IV YEAR OF 5 YEAR B.A.LL.

SEMESTER - VIII

EVEN SEMESTER

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SUBJECT : INTERNATIONAL LAW
SUBJECT CODE : FSG

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 SYLLABUS

FSG - INTERNATIONAL LAW

Unit - I Introduction :

International Law- Definition; Basis; nature and Weakness -Differences between

Public International Law and Private International Law - Codification.

Unit - II Sources of International Law.

Unit - III International Law and Municipal Law- Relationship.

Unit - IV Subjects of International Law:

State as a Subject - Rights and Duties or Responsibilities of State - Individual as a

Subject of International Law.

Unit - V State Succession and Liability.

Unit - VI Territorial Sovereignty - Modes of Acquisition and Loss of Territory; Jurisdiction;

Law of Sea; law of the Air.

Unit- VII Extradition and Asylum; Nationality Acquisition and Loss Related Problems -
Refugees - Nuremberg Trial.

Unit - VIII Diplomatic Agents - Consular Missions - their Position, Privileges and
Immunities.

Unit - IX International Treaties - Negotiations - Conclusion of Treaties - Various Stages -

Reservation; Observance of Treaties - Interpretation of Treaties - Suspension and
Termination of Treaties.

Unit - X International Organizations - UNO - General Assembly; Security Council;

International Court of Justice - International Tribunals.

Books for Reference

1. Starke : International Law

2. S.K. Kapoor : International Law
3. K.K. Bhattacharya : International Law
4. Agarwal : International Law
5. Oppenheim : International Law
6. Briely : International Law
7. Schwarzenegger : International Law
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 Unit – 1

Introduction
Public international law concerns the structure and conduct of sovereign states and
also Holy See. It also sometimes concerns multinational corporations and individuals. Public
international law has increased in use and importance vastly over the twentieth century, due
to the increase in global trade environmental deterioration on a worldwide scale, awareness of
human rights violations, rapid and vast increases in international transportation and a boom in
global communications.

Public international law combines two main branches:

1. The law of nations (Jus Gentium) and

2. The international agreements and conventions (Jus Inter Gentes)

Private international law is concerned with the resolution of conflict of laws international law
“consists of rules and principles of general application dealing with the conduct of states and
of intergovernmental organizations and with their relations with persons, whether natural or
legal or juristic.

International legal theory:-International legal theory comprises a variety of theoretical and

methodological approaches usedto explain and analyze the content, formation and
effectiveness of public international law.Some approaches center on the question of
compliance:

Classical approaches to International legal theory are:

1. The natural law: The natural law approach argues that international norms should be
based on axiomatic truths.

2. The EclecticIn 1625 Hugo Grotius argued that nations as well as persons ought to be
governed by universal principle based on morality and divine justice while the relations
among polities ought to be governed by the law of peoples, the jus gentium, established by
the consent of the community of nations on the basis of the principle of pactasuntservanda,
that is, on the basis of the observance of commitments.

3. The legal positivism schools of thought

• The early positivist school emphasized the importance of custom and treaties
assourcesof international law.

• 16th century the historical examples showed the positive law (jus voluntarium)
wasdetermined by general consent.

• Bynkershoek asserted that the bases of international law were customs and
treatiescommonlyconsented to by various states.

• Moser emphasized the importance of state practice in international law.

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 • The positivism school narrowed the range of international practice that might
qualifyaslaw, favouring rationality over morality and ethics.

• The 1815 Congress of Vienna marked the formal recognition of the political and
internationallegal system based on the conditions of Europe.

• Modern legal positivists consider international law as a unified system of rules

thatemanates from the states’ will. International law, as it is, an “objective” reality
that needs to be distinguished from law “as it should be.” Classic positivism demands
rigorous tests forlegal validity and it deems irrelevant all extralegal arguments.

Definition of International Law

Introduction :

The word " International law"is synonyms and equivalent to the words "law of nations
". It was first used by Jeremy Bentham in 1989. Prior it, International Law was known as the
law of nations. Most of jurists are of the opinion that International Law regulates a relation of
states with one another and they therefore define the term of International law as a law of
nations.

Traditionally International Law has been defined as, " a system of rules governing the
relation between the states only. Thus, it exists for governing the relationship between
different states ".

Some of the Definitions of International law are as Follows :

1) Oppenheim :

According to Oppenheim " Law of Nations or International Law is the name for the
body of customary and treaty rules which are considered legally binding by civilized States in
their intercourse with each other. (This Definition is subject to severe Criticism.)

2) Hall :

According to hall, " International Law consists in certain rules of conduct which the
modern civilized states regard as being binding on them in their relation with one another."

3) Hughes :

According to Hughes International Law is the body of principles and rules which
civilized States consider as binding upon them in their mutual relations. It rests upon the
Consent of Sovereign States."

4) J.L. Brierly -

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 " The law of Nations or International Law, may be defined as the body of rules and
principles of action which are binding upon civilized states in their relations with one
another."

5) G. J. Starke :

International Law may be defined as that body of law which is composed for its greater
part of the principles and rules of conduct which States feel themselves bound to observe,
and, therefore, do commonly observe in their relations with each other and which includes
also :

a) the rules of law relating to the functioning of international institutions or

organizations, their relations with each other, and their relations with States and individuals;
and

b) certain rules of law relating to individuals and non-state entities so far as the
rights or duties of such individuals and non state entities are the concern of the International
community.

6) Philip C. Jessup -

" Law applicable to States in their mutual relations with states "

7) Gray -

According to Gray "International Law or the law of nations is the name of body of
rules which according to the usual definitions regulate the conduct of the States in their
intercourse with one another. "

8) Kelsen -

" International Law or the Law of Nations is the name of a body of rules which
according to usual definition regulate the conduct of the states in their intercourse with one
another " .

9) Marel St Korowicz

Marel St Korowicz defines International Law as, "International Law is the Body of legal
rules which govern mutual relations of sovereign States, and also the institutions of other
legal persons and of Individuals, which are not Subject to the Internal law of any Particular
State.

10) Soviet definition and Approach to international law –

" Thesome total or the norms regulating relations between states in the process of their
struggle and co-operation, expressing the will of the ruling classes of these states and secured
by coercion exercised by states individually and collectively. "

Another eminent Russian writer defined International law as " the totality of norms,
which were developed on the basis of agreements between the states which govern their
relations in the process of struggle and co-operation between them, expressing the will of the

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ruling classes, and are enforced in case of necessity, by the pressure of the ruling classes,
and are enforced in case of necessity , by the
pressure applied either collectivelyor by individual tates.

Sir Robert Jennings & Sir Arthur Watts

International Law is the body of rules which are legally binding on states in their
intercourse with each other. These rules are primarily those which govern the relation of
states, but states are not the only subjects of international law. International organizations
and, to some extent, also individuals may be subjects of rights conferred and duties imposed
by international law.

Nature of International Law

Austin quotes that Sanction occupies an important place in the Enforcement of Law.
People follow because they are compelled to do so.Hobbes states that, man is by nature nasty,
brutish and violent fear or sanction is inherent in law is necessary to maintain order in
society.Thus they deny the legal character of international law as the command of the
sovereign having a coercive enforcement agency.

(i) Lacks Superior Political Authority

(ii) Lacks Effective Legislative Machinery

(iii) Lacks Sanction

(iv) Lacks Executive Power

(v) Lacks Potent Judiciary

Prof. Oppenheim defines that, “this definition of law does not cover the customary law
or unwritten law”.

Oppenheim thus defines law as, “a body of rules for human conduct within a
community which by common consent of this consent of this community shall be enforced by
external power”.

Basis of International Law

International Law has its true basis explained by two theories.

(i) Theories as to Law of Nature

(ii) Theory of Positivism

Theories as to Law of Nature

This Theory from the very beginning, explained that International Law is a part of
Law of Nature. It linked with religion and god. Vattel, Pufendrof, Christian Thomasius, etc.
propounded this theory of international law as divine law. Hugo Grotius secularized the Law

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 of Nature and was the first person to propound that all states are subjects of International Law
regulated by it as an individual.It linked with religion and god. Vattel, Pufendrof, Christian
Thomasius, etc. propounded this theory of international law as divine law. Hugo Grotius
secularized the Law of Nature and was the first person to propound that all states are subjects
of International Law regulated by it as an individual.

Criticism:

The meaning and purpose of ‘Law of Nature’ is elastic, vague, ambiguous and
uncertain. It is not based on realities as actual practice differs from the principles of law of
nature.

Positivism Theory

Positive means actual or certain. According to this theory, the law enacted by
appropriate legislative authority is binding and is based on actual practices of the States.
Bynker-Shoek, Hegel, Anzilotti, etc. are the main exponents of this theory.

Criticism: This theory accepts custom as a binding force in international law but fails
to explain as a source and binding force in states in international law.

Whether the International Law is law in the proper sense of the term?

INTRODUCTION: -

Austin in his definition of law has given more importance to sanction and fear in
compliance of law. In case of International law there is neither sanction nor fear for its
compliance hence it is not law in proper sense of the term. But now the concept has changed
and International Law is considered as law. There is no consideration of fear or sanction as
essential part of law. If fear and sanction are considered necessary then there are sufficient
provisions in UNO charter for compliance of the International Law as Law :-

According to Bentham’s classic definition international law is a collection of rules

governing relations between states. Two of the most dynamic and vital elements of modern
international law.

1. In its broadest sense, International law provides normative guidelines as well as methods,
mechanisms, and a common conceptual language to international actors i.e. primarily
sovereign states but also increasingly international organizations and some individuals.

2. Although international law is a legal order and not an ethical one it has been influenced
significantly by ethical principles and concerns, particularly in the sphere of human rights.
International is distinct from international comity, which comprises legally nonbinding
practices adopted by states for reasons of courtesy. e.g. the saluting of the flags of foreign
warships at sea.)

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 INTERNATIONAL LAW AS REALLY LAW

According to Oppenheim, International Law is law in proper sense because:-

 In practice International Law is considered as law, therefore the states are bound to follow
them not only from moral point of view but from legal point of view also.
 When states violate international law then they do deny the existence of international law
but they interpret them in such a way so that they can prove their conduct is as per
international law.

Starke while accepting International Law as Law has said, “that in various communities law is
in existence without any sanction and legal force or fear and such law has got the same
acceptance as the law framed and enacted by state Legislative Assemblies.

 With the result of international treaties and conventions International Law is in

existence.

U.N.O. is based on the legality of International Law. According to Prof.Briely, “To deny the
existence and legal character of International Law is not only inconvenient in practice but it is
also against legal thoughts and principles.”

 The states who are maintaining the international relations not only accept
International Law as code of conduct but has also accepted its legal sanction and
force. Prof. Hart, “There are many rules in practice which are honoured by states and
they are also bund by them, now the State Government accept the existence of
International Law.” According to Jus Cojens, “International Law may now properly
be regarded as a complete system.”
 It is pertinent to mention here that from the above noted contents it is clear that the
following grounds are supportive for accepting the International Law as law:-

 Now so many disputes are settled not on the basis of moral arguments but on the basis
of International Treaties, precedents, opinions of specialists and conventions.

 States do not deny the existence of International Law. On the contrary they interpret
International Law so to justify their conduct.

 In some states like USA and UK international Law is treated as part of their own law.
A leading case on the point is the, Paqueta v/s Habanna-1900. Justice Gray
observed that the international law is a part of our law and must be administered by
courts of justice.”

 As per statutes of the International Court of Justice, the international court of Justice
has to decide disputes as are submitted to it in accordance with International Law.

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  International conventions and conferences also treat international Law as Law in its
true sense.

 The United Nations is based on the true legality of International Law.

 That according to article 94 of UNO charter, the decisions of the International Court
of Justice are binding on all Parties (States).

 Customary rules of International Law are now being replaced by law making treaties
and conventions. The bulk of International Law comprises of rules laid down by
various law-making treaties such as, Geneva and Hague conventions.
 On the basis of above mentioned facts and arguments, the International Law is law in
true sense of the term. United States and U.K., treat International Law as part of their
law. In a case of West Rand Central Gold Mining Company Ltd., v/s Kind-
1905, the court held the International Law has considered it as a part of their law.
From the above analysis it is revealed that the International Law is law. The
International Law is law but the question arises as to what are the basis of
International Law. There are two theories which support it as real law:

1. Naturalist Theory:- The Jurists who adhere to this theory are of the view that International
Law is a part of the Law of the Nature. Starke has written, “States submitted to International
Law because their relations were regulated by higher law, the law of Nature of which
International Law was but a part.” Law of nature was connected with religion. It was
regarded as the divine Law. Natural Laws are original and fundamental. They incorporate the
will of the Governor and governed and advance their consent or will. That is why
international law is also based on natural law.

VattelFurfendorf, Christain, Thamasius, Vitona are the main supporters of this

theory.It was viewed that natural law is uncertain and doubtful but it is accepted that Natural
Law has greatly influenced the growth and has given the birth to International Law and its
development. Most of its laws are framed from Natural Law.

2. Positivist Theory:- This theory is based on Positivism i.e. law which is in the fact as
contrasted with law which ought to be. The positivists base their views on the actual practice
of the states. In their view customs and treaties are the main sources of International
Law. According to German economist, Heagal, “International Law is the natural consent
of states. Without the consent of states, no law can bind the states. This consent may be
express or implied.” As pointed out by Starke, “ International Law can in logic be reduced
to a system of rules depending for their validity only on the fact that state have consented to
them.” As also pointed by Brierly, “The doctrine of positivism teaches that International
Law is the sum of rules by which states have consented to be bound.” As said by
Bynkeshock, “The basis of International Law is the natural consent of the states. Without the
consent of states no law can bind the states.”

The critics of the above views say that consent is not always necessary for all laws. There are
some laws which are binding on states irrespective of their consent e.g. Vienna Convention

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on the Law of Treaties. Article 36 of the Treaty says that the provisions of the Treaty may be
binding on third parties even if they have not consented to it.

CONCLUSION: - Gossil Hurst says, “That International Law is in fact binding on states,
because they are states.” This is very much correct because every state in the world wants
peace, Law and order and that is possible only through existence of International Law.
Therefore it is in natural interest of States to accept the existence ofInternationalLaw.

International Law is the vanishing point of Jurisprudence.

INTRODUCTION:-

International Law is a new subject to the human beings. Hugo Grotiousthought to have
international law having a world-wide machinery to enforce rules. After 1st World War, the
international organization named “League of Nations” failed due to several reasons. After 2nd
World War, the United Nations Organization seemed to be successful in its operation.Several
Jurists like Holland, Austin, etc. say that Public International law is a vanishing point of
jurisprudence since there is no binding force and no machinery for its implementation.
Arguments given by these Scholars:

1. International Law has no binding Force.

2. It lacks sanction and force – the essential elements of municipal law.

Jurists have severely criticized the arguments of Austin and Holland. They say the signatories
are bound to follow the terms of treaties and conventions. “PactaSuntServanda”
(Agreements must Survive) and Consensus Ad Idem (Collective Agreements must be
established) are the principles behind the binding force.

Holland has remarked that International Law is the vanishing point of jurisprudence in his
view , rules of international law are followed by courtesy and hence they should not be kept
in the category of law. The international Law is not enacted by a sovereign King. It has also
no sanctions for its enforcement which is the essential element of municipal law. Holland
further say that International Law ass the vanishing point of Jurisprudence because in his
view there is no judge or arbiter to decide International disputes and that the rules of the I.
Law are followed by States by courtesy.

Austin also subscribes to this view, Justice V.R.KrishnaIyer formally member of Indian
Law Commission has also remarked, “It is a sad truism that international law is still the
vanishing point of jurisprudence. This view is not correct. It is now generally agreed that
Holland’s view that international law is the vanishing point of jurisprudence is not
correct.

But now it is well settled that International Law is law. It is true that International Law is not
enacted by sovereign and has no agency for its enforcement. But it is true that it is a weak
law. A majority of International lawyers not subscribe to this view is based on the

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 proposition that there are no sanctions behind international Law are much weaker than their
counterparts in the municipal law, yet it cannot be successfully contended that there are no
sanctions at all behind international law.
The jurists who do-not consider international law as the vanishing point of jurisprudence say
that there is difference between state law and International Law. International Law cannot be
enacted by the state but still there is agency for its enforcement. According to Dias,
“International Law is obeyed and complied with by the states because it is in the interests of
states themselves.”

For this object they give the following arguments:-

1. The judgements of International court of Justice are binding on States.

2. If any state does not honour the order/judgement of International court of justice, the Security
Council may give its recommendation against that state for action.
3. The judicial powers of International Court of justice (Voluntarily and compulsory) have been
accepted by the States.
4. The judgement of International court of Justice has been followed till date.
5. The system of enforcement i.e. sanctions and fear, has been developed.

For example :- If there is a threat to international peace and security, under chapter VII of
the U.N. Charter, the security council can take necessary action to maintain or restore
international peace and security. Besides this the decisions of the International Court of
Justice are final and binding upon the parties to a dispute.

The gulf war 1991 Iraq trespassed and acquired the whole territory of Quait in her
possession by violation of International Law. The Security Council passed a resolution
against Iraq and asked her to liberate Quait. But Iraq did not honour the resolution of Security
Council; hence therefore may economic and political restrictions were composed against
Iraq. But all in vain. Then USA and her allies were permitted to compel Iraq to honour
resolution of Security Council. Consequently USA and her allies used force against Iraq and
freed Quait.
The same action was taken against North Korea and Cango during the year l948 and 1961.
The Security Council imposed penalty against Libya for shooting down American Plane in
Lockerbie (Scotland) in 1992, consequently two citizens were also killed. The Security
Council forced Libyan Government to surrender two terrorists who were involved in this
mishap and Libya obeyed the order of S. Council.
The greatest proof of its utility and importance is the fact that its successor the International
Court of Justice established under the United Nations charter is based on the Statute of the
Permanent Court of International Justice, the United Nations & Security Council Charter
possess wide powers to declare sanctions against the states who are guilty of violence of the
provisions of the same under chapter-VII
Thus International Law is in fact a body of rules and principles which are considered to be
binding by the members of International Community in their intercourse with other. The

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legal character of International Law has also been recognized in 1970 Declaration on the
Principle of International Law Concerning Friendly relation and Cooperation among states.

Conclusion:- On the basis of above discussion it may be concluded that the International
Law is in fact law and it is wrong to say that it the vanishing point of Jurisprudence.

Is International Law a Mere Positive Morality?

Legislation stands in a superior position in the Administration of Justice. Whereas the

Legislation cannot dare to make law which is opposed to morals in the society. Morals do
regulate the conduct of men in the society. Both intersect and overlap each other.

Austin Quotes, “International Law is not true law, but a code of rules of conduct of moral
force only. Law is the command of the Sovereign. Law is the aggregate of rules set by men as
politically superior, or sovereign, to men as politically subject.”

Sl.No Law Morality

Law demands an absolute subjection to Morality demands that states should act
1.
its rules and commands from a sense of ethical duty.
2. Law has enforcing authority Morality has no such enforcing authority
3. It is heteronomous (Outer life of Men) It is autonomous (Inner life of Men)
4. It relates State relations with others Moral Principles does not relate
The Legal duty involves a
It is also accompanied by a corresponding
5. corresponding right and such right is
right but it is not enforceable
enforceable.
Legal rules admit the principle of Moral rules does not admit even in
6.
alteration principle
Morality also applies to all subjects but
7. The law applies to all subjects
depends from subject to subject
UNO has become organized and No such organization is found in
8.
enforcement machinery. enforcement.

Arguments given by these Scholars:

1. International Law has no binding Force.

2. It lacks sanction and force – the essential elements of municipal law.

Jurists have severely criticized the arguments of Austin and Holland. They say the signatories
are bound to follow the terms of treaties and conventions. “PactaSuntServanda”
(Agreements must Survive) and Consensus Ad Idem (Collective Agreements must be
established) are the principles behind the binding force.

Berubari’s Case (1960)

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 India and Pakistan had an agreement to transfer the area of Berubari to Pakistan in
1958.Berubari is a small area having 9 sq. miles and 12,000 populations in the state of west
Bengal.Several agitations and suits were filed against the agreement. Supreme Court gave an
advice to the president that the area can be transferred on a majority of opinion by the Indian
parliament. However, India handed over berubari to Pakistan as an “Act of State”.

Iraq-Kuwait Issue (1990)

Iraq occupied Kuwait. The Security Council and the General Assembly condemned
Iraq. But Iraq never cared. Hence the Security Council resolved to lesson Iraq to free Kuwait.
It imposed economic sanction and used force to on Iraq with the support of the member states
and freed Kuwait from Iraq.

South African Apartheid

The Security Council imposed economic sanctions on the South African government
white government condemning the apartheid policies. And the economic sanctions have been
lifted after the change in the apartheid policies.

Bosnia and Somalia

In Bosnia the Serbs are killing Muslims. UNO sent its troops to control the situation
and controlled to a greater extent. In Somalia there were different guerrilla groups fighting
against each other. It caused famine and drought. The UNO sent its army to help somalians in
feeding the needy people and controlling the situation in establishing peace.

Conclusion

International Law is not the vanishing point of jurisprudence. Its effectiveness

depends upon the co-operation of the consenting nations in effective implementation and
enforcement. Hence, it is wrong to say that international law is the vanishing point of
Jurisprudence.

Sl. No. Public International Law Private International Law

On a Major part, It deals with States and It deals with Individuals only
1.
to a minor part deals with Individuals.
2. It is not always a part of Municipal Law It is a part of Municipal Law
It is same for all states (General It differs from state to state
3.
Principles or General Application)
Conflict arises as to application of Conflict of Law occur in application of
4.
municipal law or international law. different state law
The jurisdiction of the court is under It determines the jurisdiction of the
5.
conflict. Court
It Comprises of Rules recognized by the It is framed by the legislature of a State
6. State, in their relation with each other. and recognized and developed by State
Courts.

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Codification

Codification connotes a systematic arrangement of the rules of law which are already
in existence. Codification properly conceived is itself a method of the progressive
development of law.

Codify = to arrange laws into a system.

(1) Harmonization and coordination of various municipal laws as far as practicable;

(2) Arranging the existing customary international law in a systematic process;

(3) It includes all conventions, treaties, charters, etc.

Definition

Lauterpacht defines it as, “The task of codifying international law, if it is to mean anything,
must be primarily one of bringing about an agreed body of rules already covered by
customary or conventional agreement of State”.

History of Codification

History of Codification dates back to the 18th Century which is originated by

Bentham.Declaration of Paris was signed by 7 countries, Britain, Russia, France, Austria,
Turkey, Prussia and Sardinia in 1856 in Paris. The 1st Hague Conference was convened in
1899 by Russian Emperor Nicholas on Codification.2nd Hague Conference was convened in
1907, in which 44 states attended.After the 1st World War, the League of Nations took utmost
care to codify the subjects, i.e. Nationality, Territorial Waters, State Responsibility, Piracy,
etc. The Hague Codification Conference conducted in 1930 was the first conference on the
codification of international law.

The Charter of United Nations

The Charter of United Nations gives an important recognition for codification on

international law.Article 13 (1) (a) of charter of United Nations provides : “The General
Assembly shall initiate studies and make recommendations for the purpose of; promoting
international cooperation in the political field and encouraging the progressive development
of international law and its codification”.

International Law Commission

The General Assembly has established International Law Commission. The

International Law Commission has given several reports and recommendations for the
development of international law. It gave several guidelines for the codification of
international law. It has submitted several drafts and relating to law of Seas, treaties,
Diplomatic intercourse and immunities, Human Rights, World Trade, etc.

Merits of Codification

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 1. Certainty

2. Customs

3. Unification

4. Avoids Conflicts.

De - Merits of Codification

1. Rigidity

2. Scarification of Individuality

3. Lack of coordination

4. Codification cannot be a complete and self – sufficing.

Weaknesses of International Law & the suggestions for improving the International Law

INTRODUCTION: - International Law is said to be a “weak Law.” The weaknesses of

International Law become evident when we compare it with Municipal Law. Its weaknesses
reflected in most of cases when these are compared with the state law. The following are
some of the weaknesses of International Law:-

WEAKN ESSES

l. The greatest shortcoming of International Law is that it lacks an effective executive

authority to enforce its rues.

2. Lacks Of effective legislative machinery:- Since the International Laws are based on
international treaties and conventions. Therefore these are interpreted by the states according
to their self interest.

3. The International court of Justice lacks compulsory jurisdiction in the true sense of
the term :- The International court of Justice which is situated in Hague (Netherland) is not
authorised to take cases of all states. The cases can be filed in this court with the mutual
consent of concerned states.

4. Due lack of effective sanctions, rules of International Law are frequently violated:-
There is no sense or fear of sanction in the International Law with the results the laws are
violated frequently by the States.

5. Lack in right to intervene in Internal Affairs :- As per article 2(7) of UNO Charter,
UNO is not competent to interfere in the domestic matters of states. International law cannot

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interfere in the domestic matters. Keeping in view these facts in several cases International
Law proves to be ineffective and weak.

6. UNCERTAINTY:- There is one more reason behind the weakness of International Law
is its uncertainty. It is not certain as the laws of states as well as Municipal law. In addition
to this it has not been able to maintain international peace and order.

It is now very much clear from the above facts that International Law is weak. Paton says
that , “ from institutional point of view International Law is a weak. It has no legislative
support though there is international court of justice but that functions or takes case on the
basis of mutual consent of states. It has no power to get the decisions implemented.”

According to Karbet, “The main course of weakness of International Law is the lack of
social solidarity among highly civilised states.

A case of Queen v/s Ken – 1876 :- There is no such institution or body which can enact laws
for sovereign states and there is no court also which can enforce its decision and to bind the
states.”
SUGGESTIONS FOR IMPROVING INTERNATIONAL LAW

Despite the above mentioned weaknesses, it has to be noted that International Law is
constantly developing and its scope is expanding. It is a dynamic concept for it always
endeavours to adopt itself to the needs of the day. As compared to Municipal Law the
International Law is works in a decentralised system. This is because of the facts that the
International policies, Inter-dependence of states and the continuous growth of the concept of
International or world community. However the weaknesses of the International Law may
be improved in following ways:-

l. The International Court of Justice should be given compulsory jurisdiction, in the true sense
of term overall international disputes.

2.An International Criminal Court should be established to adjudicate cases relating to

international crimes.

3. International Laws should be properly codified.

4. The machinery to enforce the decisions of the International Court of Justice should be
strengthened.

5. An International Police system should be established to check international crimes and to

enforce the rules & principles of International Law.

6. An international Bureau of Investigation and prosecution should be established for

investigation of matters relating to International crimes and the prosecution of International
criminals.

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7. The U.N.O. should be authorised to intervene in the internal matters of states.

8. For settlement of international disputes the use of judicial precedents must be encouraged.

9. There must be constant review of International Law.

10. Last but not the least there must be basic recognition of the interest which the whole
international society has in the observance of its laws.

CONCLUSION: - It is pertinent to mentioned here that the General Assembly of UNO

should made fruitful efforts in this direction. The above suggestions will make International
Law equivalent to a Municipal Law to some extent. With the growth of Internationalism and
the feeling of universal brotherhood international aw will also become effective and
powerful.

Unit – 2

Sources of International Law

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Meaning and Source

 The Sources of International Law means the methods of procedures by which

International Law is created.
 Article 38 of the Statute of International Court of Justice explains the mode of
application of law. And restricts its Jurisdiction on the basis of “ex aequo et
bono”

Sources of International Law

 International Conventions
 International Customs
 General Principles of Law recognized by the civilized nations.
 Decisions of Judicial or Arbitral Tribunals and Juristic Works.
 Decisions of Determinations of the Organs of International Institutions and
 Ex aequo et bono.

International Conventions

 Article 38 of the Statute of ICJ lists,

o “International Convention whether general or particular, establishing rules
expressly recognized by the contesting states”.
o Manely O. Hudson points out that, treaty, convention, protocol or agreement
regardless of the form applies to be a form of Conventions.

International Law acquires binding force by “Consensus ad idem” (agreeing of opinions) of

States done by conventions.

Examples.

 Convention of the Law of Sea 1982

 Geneva Convention on territorial sea and the Contiguous Zone, 1958
 Vienna Convention on Diplomatic Relations, 1961
 Vienna Convention on Law of Treaties, 1969.

Conventions = The act of convening a conference, a body of delegates assembled for a

common purpose. It includes treaty, protocol, agreement, convention, etc.

General Convention = Convention which is signed and adopted by all or majority of States.
Ex. The Law of Sea 1982.

Particular Convention = A treaty between two or more States.

Treaty – Article 2 of Vienna Convention on the Law of the Treaties, 1969 provides: “A treaty
is an agreement whereby two or more states establish or seek to establish a relationship
between them governed by international law”.By sighing a convention or a treaty or an
agreement, the signatory state is bound to oblige the terms and conditions of that treaty or an
agreement. This is established by the Principle called as “Pactasuntservanda” (an agreement
must survive).Ex. Economic Sanctions imposed by UNO on Iraq and South Africa.

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 Leo Gross, in his book “Sources of Universal International Law” opines that
Conventions and Treaties are the main source of New International Law, having a strong
binding force than other sources.

Custom as a Source of Law

 Article 38 (1) (b) of the Statute of the ICJ defines custom as a source of
International Law = “International Custom, as evidence of a general practice
accepted as law”
 Jus Cogens :which means peremptory norm. Article 53 of vienna convention
provides that a treaty is void when it conflicts with the peremptory norm of
international law.

Custom and Usage

 Custom = Long established practice having the force of law.

 Usage = Long established use or custom.

TorsenGihl, in his book “The Legal Character and Sources of International Law”
differentiates as :

(i) in certain cases usage gives rise to international law and not in certain cases. But there is
no rule that usage shall be a custom.

(ii) custom includes usages, factual phenomenon, state interests, powers, factors, general
opinion etc., until they are recognized by the courts they do not form a part of international
law.

(iii) the combination of usage with “opinio juris siveneccessitates” shall become a customary
law and valid in international law.

Essentials of a Valid Custom

 Reasonableness
 Conformity with Statute Law
 Uniformity
 Long Duration : Immemorial Antiquity.
 Opinio juris et necessitatis : general practice accepted as law.

General Principles recognized by the Civilized States

Article 38 (1) (c) of the statute of International Court of Justice provides this as the third
source of international law.J,E,S, Fawcett gives the meaning that, “by general principles of
law, we mean those rules or standards which we find repeated in much the some form in the
developed systems of law”

Ex – No man can be a judge in his own cause, hear both sides, pactasuntservanda

 Principles of Natural Justice recognized by civilized states.

 Res Judicata, Estoppel

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  General Principles of Law as a subject for International Codification.
 Municipal law in par with international law.
 Justice, Equity and Good Conscience.
 Abolition of Slavery, Apartheid, violation of Human Rights, Environmental
Protection.

Decisions of Judicial or Arbitral Tribunal & Juristic Works

 International Judicial Decisions – Decisions of ICJ are however not binding on

others except the parties. However Article 38 (1) (d) is subject to Article 59 of
Statute of ICJ.
 State Judicial Decisions – Precedents and judgments of State Judicial Decisions as
customary rules of International Law.
 Decisions of International Arbitral Tribunals.
 Juristic Works – not direct source but act as an instrument to develop international
customs.

Decisions or Determinations of the organs of International Institutions

 They are intermediate or final steps in the development of customary rules.

 The resolutions of the organs are binding on the members with regard to internal
matters of the institution.
 Organs of international institutions can decide the limits of their competence.
 The interpretation of their constitution later becomes the part of international law.
 Decisions or Determinations of the organs of International Institutions
 Decisions of quasi-judicial institutions and opinion of international committee of
jurists.

Ex aequo et bono

 This Provision shall not prejudice the powers of the court to decide a case ex
aequo et bono, if the parties are agree thereto.

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 Unit – 3

Relationship between International Law and Municipal Law

International Law and Municipal Law are the same OR various theories regarding
relationship between International Law and Municipal Law.

Sl.No Municipal Law International Law

1. Individual is the subject State is the subject
It is a result of the will of the people It is the result of the common will of all
2.
of that state states.
3. Differs from State to State Is common to all states.

Authors Municipal Law International Law

It is based in the principle called as,
Anzilloti It is obligatory
“Pactasuntservanda”
It is not derived from International
Ross It is derived from Municipal Law
Law
It is partly in reference to International It is also inter-connected with Municipal
Starke
Law Law.
Norms are incomplete and require
Kelson Norms are Complete
completion of norms by national law.

Sl.
International Law Municipal Law in India
No
Vienna Convention on Diplomatic Vienna Convention of Diplomatic Relations
1.
Relations, 1961 Act, 1972 (enacted in 1972)
Convention on the suppression and The a Anti-Apartheid United (Nations
2. punishment of crime of Apartheid, Convention) Act, 1981
1973
Convention on Suppression of The Anti-Hijacking Act, 1982
3.
Unlawful Seizure of Aircraft, 1970

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 Convention on the Suppression of The Suppression of Unlawful Act against the
4. Unlawful Acts against the Safety of Safety of Civil Aviation Act, 1982.
Civil Aviation, 1971.

INTRODUCTION: -

Certain theories have been propounded to explain the relationship between

International Law and Municipal Law. In general it is notionally accepted that the state
municipal law control the conduct of individuals within the state while International Law
controls the relations of nations. But now this concept has altogether been changed and the
scope of International Law has increased and it not only determines and controls the relations
of states but also the relations of members of International community. Both the laws have
co-hesion with each other and the relations between these two are more prominent. These
theories have been put forward to explain the relationship between International Law and
State Law. Of all these theories as per following details, the most popular are the Monism
and dualism and they are diametrically opposed to each other:-

1. MONISTIC THEORY:-It is also known in the name of Monism theory. According to the
exponents of this theory International Law and Municipal Law are intimately connected with
each other. International Law and Municipal Law are the two branches of unified knowledge
of law which are applicable to human community in some or the other way. All Law are
made for individuals. The difference is that municipal law is binding on individual while
International Law is binding on states. Conclusively it can be said that the root of all laws is
individual.
According to Strake, “International Law is part of state Municipal Law and therefore
decisions can be given by Municipal courts according to the rules of International Law.”
According to O.Kornell, “The objective of all laws is human welfare whether it is state
municipal law or International Law.”

2. DUALISTIC THEORY: - In view of the dualistic theory writers, International Law and
state Law are two separate laws and contained legal systems. The Monist view of law is part
of philosophy according to which totality is a single structure. But within the framework of
the unitary universe is diversity of phenomenon. International Law cannot become part of
state municipal Law till the principles of International Law are applied under State Municipal
Law.
According to Strake, “The main foundation of the proponents of dualistic theory is that state
Municipal Law and International Law are two different legal systems because the nature of
International law is fundamentally different from State Municipal Law.”
Angilotti has also recognised both the systems as two different legal systems. According to
him the fundamental principle of State Municipal Law in compliance of law enacted by state
legislature while principle of International Law is PactaSunt
Servanda i.e. to honour the agreements executed between the states.”
The main basis of separation of these two systems is as follows:-

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  The main source of International Law is customs and treaties while in case of
Municipal Law are an enactment by sovereign power.
 International Law controls the relations between state while state law controls the
relations between state and individuals.
 The main cause of compliance of state law is fear of sanction while the basis of
compliance of International Law is the moral liability and vested interests of
states.

3. THEORY OF SPECIFIC ADOPTION:

International Law cannot be directly enforced in the field of State Law. In order to
enforce it in the field of Municipal Law it is necessary to make its specific adoption. The
theory of adoption is based on Hague convention-1970, Vienna Convention-
1972 and Tokyo Convention-1975. In case of Jolly George v/s Bank of Cochin-1980: The
court held that any agreement does not become part of Indian constitution automatically, but
the positive commitment of state parties inspires their legislative action.”

According to this theory, Positivists say that International Law cannot be applied unless
and until it is specifically adopted by the Sovereign States by way of enactments.

Example: The Protection of Human Rights Act, 1993 was enhanced based on International
Convention. The Statement of Objects and Reasons of the Act says, “India is a party to
international covenant on civil and political rights and the international covenant on
Economic, social and cultural rights, adopted by the General Assembly of the United Nations
on the 16th Dec, 1996. The human Rights embodied in the aforesaid covenants stand
substantially protected by the constitution”.

The use of International Law in different countries like India, Britain, America and
Russia. The rules of International Law and treads have been based in a different ways e.g.

INDIAN ADOPTION :-

The International Law has been given important place and mention the customary
rules of International Law in Article 51(6) of the Indian constitution with the following strive
:

 To increase international peace and security.

 To maintain just and good relations among states.
 To increase faith and honour for use of International Law treaty, obligations in
natural relations and conduct of organised people.
 To act as mediator to encourage for settlement of international dispute.
 Similarly under Article 372(1) of our constitution, the treaties, agreements, etc.
entered by the British government is valid.

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 Some of the cases in this regard are :

1. Shri Krishna Sharma v/s State of west Bengal-1964 : It was decided that whenever the
court interprets the domestic Municipal Law, it should be taken into consideration that it
does not go against International Law.

2. Magan Bhai, Ishwar Bhai Patel v/s Union of India-1969:- Court accepted the
implementation of Kutch Agreement between India and Pakistan on the basis of
correspondence between them. Similarly there are two other case viz: Vishakha v/s
State of Rajasthan-1997. And Apparel Export Promotion Council v/s A.K.Chopra-
1999: In both of the cases the court held that the right of sex equality of women has
assumed the important rule of International Law and its convention, court said that in
cases of violation of human right the court should always consider international
documents and conventions and should make them binding.

British Adoption:

In Britain International customs are treated as part of domestic law. British courts
apply international customs subject to the conditions (i) International customary rules are not
inconsistent with British Laws (ii) they are accepted by lower courts when the limit of these
customary rules are fixed by High Court. For use of treaties, the case of International
Tin Council v/s Dep’t., of Trade and Industry-1900: the Lord Council decided that in
England treaties are not binding automatically. It is binding only when the Parliament makes
it a part of English Law and incorporates in Law by enactment of law in this regard.
R vs Keyn (1876) 2 Ex D 63

(Franconia Case)

Keyn was the captain of the German ship Franconia who collided with Strathclyde a
British ship which caused death of the passenger of the British Ship within three miles of the
English coast. Keyn was prosecuted for manslaughter. He raised a question whether an
english court had jurisdiction to try the case. The Argument held that English Courts had
Jurisdiction under International Law over a foreigner for criminal acts done within three-mile
maritime belt of the English coast. And over “high seas” only for punishing pirates. This was
rejected by the court. Hence led to the passing of the Territorial Waters Jurisdiction Act, 1878
which gave jurisdiction to courts with three-mile maritime belt.

Adoption in America:

In America the courts interpret the state law in such a way that it does not go against
International Law. The rules of customary International Law are treated as part of State
Law. It has been done in the case of Paqueta Habana Case- 1900: It was held that
International Law is part of our state Law and when any question or case relating
International Law is filed before courts of proper powers then the rights based on these
questions should be determined and enforced.

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In United States, there is a provision in Article VI of the American Constitution,

“This Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all Treaties made or, which shall be made under the authority of
United States, shall be bound thereby, anything in the Constitution or laws of any State to the
contrary notwithstanding.”

Thus, International Law having its source in a treaty to which the United States is a
party is definitely regarded as a part of the law of the United States.

Limitations to this principle are,

1. The courts give effect to only those provisions which are self-executing, i.e. such as
can be applied by the courts without additional legislation by congress.

Foster vs Neilson

2. When congress subsequently enacts a statute in conflict with a treaty provision, the
courts will give effect to the statute, though there is a violation of international law.

Harmonisation Theory

This theory propounded by “O. Connell”.It compromises both the monistic and dualistic
theory. Which means, International Law and Internal Law both work for the benefit of
mankind. None is superior nor interior to each other. Whenever a conflict arises, the law has
to be harmonized by the judges rather than degrading.

Important points under this theory:

By Judges:

Judges should interpret law according to the circumstances but not according to the
supremacy it inferiority

By States:

When there is a conflict of internal law with international law, then thesovereign state should
amend their local laws so as to coincide with the International Laws.

4. THEORY OF TRANSFORMATION:-

The exponents of this theory contented that for the application of International Law in
the field of Municipal Law, the rules of international law have to undergo
transformation. Without transformation they cannot be applied in the field of Municipal
Law.

According to Strake:-

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 “That the rules of International Law can be applied when they are transformed in to
domestic law, is not necessary in every case.”

5.THEORY OF DELIGATION:-

The theory of transformation has been criticised by the Jurists with the result of this
craterisation it put forward a new theory called Delegation theory. The supporters of this
theory say that according to the statutory rules of International Law, the powers have been
delegated to the constitution of different states o ensure that how and what extent according
to International Law. States to determine as to how International Law will become applicable
in the field of Municipal Law in accordance with the procedure and system prevailing in each
state in accordance with its constitution.

CONCLUSION:-

Last but not the least in a recent case namely, Chairman, Railway Board & others v/s
Mrs. Chandrima Das and others-2000: The supreme Court of India observed that the
International Conventions and Declarations as adopted by the United Nations have to be
respected by all signatory states and meaning given to the words in such declarations and
covenants have to such as would help in effective implementation of those rights.

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 Unit – 4

Subjects of International Law

International law is primarily concerned with the rights, duties and interest of the
states. It prescribes the rules of conducts which the states are to observe. A subject of rules is
a being or thing upon which their rules confer certain Personal rights and the capacity and at
the same time imposes duties and responsibilities. The law is the body of the rules which
commands it subjects. Generally International Law deals with the rights and duties of the
states. It's rules for the states to regulate the relationship interse the state. It is the states who
enter into treaties with each other and they are found by the terms and conditions of the
treaties . International law not only applies to the states but also applies of an individual and
certain non-state entities.

1 Theories regarding subject of international law

There are three main theories in respect to the subject of international law.

I) States alone are the subject of international law.( Realist Theory)

II) Individual alone are subject of international law.(Fictional Theory)

III) States , individual and certain non state entities are subjects of international law.
(functional theory)

A. State alone are the subject of international law /Realist Theory

Some Jurist have Expressed the view that only States are the subject of international
law. In their view International Law regulates the conduct of the state and only state alone
are the subject of international law. According to them as per the positivism view, individual
is an object and not a subject of International law. International Law gives more Emphasis
and stress upon the states, their sovereignty ,etc .

Criticism

This view has been criticized by various jurist because this theory fails to explain the case of
slaves and pirates. Under international law slaves have been conferred upon some rights by
the states. In the same way pirates are treated as Enemies of the mankind and they may be
punished for piracy by the state. The jurist who emphasis that States alone are the subjects of
international law, are of the view that slaves and pirates are exception and are objects of
international law. It is argued that the treaties which confer certain rights over the slave and
pirates impose certain obligations upon the states if there is no search obligation of the
states, the slaves cannot have any rights under international law. Professor Oppenheim is of
the view that since the law of nation is primarily a law between the States, state are to that

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extent, the only subject of the law of nations. Professor Oppenheim subsequently has changed
the view and mentioned that," States are primarily ,but not exclusively, the subjects of
International law. To the extent that bodies other than States directly possesses some rights,
power and duties in international law they can be regarded as subjects of international law
possessing international personality. Many of the rules of international law are directly
concerned with regulating the position and activities of the individual and many more directly
affect them. Thus it is wrong to say that individuals or not the subjects of international law.
Some Jurist are of the view that individuals who are the basis of the society and are the
subject of international law and not the object of international law. Even the International
Court of Justice has rejected the proposition that states are the only subject of international
law. But held that the states are responsible for an act of his agent. As per the modern
international law, it is generally recognised that besides States public International
organisations, Individual and certain other non state and entities are also the subject of
international law."

B. Individuals alone are subject of international law/ fictional theory

Some Jurist Express the view that in the ultimate analysis of International law , it will
be evident that only individuals are the subjects of international law. Professor Kelson is the
chief exponent of the theory . Even before kelson, Westlake had remarked," the duties and
rights of the States are only the duties and rights of man who composed them. Prof.Kelson
has analysed the concept of the state and Expressed the view that state is a technical legal
concept and includes rules of law applicable on the persons living in a definite territory.
Hence under International Law duties of the states are ultimately the duties of individual. and
there is no difference between International Law and State Law . as per Kelson both laws
apply to the individual and they are for the individual.

Criticism

The view taken by the Kelson is more logical and practical. so far as the practice of the
state is a concerned, it is seen that the primary concern of international law, is with the rights
and duties of the states.

It can be seen, certain treaties have been entered into which have conferred certain
rights upon individuals. As per International Court of Justices, statute, though States can be
parties to the international processing, a member of other international instruments have
recognised ready procedural capacity of the individual. There are number of examples
wherein international law applies on individual not only mediately but also directly. It is
wrong to say that pirate, slave,etc are only object of International Law.

Philips C. Jessup , has taken the view that although individual possesses number of
rights under International Law , in most of the cases claim on his behalf can be brought only
by the state whose National he is. It is an elementary principal of international law that state
is entitled to protect its subjects when injured by the acts contrary to international law
committed by another states.

C. States, individual and certain non-state entities are subject of international law/
functional theory

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 This view not only combines the first and second view but Goes a step ahead to include
international organisations and certain other non state and entities as subjects of international
law. This view appears to be more practical and are better than the first two views.

The reason in support of this view are as under

1) In present times, several treaties have conferred upon individual certain rights and duties,
for example International Covenant on human rights .

2) permanent Court of Justice in Danzing Railways official case, 1928, held that if any
treaties the intention of the parties is to enforce certain rights upon some individuals, then
International Law will recognise such rights and enforce them.

3) Geneva convention on Prisoners of War 1949, has conferred certain rides upon the
Prisoners of law.

4) The Nuremberg and Tokyo tribunals laid down the principle that International Law may
impose obligations directly upon the individuals.

5) The Genocide convention, 1948 ,has imposed certain duties upon the individual and
persons guilty of the crime of genocide maybe punished .

6) A new trend has started in the international field under which some rights has conferred
upon individuals even against the States. for example European convention on human
rights,1950, International convention on human rights 1966, optional protocol, by which an
individual who is the victim of the violation of human rights, May send petition regarding
violation of human rights by his own state to the United Nations Commission on Human
rights.

7) it is now agreed that International organisations are also the subject of international law.
United Nation is an international person under international law and it is held by International
Court of Justice that United Nation is a subject of international law and capable of
possessing rights and duties and it has capacity to maintain its right by bringing International
things.

8) The law making treaties in respect of international criminal law, have imposed certain
obligations upon the individuals , for example narcotic drugs convention, 1961, Hague
conversation of suppression of unlawful Seizure of aircraft 1970.

Thus the states are not only the subjects of international law. There is no doubt that states are
still the main subject of international law and most of the part of international law concerns
with the conducts and relationship of state with each other, but in view of the developing and
changing character of the International Law , International organisations and some non-state
entities individuals are also the subject of international law. It is apparent from the above
discussion that the position of subjects of international law has greatly changed with the
passage of time. Originally, sovereign States were the only actors in the international
community, but in present century new non state entities such as International organisations

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and Institutions and individuals have been given the status and rank of international legal
subjects.

Danzing Railways Official Case (1928)

Poland acquired Dancing Railway company – treaty – amenities to be provided by Poland -

railway company sued before permanent court of justice – company not party to treaty – not a
subject – PCIJ declared as subject to provide amenities.

Nuremberg Trial (1946)

20 Nazi leaders and 6 Organizations – Genocide 2nd World War – Evidence proved
committed with common planning and conspiracy – War Crime – Death sentence for 10 –
Transportation for life for 3 – long imprisonment for 4 – 3 acquitted – among 6, 2
organizations were not guilty. The Tribunal rejected the defenses of ‘nullumcrimensinelege,
nullapoena sine lege’ (There is no crime nor punishment except in accordance with law and
Act of State). An individual acted as a head of the state cannot escape from responsibility
from international law.

The Eichmann Trial (1964)

Eichmann, head of the Jewish office of German Gestapo – administrator in charge of “the
final solution” during 2nd World War – exterminated 42,00,000 to 46,00,000 jews in europe
with his policy under the guidelines of Hitler – after defeat of Germany he fled to Argentina –
secret government agents found in Argentina in 1960 – abducted to Israel without the
knowledge of Argentina Government – punished with death sentence by electric chair –
Israel obtained right to punish – a) universal source to punish crimes in any state within the
family of nations b) national source as a victim

State Responsibility

State Powers – sovereignty – control - municipal law – international law cannot interfere –
individuals of nations – foreigners – aliens – respect for municipal law – duty to protect under
international law – state responsibility to protect aliens – vicarious liability. holding one party
responsible for the
Circumstances in which a state responsibility arises: actions of others

1. International delinquency

2. Injury to aliens

3. Acts of government organs

4. Containers with foreigners

5. Breach of treaty

6. Expropriation of aliens properties

7. Acts of multi-national companies/Environmental law.

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International Delinquency

International Delinquency is a wrongful act committed by the state on the aliens of another
state directly or indirectly. Remedy is given by way of pecuniary compensation.

Imputation of a State:

When a State fails to prevent a minimum international standard to prevent the

wonderful act then, it is called “Imputation of State” or “Theory of Imputation”

Conditions for Imputation:

1) Wrongful Act must have been done be the department/organ/official of a State against
an alien

2) That wrongful act must have been done against the principles of International Law.

U.S. vs Mexico (You Man’s Case)

Riot in Mexico – Mayor of Mexico ordered army to disperse Americans – The Army
acted against the orders – fired and killed three Americans – Imputed against Mexican
government – responsible for international delinquency – ordered to pay compensation to
America.

Injury to Aliens

Every Alien must be protected by the state under international law, however the alien must
behave within the purview of Municipal Law. The State Responsibility chances based on
these circumstances:

a) State Responsibility for the acts of individuals

b) State Responsibility for the acts of mob-violence

c) Stare Responsibility for the acts of insurgents.

1) For acts of individuals: When the Alien is injured by the resident of the state, then the
resident is punished by the state and also will be provided with compensation paid by the
wrong doer. He can also approach his own country to get justice according to international
law.

US vs Mexico (Janes Claim)

Byrob Everett Janes, an American murdered – El Tigre Sonora,Mexico – Carbajal Mexican

murderer not arrested for 8 years – American Government claimed compensation on behalf
of deceased’s wife and children.

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2) For acts of mob-violence: The acts of the Individuals cannot be anticipated however the
acts of the mob-violence can be anticipated by the state. Hence it is the duty of the State to
provide reasonable and appropriate protection to the citizens as well as aliens. It should take
“Due Diligence”.

3) For acts of Insurgents: Every State suffers with the activities of insurgents (rebels).
Every State tries to prevent them.

Calvo’s Doctrine: Calvo a publicist of Argentina propounded the principle of State

Responsibility in time of civil wars in his famous book named ‘Calvo Doctrine’. In it he
states that, no state is liable to pay compensation to the invited or a suffered alien at the time
of civil war. This doctrine is received by all the countries.

Great Britain vs US(Zafiro Claim)

During a war between USA and Spain in 1898, Zafiro a private ship of British with Chinese
crew was attacked by the American Navy partly and then by Filipino insurgents and the
remaining were looted by the Chinese crew. British Government claimed compensation –
unable to ascertain the proportion of damage – No damage given.

Acts of government departments

The State is responsible directly and is liable if the government organs i.e. department or
officers commit any injury to an alien.

Chorzow Factory Case ( Germany vs Poland)

German Factory – Situated at Chorzow on Upper Silesia – Poland expropriated the Factory –
Poland’s action against the spirit and principles of Geneva Convention 1922 – PCIJ ordered
Poland to pay compensation to Germany.

Contacts with Foreigners

Generally contracts are entered between the States and certain contacts are with foreigners on
commercial fields. The beach of contact can be sued through local laws and upon exhaustion
of it the foreigner can approach his home state to take political action against the state and
also institute legal proceedings in the ICJ through his home state.

For Breach of Treaty

When a State violates the conditions of the treaties, the degree of responsibility differs from
case to case.

I Am Alone Ship Case (1928)

Liquor Treaty between U.S.A. and U.K. in September, 1928 – Certain Americans purchased
British Ship “I AM ALONE” – used for smuggling - American officers fired and sunk the
ship in high seas – Canada sued America for the wrongful Act – America liable.

Expropriation of foreign property

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Multi-National companies do business in various states – Highest margin – Government and
policies may change – undertaking by government attracts compensation – latest trend
changes from nationalization to privatization.

Chorzow Factory Case.

German Factory – Situated at Chorzow on Upper Silesia – Poland expropriated the Factory –
Poland’s action against the spirit and principles of Geneva Convention 1922 – PCIJ ordered
Poland to pay compensation to Germany.

For the acts of multi-national companies

The state is held responsible for the acts of the multi-national companies. Multi-national
companies expand their business throughout the globe and their greediness, business tactics
may cause damage to the public of the host country.

Bhopal Gas Leak Disaster (1985)

Union Carbide Corporation a multi-national company manufactures of chemicals – Madhya

Pradesh plant leaked poisonous gas caused death and injuries to more than 6 lakh people –
Suppertime e Court imposed strict and absolute liability on the company and awarded 470
million dollars in full settlement.

Unit – 5

State Recognition,State Succession & Liability

What do you understand by recognition?
What are the various kinds of it?
Differentiate between de facto and de jure recognition.
Explain those situations when de facto become de jure recognition.
What are the disabilities of an unrecognised state?

INTRODUCTION: -

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 It can be said that through recognition, the recognising state acknowledges that the
recognised state possesses the essential conditions of Statehood, a Government and
Sovereignty, a definite territory and has a complete control over his territory. The
community is independent. So recognition has an important place in International Law. By
recognition only the state is accepted as a member of International community.

DEFINITION:-

Many of the Jurists has define ‘Recognition’ in different ways. Some of them have opined as
under:

Prof.L.Oppenheim :-

“In recognising a State as member of International community, the existing states

declare that in their opinion the new state fulfils the conditions of statehood as required by
International Law.”

Fenwick: -

“That through recognition the members of the International community formally

acknowledge that the new state has acquired international personality.”

In the words of Phillip C Jessup: -

By recognition is such a function of a state by which she accepts that any political unit
contains the essential elements of nationality.”

According to Prof.Schwarzenberger:-

“ Recognition can be absorbed easily by a procedure developing International aw by

which the state have accepted the negative sovereignty of each other and willing to develop
their legal relations on the basis of their natural relations.”
According to Kelson:

“A community to be recognised as an International person must fulfil the following

conditions:-
o The community must be politically organised.
o It should have control over a definite territory.
o This definite control should tend towards performance.
o The community thus constituted must be independent.

Thus the conditions of statehood are, People, a territory, a government and sovereignty.”

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TYPES OF RECOGNITION

Recognition is of two types, De facto and de jure recognition. The practice of States
shows that in first stage the State generally give de facto recognition. Later on when they are
satisfied that the recognised state is capable of fulfilling International obligations, they confer
de jure recognition on it, that is why sometimes it is said that de facto recognition of state is a
step towards de jure recognition. The detail of de facto and de jure recognition is as under:-

DE FACTO RECOGNITION: - According to Prof.G.Schwarzenberger:-

“When a state wants to delay the de jure recognition of any state, it may, in first stage
grant de facto recognition.”

The reason for granting de facto recognition is that it is doubted that the state recognized
may be stable or it may be able and willing to fulfil its obligations under International
Law. Besides this it is also possible that the State recognised may refuse to solve its main
problems.

De facto recognition means that the state recognized possesses the essentials elements
of statehood and is fit to be a subject of International Law.

According to Prof.L.Oppenheim :-

“The de facto recognition of a State or government takes place when the said State is
free state and enjoys control over a certain fixed land but she is not enjoying the stability at a
deserved level and lacking the competence to bear the responsibility of International Law.”

For example :-
De jure recognition had not been given to Russia by America and other countries for
a long time because Russia was not having competence and willingness to bear responsibility
of International Law. The same position was with China.

In view of the Judge Phillips C Jessup,

“De facto recognition is a term which has been used without precision when properly
used to mean the recognition of the de facto character of a government; it is objectionable and
indeed could be identical with the practice suggested of extended recognition without
resuming diplomatic relations.”
The de facto recognition is conditional and provisional. If the state to which De Facto
recognition is being given is not able to fulfil all conditions of recognition then that
recognition is withdrawn.

DE JURE RECOGNITION

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 De jure recognition is granted when in the opinion of recognizing State, the
recognized State or its Government possesses all the essential requirements of statehood and
it is capable of being a member of the International Community.
According to Prof.H.A.Smith :- “ The British practiced shows that three conditions
precedent are required for the grant of de jure recognition of a new State or a new
Government. The three conditions are as under:-

 A reasonable assurance of stability and performance.

 The government should command the general support of the population.
 It should be able and willing to fulfil its international obligations.

Further Recognition de jure results from an expressed declaration or from a positive act
indicating clearly the intention to grant this recognition such as the establishment of
diplomatic relations.

According to Phillips Marshall Brown: -

“De jure recognition is final and once given cannot be withdrawn, said intention
should be declared expressly and the willingness is expressed to establish political relations.”

DISTINCTION BETWEEN DE FACTO AND DE JURE RECOGNITION

As observed by Prof.G.Schwarznbeer,

“De jure recognition is by nature provisional and may be made dependent on

conditions with which the new entity has to comply. It differs from de jure recognition in that
there is not yet a formal exchange of diplomatic representatives. De jure recognition is
complete implying full and normal diplomatic relations.”

De facto recognition De jure recognition

De facto recognition is De jure recognition is final.

conditional and Provisional.
If the conditions are not fulfilled De jure recognition cannot be
by the concerned state then it is withdrawn once given it is final.
withdrawn.
To maintain political relation in The willingness is to be expressed
this recognition is not necessary. for maintenance of political
De facto recognition is the first relations.
step towards de jure recognition.
De jure recognition is the final
step towards recognition.

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In Luther v/s Sagor-1921:-

“It was held that there is no distinction between de facto and de jure recognition for
the purpose of giving effect to the internal acts of the recognized authority.”

Bank of Ethopia v/s National Bank of Egypt and Liquori- 1937:-

The court held that in view of the fact that the British government granted recognition
to the Italian Government as being the de facto government of the area of Abyssinia which
was under Italian control, effect must be given to an Italian decree in Abyssinia dissolving the
plaintiff bank appointing liquidator.”
But in the case of Luther v/s Sagore-1921 the court held that as far as internal affairs of a
state is concerned De facto recognition is interim and it can be withdrawn.”

CONSEQUENCES OF RECOGNITION

There are many political and legal advantages of getting recognition and many
disadvantages of not getting recognition. They may be said as disabilities of a state of not
getting recognition. The following are the advantages of getting recognition and
disadvantages of not getting recognition.

ADVANTAGES DISADVANTAGES

1. Can establish diplomatic and The states who did not get such recognition
commercial relation with the states cannot establish such relations.
granting recognition. The state which does not get recognition
2. Recognised states can institute a suit in cannot do so.
the courts of states granting recognition.
3. Can institute suit relating to property Unrecognised states cannot institute suit
situated in the courts of state granting relating to property.
recognition.
4. The representatives of recognised states The representatives of unrecognised states
are entitled to enjoy diplomatic and cannot enjoy such relations.
political communities in the territories of
state granting such recognition.
5. The recognised states can execute treaty
agreement with states granting such The unrecognised states cannot sign any
recognition. treaty agreement with any states.

CONCLUSION

Recognition of any state means, that state become a member of International

community and acquires International entity. The state becomes entitled to all rights and

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special rights as a member of the International community. In the absence of recognition any
state cannot establish her diplomatic and political relations with any states and also unable to
sign any treaty agreement with any state.

Meaning

State Succession: A succession of international person occurs who one or more

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

Definition

Edward Collins defines State Succession: “A succession of government occurs when

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

Scope & Object

The Law of Succession is seen in every jurisprudence. It is inherent interest in every

human being. The law of State Succession is a new subject and in a developing stage
incorporated from the Roman Law rooted from Grotius theory.The main object of it is the
principle of ‘Continuity of States’. The state remains unchanged and it’s rights and liabilities
are unchanged and helps in international cooperation in various relations and serves
international peace and security.

Kinds of State Succession

There are two kinds:

 Universal Succession and Partial Succession

Universal Succession

If the legal identity of a community is completely destroyed there is said to be a Total

Succession or Universal Succession.

Circumstances in which Universal Succession arises:

(a) Subjugation: When a State conquers another State by force, the acquired State is
absorbed by the Conquered State.

Example: China Subjugated Tibet. Tibet is now a part of China.

b) Voluntary merger: when a State merges with another State, it losses it’s legal identity.

Example:

1) Sikkim merged in India in 1975 voluntarily. It lost its independent sovereignty.

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 2) The two Germany i.e., East Germany and West Germany merged as one State on
3/10/1990. Now it has single identity “Germany”.

 Universal Succession

c) Break – up: A state may break-up for several reasons and lead to birth of several States.

Examples:

1) Soviet Russia a powerful State broke up in 1991 into 15 States.

2) Yogoslavia a state in 1991 broke into small States, Bosnia-Herzegovina, Slovenia etc.

3) Czechoslovakia broke up into Slovakia and Czech Republic.

4) In 1947, India was partitioned into India and Pakistan.

5) Indonesia gave birth to East Timore.

Partial Succession

When a territory is lost while personality and legal responsibility remains unchanged,
it is called partial succession.

Circumstances in which partial succession arises:

1) Achieving Independence: A part may achieve independence from parent state by

revolution or agreement

Ex. Before 1971 Pakistan was a union of East Pakistan and West Pakistan. In 1971
Bangladesh was separated from Pakistan.

2) Cession: Surrendering territory. Example: Berubari

3) Purchase: Ex. America purchased Alaska from Soviet Russia.

4) Federation: Ex. Senegal and Gambia in Africa. Gambia entering a treaty with
Senegal forming a confederation of two countries named as Senegambia.

5) Referendum: Referendum conducted by UNO whether people of East Timore to

have independence or to be in Indonesia. And accordingly, East Timore emerged into
a country in November 1999 based on votes.

Doctrine of Continuity of States

The States remain the same whereas the politics, government, policy etc. may change. This
Doctrine protects the contact, treaties made by the predecessor governments which helps in
strengthening the relationships between the States.

Great Britain vs Costa Rica

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(The Tinoco Arbitration)

Federico Tinoco came to power of Costa Rica from Jan 1917 overthrowing President
Alfredo Gonzalez and continued till August 1919 – Succeeded by Barquero – The new
government passed an Act known as “Law of Nullities No.41” – all contacts invalidated
during Tinoco government – Britain suffered loss when Costa Rica currency became invalid
– British Government claimed compensation but failed.

Theories of State Succession

Prof. D.P.O. Connell declared four theories of State Succession:

 Continuity Theory
 Negative Theory
 Importing International Law Theory
 Communist Theory

Continuity Theory

According to this theory, the successor continues the rights and obligations of the
predecessor. Succession is substitution and continuation. All benefits and burdens pass to the
successor. It is further subdivided into 4 theories:

1) The theory of universal succession

2) The theory of popular continuity

3) The theory of organic substitution

4) The theory of self-abnegation

Theory of Universal Succession

According to this theory, succession takes place by virtue of a legal principle

antecedent to the enacted law of any society, and therefore, antecedent to the positive law of
nations. Succession takes place not in virtue of an external legal prescription, but in virtue of
a legal quality which reposes in the objects of succession.In simple words, the properties and
liabilities of the deceased person is succeeded by his successor. Similarly, the new state is
given the place of a heir of his predecessor’s personality. This theory is propounded by
Grotius, Pufendrof, Vattel.

Criticism:

The notion and object of private succession differ from international succession. It is
inaccurate and the state cannot discharge all contacts and treaties. The former is real and
latter is fictitious.

Theory of Popular Continuity

Max Huber propounded this theory. This theory speaks about the change in the
fictitious element in the political organization, the real element surviving intact. The change

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in Sovereign State does not affect on the real elements but on fictitious elements in the
notional organizations. The treaties and obligations continue in the new state. It is legal
continuation.

Theory of Organic Substitution

The Successor State takes over all rights and duties which are essentially political.
There is a change in Judicial element of the organization, which does not occur in the case of
change of government.

Theory of Self Abnegation

The new State may accept or reject the rights and obligations.

Abnegation = to give; to renounce

Negative Theory

The Sovereignty of the Predecessor State over the absorbed territory is abandoned.
The Successor State does not exercise its jurisdiction over the territory in virtue of a transfer
of power from its predecessor, but solely because it has acquired the possibility of expanding
its own sovereignty in the manner dictated by its own will.

Criticism: this theory creates more problems instead of solving it.

Importing International Law Theory

It is a compromising theory between the Continuity theory and negative theory.

According to this theory, the State had to follow the new international principles, norms and
obligations.

Criticism: In circumstances even this principles could not solve problems.

Communist Theory

According to this theory, the succeeding State is unencumbered by the economic and
political commitments of the predecessor state.

Criticism: Practically the communist theory proved failed.

Effect of State Succession on Contacts

As per the principle, the succeeding State should oblige the contracts made by the
Predecessor State. While in practice, the above principle is not adopted in international law. It
depends on the circumstances of the succeeding state.

West Rand Central Gold Mining Company Limited Case.

West Rand Central Gold Mining Company Limited - Registered company in England
– operates in gold mines Transvaal in South Africa – 2 packets of Gold seized by south
African authorities – bound to return or repay – War in between – South Africa annexed to
England – company claimed Gold – Failed.

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State Succession on Concessionary Contacts

It means a contact in which a person or a company obtains lease or grant from

government pertaining to land, mine, property etc. The effect of State Succession on
concessionary contact depends from circumstance to circumstance.

Premchibarvs Union of India

Premchibar resident of Goa – under Portuguese reign – obtained license importing

goods with 10 lakh pounds – Advanced some amount for contact – before execution of
contact Goa merged into Indian Territory – India canceled the license of the petitioner –
Supreme Court upheld the act of Indian Government as Act of State.

State Succession in respect of Treaties

Vienna Convention imposes two rules in respect of succession of States under its
treaty in 1978.

Clean State Rule: It is similar to negative theory. The succeeding State is at a liberty to
comply the treaty or to reject it.

Moving Treaty Frontiers Rule: It is based on association of a territory with already

established State & on the basis of the prior legal nexus a newly independent State is entitled
to claim it’s succession to multilateral treaties.

Vienna Convention on Succession of States in respect of Treaties 1978

Article 8:

provides that the obligations or rights of a predecessor State under treaties in force in
respect of a territory at the date of a succession of States do not become the obligations or
rights of the successor State towards other States parties to those treaties by reason only of
the fact that the predecessor State and the successor State have concluded all agreements
providing that such obligations or rights shall devolve upon the successor State.

Article 9:

provides that the obligations or rights under treaties in force in respect of a territory at
the date of a succession of States do not become the obligations or rights of the successor
State or of other States parties to those treaties by reason only of the fact that the successor
State has made a unilateral declaration providing for the continuance in force of the treaties in
respect of its territory.

Article 16:

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 provides that a newly independent State is not bound to maintain in force or to
become a party to, any treaty by reason only of the fact that at the date of the succession of
the States the treaty was in force in respect of the territory to which the succession of the
States relates.

Article 24:

provides that a bilateral treaty which at the date is succession of States was in force in
respect of the territory to which the succession of State relates is considered as being in force
between a newly independent State and the other State party when: (a) they expressly so
agree; or (b) by reason of their conduct they are to be considered as having so agreed.

Effect of State Succession on Public Debts

Generally when a State absorbs another State, the public property of that extinct State
is absorbed by the Succeeded State but Liabilities of illegal acts of that State is not absorbed.

Article 36 of the Vienna Convention on State Property, Archive and Debts, 1983 provides
that the succession of a State does not affect the rights and obligations of the creditors. When
an independent State is formed, no debt shall pass to the independent State unless an express
agreement. In case of separation of a part of the territory the State debt of the Predecessor
State should pass to the Successor State – “Equitable proportion taking into account the
property, rights and interest passing to the successor States”.

Unit – 6

Territorial & Extra-Territorial Sovereignty

Meaning

Each State has its own territorial jurisdiction over its people in making civil, criminal laws for
its people. This is called “Territorial Jurisdiction of a State” or “Protective Jurisdiction”.

Definition

D. J. Harris Defines State Jurisdiction as follows:

State Jurisdiction is the power of a State under International Law to govern persons
and property by its municipal law. It includes

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  Power to prescribe rules (prescriptive jurisdiction)
 Power to enforce rules (enforcement jurisdiction).

Jurisdiction may be concurrent or exclusive, civil or criminal.

Basis and Exercise of Jurisdiction

 The land situated within the boundaries of a State recognized by international law,
over which the State has power.
 The maritime coastal belt or territorial sea
 A ship bearing the flag of the State
 Ports.

Exercise of Jurisdiction

 To exercise the Jurisdiction, the State must have the basis of Jurisdiction. It can be
seen in Sections 3 & 4 of IPC, 1860.
 Section 3:- any person liable, by Indian law, to be tried for an offence committed
beyond India shall be dealt with according to the provisions of this code for any
act committed beyond India in the same manner as if such act has been committed
within India.
 Section 4:- the provisions of this Code apply also to any offence committed by

1. Any citizen of India in any place without and beyond India

2. And person or any ship or aircraft registered in India wherever it may be.

Illustration

a) American and Pakistani murdering Indian – can be tried in India when they are in
India – if escaped to America cannot try Pakistani - reason foreigner – offence in a
foreign state.
b) American and Pakistani murdering Indian – can be tried in India when they are in
India – if escaped to America cannot try Pakistani - reason foreigner – offence in a
foreign state.

Theory of Sovereignty

Lord Macmillan explains, “It is an essential attribute of sovereignty of this realm, add
of sovereign independent States, that it should possess jurisdiction over all persons and things
within its territorial limits and in all causes, civil and criminal arising within its limits”.

Technical Extension of the Territorial Jurisdiction

Besides the assignment of territory to territorial sea, ships, ports, there are other
instances in which the principle of territory is extended. The State has to take action against
the wrongful act beyond its territorial jurisdiction, where the territorial jurisdiction does not
apply. This is called the Doctrine of Technical Extension of Territorial Jurisdiction.

The Doctrine of Territorial Jurisdiction is explained in two principles.

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 a) The subjective territorial principle and
b) The objective territorial principle.

Subjective Territorial Principle

The crimes may be stated in one State and committed in another State or preparation
may be done in one State and the act may have been done within its territorial jurisdiction.
Hence the other State gives subjective territorial jurisdiction to this State. Ex – The Geneva
Convention for the Suppression of Counterfeiting of Currency (1929).

Objective Territorial Principle

Certain States supplies their territorial jurisdiction to the offences or acts commended
in another State. But

a) Consummated or completed within their territory

b) Producing gravely harmful consequences to the social or economic order inside their
territory.

Prof. Hyde defines: “The objective territorial principle is the setting in motion of a State of a
force which produces as a direct consequence of an injurious effect therein and justifies the
territorial sovereign in prosecuting the actor when he enters his domain”.

S. S. Lotus Case (1927)

French ship s.s lotus – collided with Turkish Collier the Boz-Kourt – in the coast of
turkey while proceeding to Constatinople – Turkish vessel sunk – 8 turkish nationals
drowned - Turkish Government initiated criminal proceedings – both the officers of the ship
was arrested and convicted – French Government challenged the trial and convictions
contending turkey had no jurisdiction – PCIJ held conviction valid.

Right of Passage

The land locked states have “right of passage” from the neighboring coastal States.
For example Nepal, Bhutan are land-locked states. They get the foreign goods via Calcutta
port and other Indian territories. The International Law gives the right of passage to such
land-locked States.

Portugal vs India

During British reign, Goa, Daman and Diu were ruled by Portugal since 1843 –
When India got Independence Goa, Daman and Diu were not freed – Goa was surrounded by
State of Bombay – Diu and Daman were scattered each order were surrounded by State of
Gujarat – Portugal enjoyed right of passage during British reign – Indian Government
prevented right of passage – this resulted in overthrow of Portuguese authority – This created
tension – Portuguese claimed right of passage to an extent of exercise of sovereignty –
Portugal referred to ICJ – India argued the tension created due to right of passage of armed

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forces, armed police, arms and ammunition – ICJ have judgment by voting of 11 major to
India and 4 to Portuguese – Right to passage of private persons.

Suez Canal Issue

Suez canal constructed in Egypt – under French control – became British control –
mutual agreement in 1954 – British to Egypt – in 1956 Egypt nationalized Suez canal –
affects Israel, Britain, France etc. – Invaded Egypt – Russia intervened and acted as mediator
– as a result Egypt agreed that Suez canal would remain free from international politics and
all States have right of shipping.

Modes of Acquiring Territory

1. Occupation

2. Prescription

3. Accretion

4. Cession

5. Annexation or conquest

6. Lease

7. Pledge

8. Plebiscite

9. Purchase

10. Newly born States

11. Agreements.

Occupation

Oppenheim defines, “Occupation is the act of appropriation by a State by which it

intentionally acquires sovereignty over such territory as it at the time not under the
sovereignty of another State”.

Conditions for Occupation:

1. Occupation should be actual. It should not be nominal.

2. Effective Occupation is recognized only upon the actual exercise of sovereignty.

3. Sometimes, occupation may also be preceded by discovery. Discovery of new land

gives a good title. Ex. Australia, America, Canada etc.

4. There must be strong intension and desire to have the occupation of that land.

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 5. It must be open and public and involve the continuous, peaceful display of State
authority extending over a long period.

6. A mere forceful occupation does not give a rightful title to the occupier. Ex. Iraq
occupation over Kuwait.

Island of Palmas Arbitration

Palmas Island was a small island located near Philippines – Philippines under Spain
Sovereign – Spanish-American war 1898, Spain lost Philippines to America – in 1906
American officials visited Palmas island – found Dutch flag – dispute arose between
Netherland and USA – Referred to permanent court of Arbitration under sole Arbitrator Sir
Huber – Netherland showed evidence of occupation over Palmas since 1700 – Doctrine of
nemo dot quod non habet(the person who has no title cannot pass a better title to the
transferee)

Andaman Islands Issue

Andaman and Nicobar islands located near to Indonesia – Far from India - State of
Indonesia contented that it should belong it as location is very near – Indian Occupation since
British Government – Principle – continuous and peaceful display of territorial sovereignty.

Prescription

It means long or immemorial possession.

Ingredients:

1. Prescription gives good title to the territory.

2. The State which claims prescription must prove that it’s enjoyment over the territory
that it is public, peaceful and uninterrupted.

3. Prescription stays when no original source of propriety right.

4. The validity of the title grows as the length of the time increases.

5. Interruption in prescription is not possible until an International Tribunal is

established for such purpose.

Chamizal Arbitration (US vs Mexico)

Treaty between USA and Mexico in 1848 regarding boundaries upon river Rio
Grande – in 1911 the river Rio Grande changed its course leaving a tract of land about 600
acres – The Charmizal Tract – on the river of United States side of new bed – USA claimed
on the plea of prescription, Mexico claimed on basis of treaty International Boundary
Commission – Favored Mexico – absence of peaceful and uninterrupted enjoyment – basis
treaty.

Accretion

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 It means increase by natural growth or gradual addition. It is a natural phenomenon, a
geographical process. Due to floods, eruption of volcanos, create certain new islands and add
territory of the State is called Accretion. Ex. Chamizal Tract in 1911 between America and
Mexico.

Edward Collins defines Accretion: “A State acquires territory by accretion when new
land is formed within its existing territorial limits; the Sea recedes, a river drives up an
island appears within the territorial sea. These acquisitions seldom result in either significant
additions of territory or in controversy”.

Cession

A sovereign State surrenders some portion of its territory to another sovereign State.
The cession of a territory may be voluntary or it may be under compulsion as a result of war
or by amicable settlement between countries to avoid conflicts

Ex. Berubari in West Bengal.

Annexation

A State conquers in the War and annexes it in its territory. Annexation may be of
force or by democratic means.

Ex:

1. China conquered Tibet and annexed in 1959.

2. Iraq invaded Kuwait and annexed in 1990.

3. Sikkim annexed into India by democratic means in 1975.

Lease

A Sovereign State may Lease is territory to another sovereign State on certain

conditions and on certain amount of lease.

Ex.

1. Tin Bighasituate in west Bengal has been leased to Bangladesh under an agreement
in 1974.

2. In 1898 China leased island of Hongkong to Great Britain for 99 years and Britain
handed over Hongkong to China in 1997.

Pledge

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 A nation may solve financial crises by pledging it’s gold to other countries and
obtains money. The pledging of territories of a country occurs in rarest of rare circumstances
only.

Ex. In 1768, the Republic of Geneo pledged the Island of Corsica to France.

Plebiscite

It means the consent of the people. An expression of will by direct vote of a whole
people or community on a public issue, especially one concerning a chance of government or
constitution.

Ex.

1. Soviet Russia was split into 15 separate countries by means of plebiscite.

2. East and west Germany were united by plebiscite.

Purchase

A sovereign country may sell some of its territories in a rare occasion.

Ex.

1. Soviet Russia sold Alaska to USA in 1868.

2. Britain purchased Louisiana from France.

3. America purchased Lusiana from Napolean in 1803.

Newly Born States

Certain territories of a Sovereign country declare independence and get territories of

their own.

Ex.

1. Bangladesh in 1971.

2. 15 countries of Russia split and established their own sovereignties and territories.

Agreements

Certain States give independence to their States to their colonies under agreement.
Such colonies, they become independent and acquire their own territories. Ex. India.

Modes of Loss of Territory

All the modes of acquiring territories may be read in reverse for the purpose of modes of
Loss of a Territory.

1. Cession: Pakistan acquired Berubari and India lost it.

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 2. Subjugation: China acquired Tibet.

3. Operation of Nature

4. Prescription

5. Occupation

6. Dereliction: Abandoned.

7. Revolt: India, America in 1776 from Great Britain & Netherlands from Spain.

8. Lease

9. Pledge

10. Plebiscite

11. Purchase.

Air Space and Hijacking

Until 20th Century, the State is of the opinion that, it would enjoy exclusive
Sovereignty over the air space above its territory to any height undeterminable. The
development in Science and technology has broken this conception. Hence the Airspace is
divided into two spaces. (i) Air Space and (ii) Outer Space. The confusion in airspace has
been regulated in 1919 at Paris convention on Regulation of Aerial Navigation.

The Chicago Convention, 1944:

53countries participated in it and recognized the exclusive sovereignty of all States

over their Airspace. It differentiated Aircraft into two divisions.

(i) Civil Aircraft

(ii) State Aircraft.

Article 6 of the Chicago Convention, 1944 gave privilege to civil aircraft to fly
without the permission of the host State and State aircraft to fly with prior permission.

The Chicago conference failed to reach agreement on granting of reciprocal rights of

overflight or of transportation of passengers and cargo led. The two supplementary
agreements were concluded.

1. Chicago International Air Services Transit Agreement, 1944

2. Chicago International Air Transport Agreement, 1944.

Chicago International Air Services Transit Agreement, 1944

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 This Agreement is also called as “Two Freedoms Agreement”. This Agreement only
refers to transit rights. Each contacting State must grant to all other contacting States:

1. The Privilege of flying across its territory without landing and;

2. The Privilege of landing for non-traffic purposes.

Chicago International Air Transport Agreement, 1944.

This Agreement is also called as Five Freedoms Agreement. This incorporates the
above two freedoms and as well as three freedoms additionally which are traffic rights.

1. The Privilege of flying across its territory without landing and;

2. The Privilege of landing for non-traffic purposes.

3. The Privilege of putting down passengers, mail and cargo taken on in the territory of
the State whose nationality the aircraft possesses.

4. The Privilege of taking on passengers, mail and cargo destined for the territory of the
State whose nationality the aircraft possesses.

5. The Privilege of taking on passengers, mail and cargo destined for the territory of any
other contacting State and the privilege to put down passengers, mail and cargo
coming from any such territory.

Hijacking

Criminal Jurisdiction extends over terrorism and hijacking. However, the criminal
jurisdiction is not sufficient to meet the challenges of terrorism and hijacking in the present
day context. To some the problems of hijacking, 138 member –States have conducted
“Tokyo Convention on Offences and Certain other acts committed on board Aircraft
1963” and concluded certain resolutions in 17 Articles.

Thereafter, “Hague Convention For The Suppression Of Unlawful Seizure Of

Aircraft 1970” was concluded by 143 members under 9 Articles. The member States have
concluded another convention “The Bonn Declaration on International Terrorism in
1978”.The Conventions did not use the word “Hijacking” but used the term offence under
Article 1 of Hague Convention, 1970.

Article 1 – Any person who on board an aircraft in flight:

(a) unlawfully, by force it threat thereof, or by any other form of intimidation, seizes, or
exercises control of, that aircraft, or attempts to perform any such act, or

(b) Is an accomplice of a person who performs or attempts to perform any such act commits
an offence.

Key Points:

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 A. The State whose aircraft was hijacked shall have jurisdiction to try the offenders.
However, the conventions do not impose any liability or obligation on the other State,
in which territory the hijackers take the plane, to extradite. This is one of the most
important lacunas in the Conventions.

B. Punishment is not prescribed in the Conventions. The Punishment depends upon the
member-State which tries the offenders.

C. The Bonn Declaration on International Terrorism, 1978 states that in cases where a
country refuses the extradition or prosecution of these who have hijacked an aircraft
and does not return such aircraft, action would be taken to cease all flights to and
from that country and it’s airlines.

The Dawson’s Field Hijacking

The Palestinian Arab Guerrillas – hijacked 3 civil airliners – forced landing in

Dawson’s Field Airship in Jordan in Sep 1970 – demanded release of their Arab guerrillas
and their leader, Leila Khaled – 400 passengers and crew were threatened – Great Britain
released them according to their demands – Hijackers dispersed into various Arab countries.

Indian Airplane Hijacking (1999)

5 Pakistanis hijacked Indian Airplane having 200 passengers and crew from katmandu
– took place to kandahar – Tallibans supported the hijackers – 3 militants were released
including Masood of Kashmiri terrorists – left airplane and escaped to Pakistan – India
criticized Pakistan for supporting hijackers.

Outer Space

Space Exploration started in 4/10/1957, when Russia launched “SPUTINIK–I” into

orbit. Americans followed it by their “EXPLORER-I” on 31/10/1958. Man reached Moon in
1969. India also contributed successfully by launching its first home made multipurpose
satellite “INSAT-2A” on 10/07/1992 and “INSAT-2B” on 23/07/1993.Development in
Science and Technology needed policy for space age. The following resolutions were passed
by the General Assembly.

1. Resolution No. 1348: It was passed in 13/12/1958 and also established an adhoc
committee for regularizing the outer space activities with an intension of “the common
interest of mankind in outer space” and “for the purpose of peaceful purposes only”

2. Resolution No. 1471: It was passed in 12/12/1959 enabling “International

Cooperation in the peaceful Uses of Outer Space”.

3. Resolution No. 1721: passed in 20/12/1961

4. Resolution No. 1902: passed in 14/12/1961

5. Resolution No. 1962: passed in 13/12/1963.

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This Treaty contains the principles governing the activities of States in the exploration and
use of outerspace including the Moon and other celestial bodies.

Key Points of this Treaty:

1) Nuclear Weapons shall not be introduced in the Outer Space by any country.

2) Military Weapons shall not be carried or stocked in the Outer Space by any country.

3) Astronauts are envoys of mankind.

4) If any astronaut of one country is happened to land in the territory of another country
by accident; that country shall take all precautionary and safety measures, and arrange
to send the astronaut to his native State safely and promptly.

5) States shall be responsible internationally for their national activities in outer-space.

6) Is a State differs damage on the act of another State, the State which is responsible is
liable to pay damages.

7) No State can claim Sovereignty in the outer space including Moon and other celestial
bodies by means of Use or Occupation or by other means.

8) All States have equal rights in Outer Space.

Law of Sea

Maritime Belt or Territorial Waters

Sovereignty in the territorial Sea:

Articles 1 & 2 of the Geneva Convention on the Territorial Sea defines, “The
Sovereignty of a State extends, beyond its land territory and it’s internal waters, to a belt of
sea adjacent to it’s coast, described as the territorial sea. The Sovereignty of the coastal State
extends to the airspace over the Territorial sea as well as to it’s bed and subsoil”

Width of the territorial Sea:

Article 3 of the Convention of the Law of Sea 1982 provides that every State has the
right to establish the breadth of its territorial sea to a limit not exceeding 12 nautical miles,
measured from the baselines determined in accordance with this convention.

CANON-SHOT RULE:

There were several rules prevailed over the width of the territorial sea, one of it is “
Canon-Shot Rule “. According to this rule, the width of the sea limit is the extent of a
cannon-shot would reach i.e. 3 miles. Some States claimed it over 3 miles to 200 miles.

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Innocent Passage

Article 14 of the Geneva Convention on the Territorial Sea and the Contiguous Zone
1958 provides that subject to the provisions of the other Articles of this Convention, ships of
all States, whether coastal or not, shall enjoy the right of innocent passage through the
territorial sea.

Passage:

Navigation through the territorial sea for the purpose either of traversing that sea
without entering internal waters, or of proceeding to internal waters, or of making for the
high seas from internal waters.

Passage includes stopping and anchoring, but in so far as the same are incidental to
ordinary navigation or are rendered necessary by force majeure or by distress.

Innocent Passage

Article 15 providers that the coastal State must not hamper innocent passage through
the territorial Sea. The coastal State is required to give appropriate publicity to any dangers to
navigation, of which it has knowledge, within its territorial sea.

Article 16 provides that the coastal States may take the necessary steps in its
territorial sea to prevent passage which is not innocent.

Article 17 provides that foreign ship exercising the right of innocent passage shall
comply with the laws and regulations enacted by the coastal states in conformity with these
articles and other rules of international law and in particular, with such laws and regulations
relating to transport and navigation.

Criminal Jurisdiction

Article 19 of Geneva Convention on the Territorial Sea and the Contiguous Zone,
1958 provides that the criminal jurisdiction of the coastal State should not be exercised on
board a foreign ship passing through the territorial sea to arrest any person or to conduct any
investigation in connection with crime committed on board the ship during it’s passage.

It can be exercised only in the following cases.

 if the consequences of the crime extend to the coastal.

 if the crime is of a kind to disturb the peace of the country or the good other if the
territorial sea or
 if the assistance of the local authorities has been requested by the captain of the
ship or by the consul of the country whose flag the ship flies.
 if it is necessary for the suppression of the illicit traffic in narcotic drugs.

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 The above provisions do not affect the right of the coastal state to take any steps
authorized by its laws for the purpose of an arrest or investigation on board a foreign ship
passing through the territorial sea after leaving internal waters.

S. S. Lotus Case (1927)

French ship s.s lotus – collided with Turkish Collier the Boz-Kourt – in the coast of
turkey while proceeding to Constatinople – Turkish vessel sunk – 8 turkish nationals
drowned - Turkish Government initiated criminal proceedings – both the officers of the ship
was arrested and convicted – French Government challenged the trial and convictions
contending turkey had no jurisdiction – PCIJ held conviction valid.

Contiguous Zone

International Law accords States the right to exercise preventive or protective control
for certain proposes over a belt of the high seas contiguous to their territorial sea. This power
of control does not change the legal status of the waters over which it is exercised. These
waters are and remain the part of the high seas and are not subject to the sovereignty of the
coastal State, which can exercise over them only such rights as are conferred on it by the
present draft or are derived from international treaties.Many States have adopted the principle
that in the contiguous zone the coastal state may exercise customs control in order to prevent
attempted infringements of its customs and fiscal regulations within its territory or territorial
sea, and to punish infringements of those regulations within its territory or territorial sea.

Article 24 of the Geneva convention on the territorial sea and the contiguous zone,
1958 provides that in a zone of the high seas contiguous to it’s territorial sea, the coastal State
may exercise the control necessary to,

 Prevent infringements of its customs, fiscal, immigration or sanitary regulations

within its territory or territorial sea.
 Punish Infringement of the above regulations committed within its territory or
territorial sea
 The contiguous zone may not extend beyond 12 miles from the baseline from
which the breadth of the territorial sea is measured.

Hot Pursuit

Article 23 of the Geneva Convention on the High Seas, 1958 states that the coastal state may
hot pursuit a foreign ship when there is a good reason to believe that the ship has violated
international laws, and the laws and regulations of that State.

The Pursuit must be immediate and it may begin when the offending ship has reached
the high seas.

Article 23:

“The hot pursuit of a foreign ship may be undertaken when the competent authorities
of the coastal state have good reason to believe that the ship has violated the laws and
regulations of that state. Such pursuit must be commenced when the foreign ship or one of its

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boats is within the internal waters or the territorial sea or the contiguous zone of the pursuing
state, and may only be continued outside the territorial sea or the contiguous zone if the
pursuit has not been interrupted.It is not necessary that, at the time when foreign ship within
the territorial sea or the contiguous zone receives the order to stop, the ship giving the order
should likewise be within the territorial sea or the contiguous zone.”

Key Points:-

 The Right of the hot pursuit ceases as soon as the ship pursued enters the
territorial sea of its own country or a third state.
 It can be exercised only by a wardship or military aircraft or government service
specially authorized to that effect.
 When a ship is arrested in the high seas for hot pursuit which is not justifiable has to
be compensated for any loss or damage thereby sustained.

I Am Alone Ship Case (1928)

Liquor Treaty between U.S.A. and U.K. in September, 1928 – Certain Americans
purchased British Ship “I AM ALONE” – Registered in Canada - used for smuggling -
American officers fired and sunk the ship in high seas – Canada sued America for the
wrongful Act – America liable.

India’s Position

India signed the Geneva Convention on the territorial Sea and Contiguous zone, 1958,
the convention on High Seas and Convention on the Law of the Sea 1982. India enacted “The
Territorial Waters, Continental Shelf, Exclusive Economic Zones and other Maritime Zones
Act, 1976”. India incorporated all important provisions of the above conventions.

The Continental Shelf

Article 1 of the Geneva Convention on the Continental Shelf 1958 defines

“Continental Shelf”.

(a) To the sea-bed and subsoil of the submarine areas adjacent to the coast but outside the
area of territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the
superjacent waters admits of the exploitation of the natural resources of the said areas

(b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.

Article 76 of the Law of Sea Convention 1982:-Definition of Continental Shelf

1. The continental shelf of a coastal State comprises the seabed and subsoil of the submarine
areas that extend beyond its territorial sea throughout the natural prolongation of its land
territory to the outer edge of the continental margin, or to a distance of200 nautical miles
from the baselines from which the breadth of the territorial sea is measured where the outer
edge of the continental margin does not extend up to that distance.

2. The continental shelf of a coastal State shall not extend beyond the limits provided for in
paragraphs 4 to 6.

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3. The continental margin comprises the submerged prolongation of the land mass of the
coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does
not include the deep ocean floor with its oceanic ridges or the subsoil thereof.

4. (a) For the purposes of this Convention, the coastal State shall establish the outer edge of
the continental margin wherever the margin extends beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured, by either:

(i) a line delineated in accordance with paragraph 7 by reference to the outermost

fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent
of the shortest distance from such point to the foot of the continental slope; or

(ii) a line delineated in accordance with paragraph 7 by reference to fixed points not
more than 60 nautical miles from the foot of the continental slope.

5. The fixed points comprising the line of the outer limits of the continental shelf on the
seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed
350 nautical miles from the baselines from which the breadth of the territorial sea is
measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line
connecting the depth of 2,500 metres.

6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the
continental shelf shall not exceed 350 nautical miles from the baselines from which the
breadth of the territorial sea is measured. This paragraph does not apply to submarine
elevations that are natural components of the continental margin, such as its plateaux, rises,
caps, banks and spurs.

7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf
extends beyond 200 nautical miles from the baselines from which the breadth of the territorial
sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed
points, defined by coordinates of latitude and longitude.

8. Information on the limits of the continental shelf beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured shall be submitted by the
coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II
on the basis of equitable geographical representation. The Commission shall make
recommendations to coastal States on matters related to the establishment of the outer limits
of their continental shelf. The limits of the shelf established by a coastal State on the basis of
these recommendations shall be final and binding.

9. The coastal State shall deposit with the Secretary-General of the United Nations charts and
relevant information, including geodetic data, permanently describing the outer limits of its
continental shelf. The Secretary-General shall give due publicity thereto.

10. The provisions of this article are without prejudice to the question of delimitation of the
continental shelf between States with opposite or adjacent coasts.

The Continental Slope

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 The Continental Slope is the steep slope with which the shelf proper terminates; the
consonantal rise is the less sharply sloping area between the slope and the deep seabed.

The Exclusive Economic Zones

It has its roots in the concept of exclusive fishing zone and the doctrine of the continental
shelf. It combines and develops the two.

 Article 55 of the Convention of the Law of Sea 1982 gives meaning of the
Exclusive Economic Zone.

 Article 57 of the convention of law of sea 1982 provides that the exclusive
economic zone shall not extend beyond 200 nautical miles from which the breath
of the territorial sea is measured.

Rights of the Coastal States in EEZ

Article 56 explains the following rights:

(a) It has sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of the waters
superjacent to the sea-bed and subsoil, and with regard to other activities for the
economic exploration and exploration of the zone, such as the production of energy
from water, currents and winds

(b) Jurisdiction as provided for in the relevant provisions of the convention 1982 with
regard to

i. the establishment and use of artificial islands, installations and structures;

ii. marine scientific research;

iii. the protection and preservation of the marine environment

(c) Other rights and duties provided for in the convention in 1982.

Article 59: where this convention does not attribute rights or jurisdiction to the coastal
state or to other states within the exclusive economic zone, and a conflict arises between
the interests of the coastal state or any other states, the conflict should be resolved on the
basis of equity and in the light of all relevant circumstances, taking into account the
respective importance of the interests involved to the parties as well as to the international
community as a whole.

Article 60 provides that in the exclusive economic zone the coastal state shall have the
exclusive right to construct and authorize and regulate the construction, operation and
use of;

Artificial islands

Installations and structures for the purposes provided in Article 56 and other economic
purposes

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 Installations and structures which may interfere with the exercise of the rights of the
coastal State in the Zone.

Article 61 provides that the coastal State shall determine the allowable catch of the living
resources in its exclusive proper conservation and management measure that the
maintenance of the living resources in the exclusive economic zone is not endangered by
over-exploitation. As appropriate, the coastal State and competent international
organizations, whether sub-regional, regional or global, shall cooperate to this end.

Article 62 provides that the coastal state shall promote the objective of optimum
utilization of the living resources in the exclusive economic zones without prejudice to
Article 61.

Article 73 lays down that the Coastal State may, in the exercise of its sovereign rights to
explore, exploit, conserve and manage the living resources in the exclusive economic
zone, take such measures, including boarding, inspection, arrest and judicial
proceedings, as maybe necessary to ensure compliance with the laws and regulations
adopted by it in conformity with this convention.

The Freedoms of the High Seas

High Seas:-

Article 1 of the Geneva Convention on the High Seas 1958 gives the meaning of the
term High Seas, “the term High Seas means all parts of the sea that are not included in the
territorial sea or in the internal waters of a State”.

Article 2 of the Geneva Convention on the High Seas 1958 delegates 6 important
freedoms to every State. It states that High Seas are open to all States and no State may
validly purport to subject any part of them to it’s sovereignty. It establishes these freedoms to
both coastal and non-coastal States.

The Freedoms of the High Seas

1. Freedom of navigation

2. Freedom of fishing

3. Freedom to lay submarine cable and pipelines

4. Freedom to flyover the high seas.

5. Freedom to construct artificial islands and other installations permitted under

international law

6. Freedom of scientific research

Article 2 has been developed and amended by Article 87 of the High Seas Convention, 1982:

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 The High Seas are open to all States, whether coastal or land-locked. Freedom of high
seas is exercised under the conditions laid down by this convention and by other rules of
international law.

The Freedoms of the High Seas

1. Freedom of navigation

2. Freedom of fishing

3. Freedom to lay submarine cable and pipelines

4. Freedom to flyover the high seas.

5. Freedom to construct artificial islands and other installations permitted under

international law

6. Freedom of scientific research

Restrictions to The Freedoms of the High Seas

1. Article 99 of the Law of Seas 1982 imposes that the high seas should not be used for
Slavery

2. Article 100 imposes that the high seas should not be used for Piracy

3. Article 108 imposes that the high seas should not be used for Narcotic Drugs

4. Article 116 to 120 provides that the high seas should not be Polluted by and State.

Criticism

The freedoms enunciated by the Convention of the High Seas 1982 are practically not
fully utilized for all the countries equally. The western countries more particularly USA
enjoys more and more than all other States.

International Sea-Bed Area

International Sea-Bed Area is also called “Ocean Floor and Sub-Soil”. The outer
limit of the continental shelf is the limit where the coastal states national jurisdiction in sea-
bed ends. International Sea-Bed area may be defined as the Sea-Bed and ocean floor of the
sea and soon sub-soil thereof beyond the continental shelf of a coastal State and extending
upto the continental shelf is other coastal States.

The General Assembly passed Resolution vide no. 2749 (XXV) on 1970. It declares that,

1. The Sea-Bed and Ocean Floor, and the subsoil beyond the national jurisdiction are
the “common heritage of mankind”.

2. No State can exercise or claim sovereign rights on any part thereof.

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 3. No State or person can claim or exercise rights against the resources incompatible
with international regime.

4. The area shall be open use exclusively for peaceful purposes by all states.

5. All activities regarding exploration or exploitation of resources shall be governed by

international regime.

International Sea-Bed Authority

Article 153 of the Law of the Sea 1982 enables the member States to establish an
International Sea-Bed Authority to carry and control the activities in the Sea-Bed Area on
behalf of mankind as a whole. Articles 154 to 158 provide rules for such activities. The
International Sea-Bed Authority shall have it’s seat in Jamaica.

This Organization consists of:

1. Assembly

2. Council

3. Secretariat

4. Enterprise.

Unit – 7

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 Extradition & Asylum
Nationality – Meaning & Definition

 Meaning:- A person by fact or relation of belonging to a particular nation or country

or origin with respect to a nation. Nationality generally means a loyalty of a person
towards a State.

DEFINITION:-

Starke, “Nationality has been defined as the status of membership of the collectively of
individual whose acts decision and policy are vouchsafed through the legal concept of the
State representing these individuals.”

Oppenheim, “Nationality of an individual the quality of being a subject of a certain State and
therefore its citizens.”

Fenwick:-“Nationality is such a bond which binds an individual with a state and makes him a
member of that specific State and provides for right of protection from that State with an
obligation to abide the laws promulgated by that State,”

Kelson:- “Citizenship or Nationality is the status of an individual who is legally an member

of a state and ornamentally he can be called a member of that community.”

IMPORTANCE OF NATIONALITY: -
 The right of protection of diplomatic representatives are available because of
nationality.
 If any state does not restrain a person of its nationality from such
disadvantageous action which are affecting other States then the fist State shall
be responsible to other states for such actions of its nationals.
 Ordinarily states do not refuse to accept its nationals in extradition.
 One of the effects of the nationality is that the state has a right to refuse
extradition of own national.
 By the practice of many States, at the time of war the Enemy character is
determined on the basis of nationality.

Sl.
Nationality Domicile
No.
1. A Link between State and Individual. Means Residence of a person
It is a loyalty and lovely affection over
2. Can acquire nationality after some years
the State
3. Acquisition is difficult Acquisition is easy

Sl. Nationality Citizenship

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 No
1. It is a concept of International Law It is a concept of State Law
It has a narrower significance. Permanent
2. It has a broader significance
allegiance to a country.
3. Includes all persons All nationals does not possess citizenship
A person may continue his nationality A person may not live after losing his
4.
even after losing his citizenship, citizenship.
5. It is not accompanied with residence. It is accompanied with residence.
6. A mere possession of nationality does It qualifies a person to have all political
not qualify a person to have all rights.
political rights.
7. It is a link between State and Subject. It is link between Person and State Law

Modes of Acquisition of Nationality

According to International Law nationality can be obtained by following means :-

1. By Birth: - In the country in which a person is born he obtains the nationality of that country
by birth or at the time of birth person gets the same nationality which his parents are having.

2. By Naturalization: - By naturalization also nationality can be obtained. When an alien living

in a country obtains the nationality of that country it is called naturalization. In Nottebohm
case-1955, it was held that a State has no obligation in granting nationality to a person
through naturalization if that person has no relations with that state. The court propounded
the real and effective nationality doctrine. If any person obtains nationality of two states then
in case of controversy between the two nationalities the nationality of that state shall be
accepted with which the person fundamentally has real and effective relationship.

3. By Resumption:-Sometimes it so happens that a person may lose his nationality because of

certain reasons subsequently he may resume his nationality after fulfilling certain conditions.

4. By Subjugation:-When a State is defeated or conquered all the citizens acquire the

nationality of the conquering State.

5. Cession:-When a state has been ceded in another State all the people of theterritory acquire
nationality of the State in which their territory has been merged.

Nottebohm Case (1955)

(Liechtenstein vs Guatemala)

FredrichNottebohm born in Germany 1881 – German National by Birth - Went to

Guatemala country for business in 1905 – His Brother resides in Liechtenstein - Nottebohm
often visits his brother – He has several relatives in Germany – Liechtenstein is an
independent country since 1866 - In 1938 he left Guatemala and went to Liechtenstein –
applied and received naturalization as citizen of Liechtenstein in 1939 - Continued to do

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business in Guatemala behaving as a national of Liechtenstein on the passport granted by
Liechtenstein – Second World War – Germany, Italy and Japan – America, Britain and Japan
etc. – other side – Guatemala supported America - Guatemala declared Nottebohm as Enemy
and confiscated the properties of Nottembohm under Guatemala law in 1949 – Liechtenstein
filed a case – defends Nottebohm – demands 10 million Swiss Francs as reparation and
damage – for confiscation of properties illegally – Nationality was considered negatively -
Found that there is no “animus” - to settle in Liechtenstein – no genuine link between
Nottebohm and Liechtenstein – Nationality not recognized as naturalization and the plea
was rejected.

 By Migration – To leave one country to settle or work in another. Ex. Goorkas of

Nepal long-standing relationship.

Loss of Nationality

1. By Release:-In some states there are such legal provisions are available by which they
grant permission to release their nationals from its nationality. For this type of release an
application is necessary. If the application for release is accepted then the applicant is
released from the nationality of that state.

2. By Deprivation:-Often in many states such legal provisions are available by which if a

national of that state enters into service of another state without the permission of home state.
He would loss nationality.

3. By long residence abroad:- The loss of nationality may take place on the ground that the
individual stayed abroad beyond a certain time limit. Many states have such type of legal
provisions which terminates the nationality for the stay of beyond limit.

4.By Renunciation:- It may also be the cause of loss of nationality, when a person is having
nationality of two or more states, he has to choose the nationality of one & has to renounce
the nationality of other state.

5. By Substitution:-In some states the nationality is terminated by substitution. A person gets

nationality of one state in place of other states.

Dual Nationality

 Every Person had the Right to Nationality under Article 15(1) of the Universal
Declaration of Human Rights, 1948.
 Article 15(2) provides that no one shall be arbitrarily deprived of his nationality
and shall be denied the right to change his nationality.
 Double Nationality occurs in case of married women and also in case of children
born in foreign countries. Conflict arises when which State has to protect the
person who has two nationalities.

Canevaro Case (1912)

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(Italy vs Peru)

Raphael Canevaro born national of peru State – obtained Italian national by

naturalization – did not relinquish Peruvian nationality even after owning assets in Italy –
Stood in elections and nominated to send as consul general of Netherlands on behalf of
Peruvian government – permanent court of Arbitration held that he was a peru national.

Nationality of Married Women

Women is born in one State by birth, may marry a person belonging to another
country. The status of the nationality is solved by Hague Conference, 1930 (Articles 8 to
11). That women marrying another national automatically acquires nationality of her husband
and can also retain her birth nationality.

Statelessness

Article 15 of UDHR, 1948 – no person shall be denied of nationality.

Stoeck vs The Public Trustee (1921)

Stoeck born in germany 1872 – left to belgium 1895 – submitted & received
relinquishment of nationality in 1896 – went to England in 1896 – resided permanently -
During 1st World War in 1916 British Government declared him enemy national and
acquisitioned his properties and expelled him in 1918 – Permanent Court of Arbitration held -
not a German national - stateless person and declared expulsion order void.

Extradition

Extradition is a Latin phrase comprising of two words i.e. ex traditio.

Ex – to

Traditio – give up / surrender.

Thus in international Law, Extradition means delivery of criminal or fugitive from

justice by one county to another country on sufficient grounds shown.

Definition

Oppenheim defines, “Extradition is the delivery of accused or a convicted individual

to the State on whose territory he is alleged to have committed or to have been convicted of
a crime , by the State on whose territory the alleged criminal happens to be for the time
being”

Object

The Main Object is to secure peace in the society, else he may be a threat to the
country or to the entire world.

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 Ex. Dawood Ibrahim escaping to Dubai.

Essential Conditions for Extradition

1. Treaty

2. Political Offenders

3. Double Criminality

4. Military Criminality

5. Religious Criminality

6. Rule of Specialty

7. Conditions

8. Evidence

9. Procedure

10. Own Citizens

Treaty

A State cannot claim extradition as of a right. There must be a treaty between the two
countries. International Law does not recognize Extradition as a general rule of States.

Political Offenders

Extradition of political offenders are not accepted but only in case of other criminals
only. However, it is difficult to distinguish and define a Crime, Political Crime and Politically
Motivated Crime.

Castoni Case

Castoni was the leader of dissident group in Switzerland. He killed a member of State
council – murder charged – fled to England – took asylum – extradition denied on basis of
political offender.

Political Offenders

Celestin Jacquin Case

Celestin Jacquin a French National – domiciled in Belgium – attempted to murder

Emperor Nepolean-III by exploding railway line but escaped – French government requested
Belgium to extradite – extradition failed due to political offence – Belgium Government
incorporated a clause “Attentat Clause” – the murder of the head of foreign national and his
family is not to be considered as political offence – several European countries adopted this
clause.

Conditions for Extradition

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Double Criminality

It is a ground for extradition. When a crime is a crime in both the countries it is

double criminality.

Military Criminality

Extradition is not allowed in case of military criminality

Religious Criminality

Extradition is not allowed in case of Religious Criminality

Rule of Specialty

This rule is emanated from Natural Justice. Extradition for the purpose of prosecution
only for that offense alone.

Conditions – Treaty based terms in Extradition

Evidence – Sufficient for Extradition

Procedure – According to the Law of the Land

Own Citizens – Extradition too remote.

Sl.
Extradition Expulsion
No.
1. Dealt under Extradition Act, 1962 Dealt under Foreigners Act, 1946
2. Needs Assent of Two Countries Can be done by one country
Need not be a Criminal. A foreigner
3. It is an extension of Criminal Branch. expelled may be against a government.
Ex. Diplomat or Secret Agent
It is only possible with Bi-Lateral Treaty
4. Treaty not necessary
between the two Countries
5. It is a combination of Administrative It is purely Administrative Act
and Judicial Acts
6. There must be Magisterial Inquiry Magisterial Inquiry not necessary
7. Person Extradited is punished Person Expulsed is not punished

India’s Position on Extradition

It is based on Indian Extradition Act, 1962. Section 31 of the Act provides restriction to
Extradition.

 Political Criminal
 Limitation
 Rule of Specialty
 Unfettered Powers to Central Government of any fugitive criminal.

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DharamTeja’s Case

DharamTeja Managing Director of Jayanthi Shipping Corporation – Committed

Embezzlement of crores of Rupees – Govt. of India initiated criminal proceedings – escaped
to Ivory Coast – Extradition refused lack of treaty – later fled to England – England
Extradited – existence of extradition treaty – DharamTeja prosecuted and punished.

Asylum

Asylum is from a Latin Phrase

a + sylon. (a=not) (sylon=right of seizure).

Asylum means a sanctuary or place of refuge.

Definition

 J. G. Starke in his book “An Introduction of International Law” defines:

Asylum involves two important elements:-
 A shelter which is more than a temporary refuge
 A degree of active protection on the part of the authorities which have control
over the territory of asylum.

Kinds of Asylum

 There are two kinds of Asylum:

 Territorial Asylum

 Extra-Territorial Asylum (Diplomatic Asylum)

Extra - Territorial Asylum

A) Territorial Asylum :

Territorial Asylum is granted by a State on its Territory, it is called Territorial

Asylum. The right to grant asylum by a State to a person on its own territory flows from the
fact that every State exercises territorial sovereignty over all persons, on its territory to any
one. The grant of territorial assylum therefore depends upon the discretion of a State which is
not under a legal obligation to grant asylum to fugitive, As no precise rules as to grant of
territorial asylum. General Assembly call upon the International Law Commission in 1959 to
undertake the codification of the principles and rules of international law relating to right of
asylum. On 14th December 1967 General Assembly adopted Declaration of Territorial
Asylum through the adoption of resolution. The declaration consists of a Preamble and four
Articles dealing with the principles relating to the grant of refusal of asylum. This
Declaration provides that the right to seek and enjoy asylum may not be invoked by any
person with respect to whom there are serious reasons for considering that he has committed
a crime against peace, a war crimes and crimes against humanity. Article 4 of the this

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Declaration provides that the State granting asylum shall not permit persons who have
received asylum to engage in the activities contrary to the purpose and principles of United
Nations. From the above provisions of the declaration it is clear that State does not have
absolute right to grant asylum. The grant of asylum is a part of which cannot be exercised in
respect of International crimes including genocides.

 A State which grants asylum to a refugee in her own country.

 Article 14 of UDHR:- Even one has a right to seek and enjoy in order countries
asylum from protection.
 The Convention on territorial asylum, 1945 states, “ Every State has right in the
exercise of its Sovereignty, to admit into its territory such persons as it deems
advisable without, through the exercise of the right, giving rise to complaint by
any other State”.

Some examples of territorial Asylum -

1) Idi Amin have been given by Saudi Arabia.

2) Baby Dok have been given asylum by France.

3) Dawood Ibrahim mafia Don is given asylum by Dubai Government.

4) Salman Rushdie for his controversial novel Satanic Verses given Asylum by Great Britain.

5) TaslimaNasreen a Bangladeshi writer for her novel Lajja granted asylum by Sweden.

6) Tiger Menon, wanted in Bombay Bomb blast case, granted asylum by Pakistan.

7) Dalai Lama and his followers was granted asylum by government of India.

B) Extra-territorial Asylum -

Active protection is given outside the territory not belonging to the state granting it.
Thus when Asylum is granted by a State at places outside its own territory. It is called extra-
territorial Asylum'.It usually describes to those cases in which a State refuses to surrender a
person demanding who is not upon its own physical territory but is upon one of its public
ships lying in foreign territorial borders or upon its diplomatic premises within foreign
territories. Thus Asylum is given at legation, consular premises and warships are the
instances of extra-territorial asylum.

A State grants asylum to a refugee in its embassy or its public vessels.It can be
granted in War ships, Merchant vessels, Consular premises etc.

Stake explains this as:

 Territorial Asylum is an incident to territorial Sovereignty itself.

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  Extra-Territorial Asylum is a derogation from the Sovereignty of the territorial
State in so far is required to acquiesce in fugitive from its authorities employing
protection.

1. Diplomatic Asylum / Asylum in Legation :

Since granting extra-territorial Asylum or diplomatic Asylum involves a derogation

from the sovereignty of the State, International law ordinarily does not recognize a right to
grant asylum in the premises of legation. But asylum may be granted in the legation premises
in the following exceptional cases.

 Individual who are physically in danger from violence.

 Where there is well established and binding local custom.
 When there is a special treaty between territorial State and the state of
Legation concern.

Asylum in consular premises -

2. The above principle also apply in the case of Grant of asylum in consular premises.

3. Asylum in the premises of international institution -

Though International Law does not recognise any rule regarding the grant of asylum
in the premises of International institution, however, temporary Asylum may be granted in
case of danger of imminent violation.

4.Asylum in Warship -

There are conflicting views to grant of asylum in warship, but it is argued that Asylum
may be granted to political offenders.

As far as a asylum Warship is concerned, it may be granted on the ground of

humanity, in cases if extreme danger to the individual seeking it. Thus , right to grant asylum
on Warship may be granted in the same way in the case of Legation and also subject to the
operation of the same conditions.

5. Asylum in Merchant Vessels -

Since merchant vessels do not enjoy immunity from local jurisdiction, they are not
competent to Grant asylum to local offenders. Thus, if a person after committing a crime on
shore seeks asylum on board a foreign merchant ship he may be asserted by the local police,
either before the ship leaves the port or when it comes into another port of the same State.
There is, therefore a rule that asylum is not granted on merchant vessels . However, State
may grant asylum if they conclude a treaty to this effect.

6.Asylum in the premises of international Institutions :

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 Whether a person taking refugee in the premises of an international institution or
organisation would be granted asylum is a question which cannot be given with certainity in
the absence of any rule in this regard and also because of lack of practice. However, a right to
grant temporary refuge in an extreme case of danger from mob cannot be ruled out.

Thus, in Extra-territorial or diplomatic Asylum, Asylum can be granted in

exceptional cases and it is necessary to establish legal basis in each particular case.

Haya de la Torre’s Case

(Columbia vs Peru)

Rebellion took place in peru 1948 – failed – arrest warrant – rebellion leaders – Haya
de la Torre sought asylum to Columbia Embassy – situate in Lima capital of Peru – granted
asylum in 1949 – planned to take him to columbia - Peru refused – arranged army around
Columbia embassy – suit filed – contended as political offender – ICJ declared Columbia not
bound to surrender the refugee Haya de la Torre as a political refugee.

Unit – 8

Diplomatic Agents
Meaning

 Diplomatic Agent is a person who is the head of the diplomatic mission.

 The Primary function of the Diplomatic Agent is to enhance friendly relations &
business in those countries etc.
 He is the representative of his State.

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  He has to do all activities on behalf of his State.
 He has to discuss about his Government’s Policies and attitude etc. to the
receiving State.

Definition

Starke defines:-“ Consequent on a development over some hundreds of years

Institutions of Diplomatic Representatives has come to be principal machinery by which
the intercourse between States is conducted”.

Scope

The Vienna Convention on Diplomatic Relations 1961 deals with the rights,
privileges and immunities to the diplomatic agents. Based on it, India has also passed The
Diplomatic Relations (Vienna Convention) Act, 1972.

Classification of Diplomatic Agents

Ambassadors

An official envoy; a diplomatic agent of the highest rank accredited to a foreign

government or sovereign as the resident representative of his or her own government or
sovereign or appointed for a special and often temporary diplomatic assignment

Legates

They are representatives appointed by Pope. Legate is the synonym envoy. The
Vatican still sends papal legates to represent the pope's point of view in negotiations.

Ministers Pleni-Potentiary

 Plenus = Full; Potens = Power

 Ministers having full power in representing the State.
 They are second category of diplomatic agents who enjoy less immunities and
privileges than Ambassadors.

Charge-d Affaires

An official placed in charge of Diplomatic business during the

temporary absence of the Ambassador or minister.

PERSONA NON GRATA

Article 9 of Vienna Convention provides that the receiving State may at any time without
explaining the reason notify the “Person not accepted” to the sending State and the
sending State has to immediately recall or cancel the mission.

Functions of Diplomatic Agents

Article 3 of the Vienna Convention on the Diplomatic Relations, 1961 enunciates the
following functions.

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  Promoting friendly relations between the two countries.
 Having regular contacts and negotiations with receiving state.
 Taking all precautionary steps in protecting nationals of sending state residing in
receiving state.
 Issuing passports and visas for intending and appropriate persons who want to
visit the sending State.
 Sending reports to his country on opportunities available in receiving State in
business, culturing etc.

Rights, Immunities and Privileges

 Inviolability of the premises of Mission – Article 22

 Inviolability of the personnel of Mission – Article 29
 Exemption from taxes – Article 23
 Inviolability of archives and documents – Article 24
 Facilities – Article 25
 Movement and Travel in receiving State – Article 26
 Communications – Article 27
 Immunity from inspection of personal baggage – Article 27
 Immunity from Criminal Prosecution – Article 29
 Private Residence – Article 30
 Immunity to be a witness - Article 31
 Exemption from taxes on personnel – Article 34
 Immunities to diplomatic agent in the territory of a third State – Article 40
 Immunity from local and military obligations – Article 35
 Immunity from Social Security Provisions – Article 33.
 Worship
 Right to control over his personnel
 Immunity from Civil Jurisdiction

Duties of Diplomatic Agents

 Duties in accordance with International Law

 Duty to respect the laws of receiving State
 Duty not to interfere in the internal affairs of the receiving State.
 Official Duty owed to the sending State
 Incompatible Functions – Article 41
 Prohibition on Professional or Commercial Activities – Article 42

What are the different classes of Diplomatic Agents? Describe briefly their privileges &
Immunities.

INTRODUCTION: -

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 During the Ramayana and Mahabharata period some aspects of International Law were
in their developed stage. Examples of international law relating to diplomatic agents may be
cited in this connection. The permanent appointment of diplomatic envoys began from the
seventeenth centaury. The rights, duties, immunities and privileges etc., of the diplomatic in
18th. &19th. Centaury was mostly in the term of customary rules. The first great landmark
was the Congress of Vienna in 1815, wherein the customary law regarding diplomatic agents
was clarified and codified. The contents of Vienna Convention were adopted finally in
1961. The Indian Parliament passed the Diplomatic Relations on the basis of Vienna
Convention-1972 to give effect to this convention. This law relating to the diplomatic and
consular affairs remains the strongest section of International Law. DIFFERENT
CLASSES OF DIPLOMATIC AGENTS:-The diplomatic agents have been classified
according to their status and functions. The first classification of diplomatic agent was made
in the Congress of Vienna in- 1815 under which diplomatic agents were classified under the
following categories:-
1.Ambassadors and Legates:-These are the first category of diplomatic agents
and are the complete representatives of the sovereignty states. Their designation is
Ambassadors or Permanent Representatives of their respective countries of U.N.
They are appointed by POP.

2.Ministers Pleni-potentiary and Envoys extraordinary:- Are the diplomatic

agents of second category and as compared to the diplomatic agents of the first
category. They enjoy less privileges and immunities.
3.Charge-d affairs: - They are the diplomatic agents of the last category. The
main reason for this is that they are not appointed by the head of State but are
appointed by the Foreign Minister of the State. Their status is considered below
the Minister Resident.
4.Minister Resident: - In the congress of Aix-la-Chappele-1818, this category
was added at category No.3, but it was again dropped by 1961 Convention.

 PRIVIEGES & IMMUNITIES OF DIPLOMATIC AGENS:-As observed by

the International Court of Justice on 15.12.79 in a case of United States
Diplomatic and Consular Staff in Tehran: For enabling states irrespective of their
differing constitutional and social systems to achieve mutual understanding. One
of the pillars of modern International Law is the diplomatic immunities of the
Ambassadors. However the following are the immunities and privileges of the
diplomatic agents:-
 Inviolability of the person as envoys: - The diplomatic agents are extended
personal safety and security. If an envoy is attacked it is deemed that attack was
on the country to which the envoy is belonging.
 Immunity from criminal jurisdiction of the court: - The courts of the state
where the envoy is posted do not treat the envoys within its criminal jurisdiction.
It ordinarily believed that envoys will not violate the laws of the host country. But
there are certain circumstances when the envoys lose their immunity for example
when they indulge in conspiracy against the host state.

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  Immunity from civil jurisdiction:- the envoys also enjoy the immunities of civil
nature also no suit is filed in the civil court of the host state against envoys. As per
Vienna convention three exceptions when immunity is not available: i) for any
immovable property within the jurisdiction of host state he has. ii) in a matter of
inheritance where the envoy is a successor or executor in his personal capacity. iii)
The commercial activities of the envoy in personal capacity.
 Immunity regarding residence:-His premises are inviolable and no search is
allowed in his residence. If any person intrudes the premises of envoy to avoid
arrest, it is the duty of envoy to deliver such person to the host government to
decide.
 Immunity from presence in a court as a witness:- Any envoy cannot be
compelled to give an evidence in any Court but he himself can waive this
privilege and appear before a court.
 Immunity from Taxes:-Vienna convention provides this immunity to envoys for
payment of local taxes. But water, electricity, telephones etc. not included.
 Right to worship:-Within the premises of their embassy, envoys are free to
follow according to their choice the mode of worship. B) Right to exercise
jurisdiction over the staff and family in the embassy:- Envoys are free to
exercise their jurisdiction over the subordinate staff & family in the Embassy to
keep the embassy going on.
 Right to travel freely in the territory of receiving state:-Vienna convention has
provided a new right to envoys, they can travel freely within the territory of host
state and go anywhere.
 Freedom of communication for official purposes:- Vienna convention-1961 the
envoys have freedom to communicate with his own state in context to their
official work.
 Immunity from Military and other local obligations :- Vienna convention
granted the immunity to envoys from military and other local obligations of the
host state. BASIS OF IMMUNITIES AND PRIVILEGES OF DIPLOMATIC
AGENTS:- Theory of extra territoriality: - According to Grotius diplomatic
agents though physically present upon the soil of the country to which they are
accredited. It is justified base when they are treated to remain for all purposes
upon the soil of the country to which they represent. Functional Theory: - the
reasons for granting privileges and immunities to the diplomatic agents are that
they perform special type of functions that is why they are called functional and in
modern times this theory is accepted as correct.

U.S. vs Iran
(U.S. Diplomatic & Consular Staff in Tehran Case)

Revolution in Iran against Shah Government – Shah was removed from kingship
under the leadership of Ayatollah Khomeini – fled to America and received asylum under
medical treatment – angered Iranian Students - Took possession of US Embassy in Tehran by
force – captured 52 persons and documents in embassy – Iranian Government initiated no

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action – America filed case in ICJ – argued Iran violated number of treaties - 1961 and 1963
Vienna convention on Diplomatic & Consular Relations were violated – American
Commandos tried to camp the release of 52 persons but failed due to air collision – no injury
to Iran - ICJ declared that Iran violated the International Principles – Ordered to redress the
situation and reparation costs – Iran did not participate in proceeding nor Honored the
judgment – USA negotiated with Iran and released hostages.

Unit – 9

International Treaties
Meaning

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 Treaty means an International Agreement concluded between States in written form and
governed by International Law, whether embodied in a single instrument or in two or more
related instruments and whatever it’s particular designation.

INTRODUCTION:-

In the modern period International treaties have been the first and foremost source of
international law. Whenever an 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 based on the provisions of the treaty. International treaties occupy the same
significant position in the field of international law as the legislation occupies in the
municipal law.
DEFINITION OF TREATY: - International treaty is an agreement between two or more
states under the international law to create mutual relationships. According to Oppenheim,
“International treaties are those agreements between the states which are of contractual nature
and produce legal rights and obligations.”
According to Starke, “Usually in all cases, the purpose of treaties is to create binding nature
of obligations on the parties to the treaties.”
According to Vienna Convention on treaties-1969, “Treaties and contracts are document
under which two or more states under international law establish or try to establish their
relations.”

CLASSIFICATION OF TREATIES:-

Treaties are basically classified into

• Bilateral Treaties

• Multilateral Treaties

Oppenheim classifies

• Law making treaties

• Treaties for their purpose

MC Nair classified as

• Treaties in the form of Agreements between States

• Treaties in the form of Agreements between Heads of States

• Agreements in the form of inter-governmental agreements

• Agreements between Departments, ministers, other organs or agencies of

Governments.

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 One of famous jurist Mc Nair has classified treaties in the following manner:-

 Treaties having the character of conveyance.

 Treaty contracts.
 Law making treaties: a) Treaties creating constitutional law just as charter of
ICJ. b) Pure law making treaties e.g. labour conventions negotiated by ILO.
 Treaties akin to charter of incorporation e.g. treaty by which International Posta
Union -1874 came into existence.
 Vattel has classified treaties into four categories i.e. equal, unequal, real and
personal.
 Prof.Oppenheim has classified the treaties into two categories:-

o Law making treaties. 2. Treaties made for other purposes.

HOW THE TREATIES ARE SIGNED

FORMULATION OF TREATIES: - For making the treaty of binding nature, the following
conditions are to be fulfilled:

1. Accreditation of persons on behalf of contracting parties:- The intending parties of

treaties should appoint persons as their representatives to negotiate on their behalf
authoritatively for arriving at terms and conditions of a treaty.

2. Negotiations and adoption:- After due negotiations the terms and conditions of a treaty are
clunched and for its adoption a decision is made by both the parties.
3. Signature: - The representatives sign on each and every terms of a treaty to make it
enforceable. A treaty becomes enforceable against a party only after the signature of the party
or its representative is obtained on the treaty papers.

4. Accession and Adhesion: - The practices of the States show that by the process of accession
and adhesion a state which is not a party to a treaty may become a party to it by signing it
afterwards.

5. Enforcement of a treaty:- Usually the enforcement of a treaty depends and begins according
to the terms and provisions as laid down in the treaty itself. Many treaties commence after
the signature is affixed by the authorised person while those which need ratification by the
other states in certain number begin after the required number of states have ratified. The
general rule of International Law is that a treaty is enforceable against the parties only which
have entered and signed a treaty.

6. Registration &Publication:- It is necessary after the treaty comes into force, it may be got
registered and published. Under the provisions of article 102 of UNO charter. If it is not
registered with the UNO that in case of any dispute comes into existence for its settlement

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 through the organs of UNO the treaty which is not registered cannot be referred to for the
settlement of that dispute.

7. Basis of binding force of the International treaties:-According to Angilotti, “Binding force

of International treaty gains its binding force.
PROCEDURE OF RATIFICATION:- Ratification is a very important processes ordinarily
the terms and conditions of a treaty. Treaty does not become enforceable without
ratification. The President of a State or Chief of the Govt. Ratify the signatures of its
representatives who negotiated for arriving at the agreed terms and conditions of a treaty.

Classification of Treaties

Treaties are basically classified into

• Bilateral Treaties

• Multilateral Treaties

Oppenheim classifies

• Law making treaties

• Treaties for their purpose

MC Nair classified as

• Treaties in the form of Agreements between States

• Treaties in the form of Agreements between Heads of States

• Agreements in the form of inter-governmental agreements

• Agreements between Departments, ministers, other organs or agencies of

Governments.

Stages in formation of Treaties

1. Accredition or Authorization

2. Negotiation and Adoption

3. Signatures

4. Ratification

5. Accession of Adhesion

6. Pactasuntservanda

7. Registration and Publication – Art 102 of Charter of UN

8. Application and Enforcement – Art 24 (VCLOT)

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PactaSuntServanda

It means “An Agreement must survive”. The States are bound to fulfill in Good
Faith the obligations assumed by them under the treaties.Thus, PactaSuntServanda in the law
of treaties is based on Good Faith which also has a binding character.

Article 2(2) of the Charter of United Nations provides:

• “All Members, in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfill in good faith the obligations assumed
by them in accordance with the present Charter”

Article 26 of the Vienna Convention on the Law of Treaties, 1969 provides:

• “Every treaty in force is binding upon the parties to it and must be performed
by them in good faith”.

Ratification of Treaties

Ratify means to confirm. Ratification of a Treaty means, the head of the state or its
government approves, it ratifies the signatures of its authorized representative.

Article 14 of the Vienna Convention on the Law of Treaties, 1969 Explains the mode
and effect of ratification.

“The consent of a State to be bound by a treaty is expressed by ratification when:

(a) the treaty provides for such consent to be expressed by means of ratification;

(b) it is otherwise established that the negotiating States were agreed that ratification
should be required;

(c) the representative of the State has signed the treaty subject to ratification; or

(d) the intention of the State to sign the treaty subject to ratification appears from the
full powers of its representative or was expressed during the negotiation.

Effect: The consent of a State to be bound by a treaty is expressed by acceptance or

approval under conditions similar to those which apply to ratification.

Modes of Termination of Treaties

1. Termination by Consent

2. Termination by Treaty Provision

3. Error or Mistake – Article 48

4. Fraud or Corruption - Article 49 & 50

5. Coercion – Article 51 & 52

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 6. Unequal Treaties

7. Jus Cogens – Article 53 & 64

8. Material Breach – Article 60

9. Supervening Impossibility of performance – Article 61

10. Rebus Sic Standibus – Article 62

1) Expiry of Specific Period :

When a treaty is concluded for a particular period, which expressly provided in

treaty contract then after the expiry of that period, treaty ipso facto comes to an end.

2) Where the main purpose/object of the treaty is fulfilled :

In case of treaties imposing no continuing obligations, they cease to operate on the

fulfillment of the object.

3) Termination by Mutual Consent :

It is an outcome of consensus. Treaty comes into existence by the consent of the

party State. So it can come to an end by mutual Consent.

There are three ways for termination of by mutual consent see in Detail >>>>
Termination of Treaties by Mutual Consent.

4) One of the Party State Extinct :

When the existence of one of the party state comes to an end, generally in case of the
merger of one state into another state, the treaty stand terminated.

5) When that obligation of the treaty becomes incompatible with the Charter of

United Nations :

Article 103 specifically provides that in the event of a conflict between the
obligations of the members of the United Nations and their obligations under any other
agreement, their obligations under the Charter shall prevail.

6) War Between Party States :

In a War, If the Party States are the enemy against each other, then contractual
obligations come to an end and treaty ipso facto stand terminated.

7) Dissolution by Withdrawal by Notice :

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 The treaties can be dissolved by a notice by either party to the other party. If no
period of the existence of the treaty is prescribed by the parties, then treaty can be determined
by the requisite period of the termination of treaties by a notice. When a prescribed period of
notice is given expressly in the treaty then it is to be strictly complied with.

8) Terms of treaty becoming injurious to State :

By such treaty either wholly or partly the terms of treaty become injurious to one of
the party state, thereby interest of one party state, likely to be adversely affected. In such
circumstances, there is conflict as to term and sovereignty of the state, whereby sovereignty
of that state is in danger. Its survival is more important than such obligations. In such cases
of conflict, the law makes it very clear and contractual obligation comes to an end.

9) Non- Performance of certain Essential Conditions :

If the Treaty grants a unilateral right of denunciation to one or all of the consenting
States in case of failure of certain essential conditions, the treaty comes to an end on the
happening of such contingency.

10) Doctrine of Rebus sic stantibus :

Rebus – by things

Sic – thus

Standibus – stand as they are.

This means “so long as things stand as they are”.Article 62 explains the principle of
Rebus Standibus.

The meaning of doctrine Rebus sic stantibus is if by any unforeseen change, or

circumstances an obligation provided for in the treaty should imperil the existence of one of
the State. and such state has a right to demand and to be released from the contractual
obligations. It means when the terms of the agreement are injurious to one of the party State,
or the purpose of treaty is over or there are changes in the circumstances, or there is conflict
with the status of or existence of one of the party State, or when the object of treaty is no
more there, then in such cases doctrine of Rebus Sic Stantibus is made applicable and Treaty
concluded comes to an end. This is based on the basic principle of self Preservation and
Development in accordance with the growth and requirement of the nation.

11) Doctrine of Jus Cogens :

Lastly, a treaty may be declared void if it conflicts with a peremptory norm (it also
called jus cogens)of general International Law.

Jus – Moral as well as legal Obligations and Rights.

Cogens – Forcing, compelling.

A treaty can be declared void in international law, if it conflicts with the peremptory norm
and such treaty is considered as void ab initio.

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 The Principle of Jus Cogens is incorporated in Article 53 & 64.

Examples

• A Treaty compelling the performance of any other act criminal under

International Law

• A Treaty compelling slavery, piracy & Genocide etc..

Unit – 10

United Nations
League of Nations

First World War – 1914 to 1918 – Germany Greediness – Huge loss to life and
economy – Treaty of Versailles 1919 – Britain, France and America – League of Nations estd
in 10/01/1920.Assembly, Council & Secretariat – Organs – 1 member 1 vote, 1 member 3
representatives in assembly – America, Britain, France, Italy and Japan are permanent
members.

League of Nations - Organs

Assembly – Supreme Body

Council – Executive Body

Secretariat – Secretary General – Chief appointed by Council with the approval of

Assembly

PCIJ – Judges were elected by Assembly and Council

League of Nations - Dissolution

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 Weakness and Failure caused League of Nations to be dissolved in April 1946 –
Germany’s greediness and war consciousness caused Hitler for 2nd World War – Italy and
Japan supported Germany.

• Defects

• Unanimous Decisions – Democratic Principle of Majority was not adopted

• Wars – No control over the members of the League

• America – America took interest in creating it but did not join.

• Withdrawal – Easy

• Amendment – if not interested the membership ceased

• Discrimination – Great Powers showed selfish interest

• Peace – failed to maintain

United Nations Organization

Introduction

The Sanfransisco Conference held in Jan 26th 1945 with an object to maintain
peace.51 Countries Participated in it and was ratified in October 24th 1945.October 24th 1945
is called as “United Nations Day”

Purpose of UNO – Article 1

• International Peace and Security

• Friendly Relations

• Co-Operation

• Center for Harmonizing Acts.

Principles of UNO – Article 2

• Equality

• Benefits – Good Faith

• Settlement of Disputes – International Peace, Security and Justice

• Non–Intervention – States should not intervene in UNO taking enforcement.

• Non-Members – to adhere to these principles for maintenance of peace and security

Domestic Jurisdiction

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 UN not to interfere in internal affairs of the State, subject to application of
enforcement under chapter VII

Membership – Article 3 to 6

• Article 3 – Original Members participated in San Fransisco Conference

• Article 4 – Other Peace loving State is accepted upon recommendation of Security

Council and Decision of General Assembly

• Article 5 – Suspension of Membership against the enforcement and preventive action

by UN

• Article 6 – Expulsion of Membership against continuous Violation of Principles

Principal Organs of UNO

General Assembly

• Principal Organ & Head of UNO

• Covered under Article 9 to 22 of Chapter IV

• It consists of all the members – Art 9

• 1 member 1 vote – Article 10 of the Charter of UN

General Assembly - Functions

Meets once a year & on Special Occasions

• Deliberative Functions

• Supervisory Functions

• Financial Functions – Article 17

• Elective Functions

• Constituent Functions

Deliberative Functions

• Discussion – Article 10

• Maintenance of International Peace and Security – Article 11

• Co-operation – Article 13.

Resolutions of General Assembly

• Decisions can be made only based on 2/3rd Majority present and voting.

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 • Does not act as a world legislative authority.

• Binding force is obtained through intension of the members.

• Acts as a law creating mechanism.

Security Council

• Chapter V – Article 23-32 of Charter of UN

• Composition – Article 23

• Powers & Function – Article 24 to 26

• Voting – Article 27

• Procedure – Article 28 to 32

Composition:

Consists of 15 members – 5 permanent members Britain, America, Russia,

China & France – 10 non-permanent members elected for 2 years – 1 member 1
representative.

Voting Rights – requires 9 affirmative votes including affirmative votes of 5

permanent members on matters having great importance.

Veto – it is conferred only to 5 permanent members.

Double Veto – power to decide in the absence of permanent members. Veto is

only for non-procedural questions. It is used to question in the absence.

Functions and Powers

1. Maintenance of International Peace and Security

2. Elective Functions – election of judges of ICJ (Art 4 & 8 of Statute of ICJ)

3. Supervisory Functions

4. Constituent Functions – Article 108 (Amendment)

The International Court of Justice

It’s statute is based on “Statute of Permanent Court of International Justice” newly

named as ICJ

Jurisdiction

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 a) Contentious Jurisdiction
b) Advisory Jurisdiction

Contentious Jurisdiction

Voluntary Jurisdiction – Art 36(1) (Referendum) & Art 59 (Binding Force)

Optional Jurisdiction – ipso facto (fact not mentioned) Art 36 (2-6).

Advisory Jurisdiction

Articles 65 to 68 deals with advisory jurisdiction

Article 65 – Legal Question

Article 66 to 68 – circumstance in which advisory jurisdiction be invoked

Other Organs

Economic & Social Council – Art 61 to 71 (Economic, Social, Cultural, Educational

& Health etc.)

The Trusteeship Council – Art 86 to 91 (Organization of Territories)

Secretariat – Art 91 to 101 (Secretary general and other staffs in administer all
organs of UN)

Nuremberg Trials

Held for the purpose of bringing Nazi war criminals to justice, the Nuremberg trials
were a series of 13 trials carried out in Nuremberg, Germany, between 1945 and 1949. The
defendants, who included Nazi Party officials and high-ranking military officers along with
German industrialists, lawyers and doctors, were indicted on such charges as crimes
against peace and crimes against humanity. Nazi leader Adolf Hitler (1889-1945) committed
suicide and was never brought to trial. Although the legal justifications for the trials and their
procedural innovations were controversial at the time, the Nuremberg trials are now regarded
as a milestone toward the establishment of a permanent international court, and an important
precedent for dealing with later instances of genocide and other crimes against humanity.

International Criminal Court (ICC):-

The International Criminal Court (ICC), located in The Hague, is the court of last
resort for prosecution of genocide, war crimes, and crimes against humanity. Its founding
treaty, the Rome Statute, entered into force on July 1, 2002. Over the last decade the court
has made significant headway in putting international justice on the map. As of June 2015,
the ICC had 123 states parties, had opened investigations in eight countries, and had issued
three verdicts. But while the ICC is now responsible for international criminal accountability,
its daunting mandate and world-wide reach have made its flaws more visible. The court and

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its member countries face major challenges in meeting expanded expectations for the court in
its second decade.

Permanent Court of Arbitration

Established by treaty at the First Hague Peace Conference in 1899, the Permanent
Court of Arbitration is the oldest global institution for the settlement of international disputes.
The Court offers a wide range of services for the resolution of international disputes which
the parties concerned have expressly agreed to submit for resolution under its auspices.
Unlike the International Court of Justice, the Permanent Court of Arbitration has no sitting
judges: the parties themselves select the arbitrators. Another difference is that sessions of the
Permanent Court of Arbitration are held in private and are confidential. The Court also
provides arbitration in disputes between international organisations and between states and
international organisations.

International tribunals

The United Nations establishes international tribunals for the purpose of prosecuting
war criminals. The Netherlands is host country to a number of these tribunals, including the
International Criminal Tribunal for the former Yugoslavia (ICTY).

International and domestic law

The first international tribunals were set up in the 1990s to investigate crimes
committed by military personnel, politicians and civilians during armed conflict. The
tribunals report to the United Nations Security Council.

There are currently five tribunals in existence:

 The International Criminal Tribunal for the former Yugoslavia (ICTY);

 The International Criminal Tribunal for Rwanda (ICTR);
 The Special Court for Sierra Leone (SCSL);
 The Extraordinary Chambers in the Courts of Cambodia (ECCC);
 The Special Tribunal for Lebanon (STL).

These tribunals operate in accordance with the law of the country in question or a
combination of domestic and international law. Their judges are also drawn from the country
concerned and the international community.

The International Criminal Tribunal for the former Yugoslavia (ICTY)

The International Criminal Tribunal for the former Yugoslavia was established in
1993 by the United Nations Security Council. The ICTY prosecutes individuals suspected of
genocide, crimes against humanity, war crimes and violations of the Geneva Conventions
committed from 1991 onwards in the territory of the former Yugoslavia. The Netherlands is
host to the tribunal, which has its seat in The Hague.

The International Criminal Tribunal for Rwanda (ICTR)

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 The United Nations Security Council established the International Criminal Tribunal
for Rwanda in 1994. The ICTR prosecutes those who are responsible for genocide, crimes
against humanity and war crimes. Its seat is in Arusha, Tanzania. The Netherlands is a
member of the Friends of the ICTR and the Dutch embassy in Kigali is working to strengthen
of the rule of law in Rwanda.

The Special Court for Sierra Leone (SCSL)

The Special Court for Sierra Leone was established in 2002 on the basis of a treaty
between the United Nations and Sierra Leone. The SCSL prosecutes violations of
international humanitarian law and Sierra Leonean law. Along with a number of other
countries, the Netherlands is a member of the SCSL Management Committee, which advises
the court on administrative matters. The Netherlands hosted the trial of former Liberian
president Charles Taylor, which for security reasons was conducted at the International
Criminal Court.

Extraordinary Chambers in the Courts of Cambodia (ECCC)

The United Nations and Cambodia established the Extraordinary Chambers in the
Courts of Cambodia in 2006 to prosecute those responsible for crimes committed during the
rule of the Khmer Rouge regime (1975-1979).The tribunal has its seat in the Cambodian
capital Phnom Penh and applies both Cambodian and international law.

The Special Tribunal for Lebanon (STL)

The United Nations and Lebanon established the Special Tribunal for Lebanon in
2007 and it opened in 2009. The STL is prosecuting those suspected of carrying out the
attack on 14 February 2005 in which the former prime minister of Lebanon, RafiqHariri, was
killed. The tribunal applies Lebanese law on terrorism.The Netherlands hosts the STL and is
a member of the Management Committee, which is responsible for giving policy direction
and advice on non-judicial aspects of the Tribunal's work.

INTERVENTION

Define intervention. Under what circumstances intervention by one state in the

affairs of another state considered justified.

INTRODUCTION: -
Intervention in fact principally prohibited under the provisions of International
Law. According to International Law no state has the right to intervene in the affairs of
another state for the purpose of maintaining or altering the actual condition of thing. All
members shall retrain in their international relations from the threat or use of force, against
the territorial integrity or political independence of any state or in any other manner
inconsistent with the purposes of the United Nations. So in this way when any state
interferes in the internal and external affairs of other state, then as per International Law, it
becomes a matter of intervention.

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 DEFINITION OF INTERVENTION: -

In simple words intervention means to interfere directly or indirectly by one or more

states in the internal or external affairs of another state.

Prof.L.Oppenheim : “Intervention is dictatorial interference by a state in the affairs of

another state or the purpose of maintaining or altering the actual condition of
things. Interference pure and simple is no intervention.” Hans Kelson pointed out that,
“International Law does not prohibit intervention in all circumstances. He further says that
when one state intervenes in the affairs of another state through force, then as a reaction
against this violation International Law permits intervention.”

TYPES OF INTERVENTIONS:- It can be accessed from the above view of different

Jurists regarding types of intervention that there are so many types of
Interventions. However some of them are as under:-
1. Military interference: It is done with military force.2. Political Interference: is done by
giving threatening information.3. Dictatorial Interference: Is done in threatening tone.4.
Interference without right: It is done without any purpose & right. 5. Internal Interference: is
done in interfering in the internal affairs. 6. External Interference: It is also done in
interfering in external affairs. 7. Penal Intervention; 8. Subversive Intervention: is done by
another state through exciting the people against the state.9. Economic Intervention: is done
by creating obstacles in the trade.

BASIS OF INTERVENTION: - It is very much pertinent to mention here that what is the
basis of doing of intervention and what type of interventions are valid under UNO
Charter. However the following have been considered as the main basis of intervention:-

i. On the basis of self defence ii) On the basis of humanity iii) for application of treaty
rights iv) to stop illegal intervention v) to maintain balance of power vi) to protect individuals
and their property vii) collective intervention viii) to protect International Law ix) at the time
internal war.
All above basis of intervention have been recognised by the UNO except the followings :-
i) for application of treaty rights. ii) to stop illegal intervention iii) to maintain balance of
power IV) to protect individuals and their property. V) to protect International Law.

Despite all these the following types of intervention are in use and recognised:-

Intervention for self defence and self protection: - Self defence and self protection is
main traditional basis of intervention. The intervention for self defence is rather limited as
compared to that self protection. Oppenhein says that the use of power of intervention
should have been made when it becomes necessary for self protection.” A famous case, The
Caroline-1841: In this case Mr. Webster declared that the necessity of self defence should
be instant overwhelming and leaving no choice of means and no moment for
deliberation. Art. 51 of UN Charter provide that the right of intervention is still

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 available. Under this the state has the right to individual and collectively protection. But this
right is available only when: - i. There has been attack on any state. ii) No step has been taken
by the Security Council for international peace and security.

1. Intervention on the basis of humanity:- Every person on this earth has a right to live with
human dignity. The state cannot devoid her of this right. It the state behaves her citizens with
cruelty then it is violation of International Law of human rights. The action for intervention
by UNO can be taken only in case when the degree of violation of human rights is such that if
created danger for maintenance of International peace and security. The best example of
such intervention is by UNO in 1991 in Iraq for the protection of Kurds.

2. Collective Intervention:- In Chapter 7 of UNO Charter the Security Council is empowered

to take action of collective intervention. The collective intervention means just and legal base
of Modern times. UNO can intervene for maintenance of world peace and security and to stop
or avoid attack on the following conditions:-

i) When there is actual danger or possibility of danger for international peace and security.
ii) Actual attack has been made by the concerned state.
The use of such right was made by UNO in Korea in 1950, Kango in 1961 and Iraq in 1991.

3. Intervention in case of internal war:- When in any state there is possibilities of Internal
war, the intervention is considered as legal and just basis because there are strong
apprehensions of breach of International peace. Under this situation the Security Council can
decision to take collective action under Chapter 7 of UNO Charter. The action taken by
UNO in 1961 in Kango is the best example of intervention. This action was taken to stop
internal war.

CONCLUSION: -

It is absolutely fact that every state is entitled to manage willingly her own internal
and external affairs and does not like interfere of another state. Similarly it is also the duty of
the other state not to interfere in the internal and external affairs of any state. International
Law also like this. The main motto of the Security Council is maintaining peace in all the
member states.

Discuss the various compulsive means of settlement of International disputes. OR write

notes on Retorsion, Reprisal as compulsive means of settlement of International
disputes.

Introduction:-

The primary purpose of the United Nation is that there should be complete peace and
security in all the members of UNO. First of all to seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own

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 choice. In the other meaning when it deems necessary call upon the parties to settle their
dispute by such mean which shall be convenient to them. Compulsive or coercive means of
settlement of International disputes are as under:-

1. Retorsion:- Retorsion is the technical term for retaliation. If any state behaves in unequal or
in courteous way with the other State, then the other state under the International Law gets
the right of retorsion. In this way the meaning of Retorsion is retaliation. But in connection
with Retorsion the State can initiate only that proceeding which is permitted by the
International Law. For example in retorsion the diplomatice channels can be terminated and
immunities and privileges of the diplomat can be withdrawn together with the existing
economic subsidies. In the past Pakistan declared the diplomat of Iraq as persona non grata
and that diplomat had to leave Pakistan. Pakistan took this action because in the Embassy of
Iraq a lot of arms and ammunition was stored.

2. Reprisal:- If the problem is not solved by Retorsion the States have the right under the
International Law to resort to Reprisal that is, in Retaliation the state can initiate such a
proceeding that violator of the problem may be solved. The reprisal can be resorted against a
State when it has indulged in some illegal or inappropriate activity. For example Israel has
resorted to Reprisal many times against Lebnon and has bombarded those regions of Lebnon
where from Arab Terrorists attacked on the territories of Israel. The members of UN cannot
indulge in Reprisals of such a type which endangers the international peace and security. It is
commonly accepted that Reprisal becomes justified and legal when the other country has
committed an international tort or violated the norms of International Law. In the provocative
action and Reprisal there must be adequate proportion i.e. in proportion to the violation, the
damage should be caused. The Reprisal is valid only when demand for reparation was made
and this was not fulfilled.

3. Embargo:- Embargo is also a kind of Reprisal. If the ship belongs to a State which has
committed international tort or has committed some other international wrong and is
available in the territorial waters of the State against which tort or wrong has been committed
then such vessels can be restrained from travelling through that area as a matter of right by
the other State.

4. Pacific Blockade: - By this method the outer boundary of a State is blocked peacefully. It is
resorted during the peace time against a State. The coming and going ship is stopped. By
blockade of Ports of a country compelled that state to solve the problem.

5. Intervention: - Under article 2(4) of the U.N. Charter, the principle of non-intervention in
the internal affairs of a State has been propounded. But according to Kelson, he has asserted
that International Law does not prohibit intervention in all circumstances, meaning thereby
that in certain circumstances intervention is valid and legal.

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 14. Explain the purpose and principles of United Nation. How for United Nation has
been successful in achieving its object?

INTRODUCTION:-

In the 20th. Century two world wars of highly destructive nature were fought. After
the First World War the league of Nation was established. The main objects of the League of
Nations were established and maintain world peace and security. The League of Nations
failed in its mission. The large scale destructive effects of the second World War forced the
Nations of the world once again to establish some institution of International Statute which
may solve peacefully the disputes amongst them and establish peace and security world over.
On 26th.anuary, 1945 at Sanfransisco different Nations buttressed the establishment of
U.N.O. and after it’s the membership of the UNO increased substantially and now it stands at
192.

PURPOSES OF UNO: - The purposes and objects for which the UNO has been established
are laid down in Article 1 of the Charter:-

1. To maintain international peace and security:- In the preamble of the charter it is resolved
to save the succeeding generations from the scourge of war and be united to achieve these
ends. To achieve the target the Organisation shall prevent or remove threat to the peace,
breach of peace and acts of aggression by taking effective and collective measures. The
international problems were to be solved by peaceful means under the norms provided in the
International Law and canons of justice.

2. To develop friendly relations among nations:- The friendship should be prosper on the
basis of respect for the norms of equal rights and equality in self determination of people. So
this thought which developed friendly relations & universal peace among the nations was set-
up by UNO.

3. For removal of social, economic, cultural and human problems soliciting of international
co-operation:- In the preamble of the charter of UNO it has been resolved to energize the
International machinery for the development of economic and social status of the people. A
belief is to b developed in promoting and encouraging the respect for human rights and
fundamental freedom for all without distinction to race, sex, language or religion.

4. To make the UN an International Centre for harmonization:- The general purpose of

UNO has to be made a centre for co-ordination of activities executed by different nations in
this regards to avoid clashes in choosing priority, the UNO is to harmonise the different
activities of different nations to achieve the main purpose.

PRINCIPLES OF UNO:- There are following principles of UNO:-

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1. Principle of sovereign equality: - Principle of Sovereign Equality means that all the
members of UNO are equal in the eye of International Law. No discrimination in dealings
with them is permitted.
2. Principle of honouring of obligations:- Being member of UNO, they enjoy certain rights
and benefits. Members are required to fulfil in good faith the obligations assured by them in
accordance with the Charter of UNO.
3. All nations shall settle their disputes through the principals of peaceful settlement:-All
the international disputes are to be settled by peaceful means with the results that peace and
security and justice of any region may not endanger.
4. Principle of non-use of force:-All members of UNO should refrain from the use of force or
threat of force against the territorial integrity or political independence of any State.
5. Principle of assistance to the UNO:-It is the essential duty of every members of UNO to
support and assist to take action against the State who is not following the UNO charter.
6. Principle for non-member States: - As provided in Art.2 of UNO charter that the States
which are not members of UN, act in accordance with the principles of UN for maintaining
international peace and security.
7. Principle of non-interference in domestic affairs of a state: - Art.2 (7) provides that the
UN shall not intervene in the matters which are essentially within the domestic jurisdiction of
any State or to compel any members to submit such matters settlement.
If all the above principles are faithfully followed by all the members of UNO, than
there will be no doubt at all that this path will lead to World Peace and the sayings of Kelson
that UNO is World Government will remain in existence.

HOW FOR U.N. HAS BEEN SUCCESSFUL IN ACHIEVING ITS OBJECTS

The United Nation has performed important functions in the social, economic and
cultural fields as well as in the fields of human rights. Besides this Uniting for Peace
Resolution. There has been constant development of the powers and functions of UN. United
Nations has become the symbol of democratisation in the world.

Public opinion is an important factor which comes into play in the new international
law. The Gulf War-1991 and the breaking up of the Soviet Union are likely to bring about the
revolutionary changes in the U.N. in the present Uni-polar world (United State as the super
power), majority of the member-State are now demanding democratization of the world body.
Un-doubtly the United Nations has achieved its objects in maintaining the peace, security and
canons of justice at the International Level.

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 IMPORTANT CASE LAWS

CASE NAME- The Charming Betsy case

PARTIES- Murray Vs. The Charming Betsey

YEAR- 1804

PRINCIPLE-

Charming Betsy canon is a principle of interpretation applied in interpreting national

statutes, and general acts of congress. According to this canon, national statutes should be
interpreted in such a way that the interpretation does not conflict with international laws. This
principle evolved from the case.

Another principle of this case is in the treaty or custom the state have to maintain
though it is clarified or not. The states have to bind to maintain this kind of treaty or custom.
Even if the Domestic Law as inter-related to the International Law for the treaty rules or
custom.

FACT OF THE CASE-

Once a US national lived in the island named sent Thor conquered by the Denmark. He was
the owner of a ship. In 1800 by the Non Intercourse Act his ship was forfeited. By t his there
was no business transitive allowed with France. There was the allegation brought against him
for breaching this Act. There were a number of reasons had been produce that so far he had
been living in abroad.

ISSUE-

 Whether the U.S authority can forfeit her national’s property solely for staying an
abroad or not.
 Whether U.S. Navy had violated the Non-Intercourse Act of 1800.

DECISION-

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 In the dispute the chief justice Marshall to do the judgment. Discussed and interpreted
the international country law, conventional law and the effectiveness over the USA of its.
According to his decisions, that any law of USA can’t be operated in opposition direction of
the international norm and International Laws.

REASONING

 There is lots of reasoning he produced in giving of its decision. He said the customary
law has been found into US law with effectiveness. That is why the congress never can
go in the opposite.
 Over the dispute, the allegation which was brought really by the national control of the
USA. The crate can do no matter what it seems to better for the state. As it was the Act
passed in the congress which was not to be opposing of the International Law.
 The court found that there was sue connection exist to go to the step for the discharge
the argument.

CASE NAME- The Barcelona Traction Case

PARTY– Belgium v. Spain

YEAR– 1962–1970

PRINCIPLE:

Principle of protection of company by company’s national state company incorporate

in third party.

FACT OF THE CASE:

The Barcelona Traction, Light and Power Co. Ltd., (hereinafter called Barcelona
Traction) were a Canadian joint stock company formed in Toronto (Canada) in 1911. The
greater part of its share capital belonged to Belgian nationals. Barcelona Traction also owned
the shares of several other companies, some of which were operating in Spain under Spanish
law.

Barcelona Traction, Light, and Power Company, Ltd. (Barcelona Traction)

manufactured and supplied electricity in Spain. Although doing business in Spain, it was
incorporated in Canada and maintained its headquarters in Toronto. The company issued
corporate bonds to investors outside of Spain. During the Spanish Civil War (1936–1939),
the government of Spain refused to allow Barcelona Traction to transfer currency from Spain
to pay interest to the bondholders. The interest payments were never resumed.

In 1948, several Spaniards purchased some of the bonds and then brought suit in a
Spanish court asking it to declare Barcelona Traction bankrupt because it had failed to pay
the interest on the bonds. The court did so and, following several motions and appeals, all of
the assets in Spain belonging to the company were finally sold by public auction in 1952. The
proceeds from the sale were distributed to creditors and only a very small sum was to be paid
to shareholders.

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 The shareholders then sought the assistance of their home states in seeking to obtain a
larger settlement. Canada, among other states, complained to Spain of denials ofjustice and of
the violation of certain treaties it alleged were applicable. Canada, however, eventually
agreed that Spain had acted properly in denying Barcelona Traction the right to transfer
currency abroad and later in declaring the company bankrupt.

Belgium took an interest in the matter because Belgians owned 88 percent of the
shares in Barcelona Traction. It disagreed that Spain had acted properly and after Spain
became a member of the United Nations in 1955, Belgium filed a complaint before the
International Court of Justice in 1958. The proceedings were suspended and then
discontinued while representatives of the private interests concerned carried on negotiations.
When the negotiations failed, Belgium submitted a new application to the Court in 1962.

Spain promptly objected that Belgium could not sponsor Barcelona Traction’s or its
shareholders’ complaints because Barcelona Traction was a Canadian company.

ISSUE:

Belgium claimed that the Spanish authorities acted contrary to international law
against Barcelona Traction, which resulted in damage to the company and its shareholders.
Accordingly, Spain was under an obligation to restore in full to Barcelona Traction its
property, rights and interests, and ensure compensation for all other losses. Alternatively,
Spain should pay Belgium compensation equivalent to the value of the property, rights and
interests of Barcelona Traction. As another alternative, Spain should at least pay to Belgium
compensation equivalent to the amount of shares of the capital of Barcelona Traction owned
by Belgian nationals, together with the amount of the sums standing due on 12 February 1948
in favor of Belgian nationals. Before the Court could proceed with the matter on the basis of
the memorial filed by Belgium and the preliminary objection raised by Spain, Belgium
informed the Court, in accordance with Article 89 of the Rules of the Court that it wished to
withdraw from the case. Later Belgium and Spain engaged in negotiations, but as these did
not result in any agreement, Belgium presented a new application in 1992 for the Court to
hear the case.

DECISION:

The international court of justice rejected the claim of Belgium by fifteen one votes
holding that Belgian Govt. had no “locus standi” in this case to seek reparation.

REASONING:

The Belgian government lacked the standing to exercise diplomatic protection of

Belgian shareholders in a Canadian company with respect to measures taken against that
company in Spain. The court ruled on the side of the Spanish, holding that only the
nationality of the corporation (the Canadians) can sue. The case is important as it
demonstrates how the concept of diplomatic protection under international law can apply
equally to corporations as to individuals.

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CASE NAME- Lotus case

PARTY-France and Turkey

YEAR- 1927

PRINCIPLE:

Criminal jurisdiction and flag State jurisdiction on the high seas.

FACT OF THE CASE:

On 2 August 1926, a collision occurred on the high seas between the French mail
steamer Lotus proceeding to Constantinople, and the Turkish collier, “Boz-Kourt”. The “Boz-
Kourt” sank and eight Turkish nationals perished. On 3 August, the Lotus arrived in
Constantinople; Where the Turkish authorities proceeded to hold an enquiry into the
collision. They instituted joint criminal proceedings in accordance with the Turkish law
against the captain of the “Boz-Kourt”, and the officer on watch on board the Lotus at the
time of the collision, Lieutenant Demons, a French citizen, on a charge of manslaughter.

The case was first heard on 28 August 1926 before the Criminal Court of Istanbul.
Lieutenant Demons’ objection to the jurisdiction of the Court was overruled. On 15
September, the Criminal Court of Istanbul sentenced Demons to a short term of imprisonment
and fine.The proceedings had been instituted in pursuance of Turkish legislation. According
to the French Government, the Criminal Court claimed jurisdiction under Article 6 of the
Turkish Penal Code.20 the French Government protested against the arrest of Lieutenant
Demons and against the assumption of jurisdiction by the Turkish Court. By a special
agreement, signed at Geneva on 12 October 1926 between the French and Turkish
Governments and filed with the Registry of the Court in accordance with article 40 of the
Statute and article 35 of the Rules of the Court, the latter submitted to the Permanent Court of
International Justice the question of jurisdiction that had arisen between them as a result of
the collision.

ISSUE:

Criminal jurisdiction and flag State jurisdiction on the high seas. Questions before the
Court Has Turkey, contrary to article 15 of the Convention of Lausanne of 24 July 192321 on
conditions of residence, business and jurisdiction, acted in conflict with the principles of
international law.

And, if so, which principles, by instituting joint criminal proceedings in pursuance of

Turkish law against Lieutenant Demons, in consequence of the loss of the “Boz-Kourt”
having involved the death of eight Turkish sailors and passengers?

Should the reply be in the affirmative, is any pecuniary reparation due to Lieutenant
Demons according to the principles of international law and, if so, what should it be?

DECISION:

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Judgment was rendered on 7 September 1927. By the President’s casting vote – the votes
being equally divided – the Court held that

 Turkey, by instituting criminal proceedings against Lieutenant Demons, had not acted in
conflict with the principles of international law;
 Consequently, there was no occasion to give judgment on the question of the pecuniary
reparation.

REASONING:

The Court first established that the question submitted to it was whether the principles
of international law prevented Turkey from instituting criminal proceedings against
Lieutenant Demons under Turkish law. The Court found that the French contention that
Turkey, in order to have jurisdiction, should be able to point to some title of jurisdiction
recognized by international law was opposed to generally accepted international law, as
referred to by Article 15. It stated that the first restriction imposed by international law upon
a State was that it could not exercise its power in any form in the territory of another State.
However, this did not imply that international law prohibits a State from exercising
jurisdiction in its own territory in respect of any case that relates to acts that have taken place
abroad and in which it cannot rely on some permissive rule of international law. The Court
found that Turkish jurisdiction was justifiable not because of the nationality of the victims but
because the effects of the offence were produced on a Turkish ship, and consequently, in a
place “assimilated to Turkish territory in which the application of Turkish criminal law
cannot be challenged”. Once it was admitted that the effects of the offence were produced on
the Turkish vessel, it became impossible to hold that there was a rule of international law that
prohibited Turkey from prosecuting Lieutenant Demons simply because the author of the
offence was on board the French ship.

The Court then addressed the last argument advanced by the French Government that
according to international law criminal proceedings arising from collision cases are within the
exclusive jurisdiction of the State whose flag is flown. France claimed that questions of
jurisdiction in collision cases were rarely encountered in the practice of criminal courts.
Therefore, prosecutions only occurred before the courts of the State whose flag is flown,
which proved a tacit adherence by States to the rule of positive international law barring
prosecutions by other States. The Court rejected this argument. Even if the facts alleged were
true, they would merely show that States had often abstained from instituting criminal
proceedings, not that they felt obligated to do so.

CASE NAME- Anglo-Norwegian Fisheries Case

PARTY-United Kingdom v. Norway, ICJ

YEAR- 1951

PRINCIPLE:

Extension by costal state of fisheries jurisdiction case, fishery zone, preferential rights
and concurrent rights of other stats and conservation measures.

Page 100 of 137

FACT OF THE CASE:

Since 1911 British trawlers had been seized and condemned for violating measures
taken by the Parties in order to avoid further legal differences; and the Norwegian
Government specifying the limits within which fishing was prohibited to foreigners. In 1935,
a Decree was adopted establishing the lines of delimitation of the Norwegian fisheries zone.

On 28 September 1949, the Government of the United Kingdom filed with the
Registry of the ICJ an application instituting proceedings against Norway. The subject of the
proceedings the Parties in order to avoid further legal differences; and was the validity, under
international law, of the lines of delimitation of the Norwegian fisheries zone as set forth in a
Decree of 12 July 1935.

The application referred to the declarations by which the United Kingdom and
Norway had accepted the compulsory jurisdiction of the ICJ in accordance with Article 36 (2)
of its Statute.

ISSUE-

To declare the principles of international law applicable in defining the baselines by

reference to which the Norwegian Government was entitled to delimit a fisheries zone,
extending seaward to 4 nautical miles from those lines and exclusively reserved for its own
nationals; and to define the said baselines in the light of the arguments of the Parties in order
to avoid further legal differences.

To award damages to the Government of the United Kingdom in respect of all the
written reply and later in the oral argument by the United Kingdom and, consequently, no
interferences by the Norwegian authorities with British fishing vessels outside the fisheries
zone, which, in accordance with the ICJ’s decision, the Norwegian Government may be
entitled to reserve for its nationals.

DECISION:

The Fisheries Case was brought before the Court by the United Kingdom of Great;
Britain and Northern Ireland against Norway. By a Decree of July 12th, 1935, the Norwegian
Government had, in the northern part of the country (north of the Arctic Circle) delimited the
zone in which the fisheries were reserved to its own nationals.

‘Me United Kingdom asked the Court to state whether this delimitation was or was
not contrary to international law. In, its Judgment the Court found that neither the method
employed for the delimitation by the Decree, nor the lines themselves fixed by the said
I)decree, are contrary to international law; the first finding is adopted by ten votes to two, and
the second by eight votes to four. Three Judges-M.M. Alvalez, Hackworth and Hsu Mo
appended to the Judgment; 21 declaration or an individual opinion stating the particular
reasons for which they reached their conclusions; two other Judges- Sir Arnold McNair and
Mr. J.E. Read-appended to the Judgment statements Of their dissenting Opinions.

Page 101 of 137

REASONING:

 It was agreed from the outset by both Parties and by the Court that Norway had the right
to claim a 4-mile belt of territorial sea, that the fjords and sands along the coastline,
which have the character of a bay or of legal straits, should be considered Norwegian for
historical reasons, and that the territorial sea should be measured from the line of the
low-water mark.
 The Court found itself obliged to decide whether the relevant low-water mark was that
of the mainland or of the skjaergaard, and concluded that it was the outer line of the
skjaergaard that must be taken into account in delimiting the belt of Norwegian
territorial waters.
 The Court then considered the three methods that had been contemplated to effect the
application of the low-water mark. The Court rejected the method of the
“tracéparallèle”, which” consists of drawing the outer limit of the belt of territorial
waters by following the coast in all its sinuosities”, as unsuitable for so rugged a coast.
Furthermore, that method was abandoned in the written reply and later in the oral
argument by the United Kingdom and, consequently, no longer relevant to the case.
 The Court also declined to apply the “courbetangente” (the “arcs of circles” method)
inasmuch as it was concededly not obligatory by law. Thus, the instant case required the
application of a third delimitation method according to which the belt of the territorial
waters must follow the general direction of the coast. Such a method consisted of
selecting appropriate points on the low-water mark and drawing straight lines between
them. The Court found that the method had already been applied by a number of States
without giving rise to any protests by other States.
 However, the Court held that the delimitation of sea areas had always had an
international aspect and could not be dependent merely upon the will of the coastal State
as expressed in its municipal law. Although necessarily a unilateral act, the validity of
delimitation of sea areas with regard to other States depended upon international law.
The Court considered that in drawing straight baselines, the coastal State had to follow
the general direction of the coast.

CASE NAME- The Continental Shelf CASE

PARTY- Libyan Arab Jamahiriya vs. Malta

YEAR-1985

PRINCIPLE:

It is a course axiomatic that the material of customary international law is to be

looked for primary in the actual practice and opinion juries of state even though multilateral
conventions may have an important role to play in defining and recording rules , deriving
from custom or indeed in developing them.

FACT OF THE CASE:

On 23 May 1976, a Special Agreement was signed between the Socialist People’s
Libyan Arab Jamahiriya and the Republic of Malta providing for the submission to the Court
of a dispute concerning the delimitation of the continental shelf between the two States.

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 The Parties were broadly in agreement as to the sources of the law applicable to the
case, but disagreed as to the way in which the Court was to indicate the practical application
of those principles and rules. Malta wished the Court to draw the delimitation line, while
Libya wanted it only to pronounce itself on the applicable principles and rules. Having
examined the intention of the Parties to the Special Agreement, from which its jurisdiction
derived, the Court considered that it was not barred by the terms of the Special Agreement
from indicating a delimitation line. The delimitation contemplated by the Special Agreement
related only to the areas of continental shelf that appertained to the Parties, to the exclusion of
areas which might appertain to a third State. Although the Parties had in effect invited the
Court not to limit its Judgment to the area in which theirs were the sole competing claims, the
Court did not consider itself free to do so, especially in view of the interest shown in the
proceedings by Italy, which in 1984 order to achieve an equitable result. Submitted an
application for permission to intervene under article 62 of the Statute. The Court had rejected
this application.

ISSUE-

Questions before the Court

What principles and rules of international law are applicable to the delimitation of the
area of the continental shelf that appertains to the Republic of Malta and the area of the
continental shelf that appertains to the Libyan Arab Jamahiriya?

How in practice can the two Parties, in this particular case, apply such principles and
order to achieve an equitable result. Rules in order that they may, without difficulty, delimit
the areas concerned by agreement?

DECESION-

The Judgment was rendered on 3 June 1985. By fourteen votes to three, the Court
held that “with reference to the areas of continental shelf between the coasts of the Parties
within the low-water mark of the relevant coast of Libya, that initial line being then limits
defined in the present Judgment, namely the meridian 13º 50′ E and the meridian 15º 10′ E.

The principles and rules of international law applicable for the delimitation, to be
effected by agreement in implementation of the present Judgment, of the areas of continental
shelf appertaining to the Socialist People’s Libyan Arab Jamahiriya and to the Republic of
Malta respectively are as follows:

 The delimitation is to be effected in accordance with equitable principles and taking

account of all relevant circumstances, so as to arrive at an equitable result;
 The area of continental shelf to be found to appertain to either Party not extending
more than 200 miles from the coast of the Party concerned, no criterion for
delimitation of shelf areas can be derived from the principles of natural prolongation
in the physical sense.

REASONING:

Page 103 of 137

The Court found that, as to the law applicable to the delimitation of areas of shelf between
neighboring States, which is governed by article 83 of the 1982 Convention, the Convention
sets a goal to be pursued, namely “to achieve an equitable solution” but is silent as to the
method to achieve it.

In the view of the Court, the principles and rules underlying the régime of the exclusive
economic zone could not be left out of consideration in the present case, the two concepts
continental shelf and exclusive economic zone – being linked together in modern law.

The conclusion reached by the Court was that there was no evident disproportion in the areas
of shelf attributed to each of the Parties respectively such that it could be said that the
requirements of the test of proportionality as an aspect of equity were not satisfied.

CASE NAME- The Reparation Case

PARTIES– United Nation vs. Israel

YEAR-1949

PRINCIPLE:

United Nations Organization is an international institution and legal person under

international law. Therefore it is a subject of international law and capable of possessing
rights and duties.

FACT OF THE CASE:

In 1947 when Palestine spited in to two countries, Israel emerged as a new country.
At that time the UN troops were engaged in the border area of Israel and Palestine of
monitoring and peacekeeping and to mediate in the conflict between Arabs and Jews. Mr.
Count Bernadette, a Dutch national, was the chief UN truce negotiator for the area. On
September 17,1948 when he as in the area of Jerusalem, the area which was under the
occupation of Israel, was murdered.

The UN considered that Israel was negligent in duty and was fail to punish the
murderers. Consequently the UN decided to make a claim for compensation on behalf of its
employee under international law. Does UN capable at all to claim compensation or not the
United Nations General Assembly sought advice of ICJ in this regard.

ISSUE:

The issues of this case were as follows:

 Whether The United Nations as an organization can claim compensation and damages
for the person appointed under its service.

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  Whether UN as international organization has every legal responsibility so that it can be
sued and can sue by its own name.
 Whether the UN had the capability to bring an international calm for compensation
against a non member state.

DECESION:

The ICJ held that UN as an international institution and legal person, it enjoys all the
qualities privileges and claim reparation not only in respect of damages caused to itself but
also in respect of damage suffered by the victim persons. Thus the Israel is liable to pay
compensation.

REASONING:

The court observed that United Nation Organization is a political body charged with
political tasks of important character and covering a wide field, namely the maintenance of
international peace and security, achieve international co operation in the pasture of
economic social cultural rights. It is a present the supreme type of international organization
and it could not carry out the intention of its founders if it was devoid as international
character. The court has come to the conclusion that this organization is an international
person and it can be assumed that the organization has the capacity to bring a claim on an
international plane, to negotiation, to conclude a special agreement and to prosecute a claim
before an international tribunal. The organization has the capacity to claim reparation of
damage by basing its clam upon a breach of obligation due to itself and this will bring about
settlement.

CASE NAME- Prof.Nurul Islam and Others Govt. of Bangladesh and others Case

YEAR-1999

PRINCIPLE:

No state can deny the international responsibilities; avoid this responsibilities not
defense as the domestic or state. But the state law has to relation the International Law.

FACT OF THE CASE-

IN 1999 the most popular cigarette producer British American Tobacco (BD) Ltd. To
manufacturer of their brand “Gold Leaf”. The “Voyage of Discovery” has to invite to
advertise the product. The new generation of our country addicted for the purpose of this kind
of advertisement so that Prof.Nurul Islam issued a writ petition against that kind of
advertisement in the High court Division. Not only that advertisement, he raised in report of
WHO (World Health Organization) that the effect of the smoking and the obstruct on the
Tobacco Products on the publicity.

Page 105 of 137

 The Tobacco corporation show that, In Bangladesh control in the marketing of
tobacco products for 1988 “Tobacco Originated Goods Marketing (Regulation) Law. In this
law not banned the advertisement but when the advertise this kind of product it is necessary
to say that can use alertness of word which is obey on that company. The lawyer of the
Company argued that, through in 1990 the ordinance no 16 to canceled the tobacco products
advertisement, although the ordinance is not raised in the Parliament and to lost the power of
Law. So now in Bangladesh there is no law existence to obstruct the advertisement of
Tobacco Products.

ISSUE:

Whether cancellation of Voyage of Discovery to come though there is no law

existence.

DECESION:

The decision of the court that the obstruct to come the “Voyage of Discovery” in
Bangladesh.

REASONING-

Bangladesh is bound to follow the international law accordance with article 25(1) of
the Bangladesh constitution.

CASE NAME- Chorzow Factory Case

PARTIES– Germany vs. Poland

YEAR-1928 PCIJ

PRINCIPLE:

It is a general principle of international law that any breach of an engagement

involves an obligation to make reparation.

FACT OF THE CASE:

There was an agreement between Germany and Poland and that bilateral treaty was
known as the Geneva Upper Silesia convention 1922. it had been provided in that treaty that
on transfer of sovereignty of certain territories from Germany to Poland after the 1st world
war, existing proprietary right were to be maintained except that the Polish Government was
granted a right of expropriation under certain condition with respects of all property
belonging to German nationals in Upper Silesia. The present dispute arose when Poland
seized to companies there in breach of its international obligation under the Upper Silesia
convention of 1922. The Germany demanded compensation from the Poland.

ISSUE:

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 The issues of the case were as follows:

 Whether the convention of 1922 creates any obligation on the part of the Poland.
 Where seizure of the 2 companies by the Polish Government is contrary to its
international obligation, whether Poland is bound to make reparation to Germany.
 If there appears any breach of international obligation, whether Poland is bounty to
make reparation to Germany.

DECISION:

The reparation of wrong may consist in an indemnity corresponding to the damage

which is contrary of International Law. Right or interests of an individual the violation of
which rights cause damages are always in a different plain to rights belonging to a state,
which rights may also be infringed by the same act.

REASONING:

In deciding the case the court considered the following the reasons to be applied:

 The action of Poland was not expropriation in its real sense, it was rather a seizure of
property, right and interest which could not be expropriated even against compensation,
save under the special conditions fixed by Art. 7 of the Upper Silesia convention of
1922. in doing so, therefore, Poland acted contrary to its obligations.
 It is general principle of international law and even a general concept of law that a
breach of an agreement involves a duty to make reparation.
 Reparation is the expendable complement of a failure to apply a convention and there is
no necessity for this to be stated in the convention itself. This case is one of an unlawful
expropriation and in such cases expropriating sates must in addition to paying the
compensation due in respect of lawful expropriation, pay also damages for any loss
continued by the injured party.

CASE NAME- Island of Palmas Case

PARTIES- Netherlands Vs USA

YEAR-1928

PRINCIPLE:

 The principle which subjects the act creative of a right to the law in force at the time the
right arises, demands that the existence of the right, in other words its continued
manifestation, shall follow the conditions required by the evolution of the law
 The territory if occupied it is not enough to the state who occupied the territory which is
belong upon the state. The state should have the authoritative power of the territory he
relationship and sovereignty with the inter-connection between the occupied territory.

FACT OF THE CASE:

Page 107 of 137

 The Island of Palmas Case dealing with island disputes. It involved a Sparsely
inhabited island twenty nautical miles off the southwest coast of the Philippines. The United
States and the Netherlands contested ownership of the island. The United States claimed the
Island of Palmas based on two legal theories. First, Spain’s earlier “discovery” of the island,
which had given Spain “original title,” passed to the United States when the United States
defeated Spain in the Spanish-American War and the United States took possession of the
Philippines. Second, the United States claimed Palmas Island due to the contiguity of the
island to the Philippines. When Spain first discovered the Island of Palmas in the sixteenth
century, international law arguably granted absolute title to islands that were terra nullius to
the discoverer. The United States, therefore, argued that this law, the law at the time of
discovery, should apply and international law at that time granted title to terra nullius to its
discoverer. On the other hand, the Netherlands claimed the island because the Netherlands
had had contact with the region, and they contended that the island was a “tributary of native
princes, [who were] vassals of the Netherlands Government.” Moreover, regarding the
applicable law, the Netherlands countered the United States’ argument of the United States
regarding applicable law by stating that, “[t]he changed conceptions of law developing in
later times cannot be ignored in judging the continued legal value of relations which, instead
of being consummated and terminated at one single moment, are of a permanent character.”

ISSUE:

 Whether Netherlands had any legal rights or not.

 Whether the Island was terra nu the territory if occupied it is not enough to the state who
occupied the territory which is belong upon the state. The state should have the
authoritative power of the territory he relationship and sovereignty with the inter-
connection between the occupied territory terra nullius or not.

DECESION:

It was held that by the ICJ, that the arbitrator then held that though the U.S. had
inchoate title to the Island of Palmas, based on its ascension to possession of the Philippines
through earlier Spanish discovery, the Netherlands had actual title to the island because it had
peacefully and continuously displayed authority over the island.

Next, although the Island of Palmas was much closer to the Philippines than
Indonesia, the court rejected the United States’ “contiguity” claim, concluding that
international law did not support such a principle. Consequently, the rule in international law
stated that discovery, without any further display of authority or occupation of an island, did
not demonstrate ownership where another State exercised actual authority over the same
islands.

REASONING

The territorial sovereignty was absence from the sides of the continues effectiveness
sovereignty over the land by Netherlands. So mere discovered is not okay to be territorial
sovereignty. Spain did not fulfill the requirement of having the land through terra nullius.

CASE NAME- Clipperton Island Arbitration Case

Page 108 of 137

PARTIES-France Vs México, 26AJIL 390

YEAR- 1932

PRINCIPLE:

 A territory, by virtue of the fact that it was completely uninhabited is, from the first
moment when the occupying state makes its appearance there, at the absolute and
undisputed disposition of that state, from that moment the taking of possession must be
considered as accomplished, and the occupation is thereby completed.
 The occupation on Territory not on the occupied the land or territory it is insufficient but
also necessary to effective on that occupation of the territory.

FACT OF THE CASE:

The Clipperton Island Case involved a dispute between Mexico and France over a
small, uninhabited island 600 miles southwest of Mexico. Mexico claimed the island based
on Spanish discovery several hundred years earlier. France argued that it obtained title in
November 1858 after a French naval ship discovered the island, and its commanding officer
later published France’s claim in a newspaper. After “discovering” Clipperton Island and
publishing notice of the discovery in a Hawaii’ newspaper, France took no further action to
assert her sovereignty until 1897, thirty-nine years blather, when a French naval ship found
three Americans collecting guano on the island. France protested to the United States, which
responded that it made no claim to the island. A month later, Mexico, believing that
Clipperton Island was under its possession, and having heard about the same guano
exploration, dispatched a naval ship to investigate. The ship found the same three Americans
on the island and Mexican soldiers raised the Mexican flag. France protested Mexico’s
action, and both sides engaged in an acrimonious debate over ownership of the island, until
both parties agreed to have their dispute arbitrated by Emperor Victor Emmanuel III of Italy
in 1909. Victor Emmanuel, however, would not issue his ruling on the case for twenty-two
years, until 1931. The Emperor awarded Clipperton Island to France, stating that “the proof
of an historic right of Mexico’s is not supported by any manifestation of her sovereignty over
the island, a sovereignty never exercised until the expedition of 1897.

ISSUE:

 Whether there is any authoritative power over the territory in the Spain.
 Whether France or Mexico had title to the island.
 Whether Mexico had any title belongs over the island.
 Whether it provides a lower occupation requirement to prove actual title where the
territory claimed is an uninhabited island.

DECESION:

The discovery of the island by the Spanish authority was not sufficiently proved, nor
was the title of Spain to the territory. Meanwhile, it was clear that France had not at any point
abandoned her claim to the island. In the circumstances, sovereignty over the islands
belonged to France.

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REASONING-

In 17th November 1858 Clipperton Island was legitimately acquired by French. France
did not lose subsequently right by dereliction. France never had the animus of abandoning the
island and it had not exercised its authority their positive manner. From 17th November 1858,
for this reason France belongs the sovereignty over the Clipperton Island.

CASE NAME- Eastern Greenland Case, PCIJ

PARTIES- Denmark vs. Norway

YEAR-1933

PRINCIPLE:

To established effective occupation two elements are must needed-

 Land occupation for exercising sovereignty

 Effective expression for the will.

FACT OF THE CASE:

The sovereignty of Denmark over Greenland was established upon 1721. Actually ,
the conflict was began from 10th July 1931, when Norway declared through Royal
Proclamation that cast terra- nullius was under their control and they raised the flag of
Norway. But Denmark considered the island as their own as after World War 1. The allied
power countries agreed that the actual control of the country should be under Denmark.
Denmark again claims that there here ruling the area for a long time and it also shows its
authority. So Denmark took the dispute to PCIJ.

ISSUE:

 Where the country practically occupied or not

 Where the country has any legal titled

DECESION:

The court agreed that the actual control of the country and all evidence is sufficient
that is the land should be under Denmark.

REASONING:

To established effective occurred two elements are must be needed-

 Land occupation for exercising sovereignty and

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  Effective expression for the will.

CASE NAME- The Temple of PreahVihear Case, ICJ

PARTIES- Cambodia vs. Thailand

YEAR-1967

PRINCIPLE:

 The international law elements of the case are territorial sovereignty, and the power of
treaties.
 The Court weighed heavily the historical context of the creation of Annex I in making
its judgment. It is clear that the Court found it important to first clarify the frontier lines
between Cambodia and Thailand before deciding the issue of sovereignty. Because one
could not be correctly judged without the other, the principles of subject-matter
jurisdiction, temporal jurisdiction and territorial jurisdiction are all important in this
case.
 The power of treaties held Thailand accountable for the border dispute and allowed
Cambodia to expel Thai forces from the Temple.

FACT OF THE CASE:

On15June1962,the International Court of Justice (ICJ) pronounced judgment on a

dispute between Cambodia, formerly acolony of France,andThailand,formerly called
Siam,aneighboringkingdom which had never been formally colonized.Thedisputeterritorial
sovereignty over the area of an ancient Brahmanic temple named PreahVihear . The Temple
is perched high on a spur of the Dangrek mountain chain which roughly forms the boundary
between both countries. North of the Dangrek lies the Khorat Plateau of Northeast Thailand,
while to the south the Temple affords a magnificent view of the forested Cambodian plain
below. The judgment was peculiar in that it relied upon absence to startling effect. Applying
the principle qui tacet con-sentirevidetursiloquidebussed ac potuisset (Judgment,) [He who
keeps silent is held to consent if he must and can speak—ICJ held that Thailand’s failure to
protest the inaccuracy of a map purporting to reject the watershed line between the two states,
and thus by the Treaty of 1904 the international boundary between them, constituted tacit
acceptance of the map line as the line established by treaty. The effects of this reasoning were
as follows:

 A scale map that made a considerable error in placing thewatershed, was held to ?x
the boundary, sup-planting the treaty text, which species a physical fact, the water-
shed line, as the boundary;

 Concrete acts of sovereignty on the ground were largely dismissed as being

‘exclusively the acts of local, provincial authorities’ (Judgment,) while mere

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 inferences about behavior taken to be absence of official protest received legal force;
and
 The ‘general political conditions existing in Asia at his period,’ (Judgment,) the
enormous facts of French colonialism, were ignored. The response to the judgment in
Thailand was incredulity and outrage. The World Court reasoning was seen, in the
words of Thai Foreign Minister ThanatKhoman, as a ‘miscarriage of justice,’ while
 Other‘Officials contacted were puzzled that the court its judgment o amap,
considered actually only a roughsketch.’(BangkokPost,June18,1962)Looking back on
the oral pleadings and the judgment together with the dissenting opinions, what
seems truly strange is that if ICJ, in resolving the dispute with a map, hoped to
uphold the stability and nullity of conventional agreements between States rather
than capitulate to achievements of sheer conquering force, then the basis for its
judgment ran exactly in reverse. Dramatizing the failure to protest, the World Court
seemed to announce not an end to violence.

ISSUE:

Dispute as to the meaning or scope of the 1962 Judgment and Jurisdiction of the
Court .The Court stated that when it receives a request for the indication of provisional
measures in the context of proceedings for interpretation of a judgment under Art. 60 of the
Statute, the Court has to consider whether the conditions laid down by that Article for the
Court to entertain a request for interpretation appear to be satisfied9. Art. 60 of the Statute
provides that:

 The judgment is final and without Appeal. In the event of dispute as to the meaning or
scope of the judgment, the Court shall construe it upon the request of any party”.
 Legal Conditions required for indication of Provisional Measures.
 The Court indicated that the power to indicate provisional measures under Art.41 of the
Statute has as its object the preservation of the respective rights of the parties pending
the decision of the Court and this power may be exercised only if the Court is satisfied
that the rights asserted by a party are at least plausible.
 The Court examined the conditions of ‘plausibility’ one by one and concluded that the
conditions had been satisfied.

DECiSION:

In its Order, the Court first unanimously rejected Thailand’s request for the
caseIntroduced by Cambodia to be removed from the General List (as set out in

Section 2 of this Summary). It then indicated various provisional measures, as

Follows:

 That both parties should immediately withdraw their military personnel currently
present in the provisional demilitarized zone (PDZ), as defined in 62 Of the Order,
and refrain from any military presence within that zone and from any armed activity
directed at it. This decision was reached by a majority of 11 to 5 votes.
 That having noted that the Temple area had been the scene of armed Clashes between
the Parties and those such clashes might reoccur, the Court Decided that in order to

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 ensure that no irreparable damage was caused, there Was an urgent need for the
presence of all armed forces to be temporarily? Excluded from a PDZ around the area
of the Temple.
 That each of the Parties should inform the Court as to its compliance with theabove
provisional measures and that, until the Court had rendered its judgment on the
request for interpretation it would remain seized of the matters which Form the
subject of the Order.

REASONING:

Thailand did not claim for a long time that the temple and Cambodian sovereignty
was exercised peacefully. So that it would be treated as under Cambodian territory.

The international court of justice restricted the scope of an error as a ground of

invalidating a state’s consent to be bound by a treaty. The Vienna Convention 1969, Article
48 was prevailed over the judgment. The principle of estoppels is also applied in the
judgment.

CASE NAME- Tinoco Arbitration

PARTIES- U.K Vs Costa Rica

YEAR- 1913

PRINCIPLE:

The effective Government. It is important that the government have any authoritative
power effectiveness of the state.

FACT OF THE CASE:

In 1971, the government of Costa Rica was over thrown by Federico Tinoco who
assumed a power called an election established a new constitution June 1917. in 1919 Tinoco
and left the country his government fell. In 1922 the return of the Costa Rica Govt. passed a
law invalidating all contracts between the executive powers and private persons, made with
or without approval of the legislature power during the period of the Tinco government. The
Tinoco government had granted a concession of the central Costa Rica Petroleum Company
and was indebted the Royal Bank of Canada. Both British Corporation under new law both
their obligation were abrogated. Great Britain which had never recognized the Tinoco
Government Claimed behalf of these corporations and the maker was refereed to arbitration.
The arbitrations in this award discussed the question of recognition.

ISSUE:

 Whether the United Kingdom had recognized the new regime was by and large
Delevan in deciding the defacto existence of the Tinoco Govt. or not.

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  Whether the Govt. was recognized defacto was a matter to be decided objectively
against international standards and as issued to be resolve by examining the subject
views of a majority of status or not.

DECESION:

Costa Rica government would be bond to perform all international obligations created
by the Tinoco Governments.

REASONING:

 Tinoco government was the only government of its Rica Defacto and Dejure for 2
years and 9 months. During that time there was no other government disputing its
sovereignty. That is as unpeaceful administration of the whole country with the
accusation of the people. The succeeding government could not by legitimate decree
avoid responsibility for acts of that govt. affecting British Govt. subject except in
violation of international law. So that contrast validity make with the as it was an
effective one any obligation entries into by effective government cannot be nullified.
 The arbitration decide that since the Tinaco administration was in effective control of
the Costa Rica, it was the valid government irrespective of the fact that the UK,
together with a significant number o the other state , had not recognized it.
 The succeeding government could not by legitimate decree avoid responsibility for
acts of that government affecting British Government subject except in violation of
international law.

CASE NAME- Russia ship Case

PARTIES– USSR vs.USA

YEAR-1948, USA Federal Court.

PRINCIPLE:

“Par in Parem non-habit imperium/jurisdum (equal over equal do not have any
jurisdiction)” this maxim which concern with the status of sovereign equality enjoyed by all
independent states.

FACT OF THE CASE:

Russia ship was a Russian passenger ship. The ship was in the ocean of Atlantic. At
that time, a collision occurred that injured tow American women. Reaching the port of New
York they brought a suit against the ship and claimed compensation. But Russian foreign
ministry argued that since the ship was a property of Russia, this USA had no jurisdiction to
file suit against Russia.

ISSUE:

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 Where USA can file a suit against the property belong to Russia according to
international law.

DECESION:

It was held that USA couldn’t file a suit against Russia

CASE NAME– Luther vs. Sagor Case

PARTIES- Luther vs. Sagor

YEAR-1921 1kb 456(1921) 3kb each kings bench division court of appeal.

PRINCIPLE:

The importance of international law recognition with the retrospective effect

FACT OF THE CASE-

The concerned operation is produce of a timber factory in Russia owned by the

plaintiffs which have been nation in 1990 by the soviet government. In 1920 defendant
company purchase of quality of wood from the user and this was claimed in England by the
plaintiff as their property seen it had come from what had been factory.

ISSUE:

Whether the high court bound to take notice from the soviet decree or not.

DECISION:

It was held that the fact of soviet government was recognizing defacto and dejure did
not affect the issue. Another interesting point is that seen the foreign office certificate include
a statement that the forever provisional government of Russia recognized by the U.K had
been diapered during 1917. The court inferred the commencement of the soviet from that
date.

REASONING:

On appeal the decision in favor of the plaintiff was reserve in the light of the
intervening recognition of the soviet government by the British government. This recognition
was held to be retrospective and to date back to the actual coming into being of the
recognized entity.

CASE NAME- Haile Selassie Vs Cable and Wireless Ltd case

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PARTY- Haile Selassie Vs Cable and Wireless Ltd

YEAR-1939

PRINCIPLE:

Usually there is no deference between the De-jure recognition and DE-facto

recognition. But if there is any country between them in the circumstances the Defacto
recognition is retrospective in power.

FACT OF THE CASE:

By a contract entered into by the director general of posts, telegraphs and telephones
of Ethiopia with a Mario and telegraphic company a sum of money become due from the
defendants to the public revenue of Ethiopia. Ethiopia was subsequently conquered and
governed by Italy. In the court at first instance it was held that although Italy had been
recognized by Great Britain as the Defect government of Ethiopia, the plaintiff was still
recognized by Great Britain as the De jure sovereign and therefore the right to issue for
money owed was vested in him.

ISSUE:

Whether the decision was right or wrong.

DECISION:
The appeal was allowed and the action was dismissed.

REASONING:

 At first court decided that Haile Selassie is entitled to get that debt money because he
was legally recognized empire.
 And the court of Apple took place before the commencement of the action brought by
Haile Selassie. Consequently the action was dismissed and Haile Selassie had no “Locus
Standi’ before English Court.

CASE NAME- Salimoff and Co. vs. Standard Oil of N.Y. Case

PARTIES– Salimoff and Co. vs. Standard Oil of N.Y.

YEAR– 1933

PRINCIPLE:

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The principle of sovereign equality one state cannot interfere in the act of another state. This
view recognizes or establishes the declaratory theory of recognition.

FACT OF THE CASE:

Salimoff was a Russian citizen. He had oil business. The Russian Govt. by a decree
nationalized all the oil company. Then the Govt. entered into a contract with Standard Oil
Company of New York to sell oil. When the oil reached to New York Salimoff claimed the
oil arguing that since America had not recognized Russia, the contract is void and it cannot
enter into any transaction. Moreover, he raised the issue that the oil was taken from Solimoff
by an illegal act.

ISSUE:

 Whether non-recognition of a state affects the existence of that state?

 Who will get the oil?

DECESION:

U.S court held that U.S cannot interfere in the act of another state as it was the act of a
sovereign authority.

REASONING:

U.S court took the position that though America did not give recognition to U.S.S.R.
even then it cannot ignore the existence of U.S.S.S. according to the principle of sovereign
equality U.S. cannot interfere in the act of another state. According to the “parinparem non-
habet imperium” an equal cannot interfere against another equal state.

CASE NAME- ArantzazuMendi Case.

PARTIES– Spain vs. U.K

YEAR-1939

PRINCIPLE:

In the circumstances there is no distinguish between the De- Jure recognition

and De-Facto recognition. Both are treated as same on the matter of situation.

FACT OF THE CASE:

In 1939, during the Spanish Civil war, the ArantzazuMendi, a Spanish ship registered
in Bilbao was requisitioned which on the high seas by a decree of the Republican government

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of Spain. On her arrival on London, her owners issued a right in ram for possession and she
was arrested by the Admiralty Marshal, The Republican Govt. then issued a wait claiming
possession of the ArantzazuMendi. The nationalist govt. sought to set aside the writ and
arrest warrant on the ground that the action imploded a foreign sovereignty state namely. The
nationalist government of Spain.

ISSUE:

 Whether the arrest of ArantzazuMendi, by Administrative Marshall was lawful or not.

 Whether the nationalist Government of Spain was a foreign sovereign state.
 Where the Nationalist Government of Spain is recognized by His Majesty’s Government
as a foreign.
 Whether the party sought to be impeded.

DECISION:

The judgment by Becknell that the nationalist government was a foreign sovereign
state for the purpose of international Law and set the writ and warrant of arrest a side. This
secession was appealed to the House of Lords but the appeal was dismissed.

REASONING:

The sovereign has to decide whom he will recognize as a follow a sovereign in the
family of state. In the above case the House held that a letter from the foreign office stating
that the Nationalist Government of Spain at the Date of the write was a foreign sovereign
terminated the controversy as to its status.

CASE NAME- Dikko Incident Case

PARTY-U.K Vs Nigeria

YEAR- 1984

PRINCIPLE:

The diplomatic bag do not open or capture. If any I in case of any incident happened
that the diplomatic bag was used illegal way or think that for the reasonable cause then it
should maintained its non violation process.

FACT OF THE CASE:

Mr. Dikko was a Nigerian political leader who kept away from London and to staying
there he speech against the Nigerian Military Government. He arrested by the Nigerian
Diplomatic agent after that to use a high power of drug to slept him for the reason of
trafficking him in Nigeria by the diplomatic bag. But in the airport the bag was challenged by
the airline authority checked by the authority Dikko was found that bag senseless.

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ISSUE:

Whether it was reasonable to open diplomatic bag by the airline authority?

DECESION:

The court held that, the airline authority does this which is necessary to avoid the use
advantages diplomatic.

REASONING:

To restrain or avoid the abuse of diplomat, activities of airline authority did not do any wrong
which is conflicting the international law.

CASE NAME- Iran Case

PARTIES- U.S.A Vs Iran

YEAR- 1980

PRINCIPLE:

To entire into mission area without permission or protect to destroy in mission area
and not to violation in peace of mission or take necessary steps because of not to reduce the
dignity of mission which is a special duty of a state.

FACT OF THE CASE:

The United States Embassy at teharan in Iran overruled a military group and hundreds
of several students. They are not permitted by the president of Iran Al Khowameni. They
controlled over the documents and arcades to entire into the diplomatic mission area and
captured by the officials. By Iran authority was not protest them.

ISSUE:

 Whether the Iranian Government was bound to provide force to secure U.S.A Embassy
and its personals?
 Whether Iran Government was bound to provide compensation or not?
 Whether Iran Government breached any International Law or not?

DECESION:

International courts of Justice held that though Iran government was bound to protect
the diplomatic mission. So that Iran Government was not do this they are bound to pay
compensative.

REASONING:

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  Violation of official correspondents.
 Violation of achieves and documents.
 Violation of Vienna Convention 1961 22(1) and 22(2)

CASE NAME- The Crying Suitcase Case

PARTIES- Egypt vs. Italy

YEAR- 1964

PRINCIPLE:

The diplomatic bag do not open or capture. If any I in case of any incident happened that the
diplomatic bag was used illegal way or think that for the reasonable cause then it should
maintained its non violation process.

FACT OF THE CASE:

An Egyptian diplomatic agent back to his state carries on a suitcase in Italy at Rome
airport. The custom officials of the airport hear cried noise into the suitcase. For that reason
they (officials) checking the suitcase but the agent deny this. The officials opened the suitcase
in force and found that the Israeli Diplomatic into the suitcase and went away him. The
diplomatic of Egypt said that they (official) violation of the Vienna Convention 1961 Rule
27(3) to opened the suitcase.

ISSUE:

Whether they worked was done by the airport authority in Rome which was violation
on the international Law or diplomatic chance and the responsibility or not?

DECESION:

The work which was done by the authority was not violation of International law
although it was necessary to do.

REASONING:

When it was a question foe a man’s life to use by force and opened it was not
violating of international law. Although it was restricted by the Vienna convention 1961, rule
27(3)

CASE NAME- The U.S.S.A. Lorry Case

PARTIES- USSR vs. West Germany

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YEAR- 1980

PRINCIPLE:

In this case the lorry was capable of movement. So being capable of movements it
could not be a diplomatic bag is not a justified reason.

FACT OF THE CASE:

USSR sent some boxes in West Germany which were carried by a lorry that was
externally marked as “diplomatic bag”. But the authority of West Germany posed doubton
the lorry about it being a diplomatic bag. USSR ambassador said that the lorry was a
diplomatic bag. Since West Germany was under reasonable doubt they demanded for the
search of the bag. They further contended that though the inner material of the lorry might be
diplomatic bag or bags, but the lorry itself was not a diplomatic bag.

ISSUE:

 Whether West Germany has the right to search the diplomatic bag.
 Whether it was violation of the article 36 of the Vienna Convention on
Diplomatic Relation, 1961.

DECISION:

The court held that

 The seizure of a bag must be reasonable.

 A lorry cannot be said or accepted as diplomatic bag.

REASONING:

 Article 36 deals with exemption of diplomatic bag from customs duties

and search
 Article 36 provides that the diplomatic baggage shall be exempted from
inspection unless there are serious ground for doubt that , it contains article
not covered by the exemptions.

CASE NAME- Asylum Case

PARTIES- Columbia vs. Peru

YEAR- 1950, International Court of Justice.

PRINCIPLE:

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  Regional rules are not necessarily subordinate to general rules of international law but
may be in a sense complementary or correlated thereto, and

 An international tribunal must, as between states in the particular region concerned give
effect to such regional rules as are duly proved to the satisfaction of the tribunal.

FACT OF THE CASE:

An unsuccessful military rebellion took place in Peru in October 1948. It was

suppressed on the same day and the President of the Republic issued a decree outlawing the
American People’s Revolutionary Alliance, which he charged with having organized and
directed the rebellion. A warrant was issued for the arrest of Victor Raul Haya de la Torre,
the head of the American People’s Revolutionary Alliance and a Peruvian national, in
connection with the rebellion. On 3 January 1949 Haya de la Torre sought asylum in the
Colombian Embassy in Lima, the capital city of Peru.

The Colombian Ambassador informed the Peruvian Government that he had granted
diplomatic asylum to Haya de la Torre under Art. 2, paragraph 2 of the Havana Convention
on Asylum 1928, and under Art. 2 of the Montevideo Convention on political Asylum, 1933.
He had qualified Haya de la Torre as a political refugee, and requested the government of
Peru to allow Torre to leave the country.

Peru contended that Haya de la Torre was not entitled to asylum and refused to accept
the right of Colombia to define unilaterally the nature of Haya de la Torre’s offense. After
diplomatic correspondence between two countries, the case was referred to the International
Court of Justice.

ISSUE:

In determining the issues involved, the International Court of Justice considered the
following issues:

 Whether there is an custom so established that it is binding to allow Columbia to grant

political asylum
 Whether the granting of diplomatic asylum was a practice or custom in the region of
Latin America.
 Whether Columbia is competent to qualify the offence of Haya de la Torre and granting
asylum.
 Whether such asylum was being practiced recurrently as customary norms of the
international law.

DECISION:

The international Court of Justice decided that a State granting diplomatic asylum do
not have the unilateral right to qualify an offense for The purpose of asylum, nor was
Colombia entitled to claim guarantees for the safe departure of the man to whom he had
given asylum.

REASONING:

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 Columbia cited several conventions, of which some Peru was not a party so not
binding, and others that were accepted by so few states it is very weak. Columbia also refers
to many cases where political asylum was granted, but court cannot determine whether they
were granted due to usage, or for political expediency. Court says Columbian Govt. has not
through its arguments proven the existence of such a custom. And, if there was such a
custom, it could not been forced against Peru, because they were not party to the Montevideo
convention which included matters of political asylum

CASE NAME- Savarkar Case

PARTY-France Vs. Great Britain

YEAR-1911

PRINCIPLE:

If any state did not granted any persons asylum or mistakenly send him other state for
that reason after then the state send first other didn’t cleared again or the state lastly gave
asylum didn’t back the person and that claimed has no validity.

FACT OF THE CASE:

Mr. VinayakDonadorSavarkar was being transported in India for trail on a charge of

right reason and abutment of murder. He managed to step out at manse tiles throughout the
port hole of a water closet. But he was captured by a French Police man who handed him
over to the captain of more without extradition proceeding being a political offender. France
demanded him back but the British Government refused to surrender.

ISSUE:

 Whether France was entitled extradition of Saverkar?

 What are the relevant international law and customs in this regard?

DECISION:

International court gave decision in favor of Britain and said that here is no rule
extradition of international law for that reason the Britain was bound to extradition Saverker
in France.

REASONING:

There is no rule or Act about extradition in International Law which ground the U.K
is bound to extradite Savarkar.

Gabcikovo-Nagymaros Project case brief (Hungary/Slovakia)

Procedural History:

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NATURE OF CASE: Proceeding before the International Court of Justice

Overview:

FACT SUMMARY: Hungary (D) claimed that changed circumstances made

enforcement of a treaty with Slovakia (P) impossible.

FACTS: Hungary (D) and Slovakia (P) had agreed in 1977 to build and operate a
system of locks along the Danube River comprising a dam, reservoir, hydroelectric power
plant, and flood control improvements. This project was never completed and both countries
underwent changes in their political and economic systems beginning in 1989. Hungary (D)
first suspended and then abandoned its part of the works and later gave notice of termination
of the treaty. In 1992, Hungary (D) and Slovakia (P) asked the l.C.J. to decide on the basis of
international law whether Hungary (D) was entitled to suspend, and subsequently abandon,
its part of the works, on the basis of the doctrine of impossibility of performance.

ISSUE:

Must a fundamental change of circumstances have been unforeseen and must the
existence of the circumstances at the time of the treaty’s conclusion have constituted an
essential basis of the consent of the parties to be bound?

OUTCOME:

HOLDING AND DECISION: [Judge not stated in casebook excerpt.] Yes. A fundamental
change of circumstances must have been unforeseen and the existence of the circumstances at
the time of the treaty’s conclusion must have constituted an essential basis of the consent of
the parties to be bound. Where the prevalent political and economic conditions were not so
closely linked to the object and purpose of the treaty as to constitute an essential basis of the
consent of the parties, there was no fundamental change of circumstances. The plea of
fundamental change of circumstances may only be applied in exceptional cases.

RULE:

A fundamental change of circumstances must have been unforeseen and the existence
of the circumstances at the time of the treaty’s conclusion must have constituted an essential
basis of the consent of the parties to be bound.

ANALYSIS:

The Court relied on the Vienna Convention. The Vienna Convention may be seen as a
codification of existing customary law on the subject of termination of a treaty on the basis of
change in circumstances. New developments in environmental law were not completely
unforeseen.

THE LOCKERBIE CASE 1992, Libya V USA, UK, ICJ

PRINCIPLE:

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 No country is bound to extradite. Special Extradition can be made on special
circumstances.Extradition is a matter of bilateral treaty.

FACT:

Pan Am Flight 103 was a regularly scheduled Pan Am transatlantic flight from
Frankfurt to Detroit via London and New York. On 21 December 1988, the aircraft was
destroyed by a bomb, killing all 243 passengers and 16 crew, Large sections of the aircraft
crashed onto residential areas of Lockerbie, United Kingdom, killing 11 more people on the
ground. Lockerbie Case After investigation by FBI and others, Two Libyan nationals found
convicted .Libyan leader Colonel Muammar Gaddafi handed over the two men for trial at
Camp Zeist, Netherlands after protracted negotiations and UN sanctions.

DECISION:

In 2001, Libyan intelligence officer Abdelbaset al-Megrahi was jailed for life after
being found guilty of 270 counts of murder but In August 2009, he was released by the
Scottish government for his cancer.

ISSUE:

Whether US compel Libya to surrender its two accused national in absence of any
extradition treaty between them?

DECISION:

Without Going into the merit of the case, the court advised Libya to follow the
negotiation with UN

REASONING:

Libya had no extradition treaty with US but due to pressure from UN Libya came to
an agreement to send the accused for trial under certain condition.

Summery Corfu Channel Case; United Kingdom Vs Albania 1946:

Facts/ background:

On May 15th. 1946 the British warships passed through the Channel without the
approval of the Albanian government and were shot at. Later, on October 22nd, 1946, a
squadron of British warships (two cruisers and two destroyers), left the port of Corfu and
proceeded northward through a channel previously swept for mines in the North Corfu Strait.

Both destroyers were struck by mine and were heavily damaged. This incident
resulted also in many deaths. The two ships were mined in Albanian territorial waters in a
previously swept and check-swept channel.

After the explosions of October 22nd, the United Kingdom Government sent a note to
the Albanian Government, in which it announced its intention to sweep the Corfu Channel

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shortly. The Albanian reply, which was received in London on October 31st, stated that the
Albanian Government would not give its consent to this unless the operation in question took
place outside Albanian territorial waters. Meanwhile, at the United Kingdom Government's
request, the International Central Mine Clearance Board decided, in a resolution of November
1st, 1946, that there should be a further sweep of the Channel, subject to Albania's consent.
The United Kingdom Government having informed the Albanian Government, in a
communication of November 10th, that the proposed sweep would take place on November
12th, the Albanian Government replied on the 11th, protesting against this 'unilateral decision
of His Majesty's Government'. It said it did not consider it inconvenient that the British fleet
should undertake the sweeping of the channel of navigation, but added that, before sweeping
was carried out, it considered it indispensable to decide what area of the sea should be
deemed to constitute this channel, and proposed the establishment of a Mixed Commission
for the purpose.

It ended by saying that any sweeping undertaken without the consent of the Albanian
Government outside the channel thus constituted, i.e., inside Albanian territorial waters
where foreign warships have no reason to sail, could only be considered as a deliberate
violation of Albanian territory and sovereignty. After this exchange of notes, 'Operation
Retail' took place on November 12th and 13th.

One fact of particular importance is that the North Corfu Channel constitutes a
frontier between Albania and Greece, that a part of it is wholly within the territorial waters of
these States, and that the Strait is of special importance to Greece by reason of the traffic to
and from the port of Corfu.

ISSUES:

The British government claimed the minefield which caused the explosions was laid
between May 15th, 1946, and October 22nd, 1946, by or with the approval or knowledge of
the Albanian Government. Thus Albania was responsible for the explosions and loss of life
and had to compensate the UK government.

In addition to the passage of the United Kingdom warships on October 22nd, 1946,
the second question in the Special Agreement relates to the acts of the Royal Navy in
Albanian waters on November 12th and 13th, 1946 when the British government carried out
a minesweeping operation called 'Operation Retail' without the consent of Albania.

UK held the opinion the passage on October 22nd, 1946 was innocent and that
according to rules of international law it had the right to innocent passage through the North
Corfu Channel as it is considered part of international highways and does not need a previous
approval of the territorial state.

The Albanian Government does not dispute that the North Corfu Channel is a strait in
the geographical sense; but it denies that this Channel belongs to the class of international
highways through which a right of passage exists, on the grounds that it is only of secondary
importance and not even a necessary route between two parts of the high seas, and that it is
used almost exclusively for local traffic to and from the ports of Corfu. Thusa previous
approval of the territorial state is necessary.

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1) Should the North Corfu Channel as it is considered part of international highways?

2) Is Albania responsible under international law for the explosions which occurred on the
22nd October 1946 in Albanian waters and for the damage and loss of human life which
resulted from them and is there any duty to pay compensation?'

ANALYSIS:

The court analyses the geographical situation of the channel connects two parts of the
high seas and is in fact frequently being used for international navigation.Taking into account
these various considerations, the Court concludes that the North Corfu Channel should be
considered as belonging to the class of international highways through which an innocent
passage does not need special approval and cannot be prohibited by a coastal State in time of
peace.

The UK government claims that on October 22nd, 1946, Albania neither notified the
existence of the minefield, nor warned the British warships of the danger they were
approaching. According to the principle of state responsibility, they should have done all
necessary steps immediately to warn ships near the danger zone, more especially those that
were approaching that zone. In fact, nothing was attempted by the Albanian authorities to
prevent the disaster. These grave omissions involve the international responsibility of
Albania.

But Albania's obligation to notify shipping of the existence of mines in her waters
depends on her having obtained knowledge of that fact in sufficient time before October
22nd; and the duty of the Albanian coastal authorities to warn the British ships depends on
the time that elapsed between the moment that these ships were reported and the moment of
the first explosion.

CONCLUSION OF THE COURT:

The Court therefore reaches the conclusion that Albania is responsible under
international law for the explosions which occurred on October 22nd, 1946, in Albanian
waters, and for the damage and loss of human life which resulted from them, and that there is
a duty upon Albania to pay compensation to the United Kingdom.

In the second part of the Special Agreement, the following question is submitted to
the Court:

(2) Has the United Kingdom under international law violated the sovereignty of the
Albanian People's Republic by reason of the acts of the Royal Navy in Albanian waters on
the 22nd October and on the 12th and 13th November 1946 and is there any duty to give
satisfaction?

Albania was in fact in war with Greece which means that the coastal state was not in
time of peace. UK had not an innocent passage due to the way it was carried out. The court

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assessed the manner of UK warships after they had been shot at May 15th. Having thus
examined the various contentions of the Albanian Government in so far as they appear to be
relevant, the Court has arrived at the conclusion that the United Kingdom did not violate the
sovereignty of Albania by reason of the acts of the British Navy in Albanian waters on
October 22nd, 1946.

The United Kingdom Government does not dispute that 'Operation Retail' was carried
out against the clearly expressed wish of the Albanian Government. It recognizes that the
operation had not the consent of the international mine clearance organizations, that it could
not be justified as the exercise of a right of innocent passage, and lastly that, in principle,
international law does not allow a State to assemble a large number of warships in the
territorial waters of another State and to carry out minesweeping in those waters. The United
Kingdom Government states that the operation was one of extreme urgency, and that it
considered itself entitled to carry it out without anybody's consent.

The Court can only regard the alleged right of intervention as the manifestation of a
policy of force, such as has, in the past, given rise to most serious abuses and such as cannot,
whatever be the present defects in international organization, The United Kingdom Agent, in
his speech in reply, has further classified 'Operation Retail' among methods of self-protection
or self-help. The Court cannot accept this defense either find a place in international law.

FINAL CONCLUSION OF THE COURT:

1) On the first question put by the Special Agreement of March 25th, 1948,

The court gives judgment that the People's Republic of Albania is responsible under
international law for the explosions which occurred on October 22nd, 1946, in Albanian
waters, and for the damage and loss of human life that resulted there from; and

Reserves for further consideration the assessment of the amount of compensation and
regulates the procedure on this subject.

2) On the second question put by the Special Agreement on the violation of state sovereignty,

The court gives judgment that the United Kingdom did not violate the sovereignty of
the People's Republic of Albania by reason of the acts of the British Navy in Albanian waters
on October 22nd, 1946; and unanimously, gives judgment that by reason of the acts of the
British Navy in Albanian waters in the course of the Operation of November 12th and 13th,
1946, the United Kingdom violated the sovereignty of the People's Republic of Albania, and
that this declaration by the Court constitutes in itself appropriate satisfaction.

NOTTEBOHM CASE:
This case is a dispute between Liechtenstein and Guatemala. It is based on the actual
relation, interest and possition of individual to his national State in the case of international
protection. Mr. Friedrich Nottebohm was born as a german national. In 1905 he went to the
Guatemala, where he started his own successful business. In 1939 he applied for

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naturalization in Liechtenstein. In the same year he paied all the fees and taxes, incuding
security deposit (that was about 68 500 Swiss francs. On the 13th of October 1939 Mr.
Nottebohm was naturalized by the Certificate fo Nationality produced by a Supreme
Resolution of the Prince. Then he obtained the Liechtenstein Passport and went to the
Guatemala to continue in his business activities. Till 1943 he had fixed abode in Guatemala.

When, on the 17th December 1951 Liechtenstein filed an Application against

Guatemala, it claimed damages in respect of various measures which Guatemala had taken
against the person and property of Mr. Nottebohm. Firstly, Guatemala contended that the
court is without jurisdiction. The Court decided to reject the preliminary objection to its
jurisdiction. Than started the main proces. Liechtenstein claimed restitution and
compensation on the ground that the Government of Guatemala had acted towards Mr.
Nottebohm, a citizen of Liechtenstein, in a manner contrary to international law. Guatemala
contended that the claim waas inadmissible, for example of nationality of Mr. Nottebohm.

The Court had to deal wiht the question without consideration of the validity of
Nottebohm’s naturalization according to the Law of Liechtenstein. Nationality itself is within
the domestic jurisdiction of the State. The exercise of State’s domestic jurisdiction do not
have automatically international effect. The problem is real and effective nationality, that is
based on strong factual ties between the person and the State. Other problem is habitual
residence of the individual and the centre of his interests, his family ties, his participation in
public life, attachment shown by him for a country etc. Nationality, in the case of protection
has to correspond with the factual situation. The individual has to be closely connected with
the population of a particular State. At the time of naturalization Mr. Nottebohm had his
family, business connections and interest in Germany, so the application for naturalization in
Liechtenstein was not motivated by the desire to disociate himself from the Government of
his country. Other thing is that he had been settled for 34 years in Guatemala where he stayed
until removal as a result of war measures in 1943 and Guatemala refused to readmit him.
Nottebohm started to live in Liechtenstein, because Guatemala refuse to admit him. The
naturalization was not based on any real prior connection with Liechtenstein. The
naturalization was not for obtain a legal recognition and became a part of Liechtenstein
population.

Because of all these reasons the claim of Liechtenstein was inadmissible.

Case Concerning East Timor

(Portugal v. Australia)
International Court of Justice Reports 1995

Page 129 of 137

FACTS

 The International Court of Justice heard this case in 1995, and decided the case by
fourteen votes to two.In the Treaty of 1989 between Indonesia and Australia, the two
countries negotiated terms of agreements regarding the exploration and use of
resources by both parties found in the area located between the south coast of East
Timor and the northern coast of Australia known as the “Timor Gap.” Portugal
argues that Indonesia does not have the authority to enter into treaties regarding East.

 Timor because Portugal is the legal administrative authority as decreed by the

Security Council of the United Nations. Therefore, Australia has proceeded in
unlawful actions against Portugal and against the people of East Timor and their right
to self-determination.

 The Plaintiff in this case is the Portuguese Republic (Portugal) who argues that when
Australia signed the Treaty of 1989 with Indonesia regarding the “Timor Gap,” it did
not respect the administrative authority of Portugal concerning East Timor, and thus,
did not respect the right of the people of East Timor to self-determination.

 The Defendant in this case is the Commonwealth of Australia (Australia) who asserts
that Indonesia is the legal authority concerning East Timor. Thus, there is no dispute
between Portugal and Australia because Portugal has no standing to bring this case. In
addition, the Court does not have jurisdiction in this case because Indonesia did not
give compulsory jurisdiction to the Court. Therefore, it did not give consent to have
matters regarding Indonesia and its territories decided by this Court.

QUESTIONS:

 Is there a dispute between Portugal and Australia?

 Does the Court have the jurisdiction to decide this case?

DECISIONS:

The Court ruled that there was a dispute between Portugal and Australia regardless
of whether Portugal had standing to bring this case. The Court reasoned that because there
was a disagreement between facts and points of law, there was a conflict of legal views and
thus, a dispute.

The Court declared that it did not have jurisdiction to decide this case. Because the
fundamental question pertinent to this conflict was, “Who possessed the ultimate power to
negotiate a treaty concerning East Timor, Indonesia or Portugal?” the Court wouldhave to

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decide on matters concerning Indonesian state and authority. Because Indonesia did not give
consent for matters regarding its state, conflicts, and conduct to be heard to the Court, the
International Court of Justice was unable to hear the case based on Article 35, paragraph 2
of the Court Statute, which states that parties must give consent to the Court.

Principles

 Jurisdictionis the main international law principle relevant to this case.

 Consent to jurisdiction is an important international law principle that decides this
case.

 The definition of a dispute is when there is disagreement between two parties on

facts or the basis of legal points.

CONCLUSION

This case is important because it discusses the importance of jurisdiction in the

Court’s ability to hear and arbitrate a case. This is extremely important in international affairs
and international law when peaceful means of arbitration are sought to settle international
disputes. If a state does not recognize or consent to a court’s authority to decide on an issue, it
is logical to conclude that this state might not abide by the judgments of the court concerning
their state affairs. Therefore, peaceful settlements of disputes between nations could be
difficult to achieve.

Anglo-Iranian Oil Co. Case (United Kingdom v. Iran) ICJ (1952)

FACTS:

The Anglo-Iranian Oil Co. signed an agreement with the Iraniangovernment in 1933.

In the spring of 1952 the Iranian government passed multiplelaws that nationalized
the oil industry in Iran. Because of this, adispute between the Anglo-Iranian Oil Co. and Iran
arose. TheUnited Kingdom adopted the cause, stating the virtue ofdiplomatic protection.

The Iranian government signed and ratified the declaration ofcompulsory jurisdiction for the
ICJ in 1932. There are no treatiesbetween the UK and Iran that are relevant to this case that
havebeen written since 1932. The Iranian government states that thedeclaration of
compulsory jurisdiction only applies to treatiessigned after the ratification of the declaration
and, therefore,believes the ICJ does not have jurisdiction of this dispute.

The UK does not believe the Anglo-Iranian Oil Co. has beentreated in accordance to the
principles and practice of treatiessigned with Turkey and other States since the declaration.

The UK also claims the contract signed between the Anglo-Iranian Oil Co. and Iran in 1933
was a double charter, and therefore counts as a treaty or convention.

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ISSUES:

Does the ICJ have jurisdiction over this case?

DECISION:

The ICJ does not have jurisdiction over this case because there isnot treaty or convention
signed between Iran and the UK that hasbeen signed since 1932 that are disputed by this case.
Also itdoes not matter that the Anglo-Iranian Oil Co. has not beentreated in accordance to the
principles and practices of othertreaties because the UK was not a party to said treaties.
Finally,the UK was not a party to the original agreement between theAnglo-Iranian Oil Co.
and Iran. Therefore the ICJ cannot havejurisdiction over this case in accordance to the
declaration of compulsory jurisdiction signed by Iran in 1932.

PRINCIPLES:

The key point in this case was compulsory jurisdiction with theICJ. The jurisdiction
only applies to conflicts between two Statesover signed treaties or conventions, corporations
cannot berepresented by their home State unless they were party to a signed treaty between
those two states.

CONCLUSION:

This case was important because it affirms the principle thatcorporations do not have
international legal personality. Also itshows the ICJ cannot render judgment on cases that are
not conflicts between two States over signed treaties.

The West Rand Central Gold Mining Company. v/s The King, 1905

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FACT OF THE CASE

This is the first landmark judgement on our list. The case was about the petition of
right instituted in June 1905 by the West Rand Central Gold Mining Company. The petitioner
alleged that in the course of travelling from Johannesburg to Cape Town before the notorious
war between the South African Republic and Great Britain which culminated into the death
of several persons, two parcels of Gold were confiscated by the South African Republic
Authorities. Not too long after the two parcels of gold were seized, the war broke out and
Great Britain defeated the South African Republic. The West Rand Central Gold Mining
Company in its petition claimed that the responsibility to confiscate any product or goods
now falls within the purview of the state of Great Britain.

JUDGEMENT

The Divisional Court bench presided over by Lord Alverstone C. J after hearing the
petition of the West Rand Central Gold Mining Company ruled that the principle of
international law was not in existence making it impossible for a conquered state to be liable
to the confiscated gold.

Portugal v/s India, 1954

FACT OF THE CASE

The case between Portugal Vs India in 1954 is another landmark judgement of

international law. In the case, Portugal in 1954 claimed possession of two enclaves in India –
Nagar-Aveli and Dadra. In the petition filed by Portugal, the country claimed that it has the
right of passage to the two enclaves in its possession in order to exercise its sovereignty. The
petition also contended that India prevented it from carrying its statutory duties within the
two enclaves, and thus sought the court’s intervention in the case. India, in its affidavit,
maintained that the court had no jurisdiction over the case and that the case was unfounded.

JUDGEMENT

The court delivered its first judgment relating to jurisdiction on the 26th of November
1957, which was challenged by India. Here, the court rejected four preliminary objections
that were raised by India. On the 12th of April 1960, the court delivered its second judgment.
The court ruled that Portugal had the right of passage to the two enclaves, but that the right
did not cover the Indian armed forces, police, and ammunition.

Paqueta v/s Habanna, 1898

FACT OF THE CASE

On the 4th of April 1898, two vessels used for fishing named Paquete Habana and the
Lola left the Cuban port separately with a mission to fish. The US merchant vessels on the
said date captured the two fishing vessels. The move to capture the vessels was sequeled to
an order by Admiral William T. Sampson to clamp down on all vessels operating on the
waters of Cuba. As of then, the market value of both vessels was $2,000(US). After a

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thorough search of the vessels, no incriminating items were found. The two vessels were
subsequently placed on auctions.

The owners of the vessels approached a circuit court to file an appeal in order for the
Navy to release the two vessels. The petitioners contended that during wars, fishing vessels
were exempted from the vessels to be captured by the US Navy.

JUDGEMENT

The US Supreme Court after hearing the pleas of the petitioners asserted that there
was an international law. The court cited legal precedents to deliver its judgement in the case,
particularly the case between France and Great Britain in 1403. The court declared that the
action of the US Navy was unlawful and then reversed the decision of a lower court. The
Supreme Court subsequently ordered the Navy to restore the seize vessels or pay an amount
commensurate with the value of the vessels.

Jolly George Varghese and Anr. v/s Bank of Cochin, 1972

FACTS OF THE CASE

The appellant, in this case, suffered a decree worth over Rs. 2.5 lakhs. The Bank of
Cochin was the holder of the decree. Two other decrees had already been instituted against
the appellant which were a net sum of Rs. 7 lakhs. In a bid to execute the decrees, a court of
competent jurisdiction issued a warrant under Section 51 of the Civil Procedure Code to
arrest and detent the appellant in civil prison. The appellant filed an appeal against the court’s
decision.

JUDGEMENT

The appeal court viewed the case from an international law perspective. It declared
that it was against the right to Life and Liberty of the appellant for the lower court to issue a
warrant of arrest and detention. The court also contended that the lower court erred in law by
leveraging International law to issue the warrant.

Bank of Ethiopia v/s National Bank of Egypt and Liquori, May 11, 1937

FACTS OF THE CASE

In a bid to dissolve the bank of Ethiopia after Addis Ababa was captured, an Italian
decree was promulgated. The Bank of Ethiopia claimed specific orders and accounts against
the defendant – The liquidator and the National Bank of Egypt. The National Bank of Egypt
was appointed by the Italian decree.

JUDGEMENT

The court determined whether the bank or Ethiopia had ceased to exist or has been
dissolved. The court then ruled that effect must be given to the decree made by the Italian
government since the British government had recognized the Italian government as the de
facto government of the area, meaning the area is under the control of the Italian government.

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 Luther v/s Sagor (UK), 1921

FACT OF THE CASE

The case was brought before the court to establish whether the plaintiff’s company
had the right to some quantity of plywood that was imported from Russia by the defendants.
The plaintiff, a Russian company into the business of plywood production had approached
the court to stop the sale of their plywood that was seized by the Republican Government of
Russia without any right to confiscate such goods. The plaintiff in their petition before the
court contended that the action of the Republican Government of Russia a day-light robbery
since the Republican Government of Russia was not recognized by the Government of His
Majesty.

JUDGEMENT

The court was to determine whether or not it was illegal to nationalize all the factories
producing plywood. The court after considering the case in its merit held that De Facto
recognition was interim, particularly when it comes to the internal affairs of a state. The court
also ruled that there is no established distinction de jure and de facto recognition in terms of
giving effect to a recognized authority’s internal acts.

The Caroline case, 1837

FACTS OF THE CASE

A group of men in 1837 led by William Mackenzie staged a rebellious protest in

Upper Canada (Which today is known as Ontario) in a bid to compel the government to be
more democratic. The group’s protest was hailed by some citizens of the United States. A
steamer known as the Caroline and owned by some American citizens was deployed to
convey supplies and men to the Canadian Navy Island from the Niagara River in the US. On
the 29th of December, 1837, some persons loyal to the Canadian government crossed over
the US side and then loosed the Caroline and set it on fire. One US citizen was killed in the
process. Lawyers from the US approached a court for a judicial intervention in the dispute
between Canada and the United States.

JUDGEMENT

The court was to determine whether or not the United States had the right to self-
defense. The court in its wisdom after hearing all the pleas ruled that the petitioner had the
right to self-defense only on the following basis;

 When an attack is launched on a state

 When the Security Council for International Peace and Security has not taken any
action.

Island of Palmas Arbitration, 1925

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FACTS OF THE CASE

Palmas is a strategic location which has little or no economic importance. The

settlement is 1km in east-west width and 2.6km in north-south length. As of when this case
was decided in 1932, the population of this settlement was recorded to be 750. In 1898, the
Republic of Spain leveraged the Treaty of Paris (1898) to cede the Philippines to the US. The
Palmas area was part of the areas that Spain ceded to the United States. The US in 1906
discovered that the Netherlands also had sovereignty over the Palmas Island. Both countries
decided to enter into arbitration at the Permanent Court of Arbitration on the 23rd of January,
1925. All the necessary papers were signed. The agreement was subsequently registered on
the 19th of May 1925 at the League of Nations Treaty Series. A Swiss lawyer was the
arbitrator in the case.

JUDGEMENT

The arbitrator was to determine whether Palmas was part of the US or Indonesia since
the latter was part of the Netherlands. The arbitrator ruled in favour of the Netherlands.

Schooner Exchange v/s McFaddon, 1812

FACTS OF THE CASE

The Schooner Exchange on the 27th of October, 1809 sailed from Maryland in the
United States to Sebastian in Spain. The ship was owned by the duo of John McFaddon and
William Greetham. Then, on the 30th of December 1810, Napoleon Bonaparte ordered the
seizure of the Schooner Exchange. The Exchange was subsequently commissioned as a
warship in France. Not long after the commissioning, the vessel was docked in Philadelphia
due to storm damage. The original owners of the vessel approached the district court, prayed
the court to restore their rights to the vessel.

JUDGEMENT

The district court after hearing the owners of the vessel’s plea ruled that it has no
jurisdiction over the case. John McFaddon and William Greetham went on appeal at the
circuit court. The circuit court ordered that the court should be returned back to the district
court for trial. The case later proceeded to the Supreme Court. The Supreme Court bench
presided over by Chief Justice Marshall ruled that a state has exclusive and absolute
jurisdiction in its territory. Chief Justice Marshall also noted that a friendly vessel could enter
another country’s territory with its consent. To this end, Chief Justice Marshall concluded
that leveraging International law, the original owners of the vessel should get back their
property.

Pakistan Vs India, 1958

FACTS OF THE CASE

This list wouldn’t be complete without this case. Two dominions, namely India and
Pakistan were established by the Indian Independence Act, 1947. A Boundary Commission
was subsequently appointed with a view to determining the two dominions’ boundaries. After

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the partition by the Boundary Commission, some areas in India became enclaves in eastern
Pakistan. Conversely, two areas – Dehagram and Angarpota were also enclaves in India.
Following the ensuing confusion, the Prime Ministers of both countries entered boundary
disputes agreement in 1958. However, there were doubts about the agreement in certain
quarters.

JUDGEMENT

The Indian President as of then referred the matter to the Supreme Court in an
exercise of his Presidential powers under clause (1), Article 143 of the Indian Constitution.
The supreme court bench led by the then Chief Justice of the country held that it amounted to
servitude the move which concession three Bigha to Pakistan. The court also added that the
concession does not translate to transfer of the territories to Pakistan.

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