rules for the rightful

ix) Natural law is the basis for determining

conduct of the states.

He advocated for the freedom of sea

x)

xi) He formulated the rule that the prisoners of war should be

maintained adequately by the captor

xii) He pointed out that the prisoners of war are entitled to their

religious rights.

xiii) He stated that the diplomatic premises should be immuned from

search. In other words, the diplomatic premises should be
inviolable.

The contributions of Hugo a sort of law

Grotius helped to bring
in the lawless jungle of international relations. His work De Jure
Belli ac Pacis was the first adequate comprehensive book on
International Law.

Topic - II
The Sources of International Law
According to J.G. STARKE,the material sources of International
Law are the sources from which an International Lawyer
actual
determines the rules applicable to a given situation. The material
sources of lawis different from the formal source of law. The formnal
sources of law refers to the legal procedures and methods for the
creation of rules of general application. Material sources provides
the evidence of the existence of rules of general application.

The Material Sources of International Law, which can be referred

by an International Tribunal for deciding International disputes may
6
be classified into six categories.

i) International Custom
ii) International Conventions or treaties
iii)
General Principles of Law recogonised by civilized nations
iv) Decisions of Judicial or Arbitral Tribunals
v) Juristic Works
vi) Decisions or determinations of the organs of International
Institutions

Article 38 of the Statute Court of Justice

of International
recogonises only the first five sources of International Law. The 6th
source does not find mention in Article 38 of the Statute of International
Court of Justice. Nevertheless it has now become a well recogonised
SOurce.

(i) International Custom

International Custom is the oldest and the original source of
International Law. The importance of international custom.as a source
of law has been much diminished in the modern period. However,
even today it as one of the important sources of Interna
is regarded
tional Law. Article 38 (b)of the Statute of International Court of
Justice recogonises International custom as one of the sources of
International Law.

The Customary rules of International Law are the rules which

have been developed in a long process of historical developments.
Custom is the usages or the international habits which
International
have received the force of law. The words Custom and Usage are
used as synonyms. In fact,there is difference between them. Usage
is earlier stage of custom. It represents twilight stage of custom.
Usage is an international habit of action or rule ofaction that has not
yet received full legal attestation or the force of law. It refers to
those habits which are often repeated by the states. When the states
 in their international relations start behaving in a particular way in

certain circumstances, that behaviour is called the usage. When this

usage receives the general acceptance or recogonisation of the states

in their relations, the usage becomes the custom. A Custom is thas

usage which has obtained the full force of law. Where Custom begin
usage ends. When usage crytalises in itself it becomes a custom, A
customary rule emerges only when it is proved by satisfactory evidenca
that the alleged rule has been accepted generally by the states.

Main Ingredients of International Custom

are
A usage will become a custom if the following ingredients
satisfied.
i) Long duration.
ii) Uniformity and Consistency.

iii) Generality of practice.

iv) Openio juris et necesse tatis.

(i) Long Duration

The practice of a usage foran essential
a long duration is

ingredient of a custom in the municipal law. In Municipal Law

a custom
in order to be valid is required to be ancient
and immemoreal. But in
International Law a usage need not to be practised for a long period
in order to treat as a custom. In the
it field of nternational Law a
customary rule may develop in a short period. Rules relating to
sovereignty over air space is an example of customary rule emerged
in a short period.

(i) Uniformity and Consistency

A usage can be treated as a Custom if there is uniformity and
consistency. It is to be noted that complete uniformity is not necessary.
There must be substantial uniformity.

(iii) Generalityy of Practice

A usage in order to be treated as a custom, the practice should
8
 be observed or repeated by most of the states. If a usage is practised
only by a limited number of states it will not transform into custom.

(iv) Openio juris et necessetatis

In order to accept a usage as a custom, the most essential

ingredient is openio juris. The states should accept the rules of

practice as binding upon them. In other words the states should accept
the rules of practice as the law applicable to them.

West Rand CentralGold Mining Co. Ltd. V. R (1905)

In this case the court held that for a valid International Custom
the rules of practice should have been received general
consent of
the states and civilised states should not have opposed it.

Right of Passage over Indian Territory Case

(State of Portugal v. India (1960)
In this case the International Court of Justice
pointed out that
when a particular practice is followed by two states repeatedly for a
long time it becomes a binding customary rule (local custom) applicable
to them.

Facts of the case

Goa, Daman & Diu, Dadra and Nagar Haveli were three enclaves
under the possession and Sovereignty of Portugal. As per the treaty
of 1779 the Portugal had a right of passage through Indian
territory.
Even after India became independent the right of
passage through
Indianterritory existed. However the right was subjected to the control
and regulations of Indian Government. In 1954 the people of Dadra
revolted against the Portuguese Government. It resulted in some

disturbances over the boundary areas of Indian territory also. The

Government of India suspended the right of passage.

Portugal took this matter to the International Court of Justice.

The ICJ held that Portugal was not entitled to send its armed forces
9
through the way which fall in the Indian territory.

(ii) International Convention (Treaties)

The word a document embodying (containing)
'treaty' refers to
formal contract between states relating to peace, truce, alliance ete

International treaties are the most important source of

International Law in the modern period. Article 38 of Statute of

International Court of Justice recognises International Conventions

or Treaties as the first source of International Law. Whenever tho

International Court has to decide an International dispute its first

endeavour is to find out whether there is an international treaty on
the point or not. In case there is an international treaty governing the
matter under dispute the decision of the court is to be based on the
provisions of the treaty.

Prof. Schwarzenwerger defines International Treaty as follows:

"Treaties are agreements between subjects of International Law

creating a binding obligation in International Law".

Prof. Oppenheim defines lnternational Treaty as follows:

"International treaties are agreements of a contractual character

entered into between states or organisation of states creating

legal right and obligation".

Art 2(1) the Vienna Convention on

of the Law of Treaties 1969.
defines treaty as follows:

"An International agreement concluded between states in

written form and governed by International Law".

This definition excludes International organisations and thus not
a sound definition.
10
 They are -
two types.
treaties may be of
International

treaties
a) Law making
Treaty Contracts
b)

Treaties
a) Law Making the main source of International
was originally and
Although custom to be the most important
are considered
Law, recently, treaties of law making treaties
Law. The provisions
are
main source of International Law. Law making treaties
of lnternational
are the direct source a large
These treaties are entered into. by
treaties.
multi- lateral general rules
The law making treaties lay down
number of countries. is an example
of states. United Nations Charter
binding on majority

of law making treaty.

come existence increasingly

into
The law making treaties have were
of 19th century. According.to Hudson, there
from the middle
1864 to 1914 which could be treated
251 law making treaties during
The early treaties such as The Pace of
international Iegislation.
of
West phalia',1648, The Congress of Vienna (1815), Declaration
examples
Paris (1856), The Geneva Red Cross Convention 1864 are
of law making treaties.

The importance of law making treaties in the field of lnternational

municipal law.
law can be equated to that of legislation in the field of
The U.N Convention on Law of Sea, 1982,and Vienna Convention on
Diplomatic Relations, 1961 are examples of modern law making trea
ties.

b) Treaty Contracts
Treaty contracts are entered into by two or more states. The
provisions of such treaties are not binding on those states who are
not parties to it. Treaty Contracts are not direct source of International
Law. The treaty contracts may help the development of International
11
 Custom. When a similar rule is incorporated in number a of treaty

contracts a new international customary rule may develop.

(iii) General Principles of Law Recognised by Civilized

States
Article 38 (1) (c) of Statute of International Court of Justice

recogonises generalprinciples of law recogonised by civilised nations

as a third source of International law .
The expression General
means those
Principles of Law Recogonised by Civilized Nations'
principles which have been recoganised by municipal law of almost
all the states. The doctrine of res judicata, the doctrine of estoppel,
the doctrine of subrogation etc.,are examples of general principles
have received rec
recogonised b civilized nations. These principles
ognition of almost all the states.

Chorzow Factory Case (1928)

(Indemnity)
Court of International Justice (PCIJ),
In this case the Permanent

applied the principle of res judicata.

Mourommatis Palastine Concession Case (1924)

principle of subrogation.
In this case the court applied the

Temple of Preach Vihar (1962)

of Justice applied the doctrine
Inthis case the International Court
of estoppel

Barcelona Traction Case (1964)

of Justice applied the doctrine
Inthis case the International Court
of estoppel.

The I.C.Jhas also recognised the following principles as general

by civilized nations.
principles of law recognised

(i) A party to a dispute cannot himself to be an arbitrator or judge.

12
 and equal
the court shall give proper
(ii) In any judicial proceeding
both the parties.
opportunity of hearing to

Tribunal
(iv) Decision of Judicial or Arbitral
is the main International Judicial
The InternationalCourt of Justice
does not create any binding general
Tribunal. The decision of I.C.J
I.C.J makes it
International law. Article 59 of the Statute of
rule of
will not have binding
force except
clear that the decision of court
particular case.
between the parties and in respect of that

Previous decision of the I.C.Jare not binding on the court itself.

from its earlier decisions. Thus the court
The l.C.J is free to deviate
is not bound to follow the doctrine Stare Decisis or Precedent.
the court ordinarily follows its earlier decisions.
However, in practice,

(v) Juristic Works

Juristic works cannot be treated
as an independent source of
help inthe development of
law. However, theviews of the jurists may
to Article 38 of the Statute of I.C.J the works
of highly
law. According
qualified jurists are subsidiary
means for the determination of the rules
of International law.

the fishing
Paqueta Havana Case (1900), the court held that
In
in their work honestly
vessels and unarmed sailors who are engaged
blockade. In
and peacefully could not be seized during the state of
order to arrive at this decision the court relied upon the juristic works.

(vi) The Decisions and Determinations of Organs of

International Institutions

The Statute of recognise decisions and

ICJ does not
determinations of International organs as a source of International
Law. Nevertheless the importance of the decision and determinations
of International organs as a source of law cannot be
ignored.

13
 A protectorate state can become a member of International
Organisations.

5. Holy See or Vatican City

The Holy See is a small sovereign state having land territory of
about half square kilometer, and population
about 1000 composed of
of persons residing therein by virtue of their office. The Head of the

Catholic Christian, Pope is the monarch of the Holy See. The

Holy
See possesses an international peraonality despite being a very small
state. Vatican City is fully independent and sovereign state under
international law. It is not a member of UNO.

Topic - IX
Recognition of States
or
ConstitutiveTheory of Recognition & Declaratory Theory
of Recognition
or
De-facto Recognition and De-jure Recognition

State is the mnain subject of International law.

Recognition of a
state is an act by which an existing state acknowledges that the politi
cal entity whichrecognised possess
is all the essentials of statehood.
The essentials of statehood are
1. Permanent Population
2. Definite Territory
3. A Government
4. Capacity to enter into relation with other state

According to Prof. Oppenheim in recognising a state as member

of International community the existing state declare that in their
opinion the new state fulfills the conditions of statehood proposed by
International law.

33
 According to Fenwick, recognition is an act by which the members
of International community formally acknowledge that the new state
has acquired International personality.

The Institute of International law has defined the term 'recognition'

as follows:

the free act by which one or more states acknowledge the

"It is

existence of a definite territory of a human society politically organised

and capable of observing obligations of International law. It is an act
by which the existing states manifest their intention to consider the
new state as member of International community"

Theories of Recognition

There are two theories of Recognition'. They are:

i) Constitutive Theory
ii) Declaratory Theory

i) Theory
Constitutive
Hegal, Anzilotti and Oppenheim are the chief exponents of
constitutive theory. According to this theory a state
comes into
existence only when established states recognise it. Holland also
confers
supports the constitutive theory. In this view recognition
acquires rights
maturity upon states. This theory states that a state
and duties under international law only when the existing states
recognise it. Advocates of this theory hold the view that recognisation
is a process through which a political community acquires international
personality by becoming a member of family of nations.

According to this theory if a state

not recognised by othe
is

states it will have neith er duties nor rights under international law

This is a very absurd suggestion. If we accept the constitutive theon

34
as correct, it will create a difficulty to create a new state which is
recognised by some states but not recognised by others. The example
of China and Bangladesh can be cited in this connection. China was

not recognised by America and some western countries for a number

of years China possessed all the essentials of a State. During
although
the period when China was not recognised by some states it had rights
and duties under International law. Bangladesh was not recognised
for some time by China, Pakistan, and Albania. If we assert that Bang
ladesh did not have rights and duties under International law during
that period, it would be an absurd preposition. Thus constitutive
theory is not a sound theory.

i) Declaratory Theory

The chief exponents of this theory are Hall, Wagner, Brierly, Bitt

Carbet and Fisher. According to this theory state exists even though
there is no recognition. Recognition is only a formal acknowledgement
through which the existing states accept the established fact. The
act of recognition is only a declaration of an existing fact that a
particular state possesses all the essentials as required under the
International law.

Modes of Recognition
Or
De-facto Recognition and De-iure Recognition

Recognition may be of twotypes. They are:

(i) De- facto Recognition
(1) De-jure Recognition

i) De-facto Recognition
The practice of states show that in the first stage the states
give de facto recognition to a new or new Government. When
state

the recognised state feel that.the state which has received de facto
recognition is capable of fulfilling international obligations d jure
35
 recognition will be conferred.

According to Prof. Schwarzenberg, "When a state wants to delay

the de jure recognition of a new state it will grant de facto recognition

in the first stage because the state which is giving recognition doubts

that the state recognised may not be stable".

De facto recognition means that the state recognised possesses

the essential elements of statehood but its stability is doubtful. Under
de facto recognition diplomatic relations are not established. De facto
recognition is provisional. In the case of de facto recognition, the
recognising state establishing its relation with recognised state without
establishing diplomatic relations.

ii) De Jure Recognition

De jure recognition and permanent. It is granted when
is final

the recognised state possesses all the essential requirements of

statehood, and is capable of fulfillingobligations under

International

law.

The British practice shows that are requird for

three conditions

granting de jure recognition to a new state or a new Government.

They are:

i) The Government should have the general support of

the population.
ii)
There should be reasonable assurance of stability.

iii) The Government should be able and willing to fulfil its

international obligations.

De jure recognition is final and once given it cannot be withdrawn

De jure recognition results from an express declaration indicatin

clearly the intention to grant the recognition by establishing diplomat

relations.

36
 Distinction between De facto and De jure recognition

i)
Dejure Recognition is final and permanent.
De facto recognition is provisional and is liable to be
withdrawn.

ii) When granting De facto Recognition there will be no

diplomatic relation.

When granting De jure recognition there will be diplomatic

relation.

iii) Only the de jure recognised state or government can claim

to receive property situated in the territory the recognising
of

state. When there is a conflicting claim, the claim of the

de jure recognised government will prevail over the claim
of de facto government. This principle was established by
the decision in Emperor Haile.Seilassie v. Cable and Wireless Ltd
(1938).

Emperor Haile Cable and Wireless Ltd (1938)

Seilassie v.
The Cable and Wireless Ltd had entered into a contract in 1935 with
the Director of Posts, Telegraphs and Telephones of Ethiopia and was
runninga radio telegraphic service between Great Britain and Ethiopia.

The company owed some amount to the Government of Ethiopia. At that

time Italy conquered Ethiopia. Haile Seilassie, the Emperor of Ethiopia

went in exile to England. While there, the Emperor filed a suit against the
Company for the realisation of money due to the Government of Ethiopia.

At the time of institution of the suit,the British Government recognised

Italian Government as the de facto government of Ethiopia and Haile

Seilassie as the de jure emperor of Ethiopia.

The company admitted that the amountwas due to the Government

of Ethiopia, but it contended that it had received a letter from the Italian

37
Ambassador London that the amount due should be paid to the Italian
in

Government and not to the Emperor. But Justice Bennet held that the

title to sue forthe debt was vested inHaile Seilassie as the dejure
Emperor
of Ethiopia.

The Company prefered an appeal against the decision. While the

appeal was pending, the British Government recognised Italian
Government as the de jure Government of Ethiopia. The Court of Appeal
held that as the British Government started to recognise the Italian
Government as de jure Government of Ethiopia, sue for the
the right to
debt due to the Government was passed to the de jure government and
the suit instituted by Haile Seilassie was dismissed and the appeal was
allowed.

iv) When there is conflict of laws enacted by de jure government

will recognised
and de facto government, the English Court
only laws enacted by de facto
government as legally binding.

has been recognised by the decision in

The above said principle

Bank of Ethiopia v. National Bank of Egypt and Liguori.

Bank of Ethiopia Bank of Egypt and Liguori

v. National
The British Government
Italy conquered Abyssinia in 1936.
recognised Government as the de facto Government of Abyssinia,
Italian

and Emperor, who was in exile, was regarded as de

jure sovereign of

Abyssinia. The Government of Italy enacted some laws for Abyssinia.

The laws were in conflict with the laws of Emperor, who was in exile. The
question before the Court was which law is to as legally
be recognised
binidng. The Court held that the authority of the de jure ruler was merely

theoritical and was not capable of being enforced. Thus when there is

conflict between laws enacted by the de factogovernment and de jure

government, which has no control over the territory, the English Court will

recognise only laws of the de facto government as legal and binding.

38
 also claim immunity from legal
v) A de facto government can
government.
process as in the case of de jure

Arantzazu Mendi
During Spanish Civil Wars (1936-1938), insurgents led by General
territory. British Government
Franco occupied greater part of Spanish
de facto
recognised Government under General Franco as
Nationalist
Government as de jure
government and at the same time the Republican
a private owned Spanish Ship
Government. The Arantzazu Mendi was
of Bilbao by insurgents (
registered at Bilbao. After the occupation
Nationalist Government), the Republican
Government ( de jure
Mendiin its possession.
Government) issued a decree taking the Arantzazu
Atthis time, the ship was in the High
Seas. When the ship reached London,
possession of the ship.
the owner of the ship obtained a writ for taking
Thereafter the
The ship was arrested by the Admirality- Marshall.
issued a decree taking the
Nationalist Government led by General Franco

said ship and other ships in his possession.

The Nationalist Government
Court and argued that
claimed immunity from the jurisdiction of English
Court has no jurisdiction to decide the dispute. The
House of
the English
de facto government was entited to immunity from the
Lords held that the
and declared the warrant of arrest as invalid.
jurisdiction of English Court

Legal Effects of Recognition

The following are the main legal effects of recognition.

i) The recognised state becomes entitled to sue in the

courts of recognising states.

ii) The courts of the recognising states give effect to the

legislative and the executive acts of the recognised
states.

iii) The recognised state can claim diplomatic and

proprietary immunity in the recognising states.
iv) The diplomatic envoys of the recognised state will get
a number of privileges and immunities in the
recognising state.

39
 Consequencesof Non- recognition
The following are the consequences of non-recognition

state cannot sue iin the court of

i) A non-recognised
the state which has not conferred recognition.

ii) The non-recognised state can neither establish

diplomatic relation nor enter into treaties with the
states which have not recognised it.

iiü) Diplomatic representation of a non-recognised state

do not possess privileges and immunities in the states

which have not recognised.

A non -recognised state is not entitled to claim its

iv)
in the state which has not
properties situated
recognised it.

Retroactive Effects of Recognition

As a general rule States wilI first confer de facto recognition to a

State shows its stability de jure

new state. If the de facto recognised
De jure recognition is said to have
recognition will be granted.
is granted, i
retroactive effect. That means once de jure recognition
even from
wolud be treated that there was de jure recognition
the

date on which de facto recognition was granted..

Transport Incorporated
Civil Air
(CATI) v. Central Air Transpor

Corporation (CATC) (1955)

In this case Privy eventhough de jure recogniti

Council held that

will have retrospective effect to validate

the acts of de fad

Government, the retrospective effect will not have force to invalida

acts of the previous de jure Government.
40
 Topic - XI
Intervention
or
What is meant by
Intervention. ? When it is permitted
under International Law

The term intervention, has been defined by Prof. Oppenheim in

the following words:
"Intervention is the dictatorial interference by a state in the
affairs of another state for the purpose of maintaining or

altering the actual condition of things".

Under International law, in order to constitute interference of one

state in the affairs of another state as intervention the following
ingredients must be present.

i) The interference must be dictatorial ie., by actual force or

show of force.
i) The interference should be in the opposition to the will of

the affected states.

iii) The interference should have resulted in impairing the
political independence of the affected state.

International law prohibits intervention. However intervention

is permitted in exceptional situations. The following are the
interventions which are considered to be legitimate under International
law.

i) Intervention for Self- defence

One state wilt be justified for its intervention in the affairs of

another state when it is necessary for self - preservation.

In Corfu Channel Case (1949)the ICJ held that one state will

46
 be justified it has intervened
if
in the affairs ofanother state for se
preservation,

In this
case, two warships of Britain
while passing through the
Corfu Channel (the Corfu Channel constitues a
frontier between Albania and
Greece) were seriously damaged by the mines
in the Albanian territorial
waters. This resulted in damage to
the warships and to the death of
several persons. After two weeks, a unit of British navy conducted
mine sweeping operation in the Corfu Channel
without consent of
Albania.

A arose between Great Britain and Albania.

dispute
The matter
was referred to the International Court of
Justice.

The cOurt held that Albania was responsible for

damage since
she was negligent in not giving warning to the
ships and thus they
were liable to pay compensation. By conducting the mine
sweeping
operations the territorial waters of Albania, Britain had violated the
in

sovereignty of Albania and so they are guilty of intervention not

justifiable under International law.

This case established the principle that warships of a country

can, during peace time, pass through the territorial waters of another
state, if the territorial waters form an international
passage. The
passage should be inoffencive.

Article 51 of the UN Charter confers upon every state the right of

self-defence and in exercise of the right of self-defence a state can
intervence on the following grounds.

(a) There should be an armed attack on the part of the affected state.

(b) The right exists until the Security Council takes action.
(c) It should be reported to the Security Council.
(d) It should be subjected to the review of Security Council.

47
i) Intervention on the Humanitarian Grounds
state to check
A State be justified
will it
if intervene in the affairs of another
to human
human rights. The U.N Charter gives a place of significance
violation of
and fundamental freedom. Under the UN charter an individual state cannot
rights
of hurman rights in
intervence in the affairs of other state on the ground of violation

Charter permits the UN intervene in the affairs of a state

another state. The UN to

human and that causes a threat to International

when there is violation of rights

peace and security.

ii) Intervention in Civil Wars

war of any state. But the if

As a general rule U.N cannot intervene in the civil

international peace and
Civil war assumes such magnitude to pose a threat to
security,the U.N may intervene.

Topic - XII
State Jurisdiction

is the power of the state under International

State jurisdiction
includes
by its municipal law. It
law to govern persons and property
to enforce them. As
both the power to prescribe rules and the power
person and
a general rule a state can exercise jurisdiction aganist
property within its territory. Under International law a state can
in its territory. The Territory of a State
exercise absolute sovereignty

consists of the land within its boundaries and if the state is a coastal

sea which are within or adjacent to its land

state certain part of the
boundaries. A state can apprehend, prosecute and punish a person

whether its citizen or not, if he had violated its laws.

The jurisdiction of a state can broadly be classified into two

They are: (i) Territorial Jurisdiction and ()Extra territorial Jurisdiction

Territorial Jurisdiction

Territorial Jurisdiction refers to the power of the state to gove

48