Introduction

International law, also called public international law or law of nations, is the legal body
describing rules, norms, and standards that apply between sovereign state and other entities
which are legally recognized as international actors.

Each country in the world formulates laws to govern the society in efficient manner and
ensure peace and security. Similarly, at the international level, when countries come together
at a common platform to formulate law that governs intercourse between them, it is referred
as international law. International law is a body of laws, principles, rules and standards that
govern nations and other participants in international affairs with one another.

In other words, international law is the law of the international community. The term
'International Law' was used by Jeremy Bentham in 1780. The expression Law of Nations is
synonymous with the term international law. It acts as a legal framework at global level to
ensure stable and organized international relation.

Definitions of International Law

1. According to Fenwick:
It is the body of rules accepted by the general community of nations, as defining their
rights and the means of procedure by which those rights may be protected or violation of
them is redressed.
2. According to J.G. Starke:
It is that body of law comprised of greater part of its principles and rules of conduct,
which States feel themselves bound to observe and therefore do commonly observe in
their relations with each other.
3. According to Prof. L Oppenheim:
Law of nations of international law is the name for the body of customary and
conventional rules which are considered legally binding upon civilised states in their
course with each other.
4. According to J.L Brierly:
The law of nations of international law may be defined as the body of rules and principle
of action, which are binding upon civilized states in their relation with one another.
5. According to Philip C Jessup:
International law or the law of nations must be defined as law applicable to States in their
mutual relations with other States. He adds further that international law may also be
applicable to certain inter-relationships of individuals themselves, where such inter-
relationship involves matter of international concern.
6. According to Torsten Gihl:
The term international law means the body of rules of law, which apply within the
international community or society of states.
7. According to Gray:
International law or the law of nations is the name of a body of rules which according to
their usual definition regulate the conduct of States in their intercourse with each other.
8. According to Hall:
International law consists of certain rules of conduct which modern civilized States regard
as binding on them in their relation with one another with a force comparable in nature
and degrees to that binding the conscientious person to obey the laws of his country and
which they regard as being enforceable by appropriate means in case of infringement.

Objectives of International Law

1. To ensure peace and security in the world.

2. To resolve any dispute in peaceful manner.
3. To co-operate with each other, to strive for the better and brighter future of human kind.
4. Disarmament of weapons of mass destruction especially nuclear and building trust
between nations through confidence building measures.
5. Taking collaborative effort to solve global problems such as terrorism, climate change,
refugee crisis etc.
6. International law emphasizes on implementation of international treaties and conventions
in right manner.

Nature of International Law

International law is quite dynamic in nature as it has multiple stakeholders. So, it's not easy to
outline nature of international law. Jurists have different opinions regarding nature of
international law. Its nature can be understood through following given points:
1. It is not easy to formulate principles, rules and regulations, methods, etc., of international
law.
2. Principle of reciprocity act is a basis of international law.
3. The framework of interaction between nations is also established by the international law.
4. Municipal law of nations implements the provisions of international law in their
respective jurisdiction.
5. Collective action is taken by countries when any country violates the principles of
international law.
6. International law provides for peaceful resolution of disputes and discourage military or
economic sanction route.
7. There are different sources of international-law such as custom, treaty, charters etc.
8. States are allowed to implement international law in their territory according to their
wishes.

Evolution of International Law

International law is not just a result of few treaties of 19th and 20th centuries but its origin
can be traced back to ancient times. The concept of governance and international relations
were developed by the Greeks, which laid down the foundation of the international legal
system.
The concept 'Jus Gentium' (Law of Nation) was evolved during the reign of the Roman
empire, which defined and governed the relation between foreigners and Roman citizens
and the status of foreigners living in Rome. Later, development of concept of Natural Law
emphasized that certain rights are inherent to all humans, which helped in widening the scope
of international law.
Present day modern international law was evolved during 15th century and was mainly
developed in European continent. Renaissance in Europe has played significant role in the
development of international law. Hugo Grotius is considered as most eminent personality in
the field of international law. He had articulated international order that consist of a 'Society
of States' which should be governed by the law's, mutual agreement and custom rather than
by force and or warfare.
During 19th and 20th centuries, international law got its formal shape. Various pacts and
treaties were signed in this period which finally concluded in the formation of United Nation.
Various treaties, declarations, conferences are as follows:

Congress of Vienna (1815)

Congress of Vienna is known as watershed moment in the evolution of international law. It is
also referred as Vienna Congress, held in 1815. It was chaired by Klemen's Von Metternich,
an Austrian statesman. It was attended by ambassador of European states with the objective
to provide a long-term peace plan for Europe. Solving critical issues aroused from the
French Revolutionary War and the Napoleonic War were main agenda of the Congress. It
laid down the international rules such as rules with regard to International River,
categorization of diplomatic agent etc.

Paris Declaration (1856)

It is another important landmark in evolution of international law. In this declaration, 55
nations agreed on the diplomatic policy related with the Maritime Law. This declaration also
laid down the rules relating with the naval warfare. The main principle that evolved in it was
to prohibit attack on undefended people and before sinking enemy ship, attempt should be
made to save the life of the crew. It was codified by France and Great Britain.

Geneva Convention (1864)

It formulated rules and regulations for the protection of victims of armed conflict and
people involved in providing care to them. The first Geneva Convention treaty was adopted
in 1864, which was reframed and amended in 1906, 1929 and in 1949. Overall, there are four
treaties of Geneva Convention. At present, the International Committee of Red Cross mainly
sees the implementation of Geneva Convention. Killing of wounded soldiers were prohibited
in Geneva Convention treaty.

Hague Convention of 1899 and 1907

Two conventions were held at The Hague in the Netherlands with an objective to sort out
international law for peaceful settlement of international dispute. This convention was
important from the view point of laying international law during conflict. Duties and rights of
national states, prohibiting bombardment on undefended people, limiting armament etc. were
important outcomes of this convention. This convention also led to establishment of
Permanent Court of Arbitration. The third conference was scheduled to be held in 1914, but
due to outbreak of First World War, third conference could not be held.

League of Nations (1919)

League of Nations is also referred as Child of First World War. When the leaders of
Western nations met at the Paris Peace Conference, they decided to form an international
organization which can solve international disputes and should not allow repeat of incidents
like World War. It was established under the Treaty of Versailles. The main provision of the
covenant of League of Nations was to settle disputes through peaceful methods such as
arbitration, negotiation etc., before resorting to disputes. If any member resorted to war,
going against the principle of covenant of League of Nations, then the member will be
considered as an enemy of whole League of Nations. Permanent court of international justice
was established by the League of Nations. Due to various reasons, league was not able to
perform its cardinal objective which led to the outbreak of Second World War, therefore new
organization, the United Nations came into existence.

Locarno Treaties (1925)

Locarno treaties were result of negotiation between France, Germany, Britain and Italy
held in Switzerland in 1925. There was total seven agreements under this treaty. The nations
(above mentioned) undertook the obligation not to use force while settling border dispute
and peaceful mechanism will be followed. Another objective was to normalize relations with
defeated Germany (the Weimar Republic). Later in the year 1936, Germany refused to follow
the provisions of the treaty.

Kellogg Briand Pact (1928)

It is also known by the name 'Pact of Paris', the General Treaty for Renunciation of War as
an Instrument of National Policy. It was devised with the objective to control outbreak of
war. This treaty obliged nations to shun it policy to use war as an instrument for settlement of
international disputes.

The United Nations (1945)

The failure of League of Nations led to the Second World War. At the end of Second World
War, a new organization came into existence i.e. the United Nations, with the aim to protect
world from future war. It was established on 24th October, 1945, when heads of 50
governments met at San Francisco for a conference and drafted UN Charter. At present, this
organization is nodal point of international law. It aims at maintaining international peace and
security, ensuring friendly relation between nations and achieving international cooperation.

Dimensions of International Law

Public and Private International Law

International law is divided into two types i.e. Public and Private international law. Jurists
have varied opinion on categorization of international law.
When international law governs relationship and intercourse between two States, it is known
as Public international law. It covers the areas like territorial boundary, diplomatic relations,
armed conflict, human rights issues etc. Public international law is implemented according to
the provisions of the treaty and agreement. When a part of international law deals with the
private citizen of different countries or other related issue, it is referred as private
international law.

According to P.E. Corbett:

Private international law is the body of rules for determining question as to selection of
appropriate law, in civil cases which present themselves for decision before the Courts of one
State or country, but which involve a foreign element, i.e. which affects foreign country or
with reference to some foreign system of law.

Major Differences between Private and Public international Law

1. Public international law is more important than private international law.
2. Public international law deals with States and on the other hand, private international
deals with individual.
3. Public international law is similar for all the countries, while private international law
varies from one country to another.
4. Public international law is formulated by international organizations, based on customs
and treaties, while private laws are framed by legislature of respective nation.
5. Implementation of public international law is quite intricate task as compared to the
private international law.

Is International Law a True Law or Not

This is the biggest question till date on the nature of international law, whether it should be
considered as a law or not. There had been controversy over it, many jurists such as Hall,
Lawrence, Frederick Pollock etc. perceive it as a law where as John Austin, Holland, Jeremy
Benthem deny the fact.
Jurists who were against It
Most important name in this regard is of John Austin, he believed that international law is
not a true law. According to him, international law is not a true law, but a code of rules and
conducts of moral force only.
He said that there is no sovereign authority which provides for the enaction of international
law, rather it depends on the will of nation to ratify it. He described international law as
positive international morality consisting of opinions or sentiments current among nations.
Another jurist Holland also denied international law as a true law. He said that international
law is distinct from municipal law as it not supported by the authority of law. According to
him, international law is vanishing point of jurisprudence.
He also states that international law could not be kept in category of law because it lacks
sanction, which on another hand is integral feature of municipal law. Other prominent jurists
who supported this idea were Jeremy Bentham and Jethro Brown.

Jurists Who Supported It

Many jurists supported the fact that international law is law in true sense. Most important
name in this regard is Sir Frederick Pollock, according to him, international law satisfy the
condition required to be a law. It has been properly formulated by competent political
community and recognised by the members on whom it will be implemented.
Hall and Lawrence also supported this view. They said that international law is treated and
enforced like law. According to them, international law is based on custom and precedent
like other municipal law.

Subjects of International Law

International law consists of different subjects. However, jurists have diverse opinion
regarding subject of the international law, as subject in international law is synonymous with
the 'under rule jurisdiction or control'.

States Alone are Subject of International Law

Professor L Oppenheim and Percy E Corbett are main supporters of this theory. As per them,
State and States alone are part of the international law.
According to Professor L Oppenheim, since law of nation is primarily a law between States
and codified by them, thus, only States should be considered as part of international law.
According to Percy E Corbett, States are the only subject of international law and
individuals are only incumbents of rights and duties at international law in so far as they are
object and not subject.

Individuals are Subject of International Law

Professor Kelson is considered as chief profounder of this theory. According to him, In the
international law, duties of States are ultimately the duties of the individual. Hence, there
is no distinction between international and state law. According to the Nuremberg Tribunal,
International law imposes duties and liabilities upon individuals as well as upon states.
Therefore, individuals can be punished for the violation of international law.

States, Individuals and Other Non-State Entities are Subject of International Law-
As per this view, all States, individuals and other non-State entities are subject of
international law. The Permanent Court of International Justice, in Donzing Railway official
case stated that, in any treaty, the intention of the parties is to confer on some individuals
with certain rights, which the international law will recognise and will enforce them.

Relationship between International Law and Municipal Law

Municipal law is commonly known as State law. There are different perspectives regarding
relationship between international law and municipal law. According to some jurists there is
intricate relation between them, while others deny any relationship between them.

There are many theories which have discussed relationship between International law
and Municipal law, which are as follows:

Dualistic Theory (International law is considered as inferior to domestic law)

The chief propounded and supporter of this theory are Triepel and Anzilotti. They view
international law and municipal law different from each other. Both of them hay different
sources and scopes. Dualistic believes that international law does not form part of
domestic law of State. International law is considered as inferior to domestic law. According
to Triepel, the difference between international law and municipal law is in the area of
subject, principles, origin, source, substance of law and subject matter.

Monistic Theory (No distinction between international and municipal law)

Monistic theory was contradictory to the dualistic theory, according to this theory, they are
flip side of same coin and there is no dist7=nction between international and municipal law.
As per monistic supporter, both the laws hav//0e same objective such as ensuring peace and
security, etc. This theory believes that both the laws are interconnected and
interdependent, also individuals are ultimately subject of each other. Followers of this
theory stated that international law is superior than the domestic law.

Transformation Theory
It is another perspective, which says that with time international law undergoes
transformation into municipal law. Hence, international law acts as a source of municipal
law. Through transformation procedure, rules set by international treaties are extended to
individual of state through ratification of treaty and enaction of law. Adoption of Kyoto
protocol, convention on child labour by the nations are some of the examples of
transformation theory.

Delegation Theory
In reaction to transformation theory, delegation theory came into existence. According to this
theory, international law did not directly transform into municipal law, but it is decided by
State on its own when the provisions of a treaty or convention are to be made effective and in
which manner. Legislature of State is final body in formulating international law into
municipal law.

Specific Adoption Theory

This theory laid down the principle of adoption, which is based on the principle that
international law cannot be directly enforced through municipal law. So, execute international
law into country, a country has to adopt it. This adoption principle is based on the
international conventions such as Hague Convention 1970, Vienna Convention etc., which
provided that law enacted by international organization or Convention may be adopt by
the nations to include in their municipal law. In the case of Jolly George v. Bank of
Cochin 1980, the court held that any agreement does not automatically become part of
municipal law, but the positive commitment of state parties inspires their legislative action.

Scope and Content of International Law

Scope:
There is no theory or measures through which we can understand scope of the international
law. Generally, whole world is considered as a jurisdiction of international law. For instance,
there are currently 193 members of the UN, so protocols, rules, conventions, decisions of the
UN will have impact on all 193 nations. All the states whether small or big, developed or
developing etc., are equal in the eyes of international law. International law does not only
cover states but also regulate international organisations, business, non-profit entities and
individuals. According to eminent jurist, state, individual and non-state entities are part of the
international law.

Content
International law consists of following contents:
Laws Governing States at the Time of Peace
During peace time, international law includes obligations and rights on nations and
international organisations to fulfill its objective of equality of States and respecting their
sovereignty. It consists of treaties and customs, whose provisions will be implemented during
peace time. It covers the rights of officials and diplomatic representatives of nations and
organisations. It ensures that every nation should do things without trespassing into
sovereignty of other nation.

Laws Governing at the Time of War

There are specific laws to deal with the contingency situation like war. International law have
onus to avoid war, if still it occurs then there are rules and regulations to solve the dispute or
stop the war as early as possible. The rule book of international law contains provisions
regarding declaration of war, the classification of wars, law and custom of war on land, sea
and air, the after effect of war and how to deal with the problem of war prisoners. At global
level, various conventions and treaties have been enacted, which prohibited use of cruel
tactics such as biological and chemical warfare in the field of war and also prohibited
bombardment of civilian areas during Conflict.

Laws Governing at the Time of Neutrality

It is also very important section under international law. According to principle of neutrality,
the belligerent state has specific duties towards neutral state and similarly neutral state has
some duties toward belligerent states.

Basis of International Law

In universe, everything has some basis, in the same way there are different basis of
international law. There are two main theories which tried to explain the basis of international
law. These are as follows:
Theories as to the Law of Nature
Grotius, Starke, Vattel, Pufendorf etc., were chief exponents of this theory. This theory laid
emphasis on law of nature as a basis of international law. The jurist Grotius had expounded
the concept of the law of nature. According to him, natural law was the 'dictate of right
reason'. According to followers of this theory, law of nature has been derived from the nature
of man. Law of nature is considered as supreme; thus, it is binding on others. Jurists argue
that international law is a part of the law of the nature.

Municipal law incorporates international law because it is part of law of nature. Some jurists
reasoned that law of nature emanates from God or reasons or morals. This theory was hailed
by lot of intellectuals, but there were many inbuilt limitations such as how international law
can be binding on the nations, etc. Different exponents used different meaning to the law of
the nature. This theory is not much realistic in nature.

Positivism
Bynker-Shock is the chief exponent of the positivism. Other supporters of this theory
were Starke, Brierly and Anzilotti. It is based on the principle of law positivism, which means
fact as contrasted with law which ought to be. Positivists believe that law enacted by
competent authority is binding on the subject. According to Starke, international law can in
logic be reduced to a system of rules dependent for their validity on the fact that States have
consented to them.

According to Brierly, the doctrine of positivism teaches that international law is the sum of
rules by which States have consented to be bound and that nothing can be law to which they
have not consented to be bound.

According to Italian Jurist Anzilotti:

the binding force of international law is based on a fundamental principle known as Pacta
Sunt Servanda.
But the positivist theory fails to explain the binding force of customary rules of international
law.
Other Theories Related to its Basis
Beside nature of law and positivism, there are many other theories related with the basis of
international law, which are as follows:
Theory of Consent
One of the most important theories regarding basis of international law is the theory of
consent. This theory heavily emphasizes that consent of a State is important in the
implementation of international law. Consent can be either explicit or implicit. This theory
was also supported by the propounded of positivist theory such as Anzilotti, Triepel,
Oppenheim etc. States observe rules of international law because they have given their
consent for it. Other jurists who criticized this theory were Starke, Brierly, Kelsen, Fenwick
etc.

Auto-Limitation Theory
This theory is quite similar to the theory of consent. Jellinek was main propounded of this
theory. Auto-limitation theory says that international law is binding on State because
States have restricted their power through the process of auto-limitation. This theory was
also supported by positivist. Each state has a free will and its sovereign but by utilizing the
process of auto-limitation, it can allow implementation of international law on it. Thus, we
can say that international law is not binding on nation but through adoption and ratification,
they allow international law in their municipal law.

Theory of Fundamental Rights

This theory is derived from the idea of law of nature. According to this theory, as individual
has fundamental rights, similarly State also possesses certain fundamental rights.
Fundamental right of States includes sovereignty, equality, self-determination, independence
etc. Due to inherent fundamental rights in the State, no institution at global level is over and
above the State.

Pacta Sunt Servanda

'Pacta Sunt Servanda' means if state enters into agreement, then it should follow and
respect it in good faith. Chief exponent of this theory was Italian jurist, Anzilotti. According
to him, 'Pacta Sunt Servanda' is basis of binding force of international law. This principle is
based on the idea of actual practice of law.

Sources of International Law

Sources are like foundation which can be referred to as procedure, method or way through
which international law is created. These resources provide legal framework to the
international law, as virtue of which it is observed by the State.

Important sources of international law are as follows:

Treaties and Conventions
Treaties and conventions at global level are most important sources of international law.
According to Article 2 of the Vienna Convention on the law of treaties, 1969, A treaty is an
agreement whereby two or more States establish or seek to establish relationship between
them governed by international law.

Article 38(1) (A) of the International Court of Justice (CJ), uses the term international
convention and emphasises upon treaties as a source of contractual obligation, but also
acknowledges the possibility of a State expressly accepting the obligation of a treaty.
Treaty and convention are based on the theory of consent and auto-limitation. Protocols are
also included under treaty and convention. When a country signs and ratifies treaty and
convention, then it becomes obliged to its provision. The provision of treaty can be both
binding and voluntary in nature. Geneva, Child Labour Conventions are some of the
examples of international treaty and convention.

Treaties and conventions ensure help in creation of rules of law at global level. Treaties can
be of two types
viz. law-making treaty and treaty contract. Former refers to making various rules and
regulations, similarly what legislation does for the State. The UN Charter is perfect example
of law-making treaty. Later refers to contract between two or more nations.

International Usage and Customs

Many times, term custom and usage are used synonymously. However, they are different as
usage is primary stage of a custom. In international relations, when any State shows some
attitude and behaviour, which is repeated in certain circumstances, it is referred as usage.
When this attitude and behaviour is recognised by the nation, it is referred as custom. These
are considered as the oldest and original source of international law as well as of law in
general. According to Starke, usage represents the twilight stage of custom, custom begins
where usage ends.

Article 38(b) of the Statute of International Court o Justice recognises 'international custom,
as evidence of general practice accepted as law', as one of the sources of international law.
During 19th and 20th centuries, most of customary sources of international law have been
codified into treaties and conventions, moreover many of them are gradually displaced by the
treaty. However, still customary law are playing significant role in the international law.

Charter of the United Nation

The UN Charter is soul of functioning of the world's biggest organisation. All the member
states are obliged towards the provision of charter. At present, it is the important source of
international law enacted by the UN.

General Principle of Law Recognised by Civilised State

It is also an important source of international law. The general principle of law means those
rules or standards, which are repeated over time and are recognised by international
community. According to international organisation, some of the general principles of law are
good faith, responsibility, prescription, res judicata, estoppel, subrogation, etc.

Some landmark judgments which recognised general principle of law are:

In Chorzow Factory (Indemnity) case, judge applied principle of res judicata and also held
that one who violates a rule is liable to make separation.
In Mavrommatis Palestine Concessions case, the court applied the general principle of
subrogation.

Judicial Decision
Judicial decisions of International Court of Justice and Arbitral tribunals have also acted as a
source of international law. Article 59 of the statute of the International Court of Justice
provides that the decision of the court will have no binding force except between parties and
in respect of that particular case. However, decision can establish new precedent and
international organisation and States can enact law following the interpretation of judgment.
In comparison to above listed sources, it is not direct source of international law. It is
important to note that sometimes judicial decision by State may also become source of
intentional law. It can be through two types, one through established precedent and other
through customary law.

Jurist Work as Source

It is generally not considered as important source of international law. However, Article 38(2)
(d) of the International Court of Justice states that the 'teaching of the most highly qualified
publicist of the various nations is also among the subsidiary means for the determination of
the rules of law'.
According to Justice Gray:
Where there is no treaty and no controlling executive or legislative act or judicial decision,
resort must be had to the customs and usages of civilised nations, and as evidence of these, to
the works of jurists and commentators who by years of labor, research and experience have
made themselves peculiarly well-acquainted with the subjects of which they treat. Such
works are resorted to by judicial tribunal, not for the speculations of their authors concerning
what the law ought to be, but for trustworthy evidence of what the law really is.

International Comity
Principle of comity means, when any nation behaves and shows attitude in particular way and
in return other nation also behaves in similar way and show same attitude. Jurists
like Professor Oppenheim have supported it and said that principle of comity, helped in
development of international law. It even acted as a base of mutual relationship between
nation and organisation.

State Paper
State paper includes letter, MOU etc., exchanged between nations. It is the result of
diplomatic relations between the States. In a study by some researchers, it was found that
state paper helped in solution of disputes and acting as a motivational force to create new law
at international level.
Equity and Justice
Equity and justice are the foundations of international law. The purpose for which international laws were
enacted was to ensure equity and justice at global level. In
the Barcelona Traction case, Sir Gerald Fitzmaurice emphasised the need for a body of rules and principle of
equity in the field of international law.

Decision or Determination of the Organ of International Institution

Decision or determination of the organ of international institution also acts as a source of international law.
Today UN and its organ, through different means, affect the course of international law. Integral organ of the
UN such as the General Assembly have strategic and policy making decisions which are followed by the
member nations. Many inter- governmental organisations also known as specialized organs, are also sources
of international law.

UNIT-II
I. Recognition in International Law: An Overview
A. Definition and significance of recognition: Recognition in international law is a formal
acknowledgment by existing states that an entity, such as a new or existing state or government,
meets specific criteria and is considered a subject of international law.

This acknowledgment confers certain rights and obligations upon the recognized entity, such
as the ability to enter into treaties, participate in international organizations, and enjoy
diplomatic immunities and privileges.

B. Criteria for statehood in international law: The criteria for statehood in international law,
as defined by the Montevideo Convention on the Rights and Duties of States, include a
permanent population, a defined territory, an effective government, and the capacity to enter
into relations with other states.

C. The role of recognition in shaping international relations: Recognition is a key aspect

of international relations, as it determines the legitimacy and status of states and governments
in the global community.

II. Recognition of State in International Law

Essentials of Recognition of a State

• Population;
• Territory;
• Government;
• Sovereignty;
• Control should tend towards permanency.
If these conditions are fulfilled, then the State can be recognized.
Theories of Recognition

A. Declarative vs. Constitutive Theories of Statehood:

Two prominent theories explain how a new state acquires international personality:
• The declarative theory posits that an entity becomes a state when it fulfills the criteria
for statehood, as defined by the Montevideo Convention: a permanent population, a
defined territory, an effective government, and the capacity to enter into relations with
other states. According to this theory, recognition by other states is merely an
acknowledgment of an already existing fact, not a precondition for statehood.
 • The constitutive theory, on the other hand, asserts that an entity becomes a state only
when it is recognized by other states. Recognition is a crucial step in the creation of a
state, as it confers legitimacy and acceptance within the international community.
In practice, the distinction between these theories is often blurred, as both the fulfillment of
statehood criteria and recognition by other states play a role in establishing an entity's status in
international law.

Examples of state recognition include Bangladesh, which declared independence from

Pakistan in 1971 and was eventually recognized by the international community, and Kosovo,
which unilaterally declared independence from Serbia in 2008 but remains only partially
recognized by UN member states.

B. Consequences of state recognition:

Recognition has various implications for the recognized entity, including its ability to enter
into treaties, participate in international organizations, and access international courts.
State recognition has significant consequences in international law, as it establishes the
recognized entity's status as a subject of international law and grants it certain rights and
obligations. Some of the consequences include:
1. Treaty-making capacity: Recognized states gain the ability to enter into treaties and
international agreements with other states, thus participating in the global legal framework.
2. Diplomatic relations: Upon recognition, states can establish formal diplomatic relations
with other countries, exchange ambassadors, and enjoy diplomatic privileges and
immunities.
3. Membership in international organizations: Recognized states can become members
of international organizations such as the United Nations, World Bank, and World Trade
Organization, providing them with a platform for multilateral cooperation and decision-
making.
4. Access to international courts: Recognition allows states to access international judicial
and arbitral bodies, such as the International Court of Justice and the International Criminal
Court, to settle disputes and seek legal remedies.
Jurist opinions on the consequences of state recognition include the views of Hersch
Lauterpacht, who emphasized the importance of recognition in establishing an entity's status
in international law.

In the case of Kosovo, the International Court of Justice's advisory opinion in 2010
declared that Kosovo's declaration of independence did not violate international law, despite
its partial recognition by UN member states. This opinion highlighted the significance of
recognition in determining the legal status and consequences for a new state.

III. Types of Recognition in International Law

Recognition in international law can take several forms, depending on the degree of formality,
the legal implications, and the process by which it is granted. Some types of recognition
include:
 A. De facto vs. De jure Recognition:

De facto and de jure recognition are two different forms of acknowledgment by one state of
another state or government in the context of international law. They differ in the degree of
formality and the legal implications they carry. Here's a breakdown of their differences:

De facto recognition:
1. Informal acknowledgment: De facto recognition refers to the informal acceptance of
a state or government by another state. This recognition does not involve a formal
declaration or legal endorsement.
2. Practical relations: De facto recognition usually occurs when a state engages in
practical relations with the entity in question, such as trade or diplomatic
communication, treating it as a legitimate state or government without an official
statement.
3. Provisional nature: De facto recognition often serves as a provisional
acknowledgment before granting de jure recognition. It allows states to establish
working relationships with the entity while reserving the right to withhold full, formal
recognition.
4. Limited legal implications: De facto recognition has limited legal implications
compared to de jure recognition. While it allows for some interactions between states,
it does not grant the same level of rights and privileges as de jure recognition, such as
diplomatic immunities and access to international courts.

De jure recognition:
1. Formal acknowledgment: De jure recognition is a formal, legal acknowledgment of a
state or government by another state. This recognition is usually expressed through
diplomatic statements, official communications, or resolutions.
2. Legal endorsement: De jure recognition implies a legal endorsement of the entity in
question, confirming its legitimacy and status as a subject of international law.
3. Permanent nature: Unlike de facto recognition, de jure recognition is generally
considered permanent, meaning that the recognizing state has fully accepted the entity as a
legitimate state or government with no reservations.
4. Full legal implications: De jure recognition carries significant legal implications for the
recognized entity. It allows for the establishment of formal diplomatic relations,
participation in international organizations, accession to international treaties, and access
to international courts.
In summary, de facto recognition is an informal and provisional acknowledgment of a state or
government that allows for practical relations but has limited legal implications. In contrast, de
jure recognition is a formal and permanent acknowledgment that carries significant legal
implications, fully accepting the entity as a subject of international law.

Difference between De Facto and De Jure Recognition

De Facto Recognition De jure Recognition

De Facto recognition is temporary and factual

De Jure recognition is a permanent and legal recognition.
recognition.

De Jure recognition is granted to a State when all the

De Facto recognition is granted to a State when essentials are fulfilled along with the permanent control of
it fulfills the essential conditions of State. that essentials.

De Facto recognition is the primary step to grant De Jure recognition can directly be granted without De Facto
De Jure recognition. recognition.

De Facto recognition can easily be revoked. De Jure recognition can never be revoked.

The States having De Facto recognition cannot The States having De Jure recognition can enjoy diplomatic
enjoy diplomatic immunities. immunities.

The States having De Facto recognition have

The States having De Jure recognition have absolute rights
only few rights and obligations against other
and obligations against other States.
States.

B. Unilateral vs. Collective Recognition:

Unilateral and collective recognition represent two approaches to acknowledging the
legitimacy of new states or governments in international law.

• Unilateral recognition: it occurs when individual states independently decide to

recognize a new state or government. Each state evaluates the situation based on its own
interests, criteria, and foreign policy objectives. Unilateral recognition

• can lead to a diverse range of international responses, as seen in the case of Taiwan, where
some countries recognize Taiwan as a sovereign state, while others adhere to the "One
China" policy and recognize the People's Republic of China as the sole legitimate
government of China.
• Collective recognition: It involves multiple states coordinating their recognition efforts,
often through international organizations or multilateral agreements. Collective recognition
ensures a unified international response, strengthening the legitimacy of the recognized
entity. An example of collective recognition is the European Union's (EU) coordinated
approach to recognizing the independence of Montenegro in 2006, where EU member
states agreed on a common position and jointly recognized Montenegro as an independent
state.
In summary, unilateral and collective recognition both play a role in shaping the international
community's response to new states or governments, with collective recognition offering a
more unified approach that can contribute to global stability and cooperation.

C. Explicit vs. Implicit Recognition:

Explicit and implicit recognition are two ways in which states acknowledge the legitimacy of
new states or governments in international law.

• Explicit recognition refers to a clear and formal expression of recognition by a state,

often through diplomatic statements, official communications, or the exchange of
ambassadors. This type of recognition leaves no ambiguity regarding the recognizing state's
position on the legitimacy of the new state or government. For instance, when South Sudan
gained independence in 2011, many countries explicitly recognized its statehood through
official statements or resolutions.
• Implicit recognition, on the other hand, occurs when a state's actions suggest recognition
without an explicit declaration. Such actions may include signing treaties, engaging in
trade, or establishing diplomatic relations with the new entity. While implicit recognition
may not provide the same level of certainty as explicit recognition, it can still carry
significant legal and political implications. In the case of Israel, some states have not
explicitly recognized it but have engaged in various forms of cooperation, which can be
interpreted as a form of implicit recognition.

Jurist opinions on explicit and implicit recognition often emphasize the importance of clarity
and certainty in international relations. Ian Brownlie, a renowned international law scholar,
argues that explicit recognition is more effective in confirming an entity's status in international
law, as it leaves no room for ambiguity.

Explicit recognition provides a clear and certain stance, while implicit recognition offers a
more nuanced approach, allowing states to navigate complex diplomatic situations.

D. Conditional vs. Unconditional Recognition:

Recognition can be granted unconditionally, without any stipulations, or conditionally, with
specific requirements that must be met by the recognized entity, such as upholding human
rights or implementing democratic reforms.

• Conditional recognition is granted when a state imposes certain conditions or

stipulations that the new state or government must fulfill before being recognized. These
conditions may include implementing democratic reforms, respecting human rights, or
adhering to international law. An example of conditional recognition is the European
Union's (EU) recognition of the Federal Republic of Yugoslavia (later Serbia and
Montenegro) in 2000, which was linked to the country's commitment to cooperate with the
International Criminal Tribunal for the former Yugoslavia and implement democratic
reforms.
• Unconditional recognition, on the other hand, is granted without any specific
requirements or conditions. It is based on the recognizing state's belief that the new state or
government meets the criteria for statehood or legitimacy. For instance, many countries
 recognized the independence of the Baltic States (Estonia, Latvia, and Lithuania) from the
Soviet Union in 1991 without imposing any conditions.

Jurist opinions on conditional and unconditional recognition vary. Some, like Hersch
Lauterpacht, emphasize the importance of unconditional recognition to promote stability and
avoid interference in the domestic affairs of other states. Others, such as Thomas Franck, argue
that conditional recognition can be a useful tool for encouraging adherence to international
norms and promoting democratic values.

In summary, conditional and unconditional recognition are different approaches to recognizing

new states or governments, reflecting the recognizing state's assessment of the entity's
legitimacy and its commitment to international norms and principles.

IV. Recognition of State and Government in International Law

A. Recognition of state

It implies acceptance of its territorial boundaries and sovereignty, while recognizing a new
government means accepting its authority to represent the state in international relations.
Recognizing a new state means acknowledging its sovereignty and territorial integrity. This
usually happens when a new state emerges through independence, secession, or dissolution of
a former state. Two notable cases are:

1. Bangladesh (1971): Bangladesh declared independence from Pakistan in 1971. While India
immediately recognized the new state, many countries, including the United States and
China, delayed their recognition until the end of the Bangladesh Liberation War. The
international community eventually recognized Bangladesh, and it became a member of
the United Nations in 1974.
2. Kosovo (2008): Kosovo unilaterally declared independence from Serbia in 2008. Its
statehood remains contentious, as some countries recognize it, while others, including
Serbia, Russia, and China, do not. As of September 2021, 97 out of 193 UN member states
had recognized Kosovo.

B. Recognition of Governments
Recognizing a new government entail accepting its authority to represent the state in
international relations. This can occur when a government changes through elections,
revolutions, or coups. Two illustrative cases are:
1. Iran (1979): After the Islamic Revolution, the government of Iran changed from a
monarchy to an Islamic republic. Many states recognized the new government, accepting
its authority to represent Iran in international affairs.
2. Venezuela (2019): The political crisis in Venezuela led to competing claims of leadership
between President Nicolás Maduro and opposition leader Juan Guaidó. Some countries,
including the United States and several European and Latin American nations, recognized
Guaidó as the interim president, while others, such as Russia and China, continued to
support Maduro's government.

C. Effectiveness Theory v Legitimacy Theory

Jurist opinions on the criteria for recognizing governments differ.
• effectiveness theory- Some argue that recognition should be based on the
effectiveness of their control, regardless of the government's legitimacy or
the means by which it gained power.
• legitimacy theory-Others contend that recognition should be based on the
government's adherence to principles of democracy and human rights.

Withdrawal of Recognition

Withdrawal of De Facto Recognition

• Under International Law, when a State having De Facto recognition but fails to
obtain or fulfillthe essential conditions then the recognition can be withdrawn.
• The recognition can be withdrawn through declaration or through
communicating with the authorities of the recognised State. It can also be
withdrawn by issuing a public Statement.

Withdrawal of De Jure Recognition

• Withdrawal of De Jure recognition is a debatable topic under International

Law. Withdrawal ofthis recognition comes under as an exception.
• This recognition can be withdrawn when a State loses the essentials elements
or othercircumstances.

V. Conclusion

Understanding the concept of recognition in international law, the different

types of recognition, and the distinction between recognizing states and
governments is vital for policymakers, practitioners, and students of
international relations.
By acknowledging the legitimacy of a new state or government, existing states
shape the international community and influence the rights and obligations of
the recognized entities.
The recognition of states and governments has significant implications for
international relations, including the ability to enter into treaties, participate in
international organizations, and access international courts.
Various types of recognition, such as de facto and de jure recognition, offer
different degrees of formality and legal implications, reflecting the
complexities of international law anddiplomacy.
Jurist opinions on recognizing governments highlight the importance of
striking a balance between effectiveness and legitimacy in the recognition
process.
By considering these factors, states can make informed decisions on
recognizing new states and governments, contributing to the stability and
development of the international community.
 Jurisdiction in International Law
Jurisdiction is a practical authority given to a legal body to deal with legal matters by
implications. In Public International Law, the concept of jurisdiction has a strong link with
sovereignty. Jurisdiction allows the State for sovereign independence which they pass on with
the global system of equal States stating the laws related to persons or activities in which they
have a legal interest.

ľeííitoíial Juíisdiction of the States

It is derived from State sovereignty and constitutes several features. It is the authority of the
State over persons, property and events which are primarily within its territories.The State
Authority has the power to prescribe, enforce and adjudicate the Rules of Law.

The territorial jurisdiction of the State extends over to its with:

1. land,
2. national airspace,
3. internal water,
4. territorial sea,
5. national aircraft,
6. national vessel,
It does not only encompass the crime committed on its territory but also the crimes that have
effects within its territory. In such a case, a concurrent jurisdiction occurs.

Case law

UK vs. Noíway (Noíth Atlantic Fisheíies Case)

In this case, the UK requested the International Court of Justice (ICJ) to determine how far
Norway’s territorial claim extended to sea and to provide some compensation because
Norway interfered in the fishing vessel of the UK and also claimed that Norway’s claim to
such extent was against InternationalLaw.

The Court held that Norway’s claim to the waters was consistent with the
International law regarding the part of the sea space.
 Cíiminal Juíisdiction
Criminal jurisdiction is where the powers of the Court are described in dealing with a case
where a person is accused of an offence. Criminal Jurisdiction is used in many laws like
Constitutional Law and Public International Law.

The three distinct situations where only the accused person can file a suit are:

1. To control the relation between States, or between one State andanother;

2. To control the relationship between the Federal Courts and DomesticCourts;
3. Only where he has committed the offence and not in any other State.Also, the law of
that State should be a codified law.

Case Law

SS Lotus Case (Fíance vs. ľuíkey)

In this case, there was a declaration by Turkey over the French citizen who was the first
officer of the ship that collided with a Turkish ship on the High Sea. It was challenged by
France as a violation of International law.

The Court stated that Turkey has the authority to arrest the French officer under the Treaty of
Lausanne. It also stated that if someone challenges the jurisdiction of a Sovereign State, then
the burden of proof will lie on the plaintiff.

International law is a system of freedom- countries can act in any manner which is not
expressly prohibited. This case is reviewed as a high mark of positivism; that the State must
keep control over sovereignty.

The Court also stated that France and Turkey had concurrent jurisdiction over cases arising
abroad on a French flag vessel on the high seas. Many treaties have overruled these and said
that only the flag State has jurisdiction.

ľypes of Cíiminal Juíisdiction

ľeííitoíial Juíisdiction
This includes the geographical boundary of a court’s jurisdiction. We can take an example
where the Municipal Courts do not have jurisdiction over the crimes that occur outside the
city limits. Let us understand this with a case law.

Mubaíak Ali Ahmad vs. the State of Bombay

In this case, Mubarak Ali with a dishonest intention made a false representation to the
complainant in Bombay saying that he has a ready stock of rice so that the applicant should
send the receipt of money to the complainant who was anxious to import rice urgently and to
receive the amount on the belief of such representations. It was contended on the grounds that
the Pakistani national, during the period of the commission of the offence has not stepped in
India and he was in Karachi, so he cannot be tried in the Indian Courts nor he can be held
punishable under the Indian Penal Code. In the extradition proceeding the trial which is
pending in a court can’t be tried for the second time. Hence the conviction was unsustainable.

The Court held that all the ingredients constituting the offence of cheating under Section 420
of the Indian Penal Code have been done in Bombay, even though the offence is committed
there and though the applicant was not present in India during the commission of the offence,
his conviction is valid under Indian Penal Code.

As the appellant surrendered to the Indian Authorities under the Fugitive Offenders Act,
1881. There is no such provision in this Act preventing arrest in India for trial of a fresh
offence. His conviction was valid. The appellant who was a Pakistani national was convicted
for cheating in business under Section420 of the Indian Penal Code.

Diíectoí of Public Píosecution vs. DOOľ

In this case, the defendant was charged for unlawful acts which are for the import of
dangerous drugs into the UK. Defendants counsel said that they shouldn’t be tried in England
because the offence was committed abroad.

The Court held that the respondents were aliens which had a secret plan to import Cannabis
in the U.K.

The House of Lords stated that English Courts have jurisdiction over the offences committed
in England.
Lord Wilberforce, in this case, stated that it constitutes international elements- that the suspect
were aliens and an unlawful act is done abroad.

Hence, there is no question that if there is any breach in the rule of the law then they will
be prosecuted in the country where the crime has beencommitted.

Nationality Juíisdiction

This principle permits a country to exercise its criminal jurisdiction over the nationals
accused of criminal offences in other States. In the UK it is generally limited to treason, murder
and bigamy committed by British nationals abroad. Hence common Law countries never
protested against the extensive use of the nationality principle to decide jurisdiction in criminal
matters by other States.

The two types of Nationality Jurisdiction are:

Active Nationality

• This principle is for the protection of interest of the State from abroad.
• Strict application on territory could be harmful to the peacefulexistence of
international society.
• The State has its fundamental right to apply its laws to prosecuteillegal conduct.

Passive Nationality

• Treaty-based passive nationality is more effective than Statute basedpassive nationality.

• Jurisdiction can be exercised by the State where the offence tookplace.
• This has been opposed by common law States but due to thetransnational crimes, it
gets approved.

Univeísality Juíisdiction

The Universality principle implies that a State can claim jurisdiction over certain crimes
committed by any person from anywhere in the world, without any relation to territory,
nationality or special State interest.
Before the Second World War, the Universal Jurisdiction was considered as similar to the
International Law by the common law countries, except for the acts which were regarded as
crimes in all countries and crimes against the international community as a whole such as
piracy and slave trade. After the Second World War, Universal jurisdiction has been
universally identified over certain acts considered as international crimes (war crimes, a
crime against humanity, genocide).

International crimes committed against the international community are punishable under
International Law. Under the universality principle, each and every State has jurisdiction over
the international crimes that are committed by people.

The Schooner Exchange vs. McFaddon

In this case, There were two Americans who laid down their claims of ownership and
entitlements to the Schooner Exchange.

The Court held that the national ships during the war are free from any obligation imposed
due to the friendly relations with another State. A nation’s jurisdiction within its sovereign
territory is exclusive and perfect.

Píotective Píinciple

It is also a type of criminal jurisdiction, but we will deal with this principle separately.

The protective principle identifies that a sovereign State can adopt a statute that criminalises
an act or any conduct which occurs outside the borders and where that conduct affects the
sovereign State. Under this principle, a nation can adopt laws related to crimes which obstruct
the functions of government or pressurize its security.

Aíticle 51 of the UN Chaíteí

Article 51 provides the countries to engage in self-defence and against an armed attack. A
case relating to Self-Defense is:

Nicaíagua vs. USA

In this case, In 1979, when a pro soviet government called the Sandini States came to power in
Nicaragua, the US authorities were alarmed, as this was theheight of the cold war.
In 1981, the Reagan administration decided to support the rebel forces in Nicaragua called
Somosistas, who was a USA citizen.

The Central Intelligence Agency ran extensive illegal and secret operations targeting the
Nicaraguan army and air forces, supplied arms, ammunition, money and frequently
kidnapped Nicaragua citizens.

Nicaragua citizens brought a case against the USA for violating the Treaty of the UN Charter.

The Court held that the US contested that ICJ did not have jurisdiction to hear this case but ICJ
nevertheless proceeded with the case because of the 1955 treaty of friendship between
Nicaragua and the USA.

The ICJ found out that the USA had knowingly and intentionally violated the provisions of
the UN Charter, general rules of International Law and had clearly violated the territorial
sovereignty of Nicaragua.

In 1992, because of tremendous pressure Nicaragua took back the complaint and unofficially
apologized to the US Government.

Abdul Kadeí Mahomed Jhaveíi vs. Union of India

In this case, the petitioner was a foreign national and a citizen of the Republic of South Africa.
The passport issued by the Republic of South Africa on the basis of which he came to India
and in the meantime passport expired and again he asked the Republic of South Africa for the
issue of a new passport which was still valid.

The respondent who is the authority, initiated the legal proceedings against him for the breach
of the provisions of the Foreign Exchange Regulations Act, that he is not a citizen of India but
a resident of India.

He carries on his business activity in India. But had done without the permission of the
Reserve Bank. And it was contended that the petitioner should be penalised for the breach of
the provision. Due to the pending proceedings, the passport has been seized by the
respondent. The petitioner contended that the seizure was null and void and without the
permission of any jurisdiction. So, the respondent should be directed to return the passport.

The commission of inquiry headed by Justice Shah stated that the period for which the
passport was impounded cannot be said to be definite and certain and it may extend for an
indefinite time. This would clearly make the validity of an order unreasonable and the
validity of the passport of the petitioner is confirmed by the Central Government. The
duration of the validation will not
exceed more than a period of six months from the date of the decision that
may be taken on the petitioner’s representation.

Cíoss Ïíontieí Juíisdiction

In this, the Court may recognize jurisdiction over any conduct that applies outside its
jurisdiction.

While taking any legal action of disputes between multiple parties and those other parties
who will be examined, similarly in various jurisdictions in which proceedings to resolve the
disputes may properly be commenced and the decisions from the outcomes will be made in
such location.

ľokyo Convention, 1963

It is also known as the convention on offences. Tokyo Convention can be applicable for the
offences against the Penal Laws and Acts that risks the safety of the persons or property on
board civilian aircraft while in flight and engaged in international air navigation.

This conference was for the purpose of further consideration, finalization, adoption and
opening for the signature of Rome Draft. Sixty-one States and Five International
Organizations were present at this conference.

Montreal Convention for the Suppression of Unlawful Seizure of aircrafts against the safety
of civil aviation

This convention criminalises the following behaviour:

• If an act is committed on a person who is onboard an aircraft and islikely to endanger

the safety of the aircraft.
• Destroying or damaging such an aircraft in such a way which is likelyto endanger the
safety in flight.
• A device of substance placed or for causing destruction or damage toan aircraft.
• Any information which is known to be false, thereby endangering thesafety of an
aircraft in flight.
•
What aíe the conflicts that aíose in Juíisdiction?

• The jurisdiction of the State is parallel with the jurisdiction of another State. More than two-State can
exercise the jurisdiction against the same person or on the same matter.
• Even the State having territorial jurisdiction cannot claim over the States having custody over the
accused.

What aíe the Immunities fíom Juíisdiction?

Soveíeign Immunity

It refers to the legal rules and principles which determine the condition from which the State can claim the
exemption of sovereign immunity from the jurisdiction of another State. This immunity is a creation of the
customary international law which is derived from the principles of independence and equality of sovereign
States.

Diplomatic Immunity

The rules here are the most accepted and uncontroversial rules of International Law. This helps in the
maintenance and conduct of the relations between the States.

Diplomatic agents enjoy immunity from the criminal jurisdiction of the receiving State.

Consular Immunity

The consular officer is like a diplomatic agent who represents the State who will be receiving State. Not
granted the same degree of immunity from jurisdiction as a diplomatic agent.

However, the individual State plays a leading role in the worldwide organisation in spite of having
multilateral agreements and centralized agreements. There must be friendly relations between the States to
avoid conflicts on the territorial borders. Territorial jurisdiction and State jurisdiction plays an important role
as it is very important to follow all the rules stipulatedin different provisions.

Introduction
Extradition is needed when an individual charged with a crime in one state flees to another.
In this case, the requesting state requests its citizen to be sent back so that he/she can stand
trial for their crimes.

Asylum is when a person, who is afraid of being prosecuted in his home state, runs away to
another state for protection.

Extradition
• Vijay Mallya, the owner of Kingfisher, owes more than Rs 9,000 crore to 17 Indian
banks. Instead of paying this amount, he left India and fled to Britain on 2 March 2016.
 The amount of this fraud is related to the Indian public, so the Indian agencies filed an
appeal for the extradition of Vijay Mallya from the UK.
• After a long legal battle, the UK court has accepted Mallya's appeal for extradition to
India. India's agencies, under the leadership of the State Bank of India, were the litigants
in Mallya's legal process in Britain. So far Britain has not handed Vijay Mallya to India.

What is Extradition?

• Extradition is a process under which a state, under a treaty or ambiguous practice,

surrenders a person to another state (nation) on the other state (nation) who, under the
territory of the requesting state, or so a crime has been committed or a crime has been
punished according to the legal process of that nation and the so-called nation is capable
of prosecuting that criminal.
• Extradition in international system is mainly based on bilateral treaties. A universal rule
has not been formed on this. Since ancient times, states (nations) have always considered
it their right to give shelter to foreigners. Therefore, extradition is governed by the
interrelation of two states (nations). Therefore, there is no universal rule relating to the
practices of international law by which the states are liable for extradition.

The necessary condition for extradition

• Extradition should not be made on political offenders, military crimes, religious

crimes. But there is a difference of opinion among different states in the definition of
political crime.
• In extradition, the "rule of specialty" applies. According to this rule, the extradition
of the offender is for a particular offense, so that country can pursue the same case
against the offender for which he is extradited.
• The "Rule of Double Criminalization" in extradition also applies. According to this
rule, the offense for which extradition takes place must be declared an offense in both
the countries concerned (extraditor and extradition seeker).
• All the conditions and rules written in the extradition treaty are often followed till the
offender is extradited. And extradition requires formal prayer.
 • When a person is accused of committing a crime in a foreign country and the
concerned foreign country seeks his extradition, the accused is not necessarily present
in that foreign country at the time of the crime.

Difference between Expulsion and Extradition

Extradition Expulsion or Deportation

Happens when a country requests for a fugitive to be Happens when an individual violates
returned. immigration laws.

Government is subject to certain rules such as treaties, rule The Government has the unrestricted right to
of speciality and double criminality. They also have the expel. They don’t need to serve a show-cause
right to reject a request of extradition. notice to the foreigner.

In India, extradition is governed by the Extradition Act of In India, expulsion is governed by

1962. the Foreigners Act of 1946.

It was the case of Hans Muller of Nuremberg vs. Superintendent Presidency jail Calcutta
and others (1955) that stated extradition and expulsion are two different processes. The
courts also held that the government has the right to reject a request for extradition. If also
have the right to choose the less cumbrous process of expulsion to remove a foreigner from
the country.

No extradition of a Political Criminal

The trend of no extradition of political criminals started during the French revolution. After
that, other countries followed suit.
No commission or organization has defined what a political crime is. This word is also not
defined under international law. But in our own words, we can say that if a person commits a
crime with political motives, then that crime can be said to be a political crime.
In the case of Re Castioni case (1891), a prisoner was charged with the murder of Luigi
Rossi. The murderer escaped from Switzerland to England. The government of England
rejected Switzerland’s request for extradition. The court held that the accused murdered in
order to cause political disturbance and is thus a crime of political nature. Due to the fact, he
was a political criminal and England was not obliged to extradite him.
 D’attentat clause- The d’attentat or the clause Belge states that murders of heads of
governments or states will not be considered as a political crime and they can be extradited
for such a crime.

Rule of Speciality

The doctrine of speciality is a doctrine under international law. It states that a person who is
extradited to a country to stand trial for certain criminal offences may be tried only for those
offences and not for any other pre-extradition offences.
This principle was restated in the case of U.S. vs Rauscher (1886), which stated that he can
only be tried for offences which have been criminalised by the treaty and/or the offence for
which extradition has been requested for.

Double criminality

Double criminality is a principle that states that a criminal can only be extradited to another
country if the offence he has committed is criminalized by the laws of both the countries
involved. For example, if a murderer has run away from Bangladesh and is hiding in India, he
can be extradited as the laws of both the countries criminalize murder.

Position of the State in International Law

It must be noted that the state has no duty to extradite an individual. But there can be a treaty
between that states that they will extradite any criminals that run away to their country and
vice versa. They can also voluntarily extradite a person without any treaty. States should keep
in mind that during extradition, they should not violate their own municipal laws i.e- the laws
of their own countries and international conventions.
However, countries do not have to give the fugitive back if proper extradition procedure was
not followed.
In the case of Sarvarkar (1911), Mr Vinayak Donador Savarkar was under french navy
custody. He was then extradited to England, but England obtained him through incorrect
extradition procedures. Due to the violation of procedures, the French wanted him back. The
court held that there is no provision under international law that states if extradition
procedures are not followed then the country must return him back.
The state can also not extradite citizens of their own state. So, if a citizen of England comes
to India and commits a crime and then runs off to England then it is very difficult to get the
citizen back. They usually ensure that they will punish the criminal according to their own
laws.
 India
Usually, each country has its own laws regarding the process of extradition. In India, The
Extradition Act of 1962 governs the process of extradition. It was amended in 1993 by Act
66.
Section 2(d) of the Act talks about treaties of extradition and allows foreign states to make
such arrangements with India. These treaties are usually bilateral in nature i.e- they are
between two countries, not more. These treaties embody five principles-

• Extradition of a fugitive will happen for offences set down by the treaty.
• The offence must be criminalized under the laws of both countries, not just one.
• There must be a prima facie case made.
• The country should try the criminal for only the offence he was extradited for.
• He must be tried under a fair trial.
Usually, requests for extradition on behalf of India can only be made by the Ministry of
External Affairs and not anyone in the public.
Countries who have a treaty with India can request for extradition of someone from India. A
non- treaty country must follow the procedures set down by Section 3(4) of the Extradition
Act of 1962.
According to the page of The Ministry of External Affairs, below are the following bars or
restrictions to extradition-

• India is not ‘obliged’ to extradite someone unless there is a treaty.

• India is not ‘obliged’ to extradite someone unless that offence constitutes a crime
under the treaty.
• Extradition may be denied for purely political and military offences.
• The offence must constitute a crime in both India and the country requesting
extradition.
• Extradition may be denied when the procedure set down by Section 3(4) of the
Extradition Act of 1962 is not followed.

Asylum

What is asylum?

Asylum is when a country gives protection to individuals who are being prosecuted by
another sovereign authority. Most of the times, it is their own government. While everyone
has the right to seek asylum, asylum seekers do not have the right to receive it. It must be
noted that asylum deals with refugees (individuals who are being prosecuted by their own
government).
Article 14 of the Universal Declaration of Human Rights

Article 14 of the Universal Declaration of Human Rights recognises the right of

individuals to seek protection from prosecutions of the sovereign authorities. Everyone can
go to another country and seek asylum. This right is also available for fugitives who have
committed political crimes. But this is subjected to the condition that if your crime is against
the principles of the UN, then you do not have the right to asylum. It also must be noted that
one has the right to seek asylum but you do not have the right to receive asylum.

Types of Asylum

Territorial Asylum
Territorial asylum is granted within the territorial boundaries of the country offering asylum.
This is most commonly used for people accused of offences of political nature such as
treason and sedition. It must be noted that murderers of heads of states, criminals accused of
certain terrorist activities and people accused of war crimes are some examples where one
cannot be offered asylum.

Extra-Territorial or Diplomatic Asylum

Extraterritorial asylum refers to asylum granted in embassies, legations, consulates, warships,
and merchant vessels in foreign territory and is thus granted within the territory of the state
from which protection is sought.

Neutral Asylum
This type of asylum is shown by neutral states during times of war. These countries may be
considered asylum places for prisoners of war. It provides asylum to troops of countries who
are a part of the war. This is under the condition that they are subject to internment during the
time. It is important to note that while troops may be allowed

Asylum in India

Different countries have different laws about asylum-seeking. India has laws regarding
immigration and asylum-seeking. The most recent law with asylum seeking that has caused
the most controversy is the Citizen Amendment Act with regards to refugees.
 Organisations like the UNHCR, help individuals register for asylum. People who wish to
apply must come for registration with all of your family members who are present in India.
According to them, the following documents are needed-

• Case numbers of immediate family members who have been registered with
UNHCR (in India or elsewhere),
• Passport/nationality document/identity document,
• Birth certificates/vaccination cards for children,
• Marriage/divorce/death certificates,
• Any other documents you may have.
The candidate will be asked to explain why you left your country and why you cannot go
back on a form. They will be interviewed by a Registration Officer.

Conclusion
we have discussed the difference between extradition and asylum, their processes, the various
rules they are subjected to, and how they are executed in India. These processes play a great
part in international relationships. The topics discussed above are also very essential to
understand international law.

Diplomatic agents

Diplomats are the persons who reside in foreign countries as the representative of the country
by whom they are dispatched. They act as a link between the country who dispatch them and
by whom they are accredited. Therefore, they perform the act of diplomacy, which in
International Law means by which the States maintain or establish mutual relations and carry
out their legal or political transactions based on their foreign policies. Act of diplomacy may
be performed by the head of State, Government, Minister of Foreign Relations or by and by
diplomatic agents.

Law on Diplomatic agents

The practice of sending and receiving diplomatic agents has been followed by states since
ancient times. In ancient times ‘Doots’ were sent from one Rajya to another. However, in
ancient times the practice was not uniform nor were they sent permanently to another Rajya.
The practice of permanently sending diplomatic agents started in the seventeenth century.

By the second half of the seventeenth-century permanent legation became a general

institution and certain rights and duties almost identical in nature were provided to the
diplomats.
 The Congress of Vienna of 1815 for the first time codified customary rules of International
Law on ranks of diplomatic representatives. The institution of diplomacy continued to
develop after 1815 and after the establishment of the United Nations, the task for codifying
the law relating to diplomatic agents was given to the International Law Commission.

The Commission prepared the draft article and submitted them to the General Assembly. The
Assembly convened a conference in 1961 and adopted Vienna Convention on Diplomatic
relations.

Classification of Diplomatic agents

Diplomatic agents accredited to a State differ in class. The Vienna Convention on

diplomatic relations, 1961 under Article 14 divides diplomatic agents into three classes.
They are:

• Ambassadors accredited to head of State.

• Envoys, ministers accredited to the head of State.
• Charges d’ Affairs accredited to Ministers of Foreign Affairs.

Functions of Diplomatic Agents

Functions of diplomatic agents are determined by the rules and regulations of International
Law and municipal law (law of country) of the States. Article 3(1) of the Vienna
Convention of Diplomatic Relations, 1961 lays down various functions of diplomatic
agents which are as follows:

• Representation: Diplomatic agents represent the policies and beliefs of the State by
which they are dispatched to the state where they are accredited. The function of
representation is primarily entrusted to the head of the mission. Oppenheim, in his book,
says that “diplomats are the mouthpiece of the head of his own State and the Foreign
Minister for communication to be made to the State where they are dispatched.
• Protection: Diplomatic agents protect the rights and interests of sending State and also of
nationals, within the limits allowed by the municipal law of respective State. The limit of
diplomats is not prescribed by the International Law but by the municipal law of the
State.
• Negotiation: Negotiation is the most important function which is performed by the
diplomatic agents. Generally, the head of the diplomatic mission negotiates on various
aspects on behalf of the sending State with the State to which they are accredited in order
to maintain a friendly relationship. Diplomatic agents are required to communicate the
outcome of the negotiation to sending State from time to time,
• Observation: Diplomatic agents are required to observe those events and happenings
which take place or which may take place in the State where they are accredited,
especially those which may affect the interests of the State by which they are sent. After
 making observations of the events, they are required to make periodical reports to the
government of the sending State.
• Promotion of Friendly Relations: Diplomats are required to promote friendly relations
between the sending State and the receiving State. They also have the function to develop
the social, cultural and economic relations between the two States.
• Consular Functions: Vienna Convention lays down that diplomatic agents can also
perform consular functions which may be allotted to them from time to time such as
death, birth and marriage registrations of the subjects of home State, issue of
passports etc.

Diplomatic immunities and privileges

International Law confers diplomatic immunity on diplomats from the exercise of

jurisdiction by receiving States. The principles governing diplomatic immunities and
privileges are among the most ancient and universally recognised principles of International
Law.

Basis of Diplomatic immunity and privileges

Different international jurists have divergent views as to the basis for giving immunities to
diplomatic agents. Their views led to the emergence of three important theories which are as
follows:

• Extra-territorial Theory: This theory is also known as the fictional theory. According
to this theory, diplomatic agents are considered not within the territorial jurisdiction of the
State to which they are accredited, but to all times within that of the sending State. Extra-
territorially of diplomatic agents means that though diplomats physically present upon the
soil of the country to which they are accredited but they remain for all purposes on the
soil to which they represent.
• Representational Theory: According to this theory, diplomatic agents are regarded as
personal representatives of the sovereign of the sending State. Therefore, they are given
the same degree of privileges and rights which are given to the head of the sending
State.
• Functional Theory: According to this theory, diplomatic agents are given immunities
because of the nature of their functions. The duties which the diplomats perform are far
from easy. In other words, their actions of duties are of typical or some special nature.
They are allowed immunities from the legal and other limitations of the State to which
they are accredited to effectively perform the tasks they are allotted.

Privileges and immunities of a Diplomat

Vienna Convention on Diplomatic Relations of 1961 lays down the different rights and
privileges which are granted to diplomatic agents. They are as follows:
 • Inviolability of Diplomatic Agents: Diplomatic agents are inviolable is a principle
which is recognized in International Law much before the adoption of the Convention of
1961. Article 29 of the Vienna Convention lays down that “the person of a diplomatic
agent shall be inviolable”. He shall not be liable to any form of arrest or detention, and
the receiving State shall treat him with all due respect and should take all appropriate
measures to prevent an attack on his personal freedom and dignity.

The Government of the receiving State by virtue of Article 29 is under a duty to abstain from
any form of conduct which is injurious to the diplomatic agents and also under a duty to
prevent such injurious conduct if attempted by another.
This does not mean that the immunity given to the diplomats is absolute. The receiving State
has the power to arrest or detain the diplomatic agent in exceptional cases For instance, a
drunken diplomat with a loaded gun in a public place can be arrested or if a diplomatic agent
commits an act of violence which disturb the order and peace of receiving State in such a
manner that it becomes necessary to put him under restraint for the purpose of preventing
similar acts.

Inviolability of Staff of Mission

In addition to the head of mission, immunities are also given to the staff of the mission,
which is defined in Article 1 of the Vienna Convention. Para 2 of Article 37 of Vienna
Convention lays down that members of the administrative and technical staff shall enjoy the
immunities and privileges as mentioned from Article 29 to Article 35 if they are not
nationals or are not permanent residents of the receiving State.

Thus, administrative and technical staff only enjoys

• personal inviolability (Article 29),

• inviolability of residence (Article 30(1)),

• immunity from criminal jurisdiction (Article 31(1)),

• exemption from certain taxes and duties (Article 34)

• and immunity from civil and administrative jurisdiction exists when they are
performing service duties [Article 31(1)].

• Inviolability from being a witness Article 31(2) lays down that “diplomat agent is not
obliged to give evidence as a witness”.

• Immunity from inspection of Personal Baggage: Para 3 of Article 27 of the Vienna

Convention
 • Communication Article 27 of the Vienna Convention lays down that “the freedom of
communication also involves the use of code messages and couriers”.
• Freedom of movement and travel: Article 26

• Right to worship: Under Article 3(1) of Vienna Convention

Key Principles of Diplomatic Immunity Theory of Non-Interference

The principle of non-interference states that the Sovereign state shall not intervene in each
other’s internal affairs.

It is the common principle of contemporary international law that the basis of non-
interference in each other’s internal affairs is the duty of “respect for state’s sovereignty and
territorial integration” which further governs the relations between the states in regards to
their rights and obligations. It is also considered as a general rule of international law in
compliance with the purposes and principles of the UN charter.

Rule of Reciprocity: (Absolute immunity)

Reciprocity in international law can be best described as a creator of a balance between the
interests and actions of the state.

The Reciprocity principle plays a prominent role in a decentralized system of public

international law where there is no overruling legal authority to establish, adjudicate, or to
enforce all International rules. The principle or rule of reciprocity in international relations
suggests creating an environment where the states help and support each other under a
reciprocal relationship for a particular, short, or long-term advantage through the means of
balance in their rights, interest, and duties.

Mighell V. Sultan of Johore Case

Facts of the case:

➢ The sovereign status of a Sultan was an Issue in one of a court case in England.
➢ When Miss Mighell sued the Sultan of Johor who was traveling incognito in the
State of the United Kingdom for breach of promise of marriage.
 ➢ The Court granted the Sultan an “independent sovereign” immunity
from its jurisdiction.
➢ The decision was on the basis of a letter from the Secretary of State
for the Colonies stating that “generally speaking, [the Sultan]
exercises the usual attributes of a sovereign ruler without any sort
of question.” This further demonstrates the British recognition of
the Sultanate of Johor as an independent State.
Issue: Whether sultan Johor will get diplomatic immunity or not?

Decision: Court held that the Sultan of Johor will get the diplomatic immunity
as an “independent sovereign”.

Principle: Foreign sovereign shall be treated as an independent sovereign and

therefore should have immunity from the local jurisdiction.

Doctrine of Restricted Sovereign Immunity

The increasing involvement of states in World Trade activities led to the

development of a more restrictive approach to State Immunity, where a
distinction is drawn between acts of a foreign sovereign nature (acta jure
imperii) and acts of a commercial nature (acta Jure gestionis). Under this
restrictive approach, Immunity is only available in respect of acts resulting
from the exercise of a Sovereign power. As such States may not claim
immunity in respect of commercial activities or over commercial assets.

The principle of diplomatic immunity is a very well-established principle of

International law. Diplomacy is a foundational fact of international life
without which international life will be at risk. The concept of Diplomatic
Immunity is very important for the promotion of friendly and healthy relations
among the states- be it for the purpose of trade, security, peace, or their
cultural relations.

The Vienna Convention is considered as the major success stone of the United
Nations. In this, the Diplomats are provided immunity to effectively perform
their functions being the representative of the Head of State. Although, all the
rights and immunities provided to the diplomats are not absolute they can be
compromised within certain exceptions provided.

UNIT-III
Ḻaw or treaties
Article 38(1) of the International Court of Justice’s statute identifies treaties as a source of
law, along with general principles and customs. Treaties occupy a very eminent position in
international law. They ensure friendly and peaceful relations of states with one another and
are a means by which international organizations take form, regulate and monitor their affairs.
The concept of the treaty has undergone significant changes over time. In earlier periods,
treaties used to be oral and a ceremony would be held where the parties would conclude it
and swear an oath to God, which used to act as the binding force of the treaty. Now, treaties
must be written and are legally binding between its parties.

Drafted by the International Law Commission of the UN and taking force on 27 January 1980,
the Vienna Convention on the Law of Treaties set out some fundamental rules as to how
treaties are to operate and take form. More than half of the member states of the UN are a
party to the Convention.

Concpt of treaty

Treaty in common parlance may be defined as written agreements between parties, which
may or may not be stated, to identify and follow a set of rules. They may also be referred to as
pacts, agreements, charters, etc. Declarations and political statements are excluded from the
scope of the definition of a treaty.

On the basis of the object, they have been classified as

- political treaties (including alliances and disarmament treaties),

- constitutional and
- administrative treaties (e.g. WHO’s constitution, which is responsible for
setting up the international body and to regulate it affairs),
- commercial treaties (trade and fishery agreements),
- criminal treaties (which define certain international crimes and may require the offender
to be extradited),
- treaties codifying international law,
- and treaties for ensuring civil justice.

A country that hasn’t signed the treaty has no obligation to follow its norms. However, like
the ICJ had stated in the North Continental Shelf Cases, that some treaties may give rise to
international conduct, customs and be of a “fundamentally norm-creating character.”
Article 26 of the Vienna Convention on the Law of Treaties deals with the Latin maxim
“pacta sunt servanda”, i.e. every signatory is to follow the treaty in good faith and is binding
upon them.

Kinds of treaty

Law Making treaty

The term “law-making” treaty seems to be confusing, as it raises the question- Can treaties
create law? This term actually refers to the content and the subject matter of a treaty, which
instead of being contractual shall be statutory. The emergence of a subsisting need of
international legal order sparked a newfound interest in this type of treaty. The need of
bringing rules which had statutory force was felt rather than the existing rules which
governed voluntary legal relations between states. In cases of law-making treaties, the
obligations are independent; they don’t require a subsequent fulfilment of rules by other
parties to it. These obligations have binding force and the parties to these treaties must follow
it. Unlike contracts, treaties have the power to make new international tribunals, international
waterways, mandates, etc.

These are multilateral treaties which stand for a common cause. A commentary by Fitzmaurice
takes human rights treaties and maritime regimes as law- making treaties. In the case of a
multilateral treaty, this type of treaty can be broken down and thought of as a number of
bilateral treaties, each of which are independent of one another and have to follow the
obligations inherently. As for bilateral treaties, they can simply be viewed as dependent on each
other as existence. Here, each party does not join to provide another party something it might
require, but rather to stand for a mutual cause or support a rule binding on all.

Contractual treaty

They are usually applicable to treaties having a small number of parties and are most
commonly seen in bilateral treaties. These are treaties where parties are mutually dependent on
each other for specific treatment to gain benefits, and have rights and obligations towards
each other. In reality, treaties need to take care of both the statutory as well as the contractual
function. The scope of treaties is mostly perceived in a contractual framework. Unlike law-
making treaties, which sets out rules for conduct, rights, and duties between parties which
have to take effect on the conclusion of the treaty, contractual treaties are usually limited to,
say, exchange of goods which one state might not possess and require, or conveyances. Here,
one party agrees to provide the other party something it needs for something else in return,
thereby forming a system like barter.
Topics of treaty

Bilatcíal treaty

Treaties involving two entities are bilateral treaties. It is not necessary that the treaty can only
have 2 parties; there may be more than two parties, however, there should be only two states
involved. For example, the bilateral treaties between Switzerland and the European
Union(EU) have 17 parties, which are divided into two parts, the Swiss and the EU and its
member states. It is important to note that by virtue of this treaty, obligations, and rights arise
between the two entities to it, i.e. the EU and the Swiss. This treaty does not give rise to
obligations between the EU and its member states.

Multilatcíal treaty

Treaties between three countries or more are multilateral treaties. They might be international
or domestic. They give rise to rights and obligations among all the parties, i.e. each signatory
has obligations towards all the other signatories.

Treaties with a higher number of participating states gain more international significance
since it reflects the importance of the treaty. However, there have been many crucial
bilateral treaties too, such as those emerging from Strategic Arms Limitation Talks.
All treaties have different purposes. Some set up international organizations through the UN
Charter of 1945, whereas others deal with issues such as visa regulations.

Vienna Convention on the Law of Treaties

The International Law Commission of the United Nations drafted the Vienna Convention on
the Law of Treaties, which was adopted on May 23, 1969. Entering into force on January 27,
1980, it is an international agreement between the states to govern and regulate treaties.

The treaty is limited to and encompasses written treaties only. Divided into many parts,

- the first part sets out the object, terms, and scope of the agreement, and
- the second part lays down rules for adoption, ratification, the conclusion of the treaties.

- The third part deals with the interpretation of treaties.

- The fourth part talks about the modification of treaties, and lastly,

- the fifth part delves into withdrawal, suspension, termination, and

invalidation of a treaty.

- It also includes a necessary clause which gives the International Court of Justice jurisdiction
over any possible disputes.

- The final parts discuss rules for ratification and effects on treaties due to change in
government.

The document has not been ratified by the US, however, it follows its provisions usually. Till
1979, all the 35 member states of the UN had ratified the treaty.

As per the Latin maxim “pacta sunt servanda”, or as mentioned under Article 26 of the
Convention, all treaties are binding on its signatories and shall be followed bona fide. The
binding nature which this treaty serves to all other treaties is a reason why the US isn’t a part
of it. There exists a tussle between Congress and the Executive branch, over who has the
authority to validate a withdrawal from treaties on behalf of the country. Since treaties are
binding, there is too much at stake between the two organs of the US government.

Parties to a treaty

There are two types of parties to a treaty- state parties and third States. A state party has
ratified and signed the treaty and is legally bound to follow it. “Third state” has been defined
as a state which is not a party to the treaty.

Third State-

Article 34 of the Convention says that a third State shall be free from any rights or obligations
to a treaty. In case of treaties having a provision to extend obligations to a third State, such
provision must have obtained the express consent of that third State for it to apply to them.

Provided that the third state gives its consent, if the parties to a treaty wish to confer rights
upon a third state/ group of states to which it belongs/all
states, a right shall arise for the third state. This is mentioned in Article 36 of the Convention.
A state which shall exercise this right conferred on it by the treaty must follow the directions
and conditions as mentioned in it too.

Article 37 deals with revocation/alteration of rights and obligations of third states and says
that unless otherwise agreed, the obligation on the third State by virtue of Article 35 may be
revoked/altered if express consent of parties to the treaty and the third state has been obtained.
However, in case of a right conferred by Article 36, the same may not be revoked/altered by
the parties if it was pre-decided that such right shall not be revocable/open to alteration
without the consent of the third State. Lastly, by virtue of the customary rule of international
law, rules of a treaty become binding even on third States.

creating a treaty

There is no concrete way of creating a treaty. It may be presented in different forms such as a
contract or an exchange of notes, as seen in the Rush-Bagot Agreement between Great Britain
and the U.S. for mutual disarmament on the Great Lakes. Most treaties, however, follow a
similar structure. Every treaty begins by introducing its preamble, which states the object of
the treaties and the parties to it. It is then followed by what the parties agreed upon. A
statement of the period may or may not follow; it depends on the time period for which the
treaty shall exist. Next up, reservations and then ratification clauses follow. Then, it ends with
the signatures of the parties involved along with the date and venue of ratification.

Additional articles may be further attached along with the declaration that they are equal in
value as to other clauses. Going by the Law of Treaty, the following steps form the essentials of
formation of a treaty-

• Adoption of the text

Consent of all parties to a treaty is essential for adopting a text. If the treaty is being adopted
at an international conference, a two-thirds majority shall be required for the adoption of text
unless agreed upon otherwise.

• Authentication of the text

As per the procedure mentioned in the text, a treaty shall be established to be authentic. On the
failure of such procedure, signatures or initials of representatives of the participating states
may be sufficient to deem the text to be definitive.

• Expression of consent
This may be by way of signatures, ratification, acceptance, approval or accession or by
exchanging instruments required for the treaty.
 • Consent by signature
Provided that the treaty explicitly states that signature by the representative of a state shall be
sufficient to be declared as a party, or the negotiating states have mutually consented to
signature be sufficient, the representative’s signature expresses a state’s full intention to enter
into a treaty.

• Consent by exchange of instruments required by the treaty

If the states agree that exchange shall be equivalent to the expression of the consent to enter
into the treaty, then so shall be the case.

• Consent by ratification, acceptance or approval

If the negotiating states are of the opinion that ratification shall be equivalent to expressing
consent, or the treaty provides for ratification, then it shall be an acceptable way of obtaining
consent to the treaty. Similarly, the same condition applies to consent expressed by approval
or acceptance.

• Consent expressed by accession

Consent to the treaty shall be obtained If the treaty provides for it or the negotiating states
agree upon accession.

• Formulation of reservations
A state may while concluding the treaty expresses its reservations unless it’s prohibited by the
treaty, or if permitted shall violate with the object and intent of the treaty.

invalidity of treaty

Part V of the Vienna Convention on The Law of Treaties, 1969, particularly Section 2 deals
with the invalidity of treaties. Articles 46-53 set out the ways to invalidate a treaty, i.e.
make them void and unenforceable under international law. There are several reasons as to
why an internationally binding treaty may be declared as invalid. One of the reasons for
invalidity is that they might be riddled with problems ever since the time of formation.
Content of the treaties and the mode by which consent is obtained are the two grounds on
which treaties may be invalidated.

It is important to note that invalidation is different from withdrawal and termination; the
former involves invalidation of consent right from the start, while the latter involves future
alteration in consent to be a signatory.

Ultra Vires treaties

Article 46 of The Law of Treaties talks about the willingness of a state to invalidate and
conclude the treaty on the ground that it goes against its internal law. No State shall invoke
such a fact. However, exceptionally, such
fact may be invoked if the violation was manifest and of fundamental
importance to the State’s internal law.

The Law of Treaties in its preamble clearly regards treaties as a source of international law.
This has two meanings- one, no matter if an act is approved by the internal law, it will not
assume legality if it is condemned under international law, and two, in case of conflict
between internal and international law, international law shall prevail.

Error

Article 48 talks about invalidation on grounds of the presence of errors in a treaty. It is

important to note that errors with respect to the wording of the text do not invalidate the
treaty. If the error is to a substantial fact, i.e. one that was believed to be in existence at the
time of signing the treaty and formed the basis for which the treaty was signed, such an error
may be provoked by the state, provided that such state has not, by its own conduct,
contributed towards the error.

Fraud and Corruption

If a state has become a signatory to a treaty due to fraudulent act or conduct of another state
who is also a signatory to the treaty, such a state may invoke invalidating the treaty on grounds
of consent being obtained by fraud.

If a negotiating state, by corrupting the representatives of another state directly or indirectly,

has induced such a state’s consent into entering a treaty, the state may invoke invalidating its
consent to be bound by the treaty.

Coercion

Consent shall also be invalidated if it is obtained by coercing the representative of a state, or by

threatening the use of force against a state.

Conflict with Jus cogens

Treaties that are in conflict with jus cogens, or “peremptory norm of general international law”
such as piracy, genocide, apartheid, torture, etc are void.
Withdrawal of treaty

Withdrawal

Obligations in international law arise from the consent of the state. This is why treaties are
mostly non-binding in nature, and they expressly allow a party to withdraw. For example, the
Single Convention on Narcotic Drugs says that the treaty shall be terminated if the total
number of signatories falls below 40.

Article 56 deals with withdrawal from treaties without a

termination/denunciation/withdrawal clause. According to this article, such a treaty shall not
be denounced unless:

–The intention of the parties as to the possibility of withdrawal was established.

–A right of denunciation was implied in the treaty.

It must be brought to notice that not all treaties can be withdrawn from; it depends on the
terms of the treaty. For example, when North Korea declared its intention to withdraw itself
from the International Covenant on Civil and Political Rights, the United Nations
Secretary-General held that the parties there was a reason why the treaty did not provide for a
withdrawal cause and it wasn’t put in the treaty on purpose. North Korea wasn’t allowed to
withdraw.

If one party withdraws from a bilateral treaty, the treaty ceases to exist. When one party
withdraws from a multilateral treaty, there is no effect on the treaty, only such a state’s
obligations as per the treaty end.

One instance where Article 46 of the Law of Treaties was invoked was the treaty between
Israel and the United States for the withdrawal of Israel from the Sinai Peninsula. The US
promised to provide supply as well as defence equipment in return. However, the treaty was
signed without taking the consent of the US Senate, and it was contested that the treaty was
thus void as per domestic law. Moreover, since this violated the U.S. Constitution, the treaty
was invalid on international grounds too.

Termination of treaty
Implied by the conclusion of a later treaty-

On account of drafting a later treaty dealing with the same subject matter as its previous
version, the previous counterpart shall be deemed to be terminated, provided that the parties
intend to be governed by the new treaty or the provisions of both the treaties are so
incompatible with each other that
both the treaties cannot be applicable at the same time. The previous treaty
will be terminated if it’s the implied or established intention of the signatories.

As a consequence of its breach

There are different consequences for different kinds of treaties. If the treaty is bilateral and one
of the parties has caused a material breach of the treaty, then the other may use it to bring the
treaty to an end. If the treaty is multilateral, then default by one of the parties entitles the
other parties to terminate/suspend such treaty, wholly or partly by unanimous consent.
Material breach, as explicitly mentioned in Section 61 consists in the violation of a provision
of the treaty which is of the essence to it and forsaking the treaty.

Impossibility of performance

The impossibility of fulfilling conditions as per the treaty is considered sufficient ground for the
suspension/ termination of a treaty. If the impossibility is permanent, i.e. the devastation
makes execution of the treaty impossible, the treaty may be terminated. However, if the
impossibility is temporary, the treaty may be suspended for the required duration.

However, if the impossibility of performance is due to the conduct and action of one the
parties, i.e. due to violation of a provision of the treaty or violation of any international
obligations, the treaty may not be terminated/ suspended.

Fundamental change of circumstances

Unforeseen changes which fundamentally affect the treaty may be sufficient to invoke
termination/ revocation of the treaty, provided that the changes are “fundamental” i.e. initial
existence of the circumstances may affect the consent of parties to the treaty and that as a
result, the obligations to be performed under the treaty have been changed and transformed
radically.

If the change is due to breach of treaty or any international obligations by one of the parties to
the treaty, then this article would not be invokable.

Rift of diplomatic or consular relations

Provided that the treaty demands the existence of hostile and diplomatic relations between its
parties, disturbance or severance of such relations shall have no effect on the treaty since it
doesn’t really affect the legal relationship among the parties.

Emergence of new jus cogens

If a new jus cogens or peremptory norm of general international law emerges after worldwide
assent to it, any treaty in violation of it shall be deemed to be terminated.

The Vienna Convention on the Law of Treaties lays down basic and fundamental principles
to govern treaties. The main principle on which the Convention operates is “pacta sunt
servanda”, i.e. all treaties must be followed in good force. It provides for various provisions
such as ratification, reservation, approval, conclusion, withdrawal, invalidation, termination
of a treaty, etc. The Convention is legally binding on its parties.

UNIT-IV

United Nations Organisations

“In many respects, the world is shifting beneath our feet. Yet the Charter
remains a firm foundation for shared progress.” -Ban Ki-Moon

In 1945, after the event of World War II causing irreparable damage to many
nations of the world, it was a time where the world wanted peace. In the same
year, 51 countries met at a conference held in San Francisco to sign a
document which was the United Nations Charter founding the United Nations
Organization (UNO). The United Nations Organization headquartered in San
Francisco was created for the purpose of maintaining international peace and
security. Presently, there are 193 member states in the UNO.

History of the United Nation

The Atlantic Charter (1941)

After the failure of the League of Nations and when World War II started, a
dire need for a new organization for promoting international peace was felt.
The Atlantic Charter was a Joint Declaration issued by two leaders American
President Roosevelt and British Prime Minister Churchill in 1941. Initially, the
word ‘United Nations’ was used by President Roosevelt and it indicated the
countries that are allied against Germany, Japan, and Italy. On 1st January
1942, 26 nations signed the Declaration at Washington DC stressing their
adherence to the principles of the Atlantic Charter.

Dumbarton Oaks Proposal (1944-1945)

A meeting was held at Dumbarton Oaks for the formation of the United
Nations, where the principles of the organization were laid down. On 7th
October 1944, a proposal was submitted by the Big Four (China, Great Britain,
USSR, and the United States) regarding the structure of the world organization
to all the UN Governments. But, there was still disagreement on the question
of voting in the Security Council. For this purpose, Roosevelt, Churchill, and
Stalin met at a conference at Yalta and on 11th February 1945 announced that
the question was resolved and summoned the San Francisco Conference.

On the 25th of April 1945, the leaders gathered at the San Francisco
Conference (United Nations Conference on International Organization) to
determine the final structure of the United Nations Charter. On 24th October
1945, the 5 permanent members and other signatory nations ratified the
official UN Charter.

Principal organs of the United Nations

The United Nations have six principal organs that were established when the
United Nations was founded. The Principal organs are:

General Assembly
The United Nations General Assembly (UNGA) is headquartered in New York
and all the member states of the United Nations have equal representation.
The member states gather to discuss various issues relating to international
law, security, peace, etc

Security Council
The Security Council has the responsibility to maintain international peace and
security whenever peace is threatened. It constitutes 15 members, having one
vote each and a residency rotating and changing every month.

Economic and Social Council (ECOSOC)

The ECOSOC promotes sustainable development with regard to economic,
social and environmental matters. It comprises 54 members that are elected
by the General Assembly.

Trusteeship Council
The Trusteeship Council is dealt with under Chapter XII of the UN Charter. It
was established in order to supervise the 11 Trust Territories that were placed
under the administration of 7 member states. The Council suspended its
activities in 1994. All territories are now independent.

The International Court of Justice (ICJ)

The International Court of Justice (also called the world’s court) established by
the United Nations Charter in the year 1945. The ICJ is the principal judicial
organ of the United Nations having its headquarters at Hague, Netherland
being the only organ among the six organs of the UN to be not situated in New
York (USA). It consists of a panel of 15 judges for a term of nine years. The
judges are elected by the General Assembly and the Security Council. ICJ
succeeded the Permanent Court of International Justice. It resolves disputes
between the member states of the UN.

United Nations Secretariat

The UN Secretariat comprises a Secretary-General who is appointed by the
General Assembly on the Security Council’s recommendation. Other members
of the Secretariat are appointed by the Secretary-General as per the
regulations of the General Assembly. The Secretariat carries out the day to day
work of the UN such as preparing the report, making analysis, research, etc
that the General Assembly and other principal organs have mandated.

The United Nations Charter

While drafting the Charter of the United Nations, the experiences and practices
of the League of Nations were mostly relied upon. The UN Charter is a
document that sets forth the principles to be followed by the organization and
its members.

Purposes and Principle

Chapter I of the Charter lays down the purposes and principles of the United
Nations.

Article 1 of the UN Charter

Article 1 of the 1 UN Charter talks about the purposes of the United Nations.
They are:

• Maintaining international peace and security;

• Developing friendly relations amongst the nations;
• Achieving international cooperation to solve international issues of
social, economic, cultural or humanitarian nature;
•Being a centre to harmonize the actions of the state to accomplish
these common goals.
The main objective of these purposes was binding the organization and its
members to coordinate their activities in order to accomplish these common
goals.

Article 2 of the UN Charter

Article 2 talks about the principles of the United Nations. These principles are:

• Ensuring sovereign equality of all its members. This rule implies that
all the members of the UN have equal representation.
 • All the members of the UN are required to fulfil in good faith the
obligations assumed by them in accordance with the Charter.
• All the members of the UN are obliged to settle their disputes by
peaceful and amicable means in such a manner as to not endanger or
jeopardize international peace, security, and justice.
• All the members of the UN are required to desist from giving threats
or using force over and against any states’ territorial integrity or
political independence.
• All the members of the UN are required to abstain from helping or
assisting any state against which the UN is taking preventive actions
or enforcement actions.
• Ensuring that non-members do not act inconsistently with the
Charter. This rule empowers the United Nations in order to maintain
peace and security to enforce obligation in the non-members of the
state. Further, a non-member state as per Article 35(2) is empowered
to bring any dispute before the General Assembly or the Security
Council.
• Non-interference of the United Nations in matters relating to the
domestic jurisdiction of any state. This rule mandates the United
Nations not to interfere where the matter is solely of domestic
jurisdiction of a state.

Nicaragua v. the United States

In this case, Nicaragua alleged that the United States carried illegal military
and paramilitary operations against Nicaragua by supporting and assisting
the Contras causing an extensive loss of lives by attacking its mining ports,
naval base, air space, etc. It was also alleged that certain attacks were done
not by the Contras but by the United States itself.

The claims of Nicaragua were that:

• the United States has violated Article 2(4) of the Charter of the United
Nations to ‘refrain from threat and use of force’ and has breached the
customary international law obligation.
• The actions of the United States amounted to an interference with the
internal affairs of Nicaragua.
The ICJ, in this case, held that the United States has violated international law
by involving itself in the unlawful use of force against Nicaragua.

Article 51 of the UN Charter: Maintenance of peace

Article 51 empowers the United Nations Security Councils to take measures
regarding the maintenance of peace and security. Article 51 provides that the
member states have an inherent right of self-defence (individually or
collectively) to defend any armed attack against a member of the UN. A
member state has to immediately report to the Security Council if it has taken
any measures for the exercise of its self-defence.
It further provides that the Security Council’s authority and responsibility can
not be affected to take any action that is necessary for the restoration and
maintenance of international peace and security.

Article 13(1) of the UN Charter

Article 13(1) empowers the General Assembly to initiate studies and make
recommendations to:

• Promote international cooperation in the political, social, cultural,

educational, economic, and health fields.
• Encourage progressive development of international law and
codification of international laws.
• Assist in the realization of Human Rights and fundamental freedom for
all.
• Non-discrimination on the basis of race, sex, language, religion.

Article 24, 25 and 26 of the UN Charter

Chapter V of the UN Charter deals with the functions and power of the Security
Council under Article 24 and 25 of the Charter.

Article 24 states that:

• The members of the United Nations confer a primary responsibility

upon the Security Council of maintaining peace and security for
ensuring a prompt and effective action by the UN.
• The Security Council while discharging these duties is obliged to act in
accordance with the purpose and principles of the UN.
• The Security Council is required to submit to the General Assembly
the annual and special report for its consideration.
Article 25 makes the members of the United Nations accept and carry out the
decisions of the Security Council in accordance with the Charter”.

Under Article 26 the Security Council with the aid and assistance of the Military
Staff Committee is responsible to formulate plans that are to be submitted to
the members for establishing a system for regulation of armaments. Further,
the security council is required to do so with the slightest diversion for
armaments of human and economic resources of the world.

United Nations General Assembly resolutions (UNGA)

All the members of the United Nations are required to vote on a resolution
relating to issues of poverty, development, peace, and security, etc in the
General Assembly of the United Nations. Generally, a simple majority vote
(50%+1) is required. In case if the General Assembly is of the view that a
certain issue is an important question (pertaining to matters of international
peace and security) then it requires a 2/3rd majority. Some important
resolutions of the General Assembly:

Resolution 3314: Definition of Aggression

The UNGA on 14th December 1974 adopted this resolution which provided for
the definition of aggression. The definition as per Article 1 states that
“aggression is the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State, or in any other
manner inconsistent with the Charter of the United Nations”

Resolution 31/72: Environmental Modification

Convention (ENMOD)
The Convention bars the use of military or other environmental modification
techniques that have destructive, long-lasting or severe effects. The definition
of Environment Modification Techniques as provided under the treaty is “any
technique for changing- through the deliberate manipulation of natural
processes- the dynamics, composition or structure of the Earth, including its
biota, lithosphere, hydrosphere, and atmosphere, or of outer space.”

Resolution 194: Right of return for Palestinian refugees

The UNGA on 11 December 1948 adopted this resolution after the Arab-Israeli
war of 1948 regarding the return of the Palestinian refugees. Article 11 of the
resolution permitted the return of those refugees who wished to return to their
homes and live at peace with their neighbours at the earliest practicable date.
It also provided the Government or the authorities responsible should make
payment of compensation to those who chose not to return for the loss or
damage of property.

The United Nations was formed with the motive to find ways to maintain
worldwide peace. Since its inception, it has been helping nations deal with the
economics, social and humanitarian issues, protecting refugees promoting
sustainable development and more.

International Court of Justice

The international community is a dynamic one. This leads to clashes between
the various members of this community. States disagree on where their border
is, contest islands of maritime borders, violate treaties and other rules of
international law. Then to who do states turn to for help? Resolving matters of
these natures is the job of the International Court of Justice (ICJ). The ICJ is
not only needed for resolving international disputes. Even the UN seeks their
help when they need an opinion on a legal question.

The court has existed since 1946. The official languages are English and
French. The United Nations Charter is an integral part of the ICJ. Thus, all UN
member states automatically recognize the authority of the ICJ and can call for
its help in any legal matter.

The ICJ has, up till now, dealt with 177 cases. It does not try individuals and
only disputes between states can be submitted to it.

History
It is the successor court of the Permanent Court of International Justice. The
Permanent Court of International Justice was created in 1922 and by the
league of nations. Between 1932 and 1940, it handled 60 cases. It was
dissolved after World War II. The ICJ succeeded the permanent court on the
18th of April 1946. It inherited not only its statue but also its jurisprudence
and its traditions.

Composition
The court consists of 15 judges and they are elected for a term of 9 years by
the General Assembly and the Security Council. Five posts are renewed every
three years. Here, judges may be re-elected. The members of the court must
all be from different countries. But, we must keep in mind that they do not
represent their country and they are independent judges.

The composition of the court represents the following geographic balance.

• Three seats on the bench are occupied by African judges.

• Two seats are occupied by judges from Latin America and the
Caribbean.
• Three are occupied by Asian judges.
• Five judges are occupied by judges from Western Europe and other
Western States.
• Two judges are from Eastern Asia.
Usually, there is one judge from each of the countries who are permanent
members.

Ad Hoc Judges
When a case is presented before the ICJ, and a state party does not have a
judge on the bench from their state, then they can choose a judge, known as a
judge ‘ad hoc’. These judges can be from any nationality and not necessarily
have to be from the state party. They have the same rights and duties as an
elected judge.

President and Vice President

After every three years, the court elects its President and Vice President. The
president chairs all sittings of the court. He or she directs its work and
supervises its administration. Annually, the President presents a report on the
workings of the ICJ to the General Assembly.

Duties
Like it’s predecessor, the ICJ has two roles. The first is to decide disputes
between states. These are known as Contentious Cases. The second role is to
analyze legal questions submitted to it by the General Assembly, the Security
Council and other organisations and agencies under the UN. These cases are
known as Advisory Proceedings.

Contentious Cases
The court’s first role is to judge legal disputes between states. This constitutes
a large part of its work. In the past, these cases would relate to border
disputes, maritime delimitation and diplomatic protection. But now cases such
as human rights, environmental rights and the responsibility of states are
brought in front of the court.

The court’s jurisdiction is general and can consider any issue of international
law. All UN members can bring cases of contentious nature before the court.
Non-member nations can also access the court but are subject to certain
conditions. Thus, the court’s jurisdiction extends throughout the world.

It must be kept in mind that states are sovereign and they can decide how to
resolve their disputes. The ICJ can not ask sovereign states to act without
them approaching the court. Thus, the ICJ can only hear a case if both the
national parties have freely consented to it.

Procedure
Once they have appeared before the court, the proceedings take place in two
steps.

First, the states submit their arguments, evidence and submissions in writing.
Then, their representatives and their lawyers present oral arguments before
the court.

The court then begins its deliberations. These deliberations are confidential and
questions or issues of the case are decided by the judges present. On an
average, deliberations last from 4-6 months.

Once a decision is made, the judgment is released in the court’s two official
languages and reproduced in several sealed copies.
All judgements of the court are final and without appeal. By coming before the
court of justice on their own consent, the state parties take an oath to comply
with the judgement and such judgements are binding upon the parties. If one
of the parties refuses to comply with the decision, the aggrieved party may
seek recourse from the Security Council. The Security Council may then,
under Article 94 of the UN Charter make recommendations or decide measures
on how to give effect to the judgement.

Advisory Proceedings
The second role is of advisory procedures where they deal with legal questions
given by the organisations and the agencies of the UN. A majority of these
requests come from the General Assembly.

Unlike judgements, advisory opinions are not binding per se. It is up to the
organisations and the agencies to follow up on them. But, regardless of them
being binding or not, these opinions are important as they usually lead to the
festering of international law.

Their decisions go beyond states directly involved in the cases. On many

occasions, the court has helped to defuse crises and normalize relations
between states and to restart deadlock negotiations, either by the settlement
of disputes by judicial means or by stating the law for the issue in question.

Current Cases

The Rohingya Genocide

The Rohingya Genocide is a chain of persecutions by the Myanmar government
and the Buddhist community of Myanmar against the community of Muslim
Rohingyas. The Myanmar military and police cracked down on Rohingya
Muslims and failed to check the growing islamophobic sentiments against
them. This resulted in thousands of Rohingyas being killed, refugees fleeing to
other countries, destruction of Rohingya villages, schools and businesses,
wide-scale violation of human rights by the military and gang rapes and other
sexual violence against women and girls of the Rohingya community.

The Gambia (or Republic of The Gambia) had brought a case against Myanmar
for the Rohingya genocides. It was noted by the ICJ that thousands of
Rohingya refugees were made stateless due to state-sponsored violence.

The court observed that the Rohingyas were a ‘protected group’ under Article
II of the Genocide Convention. They stated that despite Rohingya Muslims
living in Myanmar prior to independence, they were ‘made stateless by the
1982 Citizenship Act and disfranchised in 2015 from electoral processes’.
The bench ruled that Myanmar must keep in mind the duties given under the
Genocide and ensure all acts of prejudice against Rohingya Muslims are
stopped.

Criticisms
The following points are common criticisms of the ICJ-

• The ICJ has been accused of being biased. Judges usually rule in
favour of states which their own country looks favourably upon. Bias
also plays a great role in voting for the President and Vice President of
the bench.
• The ICJ can only rule on cases where both the states have given their
consent. Thus, even if there is a case where the authority of the ICJ is
much needed, the ICJ can not do anything unless they get consent
from the other states involved.
• Only states can seek recourse under the ICJ, not organisations,
private enterprises or even individuals. Thus, in cases where minority
groups are being exploited by their state, the individuals of these
minority communities can not seek recourse under the ICJ
• Other International courts like the International Criminal Court are not
under the umbrella of the ICJ. Thus, conflicting opinions from various
international courts make it difficult for the international community
to collectively enforce peace.
• The ICJ does not enjoy the separation of powers and is sometimes at
the mercy of the Security Council. Permanent member states can veto
attempts to enforce the decision of the ICJ.
Cases where the ICJ has failed to enforce peace:

United States occupation of Nicaragua- The

Contra Rebellion
The Contra rebellion was a right-wing rebel group against the socialist
government of Nicaragua. These rebels violated numerous human rights and
used terrorist tactics to usurp the government. They have been accused of
targeting health centres, kidnapping, torturing and even executing civilians
(some were children), raping and committing other sexual crimes against
women, seizing civilian property and burning civilian houses.

Nicaragua stated that the American government had funded the Contra
Rebellion against the Nicaragua government. They were also accused of
planting naval mines in their territorial waters.

There was established evidence that the Contra Rebellion was not only funded
by the CIA but was also established by Ronald Reagan’s administration. To
fund the rebellion, the USA sold weapons to Iran and assisted the Colombian
cocaine trade.

The ICJ held that the US had grossly violated international law as well as
Nicaragua’s sovereignty. Nicaragua asked for 17 billion dollars in reparations.

In response, the US withdrew its support of the International Court of Justice

and as a permanent member, vetoed any attempt to enforce the ICJ’s
judgement.

Till this day, Nicaragua has seen no compensation.

Israel and Palestine

One of the greatest violations of international law has to be the West Bank wall
constructed by Israel that cuts through Palestine communities, homes and
farmlands. Under the guise of protecting Israel against terrorism, the wall goes
deep into the West Bank which is Palestine’s territory. It seeks to redefine
borders by annexing Palestine and thus is a grave violation of not only
Palestine’s sovereignty but international laws as well.

15 years ago, the ICJ had ruled through an advisory opinion that the wall was
illegal. While such opinions are non-binding, they also said the wall violates
international law and should be dismantled. It also stated that Israel should
pay reparations.

But such orders fell on deaf ears and Israel was not willing to comply. The UN
General Assembly tried to force Israel to cooperate but that was a failure as
well.

Till the present date, the wall strangulates the West Bank and the present
government continues to expand it, pretending like the ICJ ruling never
happened.

As the principal judicial organ of the United Nation, it is an important facet for
promoting and maintaining peace. They regularly host visits by heads and
dignitaries of states. It settles cases of extreme international complexity in less
than five years. The court accounts for less than 1% of the UN’s budget. It is
unique to the world. Through its judgement, opinions and orders, ICJ lends its
support to the United Nations so that it can achieve its primary purpose which
is to maintain and promote international peace and security.

But despite having so much authority, it fails to achieve its purpose. In many
cases, we have seen that Countries do not comply with rulings from the
International Court of Justice. Thus despite being a giant in the world of
International law, it seems to grow increasingly less influential on States and
regulating its compliance with international law.
Violation of International Law
To understand the consequences of violation of international law it is
imperative that we first understand the term international law. Today’s world
has advanced to the extent that international law does not just remain as a set
of rules and regulations to direct the conduct of one state towards another.
International law is a consistently developing set of complex rules and
influential practices, principles, and assertions that are not necessarily binding.
It defines legal responsibilities of sovereign states and individual and
international organisations, not only concerning their conduct with each other
but also encompasses their treatment of the individuals within the state
boundary.it is an independent system of laws that exists outside the legal
orders of particular states.

International law has no defined area or governing body but consists of a

collection of international treaties, accords, charters, agreements, tribunals,
protocols, memorandums, legal precedents of the International Court of
Justice, and more. Since there is no unique governing and enforcing body it is
largely a voluntary endeavor, wherein the power of enforcement only exists
when the parties consent to abide by an agreement. Its domain encompasses
a wide range of issues of international concern such as environment, migrant
labour, drug trafficking, terrorism, disarmament, international crime, etc. It
regulates global commons such as space, environment, global communication
and world trade, international waters, etc.

The basic aim of international law is to promote social and economic

development and maintain international peace and security. It can be divided
into public international law and private international law. The former covers
the rules, and laws that govern the conduct and dealings between nations
and/or their citizens and the latter handles disputes between private citizens of
different nations. There being no definitive governing body to legislate and
enforce international law, the United Nations is the most widely recognised
international organisation and the International Court of Justice is its judicial
counterpart.

Who can be held responsible for violating

international law
Obligations must be respected, they lose their meaning without proper
adherence to the rules thereof. International law, not being governed by a
global police, is at times violated. Thus, it sets out clear consequences for such
violations and these consequences are both collective and individual in nature.

International law not only set outs prohibitions to acts against basic human
rights such as torture of the civilians in an armed conflict but also provides for
legal ramifications if such acts take place. These ramifications can be broadly
divided into state responsibility and individual responsibility. The states are the
principal actors in the international legal system, international law deals with
the legal responsibility of the states in their conduct with each other. It is also
concerned with the treatment of the individuals living in the state boundaries.
Thus, only states are not the stakeholders to international law, recent
interpretations of international human rights law, international trade law, and
international humanitarian law have also included corporations and certain
individuals.

State responsibility
All the international treaties which a state has signed are binding on that state,
a state is also bound by the customary international rules and regulations.
When a state violates any of the treaties to which it is a signatory, or it breaks
internationally recognised customs and rules it is said to have committed an
internationally wrongful act which constitutes a violation of international law.
In such situations, a state can be held responsible for violating international
law and it has to face consequences. Such states are obliged to stop the illegal
activities immediately and are also entrusted with the responsibility to make
reparations to the injured. In addition, the states violating international law
must offer guarantees that such violations will not be repeated in the future.
The states are legally responsible both towards other states and individuals
and it can be held responsible for all the actions of its officials.

Individual responsibility
it has also been provided for the individuals to be held criminally responsible
for international crimes. Each armed force member is directly held responsible
for the breaches committed by him/her. Individual criminal responsibility also
allows persons who aid, assist, attempt, facilitate, abet, plan, or instigate the
commission of a war crime to face accountability for their actions. The military
commanders who order their subordinates to violate international
humanitarian law are held responsible by the law of armed conflicts.

Corporate accountability
Corporate accountability implies holding companies responsible for their
involvement in violations of international human rights, illegal activities, and
international humanitarian law. They are not just held responsible for their
direct actions, but also for their complicity in violations of international
humanitarian laws and human rights. A corporation’s knowledge of the crime,
its intentions, and its actions which helped in the commission of the violation
all determine the liability of the corporations.

Who has jurisdiction to deal with the matter

concerning violation of International Law
The legal environment of the international law does not have an overreaching
sovereign, thus its enforcement differs from that of the domestic law. The
absence of a compulsory judicial system to settle a dispute or a coercive penal
system to ensure compliance had left the international law compliance largely
voluntary. The nations entered into a treaty with a perceived notion of self-
interest. But this was not enough to ensure their compliance with the
international law at all times. In some cases, the norms upon which the laws
are based are self-enforcing, in other cases, during a changing environment,
when enough powerful states continually ignore a particular aspect of the
international law, that aspect or norm changes according to the customary
international law. For example, by World War II unrestricted submarine
warfare was so commonly being practised that the authorities ordering this
activity were no longer charged with violation of international law.

The states also oversee the compliance of international laws by the other
states. When a state violates international law, it may be subject to diplomatic
pressure, or economic sanctions. The states may also adopt unilateral
sanctions against those who flout international law provisions. In some cases,
domestic courts may render judgement against a foreign state for an injury.
This comes under the ambit of private international law, it is a complicated
area of law as the international law intersects with domestic law. The
compliance of such a judgement is not easy to enforce and depends upon the
wishes of the subject of the respective judgement, i.e., the state which caused
the injury.

There are certain international bodies that claim jurisdiction to deal with the
matter when international law is violated. These are discussed below:

International bodies
The United Nations General Assembly is a deliberative policymaking and
representative organ and is empowered to make recommendations. It does not
codify international law, nor is it entrusted with making binding resolutions.
The resolutions passed by the United Nations General Assembly are generally
non-binding in nature towards its member states. The binding resolutions
passed by the assembly are internal in nature and are concerned with matters
such as budgetary allocations, staff regulation, etc. The violation of the United
Nations Charter by the member states may be raised in the General Assembly
for debate by the aggrieved members. International bodies created by treaties
have jurisdiction over the matters concerning international conflicts. The
universal jurisdiction is claimed by the United Nations Security Council, one of
the six principal organs of the United Nations, charged with the function of
maintaining international peace and security. The other bodies having
jurisdiction over the matters concerning violation of international law are the
United Nations International Court of Justice (ICJ), headquartered at Hague,
the International Criminal Court, and the Court of Arbitration for Sport.

The International Court of Justice, also known as the World Court, is the
primary organ of the United Nations for the settlement of disputes. The court
addresses international disputes involving the right of passage, non-
interference, non-use of force, economic rights, diplomatic relations, right of
asylum, hostage-taking, etc. The court prevents the escalation of disputes by
giving an impartial solution based on law.
The individuals who commit crimes against humanity such as genocide and war
crimes can be prosecuted by the International Criminal Court(ICC). The crime
of aggression is also sought to be brought under its jurisdiction and is being
given a definition. The International Criminal Court is not a part of the United
Nations, it is functionally as well as legally independent from the United
Nations.

When does a country violate international law

A country is said to have violated international law when it violates the treaties
to which it is a signatory or when it breaks the internationally accepted
customs and regulations. The breach of an international obligation is referred
to as an internationally wrongful act. Thus, a country committing an
internationally wrongful act is liable and can be punished. The customary
international law is binding on all states and the International Law
Commission’s Article on State Responsibility provides the regulations regarding
the violations of the customary law and the consequences thereof. An act of
any state organ is also considered as an act of the state under international
law.

A state violates international law when it breaches the obligations that are
binding upon it at the time such violation occurs.

A state is also liable for violating international law when it aids or assists
another state in committing an internationally wrongful act with knowledge of
the circumstances.

When a state directs or coerces or controls another state in doing an

internationally wrongful act, with full knowledge of the circumstances, it is held
liable for the violation of international law.

Exceptions
There are following exceptions to the liability of a state violating international
law:

Consent
An act is not held as a wrongful act if it is committed by one state over another
state with the consent of the latter. In such a case it is important that the act
committed by the former state is limited to the consent given by the latter
state. Thus, a state is empowered to allow another state to use its waters or
air space, and such use, if allowed, would not be constituted as an invasion.

Self-defence
The acts committed by a state in order to defend itself against another state or
organisation do not count as violations of international law provided that such
acts are in conformity with the United Nations Charter (Article 15).

Countermeasures in respect of an internationally

wrongful act
If the acts of a state violate the obligations by which such state is bound
towards another state but are committed as countermeasures taken against
such state, then these acts will not be constituted as a violation of
international law.

Force majeure
Force majeure refers to an unforeseeable event because of the irresistible
force which is beyond the control of the states. In case of force majeure
conditions which render it impossible for a state to fulfil its obligations towards
another state, such acts, which the state commits or is unable to commit in
order to fulfil the obligation by which it is bound, are not considered a violation
of international law.

Necessity
If an illegal act is committed by a state as a last resort in order to safeguard
an essential interest against an imminent threat, the state is not said to have
violated its international obligations.

Precedence in such matters

The role of the International Court of Justice extends to the settlement of the
disputes brought to it by the states and to give advisory opinions on the legal
questions referred to it. The International Court of Justice has dealt with over
170 cases since its establishment. The important decisions given in this matter
have contributed to the development of international law. One such case is
the Consequences of building a wall in the occupied Palestinian territory. The
ICJ issued an advisory opinion in this matter finding the building of such a wall,
and thus occupation of Palestinian territory by Israel, contrary to international
law. It put Israel under the obligation to cease the illegal act and demolish the
whole structure, in addition, it also required Israel to make reparations for the
damages caused by the said illegal act.

The ICJ also set precedence in the case of Military and Paramilitary Activities in
and against Nicaragua by ruling against the United States for the breach of
customary international law. The United States was accused of supporting the
Contras (a right-wing rebel group) in their rebellion against Sandinistas (a
socialist political party in Nicaragua) and mining Nicaragua’s harbours. The
acts of the United States were found to be interference in the internal affairs of
Nicaragua and it was convicted of using force against another state. It directed
the United States to cease all the illegal acts and to make reparations to the
Republic of Nicaragua.

The area of international law is complex and, to an extent, ambiguous. With

the involvement of a number of nations, each having its own set of laws and
customs, and in the absence of a worldwide police or enforcing mechanism, it
becomes extremely difficult to make the countries agree to a particular set of
norms to be followed. Yet, through the development of various organisations
such as the United Nations Security Council, International Court of Justice,
International Criminal Court, etc. this much sought compliance of the countries
has been achieved. There are various ways in which a country may be made to
adhere to the treaties to which it is signatory, many of which are diplomatic
and economic sanctions The countries can also approach an unbiased third
party that is the International Court of Justice.

If a country is found guilty of violating the international law by breaching its

obligations under the treaties to which it is a signatory or by flouting the
customary international laws, it can be directed by the Court to immediately
cease the illegal acts and make reparations for the damages caused by the
said act. The country in default also needs to assure that it will not repeat such
behaviour in the future. Thus, international peace and security are maintained
and the interest of all the nations is furthered by peaceful cooperation.

UNIT-V

Law of the Sea

Shipping and fishing are the main areas of the sea. Depending on human
development, there were many cases of the use of technology, and sometimes
they attempted to satisfy the needs of human beings. Many other resources
and minerals, natural gas, oil, sand and gravel, diamonds, gold and other
resources were made from the seabed. With the development of trade in the
20th century and the inexhaustible realization of sea use, the classic principle
of “Freedom of the Sea ” was pushed into the background.

Codification of the Law of the sea

After 1945, once the UN was set up, it was decided by the UN security council
and the Secretariat that there was a need to codify existing rules especially
with regards to the Law of the seas and to come out with a permanent solution
vis-a-vis the maritime territorial limit of any country.

With this view, the UNCLOS was passed, which codified the existing customary
rules, and it came into force in 1999, even though the agreement was signed
in 1982.
Since 1945, almost all the countries of the World have replaced the “cannon-
shot rule” with 12 nautical miles rule under which an area of 12 nautical miles
from a country sea coast is presumed to be the exclusive maritime limit of one
country, and these rules are also acknowledged and accepted under the
UNCLOS rules and regulations.

A classified example of maritime disputes existed between India and Sri Lanka,
commonly known as the Ram Setu Bridge, connecting Dhanushkodi in India to
Talaimannar in Sri Lanka.

What is UNCLOS?
UNCLOS stands for the United Nations Convention for the Law of the Sea.
It is also known as the Law of the Sea. It is an international agreement or
treaty which establishes rules and guidelines for using the world’s oceans and
seas, so as to use and conserve marine resources and to secure the
preservation and protection of all the living beings of the sea. The treaty was
signed on 10 December 1982 in Montego Bay, Jamaica, as a result of the
United Nations Conference on the Law of the Sea, which took place from 1973
to 1982, and came into force in 1994.

What is the role of this convention?

The convention defines several maritime zones. Namely the baseline, the
territorial waters, the contiguous zone, the exclusive economic zone, the
continental shelf, the international seabed area. The exclusive economic zone
is international water, which can be accessed and used by each country for
economic purposes. It is currently the dominant law of the sea.

There is no limit or boundary set for commercial or marine business in these

international waters.

What is the history of this convention?

Several countries have expressed a desire to expand national maritime

information, use natural resources, protect fish stocks and reduce pollution.
For this purpose, the League of Nations held a conference at The Hague in
1930 but failed to reach an agreement. In the 20th century, technological
development in fisheries and oil production have increased the maritime scope
in which countries can find and use natural resources.

This motivated the President of the United States, Harry S. Truman, in 1945 to
increase the U.S. jurisdiction outside of all of its continental shelf natural
resources, far beyond the Country’s territorial waters.

Grotius’s concept “Freedom of the Sea” became practically universal in the

20th century due to the global dominance of European navies.
National rights and jurisdiction over oceans are limited to certain water belts
that stretch from the Country’s coast, usually 3 miles (5.6km), according to
Bynkershoek’s “cannon fire” rules.

the restrictions given for foreign ships to enter into the territorial waters at a
host was known as the “Doctrine of innocent passage” and if a foreign
vessel was exercising to the innocent passage, then no conditions were
allowed to run any over or over operations against the territorial integrity of
the host State

According to the maxim “Mare Liberum” all water outside the Country’s
border is considered as the international waters which is free for all countries,
but not for anyone.

Responding to British lawyer Grotius, John Seldon argued in a saying called

“Mare Clausum” that the sea was able to seize sovereign power like land and
territory. Seldon rejected Grotius’s assumptions, arguing that there was no
historical system for treating the sea differently from the mainland, and there
was nothing inherent in the nature of the sea that prevented the State from
controlling its parts. Basically, International Law can frame the National
jurisdiction that appears above the sea.

India’s position on territorial waters

India’s position in relation to the Law of the sea is generally governed
by Article 297 of the Indian constitution and laws on waters, continental
shelf, EEZ and other maritime zones. Maritime zone Law defines Indian
sovereignty over the waters and the seabed, as well as the land and airspace
above those waters. An area of the boundary line is where each point is 12
nautical miles from the closet point to the baseline. All foreign vessels have
the right pass that is innocent passage through territorial waters.

Case dispute

The South China dispute

Facts
5000 years ago, China was governed by the Ming dynasty, who were also
famous as Terracotta warriors.

In a navel map, at the times of the Ming period, the entire region, boarding the
south China sea along the coast of Vietnam, Indonesia and the Philippines
were shown to be Chinese territory.
In the present times, the Chinese government has claimed these areas under
the South China sea, coming within the territorial waters of many southeast
Asian Nations as its own territory.

The Chinese called this new boundary as the (nine-dash line) territory.

In 1988, the Imperial Chinese navy with the support of the Chinese air force
repeatedly intruded into the territory of water of the Philippines and started
the construction of artificial islands called the Spratly and Johnson group of
islands.

The Philippine government strongly protested this movement on the grounds

that the disputed territory was within the maritime limit of Philippine Sea
waters and China had violated the territorial sovereignty of Philippine.

Repeated requests were made by the Philippine government to the Chinese

authority to stop construction in the disputed territories, but it was openly
ignored by the communist party of China and since1988, the Chinese
government has built a series of smaller artificial islands, military installations,
air force and naval bases to further strengthen the Spratly and Johnson
islands.

In 2015, the Philippine government approached the PCA (Permanent Court

of Arbitration) to resolve the South China Sea dispute, where the Chinese
government did not appear before the PCA. The PCA categorically held that
(nine-dash line) theory of China was grossly inaccurate, construction of Spratly
and Johnson islands were illegal, China had violated almost all its treaty and
obligations, which are coming under UNCLOS and violation of Customary
International Law and more specifically in Article 2(4) of the UN Charter.

After Judgement
China refused to agree to the decision. After the decision of the PCA, the
Chinese navy started building large seaports in the Spratly harbour, so that
Chinese naval aircraft carrier fighter squadrons of the Chinese air force can be
permanently posted in the Spratly armed forces base.

Since 2016, China has started building more islands in the territorial waters of
even Vietnam, Indonesia and Malaysia and is now claiming that the nine-dash
rule is actually correct and they would actually keep on building more islands
in the south China sea.

Contiguous Zone
The contiguous zone is the part of the sea that is outside and adjacent to the
territorial waters of a coastal country. This is not the object of a subsidiary, but
in this coastal country, they can exercise certain jurisdictional rights. The
concept of an adjacent zone develops because countries cannot effectively
protect all their interests because of the limited interference on the territorial
sea. The 1982 convention established the concept of an exclusive economic
zone (EEZ) which fully covers the contiguous zones.

According to Article 33 of the 1982 Convention, Contiguous zone must not

be more than 24 nautical miles from the baseline where the territorial
sea area is measured. Thus the area of the contiguous area is 12 miles from
the territorial sea.

India’s position on contiguous zone

India has claimed the contiguous zone to the extent of 24 nautical miles by
enacting the Maritime Zones Act of 1976.

Continental Shelf
According to W.Friedman, the continental shelf can be defined as the zone
around the continent that extends from a low water line to depth and usually
marked towards greater depth. What is commonly referred to as a “continental
shelf” is a sloping platform that covers continents and islands. This is a
submerged seabed that borders continental landmass and is found as an
extension or part of that land. It usually extends to a depth of about 200
meters.

The coastal countries have limited sovereignty rights on the continental shelf
to explore and use “natural resources”, not sovereignty.

India’s position on the continental shelf

The Maritime Zone Act defines India’s position that India has declared a
continental shelf 200 nautical miles from land. Indian rights and
obligations under this command are similar to those in other countries, as
stipulated in international conventions. But, the government can declare the
continental shelf and its magical waters for a certain area and take action to
regulate it.

Exclusive Economic Zone

An exclusive economic zone is a sea zone prescribed by UNCLOS, over which a
State has several rights regarding the exploration and use of marine resources
including energy production from water and wind. It stretches from the
baseline, until 200 nautical miles (370.4 km) from its coast. In
geographical terms, the EEZ may also include the continental shelf.

The main difference between the territorial sea (12-mile rule) and the
exclusive economic zone is that while the territorial sea confers full sovereignty
over the waters, EEZ is merely a sovereign right which refers to the coastal
State right below the surface of the sea.

An example of an exclusive economic zone is the Bombay High, between 73 to

74 nautical miles of the Indian coast which is used for oil exploration by the
Indian government.

India’s position on EEZ

Section 7 of the Maritime Act of 1976 provides exclusive rights for the
purpose of exploring and exploiting the natural resources within EEZ.

Flag State rule

For legal purposes, a vessel, ship, aircraft, the submarine has to be registered
in a particular country, and for all practical purposes, it must fly or display the
flag of the registered country.

The Flag State rule is applicable for both military and commercial ships, also
for all kinds of oil tanks and even cruise ships.

As of now, Liberia and Panama are the two countries which have a maximum
number of ships registered but most of the ships are broken down and sold as
junk in Alang, Gujarat.

The Flag State rule principle has also been implemented under Part VII Article
92 of UNCLOS and even in environmental disputes, the Flag State rule can be
implemented under Article 217(1) of UNCLOS, 1982.

S.S Lotus case (France Vs. Turkey, 1927)

Fact
In 1925, after Mustapha Kemal pasha started liberalising the Turkish economy,
Turkey started to expand the trade abroad with other countries. Unfortunately,
a French vessel S.S lotus and Turkish ship S.S Bozkurt collided, because
of which the Turkish ship damaged and killed 8 Turkish Nationals on board of
Turkish vessel. The remaining survivors of the Turkish ship were taken to
Turkey onboard S.S lotus.

In Turkey, the captain of the French ship, and the first watch officer, Monsiver
Demons, were charged with manslaughter and Demons was sentenced to
imprisonment and fine. The French government demanded the release of
Monsieur Demons and the transfer of his case to the French Court. Turkey and
France agreed to refer the dispute to the PCIJ (Permanent Court of
International Justice).
 Judgement
The French and the Turkish government were strongly blaming each other and
Monsieur Demons was being charged by the Turkish government for knowingly
causing the accident. The French government further contended that only they
have a right to trial the individual because the incident involved a French ship
and a French National.

The PCIJ held that Turkey had violated no norms of International Law by
instituting a case against Monsieur Demons and also had no rights to prosecute
him.

After this judgement, there was a huge criticism and after the formation of the
United Nation, certain changes were brought in the Flag State rule.

High Seas
The high seas mean, all the parts which are not coming under EEZ, territory or
inland waters of a country. This rule was formulated by Grotius in his maxim
on “Mare Liberum” in 1609 and claimed that the sea could not be owned by
anyone.

As a result, all States supported that ships can go and use freedom of
navigation, fight, fishing and building artificial islands etc. But, the command
has been considerably changed under the convention on the Law of the sea of
1982.

Article 87(2) of the convention lays down the limitation of the general nature
on the freedom of high seas by stating that the freedom of the high seas
“shall be exercised with due regard to the interests of other States in
their exercise of the freedom of high seas”. The 1982 United Nations
Convention on the Law of the Sea (UNCLOS) creates a comprehensive
command to govern the rights of nations in respect of the world’s oceans.
International Maritime Organization (IMO) is a specialized agency of the United
Nations responsible for improving maritime safety and preventing pollution
from ships.

Life itself arose from the oceans. Even now, when the continents have been
mapped and their interiors made accessible by road, river and air, most of the
people in the world live no more than 200 miles from the sea and relate closely
to it.

Outer space
Space is an area that is not divided into parts for each country and has no
boundaries. It is limitless. But have you ever wondered, to whom the moon,
the stars, and the other celestial bodies belong to, who has the property rights
conferred upon him/her and, what are the rules governing the exploration of
space? Well, in this article we will discuss how the space laws govern the
exploration of space and who is allowed to govern it.

Soon after the Soviet Union launched Sputnik in 1957, the United Nation
framed the United Nations Committee on the Peaceful Uses of Outer Space. Let
us discuss UNCOPUOS in-depth.

United Nations Committee on the Peaceful Uses

of Outer Space (UNCOPUOS)
The General Assembly in 1959 set up the United Nations Committee on the
Peaceful Uses of the Outer Space. It was formed for the regulations of the
exploration of space. It makes it mandatory that the usage of the space should
be done in a peaceful manner for peace, security, and development. It was
also set up to govern international co-operation with regards to peaceful usage
of space. This committee studies all the activities related to space that could
be performed by the United Nation and the legal issues and matters that would
come on the way during the space utilization.

This committee concluded 5 treaties and created 5 principles. Every year

during the sitting of this Committee, it discusses the handling of space-related
activities to assure that the development goal is met globally. Now, we would
agree that with the technologies evolving and advancing, space is also
witnessing new challenges. Therefore, this Committee decides upon all the
development programs and agendas.

In 1961, the Committee set up its two subsidiaries, Scientific and Technical
Sub-committee and the Legal Sub-committee. This Committee meets at
Vienna, Austria, every year, to discuss the future activities that would be
undertaken. The following matters are a concern for the Committee and are
governed by it:

• Maintenance of outer space for peaceful purposes,

• Operations conducted in the space to be safely carried out,
• Space debris,
• Weather in the space,
• Threat from asteroids in space,
• The use of nuclear power in outer space for peaceful purposes,
• Climate change,
• Water management,
• Global navigation satellite.
We will now analyze its
two sub-committees,

Scientific and Technical Sub-committee and Legal Sub-committee:

Scientific and Technical Sub-committee

The Scientific and Technical sub-committee meets for two weeks, annually.
It analyzes the Scientific and Technical aspects of the activities related to
space exploration. This committee discusses the following topics:

• Space weather,
• Objects near the Earth,
• Usage of space technology for socio-economic development,
• Disaster management,
• Global navigation satellite systems,
• Sustainability of outer space activities for the long-term.

Legal sub-committee
It also meets for two weeks, every year. Unlike the Scientific and Technical
sub-committee, it discusses the legal matters and issues arising out of space
exploration and related activities. It analyses legal questions asked by the
various countries and discusses them further.

Topics include:

• The status and application of the five United Nations treaties on outer
space,
• Defining and creating limits of outer space,
• Legislating the matters of space,
• Legal mechanisms relating to space debris mitigation,
• International mechanisms for cooperation in the peaceful exploration
and use of outer space.
It consists of five offices, which are:

• 1st Vice-Chair
• 2nd Vice-Chair
• Rapporteur of the Committee
• Chair of the Scientific and Technical Subcommittee
• Chair of the Legal Subcommittee
At a time, all of these offices are held for a period of two years. It rotates
among the five regional offices, which includes, African Group, Asia-Pacific
States, Eastern European States, Latin American and Caribbean States,
and Western European and other States. It makes certain that the
committee and the sub-committees discharge their functions properly and all
the sessions are successful in their operation.

Treaties concluded by UNCOPUOS

The 5 treaties which were concluded by the United Nations Committee on the
Peaceful Uses of Outer Space are:

1. Outer space treaty

2. The Moon Treaty
3. Rescue Treaty
4. Liability Treaty
5. Registration Treaty

Through these Treaties, UNCOPUOS upheld that the moon and other celestial
bodies belong to all the countries and the space is open for exploration and
usage by every country in the world, provided that it is for peaceful usage.

Let us quickly have a look at them.

Outer space treaty

The Outer Space Treaty is a very famous treaty that provides for the
framework for the exploration of space in a way that does not harm the space
environment or cause any kind of damage. It should be peaceful in all aspects.

The Moon Treaty

The Moon Treaty is a multilateral treaty which talks about the activities carried
out on the Moon and other celestial bodies. Basically, it has jurisdiction
regarding the Moon and other celestial bodies, over every participant nation.

Rescue Treaty
In the Rescue Treaty of 1968, it provides that in case an astronaut in space is
in danger or is suffering, then the States will take all the possible actions to
rescue that astronaut and bring him back to the launching site. It also includes
bringing back space objects. The states can further provide assistance to the
state from where the space object was launched.
By January 2019, ninety-eight states had ratified the Rescue Agreement of
1968. In its early stages, it was considered and negotiated by the Legal sub-
committee of the UNCOPUOS.

Liability Convention
Liability Convention, also known as the Convention on International Liability for
Damage Caused by Space Objects, talks about the rules related to liability. By
2019, ninety-six states have signed and ratified it whereas 19 states have
signed but have not ratified it as of now.

Talking about the four international intergovernmental organizations that are,

the European Space Agency, the European Organisation for the Exploitation of
Meteorological Satellites, the Intersputnik International Organization of Space
Communications, and the European Telecommunications Satellite Organization,
they have accepted their rights and have obligated themselves to follow the
rules provided in it.

This Treaty generally provides that if one state has launched any space object
and the same cause any damage thereto, the state will be completely liable for
the damage caused. To give you an illustration, “State Y” launched a space
object which caused some sort of damage, for instance, adds to the debris in
the space, then “State Y” will only be held liable for it.

Registration Treaty
Registration Convention, also known as The Convention on Registration of
Objects Launched into Outer Space, obligates the States to provide for the
orbit of each space object. A registry to provide for the information related to
launching is already being maintained by the United Nations as a result of the
General Assembly Resolution of 1962.

By the end of 2018, 69 states had already signed and ratified it.

The Outer Space Treaty

We will discuss the Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and Other Celestial
Bodies which is contained in Part A of this Treaty.

Treaty on Principles Governing the Activities of States in the Exploration and

Use of Outer Space, including the Moon and Other Celestial Bodies- Part A

Article 1

The exploration of space will be the territory of all the states, irrespective of
the socio-economic conditions or the scientific and technical development of
the nations.
The exploration of the uses of outer space will be done for the benefit and
development of every state.

The participant states are free to conduct a scientific investigation in matters

related to outer space, including the Moon and other celestial bodies.in this
case, all the participant states should facilitate and encourage international
cooperation and avoid hindrance in such investigation.

We will discuss Article 2 while discussing property rights on the Moon, so, for
now, we will be discussing Article 3.

Article 3

All the participant states, carrying out activities on the moon and other
celestial objects with regards to the exploration of space, will do it in
accordance with the international laws and also, in accordance with the
United Nations Charter.

This will make sure, such activities maintain peace and security of all the
states and promote international cooperation and peace among all the
participating states.

Article 4

This Article instructs the States to not place any space object in the orbit
of space that carries any nuclear weapon or a weapon that can lead to
mass destruction. It also prohibits the state from installing such weapons on
celestial bodies or station nuclear weapons in space in any other manner.

It further provides that the Moon and other celestial bodies are reserved for
peaceful exploration, exclusively by all the states. So, the establishment of
any military base and installations and fortifications, the testing of any
kind of weapons and the conduct of military maneuvers on celestial
bodies are forbidden completely.

Anyways, the use of military personnel for any scientific or technical research
or for any other peaceful purposes is not prohibited under this Article. Also, the
use of such equipment or facility for the exploration of the Moon and other
celestial bodies is not forbidden.

Article 5

All the nations who are a part of this Treaty will consider astronauts as
diplomat of mankind and will provide all the necessary and needed
assistance which could be provided, under the circumstances when their life is
in danger, such as when there is an accident, condition of distress or when the
spacecraft had to follow an emergency landing on the State of another territory
or on the high seas.
In such cases, the astronaut will be brought back with all safety measures.
This Article also instructs the astronauts to provide each and every assistance
possible to the astronauts of other states in carrying out space activities.

The astronauts on discovering any activities or phenomena on outer space

(including the Moon and other celestial bodies) of such a nature that can cause
danger to their health and life, shall immediately inform it either to the
Secretary-General of the United Nation or to the other members or participants
to the Treaty.

Article 6

All the participant states shall have international responsibility for all the
national activities carried out in outer space, including the Moon and
other celestial bodies. The carrying out of these activities by government
entities or a non-governmental agency does not matter.

The states should make sure that these activities satisfy the provisions laid
down in the present Treaty.

It would be required on the part of the concerned participant state to supervise

and authorize all the activities of the non-governmental agency.

If activities are carried on by some international organization, the

responsibility to govern and authorize shall lie to both the International
organization and the state party to such a treaty related to the International
organization.

Article 7

A state party who is a participant nation in the treaty launches or

acquires the launching of the space object into outer space, including the Moon
and other celestial bodies or the state party from whose territory the launch is
made, will be internationally liable for all damages incurred by the other
state party to the treaty.

The damage covers every damage caused by the object as a whole or any of
its parts to the earth, air space or to outer space itself.

Article 8

The jurisdiction over the space object and the personnel therein will be of
the state from whose territory the space object was launched until the
space object is in outer space.

The ownership of the objects landed on the space or constructed on the

celestial body or any part of the space object, is not affected by their presence
on the space or on the celestial body or their return to earth.
If such objects are found beyond the territorial limits of the particular state to
which it belongs, it will be returned to that state provided that the owner state
gives some identification data relating to the space object.

Article 9

The exploration of space, including the Moon and other celestial bodies should
be carried out on the principles of mutual cooperation and assistance.
Every state shall take care of the interests of the other participant states and
would give due respect to each other.

The Participants states will conduct studies of the space activities and conduct
such activities which will help avoid the harmful contamination and also to
avoid the inducing of such adverse changes in the environment of the Earth
which will introduce extraterrestrial matter.

In such a case if necessary, the states should adopt appropriate measures for
this purpose.

Let us look at some situations.

• In case, the state party to the Treaty has reason to believe that an
activity or experiment that is taken up by itself or its nationals and
can cause damage to any other states party to the Treaty, it should
undertake appropriate international consultations before it proceeds
with such activity on the space including the Moon and other celestial
bodies.
• In case, the state has a reason to believe that a space activity or
experiment planned by some other state who is a party to the threat,
can in future cause damage or can prove to be a danger, can request
a consultation regarding such activity or experiment.
Article 10

The member state should consider any requests by other States Parties
to be afforded an opportunity to observe the flight of space objects launched
by those States This order is necessary to ensure the activities related to the
exploration of outer space, including the Moon and other celestial bodies, are
carried out in a manner which ensures equality and co-operation among all the
member states.

The nature of such activities to be carried out and the conditions under which it
can be afforded will be decided by an agreement between the participant
states.

Article 11

To promote international cooperation among the state party to the

treaty, for the exploration of outer space, including the Moon and other
celestial bodies, the state parties should agree to inform the Secretary-General
of the United Nation as well as the public and the international scientific
community. The information should contain the nature, conduct, locations and
the result of the activities undertaken, to an extent that is feasible and
practicable.

Article 12

All stations, installations, equipment and space vehicles on the Moon

and other celestial bodies can be accessed by all the representatives of
other States Parties to the Treaty. This could be done on the basis of
reciprocity.

All of these representatives will give prior notice of a projected visit which
should be reasonable enough. This would be done in order to ensure that
appropriate consultations are held and to let maximum precautions be taken to
assure safety, also, to avoid interference with normal operations conducted in
the facility to be visited.

Article 13

The provisions of this Treaty shall apply to every activity of States Parties
to the Treaty in the exploration and use of outer space, including the Moon and
other celestial bodies.

It is irrespective of such activities carried on by a single State Party to the

Treaty or jointly with other States. It involves cases where such activities are
carried out within the superintendence of international intergovernmental
organizations.

The States Parties to the Treaty will resolve any relevant questions that arise
in regards to the activities carried on by international intergovernmental
organizations towards the exploration and use of outer space, including the
Moon and other celestial bodies.

It has to be done with either the appropriate international organization or with

one or more States members of that international organization, which are
parties to this Treaty.

Article 14

• This Treaty should be signed by all states without any

discrimination. In case, any state has not signed this Treaty before
it came into force then according to paragraph 3 of this article, the
state can agree to it at any time after.
• This Treaty shall be subject to ratification by the signatory states.
Instruments of ratification and instruments of accession will be
preserved by the Governments of the following countries:

1. Union of Soviet Socialist Republics,

 2. The United Kingdom of Great Britain,
3. Northern Ireland,
4. The United States of America.
These are designated as the Depositary Governments.

• This Treaty will enter into force when the deposit of instruments of
ratification by five Governments including the Governments
designated as Depositary Governments under this Treaty, is
complete.
• For States whose instruments of ratification or accession are
deposited after this Treaty has come into force, so, it will be included
on the date of the deposit of their instruments of ratification or
accession.
• The date of each signature, the date of deposit of each instrument of
ratification of and accession to this Treaty, the date of its entry into
force and other notices should be informed without any delay to all
signatory and acceding States by the Depositary Governments.
• This Treaty shall be registered by the Depositary Governments
subsequent to Article 102 of the Charter of the United Nations.
Article 15

Any participant state of the Treaty can give proposals to bring certain
amendments to this Treaty. Amendments will be done only after the
proposal is accepted by a majority of the States which are party to the Treaty.

These amendments will come into force for the member state, who proposed it
just after it is accepted by the majority and for the rest of the member states
on the date they accept it.

Article 16

Any participant state to the Treaty can withdraw by giving notice to the
Depositary Governments regarding its withdrawal from the Treaty.

This could only be done one year after its entry into force whereas such
withdrawal shall take effect one year from the date of receipt of this
notification.

Article 17

This Treaty shall be deposited in the archives of the Depositary Governments.

It may contain texts in Chinese, English, French, Russian and Spanish.

Also, certified copies of this Treaty which are duly signed will be transmitted by
the Depositary Governments to the Governments of the signatory and
acceding States.
Who owns the Moon
The fact is that many persons and organizations have claimed Moon to be
owned by them. We will be learning about those claims but firstly, we will look
at what the Outer Space Treaty and the Moon Treaty have a say in this matter.

Article 1 of the Outer Space Treaty says that outer space including the Moon
and other celestial bodies is free for access by all states of the Treaty the
activities related to the exploration of space. It means that it will be available
without any discrimination to all the participant states and no particular state
will have its right over the Moon and the other celestial bodies.

It will work on the principles of equality and with respect to international law.

Now let us look at Article 2 of the Outer Space Treaty, which says that the
outer space, including the Moon and other celestial bodies, is not subject to
national appropriation by claim of sovereignty, by means of use or
occupation, or by any other means.

It clearly states that no country can claim such property rights on the Moon.
Therefore, the Outer Space Treaty upheld the concept of res
communis (common heritage of the man).

Some significant claims on the Moon and other celestial bodies:

• Dennis Hope- he is an American entrepreneur. He is said to sell

extraterrestrial real estate. Now, what is extraterrestrial real estate?
It is the claim to own on planets other than Earth or natural satellites
or any other part of the space. It could be made by any organizations,
individuals, and scam artists. Such claims are not recognized by any
authority and have no legal standing.
Now apparently, in 1980, he established his own business name, the Lunar
Embassy Commission. Lunar Embassy is not recognized by any authority but
Denis Hope has claimed to have sold 2.5M 1-acre of land on the Moon, for
around US$20 per acre.

He keeps the map of the Moon in front of him and points out to the plot to be
sold while his eyes closed. This is how he allocates the land to be sold. He
claims that two former US presidents Jimmy Carter and Ronald Reagan were
his customers.

• Adam Ismail, Mustafa Khalil, and Abdullah al-Umari: In the year

1997, these three men belonging to Yemen, sued NASA for invading
Mars. They claim that they inherited Mars from their ancestors before
Mohammed. Their argument was based on the mythologies of the
Himyaritic and Sabaean civilizations that were in existence before
several thousand years B.C.
• Gregory W. Nemitz- Do you remember “Asteroid 433 Eros”, on which
“NEAR Shoemaker” landed in the year 2001. Well, he claimed the
 ownership of Asteroid 433 Eros and named his company “Orbital
Development”. Further, his company issued NASA an invoice of $20
for parking the spacecraft at the asteroid.
But, NASA, ultimately declined to pay, citing the lack of legal standing of the
claim.

Commercial Space Launch Competitiveness Act

of 2015
This Act is also known as the SPACE Act of 2015 or Spurring Private
Aerospace Competitiveness and Entrepreneurship, was passed by the House of
Representatives in May 2015. The Bill was passed unanimously by the Senate,
however, few amendments were made, which was further than assented by
Barack Obama, US President.

This Act provides an update for the government of the United States for the
use of space for commercial purposes.

This United States law allows its citizens to commercially explore the space and
exploit its resources such as water and minerals. It does not, however, cover
extraterrestrial life.

It forbids the United States to declare any sovereign right on any celestial
body.

But arguments prevail, contending that the use of the resources of the space is
an act of declaring sovereignty. And that it is violative of the Outer Space
Treaty.

If we look at the Space Act 2015, it was a great achievement for private
companies.

One of such companies is the Moon Express, it has plans to mine the surface
of the Moon.

It is just not limited to the Moon Express but indeed, there are many private
companies making some objectives to mine water on the surface of the Moon.
even NASA has two plans for doing the same.

Let us look at some features of the Act:

• It encourages private sector companies to involve in the activities

related to the exploration of outer space and using their resources.
• It also provides for the learning period which allows fledgling
spaceflight companies to carry out their operations without much
government oversight.
 • It gives private companies the right to exploit resources from
asteroids like platinum, minerals, and water.
The arbitrariness in the Outer Space Treaty provides mixed views about the
rights concerning the mining. It is still a matter of debate that the Outer Space
Treaty though provides for not claiming sovereign rights on the celestial bodies
but does not speak about asserting rights on the resources which are obtained
through mining. If we look at the Space Act 2015, it does allow the US citizens
to exploit the resources.

Debates regarding economic incentives are currently prevailing. Many people

believe, if a country is using its resources to discover things, for instance, a
mineral, on outer space (including the Moon and other celestial bodies), then it
should in return get some incentive or a right over it.

As we have talked about the Moon Express and other private companies to
mine water on the Moon, let us talk about their rationale behind it. According
to them, bringing water to the Moon is way more difficult than mining it on the
surface of the Moon itself. But the Outer Space Treaty, though vaguely, forbids
the use of the resources on the Moon. As it is not made clear completely there
is a necessity to affirm the exact rules governing it.