in the allocation of exploitation contract. India, France, Japan and the USSR

were registered as pioneer investors in 1987 on behalf of various consortia. China was

registered as a pioneer investor in March 1991, while the multinational Interoceanmetal Joint

Organisation was registered as a pioneer investor in August that year. Several sites have been

earmarked for the Authority, all on the Clarion-Clipperton Ridge in the North-Eastern

Equatorial Pacific. The regime for the deep seabed, however, was opposed by the United

States in particular and, as a consequence, it voted against the adoption of the 1982

Convention. The UK also declared that it would not sign - the Convention until a satisfactory

regime for deep seabed mining was established.

Concern was particularly expressed regarding

the failure to provide assured access to seabed minerals, lack of a proportionate voice

in decision-making for countries most affected, and

the problems that would be caused by not permitting the free play of market forces in

the development of seabed resources.

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The Reciprocating States Regime

As a result of developments in the Conference on the Law of the Sea, many states began to

enact domestic legislation with the aim of establishing an interim framework for exploration

and exploitation of the seabed pending an acceptable international solution. The UK Deep

Sea Mining (Temporary Provisions) Act 1981, for example, provides for the granting of

exploration licences (but not in respect of a period before 1 July 1981) and exploitation

licences (but not for a period before 1 January 1988). The Act also provides for a Deep Sea

Mining Levy to be paid by the holder of an exploitation licence into a Deep Sea Mining

Fund. This fund may be paid over to an international organisation for the deep seabed if an

agreement to create this has come into force for the UK. If this has not occurred within ten

years, the fund will be wound up and paid into the Consolidated Fund of the State. Section

3(1) provides that countries with similar legislation may be designated as 'reciprocating

countries', which would allow for mutual recognition of licences.

The Preparatory Commission, however, adopted a declaration in 1985 stating that any claim,

agreement or action regarding the Area and its resources undertaken outside the Commission

itself, which is incompatible with the 1982 Convention and its related resolutions, 'shall not

be recognised'.

The 1994 Agreement on Implementation of the Seabed Provisions of the Convention on

the Law of the seas

Attempts to ensure the universality of the 1982 Convention system and thus prevent the

development of conflicting deep seabed regimes began in earnest in 1990 in consultations

sponsored by the UN Secretary-General, with more flexibility being shown by states.

Eventually, the 1994 Agreement emerged. The states parties undertake in article 1 to

implement Part XI of the 1982 Convention in accordance with the Agreement. By article 2,

the Agreement and Part XI are to be interpreted and applied together as a single instrument

and, in the event of any inconsistency, the provisions in the former document are to prevail.

States can only express their consent to become bound by the Agreement if they at the same

time or previously express their consent to be bound by the Convention. Thus, conflicting

systems operating with regard to the seabed became impossible. The Agreement also

provides in article 7 for provisional application if it had not come into force on 16 November

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1994 (the date on which the Convention came into force). The Agreement was thus able to be

provisionally applied by states that had consented to its adoption in the General Assembly,

unless they had otherwise notified the depositary (the UN Secretary-General) in writing; by

states and entities signing the agreement, unless they had otherwise notified the depositary in

writing; by states and entities which had consented to its provisional application by so

notifying the depositary in writing; and by states which had acceded to the Agreement. The

Annex to the Agreement addresses a number of issues raised by developed states. In

particular, it is provided that all organs and bodies established under the Convention and

Agreement are to be cost-effective and based upon an evolutionary approach taking into

account the functional needs of such organs or bodies; a variety of institutional arrangements

are detailed with regard to the work of the International Seabed Authority (section 1); the

work of the Enterprise is to be carried out initially by the Secretariat of the Authority and the

Enterprise shall conduct its initial deep seabed mining operations through joint ventures that

accord with sound commercial principles (section 2); decision-making in the Assembly and

Council of the Authority is to comply with a series of specific rules (section 3); the Assembly

upon the recommendation of the Council may conduct a review at any time of matters

referred to in article 155(1) of the Convention, notwithstanding the provisions of that article

as a whole (section 4); and transfer of technology to the Enterprise and developing states is to

be sought on fair and reasonable commercial terms on the open market or through joint-

venture arrangements (section 5) The Authority is the autonomous organisation which the

states parties to the 1982 Convention have agreed is to organise and control activities in the

Area, particularly with a view to administering its resource. It became fully operational in

June 1996. The principal organs of the Authority are the Assembly, the Council and the

Secretariat. Also, to be noted are the Legal and Technical Commission and the Finance

Committee. The Assembly is composed of all members of the Authority, i.e. all states parties

to the Convention, and is currently 141 strong. The Assembly is the supreme organ of the

Authority with powers to elect inter alia the Council, Secretary-General and the members of

the Governing Boards of the Enterprise and its Director-General, to establish subsidiary

organs and to assess the contributions of members to the administrative budget. It has the

power to establish the general policy of the authority. The Council consists of thirty-six

members elected by the Assembly in accordance with certain criteria. The Council is the

executive organ of the Authority and has the power to establish the specific policies to be

pursued by the Authority.

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Nationality

In law, nationality refers to the membership of a nation or a sovereign state in addition to the

political rights and other privileges accompanied with it. E.g. American Indians were referred

to as non-citizen nationals before the Native American Citizenship of 1924 was passed. Often

confused with citizenship, nationality, is a different concept. Individual persons, corporations,

ships and aircrafts, all have a nationality, but for legal purposes only.

Main theories related to Nationality

Active Nationality Theory

Generally deemed non-controversial, it states that a state enjoys the right to exercise its

jurisdiction over its nationals, even when they are in a foreign territory. When obeying

private International laws (The obligations of a nation with respect to other countries ), the

national laws always tend to follow an individual beyond the boundaries as far as his personal

status is concerned. Hence, the court must compulsorily follow International laws, at the

same time make sure that they are not violating domestic police laws or any public order.

When referring to criminal laws, the principle refers to jurisdiction to adjudicate, whether a

state can adjudicate a crime committed abroad? This becomes even a bigger issue when the

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convict changes his/her nationality. A criminal might escape charges by the change of their

nationality after they have committed the crime.

An act might be a crime in one state and somewhere else in the world it could be just another

everyday activity, thus making you immune from any punishment. Eg. In Arkansas, an

individual cannot play more than 25 free games if he continues to win, whereas this might not

be the case somewhere else in the world.

It is a highly debated topic whether a state can follow its own criminal jurisdiction on the

basis of the nationality of the accused. The U.S Supreme Court and some authors have raised

their concerns. It is a concern of international law about how the states treat their nationals.

Critics to this view say that it is the state’s duty under international laws.

Passive Nationality theory

A state at times assumes extraterritorial jurisdiction over foreign nationals if the person who

has suffered damages is it’s national. The idea behind the exercise of passive nationality is to

fulfil the duty of a state to protect its nationals from the damage suffered by them in case the

alien state fails to punish the offender.It is still a matter of dispute whether the nationality of

the victim and the jurisdiction purview should befall under the ambit of international law. It is

viewed as the most aggressive basis of extraterritorial jurisdiction. Donnendieu de Vabres– A

famous French Jurist criticised the passive theory saying it is just a means of the powerful

states to satisfy their power egotism over the weaker states. The biggest drawback of this

theory is that the defendant is unaware of what laws will be befalling upon him and it might

be a serious crime in some other state, thus deeming this theory quite unjust for the

defendant.

Acquisition of Nationality

All the State’s and even the International Bodies have laid down certain provisions on how

someone can acquire the nationality of any country. Nationality is acquired most commonly

on these grounds:

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https://en.wikipedia.org/wiki/Henri_Donnedieu_de_Vabres


Nationality by Birth Being born in a country qualifies you to be a national of the respective country. This is

usually referred to as Jus Soli. It is a Latin term, its literal translation is “right of soil”. The

states which follow the principle of jus soli, allow the individual to acquire the citizenship of

that particular state on the virtue of being born on the state’s territory. This is provided

despite the citizenship or the immigration status of the respective individual’s parents.

By descent from a State’s National This is known as the principle of Jus Sanguinis. It is derived from a Latin term. It literally

translates to “Right of Blood”. It means that the citizenship of the parent is the pre-

determinant of the child’s citizenship.The countries which follow this principle provide

citizenship on the basis of birth provided that the individual’s parents were legally settled

citizens of the respective country. This ensures that the citizenship passes from the parent to

the child.

By Naturalization The process by which a foreign citizen becomes eligible to acquire the nationality or

citizenship of any country. It usually requires the individual seeking the same to fulfil certain

requirements and perform certain protocols to be eligible for the same. The rules and

protocols for naturalization vary from country to country. The most common element can be

the requirement of a promise to obey and uphold the country’s law and respect the

constitution.

Nationality by Marriage Individuals need not keep renewing their visa and burning a hole into their pockets for the

sake of love. Foreign individuals have the opportunity to be a permanent citizen of the state

where your significant other might be. This is known as a citizenship marriage.

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The Hague Convention on Conflict of Nationality Laws (1930) laid down certain provisions

regarding nationality by marriage. Chapter 3 of the same talks about the Nationality of

married women. The main articles of these laws are:

Article 8: On the occasion of marriage, if the wife’s national laws cause her to lose her

nationality, the consequence of the responsibility completely befalls upon the wife to acquire

the nationality of the husband.

Article 9: If the national laws require her to lose her nationality when she acquires the

nationality of her husband through marriage. The consequence of the act shall be on the

condition of her acquiring her husband’s new nationality.

Article 10: If the situation where a husband is naturalized, the change in the wife’s nationality

is not possible until and unless without her full consent.

Article 11: In case of marriage dissolution, the wife shall be ineligible to recover her previous

nationality. She can only do so in accordance with the respective country’s laws. If the wife is

successful in regaining her previous nationality, then the nationality acquired by virtue of

marriage shall be deemed void.

Nationality by Adoption This is also referred to as intercountry or transnational adoption. This is very similar to any

normal adoption procedure, just in an international context. By the virtue of this measure, an

individual or a couple can be deemed legal parents of a child belonging to a foreign nation.

There are certain protocols to be followed before this can be granted. The individual or

couple will have to be eligible. The eligibility criteria for the child are:

The parents (either Couple or individual) must be permanent citizens of a state, either by birth

or via naturalization.

The child must be under 18 years of age.

The child must be a permanent citizen of the state from where he is being adopted.

The child must be under the legal custody of some guardian in his/her state.

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Nationality by Cessation The literal meaning of cessation is the process of ending or bringing to an end. When we talk

about nationality by cessation, we refer to the cessation clauses which were expressed in the

conference of Plenipotentiaries held in 1951. This conference laid that an individual must not

be provided refugee status any longer than it is absolutely required. This had to come to a halt

in accordance with the terms and conditions of the statues. The cessation of refugee status

thus comes into play when the refugees have successfully availed the protection of their

country of origin or any other country of which they are nationals of now. Article 1F of the

convention addresses these conditions in which an individual is no longer eligible to enjoy

the benefits of refugee protection.

Loss of Nationality Also known as loss of citizenship, this refers to the situation wherein a citizen stops or ceases

to be a lawful citizen of the country. This term is an umbrella shelter for both:

Voluntary loss of citizenship Means relinquishing one’s nationality. The prime focus here is on the voluntary part. Almost

all the countries have set-up their own set of rules for the formal relinquishment of their

citizenship. There are countries which do not allow that as well, they tend to trap their

nationals in an endless loop of administrative red-tapism.

Involuntary loss of citizenship States have certain provisions regarding nationality. If a citizen fails to adhere to these then

his/her citizenship can be cancelled. It can happen due to a lot of things like someone failing

to retain their citizenship. However involuntarily losing one’s citizenship, is not immediate, it

has to undergo a series of actions to revoke someone’s citizenship.

By ExpatriationAn expatriate refers to a person who is residing in any other country rather than his native

country. Expatriation is a voluntary right which a citizen of a country can exercise on the

basis of his discretion if required. It means renouncing the nationality and allegiance of a

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country without any constitutional consequences. Generally, this term refers to the

professional and skilled working-class (for private entities or government organisations) or

even artisans who work outside their homeland. The main theme here is that it is voluntary,

and the decision rests on the conscience of the citizen.

Renunciation of NationalityRenunciation refers to the voluntary act by virtue of which an individual can relinquish one’s

nationality. It simply means to give up. Most countries do provide their citizens with this

right. There can be a lot of reasons for people to renounce their citizenship.

The most common reasons are as follows:

People might dislike their country’s laws. The field of law is humongous and so is

the world population. Although the jurists try their best, there is still some gap, it is

always not possible to appease all the sections of society. Thus, there can be

sections of people unhappy with some laws.

There can be personal reasons as well as political ideology clashes. The respective

countries might be engaged in a war.

Taxation laws of a country can be a big reason. If the taxation system extracts too

much from its people, the citizens might want to renounce their citizenship. One of

the most popular examples of this is the wide discontent amongst the U.S citizens

for their tax laws.

Loss of nationality by Substitution Some states have the provision of providing and taking away the nationality on the basis of

substitution. This happens when an individual loses the nationality of one state (his nation)

and is able to attain the citizenship of another state.

Different states have different protocols. Some states will cancel your citizenship if you

acquire a job in a foreign nation without following government sanctions.

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Loss of nationality by ExpirationThis does not exactly refer to the loss of nationality, because it is more emotional rather than

political. Your citizenship might expire when you stay in a foreign nation for too long.

Statelessness: International Framework

EFFORTS for the reduction of statelessness are not new. From the point of view of

international law, the stateless person is an anomaly, nationality still being the principal link

between the individual and the Law of Nations. The stateless person has been called flotsam,

a res nullius110, and has been compared to a vessel on the open sea, not sailing under any flag.

From the human point of view statelessness often leads to hard ship. It is also undesirable

from the aspect of States, as the state less person does not easily fit into the established

international legal order where nationality provides the normal link between the individual

and international law, cannot easily be expelled, etc.

Questions of nationality are, in principle, within the domestic juris diction of each State.111 It

is, therefore, in principle, for each State to determine by its municipal law who are its

nationals. Statelessness is considered to be a result of a conflict of nationality laws, another

result being plural nationality. States have, it is true, often tried in their nationality legislation

to prevent such conflicts and, in particular, have sought to avoid statelessness from occurring.

However, nationality legislation is mainly based on State policy and demographic factors,

rather than the considerations just mentioned. It is, therefore, not easily given to change.

Thus, it is primarily by means of international co-operation, by joint action of States, that the

efforts for the elimination or reduction of statelessness have manifested themselves.

In the time of the League of Nations, these efforts culminated in the adoption on April 12,

1930, of a Convention on Certain Questions relating to the Conflict of Nationality Laws and a

Protocol relating to a Certain Case of Statelessness by the Hague Conference for the

Codification of International Law. The Protocol provides for the acquisition of the nationality

of a Contracting State by a person born in its territory of a mother possessing the nationality

110 Schwarzenberger, International Law (2nd ed.)111 Advisory Opinion of the Permanent Court of International Justice on the Nationality Decrees issued in Tunis and Morocco, P.C.I.J. Series B, No. 4, p. 23

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of that State and of a father without nationality or of unknown nationality. The Convention

contains provisions designed to reduce stateless ness: in Article 7 dealing with expatriation

permits, Articles 8 and 9 relating to the nationality of married women, Articles 13 to 16

dealing with the nationality of children, and Article 17 dealing with adoption.

These provisions are mainly of a negative nature, i.e., designed to prevent loss of nationality

which would render a person stateless, particularly in cases of change of personal status.

They impose obligations on States not to withdraw their nationality in certain circumstances,

rather than obligations to grant their nationality. A distinction has to be made between what

may be called " original " or " absolute " statelessness, i.e., statelessness arising at birth and

what may be called subsequent or relative statelessness, arising subsequent to birth as a result

of renunciation, loss or deprivation of nationality. The provisions of the Hague Convention

and Protocol affect original statelessness only to a very limited extent and do not affect at all

what are known to be the main causes of subsequent statelessness which are deprivation of

nationality by an act of the State and loss of nationality in consequence of territorial changes.

The Conference itself adopted a resolution showing its awareness that the problem would not

be solved by such measures as it " considered it very desirable that States should, in the

exercise of their power of regulating questions of nationality, make every effort to reduce so

far as possible cases of statelessness, and that the League of Nations should continue the

work which it has already undertaken for the purpose of arriving at an international

settlement of this important matter."112

No action was taken by the League of Nations in pursuance of this resolution, but the United

Nations at an early stage devoted its attention to the problem of statelessness. The Universal

Declaration of Human Rights, adopted in 1948, contains in Article 15 the solemn

pronouncement:

" (1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality or denied the right to change his

nationality."

In view of the exclusive competence of States to regulate nationality, and in the absence of

effective joint action of States for the elimination of statelessness, this pronouncement must

be regarded largely as being of a promissory and rather platonic nature. In fact, action of the 112 Final Act, Resolution A I (League of Nations Doc. C.228.M.115.1930.V.).

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United Nations for the elimination of statelessness has in its early stages followed two

methods, that of recommendations to governments in the form of resolutions adopted by the

Economic and Social Council of the United Nations and that of international legislation by

the preparation of multilateral treaties for the elimination or reduction of statelessness.

Among the resolutions adopted, the Resolution 319 B III (XI) of August 11, 1950, deserves

to be specially mentioned, not only because it contained concrete recommendations to States

as to the measures they should adopt for the reduction of the number of cases of statelessness,

but also because it urged the International Law Commission of the United Nations, the organ

established by the General Assembly to carry out its statutory task of " encouraging the

progressive develop ment of international law and its codification," to prepare at the earliest

possible date the necessary draft international Convention or Conventions for the elimination

of statelessness. It is this action which has led to the adoption of the Convention on the

Reduction of Statelessness.

The International Law Commission of the United Nations decided as early as at its first

session in 1949 to include " nationality including statelessness " in the list of topics

provisionally selected for codification. It devoted part of its fourth, fifth and sixth sessions in

1952, 1953 and 1954 to the problem. The late Professor Manley O. Hudson and, after his

resignation, Professor Roberto Cordova, now Judge at the International Court of Justice, were

appointed special rapporteurs of the Commission on the subject of " nationality including

statelessness." At their request, the present writer assisted them in their work. Special

mention should be made of the contribution made by the late Sir (then Mr.) Hersch

Lauterpacht who, at that time, was a member of the Commission, to its work on the subject.

As General Rapporteur of the Commission for its 5th Session in 1953, he drafted its report on

the session 9 which, in its Chapter on " Nationality including Statelessness " contains most

interesting comments on the draft Convention prepared by the Commission. At an early

stage, the Commission decided to limit its work in the field of nationality to the problem of

statelessness. The Special Rapporteur, Professor Cordova, was requested to prepare a draft

Convention on the elimination of future statelessness and one or more draft Conventions on

the reduction of future statelessness. He presented the Commission with a report containing

articles, accompanied by detailed comments, of a draft Convention on the Elimination of

Future Statelessness and another on the Reduction of Future Statelessness. The Commission

was helped in its work by two memoranda prepared by Mr. Kerno, as expert of the

International Law Commission, one on national legislation concerning grounds for

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deprivation of nationality and one containing an analysis of changes in nationality legislation

of States since 1930, as well as by two reports of the Secretary-General of the United

Nations, prepared at the request of the Economic and Social Council, namely " A Study of

Statelessness " and " The Problem of Statelessness."

On the basis of Professor Cordova's report, the Commission adopted the texts of draft

Conventions on the Elimination and Reduction of Future Statelessness which were sent to

governments for comments and revised at its sixth session in 1954 in the light of these

comments. In adopting the titles " Draft Convention on the Elimination of Future

Statelessness " and " Draft Convention on the Reduction of Future Statelessness " the

Commission desired to draw attention to the fact that the draft Conventions were not intended

to have retroactive effect and that they were not concerned with the problem of the

elimination or reduction of existing statelessness. The Commission also devoted some time,

however, to the problem of present statelessness. The Commission realised that existing

statelessness could not be eliminated by the methods of international law, by way of treaty.

On the basis of a draft prepared by the special rapporteur, Professor Cordova, and amended

by him in the course of the discussion in the Commission by the inclusion of proposals by

Professor Lauterpacht, it formulated certain proposals in the form of Articles which were not

to be regarded as a draft agreement but merely as suggestions which governments might wish

to take into account when attempting to find a solution of this urgent problem.15 Basically

this draft provided for the granting of the legal status of " protected persons " to stateless

persons in their country of residence, which would entail the enjoyment of the rights of

nationals of the protecting State, with the exception of political rights, and which also

provided for a right to acquisition of the nationality of the State of residence when the

conditions prescribed for the naturalisation of aliens were fulfilled by the stateless person.

This draft was not pursued by the United Nations.

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Extradition

Under International law, extradition is a formal, diplomatic process by which one state

requests another to obtain the return of custody of a fugitive criminal for crimes punishable

by the laws of the requesting State and committed outside the jurisdiction of the country

where such person has taken refuge. International extradition is an obligation undertaken by

States in good faith to promote and execute justice.

The first formal act providing for extradition was adopted in 1833 by Belgium, which also

passed the first law on the right to asylum. Extradition Acts not only specify extraditable

crimes, but also detail procedures and safeguards whilst defining the relationship between the

Act and the treaty.

Some states allow extradition requests in cases where they have exchanged declaration of

reciprocity with the requesting States. Although there has been a practice of refusing

extradition requests in the absence of a binding international obligation between the states,

often fugitives are surrendered on the basis of municipal law or as an act of good faith by the

State parties. However, the uncertainty implies that non-party States to extradition treaties

may be a safe haven for fugitives.

The process of extradition is subject to two factors: existence of a binding extradition

agreement and the municipal laws of the country from which the extradition is being

requested.

Basic Principles Governing Extradition

Principle of relative Seriousness of the offenceExtradition is usually permissible only for relatively more serious offences, and not for trivial

misdemeanours or petty offences. For instance, the extradition treaty between US and India

permits extradition only for those offences which are punishable with more than one year of

imprisonment.

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Principle of Dual Criminality:This is the most important principle governing Extradition Law. This requires that the offence

that the fugitive is alleged to have committed, should be an offence both in the requesting as

well as the requested state.

For instance: In Quattrocchi's case - the request for extradition was declined as the CBI had

not filed the requisite documents making out a specific case for extradition and had not

satisfied the court as to the basic requirement of 'dual criminality'. To satisfy oneself as to the

requirement of dual criminality, one has to examine the treaty between the two countries and

see if the offence in question finds mention there.

Existence of prima facie case against the fugitive : This is a safety valve

to ensure, at-least on broad probabilities, the existence of a triable case against the fugitive.

This is sought to be ensured by a magisterial inquiry that is to precede the actual

surrender/extradition. If the case lacks merit on the face of it, extradition may be disallowed

at the very outset.

Principle of proportionality between offence and sentence:

Requesting state should respect the principle of proportionality between offence and sentence

and punishment for that particular crime should not be excessively harsh or inhuman, in

which case extradition request may be declined.

Rule of specialty: that is to say, when a fugitive is extradited for a particular crime, he

can be tried only for that crime. If the requesting state deems it desirable to try the extradited

fugitive for some other offence committed before his extradition, the fugitive has to be

brought to the status quo ante in the sense that he has to be returned first to the State which

granted the extradition and fresh extradition has to be requested for the crime for which the

fugitive is sought to be prosecuted.

Extradition and India

Procedure Under the (Indian) Extradition Act, 1962 (Act)

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The Government of India presently has bilateral Extradition Treaties with forty-two countries

and Extradition Arrangements with nine more countries to quicken and ease the process of

extradition. In India, the extradition of a fugitive from India to a foreign country or vice-

versa is governed by the provisions of the Indian Extradition Act, 1962. The basis of

extradition could be a treaty between India and a foreign country and in absence of a treaty,

an arrangement for extradition. Under Section 3 of the Act, a notification could be issued by

the Government of India extending the provisions of the Act to the country/ countries

notified.

The legal basis for Extradition with States with whom India does not have an Extradition

Treaty (non-Treaty States) is provided by Section 3(4) of the Indian Extradition Act, 1962,

which states that the Central Government may, by notified order, treat any convention to

which India and a foreign state are parties, as an Extradition Treaty made by India with that

foreign state providing for extradition in respect of the offences specified in that Convention.

India is also a party to the 1997 International Convention for the Suppression of Terrorist

Bombings. This also provides a legal basis for Extradition in Terror Crimes.

In May 2011, the Indian Government ratified two UN Conventions – the United Nations

Convention against Corruption (UNCAC) and the United Nations Convention against

Transnational Organised Crime (UNCTOC) and its three protocols.

Where there exists an Extradition Treaty between the concerned countries, the extradition

request has to be in terms of the specific requirements therein. In terms of the Comprehensive

Guidelines for Investigation Abroad and Issue of Letters Rogatory (LRs) issued by the

Ministry of Home Affairs, extradition requests are made only after the filing of a charge

sheet, cognisance of the same and issuance of an arrest warrant. If the accused is to be

arrested and produced in the courts of India, the requisite action is through the extradition

process.

Thus, after the Investigative Agency has filed the charge sheet, if the Magistrate takes

cognisance of the same, issuing orders/directions justifying the committal of the accused to

trial and seeking the presence of the accused to face trial, the request for extradition would be

made to the Ministry of External Affairs. In passing such a warrant for the apprehension of

the accused, the Magistrate will be governed by the considerations indicated hereinabove.

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The request is in the form of a self-contained affidavit by the Magistrate, making out a prima

facie case against the accused. To make out a prima facie case, the affidavit is required to

provide brief facts and a history of the case with reference to the statements of witnesses and

relevant documentary evidence, provisions of law invoked and the description of the accused,

establishing his identity. It is necessary to specify the offences for which the accused is

charged and the provisions of law indicating the maximum sentence thereof.

The extradition request must contain an order of the Magistrate justifying the accused

person’s committal to trial on the basis of the evidence made available in the charge-sheet,

with directions seeking to secure the presence of the accused in Court to stand trial in the said

court from the country of present stay, along with a copy of the First Information Report

(FIR) duly counter-signed by the competent judicial authority. Such request must be

accompanied by an original and open-dated warrant of arrest stating clearly the offences for

which the accused has been charged and that the Court has taken cognisance of the said

sections.

An alleged offender may not be extradited to the requesting State in the absence of a treaty.

The States are not obligated to extradite aliens/nationals, or where the crime is not identified

as an extraditable offence in the treaty. Extradition may be denied for purely military and

political offences. Terrorist offences and violent crimes are excluded from the definition of

political offences for the purposes of extradition treaties. In cases where dual criminality

exists, where the conduct constituting the offence amounts to a criminal offence in both the

requesting country and the foreign country, the offence may be tried in either country

depending on factors such as territory where the offence was committed as well as the

nationality of the accused.

Extradition may be denied where due procedure under the Extradition Act of 1962 is not

followed.

Extradition Treaty Between India & UK

According to Article 1 of the Extradition Treaty between India and the UK, it is the duty of

India and the UK to extradite any person being accused or convicted of an extradition offence

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committed within the territory of one State either before or after the entry into force of this

Treaty. Each contracting state shall afford each other mutual assistance in criminal matters.

An extradition offence is defined as one that is punishable under the laws of both the

contracting States by a term of imprisonment for a period of at least one year, excluding

offences of political character but including offences wholly related to fiscal character or

serious offences like murder, causing explosion, terrorism etc.

The request for extradition could be refused if the person is being tried for the extradition

offence in the courts of the requested State or if the accused satisfies that the prosecution in

the requested State is unjust, oppressive, prejudiced, or discriminatory.

Where the request is for a person already convicted, then a certificate of conviction is

necessary. In urgent cases, the person may be provisionally arrested by the requested State till

his extradition request is processed. However, he may be set at liberty after the expiration of

60 days from the date of arrest if his extradition request has not been received. Once a person

is extradited to the requesting State, he can only be prosecuted for the offence requested, any

lesser offence or any offence consented to by the requested State within a period of 45 days.

Extradition may be refused for an offence involving the capital punishment in the requesting

State whereby no death penalty is given in the requested State for the same offence. After

extradition is granted, the requested State shall surrender the accused at an indicated point, or

the requesting State shall remove the person from the territory within one month or as

specified.

Extradition Treaty Between India & the United States (US)

The offence is extraditable if punishable under the laws in both contracting parties by

imprisonments for more than one year or by a more severe penalty. This applies:

1. Whether or not the laws in the contracting state place the offence within the same

category of offences or describe the offence by the same terminology.

2. Whether or not the office is one for which US federal law requires the showing of such

matters as interstate transportation, or use of mail or other facilities affecting interstate

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or foreign commerce, such matters being merely for the purpose of establishing

jurisdiction in a US federal court.

3. Whether or not it relates to taxation or revenue or is one of a purely fiscal character.

Extradition shall be granted for an extraditable offence regardless of where the act or acts

constituting the offence were committed. Usually, an extradition treaty contains a list of

extraditable offences agreed upon between the contracting States, and generally exclude

political and military offences With regards to offences such as murder or other willful

crimes against a Head of State or Head of Government or a member of their family, aircraft

hijacking offences, aviation sabotage, crimes against internationally protected persons

including diplomats, hostage taking, offences related to illegal drugs, or any other offences

for which both contracting states have the obligation to extradite the person pursuant to a

multilateral international agreement.

Extradition shall not be refused on the ground that the person sought is a national of the

requested State. Extradition may be refused in cases of offences under military law or

political offences or where the extradition request is politically motivated.

Extradition Treaty Between India & UAE

The Government of the United Arab Emirates (UAE) and the Government of the Republic of

India entered into an agreement in 1999 on mutual legal assistance in criminal

suits, following which the two countries signed an extradition treaty in 2000. Under the

agreement, both countries are required to hand over the accused to the other country, where

the person to be extradited is accused of an offence in the country requesting extradition.

Further, such an offence must be punishable under the laws of both India and the UAE with

imprisonment for at least one year, or the person has been sentenced by the court of the other

country for at least six months.

Absolute Exemption of Nationals

Traditionally, many States are strongly opposed to extraditing their own nationals. This

attitude and practice are commonly based on or confirmed in national legislation granting

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nationals the right to remain in the territory of the State and not to be extradited or expelled.

The history of the practice of non-extradition of nationals can be traced back to the ancient

times. The studies reveal that the Romans and the Greek City States did not surrender their

citizens.

The first treaty in which an express exemption of nationals appeared was the treaty of 1834

between France and Belgium. French treaty practice after 1844 uniformly excluded the

extradition of the requested State’s own nationals.

Nationality as an exception to extradition has its origin in the sovereign authority of the ruler

to control his subjects and the lack of trust in other legal systems. Under existing international

practice, a State is assumed to have practically unlimited legal control over its nationals.

Thus, nationality is the legal basis for the exemption of citizens from extradition because

allegiance and protection go together: where States demand obedience from their subjects, it

is natural for nationals to expect protection from being extradited to a foreign State.

Indian nationals who return to India after committing offences in West Asia/Gulf countries

are not extradited to those countries. They are liable to be prosecuted in India in accordance

with Indian Law, as the bilateral treaties with these States preclude (except Oman) extradition

of own nationals. India adheres to the principle of not extraditing its own nationals. The

memorandum on “Extradition” was submitted by the Government of India to the Asian-

African Legal Consultative Committee at its Third Session (Colombo, 1960), clarifying its

position on the issue.

However, in practice, India follows a dual system, by extraditing nationals on the basis of

reciprocity where, if the other Treaty State does not extradite, India also bars extradition of its

own nationals.

There are various Multilateral Conventions, Codes and Projects that contain provisions

prohibiting the extradition of nationals of the signatory Parties and make it obligatory for

them to take action against them for crimes with which they are charged. This ensures the

State cannot allow the nationality of the accused to impede punishment in any way.

Process in Case of Multiple Extradition Requests

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The Extradition Act, 1962 makes provisions for the situation where the request comes from

more than one State for the surrender of a fugitive criminal. The discretion in this regard is

given to the Central Government as provided under Section 30 of the Act, which stipulates

that, “if requisition for the surrender of a fugitive criminal are received from more than one

foreign State the Central Government may, having regard to the circumstances of the case,

surrender the fugitive criminal to such State or country as the Government thinks fit.”

Generally, there is no agreed rule covering the case where extradition is requested

concurrently by more than one State, either for the same offence or for different offences. If a

requested State receives more than one request for the same offence, reference will be given

to the State in whose territory the act was committed. But, if the act was committed in more

than one requesting State, the requested State may extradite the person claimed to the State

whose request is first received. When a State receives requests from two or more States for

the same person in respect of different offences, the requested State may, in extraditing the

person claimed, decide to which State it will extradite such person, having regard to all

circumstances, especially the relative seriousness of the offences, the nationality of the person

claimed, the times when the requests were received and the possibility of subsequent

extradition to another State.

The treaty between the UK, India and the Netherlands[v] and the treaty between the UK,

Ireland and the Swiss Federal Council[vi] give preference to those States whose requests

were received first. A few treaties accord preference priority wise: first priority is given to the

party whose security or interest or its nationals or their interests are most affected by the

offence; second priority is given to the party on whose territory the offence is committed; and

the last priority is given to the party of which the person to be extradited is a national. Where

the circumstances are identical, then the requesting State that made the first request is

accorded preference.

Where the request for extradition is for several offences, then the circumstances of the

offence and its gravity are factored in. Treaties between India and the Kingdom of Bahrain,

Kuwait, the Sultanate of Oman, the UAE and Uzbekistan all consider requests priority wise.

Other treaties also make provision in this matter. However, treaties with Bhutan and Nepal

remain silent in this matter. Where there is no provision made in treaties on the subject, the

discretion lies with the Central Government whether to grant or deny the request.

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Absence of a Formal Extradition Treaty

Contrary to the popular assumption that there can be no extradition in the absence of a formal

extradition treaty, ad hoc arrangements can be entered into between the State parties for the

purpose of seeking extradition. Factors that affect the grant of request include the extent of

diplomatic ties between the States and the legal system of the requested State. Existence of a

formal treaty merely simplifies the process and places an obligation on the State parties to

abide by the terms of the treaty.

The lack of a formal extradition arrangement may lead to rejection of the request, for instance

the lack of a formal agreement with Argentina was a primary reason for the denial of

extradition of Ottavio Quattrocchi, who was wanted in India in relation to the

infamous Bofors case. However, a lack of extradition treaty does not defeat the process of

extradition as the States can enter into specific arrangements for the purpose of extradition.

Today, extradition is an invaluable process to bring back those accused of corruption and

financial crimes to stand trial and answer for their offences. Despite the fact that it is a

laborious, time consuming process, eventually subjective to benevolence of a foreign

government – extradition is the only way to bring back the accused persons evading the grasp

of justice. The process depends extensively on good will between countries and the intimacy

in diplomatic relations apart from the procedure to be followed under the municipal laws of

the concerned states.

List of Extradition Treaties and Arrangements for India

Please visit the Ministry of External Affairs Website: https://www.mea.gov.in/leta.htm

Asylum

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https://www.mea.gov.in/leta.htm


The word asylum is Latin and derived from the Greek word ‘Asylia’ which means inviolable

place. The term is referred to those cases where the territorial State declines to surrender a

person to the requesting state and provides shelter and protection in its own territory.

Definitions

According to Starke, the conception of asylum in International law involves two elements

Shelter, which is more than merely temporary refugee ; and

degree of active protection on the part of the authorities in control of the territory of asylum

The Institute of International law, at its Bath session in September, 1950 defined the term

asylum as under “Asylum is the protection which a state grants on its territory or in some

other places under the control of certain its organs to a person who comes to seek.”

The term asylum is used to describe a number of legal notions: the grant by the states of

admission into their territory of refugees, the protection of refugees against return to a

country in respect of which they fear persecution and non-extradition of political offender.

The above elements of asylum will show that extradition is the antithesis of territorial

asylum. Asylum stops, as it were, where extradition begins.

According to Article 14 of the Universal declaration of Human Rights, adopted by the

General Assembly of United Nations on 10 December 1948 –

Everyone has the right to seek and to enjoy in other countries asylum from persecution. This

right may not be invoked in the case of prosecutions genuinely arising from non-political

crimes or from acts contrary to the purposes and principles of the United Nations.

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Basis of Asylum

A State has a right to grant asylum to a person on the principle that it has a sovereign right to

control over the individuals found on its territory. Thus, the right of territorial asylum has

been conferred to a state on the basis of its sovereignty over the territory. This right is

exclusive in the sense that other states are excluded to exercise the jurisdiction over the same

territory. The draft Convention on territorial Asylum adopted by the General assembly in

1974 has recognized under Article. 1, that the grant of asylum is a sovereign right of a state.

The territorial jurisdiction right extends, by application to the embassies, legations, vessels

and aircrafts.

Reasons for Asylum:

It is granted to save a person from jurisdiction of local authorities on the ground that

he will not get fair trial

A person may be granted asylum on humanitarian grounds, in order to protect

political offenders against the violent and disorderly action of irresponsible section of

the population.

National security also plays an important role in granting asylum. The offender who

may be a rebel today may become a ruler in future date.

Although a State may grant asylum after taking into consideration of any of the above

factors, State adopt a cautious approach before doing so because it normally affects

the friendly relations of two states. e.g. when India granted asylum to Dalai Lama and

other Tibetans, it resulted in more strained relationship between India and china. In

this case Dalai Lama and his followers were granted asylum on the ground of

territorial sovereignty by India.

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Is asylum right of a person?

It is said that a person has a right to seek and enjoy asylum in other states. Universal

Declaration of Human Rights under article 14 says down that “everyone has right to seek and

enjoy in other countries asylum from persecution.” General assembly of the united nations

unanimously adopted a resolution in 1967 a Declaration on Territorial asylum which provides

that “no one shall be subjected to measure such as rejection at the frontier, expulsion or

compulsory return to any state where he may be subjected to prosecution but it does not mean

that Art.14 provides for a right to seek and enjoy asylum.” A person can seek and enjoy

asylum only when it is granted by a state. State has no such duty to grant asylum to a person.

The right to grant asylum vests in the states. It is exercised on the basis of principle of

territorial sovereignty.

Kinds/ Types of Asylum:

There are two types of Asylum are as follows:

A) Territorial Asylum; and B) Extra-territorial Asylum

Territorial Asylum:

Territorial Asylum is granted by a State on its Territory, it is called Territorial Asylum. The

right to grant asylum by a State to a person on its own territory flows from the fact that every

State exercises territorial sovereignty over all persons, on its territory to anyone. The grant of

territorial asylum therefore depends upon the discretion of a State which is not under a legal

obligation to grant asylum to fugitive, As no precise rules as to grant of territorial asylum.

General Assembly call upon the International Law Commission in 1959 to undertake the

codification of the principles and rules of international law relating to right of asylum. On

14th December 1967 General Assembly adopted Declaration of Territorial Asylum through

the adoption of resolution. The declaration consists of a Preamble and four Articles dealing

with the principles relating to the grant of refusal of asylum. This Declaration provides that

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the right to seek and enjoy asylum may not be invoked by any person with respect to whom

there are serious reasons for considering that he has committed a crime against peace, a war

crimes and crimes against humanity. Article 4 of the this Declaration provides that the State

granting asylum shall not permit persons who have received asylum to engage in the

activities contrary to the purpose and principles of United Nations. From the above provisions

of the declaration it is clear that State does not have absolute right to grant asylum. The grant

of asylum is a part of which cannot be exercised in respect of International crimes including

genocides.

Extra-territorial Asylum -

Active protection is given outside the territory not belonging to the state granting it. Thus

when Asylum is granted by a State at places outside its own territory. It is called extra-

territorial Asylum’. It usually describes to those cases in which a State refuses to surrender a

person demanding who is not upon its own physical territory but is upon one of its public

ships lying in foreign territorial borders or upon its diplomatic premises within foreign

territories. Thus Asylum is given at legation, consular premises and warships are the

instances of extra-territorial asylum.

Diplomatic Asylum / Asylum in Legation:

Since granting extra-territorial Asylum or diplomatic Asylum involves derogation from the sovereignty of the State, International law ordinarily does not recognize a right to grant asylum in the premises of legation. But asylum may be granted in the legation premises in the following exceptional cases.

1) Individual who are physically in danger from violence.

2) Where there is well established and binding local custom.

3) When there is a special treaty between territorial State and the state of Legation concern.

Asylum in consular premises -The above principle also applies in the case of Grant of asylum in consular premises.

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Asylum in the premises of international institution -Though 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 violation.

Asylum in Warship - There are conflicting views to grant of asylum in warship, but it is argued that Asylum may

be granted to political offenders. As far as an asylum Warship is concerned, it may be granted

on the ground of humanity, in cases if extreme danger to the individual seeking it. Thus, right

to grant asylum on Warship may be granted in the same way in the case of Legation and also

subject to the operation of the same conditions.

Asylum in Merchant Vessels -

Since merchant vessels do not enjoy immunity from local jurisdiction, they are not competent

to Grant asylum to local offenders. Thus, if a person after committing a crime on shore seeks

asylum on board a foreign merchant ship he may be asserted by the local police, either before

the ship leaves the port or when it comes into another port of the same State. There is,

therefore a rule that asylum is not granted on merchant vessels. However, State may grant

asylum if they conclude a treaty to this effect.

Asylum in the premises of international InstitutionWhether a person taking refuge in the premises of an international institution or organization

would be granted asylum is a question which cannot be given with certainty in the absence of

any rule in this regard and also because of lack of practice. However, a right to grant

temporary refuge in an extreme case of danger from mob cannot be ruled out.

Thus, in Extra-territorial or diplomatic Asylum, Asylum can be granted in exceptional cases

and it is necessary to establish legal basis in each particular case.

Settlement of Disputes by Peaceful Means

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It is fair to say that international law has always considered its fundamental purpose to

be the maintenance of peace.

Although ethical preoccupations stimulated its development and inform its growth,

international law has historically been regarded by the international community

primarily as a means to ensure the establishment and preservation of world peace and

security.

Basically, the techniques of conflict management fall into two categories: diplomatic

procedures and adjudication. The former involves an attempt to resolve differences

either by the contending parties themselves or with the aid of other entities by the use

of the discussion and fact- finding methods. Adjudication procedures involve the

determination by a disinterested third party of the legal and factual issues involved,

either by arbitration or by the decision of judicial organ.

The political approach to conflict settlement is divided into two sections.

The adjudication processes will be looked at in the following chapter, being divided

so as to differentiate the techniques of arbitration and judicial settlement. Although

for the sake of convenience each method of dispute settlement is separately examined,

it should be noted that in any given situation a range of mechanisms may well be

utilised.

A good example of this is afforded by the successful settlement of the Chad-Libya

boundary dispute. Following a long period of conflict and armed hostilities since the

dispute erupted in 1973, the two states signed a Framework Agreement on the

Peaceful Settlement of the Territorial Dispute on 31 August 1989 in which they

undertook to seek a peaceful solution within one year. In the absence of a political

settlement, the parties undertook to take the matter to the International Court. After

inconclusive negotiations, the dispute was submitted to the International Court by

notification of the Framework Agreement by the two parties. The decision of the

Court was delivered on 3 February 1994. The Court accepted the argument of Chad

that the boundary between the two states was defined by the Franco-Libyan Treaty of

10 August 1955. Following this decision, the two states concluded an agreement

providing for Libyan withdrawal from the Aouzou Strip by 30 May 1994. The

agreement provided for monitoring of this withdrawal by United Nations observer.

The two parties also agreed to establish a joint team of experts to undertake the

delimitation of the common frontier in accordance with the decision of the

International Court. On 4 May 1994, the Security Council adopted resolution 915

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(1994) establishing the UN Aouzou Strip Observer Group (UNASOG) and

authorising the deployment of observers and support staff for a period up to forty

days. On 30 May, Libya and Chad signed a Joint Declaration stating that the

withdrawal of the Libyan administration and forces had been effected as of that date

to the satisfaction of both parties as monitored by UNASOG. The Security Council

terminated the mandate of UNASOG upon the successful conclusion of the mission

by resolution 926 (1994) on 13 June that year.

However, states are not obliged to resolve their differences at all, and this applies in

the case of serious legal conflicts as well as peripheral political disagreements. All the

methods available to settle disputes are operative only upon the consent of the

particular states. This, of course, can be contrasted with the situation within municipal

systems. It is reflected in the different functions performed by the courts in the

international and domestic legal orders respectively, and it is one aspect of the

absence of a stable, central focus within the world community.

The mechanisms dealing with the peaceful settlement of disputes require in the first

instance the existence of a dispute. The definition of a dispute has been the subject of

some consideration by the International Court,'' but the reference by the Permanent

Court in the Mavrommatis Palestine Concessions (Jurisdiction) case to 'a

disagreement over a point of law or fact, a conflict of legal views or of interests

between two persons' constitutes an authoritative indication.

A distinction is sometimes made between legal and political disputes, or justiciable

and non-justiciable disputes. Although maintained in some international treaties, it is

to some extent unsound, in view of the fact that any dispute will involve some

political considerations and many overtly political disagreements may be resolved by

judicial means. Whether any dispute is to be termed legal or political may well hinge

upon the particular circumstances of the case, the views adopted by the relevant

parties and the way in which they choose to characterise their differences. It is in

reality extremely difficult to point to objective general criteria clearly differentiating

the two. This does not, however, imply that there are not significant differences

between the legal and political procedures available for resolving problems. For one

thing, the strictly legal approach is dependent upon the provisions of the law as they

stand at that point, irrespective of any reforming tendencies the particular court may

have, while the political techniques of settlement are not so restricted. It is also not

unusual for political and legal organs to deal with aspects of the same basic

126


situation.'" The role of political influences and considerations in inter-state disputes

is obviously a vital one, and many settlements can only be properly understood within

the wider international political context. In addition, how a state proceeds in a dispute

will be conditioned by political factors. If the dispute is perceived to be one affecting

vital interests, for example, the state would be less willing to submit the matter to

binding third party settlement than if it were a more technical issue, while the

existence of regional mechanisms will often be of political significance.

Article 2(3) of the United Nations Charter provides 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.

The 1970 Declaration on Principles of International Law Concerning Friendly

Relations and Co-operation among States15 develops this principle and notes that:

states shall accordingly seek early and just settlement of their international disputes by

negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to

regional agencies or arrangements or other peaceful means of their choice.

The same methods of dispute settlement are stipulated in article 33(1) of the UN

Charter, although in the context of disputes the continuance of which are likely to

endanger international peace and security. The 1970 Declaration, which is not so

limited, asserts that in seeking an early and just settlement, the parties are to agree

upon such peaceful means as they see appropriate in the circumstances and nature of

the dispute.

Arbitration as a Means of Settlement of International Dispute

As has been seen, there is a considerable variety of means, mechanisms and

institutions established to resolve disputes in the field of international law. However, a

special place is accorded to the creation of judicial bodies. In resolving disputes, a

variety of techniques is likely to be used and references to judicial bodies should be

seen as part of a larger process of peaceful settlement. As Jennings has written, 'the

adjudicative process can serve, not only to resolve classical legal disputes, but it can

also serve as an important tool of preventive diplomacy in more complex situation.

127


The procedure of arbitration grew to some extent out of the processes of diplomatic

settlement and represented an advance towards a developed international legal

system. In its modern form, it emerged with the Jay Treaty of 1794 between Britain

and America, which provided for the establishment of mixed commissions to solve

legal disputes between the parties.

The procedure was successfully used in the Alabama claims arbitration6 of 1872

between the two countries, which resulted in the UK having to pay compensation for

the damage caused by a Confederate warship built in the UK.

The 1899 Hague Convention for the Pacific Settlement of Disputes included a number

of provisions on international arbitration, the object of which was deemed to be under

article 15, 'the settlement of differences between states by judges of their own choice

and on the basis of respect for law’.

This became the accepted definition of arbitration in international law. It was repeated

in article 37 of the 1907 Hague Conventions and adopted by the Permanent Court of

International Justice in the case concerning the Interpretation of Article 3, paragraph

2, of the Treaty of Lausanne and by the International Court.

International arbitration was held to be the most effective and equitable manner of

dispute settlement, where diplomacy had failed. An agreement to arbitrate under

article 18 implied the legal obligation to accept the terms of the award. In addition, a

Permanent Court of Arbitration was established. It is not really a court since it is not

composed of a fixed body of judges. It consists of a panel of persons, nominated by

the contracting states (each one nominating a maximum of four), comprising

individuals 'of known competency in questions of international law, of the highest

moral reputation and disposed to accept the duties of an arbitrator'. Where contracting

states wish to go to arbitration, they are entitled to choose the members of the tribunal

from the panel. Thus, it is in essence machinery facilitating the establishment of

arbitral tribunals.

Arbitration tribunals may be composed in different ways. There may be a single

arbitrator or a collegiate body. In the latter case, each party will appoint an equal

number of arbitrators with the chairman or umpire being appointed by either the

parties or the arbitrators already nominated. In many cases, a head of state will be

suggested as a single arbitrator and he will then nominate an expert or experts in the

field of international law or other relevant disciplines to act for him. Under the PCA

system, and in the absence of agreement to the contrary, each party selects two

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arbitrators from the panel, only one of whom may be a national of the state. These

arbitrators then choose an umpire, but if they fail to do so, this task will be left to a

third party, nominated by agreement. If this also fails to produce a result, a

complicated process then ensues culminating in the drawing of lots. States are not

obliged to submit a dispute to the procedure of arbitration, in the absence of their

consent." This consent may be expressed in arbitration treaties, in which the

contracting states agree to submit certain kinds of disputes that may arise between

them to arbitration, or in specific provisions of general treaties, which provide for

disputes with regard to the treaty itself to be submitted to arbitration, although the

number of treaties dealing primarily with the peaceful settlement of disputes has

declined since 1945.

The law to be applied in arbitration proceedings is international law,34 but the parties

may agree upon certain principles to be taken into account by the tribunal and specify

this in the compromise. In this case, the tribunal must apply the rules specified.

In the Trail Smelter case, the law to be applied was declared to be US law and

practice with regard to such questions as well as international law.

Agreements sometimes specify that the decisions should be reached in accordance

with 'law and equity' and this means that the general principles of justice common to

legal systems should be taken into account as well as the provisions of international

law.

Arbitration as a method of settling disputes combines elements of both diplomatic and

judicial procedures. It depends for its success on a certain amount of goodwill

between the parties in drawing up the compromise and constituting the tribunal, as

well as actually enforcing the award subsequently made. A large part depends upon

negotiating processes. On the other hand, arbitration is an adjudicative technique in

that the award is final and binding and the arbitrators are required to base their

decision on law.

In recent years, there has been a rise in the number of inter-state arbitrations. The

Rann of Kutch case, the Anglo-French Continental Shelf case, the Beagle Channel

case and the Taba case were all the subject of arbitral awards, usually successfully.

More recent examples include the Eritrea/Yemen arbitration" and the Eritrea/Ethiopia

case.

129


Negotiation as a Means to Settle International Disputes

Of all the procedures used to resolve differences, the simplest and most utilised form

is understandably negotiation.

It consists basically of discussions between the interested parties with a view to

reconciling divergent opinions, or at least understanding the different positions

maintained.

It does not involve any third party, at least at that stage, and so differs from the other

forms of dispute management. In addition to being an extremely active method of

settlement itself, negotiation is normally the precursor to other settlement procedures

as the parties decide amongst themselves how best to resolve their differences.

It is eminently suited to the clarification, if not always resolution, of complicated

disagreements. It is by mutual discussions that the essence of the differences will be

revealed and the opposing contentions elucidated.

Negotiations are the most satisfactory means to resolve disputes since the parties are

so directly engaged.

Negotiations, of course, do not always succeed, since they do depend on a certain

degree of mutual goodwill, flexibility and sensitivity. Hostile public opinion in one

state may prevent the concession of certain points and mutual distrust may fatally

complicate the process, while opposing political attitudes may be such as to preclude

any acceptable negotiated agreement.

In certain circumstances there may exist a duty to enter into negotiations arising out of

particular bilateral or multilateral agreement, while some treaties may predicate resort

to third-party mechanisms upon the failure of negotiation: Antarctic Treaty, Moon

Treaty, Treaty on Non-Proliferation of Nuclear Weapons.

The Court held in the North Sea Continental Shelf cases that:

o “the parties are under an obligation to enter into negotiations with a view to

arriving at an agreement, and not merely to go through a formal process of

negotiation as a sort of prior condition...they are under an obligation so to

conduct themselves that the negotiations are meaningful, which will not be the

case when either of them insists upon its own position without contemplating

any modification of it.”

130


The Court in the German External Debts case emphasised that although an agreement

to negotiate did not necessarily imply an obligation to reach an agreement, 'it does

imply that serious efforts towards that end will be made'.

In the Lac Lannoux arbitration, it was stated that 'consultations and negotiations

between the two states must be genuine, must comply with the rules of good faith and

must not be mere formalities'. Examples of infringement of the rules of good faith

were held to include the unjustified breaking off of conversations, unusual delays and

systematic refusal to give consideration to proposals or adverse interest.

The point was also emphasised by the International Court in the Legality of the Threat

or Use of Nuclear Weapons, where it noted the reference in article VI of the Treaty on

the Non-Proliferation of Nuclear Weapons to 'pursue negotiations in good faith on

effective measures relating to cessation of the nuclear arms race at an early date and

to nuclear disarmament, and on a treaty on general and complete disarmament under

strict and effective international control'. The Court then declared that:

o “The legal import of that obligation goes beyond that of a mere obligation of

conduct: the obligation involved here is an obligation to achieve a precise

result - nuclear disarmament in all it aspects - by adopting a particular

course of conduct, namely, the pursuit of negotiations on the matter in good

faith.''

Where disputes are by their continuance likely to endanger the maintenance of international

peace and security, article 33 of the UN Charter provides that the parties to such disputes

shall first of all seek a solution by negotiation, inquiry or mediation, and then resort, if the

efforts have not borne fruit, to more complex forms of resolution

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