M.A. Political Science, Semester IV, Course No.

403, International Organisation & Law

Unit – III: International Law: Meaning, Sources and Subjects

3.1 MEANING, NATURE AND BASES

- A. Lalitha

STRUCTURE

3.1.0 Objectives
3.1.1 Introduction
3.1.2 Historical Development of International Law
3.1.3 Meaning and Definition of International Law
3.1.4 International Law Distinguished
3.1.5 Is International Law a Law?
3.1.6 Nature of International Law
3.1.6.1 International Law Facilitates the Interaction of Legal Equals
3.1.6.2 Vital Mechanism for Conducting International Relations
3.1.6.3 Built into the Order of International Relations
3.1.6.4 International Law is Positive in Nature
3.1.7 Bases of International Law
3.1.7.1 Voluntary Compliance
3.1.7.2 Ethical Basis and Reciprocity
3.1.8 UN’s Role in the Development of International Law
3.1.9 Let Us Sum Up
3.1.10 Exercise

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3.1.0 OBJECTIVES

In this lesson you will study the conceptual issues related to International Law. After going
through this lesson, you should be able to:

• comprehend the meaning, nature and bases of International Law;

• understand the evolution of International Law over the period; and

• know the UN’s Role in developing the International Law.

3.1.1 INTRODUCTION

Law is that element which binds the members of the community together in their adherence
to recognized values and standards. The idea of Law has played a crucial role in the
extensive journey embarked by the mankind from caves to the modern digitized world.
Law consists of a series of rules regulating behaviour, and reflecting, to some extent, the
ideas and preoccupations of the society within which it functions. It is both permissive in
allowing individuals to establish their own legal relations with rights and duties, as in the
creation of contracts, and coercive, as it punishes those who infringe its regulations. And
so is the case with international law with the important difference that the principal subjects
of international law are nation-states, not individual citizens.

3.1.2 HISTORICAL DEVELOPMENT OF INTERNATIONAL LAW

When we look at the historical account of International legal system, even in the period of
antiquity rules of conduct to regulate the relations between independent communities were
felt necessary and emerged from the usages observed by these communities in their mutual
relations. Treaties, the immunities of ambassadors, and certain laws and usages of war
could be found many centuries before the dawn of Christianity, for example in ancient
Egypt and India, while there were historical cases of recourse to arbitration and mediations
in ancient China and in the early Islamic world. It would be wrong to regard these early
instances as representing any serious contribution towards the evolution of the modern
system of international law.

As Hiller notes, the modern system of international law by and large is a product of only
the last four hundred years. It grew to some extent out of the usages and practices of

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modern European states in their intercourse and communications, while it still bears witness
to the influence of writers and jurists of the sixteenth, seventeenth, and eighteenth centuries,
who first formulated some of its most fundamental tenets. Moreover, it remains tinged
with concepts such as national and territorial sovereignty and the perfect equality and
independence of states, that owe their force to political theories underlying the modern
European state system, although, curiously enough, some of these concepts have
commanded the support of newly emerged non-European states.

The sixteenth and seventeenth centuries thus constituted ‘the classical age’ of public
international law. The major scholar of that era was Hugo Grotius whose main work was
‘On the Law of War and Peace’, published in 1625, and in which he further developed
the just-war theory and argued that the law of nations was distinct from the law of nature.
The purpose of the law of nations was to regulate the external conduct of rulers. Up to the
nineteenth century, international law had developed over centuries, with its flowering in
the classical age. Although Grotius might be known as the chief architect of our modern
international legal philosophy, the roots of his scholarship are in the ancient natural law
texts and developments of mercantile law in the Middle Ages.

In the eighteenth and nineteenth centuries another philosophical tradition developed in

contrast to Grotius’ natural law theory which has also influenced modern international law:
positivism. Positivism’s influence peaked during the expansionist and industrial 19th century,
when the notion of state sovereignty was buttressed by the ideas of exclusive domestic
jurisdiction and nonintervention in the affairs of other states—ideas that had been spread
throughout the world by the European imperial powers. In the 20th century, however,
positivism’s dominance in international law was undermined by the impact of two World
Wars, the resulting growth of international organizations—e.g., the League of Nations,
founded in 1919, and the UN, founded in 1945—and the increasing importance of human
rights. Having become geographically international through the colonial expansion of the
European powers, international law became truly international in the first decades after
World War II, when decolonization resulted in the establishment of scores of newly
independent states. The varying political and economic interests and needs of these states,
along with their diverse cultural backgrounds, infused the hitherto European-dominated
principles and practices of international law with new influences.

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The development of international law—both its rules and its institutions—is inevitably
shaped by international political events. From the end of World War II until the 1990s,
most events that threatened international peace and security were connected to the Cold
War between the Soviet Union and its allies and the U.S.-led Western alliance. The UN
Security Council was unable to function as intended, because resolutions proposed by
one side were likely to be vetoed by the other. The bipolar system of alliances prompted
the development of regional organizations—e.g., the Warsaw Pact organized by the Soviet
Union and the North Atlantic Treaty Organization (NATO) established by the United
States—and encouraged the proliferation of conflicts on the peripheries of the two blocs,
including in Korea, Vietnam, and Berlin. Furthermore, the development of norms for
protecting human rights proceeded unevenly, slowed by sharp ideological divisions.

The Cold War also gave rise to the coalescence of a group of nonaligned and often newly
decolonized states, the so-called “Third World,” whose support was eagerly sought by
both the United States and the Soviet Union. The developing world’s increased prominence
focused attention upon the interests of those states, particularly as they related to
decolonization, racial discrimination, and economic aid. It also fostered greater universalism
in international politics and international law. The ICJ’s statute, for example, declared that
the organization of the court must reflect the main forms of civilization and the principal
legal systems of the world. Similarly, an informal agreement among members of the UN
requires that non-permanent seats on the Security Council be apportioned to ensure
equitable regional representation; 5 of the 10 seats have regularly gone to Africa or Asia,
two to Latin America, and the remainder to Europe or other states. Other UN organs are
structured in a similar fashion.

The collapse of the Soviet Union and the end of the Cold War in the early 1990s increased
political cooperation between the United States and Russia and their allies across the
Northern Hemisphere, but tensions also increased between states of the north and those
of the south, especially on issues such as trade, human rights, and the law of the sea.
Technology and globalization—the rapidly escalating growth in the international movement
in goods, services, currency, information, and persons—also became significant forces,
spurring international cooperation and somewhat reducing the ideological barriers that
divided the world, though globalization also led to increasing trade tensions between allies
such as the United States and the European Union (EU). In the late-twentieth and early
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twenty-first centuries, we have also witnessed the staggering developments in international
legal instruments (multilateral law-making conventions) and international institutions like
World Trade Organization (WTO) and International Criminal Court.

3.1.3 MEANING AND DEFINITION OF INTERNATIONAL LAW

International law (which is also referred as public international law) is a distinctive part of
the general structure of international relations and it can be understood as an independent
system of law existing outside the legal orders of particular states and it differs from domestic
legal systems in a number of respects. Various scholars attempted to provide definition
and meaning to international law and in this section we make an attempt to understand
how the meaning of international law evolved over the period of time.

Bentham (1748-1832) who coined the word international law defines, international law
as “a collection of rules governing relations between states”. Thus, in its narrowest sense,
“international law” refers to laws applicable between “states” – a word that in international
law writings typically refers to a country, or sovereign nation-state, and not to a country’s
constituent elements.

Under the traditional and narrow definition of international law, to qualify as a subject a
state had to be sovereign: It needed a territory, a population, a government, and the ability
to engage in diplomatic or foreign relations. States within the States, provinces, and cantons
were not considered subjects of international law, because they lacked the legal authority
to engage in foreign relations. In addition, individuals did not fall within the definition of
subjects that enjoyed rights and obligations under international law.

While the kind of definitions given and the meaning provided traditionally, often omitted
individuals and international organizations—two of the most dynamic and vital elements of
modern international law, the more contemporary definitions expand the traditional notions
of international law to confer rights and obligations on intergovernmental international
organizations and even on individuals. The United Nations, for example, is an international
organization that has the capacity to engage in treaty relations governed by and binding
under international law with states and other international organizations. Individual
responsibility under international law is particularly significant in the context of prosecuting
war criminals and the development of international Human Rights. Further, in today’s

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world it is no longer accurate to view international law as simply a collection of rules;
rather, it is a rapidly developing complex of rules and influential—though not directly
binding—principles, practices, and assertions coupled with increasingly sophisticated
structures and processes.

This way, in its modern and broadest sense, international law came to be understood as
the law that 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. The range of subjects and
actors directly concerned with international law too has widened considerably, moving
beyond the classical questions of war, peace, and diplomacy to include human rights,
economic and trade issues, space law, and international organizations. Besides, international
law may be considered of three kinds: the universal, general, conventional or customary.
The first is universal or established by the general consent of mankind, and binds all nations.
The second is founded on express consent, and is not universal and only binds those
nations that have assented to it and it can establish rules appropriate for universal application,
has a tendency to become universal international law. The third is founded on tacit consent,
and is obligatory on those nations who have adopted it.

A distinction is often made between hard and soft international law. Hard international law
generally refers to agreements or principles that are directly enforceable by a national or
international body. Soft international law refers to agreements or principles that are meant
to influence individual nations to respect certain norms or incorporate them into national
law. Soft international law by itself is not enforceable. It serves to articulate standards
widely shared, or aspired to, by nations.

Before proceeding any further, to avoid any confusions and difficulties you might encounter
in understanding meaning and the nature of the subject, it is also important to distinguish
international law from other types of law and also non-law.

3.1.4 INTERNATIONAL LAW DISTINGUISHED

International law is sometimes referred to as ‘public international law’ to distinguish it from

private international law. While the former governs the relations of states and other subjects
of international law amongst themselves, the latter consists of the rules developed by

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states as part of their domestic law to resolve the problems between private persons
which involve a foreign element, arise over whether the court has jurisdiction and over the
choice of the applicable law: in other terms, public international law arises from the
juxtaposition of states, private international law from the juxtaposition of legal systems.
Although the rules of private international law are part of the internal law of the state
concerned, they may also have the character of public international law where they are
embodied in treaties. Where this happens the failure of a state party to the treaty to
observe the rule of private international law prescribed in it will lay it open to proceedings
for breach of an international obligation owed to another party. Even where the rules of
private international law cannot themselves be considered as rules of public international
law, their application by a state as part of its internal law may directly involve the rights and
obligations of the state as a matter of public international law, for example where the
matter concerns the property of aliens, or the extent of the state’s jurisdiction.

Further the international public law should also be distinguished from the ‘Municipal law’.
While international law can be said to apply only between those entities that can claim
international personality, municipal law is the internal law of states and it regulates the
conduct or individuals and other legal persons within the jurisdiction. It can be argued that
the functions of international law are different from the functions of municipal law. In the
main, international law is not concerned with the rights and duties of individuals, except
where states have agreed that this should be so. International law plays a major role in
facilitating international relations. It is clearly of considerable importance in the drafting of
diplomatic documents and treaties, as well as, in appropriate instances, in the drafting and
application of internal legislation. It should also be remembered that law can never be
totally separated from questions of political reality. In international law, the political and
the legal are extremely closely intertwined. International law cannot exist in isolation from
the political factors operating in the sphere of international relations.

Further, at another level, international law must also be distinguished from international
non-law or sometimes referred as international comity to indicate those norms of behaviour
that are outside the rules of law. Practices such as saluting the flags of foreign warships at
sea, which are implemented solely through courtesy and are not regarded as legally binding.

This way, international law has become distinctive part of the general structure of international

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relations. The basic task of international law is to contribute to a normal functioning of the
international system and to ensure peace and a resolution of international problems through
legal means, on the basis of agreements among sovereign and equal states. In contemplating
responses to a particular international situation, states usually consider relevant international
laws. In the following section, in detail we try to understand the exact nature of International
Law.

3.1.5 IS INTERNATIONAL LAW A LAW?

After understanding the meaning of International Law and how it is different from private
or municipal types of law, you would have developed some vague idea about its nature
too in terms of how it is often created, where from it originates, what all shapes it can take,
how it is enforced and what kind of consequences will be there for its violation. Grasping
all that, it is obvious for you to reach to the question, Is International Law really a Law? As
Henderson mentions, this question is an enduring one for many scholars and leaders. Ever
since its existence, scholars have questioned, first, the existence of any set of rules governing
inter-state relations; second, its entitlement to be called ‘law’; and, third, its effectiveness
in controlling states and other international actors in ‘real life’ situations.
Normally, one proceeds to read about the International Law, having understood something
about the main characteristics and nature of the domestic or municipal law. Under the
municipal law, one would come across a designated body to make laws and a hierarchy
of courts with compulsory jurisdiction to settle disputes over such laws and an accepted
system to enforce those laws. Thus without a legislature, judiciary and executive one
cannot imagine the legal order.
International law has no legislature. The General Assembly of the United Nations comprising
delegates from all the member states exists, but its resolutions are not legally binding
except for certain of the organs of the United Nations for certain purposes. There is no
system of courts. Even though the International Court of Justice exists at The Hague, it
can only decide cases when both sides agree, at the same time it cannot ensure that its
decisions are complied with. Above all there is no executive or governing body. The
Security Council of the United Nations, which was intended to have such a role in a sense,
has at times been effectively constrained by the veto power of the five permanent members.

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When there is no identifiable institution either to establish rules, or to clarify them or see
that those who break them are punished, how can International Law be a law remains to
be a much contested question. The basis for this line of argument is the comparison of
domestic law with international law, and the assumption of an analogy between the national
system and the international order. On the other hand a contrary opinion exists saying, it
is not at all clear why any form of national law should be regarded as the appropriate
standard for judging international law, especially when the rationale of International Law is
fundamentally different from that of the domestic Law. Without focusing much on the
question whether it is a law or not, it is important for us throw some light on to its nature in
the subsequent section.

3.1.6 NATURE OF INTERNATIONAL LAW

The fact that states and other non-state actors are the main subjects of international legal
system itself constitutes the rationale and nature of international law is to be different and
you will study the same under the following heads.

3.1.6.1 International Law Facilitates the Interaction of Legal Equals

International law, at least as originally conceived, is different as it is concerned with the

rights and duties of the states themselves. In their relations with each other, it is neither
likely nor desirable that a relationship of legal superiority exists. States are legal equals
and the legal system which regulates their actions between themselves must reflect this.
Such a legal system must facilitate the interaction of these legal equals rather than control
or compel them in a poor imitation of the control and compulsion that national law exerts
over its subjects. Of course, as international law develops and matures it may come to
encompass the legal relations of non-state entities, such as peoples, territories, international
organizations (governmental and non-governmental), individuals or transnational
companies, and it must then develop institutions and procedures which imitate in part the
functions of the institutions of national legal systems. Indeed, the re-casting of international
law as a system based less on state sovereignty and more on individual liberty is an aim
of many contemporary international lawyers and there is no doubt that very great strides
have been made in this direction in recent years. The establishment of the International
Criminal Court is perhaps the most powerful evidence of this development. However,

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whatever we might hope for in the future for international law it is crucial to remember that
at the very heart of the system lies a set of rules designed to regulate states’ conduct with
each other, and it is this central fact that makes detailed analogies with national law misleading
and inappropriate.

3.1.6.2 International Law is the Vital Mechanism for Conducting International

Relations

In simple terms, international law comprises a system of rules and principles that govern
the international relations between sovereign states and other institutional subjects of
international law such as the United Nations, the Arab League and the African Union
(formerly the Organisation of African Unity). As we shall see, that is not to say that
international law is unconcerned with the rights and obligations of the individual or non-
governmental organisation and, indeed, it may be becoming more concerned with them.
Rather, the rules of international law are created primarily by states, either for their own
purposes or as a means of facilitating and controlling the activities of other actors on the
international plane. Rules of international law cover almost every facet of inter-state and
international activity. There are laws regulating the use of the sea, outer space and Antarctica.
There are rules governing international telecommunications, postal services, and the carriage
of goods and passengers by air and the transfer of money. International law is a primary
tool for the conduct of international trade. It is concerned with nationality, extradition, the
use of armed force, human rights, protection of the environment, the dignity of the individual
and the security of nations. In short, there is very little that is done in the international arena
that is not regulated by international law and it can now govern some aspects of relations
between distinct units within a sovereign state, such as the territories of federal Canada or
the devolved regions of the UK.

International law is the vital mechanism without which an interdependent world could not
function. In this sense, international law facilitates the functioning of the international
community, of which we are all a part and on which we all depend. However, that is not
all. Modern international law also seeks to control states by inhibiting or directing their
conduct both in their relations with other states (e.g. the law prohibiting the use of armed
force to settle disputes) and in relation to individuals, both individuals of other states (e.g.
issues concerning the exercise of criminal jurisdiction) and its own nationals (e.g. the law

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of human rights). It is the evolution of international law from a system that was concerned
primarily with facilitating international cooperation among its subjects (states), to a system
that is now much more engaged in the control of its subjects that is the pre-eminent feature
of the history of international law in the last seventy-five years.

3.1.6.3 International Law is built into the Order of International Relations

Any appreciation of the nature of international law is possible only by recognizing that it is
built into the order of international relations. An order is an enduring pattern of values and
behaviours which structures the relationships of actors over time, usually decades or even
centuries. Today’s order includes democratic human rights, and capitalist values rising to
primacy with the major states striving to get along and trying to persuade lesser states to
accept more fully the same order, with its decidedly Western character. The rules of
international law help to establish and perpetuate a particular world order. States vary
greatly in size and power, but all try to shape the international order by influencing the
content of international law. Since the end of the Second World War, the United States,
with its power growing to hegemon status, or the world’s most powerful state, has tried to
secure its vision of world order through international organizations and international law.
The creation of the UN, the World Bank, the World Trade Organization (WTO), the
promotion of human rights treaties, and much else of the post-Second World War structure
have come about in large part due to US influence. In the past, some observers claimed
that the world order had begun to resemble not just a Western but a Pax Americana, an
American designed peace in particular. Any lasting American imprint on the global order
may be in question since the United States has become hesitant to support important
treaties, and its vaunted military and economic prowess are undermined by the seemingly
endless Afghanistan and Iraq wars plus the sharp downward turn in the US economy in
2008–9.

3.1.6.4 International Law is Positive in Nature

The energy propelling nature of international law is positive, not negative. Of course, the
degree of cultural consensus, shared material interests, and the growing sense of global
interdependence says a lot about how well this relatively non-coercive, non- centralized,
legal system can work. Most diplomatic and economic exchanges move along smoothly,

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and to mutual advantage, although general world public opinion might have a hard time
realizing the everyday usefulness of international law. However, the regular practice of
international law by most actors results in a more orderly and predictable world.

3.1.7 BASES OF INTERNATIONAL LAW

International Law is based on certain presumptions, which are rooted in the values and
norms the human civilization enriched from the times immemorial. The following will analysed
issues related to these aspects.

3.1.7.1 Voluntary Compliance

International law is not based on commands backed by sanctions but instead rests on
voluntary compliance. As Henderson reiterates, if a national government had to force
every citizen to obey every law, that government would need to hire mercenary police
officers equal in number to that country’s citizens. Although there are enough law-breakers
in every country to justify a prison system, people usually obey the law because they
believe it is in their enlightened self-interest to do so. Drivers halt at stop signs because
they do not want to die in a car wreck or, less severe, receive a chalan. Paying taxes,
serving on juries and respecting the rights of other citizens is fairly natural to most citizens
because they understand this kind of behaviour creates a more wholesome society for
everyone. Consequently, law does not succeed or fail depending on enforcement alone.
This observation applies equally well to a horizontal authority system in which the “citizens”
(primarily the states) are sovereign, meaning they are legal equals and free of any central
authority operating over their heads. States obey the law because it is usually in their
interests to do so, and a legal structure makes international life less dangerous and costly.
Because of international law, states have confidence that they can safely send their
ambassadors to foreign soil; they can ship goods across borders and expect payment;
their ships on the high seas will not be interfered with; or, in the case of a breakdown in
relations that leads to war, refugees and POWs will be repatriated. The reason this
decentralized legal system is able to work does not depend on the few risky sanctions
available to states, such as war or retaliation including breaking off trade or diplomatic
contact.

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3.1.7.2 Ethical Basis and Reciprocity

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.
Although considerable attention is invariably focused on violations of international law,
states generally are careful to ensure that their actions conform to the rules and principles
of international law, because acting otherwise would be regarded negatively by the
international community. The rules of international law are rarely enforced by military
means or even by the use of economic sanctions. Instead, the system is sustained by
reciprocity or a sense of enlightened self-interest. States hang together within a legal system
due to a relationship of reciprocity. This relationship is one of give and take, with states
returning the privileges and services they receive from other states. States that breach
international rules suffer a decline in credibility that may prejudice them in future relations
with other states. Thus, a violation of a treaty by one state to its advantage may induce
other states to breach other treaties and thereby cause harm to the original violator.
Furthermore, it is generally realized that consistent rule violations would jeopardize the
value that the system brings to the community of states, international organizations, and
other actors. This value consists in the certainty, predictability, and sense of common
purpose in international affairs that derives from the existence of a set of rules accepted by
all international actors. International law also provides a framework and a set of procedures
for international interaction, as well as a common set of concepts for understanding it.

The development of International Law in the last 60 years owes much to the efforts made
by the United Nations. Hence the efforts of the U.N too deserve a mention in the current
lesson.

3.1.8 UN’S ROLE IN THE DEVELOPMENT OF INTERNATIONAL LAW

The United Nations has played a major role in defining, codifying, and expanding the
realm of international law. The International Law Commission, established by the General
Assembly in 1947, is the primary institution responsible for these activities. The Legal
Committee of the General Assembly receives the commission’s reports and debates its
recommendations; it may then either convene an international conference to draw up
formal conventions based on the draft or merely recommend the draft to states. The

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International Court of Justice reinforces legal norms through its judgments. The commission
and the committee have influenced international law in several important domains, including
the laws of war, the law of the sea, human rights, and international terrorism.

The work of the UN on developing and codifying laws of war was built on the previous
accomplishments of the Hague Conventions (1899–1907), the League of Nations, and
the Kellog-Briand Pact (1928). The organization’s first concern after World War II was
the punishment of suspected Nazi war criminals. The General Assembly directed the
International Law Commission to formulate the principles of international law recognized
at the Nürnberg trials, in which German war criminals were prosecuted, and to prepare a
draft code of offenses against the peace and security of mankind. In 1950 the commission
submitted its formulation of the Nürnberg principles, which covered crimes against peace,
war crimes, and crimes against humanity. In the following year the commission presented
to the General Assembly its draft articles, which enumerated crimes against international
law, including any act or threat of aggression, annexation of territory, and genocide. Although
the General Assembly did not adopt these reports, the Commission’s work in formulating
the Nürnberg principles influenced the development of human rights law.

The UN also took up the problem of defining aggression, a task attempted unsuccessfully
by the League of Nations. Both the International Law Commission and the General
Assembly undertook prolonged efforts that eventually resulted in agreement in 1974. The
definition of aggression, which passed without dissent, included launching military attacks,
sending armed mercenaries against another state, and allowing one’s territory to be used
for perpetrating an act of aggression against another state. In 1987 the General Assembly
adopted a series of resolutions to strengthen legal norms in favour of the peaceful resolution
of disputes and against the use of force.

The UN has made considerable progress in developing and codifying the law of the sea as
well. The International Law Commission took up the law of the sea as one of its earliest
concerns, and in 1958 and 1960, respectively, the General Assembly convened the First
and the Second United Nations Conferences on the Law of the Sea (UNCLOS). The
initial conference approved conventions on the continental shelf, fishing, the high seas, and
territorial waters and contiguous zones, all of which were ratified by the mid-1960s. During
the 1970s it came to be accepted that the deep seabed is the “common heritage of mankind”

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and should be administered by an international authority. In 1973 the General Assembly
called UNCLOS III to discuss the conflicting positions on this issue as well as on issues
relating to navigation, pollution, and the breadth of territorial waters. The resulting Law of
the Sea Treaty (1982) has been ratified by some 140 countries. The original treaty was
not signed by the United States, which objected to the treaty’s restrictions on seabed
mining. The United States signed a revised treaty after a compromise was reached in
1994, though the agreement has yet to be ratified by the U.S. Senate.

The UN has worked to advance the law of treaties and the laws regulating relations
between states. In 1989 the General Assembly passed a resolution declaring 1990–99
the UN Decade of International Law, to be dedicated to promoting acceptance and respect
for the principles and institutions of international law. In 1992 the General Assembly directed
the International Law Commission to prepare a draft statute for an International Criminal
Court. The Rome Statute of the International Criminal Court (ICC) was adopted in July
1998 and later signed by more than 120 countries. The ICC, which is to be located at The
Hague upon the ratification of the statute by at least 60 signatory countries, has jurisdiction
over crimes against humanity, crimes of genocide, war crimes, and crimes of aggression,
pending an acceptable definition of that term. Under the terms of the convention, no
person age 18 years or older is immune from prosecution, including presidents or heads
of state.

Since 1963 the United Nations has been active in developing a legal framework for
combating international terrorism. The General Assembly and specialized agencies such
as the International CivilAviation Organization and the InternationalAtomic EnergyAgency
established conventions on issues such as offenses committed on aircraft, acts jeopardizing
the safety of civil aviation, the unlawful taking of hostages, and the theft or illegal transfer
of nuclear weapons technology. In 2001, in the wake of devastating terrorist attacks that
killed thousands in the United States, the General Assembly’s Ad Hoc Committee on
Terrorism continued work on a comprehensive convention for the suppression of terrorism.

3.1.9 LET US SUM UP

In this introductory lesson on International Law, we have discussed about the historical
development of International Law, its meaning and how it can be distinguished from other

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laws as well as its Nature and Basis. After looking at the nature and basis of international
law, you would have noticed that International Law is mainly prescriptive and facilitative.
However, in the current century, looking at the nature of unlawful activities or violence of
the states, groups and individuals coupled with the remotest possibility of checking such
behaviour under the existing legal system, the perception has been that international law is
failing in one of its primary purposes – the maintenance of an ordered community where
the weak are protected from arbitrary action by the strong.

Some commentators have even suggested that the twenty first century needs to accept a
new reality where international law is accepted as a political and moral force, but not a
legal discipline. Others would argue that the content of international law should change in
order to be less prescriptive and more permissive, especially as the world faces challenges
unexpected of when international law first began to be regarded by some as genuinely
‘legal’ in quality. The theoretical rejection of the prescriptive nature of International law
has been on increase.

This way the development of International law amidst of undreamt challenges, posed by
its subjects is a mixture of achievement and disappointment and any transformation in its
nature is highly dependent on the willingness and transcendent behaviour or its subjects
and their genuine concerns.

3.1.10 EXERCISE

1. Trace the Evolution of International law in the History ?

2. Briefly discuss the definition and meaning of International Law ?

3. Define International Law and discuss its Nature in detail ?

4. Is international Law a Law? Briefly discuss ?

5. How is International Law Distinguished from other Law ?

6. Critically analyze the Nature and Basis of International Law ?

7. Write a short note on the contributions of U.N in the development of International

Law ?

228 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
M.A. Political Science, Semester IV, Course No. 403, International Organisation & Law
Unit – III: International Law: Meaning, Sources and Subjects

3.2 SOURCES OF INTERNATIONAL LAW, RELATION

WITH MUNICIPAL LAW
- A. Lalitha
STRUCTURE
3.2.0 Objectives
3.2.1 Introduction
3.2.2 Essential Sources of International Law
3.2.2.1 Customary International Law
3.2.2.2 Treaties
3.2.2.3 General Principles of Law Recognized by Civilized Nations
3.2.2.4 Judicial Decisions
3.2.2.5 Writings
3.2.2.6 Other Sources
3.2.3 International Law Commission and Codification
3.2.4 Soft Law
3.2.5 Interaction of Sources
3.2.6 Relationship between International Law and Municipal Law
3.2.6.1 Prominent Theories Pertaining to the Relationship
3.2.6.2 International Law and Municipal Law Interface
3.2.7 Let Us Sum Up
3.2.8 Exercise

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 229
3.2.0 OBJECTIVES

This lesson deals with the major sources that constitute International Law and the distinction
between International Law and Municipal Law. After going through this lesson, you should
be able to:

• understand various sources that constitute International law;

• comprehend the relationship as well as differences between the International and

Municipal Law; and

• know the role played by International Law Commission in the codification of

International Law.
3.2.1 INTRODUCTION
Whether democratic or authoritarian, a hierarchical legal system is in place and the
identification of legal rules and their sources is a more or less straightforward process in a
national legal system. While people living in the world’s democracies are accustomed to
legislative bodies generating a steady flow of laws to serve the needs and wants of their
populations, many authoritarian governments that continue to exist impose rules by whim
and often enforce these rules through repression. Unlike this legal system at the national
level, an entirely different situation exists at the international level, and given the experiences
most people have had with law at the domestic level, comprehending the method of creating
law at the international level can be somewhat baffling.

Contrary to the legal system at National level, International law has no Parliament and
nothing that can really be described as legislation. It is rather a horizontal legal system with
no world parliament available to produce rules or a global dictator to provide enforcement.
It must be remembered that, while a large number of diverse, sovereign states create their
own laws for their common needs, there is an International Court of Justice and a range of
specialized international courts and tribunals. However, these international courts and
tribunals lack what can properly be described as a compulsory jurisdiction of the kind
possessed by national legal system. As a result, the international law is made largely on a
decentralized basis by the actions of the 192 States which make up the international
community. The following section deals with several such sources of the International
Law.
230 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
3.2.2 ESSENTIAL SOURCES OF INTERNATIONAL LAW

The term sources refer to methods or procedure by which international law is created.
The Statute of the International Court of Justice (ICJ), Art 38 identifies the following five
essential sources of international law. At the same time, it must be remembered that the
range of sources is not limited only to these essential sources. These five sources include:

(a) Treaties between States;

(b) Customary international law derived from the practice of States;

(c) General principles of law recognized by civilized nations; and, as subsidiary means for
the determination of rules of international law;

(d) Judicial decisions; and

(e) the writings of “the most highly qualified publicists”.

3.2.2.1 Customary International Law

To understand the sources of international law, it is appropriate to begin with customary

law as this is both the oldest source and the one which generates rules binding on all
States. It must be remembered that the customary law is not a written source and the
existence of customary rules can be deduced from the practice and behaviour of states
and rules. The State claiming the existence of a rule of customary law also has the burden
of proving its existence by showing a consistent and virtually uniform practice among
States, including those States specially affected by the rule or having the greatest interest
in the matter. For example, to examine the practice of States on military use of outer
space, one would look in particular at the practice of States that have activities in the
Space. Some undisputed examples of rules of customary law include : a) giving foreign
diplomats criminal immunity; b)treating foreign diplomatic premises as inviolable; c)
recognizing the right of innocent passage of foreign ships in the territorial sea; d) recognizing
the exclusive jurisdiction of the flag State on the high seas; e) ordering military authorities
to respect the territorial boundaries of neighbouring States f) protecting civilians and sick
or wounded soldiers during international armed conflict, etc.

There are disagreements regarding value of this customary system in international law.
Some writers deny that custom can be significant today as a source of law, noting that it is
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too clumsy and slow-moving to accommodate the evolution of international law any more,
while others declare that it is a dynamic process of law creation and more important than
treaties since it is of universal application. Another view recognizes that custom is of value
since it is activated by spontaneous behaviour and thus mirrors the contemporary concerns
of society. However, since international law now has to contend with a massive increase in
the pace and variety of state activities as well as having to come to terms with many
different cultural and political traditions, the role of custom is perceived to be much
diminished in comparison with the earlier times.

3.2.2.2 Treaties

In contrast to the process of creating law through the custom, treaties (or international
conventions) are a more modern and more deliberate method. In the modern period
international treaties are the most important source of international law. Article 38 of the
statue of ICJ refers to ‘international conventions, whether general or particular, establishing
rules expressly recognized by the contracting states’. Treaties are known by a variety of
differing names, ranging from Conventions, International Agreements, Pacts, General Acts,
Charters, through to Statutes, Declarations and Covenants. All these terms refer to a
similar transaction, the creation of written agreements whereby the states participating
bind themselves legally to act in a particular way or to set up particular relations between
themselves.

International treaties may be of two types: a) Law Making Treaties; and b) Treaty Contracts.

a) Law Making Treaties: Law making treaties perform the same functions in the
international field as legislation does in the state field and these are the direct source of
international law and the development of these treaties was changing with the circumstances.

b) Treaty Contracts: As compared to law making treaties treaty contracts are entered
into by two or more States. This may happen when a similar rule is incorporated in a
number of treaty contracts. This way Treaties are expressed agreements and are a form of
substitute legislation undertaken by states. They bear a close resemblance to contracts in
a superficial sense in that the parties create binding obligations for themselves, but they
have a nature of their own which reflects the character of the international system. Treaties
fulfil a vital role in international relations. As governmental controls increase and the

232 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
technological and communications revolutions affect international life, the number of issues
which require some form of inter-state regulation multiplies. The number of treaties entered
into has expanded over the last century.

Law Making treaties constitute the most important sources of international law as they
require the expressed consent of the contracting parties. Treaties are thus seen as superior
to custom, which is regarded in any event as a form of tacit agreement. As examples of
important treaties one may mention the Charter of the United Nations, the Geneva
Conventions on the treatment of prisoners and the protection of civilians and the Vienna
Convention on Diplomatic Relations. All kinds of agreements exist, ranging from the
regulation of outer space exploration to the control of drugs and the creation of international
financial and development institutions.

Certain law making treaties also attempt to establish a ‘regime’ which will, of necessity,
also extend to non-parties. The United Nations Charter, for example, in its creation of a
definitive framework for the preservation of international peace and security, declares in
article 2(6) that ‘the organisation shall ensure that states which are not members of the
United Nations act in accordance with these Principles [listed in article 2] so far as may be
necessary for the maintenance of international peace and security. Treaty-contracts on the
other hand are not law-making instruments in themselves since they are between only
small numbers of states and on a limited topic, but may provide evidence of customary
rules. For example, a series of bilateral treaties containing a similar rule may be evidence
of the existence of that rule in customary law.

This way, through the adoption of numerous treaties on different areas of international law
(war, terrorism, and diplomacy, treaty-making) international law has undergone its most
important changes in the years since 1945.

3.2.2.3 General Principles of Law Recognized by Civilized Nations

While treaties and custom are the most important sources of international law, the other
sources mentioned in Article 38 of the ICJ Statute of the ICJ cannot be overlooked.
Art.38 of ICJ provides that the Statute of International Court of Justice lists general
principles of law recognized by civilized States as the third source of international law.
International tribunals have always borrowed concepts from domestic law if they can be

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 233
applied to relations between States, and by this means have developed international law
by filling gaps and strengthening weak points. Such concepts are chiefly legal reasoning
and analogies drawn from private law, such as good faith and estoppels.

Good faith: The obligation to act in good faith is a fundamental principle of international
law, and it includes equity. Article 2(2) of the UN Charter requires all Members to fulfil
their Charter obligations in good faith. Similarly, the Vienna Convention on the Law of
Treaties 1969 requires parties to a treaty to perform the treaty (Article 26), and to interpret
it (Article 31(1)), in good faith. The principle is not restricted to treaties but applies to all
international law obligations.

Estoppels: Known as preclusion in civil law systems, Estoppels has two aspects. A State
that has taken a particular position may be under an obligation to act consistently with it on
another occasion. And when a State has acted to its detriment in relying on a formal
declaration by another State, the latter may be estoppels from denying its responsibility
for any adverse consequences.

These concepts are most often employed where the ICJ or another international tribunal
wants to adopt a concept such as the legal personality of corporations which is widely
accepted in national legal systems. And these general principles are seldom mentioned in
judgments and International courts. Thus, General principles of law recognized by civilized
nations become an important source of International Law and this source helps international
law to adapt itself in accordance with the changing time and circumstances.

3.2.2.4 Judicial Decisions

Article 38(1)(d) refers to judicial decisions as a subsidiary means for the determination of
rules of law. Article 38(1)(d) does not distinguish between decisions of international and
national courts. The former are generally considered the more authoritative evidence of
international law on most topics (though not those which are more commonly handled by
national courts, such as the law on sovereign immunity). But decisions of a State’s courts
are a part of the practice of that State and can therefore contribute directly to the formation
of customary international law.

In contrast to the position in common law countries, there is no doctrine of binding precedent
in international law. Indeed, the Statute of the ICJ expressly provides that a decision of the

234 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
Court is not binding on anyone except the partiers to the case in which that decision is
given and even then only in respect of that particular case (Article 59). Nevertheless, the
ICJ refers frequently to its own past decisions and most international tribunals make use
of past cases as a guide to the content of international law, so it would be a mistake to
assume that “subsidiary” indicated a lack of importance.

Although, formally, judgments of courts and tribunals – international and domestic – are a
subsidiary source of international law, in practice they may have considerable influence on
the development of international law. This is because judgments result from careful
consideration of particular facts and legal arguments and therefore usually carry authority.
There are relatively few international courts and tribunals, but tens of thousands of domestic
ones. Moreover, most cases involving international law come before domestic courts,
often final courts of appeal. The cumulative effect of such decisions on a particular legal
point can be the evidence of custom.

3.2.2.5 Writings

The role played by writers on international law is also subsidiary. The writings of international
lawyers may also be a persuasive guide to the content of international law but they are not
themselves creative of law and there is a danger in taking an isolated passage from a book
or article and assuming without more that it accurately reflects the content of international
law. In the formative days of international law, their views may have been more influential
than they are today. Now their remain value depends on the extent to which the books
and articles cited are works of scholarship, that is to say, based on thorough research into
what the law is said to be rather than comparing the views of other writers as to what they
think the law ought to be.

3.2.2.6 Other Sources

There are many other sources which influenced the evolution of contemporary International
Law. Some of them are mentioned below.

Decisions of International and Regional Organizations

The above mentioned sources complete the list of sources included in Article 38 of the
Statute and now the question arises have the sources are really exhausted? You may

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 235
observe that one source is conspicuously missing. The missing source is the decisions of
International Organizations and Institutions. The reason for missing this source in the statue
is that the list was drafted much before the international organizations became a prominent
feature of international life. Hence, these decisions are a relatively new source of
International law.

Today, several of UN Organs gained a great importance in shaping international law. For
example, even though the United Nations General Assembly has no power to legislate for
the international community, and its resolutions are not legally binding, many of those
resolutions exercise an important effect on the law-making process. Some resolutions are
part of the treaty-making process, attaching a treaty text negotiated in the framework of
the United Nations and recommended to the Member States by the Assembly (this was
the case with the Convention against Torture). Even though it is the treaty which creates
the legal obligation that too only for the States which choose to become party to it, the
importance of the United Nations in the process of creating such a treaty should not be
underestimated.

On the other hand the position of the Security Council is somewhat different from the
General Assembly. Decisions taken by the Council under Chapter VII of the Charter and
framed in mandatory terms are legally binding on all States (Article 25 of the Charter).
Moreover, under Article 103 of the Charter the duty to carry out a decision of the Council
prevails over obligations under all other international agreements. In view of the strong
reasons the decisions and determination of organs are now recognized as an important
source of International Law. The resolutions of the organs may be binding on the members
in regard to the internal matters. Organs of international institution can decide the limits of
their competence.

At the same time, we should also be remembered that the decisions of the International
Organizations like EU, Gulf Cooperation Council or any other such regional institution are
extremely diverse in reality and defy any generalized description or analysis which is
otherwise possible with UNO and its umbrella of specialized Organizations having
membership across the continents.

236 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
3.2.3 INTERNATIONAL LAW COMMISSION AND CODIFICATION

In 1947, under the auspices of the UN, the International Law Commission was set up and
charged with the task of progressively developing and codifying international law. The
ILC is made up of 34 members from around the world who remain in office for five years
each and who are appointed from lists supplied by national governments. The members of
the ILC sit as individuals rather than as state representatives. Generally the Commission
works on its own initiative. Draft articles are prepared and sent for comments, a conference
may then be convened at which the draft articles are discussed with the aim of producing
a finished convention which can then be opened for signature. Conferences can last for
some time – the Third Law of the Sea Conference had its opening session in New York in
1973 and the Law of the Sea Convention was finally opened for signature in December
1982. Ratified conventions are clearly a source of law, while the drafts are often highly
persuasive statements of present state practice in a particular area of law. Although the
ILC is the most important international body engaged in the development and codification
of international law, there do exist a number of other public organizations which are involved
in the same mission. Such organizations generally specialize in particular areas of law –
e.g. the UN Commission on International Trade Law (UNCITRAL); the International
Labour Organization (ILO); the United Nations Educational, Scientific and Cultural
Organization (UNESCO). Additionally there are also some private, independent bodies
engaged in the development of the law; e.g. the International Law Association and the
Institut de Droit International are two of the best known today, while various Harvard
Research drafts produced before the Second World War are still of value today.

3.2.4 SOFT LAW

A recent development in the study of the sources of international law has been the claim
that international law consists of norms of behaviour of varying degrees of density or
force. On the one hand there are rules, usually contained in treaties, which constitute
positive obligations binding on states objectively. On the other hand, there are international
instruments which, while not binding on states in the manner of treaty provisions, nonetheless
constitute normative claims and provide standards or aspirations of behaviour. Such
instruments can have an enormous impact on international relations and the behaviour of
states but would not be considered law in the positivist sense. A growing body of writers

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 237
has argued that both types of norms should be considered law and the distinction between
the two is indicated by the terms ‘hard law’ and ‘soft law’. The concept of soft law has
been used significantly in the area of environmental protection. One particular benefit of
soft law is that it allows states to participate in the formulation of standards of behaviour
which they may not feel, at the time of formulation, ready to implement fully. For example,
the Universal Declaration of Human Rights 1948 might be considered to be soft law since
it was expressed to be non-binding and instead set down aims for achievement. Since that
time it can be argued that most, if not all, its provisions have transformed into rules of hard
law. Another example might be the Charter of Economic Rights and Duties of States 1974
which has already been mentioned. This has undoubtedly had an effect on the behaviour
of states but is certainly a long way from hardening into a binding rule of law. It is clear that
within soft law there will be varying degrees of hardness. Other examples of soft law
would include the Final Act of the Conference on Security and Co-operation in Europe
1975 (the Helsinki Declaration) which was expressed to be non-binding, the OECD
Guidelines for Multinational Enterprises and the Gleneagles Agreement on the Sporting
Boycott of South Africa. All undoubtedly have some legal effects without being creating
legally binding obligations.

3.2.5 INTERACTION OF SOURCES

Having understood the above discussed different sources of international law, it is now
necessary to gain clarity on the relationship of these sources to each other. It would be
quite incorrect to assume that they exist in isolation; that certain areas of international law
are regulated by treaties, other areas by customary international law and yet other areas
by the decisions of international organizations. In reality, these various sources interact
closely and influence each other. Stated differently, international law is not a static system
of rules but rather a decision making process. The rules of law that are identified, are
abstractions derived from this process, but they are not its essence.

Even a treaty, which is an apparently clear set of written rules, is part of this process. It is
usually the product of a long evolution that involves customary international law, prior
treaties and often deliberations and decisions made by international organizations. After
its conclusion, the treaty is implemented and interpreted by international and domestic
courts, becomes part of state practice, sometimes leading to new customary international

238 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
law and may ultimately be amended or abrogated by another treaty.

This complex interaction of the different sources of international law has very practical
consequences. When a specific legal question is being examined or a particular case is
being decided, it is not enough to find the ‘right’ rule, by identifying the treaty that is
applicable or the appropriate rule of customary international law. Rather it is crucial to
take synoptic look at the various sources and analyze their relative relevance and authority.

3.2.6 RELATIONSHIP BETWEEN INTERNATIONAL LAW AND

MUNICIPAL LAW

By now you have developed a fair understanding about the nature and sources of
International law. In this section of the lesson you will study about its relationship with the
Municipal Law which is also called as domestic or national law. However, an understanding
of such a relationship would first begin with the basic difference between the two in order
to provide better clarity and then we look at how the relationship between two exists both
in theory and in practice.

To mention precisely, International Law is that law that refers to the body of legal decisions,
rules, and customs that regulate the discourse between nations (e.g., human rights, military
intervention, and global concerns such as climate change). Municipal law is the national,
domestic, or internal law of a sovereign state defined in opposition to international law.
Municipal law includes not only law at the national level, but law at the state, provincial,
territorial, regional or local levels. While, as far as the law of the state is concerned, these
may be distinct categories of law, international law is largely uninterested in this distinction
and treats them all as one. Similarly, international law makes no distinction between the
ordinary law of the state and its constitutional law. Thus in the realm of international law,
municipal refers to any sovereign entity, including countries, states, counties, provinces,
cities, and towns. In short, municipal refers to the internal law of a sovereign government.

There are two primary forms of municipal, or domestic, law. The first is civil law, composed
of the statutory law and regulations to administer those laws. In general Statutes are passed
either by the legislative bodies of the state or by popular vote (in some countries). Domestic
law is also formed by the common law, which is law handed down by the lower and upper
courts of the country. Common types of municipal law are criminal statutes, traffic laws,

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 239
and government regulations. Thus, basically municipal law regulates the relationship of
citizens with the government.
When we try to understand the basic differences between the international and municipal
law, we need to keep these things in mind.
Firstly, at a very basic level, international law and domestic law differ in magnitude.
Domestic law governs the behaviour and actions of individuals within a country, whereas
international law governs the behaviour and actions of bodies of government: states or
countries.
Secondly, there is no supreme law-making body in international law. Treaties are negotiated
between States on an ad hoc basis and only bind States which are parties to a treaty. The
General Assembly of the United Nations is not a law-making body, and so its resolutions
are not legally binding. However, UN Security Council resolutions to take action with
respect to threats to peace, breaches of the peace, and acts of aggression, are binding on
the 193 member States
Thirdly, the most important difference between international law and domestic law is
how they are enforced. International law lacks a common executive, which means that
there is no power which can make a state or nation accept a court decision. Thus, the
states or countries operating under international law often have a weak sense of community,
meaning that obeying the law will often come second to that which is seen necessary for
survival. Domestic law, on the other hand, consists of all three branches of government –
executive, judicial, and legislative. As you probably know, these three branches are separate
from each other and are based on a system of checks and balances. This limits the power
of each branch so that no one becomes too powerful. Unlike international law, those who
violate domestic law will receive a punishment deemed fit by a court executive, and this
punishment will be enforced.
Notwithstanding the fact it is notionally accepted that the state municipal law controls the
conduct of individuals within the state while International Law controls the relations of
nations, both the laws have cohesion with each other and the relations between these two
are more prominent. Further in today’s world, 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.

240 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
In light of the increased significance of public international law since 1945, the proliferation
of international treaties, and the basic obligation of all the states to perform their international
legal obligations in good faith, states have good reason to seek a measure of congruence
between their domestic legal orders and international law. Certain theories have been
propounded to explain the relationship between International Law and Municipal Law.

3.2.6.1 PROMINENT THEORIES PERTAINING TO THE RELATIONSHIP

The prominent theories that deal with the relationship between the international and national
law include the Monistic Theory, Dualistic Theory, Transformation Theory and Delegation
Theory and it is important to look at the main propositions of such theories.

Monistic Theory

Monists assume that the national and international legal systems form a unity. Both national
legal rules and international rules that a state has accepted, for example by way of a treaty,
determine whether actions are legal or illegal. In most monist states, a distinction between
international law in the form of treaties, and other international law is made. International
law does not need to be translated into national law. The act of ratifying the international
law immediately incorporates the law into national law. International law can be directly
applied by a national judge, and can be directly invoked by citizens, just as if it were
national law. A judge can declare a national rule invalid if it contradicts international rules
because, in some states, the latter have priority. In other states, like in Germany, treaties
have the same effect as legislation, and they only take precedence over national legislation
enacted prior to their ratification. In its most pure form, monism dictates that national law
that contradicts international law is null and void, even if it predates international law, and
even if it is the constitution. It maintains that the subject of the two systems of law namely,
International Law and Municipal Law are essentially one in as much as the former regulates
the conduct of States, while the latter of individuals. According to this view law is essentially
a command binding upon the subjects of the law independent of their will which is one
case is the States and in the other individuals. According to it International Law and
Municipal Law are two phases of one and the same thing. The former although directly
addressed to the States as corporate bodies is as well applicable to individuals for States
are only groups of individuals.

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Dualistic Theory

Dualists emphasize the difference between national and international law, and require the
translation of the latter into the former. Without this translation, international law does not
exist as law. International law has to be national law as well, or it is no law at all. If a state
accepts a treaty but does not adapt its national law in order to conform to the treaty or
does not create a national law explicitly incorporating the treaty, then it violates international
law. But one cannot claim that the treaty has become part of national law. Citizens cannot
rely on it and judges cannot apply it. National laws that contradict it remain in force.
According to dualists, national judges never apply international law, only international law
that has been translated into national law. According to the dualist view the systems of
International Law and Municipal Law are separate and self contained to the extent to
which rules of the one are not expressly or tacitly received into the other system. In the
first place they differ as regards their sources. The sources of Municipal Law are customs
grown up within the boundaries of the State concerned and statutes enacted therein while
the sources of International Law are customs grown up within the Family of Nations and
law making treaties concluded by its members. In the second place Municipal Laws
regulates relations between the individuals under the sway of a State or between the
individuals and the State while International Law regulates relations between the member
States of the Family of Nations. Lastly there is a difference with regard to the substance
of the law in as much as Municipal Law is a law of the sovereign over individuals while
International Law is a law between sovereign State which is arrived at an agreement
among them. The latter is therefore a weak law.

While the Monistic and Dualistic Theories are highly popular, besides the above two
theories, Starke makes reference to two other theories namely, the Transformation Theory
and Delegation Theory.

Transformation Theory

According to this theory it is the transformation of the treaty into national legislation which
alone validates the extension to individuals of the rules set out in international agreements.
The transformation is not merely a formal but a substantial requirement. International
Law according to this theory cannot find place in the national or Municipal Law unless the
latter allows its machinery to be used for that purpose.

242 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
This theory is fallacious in several respects. In the first place its premise that International
Law and Municipal Law are two distinct systems is incorrect. In the second place the
second premise that International Law binds States only whereas municipal law applies to
individuals is also incorrect for International Law is the sum of the rules which have been
accepted by civilized states as determining their conduct towards each other and towards
each other’s subjects. In the third place the theory regards the transformation of treaties
into national law for their enforcement. This is not true in all cases for the practice of
transforming treaties into national legislation is not uniform in all the countries. And this is
certainly not true in the case of law making treaties.

Delegation Theory

According to this theory there is the delegation of a right to every State to decide for itself
when the provisions of a treaty or convention are to come into effect and in what manner
they are to be incorporated in the law of the land or municipal law. There is no need of
transformation of a treaty into national law but the act is merely an extension of one single
act. The delegation theory is incomplete for it does not satisfactorily meet the main argument
of the transformation theory. It assumes the primacy of international legal order but fails
to explain the relations existing between municipal and international laws.

3.2.6.2 International Law and Municipal Law Interface

An international treaty hardly stipulates how the States should implement its provisions,
leaving it to each State to decide how that obligation will be executed on the domestic
plane. There is no rule of general international law that all treaties must have effect in
domestic law. Many treaties have no domestic legal consequences and do not require
implementation through the national legal systems of the States Parties. One notable
exception involves the right of access and to effective remedies guaranteed in human
rights treaties. Art.2 of International Covenant on Civil and Political Rights, states “Where
not already provided for by existing legislative or other measures, each State Party to the
present Covenant undertakes to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present Covenant, to adopt such
legislative or other measures as may be necessary to give effect to the rights recognised in
the present Covenant”. The covenant also stipulates four main methods for the
implementation of international human rights instruments in domestic law:

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a. Direct incorporation of rights recognised in the international instruments into a bill of
rights in the national legal order;

b. Enactment of different legislative measures in the civil, criminal and administrative

laws to give effect to the different rights recognised in human rights instruments;

c. Self-executing operation of international human rights instruments in the national legal

order; and

d. Indirect incorporation as aids to interpret other law.

For States that are not Parties to the relevant human rights treaties, generally accepted
standards of human rights are legally binding upon them according to customary international
law.

The relationship of international law to municipal law rests on mainly the monistic and
dualistic schools of law. As it has been discussed, the dualists regard international law
and municipal law as separate and municipal law can apply international law only when it
has been incorporated into municipal law. Incorporation can result from an act of parliament
or other political act, or given effect by the courts. On the other hand, monists regard
international law and municipal law as parts of a single legal system. According to this
theory, municipal law is subservient to international law.

England is an example of the dualist model of international law. A treaty has no effect in
English domestic law, unless it is made part of it. Once a treaty is incorporated into English
Law, it is fully enforceable in the courts. But the fact that a treaty is part of the English Law
will not necessarily mean that individuals have a cause of action arising from the treaty.
There will only be incorporation if the treaty changes domestic law, or if it requires the
raising of revenue or alteration of taxation. As in the case of many treaties in the field of
foreign relations, ratification is a formality and incorporation is not required. An
unincorporated treaty has no formal standing in English Law. If it conflicts with statute or
common law, the latter will prevail. An incorporated treaty becomes part of the law of the
land, but it has no special position. The relationship between incorporated treaties and
other legislation is the same as the relationship of two statutes to each other. Parliament is
supreme in the sense that it can pass legislation that is inconsistent with any international
treaty obligations which, nevertheless binds the United Kingdom at the international level.

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An example of a monist model is the Netherlands legal system. For the operation of
treaties and the orders of international organizations within the legal system, no national
order is required to convert international law into national law. International law operates
automatically, as such, within the national legal system. Therefore, certain treaties are
considered constitutional law where they limit or extend the powers of Dutch offices
based on national constitutional law. Examples of this are the European Convention for
the Protection of Human Rights and Fundamental Freedoms and the International Covenant
on Civil and Political Rights.

In the United States, ratified human rights treaties and customary international law are
both law of the land. The Supremacy Clause of the United States Constitution makes all
Treaties made or which shall be made under the Authority of the United States a the
Supreme Law of the Land. Under the Supremacy Clause, the law of the land is binding on
the federal government as well as on state and local governments. According to the U.S.
Supreme Court, the treaty power authorizes Congress to legislate under the Necessary
and Proper Clause in areas beyond those specifically conferred on Congress.

In the U.S. not all treaties, by their terms, mandate domestic applications that affect
private parties. Such treaties, therefore, are not self-executing, even though they are ratified
and are part of the law of the land according to the Supremacy Clause. Since a private
right is largely contingent on the existence of a right of action, additional legislation is
needed to grant individuals private rights pursuant to such treaties.

Self-executing treaty doctrine stipulates that not even the few U.S. ratified human rights
treaties would necessarily be binding on domestic courts. Unless a court deems a treaty to
be self-executing, the treaty will bind domestic courts only if Congress has passed legislation
for the specific purpose of implementing the treaty provisions domestically.

While the U.S. Constitution assigns the power to make and adopt treaties to the federal
government, several state and local governments have adopted human rights treaties. For
example, in the absence of federal ratification on the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW), San Francisco has incorporated
principles of CEDAW into binding local law.

India too follows the dualist school of law in respect of implementation of international law

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at domestic level. Therefore, in India, International treaties do not automatically form part
of national law. They must, where appropriate, be incorporated into the legal system by a
legislation made by the Parliament.

To sum up the above discussion, there are different sources of international law such as
treaties, customary international law and general principles of law. In their actual application,
however, these sources are closely inter-related. The often interact by supplementing and
replacing each other. Often a rule created in one type of source later emerges in the form
of another source. Thus these typical sources of international law ought never to be viewed
in isolation.

The relationship between domestic and international law, properly understood, enables
the two legal orders to complement one another as a unified and coherent set of legal rules
and principles. This unity, flows from the idea that all law, domestic and international alike,
establishes norms and standards to which public bodies and private parties can be held
publicly accountable. The unity of domestic and international law, in other words, follows
from a shared and overarching commitment to public accountability.

3.2.7 LET US SUM UP

In this lesson we have tried to understand various sources that constitute international law,
how they make it a distinct one from the other laws, as well as the relationship, differences
and interface between the international law and the municipal law in general. While some
countries give primacy to international law over its municipal law some other countries
give supremacy to the municipal law. The basic understanding on both the topics covered
under this lesson will better help you in understanding nature of various international laws,
enforceability and so on in the subsequent lessons you will be studying in the paper.

3.2.8 EXERCISES

1. Discuss various sources that constitute international law. What kind of influence
those sources have on its nature ?

2. What is Municipal law and how it is different from Public International Law ?

246 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
3. Deal with the theories dealing with the relationship between Public International Law
and Municipal law with their main propositions ?

4. Discuss the relationship and the interface between Public International Law and the
Municipal Law ?

5. Provide a brief on Treaties as a source of International Law ?

6. Customs are the main source of International Law. Discuss ?

7. Briefly discuss how various sources of International Law interrelated with each other?

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M.A. Political Science, Semester IV, Course No. 403, International Organisation & Law
Unit – III: International Law: Meaning, Sources and Subjects

3.3 INDIVIDUALS AND STATE: NATIONALITY,

EXTRADITION AND ASYLUM
- Sukhwinder Kour

STRUCTURE

3.3.0 Objectives

3.3.1 Introduction: State under International Law

3.3.2 Conceptual Explanation of Sovereignty

3.3.3 Five Modes to Attain Sovereignty

3.3.4 Terms “De Jure” and “De Facto” Recognition of States

3.3.5 Recognition of States within International Law

3.3.6 The Rules of International Order and Recognition of States

3.3.7 Individuals within International Law

3.3.8 Legal Positivism with regard to Individuals

3.3.9 VIEWS OF SCHOLARS

3.3.10 RESPONSIBILITY OF INDIVIDUALS

3.3.11 Present position of individuals within International Law

3.3.12 Nationality

3.3.13 Main Theories related to Nationality

248 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
 3.3.13.1 Active Nationality Theory

3.3.13.2 Passive Nationality theory

3.3.14 Modes of Acquisition of Nationality

3.3.15 Loss of Nationality

3.3.16 The Concept of Double Nationality or Dual Nationality

3.3.17 Statelessness
3.3.18 Rights and Duties of an Alien
3.3.19 Significance of Nationality
3.3.20 Nationality along with Domicile
3.3.21 Dissimilarity amid Nationality and Citizenship
3.3.22 Extradition
3.3.23 Differentiation amid Expulsion and Extradition
3.3.24 No Transportation of a Political Criminal
3.3.25 D’attentat Clause
3.3.26 Rule of Speciality
3.3.27 Double Criminality
3.3.28 Position of the State within International Law
3.3.29 India
3.3.30 Asylum
3.3.31 Article 14 of the Universal Declaration of Human Rights
3.3.32 Types of Asylum
3.3.33 Asylum in India

3.3.34 Let Us Sum up

3.3.35 Exercise

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3.3.0 OBJECTIVES

After going through this lesson, you will be proficient to comprehend

 The position of state and individual within international law

 Theories related to nationality, modes of acquiring nationality, loss of nationality

along with various concepts related to nationality

 Concept of extradition, asylum, its types and laws inside India with respect to
them

3.3.1 INTRODUCTION: STATE UNDER INTERNATIONAL LAW

The state as an area under discussion of International law, as a universal conception, is

characterized all the way through its four fundamental features: Population, Territory,
Government and Sovereignty. The whole populace existing inside a definite terrain which
is subordinate to the administration, furthermore, have a recognized affiliation with the
state through officially authorized connection is termed as population. The territory is a
region unconnected from other regions by boundary where a definite inhabitants lives
along with where an assured authority extends. State borders are end points till where the
sovereignty of a state lengthens. The power by which a state regulates its associations
within the state along with its relationships with the outside world is termed as sovereignty.
The features of a modern state, the manner it is acknowledged these days are fashioned
by Peace Treaty of Westphalia, according to which the country is comprised of three
most important characteristics: territory, population and sovereignty.

3.3.2 CONCEPTUAL EXPLANATION OF SOVEREIGNTY

Sovereignty indicates absolute as well as sovereign influence above definite terrain along
with its inhabitants. It, furthermore, signifies that no another country has right to enforce
and put into practice laws on the land of an independent country. Sovereignty is, in general,
separated into: Internal and External. Internal sovereignty is decided by the state organ
with the power for putting into effect the authority whilst external sovereignty portray the
responsibility of the country as a lone within the international commune along with the
stance in the direction of the possessor of rights and responsibilities in relation to other
countries within international law.

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3.3.3 FIVE MODES TO ATTAIN SOVEREIGNTY

Sovereignty is usually attained in five ways, four of them are acknowledged by the
international law. The first mode is through reconciling to terrain on which no one had
formerly asserted rights for sovereignty. The second method is associated with the foremost
and looks forward to accomplish sovereignty through the identical exercise for a longer
epoch on the land exclusive of another country having difference of opinion with regard to
right. Separation, the third approach, by which sovereignty can be accomplished, however,
it necessitates on the way to be carried out in harmony with the country in which this
broken up area has been fraction of. As a result, the relocate of the rights from one to
another independent is completed by such means that the contemporary developments
along with the arousal of the thought for self determination enforce the new-fangled
autonomous to achieve the approval from the populace whose terrain desires sovereignty
ahead of obtaining it. The next one out is not well thought-out as a officially authorized
approach for accomplishing the sovereignty for the reason that it is relied for attaining
what is pronounced as unlawful by the United Nations. The last category of attaining the
right for sovereignty above definite terrain proviso it is recognized as a supplementary
division of previously existing area through a mode of natural augmentation akin to
sedimentation or else volcanic actions.

3.3.4 TERMS “DE JURE” AND “DE FACTO” RECOGNITION OF STATES

Taking into consideration that the international law is a dynamic subject for analysis, the
states can be separated into two: de jure (existing in accordance with the law) and de
facto (existing in actuality) based on the detail of the statehood characteristics they possess.
De jure states are those that are satisfying a few stipulations of statehood except all three.
For instance, a state has a terrain as well as populace except full sovereignty above them.
De facto state is well thought-out to be the one that possesses a territory, population along
with sovereignty nevertheless be short of a lawful acknowledgment by other countries.
This frequently takes place if a de facto state has been fraction of another state formerly
that is against its sovereignty. There are numerous cases in point of de facto states including
the case of Taiwan and People’s Republic of China along with Somaliland and Somalia
amongst others.

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3.3.5 RECOGNITION OF STATES WITHIN INTERNATIONAL LAW

Till now, there is not exact regulation according to which one country turned out to be
globally acknowledged along with has the right of statehood as well as right to participate
in the international affairs. Various endeavours has been made on the way to institute
definite widespread decisive factor for attaining the abovementioned statuses, however,
no criteria has become triumphant on the way to be avowed as appropriate by every
country. In this regard, two theories need to be discussed here. The foremost one is the
Declarative Theory of statehood that derived from the Montevideo conference which
held that the political subsistence of one country is autonomous from its acknowledgment
by other countries. This theory alleged that for attaining statehood, the subsequent four
constituents required to be incorporated: territory, population, sovereign authority along
with the capability to administer the preceding three. It can be said here that the most part
of the characterization is derived from the Treaty of Westphalia which indicates that it is
not a originality within international law, nevertheless, an existing criterion which though
has been documented but not completely acknowledged and put into operation. On the
other hand, International law embraces Constitutive Theory of statehood. It observes the
acknowledgment of one country by other states as influential in obtaining statehood as
well as position of a subject matter of international law in the direction of a new state. L.
Oppenheim too stated that a country does not subsist until it is acknowledged by other
country. It can be argued here that the attainment of sovereignty along with intercontinental
lawful subjectivity of a country is officially relied on its global acknowledgment that is
ultimately based on the determination of other states.

3.3.6 THE RULES OF INTERNATIONAL ORDER AND RECOGNITION

OF STATES

With the classification of the states into two: de jure states and de facto states, both these
subsist as modes of acknowledgment. De jure recognition point towards having an official
lawful act - a diplomatic memo, law or else pronouncement time and again in the parliament,
by the administration or else head of state after which a certified document is in print on a
acknowledgment of one country over another. This means is uncertain, furthermore, is not
open for analysis. The second technique de facto entails the institution of political, economic
in addition to other sorts of associations. The differentiation amid both lies in the official

252 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
lawful document which ends with rights along with obligations, at hand in the foremost
case, however, not in the subsequent one. De facto acknowledgment is frequently used in
order to steer clear of interruption of two-pronged associations with a different country,
however, as well on the way to put into practice authentic acknowledgment of the country.
The approaches of relationships amid two countries that can be witnessed as strides in the
direction of recognition are: the institution of diplomatic dealings, the visiting of head of
state at the realm which necessitates acknowledgment, mutual accords amid both states
along with the recognition of the passports of this state that is accepted by the existing
country. Mexican Minister of Foreign Affairs, Genaro Estrada introduced a third set of
guidelines, in the thirties of the twentieth century, in favour of recognition of states. The
third principle demotes to be familiar with countries rather than governments. Consequently,
if the foremost country has acknowledged the country where unconstitutional alteration of
government has taken place, they will not re-examine the pronouncement for
acknowledgment based exclusively on the transformation of the government. Nevertheless,
there is dearth which left the space for manoeuvring if there is a genuine requirement to re-
examine collaboration with the state in which the alteration has taken place. Furthermore,
an exceptional form of acknowledgment known as “Collective recognition of states” can
happen all the way through general recognition of membership of a state within the regional
as well as global associations by means of universal approval of the affirmation at the
worldwide forum or else through an official course of action within the bodies of the global
organization. The acknowledgment of a country globally is portrayed through its
partisanship in the United Nations. With the partisanship at this world association, each
quandary concerning the sovereignty along with independence of any state is being
eradicated.

3.3.7 INDIVIDUALS WITHIN INTERNATIONAL LAW

During the twentieth century, particularly subsequent to World War II, the evolutionary
augmentation along with expansion of the International lawful arrangement has sourced a
momentous augment into the significance of compassionate standards within the course of
improvement of International laws. The largely indispensable purposes of the International
commune are the safety of the independence as well as dignity of every one along with to
bring to an end every kind of violent behaviour. The endeavour and purposes of the

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Universal Declaration of Human Rights along with UN Charter have well thought-out
admiration for Fundamental with Human rights as their main concern which is introspective
beneath its variety of provisions and articles, furthermore, is a fundamental element of jus
cogens.

Within international law, individuals take account of humans, foundations along with officially
authorized commercial enterprises. Despite the fact that not each and every one individual
have the identical rights, it is well thought-out in a broader nous. Prior to 1945, international
law possibly will be on familiar terms with individuals as a subject however still didn’t
grant rights and duties. In an outline, for centuries, International law regards individuals in
an abstract sense. Moreover the rationale was that international laws are commandments
amid states, furthermore, individuals are the populace of states, for that reason, individuals
were distinguished as objects. They were not measured proficient on the way to have
rights along with duties beneath international law. nevertheless, subsequent to the first plus
second World wars, the global community mulled over the necessitate as well as prospect
of distinguishing the lawful accountability of an individual underneath international law,
moreover, construct them subjects of international regulation. Even at present, individuals
are perceived as merely partial subjects of international law because states still stay on as
the overriding subject of international law.

3.3.8 LEGAL POSITIVISM WITH REGRAD TO INDIVIDUALS

Legal positivism has offered, for an elongated period, the common theory for understanding
international law. The positivist characterization of international law is chiefly stranded
characteristically on a subject-based demarcation amid international as well as municipal
rules plus regulations. Positivism observed international laws as a set of regulations with
states as subjects. Municipal law is, by and large, supposed as pertaining to individuals
who are subjects of a particular country.

Earlier than positivism, there was no any kind of hypothetical perseverance that the set of
laws of the international commandments pertained simply to states. William Blackstone
has revealed the widespread opinion of the middle eighteenth century by considering both
individuals along with states as appropriate subjects of international laws. He portrayed
no separating line which afterwards appeared to be labelled public and private international
law. Blackstone differentiated his law of nations from erstwhile types of rule on the basis

254 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
of its sources, moreover, not on the universal foundation of its subjects. He saw the
regulations of the international laws or commandment of nations as widespread, originating
either from natural righteousness or from the exercise of countries. Municipal set of laws,
on the other hand, originated from a lone country.

Jeremy Bentham, in the year 1789, coined the word international law, furthermore,
characterized the international laws which recount the reciprocated transactions amid self-
governing countries, in addition, wrapped up that states are the one and only subject of
the international regulations.

Joseph Story and John Austin, early nineteenth-century, positivists observed that the
individual was an unacceptable subject of international law. Joseph Story produced private
international law to correspond public international law of Bentham as Public international
law thought to impinge on intercontinental affairs of countries whereas private international
law contracted with global issues involving individuals. John Austin put emphasis on that
for the reason that public international law declared on the road to standardize the affairs
amid sovereign countries as sovereigns are self-determining, in addition, possibly will not
be standardized by whichever exterior authority, further, international law was just a kind
of affirmative morality and not actually a regulation.

Legal positivism had changed eighteenth-century law of states into public and private
international law, a commandment widespread to individuals along with countries with
former being believed on the way to be relevant towards states whilst the latter en route
for individuals. The positivist description of international laws had a mammoth impact on
the contemporary discernments with reference to both the individual along with international
law. With barely a few exceptions, the presumption discards the concept that individuals
are apt subjects of public international law.

3.3.9 VIEWS OF SCHOLARS

There are numerous observations on the scope as well as character of the arrangement of
the individual within international law. Opinions show a discrepancy from entirely discarding
the individual as the international subject in the direction of the acknowledgment of the
individual as the merely subject of international law. The declaration of the individual as
the subject of the international law appeared at the closing stages of the nineteenth century

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and it put on considerable credence subsequent to World War II. There are countless
grounds emphasizing the individual as the international persona which are primarily stood
on deliberation akin to the pre-eminence of international law above indigenous
commandments, undeviating directive by the international law above the rights as well as
duties of the individual, progressive advancement of the international lawful command,
character of international law, mounting amalgamation of compassionate values and ideas.

George Scelle, a French scholar, in his observation, well thought-out, a state as a fiction
and individual as the just genuine subject of international law. Several scholars criticised
this analysis. Wolfgang Friedmann remarked that it may perhaps be understood in a ethical
and metaphorical manner rather than realistic and officially authorized manner. Humphrey
Waldock, as well, condemned by saying that this observation dispose of the regulation
meant for philosophy.

There is division of outlooks on the subject of the individual beneath international law.
Hersch Lauterpacht correlated international law with the want as well as acknowledgment
of individual lawful character within human rights along with compassionate facets. He
declares that the conservative place of the individual has transformed by definite progress
which end resulted in underpinning the individuals on the road to preserve their rights
ahead of intercontinental tribunals along with commanding commitments unswervingly
beneath international law. He, furthermore, argues that individuals are the object of
international regulation does not indicate that they are not the direct subject.

Hans Kelsen is, in addition, concerned to individual character underneath international

law. Despite the fact that he distinguishes the universal regulation concerning the state
being the subject of international law, furthermore, he articulates with reference to wide-
ranging exceptions that held individuals legally responsible beneath international law on
behalf of a infringement of a regulation of conduct enforced by international rule itself.

On the subject of the recognition of the place of an individual beneath international law,
Wolfgang Friedmann has made an assessment of the estimations of scholars. He alleged
that Lauterpacht and Jesup are well conscious of the stringent lawful sense; the individual
confines cannot be a subject matter of the law of nations with the exception of extremely
explicit and specific restrictions along with for exceptional intentions. As a result, they
have strained a division amid the individual as the focus of enforceable claims on the

256 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
intercontinental echelon in addition to the individual as the recipient of a structure of
international law within which states are the subjects as well as only actors nevertheless
they are focussed on the way to act on behalf of the human being.

These scholars believe in the monistic doctrine of international law, however, those scholars
who don’t consider it is additional cynical in relation to the individual as the subject matter
of international laws. Oppenheim discards this proposition in view of the fact that the
commandments of nations are the rules of states only; accordingly, states are the one and
only subject of the international laws. Waldock and Friedmann, in addition, discarded the
proposition subsequent to recognizing the progressive enlargement of individuals along
with their rights within international law. Brownlie disapproves the individuals as the focus
of the international laws by arguing that it would connote to recognize the rights which
donot subsist.

Schwarzenberger, a non-monist articulates that the individual character is merely a subject

of specifics, moreover, not of principle. He believes the establishment of regulations of
every character amid permitted states by means of a concurrence neither public policy
nor jus cogens, consequently, permitting the countries on the road to have unrestrained
discretion. Myres McDougal alleges that most important authority approaches from nation-
states, as a result, other members should take steps all the way through state along with
state policies whilst Rosalyn Higgins intends to discard the conception of the subject
matter of international law on the whole.

3.3.10 RESPONSIBILITY OF INDIVIDUALS

Conventionally, individual conscientiousness was not acknowledged underneath

international law with the exception in restricted cases akin to piracy. It was merely in the
Twentieth century, moreover, particularly subsequent to World War II, the evolutionary
expansion as well as enlargement of the International officially authorized arrangement has
caused a noteworthy augment in the significance of Humanitarian principles in the course
of action of growth of International Laws.

The consultative judgment specified by the Permanent Court of International Justice in the
case of Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Officials
who have Passed into the Polish Service, against the Polish Railways Administration),

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Advisory Opinion,1928 P.C.I.J. (Ser. B) No. 15, (March 3, 1928) Permanent Court of
International Justice where the court alleged that an exemption to the common customary
regulation that individuals are not subjects of International Law can manage to survive
barely where the objective of parties was to just take up an agreement which generates
rights as well as obligations for the individuals which are competent sufficient of being
imposed by municipal courts. The PCIJ, moreover, put emphasis that such intent be required
to have been articulated and not inferred from the accord seeing that it is exclusion to a
wide-ranging regulation. Abass held that the courageous stride taken by the PCIJ into the
Danzig case has contributed towards the International Law orientated in the direction of
distinguishing individuals underneath International Law, even if it underwent foremost in
Criminal law prior to expanding it to human rights.

In the year 1946, United Nations General Assembly authorized them to turn out to be
component of the International Law. Keeping in mind the individual accountability, the
Assembly, in addition, assured that genocide was a misdemeanour beneath International
Law which was, furthermore, regurgitated into the Genocide Convention, 1948. This
arrangement was, as well, restated by the Draft Code of Crimes against Peace and Security
of Mankind under article 3 which endow individual conscientiousness for offences along
with chastisement according to the severity of the misdeed.

Subsequent to the Second World War, International law happened to, furthermore,
concerned with individuals inside the subject of human rights along with the fundamental
freedoms. The Charter of the UN commenced this trend in the year 1945 by entitling
member states on the way to scrutinize human rights as well as fundamental freedoms for
individuals along with populace. In the Reparation for Injuries Suffered in the Service of
the United Nations, 1949 I.C.J. 174, the court alleged that intercontinental rights along
with duties are an important component as well as foundation of being an worldwide
persona. It was, furthermore, alleged that the United Nations Organization was the subject
matter of international law, where it is proficient on the way to take legal action for the
justification of its concerns. Subsequent to which, a number of conventions have ended up
in the direction to characterize fundamental freedoms as well as human rights which persons
and populace are permitted to in addition to guarantee their reverence and security. These
conventions, moreover, take account of the International Covenant on Civil and Political

258 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
Rights (1966) along with the International Covenant on Economic, Social and Cultural
Rights (1966).

Individual accountability was, in addition, aground with reference to the serious violations
of the Four Geneva Conventions (1949) along with the Additional Protocols I and II
(1977) which relates with armed variances. It, furthermore, escorted on the road to two
definite intercontinental war misdemeanour tribunals being time-honoured. One for earlier
Yugoslavia in the year 1993 along with a different in 1994 for Rwanda on the way to act
against the individuals accountable for the severe and most important infringements of
International Humanitarian Law perpetrated within the region of both these states. The
Rome Statute of the International Criminal Court was accepted in the year 1998 at the
United Nations Diplomatic Conference. The Statute giving way the some degree of authority
of the Court to the mainly grave offences of apprehension of the worldwide commune as
intact which are the wrong of genocide, the offence of antagonism, misdemeanours adjacent
to humankind and battle misdeeds.

Even though, as a broad-spectrum rule, individuals are deficient in position to affirm

infringements of the above treaties in the dearth of the objection by the nationalized state.
Apart from the above, a broad variety of other treaties that have authorized the persons
on the way to have undeviating entrée to international courts along with tribunals are
American Convention on Human Rights (1969), the European Convention on Human
Rights (1950), the International Convention on the Elimination of All Forms of Racial
Discrimination (1966), as well as the Optional Protocol to the International Covenant on
Civil and Political Rights (1966).
In summing up, it would not be erroneous to articulate that the responsibility of individuals
has considerably augmented; moreover, they are being acknowledged as partakers and
subjects of this commandment. This has happened largely all the way through the
development of Humanitarian as well as Human rights regulations approaching mutually
with the progression of the Traditional International Law. Persons at present have a type
of officially authorized character beneath International Law as they are approved with
assured rights along with definite obligations unswervingly below International
commandment. International Law is currently relevant to associations of States with

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individuals in addition to definite interrelations amid persons themselves where such
relationships engross issues of intercontinental concern.

3.3.11 PRESENT POSITION OF INDIVIDUALS WITHIN INTERNATIONAL

LAW

Subsequent to the general idea of these developments, various conclusions that can be
drawn are. Foremost, it is, by and large, acknowledged that the capabilities of states as
well as individuals are of a diverse nature and extent. Secondly, it is, moreover, agreed by
the mainstream that a person’s competence is relied on an agreement which necessitates
the approval of states, also, it merely subsists for a few extraordinary and particular cases.

3.3.12 NATIONALITY

Nationality is the lawful standing which a person attains by his partisanship of an autonomous
political commune, which agrees on his rights as well as commitments at international law.
In law, nationality demotes to the partisanship of a nation or an independent country along
with the political rights as well as other benefits escorted with it. E.g. American Indians
were referred to as non-citizen nationals before the Native American Citizenship of 1924
was passed. Time and again, perplexed with citizenship, nationality is a dissimilar thought.
Individual persons, corporations, ships in addition to aircrafts, every one of have a nationality,
however merely intended for lawful reasons.

The United Nations Universal Declaration of Human Rights (1948) assured that nationality
is an undeniable right of each human being, furthermore, no one shall be dispossessed of
his/her citizenship. It is nationality which fetches every individual underneath the influence
of international laws.

3.3.13 MAIN THEORIES RELATED TO NATIONALITY

3.3.13.1 ACTIVE NATIONALITY THEORY

Usually considered non-controversial, it declares that a country benefit from the right to
employ its jurisdiction over its nationals, even while they are in an overseas country. When
complying with private International commandments, the national regulations constantly
has a propensity to pursue a person ahead of the confines as far as his personal position is
concerned. Consequently, the court be obliged to necessarily pursue International laws,

260 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
at the equivalent instance, make definite that they are not infringing domestic police
regulations or any civic order.

Whilst referring in the direction of criminal regulations, the principle point towards authority
to adjudicate. Whether a country can adjudicate a misdemeanour perpetrated in a foreign
country? This turned out to be even a higher matter whilst the criminal changes his/her
nationality. An illicit may perhaps break away from alleges with the change of their nationality
subsequent to the commitment of the misdeed.

An act may perhaps be an offence in one country whereas in another country, it is just
another each day goings-on, consequently, making a person protected from any sentence.
For instance, in Arkansas, a person cannot take part in more than 25 free sports event
proviso he persists to be triumphant, but this possibly will not be the case somewhere else
within the world.

It is, furthermore, an exceedingly disputed matter whether a country can pursue its own
criminal jurisdiction resting on the base of the nationality of the charged. The Supreme
Court of United States along with a number of authors has lifted up their apprehensions. It
is a worry of international law on the subject of how the countries care for their nationals.
Critics to this outlook articulate that it is the responsibility of the country underneath
international laws.

3.3.13.2 PASSIVE NATIONALITY THEORY

A country, at times, presumes extraterritorial control over overseas nationals proviso the
individual who has experienced harms is it’s national. The proposal behind the
implementation of passive nationality is on the way to accomplish the sense of duty of a
country on the road to defend its nationals from the harm endured by them in case the
foreign country not succeeded in the direction to castigate the criminal.

It is still an issue of incongruity whether the nationality of the sufferer along with the
jurisdiction purview have to occur underneath the influence of international law. It is
observed as the mainly antagonistic foundation of extraterritorial influence. Donnendieu
de Vabres, a well-known French Jurist condemned the passive theory alleging that it is
just a means of the influential countries on the way to gratify their power self-centredness
over the weaker countries.

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 261
The prime negative aspect of this theory is that the defendant is unacquainted of what
commandments will be taking place upon him; moreover, it may perhaps be a severe
misdeed within some other country, as a consequence, reckoning this theory reasonably
unreasonable for the defendant.

3.3.14 MODES OF ACQUISITION OF NATIONALITY

Every state along with the International Bodies has put down definite requirements on
how someone can get hold of the nationality of any state. Nationality is attained, on the
whole, generally on these bases:

1. By Birth: In the state in which an individual is born, he acquires the nationality

of that state by birth or else at the instance of birth, an individual gets the similar
nationality which his parents are encompassing. In other words, it can be said
that each country endows with nationality by birth or else descent (being born
to parents who are its nationals). Apart from the above, every individual whose
birth takes place inside territorial confines of a country attain the nationality of
that country (Nationality by birth (jus soli). This standard is pursued by USA,
UK along with various Latin American states.

2. Nationality acquired subsequently: Within the majority of states, nationality

is furthermore obtained through procedure of rule following definite alterations
into the civil standing of a person akin to matrimony, adoption, legitimation,
affiliation along with naturalization.

a. Marriage: Wife mechanically acquires the nationality of her husband’s country

through advantaged naturalization procedures. The Hague Convention on Conflict
of Nationality Laws (1930) put down assured requirements concerning nationality
by marriage. Chapter 3 encompassing articles 8, 9, 10 and 11 of the same
discuss in relation to the Nationality of married women.

b. Adoption: This is also referred to as inter country or else transnational adoption.

This is extremely analogous to any ordinary adoption process within an
intercontinental milieu. By means of the virtue of this appraise, a person or a
couple can be reckoned officially permitted parents of a child belonging to an
overseas country.

262 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
 c. By Resumption: At times, it, accordingly, takes place that an individual possibly
will mislay his nationality because of definite grounds, afterwards, he may possibly
recommence his nationality subsequent to gratifying assured stipulations. In other
words, an individual, who has mislaid his nationality by naturalization or else
other grounds, possibly will get hold of the nationality of the same country yet
again. The acquirement of this sort is called reintegration or resumption.

d. By Subjugation: When a country is overpowered or else subjugated, every

citizen obtains the nationality of the triumphant country. It, furthermore, held
that an individual may perhaps attain nationality whilst a fraction of the terrain of
a country or a country itself is dominated by a different country.

e. Cession: When a country has been ceded in another country, every one of the
individuals of the terrain attains nationality of the country in which their area has
been amalgamated. In other words, as soon as a fraction of the area is
relinquished to a different country in that case every national of the earlier gets
hold of the nationality of the latter country.

f. Registration: This course of action is different from one country to another

country.

g. By Naturalization: - By naturalization too nationality can be acquired. Whilst

an alien living within a state acquires the nationality of that state it is called
naturalization. In Nottebohm case-1955, it was alleged that a country has no
commitment in giving way nationality in the direction of a person through
naturalization proviso that individual has no associations with that country. The
court put forwarded the authentic as well as effectual nationality principle. If any
human being gets hold of nationality of two countries, subsequently, in case of
disagreement stuck between the two nationalities, the nationality of that country
shall be acknowledged with which the individual primarily has genuine along
with efficient affiliation. Putting it in other words, it can be alleged that whilst an
individual subsists within another country for an elongated period afterwards he
attains the citizenship of that country.

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3.3.15 LOSS OF NATIONALITY

1. By Release: In several states, there are such lawful stipulations that are accessible
by which they endow authorization on the way to liberate their nationals from its
nationality. In favour of this kind of release, an application is indispensable. If the
submission for release is acknowledged, subsequently, the claimant is unconfined
from the nationality of that country.

2. By Deprivation: Time and again, in numerous countries such officially authorized

conditions are accessible by which if a national of that country comes into service of
another country exclusive of the authorization of home country, he would lose
nationality.

3. By long residence abroad: The loss of nationality possibly will take place on the
condition that the person stayed in a foreign country beyond an assured time limit.
Many states have such type of legal provisions which terminates the nationality for the
stay of beyond limit. In other words, it can be said that nationality ends if an individual
inhabits inside a foreign terrain for an elongated epoch.

4. By Renunciation: It may possibly, furthermore, be the reason of loss of nationality,

whilst an individual is having nationality of two or more countries; he has to decide the
nationality of one along with has to relinquish the nationality of other country.

5. By Substitution:-In a few states, the nationality is ended by substitution. An individual

gets nationality of one country in place of other country. In other words, an individual
may possibly acquire the nationality of a country in place of the nationality of a different
country.

3.3.16 THE CONCEPT OF DOUBLE NATIONALITY OR DUAL

NATIONALITY

When more than one state considers a person as its national, it is known as dual citizenship.
Dual citizenship takes place since diverse states have set-up wide-ranging means for
conceding citizenship.

An individual who embraces dual citizenship, by and large, encompass the advantage of
the privileges of citizenship of both states. These privileges can be:

264 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
  Right to hold passports.

 Right to vote.

 Right to residence.

 Right to work.

 Right to come into the country amongst others.

The individual is not only permitted on the way to have the benefit of the privileges, however,
the person is obligated on the road to carry out definite duties akin to:

 Nationalized civil service.

 Subject to the taxation arrangement of the state apart from other duties.

An individual might, at times, hold double nationality owing to a variety of causes akin to
matrimony, naturalization and many more. Largely, the states don’t consent to double
nationality.

3.3.17 STATELESSNESS

Statelessness is a predicament of international law. It possibly will result owing to the

submission of conflicting commandments by countries. It associates to huge adversity
towards a person.

3.3.18 RIGHTS AND DUTIES OF AN ALIEN

Aliens have got no rights within international law on the way to be divulged in the direction
of a country. Admittance of aliens is subject to directive. On right of entry, the aliens
subject themselves on the road to the neighbourhood regulations. Underneath the
international law of accountability, an alien holds the right of shelter by his parent country,
even though the latter is not obligated on the way to put into effect that right.

3.3.19 SIGNIFICANCE OF NATIONALITY

The right of security of diplomatic representatives are existing for the reason that of
nationality. If any country does not hold back an individual of its nationality from such
detrimental accomplishment which is disturbing other countries, in that case, the first country

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 265
shall be accountable to other countries for such deeds of its nationals. Generally, states do
not repudiate to acknowledge its nationals in extradition. One of the consequences of the
nationality is that the country has a right to turn down extradition of own national. Ø By
means of its exercise by lots of States, at the instance of war, the adversary character is
established on the basis of nationality.

3.3.20 NATIONALITY ALONG WITH DOMICILE

Nationality stands for the association of an individual with his state. On the other hand,
domicile symbolizes the abode of the individual. A human being possibly will get hold of
nationality through domicile.

3.3.21 DIFFERNCE AMID NATIONALITY AND CITIZENSHIP

A) NATIONALITY: The authorized connection which subsists amid the nation and
individual. Through nationality, the civil and natural rights of an individual might appear.
Every citizen possibly will hold the nationality of a particular country. An individual who
possesses merely nationality within a particular country may perhaps not enjoy the entire
political rights.

B) CITIZENSHIP: indicates the associations amid the individual and the state
commandment. The rights of citizenship are the one and only apprehension of state law. It
is not obligatory that each and every national may possibly be the citizens of that exacting
country. Citizens are those individuals who have power over complete political rights
inside the country.

3.3.22 EXTRADITION

Extradition is indispensable whilst a person stimulated with a misdemeanour in one country

escapes in the direction of another. In this case, the requesting country asks for its inhabitant
on the way to be dispatched back subsequently he/she can stand trial for their offences.
On the other hand, Asylum is whilst an individual, who is frightened of being indicted in his
domicile country, runs away to a different country for shelter. In the case of Colombia vs.
Peru (1950), it was alleged by the court that they are exclusive. There is either extradition
or else asylum.

266 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
Extradition is the procedure of bringing back an illicit to the state where he has perpetrated
the offence and has run off to another country. Further, it became important to bring that
criminal back to the country where one has committed the crime due to the existence of
dissimilar lawful dealings within different countries. It might be possible that in the country
where an individual has executed the wrong may possibly try in a different way. Furthermore,
it possibly will be the case that criminal had fled away in the middle of lawful trial. Accordingly,
it is indispensable to fetch the illicit back in order to conclude the trial. The substantiation
along with the witnesses is also there in that country. In addition, this is to put a stop to the
movement of intercontinental illicit. A number of criminals skip from one country to another
country executing misdemeanours. As a result, through extraditions, fair dealing can be
carried out by means of fetching them back to the countries in which they have executed
the offence, furthermore, by penalizing them. It is, in addition, very important for that
country on the way to do away with that assured person on behalf of security.

3.3.23 DIFFERENTIATION AMID EXPULSION AND EXTRADITION

After discussing the meaning of extradition, we will now put a light upon the difference
between extradition and expulsion. Extradition and expulsion are two diverse course of
action as stated by the case of Hans Muller of Nuremberg vs. Superintendent Presidency
jail Calcutta and others (1955). The courts, furthermore, alleged that the government
has the right to discard an appeal for extradition. Besides, also have the right to select the
less cumbrous procedure of expulsion on the way to do away with a foreign person from
the country.

On the one hand, extradition takes place when a country appeals in favour of an escapee
to come back. Further, Government is subject towards definite set of laws which includes
treaties, rule of speciality along with double criminality. They, in addition, have the right on
the way to rebuff a demand of extradition. As far as India is concerned, extradition is
administered by the Extradition Act of 1962. On the other hand, Expulsion or Deportation
occurs when a person infringes immigration regulations. As a result, the Government has
the unobstructed right to exorcize. They don’t necessitate giving out a show-cause notice
to the foreign person. Expulsion is administrated by the Foreigners Act of 1946 in India.

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 267
3.3.24 NO TRANSPORTATION OF A POLITICAL CRIMINAL

The inclination of no extradition of political criminals took place at some point during the
French revolution. Subsequent to that, other countries pursued the same. The word ‘political
crime’ has defined neither underneath international law nor by any commission or
organization. Nevertheless, we can say that if an individual carries out an offence with
political intentions, in that case that misdeed can be held to be a political crime. Under this,
we will highlight two cases contrary to each other.

Re Castioni case (1891)

A detainee was accused with the killing of Luigi Rossi. After murder, the criminal run away
from Switzerland to England. The government of England discarded the appeal of
Switzerland for extradition on the pretext that the accused murdered in order to root
political commotion. As a result, it’s a offence of political character and as he was a
political illicit, England was not obligated to repatriate him.

Re Meunier 1894

However, on the opposite, under this case, an escapee who exploded a bomb, in Paris, in
a public place escaped to England. Paris coveted him back but England turned down their
demand to expatriation. The court lined that his objectives were not merely political,
consequently, he had not perpetrated a political offence.

3.3.25 D’ATTENTAT CLAUSE

The d’attentat or the clause Belge argued that assassination of heads of governments
along with states will not be well thought-out as a political offence, furthermore, they can
be repatriated for such a misdemeanour.

3.3.26 RULE OF SPECIALITY

Beneath international law, the principle of speciality declares that an individual who is
repatriated on the way to a country to stand trial for definite unlawful wrongdoings possibly
will be tried merely for those misdemeanours and not for any other pre-extradition crimes.
This rule was regurgitated in the case of U.S. vs Rauscher (1886), which held that he can
simply be tried for crimes which have been criminalized by the pact as well as the
misdemeanour for which transportation has been appealed for.
268 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
3.3.27 DOUBLE CRIMINALITY

The principle of double criminality declares that an illicit can barely be handed over to
another country proviso the misdemeanour one has perpetrated is criminalized by the
regulations of both the countries concerned. For illustration, if an executioner has lope
away from Bangladesh and is secreting within India, then that person can be repatriated
the same as the commandments of both the countries criminalize killer.

3.3.28 POSITION OF THE STATE WITHIN INTERNATIONAL LAW

It is required to be distinguished that the state has no responsibility on the way to repatriate
a person. Nevertheless, there can be an agreement amid those countries that they will
send back any illicit that run away in the direction of their realm plus vice versa. They can,
in addition, willingly transfer an individual devoid of any agreement. States have to maintain
in psyche that for the period of transportation, they must not infringe their personal municipal
commandments i.e. the regulations of their own countries along with intercontinental
conventions.

Nevertheless, countries do not have to bestow the escapee back proviso appropriate
transportation course of action was not pursued. In this regard, we can illustrate the case
of Sarvarkar (1911). Vinayak Donador Savarkar was beneath the guardianship of French
navy. Subsequently, he was repatriated to England. However, England got hold of him all
the way through erroneous expatriation measures. Owing to the infringement of course of
action, the French would like him back. The court alleged that there is no stipulation
underneath international law that states if transportation measures are not pursued, in that
case, the country be required to send him back.

The country can, what’s more, not repatriate citizens of their own state. Consequently, if
a citizen of England arrives to India, furthermore, after perpetrating an offence returns
back towards England, in that case, it became extremely complicated to obtain the citizen
back. They, by and large, make certain that they will penalize the illicit in accordance with
their own regulations.

In Regina vs Wilson (1878), an agreement turned out amid the two states that states will
not repatriate individuals as well as the escapee that will be reprimanded according to
their own commandments.

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3.3.29 INDIA

By and large, every country has its own laws on the subject of the procedure of extradition.
In India, The Extradition Act of 1962 administers the course of action of extradition. It
was amended in the year 1993 by the Act 66.

Section 2(d) of the Act discusses the treaties concerning expatriation, moreover, agreed
to foreign states on the road to make such engagements with India. These treaties are
generally bilateral in character i.e. they are stuck between not more than two countries.
These treaties represent five principles-

 Expatriation of an escapee will take place for wrongdoings lay down by the
agreement.

 The misdemeanour is required to be criminalized beneath the commandments

of both countries, not just one.

 There have to be a prima facie case prepared

 The country should try the unlawful for barely the crime he was repatriated for.

 He has to be tried underneath a just trial.

As a rule, requests for extradition, on behalf of India, can simply be made by the Ministry
of External Affairs and not anyone in the open.

Countries who have an agreement with India can appeal for transportation of somebody
from India. A non-treaty state is required to pursue the measures laid down by Section
3(4) of the Extradition Act of 1962.

According to the folio of The Ministry of External Affairs, underneath are the subsequent
limitations in the direction of extradition-

 India is not ‘obligated’ to repatriate someone unless there is an accord.

 India is not ‘necessitated’ to send back someone unless that wrongdoing amount
to a misdeed beneath the settlement.

 Extradition possibly will be deprived for merely political along with martial
wrongdoings.

270 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
 · The misdemeanour is obliged to make up an offence both in India along with the
state demanding extradition.

· Extradition may possibly be refuted when the course of action set down
by Section 3(4) of the Extradition Act of 1962 is not pursued.

3.3.30 ASYLUM

Asylum is whilst a state provide shelter to persons who are being indicted by a different
independent authority. For the most part, it is their personal administration. Despite the
fact that every person has the right to look for asylum, asylum searchers do not have the
right to obtain it. It ought to be distinguished that asylum deals with immigrants. In other
words, oone can say that with persons who are being put on trial by their own government.

3.3.31 ARTICLE 14 OF THE UNIVERSAL DECLARATION OF HUMAN

RIGHTS

Article 14 of the Universal Declaration of Human Rights is acquainted with the right of
persons on the road to search for security from trials of the self-governing authorities.
Each person can walk off to a different state in order to seek out asylum. This right is,
furthermore, accessible for escapees who have perpetrated political misdemeanours.
Nevertheless, this is subjected to the stipulation that if one’s offence is not in favour of the
doctrine of the United Nations, subsequently, one do not have the right to shelter. It,
besides, be obliged to be illustrated that one has the right on the way to look for asylum
excluding the right to obtain asylum.

3.3.32 TYPES OF ASYLUM

a) Territorial Asylum

Territorial asylum is approved inside the territorial confines of the country offering asylum.
This is mainly frequently brought into play for individuals charged of crimes of political
character including treachery as well as incitement to rebellion. It is required to be noted
that executioners of heads of states, illicit indicted of definite terrorist deeds along with
individuals charged of war misdeeds are several exemplars where one can not be presented
asylum.

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 271
b) Extra-Territorial or Diplomatic Asylum

Extraterritorial asylum demotes to place of safety settled in embassies, legations, consulates,

warships, along with merchant vessels in foreign country, furthermore, is accordingly
arranged inside the terrain of the country from which shelter is wanted.

International law has not documented ambassadorial asylum as a right seeing that
it can be regions for difference of opinion. For case in point, the asylum was approved
towards József Cardinal Mindszenty throughout the rebellion in opposition to the communist
administration in 1956. He turned down to Roman Catholic schools on the way to be
secularized which impelled him to be in detention however he got security from the
administration of the United States meant for 15 years. This sourced big disagreement.

c) Neutral Asylum

This category of asylum is revealed by neutral states during epoch of warfare. These
countries possibly will be well thought-out asylum spaces meant for detainees of war. It
presents asylum on the way to troops of states that are a part of the combat. This is
underneath the circumstance that they are subject to confinement all through the point in
time It is imperative to make a note that whilst troops may perhaps be authorized, air
forces of such states cannot land within these regions moreover will be subjected to
questioning.

3.3.33 ASYLUM IN INDIA

Diverse states have dissimilar commandments on the subject of asylum-seeking. India has
regulations concerning immigration in addition to asylum-seeking. The contemporary ruling
with asylum seeking that has sourced the major debate is the Citizen Amendment Act with
regard to expatriates.

Organisations akin to the UNHCR facilitate persons list for asylum. Individuals who
desire on the road to submit an application ought to approach for registration in the company
of every one of your family members who are here within India. According to them, the
subsequent documents are indispensable-

 Case figures of immediate family associates who have been indexed with UNHCR
(in India or somewhere else),

272 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
  Passport/nationality document/identity certificate,

 Birth certificates/vaccination cards intended for children,

 Marriage/divorce/death certificates,

 Any other documents you possibly will have.

The applicant will be asked on the way to give explanation why you left your state
along with why you cannot depart back on a form. On the same, they will be questioned
by a Registration Officer.

3.3.34 LET US SUM UP

In the end, we can conclude that, it is reasonably apparent, at the present that International
law be on familiar terms with the rights and duties of persons. It can be wrapped up that
whilst states have appropriate international officially authorized character; individuals acquire
a restricted locus standi within International law. Nevertheless, it is, as well, accurate that
the human being has more than a decades advanced from an illicit kid to a well-accepted
family affiliate within International law which demonstrates the degree of the alteration of
the lawful order. It has considerably facilitated in elevating apprehension and standards of
Humanitarian values.

More to the point, Nationality, underneath international law, is the officially authorized
affiliation which survives amid the state and the human being. Citizenship, on the other
hand, represents the relationships stuck between the individual and the state commandment.
Citizens are the individuals who have power over complete political rights of a country.

Furthermore, we have talked with reference to the differentiation amid extradition and
asylum, their course of action, the variety of regulations they are subjected to, along with
how they are implemented within India. These courses of action occupy a large component
into intercontinental associations.

3.3.35 Exercise

1. Discuss various theories related to nationality ?

2. Discuss various modes to acquire nationality ?

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 273
3. Explain the conditions that lead to loss of nationality ?

4. Briefly explain the concept of double nationality or dual nationality ?

5. What are the rights and duties of an alien ?

6. What is the difference between nationality and citizenship ?

7. What is extradition and how is it different from expulsion?

8. Explain India's Extradition Act of 1962 ?

9. Write a short note on Asylum and its types ?

274 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
M.A. Political Science, Semester IV, Course No. 403, International Organisation & Law
Unit – III: International Law: Meaning, Sources and Subjects

3.4 ROLE AND PRIVILEGES OF DIPLOMATS

Mamta Sharma

Structure

3.4.0 Objectives

3.4.1 Introduction

3.4.2 Law on Diplomatic Agents

3.4.2.1 Classification of Diplomatic Agents

3.4.2.2 Functions of Diplomatic Agents

3.4.3 Basis of Diplomatic Immunities and Privileges

3.4.4 Privileges and Immunities of a Diplomat

3.4.5 Let Us Sum Up

3.4.6 Exercise

3.4.0 Objectives

After going through this lesson, you will be able to know:

• The laws of diplomatic agents, classification and functions of the diplomatic agents.

• Various basis of diplomatic immunities and privileges.

• Constitutional and legal provision regarding privileges and immunities of a diplomat.

3.4.1 INTRODUCTION

Nowadays, one of the most crucial means for achieving the state's foreign policy objectives

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 275
through designated officials is diplomacy. The state as a subject of international law in
relations with other states is represented through its own bodies. Therefore, through
diplomatic representations, states interact with one another, watch out for their interests,
notify one another, and advance ties between them. Unquestionably, they have long been
accorded certain rights, or have benefited from certain privileges and immunities, in order
to successfully perform their tasks and activities. In this study, we would therefore attempt
to provide information on the facilities provided to representatives of diplomatic mission in
the states where they are accredited, freedom of movement and communication, privileges
and immunity of members of the diplomatic mission, as well as cases from the practice of
international law, keeping in mind that the foreign service of a state is composed of a large
number of members who make up its diplomatic mission and who enjoy privileges and
immunities.

The highlight of the twentieth century, in terms of diplomatic privileges and immunities,
was the adoption of the Vienna Convention in 1961,559 a true international statute of the
diplomatic agent.560 Prior to this treaty, the diplomatic privileges and immunities have not
been divided into privileges and immunities of the diplomatic mission and personal privileges
and immunities of the diplomatic personnel, but derived by leading jurists from privileges
and immunities of heads of state, being considered, as continuation of their immunities.
Diplomats are the persons who reside in foreign countries as the representative of the
country by whom they are despatched. They act as a link between the country who
despatch them and by whom they are accredited. Therefore, they perform the act of
diplomacy, which in International Law means by which the States maintain or establish
mutual relations and carry out their legal or political transactions based on their foreign
policies. Act of diplomacy may be performed by the head of State, Government, Minister
of Foreign Relations or by and by diplomatic agents.

3.4.2 Law on Diplomatic Agents

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

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

276 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
institution and certain rights and duties almost identical in nature were provided to the
diplomats.

The Congress of Vienna of 1815 for the first time codified customary rules of International
Law on ranks of diplomatic representatives. The institution of diplomacy continued to
develop after 1815 and after the establishment of the United Nations, the task for codifying
for the law relating to diplomatic agents was given to the International Law Commission.

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

3.4.2.1 Classification of Diplomatic Agents

Diplomatic agents accredited to a State differ in class. The Vienna Convention on diplomatic
relations, 1961 under Article 14 divides diplomatic agents into three classes. They are:

• Ambassadors accredited to head of State.

• Envoys, ministers accredited to the head of State.

• Charges d' Affairs accredited to Ministers of Foreign Affairs.

3.4.2.2 Functions of Diplomatic Agents

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

• Representation: Diplomatic agents represent the policies and beliefs of State

by which they are dispatched to the state where they are accredited. The function
of representation is primarily entrusted to the head of the mission. Oppenheim, in
his book, says that "diplomats are the mouthpiece of the head of his own State
and the Foreign Minister for communication to be made to State where they are
dispatched.

• Protection: Diplomatic agents protect the rights and interests of sending State
and also of nationals, within the limits allowed by the municipal law of respective

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 State. The limit of diplomats is not prescribed by the International Law but by the
municipal law of the State.

• Negotiation: Negotiation is the most important function which is performed by

the diplomatic agents. Generally, the head of the diplomatic mission negotiates on
various aspects of on behalf of the sending State with the State to which they are
accredited in order to maintain a friendly relationship. Diplomatic agents are
required to communicate the outcome of the negotiation to sending State from
time to time,

• Observation: Diplomatic agents are required to observe those events and

happenings which take place or which may take place in the State where they are
accredited, especially those which may affect the interests of the State by which
they are sent. After making observations of the events, they are required to make
periodical reports to the government of sending State.

• Promotion of Friendly Relations: Diplomats are required to promote friendly

relations between the sending State and the receiving State. They also have the
function to develop the social, cultural and economic relations between the two
States.

• Consular Functions: Vienna Convention lays down that diplomatic agents can
also perform consular functions which may be allotted to them from time to time
such as death, birth and marriage registrations of the subjects of home State,
issue of passports etc.

3.4.3 Basis of Diplomatic Immunities and Privileges

International Law confers diplomatic immunity on diplomats from the exercise of jurisdiction
by receiving States. The principles governing diplomatic immunities and privileges are
among the most ancient and universally recognised principles of International Law.

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

• Extra-territorial Theory: This theory is also known as the fictional theory. According

278 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
 to this theory, diplomatic agents are considered not be within the territorial
jurisdiction of the State to which they are accredited, but to all times within that of
the sending State. Extra- territorially of diplomatic agents means that though
diplomats physically present upon the soil of the country to which they are
accredited but they remain for all purposes on the soil to which they represent.

• Representational Theory: According to this theory, diplomatic agents are regarded

as personal representative of the sovereign of the sending State. Therefore, they
are given the same degree of privileges and rights which are given to the head of
sending State.

• Functional Theory: According to this theory, diplomatic agents are given immunities
because of the nature of their functions. The duties which the diplomats perform
are far from easy. In other words, their actions of duties are of typical or some
special nature. They are allowed immunities from the legal and other limitations of
the State to which they are accredited to effectively perform the tasks they are
allotted.

3.4.4 Privileges and Immunities of a Diplomat

Vienna Convention on Diplomatic Relations of 1961 lays down the different rights and
privileges which are granted to diplomatic agents. They are as follows:

• Inviolability of Diplomatic Agents: Diplomatic agents are inviolable is a principle

which is recognized in International Law much before the adoption of the
Convention of 1961. Article 29 of the Vienna Convention lays down that "the
person of a diplomatic agent shall be inviolable". He shall not be liable to any form
of arrest or detention, and the receiving State shall treat him with all due respect
and should take all appropriate to prevent an attack on his personal freedom and
dignity.

• The Government of receiving State by virtue of Article 29 is under a duty to

conduct to abstain from any form of conduct which is injurious to the diplomatic
agents and also under a duty to prevent such injurious conduct if attempted by
another.

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This does not mean that the immunity given to the diplomats is absolute. The receiving
State has the power to arrest or detain the diplomatic agent in exceptional cases For
instance, a drunken diplomat with a loaded gun in a public place can be arrested or if a
diplomatic agent commits an act of violence which disturb the order and peace of receiving
State in such a manner that it becomes necessary to put him under restraint for the purpose
of preventing similar acts.

Inviolability of Staff of Mission

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

Thus, administrative and technical staff only enjoys personal inviolability (Article 29)
inviolability of residence (Article 31) immunity from criminal jurisdiction (Article 31(1))
exemption from certain taxes and duties (Article 34) and immunity from civil and
administrative jurisdiction exists when they are performing service duties (Article 31(1).

Para 3 of Article 37 of the Vienna Convention provides immunities to the service staff if
they are not the nationals or permanent resident of receiving State. It provides immunity to
the acts performed in course of their duties, exemption from taxes and duties on emoluments
received and exemptions on social security provisions.

Inviolability of family members

Vienna Convention of Diplomatic Relations in its Article 37 Para 1 states that "immunities
and privileges to the family members of diplomatic the diplomatic agents having diplomatic
ranks may be given, if firstly they are not nationals or permanent resident of receiving
State and secondly, so long as they form the part of household, i.e. they live under one
roof".

So if the son of a diplomat is studying in any University of receiving State and just come on
weekends to meet his parents, then he will not be provided with any immunity as he is not
forming the part of the household.

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o Inviolability of premise: Article 21 of the Vienna Convention lays down that, "a
permanent diplomatic mission needs premises to operate and receiving State must help
the sending State to obtain the premises form mission". The sending State has the right to
use its flag and emblem on the premises ( Article 20). Article 22 of the Vienna Convention
of Diplomatic Relations stipulates the customary rule of International Law by stating that
"the premises of the mission shall be inviolable". Further Article 30 also provides that
"private residence of a diplomatic agent shall also enjoy inviolability". The agents, police
or any officer of the receiving State are not allowed to enter the premises without the
consent of the head of mission. However, the inviolability of premises is also not absolute
it can be compromised in certain exceptions. Article 41 of the Convention itself lays
down that "premises of the mission should not be used in any manner as incompatible with
functions of mission or by rules of general International Law". So, if the inviolability of
premises is abused then the receiving State should not bear it passively and can take all
the necessary steps to stop the actions of agents.

o Inviolability from being a witness: Diplomatic agents are completely immune

from being a witness in any civil or criminal or administrative court of State to
which they are accredited. He is also immune from giving evidence before the
Commissioner. However, they may appear before any court by waiving of their
immunity. Article 31(2) lays down that "diplomat agent is not obliged to give
evidence as a witness".

o Immunity from taxes and customs duties: Article 34 of the Vienna Convention
lays down that, "diplomatic agents shall be exempted from all dues and taxes,
personal or real, national, municipal or regional". Initially, before the convention,
this right was given to the agents due to Courtesy but Convention has incorporated
it with more precise definition.

o Immunity from inspection of Personal Baggage: The bag used by the

diplomatic agents for sending articles, letters or documents to the sending states
or any other missions of its State to abroad be known as a diplomatic bag. Para
3 of Article 27 of the Vienna Convention lays down that "diplomatic bag should
not be opened or detained'. But according to Article 36 Para 2, this right is not
absolute. It lays down that, "general practice of exempting the diplomats' personal

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 baggage from a custom inspection is qualified by the provision that inspection can
be conducted in presence of a diplomatic agent or his agent if there are serious
grounds for suspecting that the article is not for official use".

o Freedom of Communication: Diplomatic agents are free to communicate any

information for official purposes to the State by which they are accredited. Article
27 of the Vienna Convention lays down that "the freedom of communication also
involves the use of code messages and couriers".

o Freedom of movement and travel: Article 26 of Vienna Convention empowers

diplomatic agents to move and travel in the territory of receiving State but subject
to laws and regulations of International Law and rules made by receiving State
concerning security zone.

o Right to worship: Under Article 3 (1) of the Vienna Convention diplomatic

agents have the right to worship any religion they like within the mission premises
or residence. But they cannot invite any nationals of the receiving State to take
part in the worship and have no right to preach their religion in receiving State.

o Immunity from the Local Jurisdiction: Diplomatic agents enjoy immunity from
the jurisdiction of local courts. The immunity extends both to criminal as well as
civil jurisdiction.

Article 31, paragraph 1 of the Vienna Convention provides that a diplomatic agent shall
enjoy immunity from the criminal jurisdiction of the receiving State. Thus, receiving State
has no right to prosecute and punish diplomatic agents. Immunity of diplomatic agents
from civil and administrative jurisdiction also a well- recognized principle of International
Law.

3.4.5 Let Us Sum Up

Diplomats are provided immunity to effectively perform their function because of the typical
nature of functions and diplomat being the representative of the head of State. All the
rights and immunities provided to the diplomats are not absolute they can be compromised
within certain exceptions. At present, the institution of diplomatic representatives has become
the principal machinery by which intercourse between States is conducted.

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3.4.6 Exercise

1. Define the laws of diplomatic agents?

2. Discuss the classification and functions of the diplomatic agents?

3. What are the various bases of diplomatic immunities and privileges?

4. Explain in detail the Constitutional and legal provision regarding privileges and
immunities of a diplomat?

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M.A. Political Science, Semester IV, Course No. 403, International Organisation & Law
Unit – IV: State Recognition, Sovereignty, Succession and Responsibility

4.1 RECOGNITION OF STATES: THEORIES,

MODES AND CONSEQUENCES
- A. Lalitha
STRUCTURE
4.1.0 Objectives
4.1.1 Introduction
4.1.2 Recognition of State
4.1.3 Recognition of State: Major Theories
4.1.3.1 Constitutive Theory
4.1.3.2 Declaratory Theory
4.1.4 Types of Recognition
4.1.4.1 Recognition of a State involves Recognising its Government
4.1.4.2 Recognition of Belligerency
4.1.4.3 Non-Recognition
4.1.5 Modes of Recognition
4.1.5.1 De facto and de jure Recognition
4.1.5.2 Express and Implied Recognition
4.1.5.3 Conditional Recognition
4.1.5.4 Collective Recognition
4.1.5.5 Withdrawal of Recognition
4.1.6 Consequences of Recognition
4.1.6.1 International Consequences
4.1.6.2 Internal Consequences
4.1.7 Let Us Sum Up

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4.1.8 Exercise

4.1.0 OBJECTIVES

In this lesson you will study about various ways in which a state can be recognized. After
going through this lesson, you will be able to:

• comprehend the two major theories relating to the State Recognition;

• understand Modes of State Recognition; and

• learn the International and Internal Consequences of Recognition.

4.1.1 INTRODUCTION

Despite the rise of non-state actors, States remain to be the most significant members of
international community. Of all the actors states possess the broadest range of rights,
duties and capabilities. Statehood is crucial for nations, peoples and other political
communities. Unless an entity is accorded recognition as a state by a sufficiently large
number of other states, it cannot realistically claim to be a state with all the corresponding
rights and obligations including the participation in International and Regional Organizations.
Thus the questions about the Statehood, rights and duties of the States occupy a central
position in international law.

4.1.2 RECOGNITION OF STATE

Recognition of state is thus a requirement for becoming a part of world community. As

Gideon Boas maintains, States seek recognition from other states because legal recognition
has the ability to confer legitimacy and make it a subject of international law. Recognition
is thus sought by both new state entities seeking admission into the world of nations and
also by the states that have acquired by occupation or annexation, some new piece of
territory in the belief that the grant of recognition will strengthen its claims.

States seek recognition mainly because their legal status as a state is tied to the willingness
of other states to recognize and deal with it and appropriate recognition is the most straight
forward means of achieving the required status of statehood. Recognition by a state is a
manifestation of the will of a state whereby it expresses the legitimacy of the existence of

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another emerging state entity. Even though there is a general view that recognition is purely
a question of policy and not of law, in practice political and legal recognition work in
unison and unless an entity is accorded with recognition as a state by large number of
other states, it cannot participate as a state in international law.

Recognition was traditionally considered to be a discretionary function exercised unilaterally

by a state, officially acknowledging the existence of another state or government or
belligerent state. However, beginning from the early 20th century, the sovereign entities of
international community also used to justify the existence of state even in the absence of
recognition by other state. This criterion was derived from 1933 Montevideo inter America
convention on rights and duties of states, about which mention will be made in the subsequent
sections too. In 1936 the prestigious The Institut de Droit too stated, that “the existence of
a new state with all the legal consequences attaching to this existence is not affected by the
refusal of recognition by one or more states”.

4.1.3 RECOGNITION OF STATE: MAJOR THEORIES

Precisely owing to the growth of the above mentioned two opposing views, today
international law is dominated by two competing theories on the question whether
recognition is a necessary requirement for or merely a consequence of international
personality. They are: 1) Constitutive Theory; 2) Declaratory Theory. Both the theories
are discussed in the following section.

4.1.3.1 Constitutive Theory

The constitutive theory was developed in the 19th century and was closely allied to the
positivist view of international law. According constitutive theory, recognition by existing
states is a fundamental precondition for the attainment of statehood for a newly emerging
state. Statehood, as a legal status, springs from the act of recognition itself. Given the
nature of general international law, it is the states that are empowered to determine violations
of general international law. Thus, it can be said that the constitutive theory reflects the
legal system itself determining its own subjects with certainty. It is the recognition by an
existing state of a newly emerging state that, according to the constitutive model, creates
a state and determines its legal personality.

The assertion of constitutive theory was essentially developed during the late 19th century
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and was based on the view that international law existed between ‘civilized nations’. New
states could not automatically become members of the international community; it was
recognition which created their membership. This had further consequence that entities
not recognized as states were not bound by international law, nor were the ‘civilized
nations’ so bound in their dealings with them. Thus the constitutive theory primarily asserts
that the act of recognition by other states confer international responsibility on an entity
purporting to be a state. It means if that state exists because of international community, as
they have admitted that state into the community of nations. Recognition is therefore seen
as a requirement of international personality.

A major criticism of this theory is that it leads to confusion where a new state is recognised
by some states but not others. Lauterpacht, renowned jurist and member of International
Law Commission, clarifies this confusion by stating that when an entity fulfils all the conditions
of the statehood, it becomes the primary duty of other states to recognize such a state. He
further states, even though recognition this way becomes declaratory of an existing fact,
such a declaration make in the impartial fulfilment of a legal duty makes it a constitutive
one between the recognizing state and the community so recognized, of international rights
and duties associated with full statehood.

As Tim Hillier mentions, even though states do make reference to the presence or absence
of the factual characteristics of statehood when granting or refusing recognition, in the last
resort their decision will normally be based on political expediency – there is no real
evidence that states themselves feel that there is a legal duty to recognize when the other
requirements of statehood have been satisfied. The question has recently arisen with respect
to the territory of former Yugoslavia and this case requires a special mention here.

In June 1991 Slovenia and Croatia declared their independence. The European Union
and its member states did not recognize the two states immediately. In December 1991
Foreign Ministers of EU member states adopted certain Guidelines on the recognition of
new states in Eastern Europe and in the Soviet Union. These guidelines provide that
recognition would be accorded to those new states which agreed to respect five conditions.
The five conditions include matters such as respect for human rights, guarantees for
minorities, respect for the inviolability of frontiers, acceptance of commitments to regional
security and stability and to settle by agreement all questions concerning state succession.

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Slovenia, Croatia and Bosnia-Herzegovina agreed to the conditions and were formally
accorded recognition in early 1992. It is clear that the conditions set down by the European
Union exceeded the normal requirements of statehood. The implication would therefore
seem to be that the EU viewed recognition as a political measure which was not required
by any international obligation. It remains to be seen whether European practice will continue
to use these conditions in all decisions on the recognition of new states or whether the
application of the conditions will be restricted to the particular situation in the Balkans and
Eastern Europe.

4.1.3.2 Declaratory Theory

The declaratory theory of recognition treats recognition as a mere political or symbolic

act, with no legal ramifications. The proponents of this theory argue that statehood can be
achieved without recognition from other pre-existing states. The theory asserts that the
existence of states depend upon the facts whether these facts meet with the criteria of
statehood laid down in international law. As it has been already mentioned in the introductory
part, the early examples of the declaratory theory can be found in three important provisions
of the Montevideo Convention, 1933. They are: Art.1 which states that “the state as a
person of international law should possess the following qualifications: (a) a permanent
population; (b) a defined territory; (c) government and (d) capacity to enter into relations
with the other states. Art 3 of the convention states that the political existence of the state
is independent of recognition by other states. Even before recognition the state has the
right to defend its integrity and independence and to organize itself as it sees fit. Further,
Art 6 of the same convention states that the recognition of a state merely signifies that the
state which recognizes it accepts the personality of the other with all the rights and duties
determined by international law.

Thus for the supporters of declaratory theory the formation of a new state is a matter of
fact, not law. Recognition is just a political act by which the recognizing state indicates a
willingness to initiate international relations with the recognized state and the question of
international personality is independent of recognition. However, the act of recognition is
not totally without legal significance because it does indicate that the recognizing state
considers that the new entity fulfils all the required conditions for becoming an international
subject. The declaratory theory is more widely supported by writers on international law

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today and it accords more readily with state practice, as is illustrated by the fact that non-
recognized states are quite commonly the object of international claims by the very states
which are refusing recognition.

After dealing with the two important theories, it is important to look at the types of such
recognition as well as the act of non-recognition in order to gain greater clarity.

4.1.4 TYPES OF RECOGNITION

There are many ways in which a state recognition can be accorded by the international
community. In the following section, you will study some of those methods.

4.1.4.1 Recognition of a State Involves Recognizing its Government

Recognition of State defines its membership in the world community and consequently
supports its claim as an international person. It allows the recognized State to exercise the
rights and duties of a State under international law. Recognition of a new State automatically
involves recognition of its government. The recognition of a government is no more than
an acknowledgement that it is the representative organ of the state and has the consent or
at least the acquiescence of its people. Recognition will really be relevant where the change
in government is unconstitutional. The question of recognition of government normally
arises only with regard to recognized States. When a State recognizes a new “government,”
it usually acknowledges a person or group of persons as competent to act as the organ of
the State and to represent it in its international relations. The only criterion in international
law for the recognition of an authority as the government of a State is its exercise of
effective control over the State’s territory. States may, however, continue to recognize a
government-in-exile if an incumbent government is forced into exile by foreign occupation
or the de facto government has been created in violation of international law.

States may be roughly divided into three groups according to their recognition policy:
States (such as the United Kingdom before 1980) that formally recognize governments;
States (such as the United States) that generally do not formally recognize governments
but do so in exceptional circumstances for political reasons; and States (such as the United
Kingdom since 1980, and other member States of the European Union) that formally
recognize only States, not governments. That policy is reminiscent of the “Estrada doctrine”

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according to which States issue no declarations in the sense of grants of recognition in
cases of change of regime but confine themselves to the maintenance or withdrawal, as
they may deem advisable, of their diplomatic agents. Those States have not completely
abolished the recognition of governments, only the making of official statements of
recognition. They still have to decide whether a person or group of persons qualifies as
the government of another State, especially where there are competing “governments” in
the same recognized State or when there is an attempted secession and issues of
governmental status and statehood are linked. In the case of the British government, its
opinion on the legal status of a claimant may be determined on the basis of the nature of
the dealings (non-existent, limited or government-to-government dealings) which it has
with a claimant.

4.1.4.2 Recognition of Belligerency

Although a rebellion will involve a breach of the law of the state concerned, no breach of
international law occurs through the mere fact of a rebel regime attempting to overthrow
the government of the state or to secede from the state. Insurgency means rebellion, riot
or mutiny by portion of the citizens of a State against the established government. It indicates
armed struggle by dissident forces the established government in a state. On the other
hand ‘Belligerent signifies a stage of the civil war in which there are two contenders for
power that can be placed on a platform and there is something like a state of war, and not
only civil conflicts. Despite conflicting opinions as to the exact definition of “insurgency”
there is a consensus that the insurgency can become belligerency. Thus, Belligerency exists
when a portion of the State’s territory and population is under the de facto control of
insurgents seeking either to establish a separate state or to overthrow the existing government.
When the rebels are granted the status of belligerents, they shall become subjects of
international law and may be responsible for their actions. Belligerence has a formal status
in International law that implies rights and duties.

To be recognized as belligerents, the insurgents must have a political organization able to

exercise such control and maintain some degree of popular support, and conduct themselves
according to the laws of war. Accordingly, recognition of belligerency is a formal
acknowledgement by third-party States of the existence of a state of war between the
State’s central government and a portion of that State. This implies that the recognizing

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State recognizes that a revolt within another State has attained such a magnitude as to
constitute in fact a state of war, entitling the revolutionists or insurgents to the benefit, and
imposing upon them the obligations, of the laws of war. Two conditions should exist
before a third party State grants belligerent recognition, the insurgency has progressed to
a state of general war and the effects of this war have gone beyond the borders of the
State to affect other States. By this recognition, the insurrectionary movement is elevated
to the status of a quasi international person having certain rights and duties under International
Law. This sort of international personality is both non-permanent and particular. It is non-
permanent, because the insurrection may fail. It is particular, because it exists only for the
recognizing States. Recognition of belligerency was accorded during most of civil wars of
the 19th century and the wars of independence of the 20th century.

4.1.4.3 Non-Recognition

Non-recognition, sometimes referred to as the Stimson doctrine, can occur when the
international community is faced with breaches of international law by one of its members,
such as the case of Iran and the NPT, the acquisition of the West Bank and East Jerusalem
by force by the state of Israel, or the international isolation experienced by South Africa
under the apartheid regime. The Stimson doctrine of non-recognition arises when the
conduct of a state becomes so objectionable that a severe diplomatic response is considered
necessary. Examples of this have included the possession of armaments in contravention
of international agreements, acts of external aggression, or the resort to war or any other
non-pacific means used for the solution of an international dispute. Because political
recognition is always accompanied by further and more concrete evidence of support,
non-recognition affects commercial treaties, extradition treaties, diplomatic protection,
protection of industrial, literary and artistic property, etc. It must be distinguished from
cases where recognition is withheld for legal reasons, such as where the entity in question
does not possess the attributes of statehood outlined in the Montevideo Convention and
recognition of it as a state would be premature, as occurred with Palestine or Taiwan.
With this clarity, now let us look at the existing modes of recognition.

4.1.5 MODES OF RECOGNITION

There are different modes of recognition in practice they include, ‘De facto and De jure’

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Recognition, ‘Implied and Expressed’ Recognition. While the four modes being discussed
widely, the conditional recognition is witnessed quite often in the international community.
Hence a brief discussion about these modes of recognition will follow in this section.

4.1.5.1 De facto and De jure Recognition

De facto recognition is temporary kind of recognition. The States, in order to safeguard

their position against granting of premature recognition, often resort to the practice of
according recognition de facto before recognizing a state or a government de jure. This
practice had proved to be useful in cases where in the realities of the situation a state
appeared to have established itself or where a government appeared to be exercising
effective authority, though the legal position had remained unsettled. For instance, when a
part of a state territory or a community succeeds in serving itself from the parent state, sets
itself up as a new state and claims to be recognized as such, other states may feel hesitant
to accord it recognition even when it fulfils all the conditions of statehood, either because
they are not sure that the new community has attained that degree of permanence which
they consider to be necessary before according formal recognition, or because the parent
state may still be asserting its authority over the territory, even though ineffectively, and it
makes it known that it would regard any act of recognition of the new state to be an
hostile act.

Similarly, in the case of a government which has come to power through a revolutionary
means or as a result of a civil war, states may feel reluctant to recognize it straight away
even though it may be exercising effective power as they may wish to wait until they are
satisfied that the government has established itself permanently or that the government
commands the confidence of the people. It may also be that the states wish to be assured
that the new government would be willing to fulfil its international obligations before granting
it recognition de jure. In such situations a de facto recognition serves a very useful purpose
by taking into account the realities of the situation as may be apparent at that time without
having to express any view on the legal claims of the new state or government.

Thus a de facto recognition may be said to be a provisional recognition which can be

withdrawn at any time if the new state ultimately fails to fulfil the condition of stability or the
new government is found not to have the effectiveness. According to Lauterpatch “de
facto recognition shows that recognizing state wants to establish its relations with the

292 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
recognized state without establishing diplomatic relations”. De jure recognition is granted
when in the opinion of recognizing state or its government the other state possesses all the
characteristics and essential requirements of statehood, also it is capable of being member
of international community. De jure recognition is final and once given cannot be taken
back and it is permanent kind of recognition. It is only the de jure recognized State or
Government that can represent the old State for the purpose of State succession or with
regard to espousing any claim of its national for injury done by the recognizing State in
breach of International Law. Only the de jure recognized state or government claim to
receive property locally situated in the territory of the recognizing State. While during the
de facto recognition diplomatic relations are not established formally they can be established
only by granting de jure recognition. Choosing one mode of recognition over the other is
often considered to be influenced by the political considerations than the legal in most
cases. However, in some cases both the considerations coincide.

4.1.5.2 Express and Implied Recognition

Recognition is essentially based on the will and intention of a state and it could be express
or implied. Express recognition indicates the acknowledgement of the recognized State
by a formal declaration. This formal recognition may take place through a declaration or
an announcement of recognition or any such means. However, recognition need not be
expressed, that is in the form of an open, unambiguous and formal communication, but
may be implied in certain circumstances. Recognition as such does not carry with it a
requirement to establish diplomatic relations, but the formal act of recognition does imply
that the recognizing state will seek to establish bilateral relations. Scholars like Lauterpacht
argued that implied recognition arises only out of comprehensive bilateral treaties, formal
diplomatic relations, and consular exequaturs. Thus, one state can recognize another without
establishing diplomatic relations, but because the existence of diplomatic relations implies
recognition, the same state cannot conduct diplomatic relations with a state while refusing
to recognize it. The United States no longer has formal diplomatic ties with Cuba and Iran,
but neither the absence of diplomatic relations, nor the fact that they were revoked after
having been previously established imply non-recognition of the states of Cuba and Iran
by the United States.

The existence of informal bilateral relations does not constitute an acknowledgement of

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recognition. In addition, state practice demonstrates that, with respect to the interaction
between recognizing states and unrecognized entities, participation in negotiations,
establishment of unofficial representation, accession to multilateral treaties, and membership
in international organizations do not imply recognition. For example, the fact that both
Cyprus and Turkey are members of the UN cannot be taken to mean that Turkey recognizes
the state of Cyprus. This would also be the case if and when Turkey becomes a member
of the European Union.

4.1.5.3 Conditional Recognition

As Shaw puts it, the political nature of recognition has been especially marked with
reference to what has been termed conditional recognition. This refers to the practice of
making the recognition subject to the fulfilment of certain conditions: for example, the
good treatment of religious minorities as occurred with regard to the independence of
some Balkan countries in the late nineteenth century; the condition like respect for human
rights, boarders and so on put by EU during the entry of Slovenia, Croatia and Bosnia-
Herzegovina; or the granting of most-favoured-nation status to the recognized state.
However, breach of the particular condition does not invalidate the recognition. It may
give rise to a breach of international law and political repercussions but the law appears
not to accept the notion of a conditional recognition as such. The status of any conditions
will depend upon agreements specifically made by the particular parties. It is, however,
important to distinguish conditional recognition in this sense from the evolution of criteria
for recognition generally, although the two categories may in practice overlap.

4.1.5.4 Collective Recognition

The usefulness of collective recognition has often been stressed. Collective recognition
would amount to recognition by means of an international decision, whether by an
international organization or otherwise. Such recognition signifies the importance of the
international community in its collective assertion of control over membership and for the
same reason, it has not been warmly welcomed, nor can one foresee its general application
for some time to come. The idea has been discussed particularly since the foundation of
the League of Nations and was re-emphasized with the establishment of the United Nations.
However, it rapidly became clear that member states reserved the right to extend recognition
to their own executive authorities and did not wish to delegate it to any international

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institution. The most that could be said is that membership of the United Nations constitutes
powerful evidence of statehood. But that, of course, is not binding upon other member
states that are free to refuse to recognize any other member state or government of the
UNO.

4.1.5.5 Withdrawal of Recognition

Recognition once given may in certain circumstances be withdrawn. This is more easily
achieved with respect to de facto recognition, as that is by its nature a cautious and
temporary assessment of a particular situation. Where a de facto government loses the
effective control it once exercised, the reason for recognition disappears and it may be
revoked. It is in general a preliminary acceptance of political realities and may be withdrawn
in accordance with a change in political factors. De jure recognition, on the other hand, is
intended to be more of a definitive step and is more difficult to withdraw. Of course,
where a government recognized de jure has been overthrown a new situation arises and
the question of a new government will have to be faced, but in such instances withdrawal
of recognition of the previous administration is assumed and does not have to be expressly
stated, providing always that the former government is not still in existence and carrying
on the fight in some way. Withdrawal of recognition of one government without recognizing
a successor is a possibility and indeed was the approach adopted by the UK and France,
for example, with regard to Cambodia in 1979. However, with the adoption of the new
British policy on recognition with regard to governments, the position is now that the UK
government will neither recognize nor withdraw recognition of regimes. Withdrawal of
recognition in other circumstances is not a very general occurrence but in exceptional
conditions it remains a possibility.

4.1.6 CONSEQUENCES OF RECOGNITION

Although recognition may legitimately be regarded as a political tool, it involves important

consequences in the legal field. Such legal consequences affecting the rights powers
privileges of recognized states or government. Recognized states have both international
and national consequences of their recognition.

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4.1.6.1 International Consequences

In a good number of cases it can be accepted that recognition of a state or government is

a legal acknowledgement of facts already in place. It may be said that for international
purposes, the declaratory theory of recognition holds true – recognition is status confirming.
Hence, it cannot be assumed that non-recognition of a state will deprive it from its rights
and duties before international law, except for those situations where it may be possible to
say that recognition is constitutive of the legal entity.

In general, the political existence of a state is independent of recognition by other states,

and thus an un-recognized state must be deemed subject to the rules of international law.
It cannot consider itself free from restraints as to aggressive behaviour, nor can its territory
be regarded as nobody’s land. As Shaw puts it, non-recognition, with its consequent
absence of diplomatic relations, may affect the un-recognized state in asserting its rights or
other states in asserting its duties under international law, but will not affect the existence
of such rights and duties. On the other hand under the municipal law the position is totally
different and in the next section we understand the same.

4.1.6.2 Internal Consequences

As recognition is fundamentally a political act, it is reserved to the executive branch of

government and accordingly the executive will have the principal responsibility over foreign
affairs including the decision to recognize a State or a government. The domestic courts
then are bound to follow the executive decision. If the executive has not recognized a
certain situation, the courts are obliged to treat the situation in question correspondingly,
that is to treat the non-recognized entity and its acts a legal nullity. This means that the
judiciary must as a general principle accept the discretion of the executive and give effect
to its decisions. Judiciary can only accept and enforce the legal consequence which flows
from the executive’s political decision.

To this extent, Shaw considers recognition as constitutive, because the act of recognition
itself creates legal results within the domestic jurisdiction. In the United Kingdom and the
United States particularly, the courts feel themselves obliged to accept the verdict of the
executive branch of government as to whether a particular entity should be regarded as
recognised or not.

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If the administration has recognized a state or government and so informs the judiciary by
means of a certificate, the position of that state or government within the municipal structure
is totally transformed. It may sue in the domestic courts and be granted immunity from suit
in certain instances. Its own legislative and executive acts will be given effect to in the
courts of the recognizing state and its own diplomatic representatives will be able to claim
the various immunities accorded to the official envoys of a recognized state. In addition, it
will be entitled to possession in the recognizing state of property belonging to its
predecessor.

4.1.7 LET US SUM UP

In this lesson so far we have discussed about the importance of a State’s Recognition and
how through this recognition a state becomes the member of international community and
acquires its international entity. As a part of it, we have tried to understand the basic
difference between the theoretical propositions of the Constitutive and Declaratory Theory.
Then we moved towards a discussion on various modes of recognition and the withdrawal
of recognition. As no state can establish its diplomatic and political relations other
consequences in the absence of its recognition, we have further proceeded towards a
discussion on the international and internal consequences of a State’s Recognition.

4.1.8 EXERCISES

1. Explain major propositions of Constitutive and Declaratory Theory ?

2. Why is recognition important for a State? What are different modes of such recognition?

3. Give a detail of the International and Internal consequences of Recognition ?

4. Write the difference between de facto and de jure recognition ?

5. What do you understand by Express and Implied Recognition?

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M.A. Political Science, Semester IV, Course No. 403, International Organisation & Law
Unit – IV: State Recognition, Sovereignty, Succession and Responsibility

4.2 STATE SUCCESSION AND STATE RESPONSIBILITY

- A. Lalitha

STRUCTURE

4.2.0 Objectives
4.2.1 Introduction
4.2.2 The Concept of Succession in Public International Law
4.2.3 Definition of State Succession
4.2.4 Forms of State Succession
4.2.5 Theoretical Approaches to State Succession
4.2.5.1 The Doctrine of Universal Succession
4.2.5.2 The Clean Slate Doctrine
4.2.6 Codification of the Rules Governing State Succession
4.2.6.1 Succession of State with Respect to Treaties
4.2.6.2 Succession of State with Respect to State Property & Debts
4.2.6.3 Succession of States with Respect to Nationality of Natural Persons
4.2.7 State Responsibility
4.2.8 Developments in Codification
4.2.8.1 Structure of the “Articles”
4.2.8.2 Basis and Nature of State Responsibility
4.2.9 Legal Consequences
4.2.10 The Implementation of State Responsibility
4.2.11 Let Us Sum Up

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4.2.12 Exercise
4.2.0 OBJECTIVES

The present lesson analyses issues related to the State Succession that is how a new state
emerges from the earlier entity and what constitute the basic responsibilities of the State
with respect to treaties, state property and debts as well as nationality. After going through
this lesson, you will be able to:

• define and identify various forms of state Succession;

• understand the main theoretical approaches to the State Succession; and

• learn how the codification of the rules governing State Succession took Place.

4.2.1 INTRODUCTION

States are no exception either to change or to the wrongful acts they commit towards the
international community. Federations, mergers, dissolutions and secessions that take place
from time to time result in the disappearance of old states and appearance of new states.
Thus a new state succeeds the old one and in international public law, the principle of state
succession essentially involves the replacement of one state by another in the responsibility
for the international relations of territory. The state whether a new or old is also held
responsible for it wrongful acts and the principle of state responsibility provides that
whenever one state commits an internationally unlawful act against another state, it is
internationally responsible for reparations. Both the principles are considered important,
complex and contentious in international law. In the current lesson we will look into both
the concepts beginning with the concept of State Succession.

4.2.2 THE CONCEPT OF SUCCESSION IN PUBLIC INTERNATIONAL LAW

You have studied in earlier lessons that States are the main actors in international relations,
but compared to the subjects within the domestic legal system, they are only small in
number in international setting. Given their relatively small number, their function as the
main producers of international law and as almost the only actors called upon to ensure
observance of the law, their role in this system is by far greater than that of the subjects of
domestic law. Hence, any change to the key elements of the international system has a
greater impact on it than on the domestic system. Such changes particularly occur in the
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case of the demise or creation of states. The main legal problems generated in such cases,
especially by the emergence of new states, involve how and under what conditions new
entities are accepted as actors within this system, what should happen to the property
belonging to and the debts assumed by the predecessor and how should legal relations of
the new states towards existing states be regulated, based on either international customary
law or on treaty law. In particular, the latter issue is treated under the subject “state
succession in matters of treaties” using terminology common to domestic private law.

The institution of succession was taken from civil law, where we find it in the form of
transfer of rights and obligations either after the death of an individual (assigning an
inheritance) or after the termination of a legal person (by bankruptcy). However, as Marian
Vladoiut observes, in international law, the term succession is used only in terms of its
conventional meaning because it was not possible to arrive at a sum of rules, of principles
able to regulate the transfer of sovereignty over a territory from one state to another
Therefore, in international law the concept of succession has no counterpart in terms of
private individuals or legal entities, but refers only to the transfer between states.

State succession has become increasingly important since World War II, as it affected
more States and more legal relationships than ever before. Approximately 100 new States
emerged with the end of decolonization. Recently, Germany reunified, while the Soviet
Union, Yugoslavia and Czechoslovakia dissolved. These changes affected more legal
relationships than the earlier decolonization process. Thus today, under the international
public law there emerged three aspects of state succession namely: a) state succession in
respect of treaties; b) succession in respect of matters other than treaties; and c) successions
in respect of membership of international organizations. In the subsequent section you will
study these issues in detail.

4.2.3 DEFINITION OF STATE SUCCESSION

The concept of succession under public international law is an extremely complex and
disputed one in International Law. Even though, there is extensive literature on the subject
in International Law, it is rather inconsistent and confusing. It is such a subject under
whom wide practices have come into being and as a result of theoretical polarization
exists depriving the concept any agreed theoretical structure. In this regard, within the UN

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system the International Law Commission has considered the matter extensively. Owing
to its efforts, two multilateral treaties were negotiated and adopted aiming to identify and
regulate the general trends used in practice in terms of solving various situations of state
succession.

They are the Convention on Succession of States in respect of Treaties and Convention
on Succession of States in Respect of State Property, Archives and Debts, both adopted
in Vienna in 1978, respectively 1983. The latter convention has not fulfilled the required
number of ratifications so far to enter into force. A particular application of the rule of state
succession to treaties is the succession of states in international organizations.

An official definition of “state succession” being expressed in Article 2 (1) (b) of the
Vienna Convention of 1978, according to which, “succession of States means the
replacement of one State by another in the responsibility for the international relations of
territory.” With this orientation towards national territory the definition applies to a great
number of practical cases of succession, except for those where there is no actual transfer
of territory. Thus the concept of State succession today merely represents a collective
designation for very different instances of succession with more or less close connections
to a given State territory. A basic, albeit not comprehensive, criterion of legal delimitation
is the status as a subject of international law; in this way, “State personality” provides a
key to the whole problem of State succession. At the same time the role played by other
states through recognition and agreement with the process are especially important.

4.2.4 FORMS OF STATE SUCCESSION

Emanuelli observes that State succession may take different forms:

1. A State may break up and disappear giving way to the emergence of two or more
new States (former USSR: 1991; Yugoslavia: 1991-1992; Czechoslovakia: 1993);

2. A portion of the territory of a State may secede or separate and become the seat of a
new State (Pakistan from India: 1947; Bangladesh from Pakistan: 1971; Eritrea from
Ethiopia: 1993);

3. A colony may become independent and give rise to a newly independent State (starting
with Haiti in 1804);

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4. Two or more States may merge to create a single new State (the merger of Syria and
Egypt to form the United Arab Republic between 1958 and 1961);

5. A State may be taken over and assimilated by another State (absorption of the German
Democratic Republic by the Federal Republic of Germany: 1990);

6. A portion of the territory of a State may be transferred from one State to another
State by way of cession: such was the case in the purchase of Louisiana by the United
States from France in 1803.

As a form of State succession, the cession of a territory from one State to another was
quite current at the time. It often accompanied by the conclusion of a peace treaty between
the predecessor State and the Successor State. In some cases, the Predecessor State
remains in existence, so that the succession is said to be partial: such was the case when
France ceded Louisiana to the United States. In other cases, the Predecessor State does
not survive the succession, so that the succession is said to be total, as with the dissolution
of the former USSR. However, a change of regime, even as drastic as the shift from
Tsarist Russia to the Soviet Union or from Saddam Hussein’s Iraq to a democratic or a
religious State, does not equate to a succession of State. Indeed, international law
traditionally distinguishes between changes of regime, on one hand, and succession of
States, on the other. Changes of regimes do not affect the continuity of States in which
they occur. As a result, a change of regime will not, as a rule, affect the rights and obligations
of the State in which the change takes place. So, Iraq will keep its seat at the UN and will
remain bound by commitments made by the former regime. On the other hand, regardless
of the form it takes, State succession will in some way affect the rights and obligations of
the States concerned (predecessor and successor States). It may also affect the rights
and obligations of third parties. The extent to which the rights and obligations of States will
be affected by State succession may vary with each situation since it depends on a number
of factors: what is the nature of the rights and obligations at stake? (Treaty rights and
obligations? Rights and obligations relating to public property and debts?); what form
does the State succession take? (partial or total succession?); in what context does the
succession of States occur? (colonial or non-colonial case?); which legal approach should
govern the issues arising from State succession?

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In order to deal with the above mentioned kind of questions and the legal problems arising
from the state succession various theories were propounded, from such theories we will
briefly discuss about two prominent theories in the following section.

4.2.5 THEORETICAL APPROACHES TO STATE SUCCESSION

Among various theories that were offered to solve the problem of State Succession,
theories such as Universal Succession Theory, which is also called as the continuity theory,
and the Clean Slate Theory are prominent and the same theories will be discussed here in
brevity.

4.2.5.1 The Doctrine of Universal Succession

The doctrine of “universal succession” (also known as doctrine of continuity) provides

that the rights and obligations of the Predecessor State, relating to the territory transferred,
are transmitted to the Successor State. Thus, the Successor State inherits the treaty rights
and obligations of the Predecessor State relating to the territory transferred. As well, the
Successor State inherits public property and debts belonging to the Predecessor State
relating to the territory transferred. Indeed, the “universal succession” doctrine provides
that the Successor State ensures the continuation of the Predecessor State’s sovereignty
over the territory transferred.

Under this theory, Successor assumes the whole of the legal clothing of the person to
whom he succeeds; steps, as it were, into his shoes. He takes over his rights and liabilities
of every kind; his property and the debts and other obligations (such as rights of action for
damages for breach of contract) owing to him, and the debts and obligations which he
owes.

4.2.5.2 The Clean Slate Doctrine

The “Clean Slate” doctrine, on the other hand, was developed in the late 19th century
under the influence of voluntarist theories which dominated international law during that
period. According to such theories, sovereign States can only enjoy rights and incur
obligations to which they consent. Therefore, the rights and obligations of the Predecessor
State relating to the territory transferred cannot be considered to automatically pass to the
Successor State. It asserts that the Successor State substitutes its sovereignty over the

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territory transferred to that of the Predecessor State instead of ensuring its continuation.
Therefore, the Successor State does not inherit the rights and obligations of the Predecessor
State with respect to the territory transferred.

As Emanuelli cites, examples of both the “universal succession” and the “clean slate”
doctrines can be found in the practice of States. Thus, while the “universal succession”
doctrine governed the emergence of Dominions, such as Canada, as independent States,
the “clean slate” doctrine was invoked by Israel. However, State practice rarely reflects
either the “universal succession” doctrine or the “clean slate” doctrine in their entirety. In
most cases of State succession, some rights and obligations relating to the territory
transferred are transmitted from the Predecessor State to the Successor State, while
others are not. Thus, following the absorption of the German Democratic Republic (GDR),
the Federal Republic of Germany took over the property and debts of the GDR but
refused to be bound by its treaties.

This way, the State practice relating to succession has been inconsistent as a consequence
of the changing attitude of states on the incorporation of new states in the existing community
of states. Even today the practice lacks uniformity and fails to substantiate either the
“universal succession’ or the “clean slate” approach even today. Nonetheless, in order to
shed some light on this confusing area of international law, efforts have been made under
the aegis of the United Nations to codify the rules governing State succession and in the
next section we will gain some understanding about the same.

4.2.6 CODIFICATION OF THE RULES GOVERNING STATE SUCCESSION

Amidst the uncertain practice of States with respect to State succession, the International
Law Commission (I.L.C.) has endeavoured to codify the rules governing three areas:

1. succession of States with respect to treaties;

2. succession of States with respect to public property, archives, and debts;

3. succession of States and nationality of natural persons.

4.2.6.1 Succession of States with respect to Treaties

In order to clarify some of the rules relating to succession to treaties, the International Law

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Commission drafted the Vienna Convention of the Succession of States in respect of
Treaties. The Convention was concluded in 1978. It entered into force in 1996. The
general solution which is embodied in this convention is based on a distinction between
State succession arising out of colonial cases and State succession arising out of non-
colonial cases. According to this distinction, “newly independent States”, i.e. States born
out of the decolonization process, do not automatically inherit treaty rights and obligations
previously concluded on their behalf by colonial powers (Art. 16). However, they may
unilaterally choose to succeed to multilateral treaties to which the Predecessor State is a
party (Art. 17). In all non-colonial cases, including those involving a cession of territory,
the rule is different. As a rule, the Successor State succeeds to treaty rights and obligations
concluded by the Predecessor State (Art. 34). This distinction between colonial and non-
colonial cases is informed by the evolution of State practice after World War II. Yet, it is
criticized by most states which prefer a general application of the “clean slate” doctrine
with respect to succession to treaties regardless of the form of State succession. Today
the aforementioned distinction is becoming obsolete as the decolonization process comes
to an end. What remains is the rule of continuity which is not favoured by States. As a
result, the Convention came into force only in 1996. So far, it has been ratified by less than
20 States.

4.2.6.2 Succession of States with respect to State Property, Debts and Public
Achieves

The Vienna Convention on the Succession of States in Respect of State Property, Archives
and Debts was adopted in 1983. Its rules are also based on a distinction between State
successions arising out of colonial cases and State succession arising out of non-colonial
cases. This distinction, however, does not reflect the practice of States. For instance, in
colonial situations, a “newly independent State” is entitled, in whole or in part, depending
on the case, to property owned by the predecessor State, wherever located, that originated
in the territory transferred (Art. 15 (1) (b), (c), (e), (f)). Moreover, the Convention provides
that no public debt is transmitted to a “newly independent State” without its consent (Art.
38 (1)).

In non-colonial situations, the Convention provides that the Successor State is entitled to
an equitable part of the public property of the Predecessor State which is not otherwise

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transmitted (Arts. 17 (1) (c); 18 (1) (b), (c)). The predecessor State may, in return, be
entitled to some compensation (Arts. 17 (3); 18 (2)). As for debts, the Vienna Convention
provides that, short of an agreement to the contrary, an equitable portion of the public
debt of the Predecessor State passes to the Successor State. To establish that portion,
considerations relating to the amount of property, rights, and other interests which the
successor State has acquired by succession maybe taken into consideration (Arts. 37 (2);
40 (1); 41). The Vienna Convention of 1983 is stated that the successor State is entitled
to documents which are necessary to administer the territory transferred or which are
directly related to that territory (Arts. 27 (2) (a), (b); 28 (1) (b), (c); 30 (1) (a), (b); 31 (1)
(a), (b)). So far, the Vienna Convention of 1983 has been ratified by only 5 States, meaning
that it has not yet come into force.

The primary impediment to broader ratification is that most western States disagree with
its distinction between colonial and non-colonial situations. However, as mentioned before,
the significance of this distinction is lost to the fact that the decolonization phenomenon is
coming to an end.

4.2.6.3 Succession of States with respect to the Nationality of Natural Persons

In 2001, the UN General Assembly adopted the resolution 55/153, dealing with the
“nationality in relation to the succession of States” and 26 articles pertaining to the subject
were annexed to the resolution and they were adopted on second reading by the
International Law Commission in 1999. Contrary to the recommendation of the
Commission, the draft articles were not adopted by the General Assembly in the form of
a declaration. Instead, Resolution 55/153 describes the draft articles as “a useful guide for
practice in dealing with” nationality of natural persons in relation to succession of States. It
also acknowledges that the work of the International Law Commission on this topic could
contribute to the elaboration of a convention or other appropriate instrument in the future.
In that respect, Resolution 55/153 invites governments to comment on the question of a
convention on nationality of natural persons in relation to the succession of States. With
respect to succession of States, the draft provisions annexed to Resolution 55/153 favour
the habitual residence of an individual as the relevant connecting factor to determine whether
he/she loses the nationality of the Predecessor State and acquires that of the Successor
State (arts. 5, 8, 14, 20, 22, 24, 25). The draft articles further provide a right of option for

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individuals who are affected by a succession of States (Arts. 11, 26). Finally, in view of
several developments that took place, the draft articles annexed to Resolution 55/153 still
remain to be an expression of the progressive development of international law rather than
a codification of existing rules.

To sum-up the discussion so far we had about state succession, we have studied in the
introductory part that State succession remained to be one of the complex and highly
contested concepts in International Law. While the successions that took place in the
initial phases were in adherence to the continuity doctrine, however, slowly this doctrine
found its replacement by the “clean” slate doctrine under the influence of voluntarist theories.
This development is reflected in the practice of States which became independent through
the process of decolonization. The State practice relating to State succession is not uniform.
It often embodies both the doctrine of continuity and the “clean slate” doctrine in a
proportion which varies from case to case. Even though, attempts were made to codify
the rules pertaining to succession, they remained ineffective as the states were not willing
to ratify such codification.

4.2.7 STATE RESPONSIBILITY

The doctrine of state responsibility is one of the core tenets of international law. As Malcom
N.Shaw discusses, State responsibility may be understood that “if a state commits an
internationally unlawful act against another State, it will be internationally responsible for
reparation”. Legally speaking state responsibility is “simply the principle which establishes
an obligation to make good any violation of international law producing injury”. State
responsibility arises out of the legal maxim stated by Grotius in 1646 that “every fault
creates the obligation to make good the losses”. As states are the conventional subjects of
international law, technically the principle of state responsibility applies only on the state-
to-state level. Thus State responsibility arises out of the international legal system and the
principles of State sovereignty and equality of States.

4.2.8 DEVELOPMENTS IN CODIFICATION

The subject of State responsibility had been selected for codification under the League of
Nations, and was one of the principal subjects of the unsuccessful conference in The

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Hague in 1930. In 1948, the United Nations General Assembly established the International
Law Commission (ILC), and State responsibility was selected amongst the first 14 topics
to be dealt with by the new body. Between 1948-75 the International Law Commission
worked extensively on the subject. In the year 1975, it has initiated its work on the draft
articles on the State responsibility and the articles were adopted by ILC on August, 2001
and it was followed by the adoption of UN General Assembly in the same year,
recommending it for the practice of the States and the decisions of international tribunals.
The law of State responsibility is essentially concerned with the nature of State responsibility,
its legal consequences and implementation of such responsibility.

Since 2001, the draft Articles have been subject of scrutiny by doctrine, jurisprudence
and State practice. As an example, successive studies of the Secretariat show that, until
31 January 2013, over 200 decisions of international courts, tribunals and other bodies
referred to the draft Articles, which is a good indicator of their relevance. However, and
as the studies by the Secretariat also demonstrate, those decisions did not always coincide
in their interpretation of some of the draft Articles. Furthermore, and although the
Commission’s work has been in general well received, it is known that some of those draft
provisions do not share the same level of acceptance by member States.

The General Assembly has been considering since 2001 the opportunity of preparing a
convention on the topic. It has returned to the possibility of convening a diplomatic
conference to adopt a treaty on the basis of the articles in 2004, 2007, 2010 and 2013,
without taking a decision. It is scheduled to consider the fate of the articles again in 2016.
In 2013, the General Assembly, while acknowledging the increasing relevance and
usefulness of the draft Articles in daily practice, decided to defer to the 71st session of the
GeneralAssembly (2016) the question of the adoption of a convention on the Responsibility
of States for Internationally Wrongful Acts. The question is divisive and the General
Assembly has not been able so far to reach a consensus on the need to adopt a convention
on the Responsibility of States. Even though there are different perspectives on this subject,
there is a growing sentiment that the time has come to seek agreement on a way forward.

Against this background of the developments in the codification of State Responsibility of

the States for Internationally Wrongful Acts, in the next section you will gain understanding
about the basic definitions provided in the articles and their structure in brief.

308 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
4.2.8.1 Structure of the “Articles”

The “Articles” define internationally wrongful act as “a conduct consisting of an action or

omission attributable to the State under International Law that constitutes a breach of an
international obligation of the State.” Further, the breach of an international obligation is
defined “as an act which is not in conformity with what is required of the State by that
Obligation”. They also provide that every internationally wrongful act of a State entails
responsibility.

The 59 Articles on the Responsibility of States for Internationally WrongfulActs are divided
into four Parts.

Part One (The Internationally Wrongful Act of the State, articles 1-27) is further divided
into five Chapters (General Principles, articles 1-3; Attribution of Conduct to a State,
articles 4-11; Breach of an International Obligation, articles 12-15; Responsibility of a
State in Connection with the Act of another State, articles 16-19; Circumstances Precluding
Wrongfulness, articles 20-27).

Part Two (Content of the International Responsibility of a State, articles 28-41) is divided
into three Chapters (General Principles, articles 28-33; Reparation for Injuries, articles
34-39; Serious Breaches of Obligations under Peremptory Norms of General International
Law, articles 40-41).

Part Three (The Implementation of the International Responsibility of a State, articles

42-54) consists of two Chapters (Invocation of the Responsibility of a State, articles 42-
48; Countermeasures, articles 49-54).

Part Four (articles 55-59) contains the final five General Provisions of the text.

These articles establish the Basis for the nature of State Responsibility and various provisions
covered under those articles will be is discussed in the following section.

4.2.8.2 Basis and Nature of State Responsibility

State Responsibility consists of three basic elements and these three elements are required
for establishing the responsibility of the State. They are: a) the existence of international
legal obligation between the concerned States; b) the occurrence of a wrongful act or the
omission of an act in violation of such an obligation, which is imputable to the State; and c)
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loss or damage has resulted from such wrongful act or omission.

State responsibility only arises when the act of omission which constitutes a breach of
legal obligation is attributable to a State. As it was already mentioned, a state is responsible
for wrongful acts which constitute international delicts (wrongful acts) but not international
crimes (ILC articles does not mention about international crimes due to their controversial
nature, examples of such crimes include genocide, slavery, colonial domination, aggression
,apartheid and massive pollution of the atmosphere). Even though the ILC Draft Articles
made a distinction between international crimes and international delicts, ILC omitted any
mention of international crimes of States in its Articles as finally approved.

Wrongful Acts that can be attributed to the State

“Imputability” is a legal notion which incorporates the acts or omissions of the State officials
to the State itself and which renders the State liable for damages to persons or properties
resulting from such acts. While a State is responsible only for its own acts or omissions, it
is often identified with its “government” which includes the executive, the legislature and
the judiciary, and also the central authorities as well as local authorities. It is established by
the case law that a State is liable for the conducts of any of its organs and the ILC’s
“Articles” also reiterate the rule.

The “Articles” provide that the conduct of any organ (including any person or entity)of a
State shall be considered as an act of the State concerned under International Law, provided
that organ was acting in that capacity in the case in question. Similarly the conduct of an
organ of a territorial governmental entity within a State shall also be considered as an act
of that State under International law, provided that organ was acting in that capacity in the
case in question. Further, the conduct of an organ of an entity which is not part of the
formal structure of the State or the territorial governmental entity, but which is empowered
by the internal law of that state to exercise elements of governmental authorities, shall also
be considered as an act of the State under International Law, provided that organ was
acting in that capacity in the case in question.

The State in reality acts through its authorized officials and it is also established that a State
is liable for the acts of such officials if those acts are imputable (attributable) to the State.
This rule however, depends on the link that exists between the State and the person or

310 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
persons committing the wrongful act or omission. While the state is not liable under
International Law for all acts of its officials, in those acts that can be attributable to the
state, it is liable even when the authorized officials exceed or disobey their instructions, or
if they are abusing powers or facilities placed at their disposal by the State.

Even though, the state is not responsible for the wrongful acts committed by private persons,
in principle, it is established by case law and reaffirmed by the ILC Articles that a State is
responsible for acts of private persons if those persons are acting on behalf of that state,
on its instructions, under its control, or exercising elements of governmental authority in
the absence of governmental officials and under circumstances which justify them in
assuming such authority. It is also responsible for acts of private persons if such acts are
accompanied by some act or omission on part of the State, for which it is liable.

With regard of actions of rioters or rebels causing loss or damage to a foreign State or its
nationals, the general principle is that the State is not liable for such actions if it has acted
in good faith and without negligence. However, in such a case, the State is under a duty to
show due diligence. Nevertheless, when the rebellion movement succeeds in establishing
the new government of a State or a new State in part of the territory of the pre-existing
State, it will be held responsible for its activities prior to its assumption of authority; this
rule is even reaffirmed by the ILC Articles.

4.2.9 LEGAL CONSEQUENCES

The state responsibility for international wrongful acts entails certain legal consequences
on that State. The first consequence is the cessation of the wrongful act (Art30), and
the second is the reparation (Art31).

Cessation of the Wrongful Act

The first legal consequence is that the wrongdoing State is obliged to cease the wrongful
act, if it is continuing, and to offer appropriate assurances and guarantees on its non-
repetition.

Reparation

The second legal consequence is that the wrongdoing state is under the duty to remedy its
acts. The injured State is entitled for full reparation. The reparation may take the form of
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restitution in kind, compensation and satisfaction, either singly or in combination. The
choice of a particular form of reparation varies depending upon the content of the obligation
that has been breached or the nature of the injury sustained

Article 35 of the ILC Articles deals with Restitution in kind, under which, the injured
State is entitled to obtain from the State which has committed an internationally wrongful
act restitution in kind, that is, the re-establishment of the situation which existed before the
wrongful act was committed, provided and to the extent that restitution in kind:

(a) is not materially impossible;

(b) would not involve a breach of an obligation arising from a peremptory norm of general
international law.

If restitution in kind is not available, compensation (Art 36) for the damage caused must
be paid. Monetary compensation covers any financially assessable damage suffered by
the injured state, and may include interest, and may include, in certain circumstances, loss
of profits. It may be paid for both material and non-material (moral) damage.

The third form of reparation mentioned under Art 37 is Satisfaction. It is a remedy which
is appropriate in cases of moral damage and non-monetary compensation. It may take the
forms of an official apology, a nominal damage, the punishment of the guilty officials or the
acknowledgement of the wrongful character of an act.

4.2.10 THE IMPLEMENTATION OF STATE RESPONSIBILITY

A State is entitled to invoke the responsibility of another State if the obligation breached is
owed to it individually or to a group of States, including it, or to the international community
as a whole. A State other than an injured State may invoke the responsibility of another
State if either the obligation is owned to a group of States including it, and is established
for the protection of a collective interest of the group, or the obligation breached is owed
to the international community as a whole. In such cases, a State may demand the cessation
of the wrongful act, assurances and guarantees of non-repetition, satisfaction, as well as
reparation. These doctrines are reaffirmed in the ILC Articles beginning from Art 42.

Where several States are injured by the same wrongful act, each State may separately
invoke responsibility. Where several states are responsible, the responsibility of each may
312 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
be invoked. However, responsibility cannot be invoked if the injured State has validly
waived the claim, or it has caused, by reason of its conducts, in the lapse of the claim. Any
waiver needs to be explicit and clear. An injured State may seek to settle its claim peacefully
through any of the peaceful means, or it may take counter measures against the Wrongdoing
State. In a case of an injury affecting its national, the State may provide him with diplomatic
protection.

A State may present an international claim against the wrongdoing State before an
international tribunal. However, a State has to establish its qualifications for bringing the
claim and the validity of the claim itself before the merits of the claim can be addressed.
Where a claim is brought before an international tribunal, objections may be raised against
its admissibility. The first is an objection to the jurisdiction of the tribunal; if successful, it
will stop all proceedings in the case. Other objections are the nationality of the claimant,
the non-exhaustion of local remedies, and the undue delay in presenting the claim.

4.2.10.1 Diplomatic Protection and Nationality of Claims

The doctrine of state responsibility with regard to injuries to nationals is based upon the
attribution to one State of the wrongful act or the omission and the capacity of the other
State to adopt the claim of its injured national. Nationality is the link between the individual
and his State as regards particular benefits and obligations and it is only through the State
the individual may obtain the full range of benefits available under International Law.

Although a State is under a duty to protect its nationals, it is not under a duty to provide
them with diplomatic protection. Thus a State may or may not provide diplomatic protection
to its nationals. Diplomatic protection consists of resorting to diplomatic action or other
means of peaceful settlement by a State adopting in its own rights the cause of its nationals
in respect of an injury to any of its national arising from an internationally wrongful act of
another State. Such diplomatic protection is not a right of the national concerned, but a
right of the State which may or may not choose to exercise.

The exercise of diplomatic protection is not regarded as intervention contrary to International

Law. A State may take up the claim of its national against another state before an
international tribunal. Once a State does this, the claim then becomes that of the state, not
of the injured individuals. Thus, the State may waive its claim, but the individual cannot.

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4.2.10.2 The Exhaustion of Local Remedies

It is established in the customary International Law that before international proceedings

are instituted or claims or representations made, the remedies provided by the local State
should have been exhausted. This rule implies that an injured individual must exhaust
remedies in the courts of the Defendant State before an international claim can be brought
on his behalf. It is a rule which is justified by political and practical considerations, not by
any logical necessity deriving from the International Law. Among the political and practical
considerations suggested to justify such rule are the avoidance of resorting to diplomatic
protection in small and insignificant claims, and the greater suitability and convenience of
local courts as forums for claims of individuals. This rule is reaffirmed in the ILC Articles
which provides that the responsibility of a State may not be invoked if the claim is one to
which the rule of exhaustion of local remedies applies and any available and effective local
remedy has not been exhausted.

The exhaustion of local remedies rule does not apply where one State has been guilty of a
direct breach of International Law causing direct injury to another State. It applies to
cases of diplomatic protection where a State claims injury to its nationals, and when
effective remedies are available in the Wrongdoing State. A claim will not be admissible in
the International Law unless the natural or legal foreign person concerned has exhausted
the legal effective remedies available to him locally in the Defendant State.

4.2.10.3 Unreasonable Delay and Improper Activities of the Injured National

A claim by a State against another State will not be admissible if it is presented after an
unreasonable delay by the Claimant State. It may be inadmissible if the injured national
has suffered injury as a result of his improper activities. However, in such a case, the
injury suffered by the national must be roughly proportional to his improper activities.

4.2.10.4 Resorting to Countermeasures

An injured State may seek to settle its claim peacefully through any of the peaceful means,
or it may take countermeasures against the wrongdoing State. Countermeasures are acts
of retaliation which are traditionally known as “reprisal”. They may be in a form non-
compliance of the injured State with its legal obligations towards the Wrongdoing State,
or unilateral coercive actions taken by the injured State against the Wrongdoing State.

314 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
Such measures are a type of self help utilized in order to induce the Wrongdoing State to
discontinue its wrongful act and to provide reparation. Today, there are certain legal limits
to countermeasures. The most important limit is the prohibition of the armed retaliations
because of the general prohibition of the use of force provided in Article 2(4) of the
Charter of the United Nations. Countermeasures have to be proportional to the wrongful
act. They must not violate basic human rights or the peremptory norms of International
Law.

To conclude the discussion, more than 350 years ago, the treaty of Westphalia led to the
establishment of the classic system of international law, which centred exclusively on
sovereign states that had defined territories and were theoretically equal. States made
international law and were accountable to each other in meeting international legal
obligations. Even though the States continue to be central actors even in the twenty-first
century, where the international community is globalizing, integrating, and fragmenting, At
the same time many other actors like international organizations, nongovernmental
organizations, corporations, ad hoc transnational groups both legitimate and illicit, and
individuals have also become important As a result the international law inhabits a much
more complicated world than the one that existed fifty or even thirty years ago.

The articles on state responsibility of the International Law Commission’s (ILC) Articles
on State Responsibility for wrongful acts affirm this traditional, state centric definition of
state responsibility, crystallize customary international law on state responsibility and set
out reparation, restitution, compensation, satisfaction and guarantees of non-repetition as
the basic legal tools states have to remedy injuries. As the initial ILC report in January
1956 observed, it is important to do more than the codification of the law; it is necessary
to change and adapt traditional law so that it will reflect the profound transformation
which has occurred in international law and to bring the “principles governing State
responsibility” in line with international law at its present stage of development.

4.2.11 LET US SUM UP

In the present lesson we tried to understand what the state succession means and what
are its forms and the main theoretical propositions namely the doctrine of Universal
Succession and the doctrine of Clean Slate, relating to the state succession. Then the

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discussion proceeded towards the codification of the rules governing State succession in
relation to treaties, with respect to property and debts as well as nationality issues which
are very important from the point of the lesson framework. In the last section we have
studied the legal consequences in case of violation of state responsibility.

4.2.12 EXERCISES

1. Define State Succession and discuss various forms of State Succession ?

2. Deal with the two theoretical arguments relating to the State Succession ?

3. Give a detail of the codification of the rules governing the State Succession ?

4. Briefly discuss about the Clean Slate Doctrine ?

5. Write a short note on succession of State with respect to Treaties ?

316 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
M.A. Political Science, Semester IV, Course No. 403, International Organisation & Law
Unit – IV: State Recognition, Sovereignty, Succession and Responsibility

4.3 SETTLEMENT OF INTERNATIONAL DISPUTES:

PACIFIC AND COERCIVE METHODS
- A. Lalitha

STRUCTURE

4.3.0 Objectives
4.3.1 Introduction
4.3.2 U.N. Charter and its Various Provisions
4.3.3 The General Obligations for States
4.3.4 Non-Judicial Methods of Dispute Settlement
4.3.4.1 Negotiation
4.3.4.2 Mediation
4.3.3.3 Arbitration
4.3.5 Judicial Settlement and the International Court of Justice
4.3.5.1 Composition of ICJ
4.3.5.2 Jurisdiction of ICJ
4.3.5.3 Contentious Cases
4.3.5.4 Advisory Jurisdiction
4.3.5.5 Enforcement
4.3.6 Let Us Sum Up
4.3.7 Exercise

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4.3.0 OBJECTIVES

The present lesson makes you aware of various judicial and non-judical mechanisms
developed internationally to settle disputes between the states, with particular reference
to negotiation, mediation, arbitration and also critical role of International Court of Justice
in settling the disputes. After going through this lesson, you will be able to:

• understand the need for pacific settlement of disputes and how UN promoted such
culture;

• learn about the basic difference between the Non-Judicial and Judicial Methods of
dispute settlement; and

• comprehend the merit of pacific settlement of dispute over the Wars and Use of
Force.

4.3.1 INTRODUCTION

Disputes between States belong to the realm of Public International Law. Opposing views,
disagreements between States or a sense of grievance do not necessarily mean that a
dispute exists. In international law ‘dispute’ tends to be treated as a technical term. As
Geoffrey Palmer mentions referring to a case in 1924, the Permanent Court of International
Justice defined dispute ‘as a disagreement on a point of law or fact, a conflict of legal
views or interests between two persons.’

This Peaceful dispute resolution at the international level has occurred more or less formally
since the existence of international law itself, much before the creation of the Permanent
Court of Arbitration. Indeed states engaged in the settlement of disputes through a range
of bilateral and ad hoc mechanisms. As Gideon Boas mentions, an important nineteenth-
century example was the settlement of the famous Caroline dispute, relating to the sinking
by the British of a US ship. That event, still significant in understanding self-defence in
international law, was resolved by diplomatic exchanges between the affected states. The
more ancient examples of states resolving their disputes by peaceful means can be often
found in the Roman system of jus gentium (law of nations).

However, is often felt that prior to 1945, there was no universally accepted prohibition
against the use of force by states to settle disputes except for the existence of some loose
318 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
legal framework. Although, the Hague Peace Conferences of 1899 and 1907 finally led
to creation of an arbitral framework, a Permanent Court of International Justice and a
multilateral treaty rendering the use of force in large part unlawful, they remained
unsuccessful in preventing the Second World War. At the same time, the norms that
developed during this point of time, did lend a greater legitimacy to the prosecution of
German and Japanese leaders following the Second World War for the crime of aggression.

Subsequently, the creation of United Nations in 1945 gave birth to a radical new international
framework under which states must never resort to armed force to settle disputes except
in limited circumstances.
4.3.2 U.N CHARTER AND ITS VARIOUS PROVISIONS
Article 2(4) of the UN Charter prohibits the threat or use of force by states other than in
individual or collective self-defence (Article 51). Article 2(3) provides that all members
‘shall settle their international disputes by peaceful means in such a manner that international
peace and security, and justice, are not endangered’. Under the U.N Charter, pacific
settlement of disputes appears in Chapter VI and Articles 33 to 38 deal with the same as
mentioned below.
Article 33
The parties to any dispute, the continuance of which is likely to endanger the maintenance
of international peace and security, shall, first of all, seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice. The Security Council shall,
when it deems necessary, call upon the parties to settle their dispute by such means.
Article 34
The Security Council may investigate any dispute, or any situation which might lead to
international friction or give rise to a dispute, in order to determine whether the continuance
of the dispute or situation is likely to endanger the maintenance of international peace and
security.
Article 35
Any Member of the United Nations may bring any dispute, or any situation of the nature
referred to in Article 34, to the attention of the Security Council or of the General Assembly.
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A state which is not a Member of the United Nations may bring to the attention of the
Security Council or of the General Assembly any dispute to which it is a party if it accepts
in advance, for the purposes of the dispute, the obligations of pacific settlement provided
in the present Charter. The proceedings of the General Assembly in respect of matters
brought to its attention under this Article will be subject to the provisions of Articles 11
and 12.
Article 36

The Security Council may, at any stage of a dispute of the nature referred to in Article 33
or of a situation of like nature, recommend appropriate procedures or methods of
adjustment. The Security Council should take into consideration any procedures for the
settlement of the dispute which have already been adopted by the parties. In making
recommendations under this Article the Security Council should also take into consideration
that legal disputes should as a general rule be referred by the parties to the International
Court of Justice in accordance with the provisions of the Statute of the Court.

Article 37

Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the
means indicated in that Article, they shall refer it to the Security Council. If the Security
Council deems that the continuance of the dispute is in fact likely to endanger the
maintenance of international peace and security, it shall decide whether to take action
under Article 36 or to recommend such terms of settlement as it may consider appropriate.

Article 38
Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all
the parties to any dispute so request, make recommendations to the parties with a view to
a pacific settlement of the dispute.

To quickly consolidate the main provisions that so far we have discussed, Article 33(1)
obliges parties to a dispute to seek resolution first by ‘negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements,
or other peaceful means of their own choice’. Article 33(2) gives the Security Council the
power to call upon parties to settle disputes by such means as those listed in Article 33(1)
when it deems necessary. The way in which chapter VI is framed allows the Security

320 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
Council to mull over in order to form its views on disputes and take any of the actions
mentioned below:

• Calling upon the parties to settle when it deems necessary,

• Investigating any dispute or any sanction that might lead to international friction;

• Recommending appropriate procedures or methods of adjustment;

• Dealing with disputes referred by the parties where they have failed to settle it;

• And if all the parties so request making recommendations with a view to the pacific
settlement of the dispute.

Besides, the Charter provides that any member may bring any dispute to the attention of
the Security Council or the General Assembly. Art 99 enables the Secretary-General to
bring to the attention of the Security Council any matter that in his opinion may threaten
the maintenance of international peace and security.

The Security Council also has the power under Chapter VII to take measures to maintain
or restore international peace and security, which includes the creation of international
criminal tribunals. Further, the General Assembly’s adoption of Manila Declaration on the
Peaceful Settlement of International Disputes on 15th November 1982 has focused the
attention of member states on the need to strengthen the process of the peaceful settlement
of disputes through progressive development and codification of international rules on the
subject.

4.3.3 THE GENERAL OBLIGATIONS FOR STATES

As discussed, the Manila Declaration created a general obligation on the member states
to adopt ways to resolve international disputes peacefully. In particular, it obligated that
States, as parties to a dispute, shall continue to observe in their mutual relations their
obligations under the fundamental principles of international law concerning the sovereignty,
independence and territorial integrity of States, as well as other generally recognized
principles and rules of contemporary international law.

It further obligates the States to seek in good faith and in a spirit of co-operation an early
and equitable settlement of their international disputes by any of the following means:

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negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional
arrangements or agencies or other peaceful means of their own choice, including
good offices. In seeking such a settlement, the parties shall agree on such peaceful means
as may be appropriate to the circumstances and the nature of their dispute. Such peaceful
means of dispute settlement can be broadly categorized into non-judicial and judicial.

Out of many such means as per the framework of the present lesson we will be discussing
about Negotiations, Mediation, Arbitration and International Court of Justice (ICJ). The
same will be discussed in the subsequent sections.

4.3.4 NON-JUDICIAL METHODS OF DISPUTE SETTLEMENT

The states under dispute attempt to resolve their dispute without approaching for the
judicial remedy. They opt for judicial arbitration only after failing to resolve their problem
bilaterally or using the assistance of third party. The non-judicial methods at the disposal
of the states are elaborated below.

4.3.4.1 Negotiation

Negotiation is by far the most popular means of dispute settlement and consists of
discussions between the interested parties. It is distinguished from other diplomatic means
of settlement in that there is no third party involvement and they are purely consensual and
informal. Therefore, for negotiations to be successful they require a measure of goodwill,
flexibility and mutual understanding between the parties. Negotiations are normally
conducted through ‘normal diplomatic channels’ (foreign ministers, ambassadors, etc)
although some states have set up semi-permanent ‘mixed commissions’ consisting of an
equal number of representatives of both parties which can deal with disputes as and when
they arise, for example the Canadian-US Joint Commission. Negotiation is used to try
and prevent disputes arising in the first place and will also often be used at the start of
other dispute resolution procedures.

Even if a negotiation fails to resolve a dispute, it will often assist the parties in clarifying the
nature of the disagreement and the issues in dispute and in obtaining a clearer idea of their
own and each other’s positions, what they are willing to compromise on and what it might
take to resolve the dispute. In the Mavromattes Palestine Concessions (Jurisdiction) case

322 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
(1924) the PCIJ indicated that negotiation should be a preliminary to bringing a case
before the Court in order that the subject matter of a dispute is clearly defined. Many
treaties provide for negotiation as a precondition to binding international dispute resolution.
Examples include Article 84 of the Vienna Convention on the Representation of States in
their Relations with International Organizations (1975) and Article 41 of the Convention
on the Succession of States in Respect of Treaties (1978). However, neither in the UN
Charter nor otherwise in international law is there any general rule that requires the exhaustion
of diplomatic negotiations as a precondition for a matter to be referred to a court or
tribunal. Nevertheless, the court or tribunal may direct parties at the preliminary stages of
the proceedings to negotiate in good faith and to indicate certain factors to be taken into
account in that negotiation process. Ultimately, there is no obligation on states to reach
agreement, only that ‘serious efforts towards that end will be made’. This requires parties
to ‘negotiate, bargain and in good faith attempt to reach a result acceptable to both parties’.
Examples of a breach of good faith have include unusual delays, continued refusal to
consider proposals and breaking off discussions without justification. Negotiations may
continue while there are other resolution processes under way, formal or informal, and a
resolution may be reached at any time.

4.3.4.2 Mediation

Mediation is the second of the non-binding procedures for the pacific settlement of
international disputes. Unlike the negation, in mediation there will be a third party and the
third party plays a more active role by offering advice and proposals for a solution of the
dispute. This neutral intermediary assists the parties in reaching a negotiated settlement of
the dispute. In a growing number of cases parties agree to first try to settle their dispute
through mediation, and to resort to arbitration only if the dispute has not been settled
within a certain period of time. Mediation is essentially a voluntary process it depends on
the continuing cooperation of both parties since either party can withdraw at any time.
Employed over the years in diplomatic matters, recently parties have begun using mediation
to resolve transnational business disputes prior to binding dispute settlement alternatives
or litigation. This method is particularly popular among Asian cultures.

Currently no consensus exists about the specifics of transnational mediation or its

procedures, thus further complicating matters when it is employed as the only contractual

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means of dispute settlement. However, some international dispute resolution organizations
offer procedural rules for mediation. Since mediation has only recently come to the forefront,
however, these rules remain vague in many areas. For example, the mediator’s duties are
not detailed specifically. The International Chamber of Commerce Rules of Optional
Conciliation merely state that the mediator has discretion to conduct the proceedings as
he or she sees fit. The only restriction imposed on the mediator by many of these rules is
that the mediator operates under the principles of impartiality, equity and justice. Mediators
are left to determine the contents of these principles. Given the lack of rule specificity and
the discretion granted to the mediator, the success of the mediation often depends on the
talents and temperament of the mediator. His or her ability to get the disputants to negotiate
and work towards compromise is of utmost importance. Ultimately, if these techniques
fail and the parties are not satisfied with the settlement, they can pursue other methods of
dispute resolution, such as traditional litigation or arbitration. More specifically, when
international parties use mediation exclusively, there is no guarantee of a binding or definitive
outcome at all.

4.3.4.3 Arbitration

International arbitration is a binding process of resolving disputes between or among

transnational parties through the use of one or more arbitrators rather than through the
courts. It requires the agreement of the parties, which is usually given via an arbitration
clause that is inserted into the contract or business agreement. The decision is usually
binding.

The Hague Convention on Pacific Settlement of Disputes 1899 marked the beginning of a
new era of arbitration by establishing a Permanent Court of Arbitration (PCA) which
began functioning in 1902 and is still in existence. The Permanent Court of Arbitration is a
bit of a misnomer since it is neither a court nor is it permanent. The PCA consists of a
panel of 300 members (four nominated by each contracting party to the Hague Conventions
1899 and 1907) from whom each disputant can select one or more arbitrators (normally
two, one of whom can be a national). The selected arbitrators then choose an umpire who
presides over the arbitration. Decision of the arbitration panel is by majority vote. The
states do not have to use the PCA procedures necessarily; they can establish ad hoc
arbitration tribunals of their own as the arbitration depends on consent. The law to be

324 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
applied, the makeup of the tribunal, any time limits must all be mutually agreed before the
arbitration starts. The mutual agreement under which the parties agree to submit their one
set up to deal with the dispute to arbitration and under which they agree the procedures
and rules to be applied is known as the compromise. The compromise should also provide
that the arbitration decision will be binding on the parties.

The Model Rules on Arbitral Procedures which were drawn up by the International Law
Commission and adopted by the UN General Assembly in 1958. Arbitration has received
popularity more recently especially since the coming into force of the Convention on the
Settlement of Investment Disputes 1964 which set up an international arbitration centre in
Washington to deal with disputes between states arising out of the expropriation of foreign
owned property. Arbitration is today most commonly used for the resolution of commercial
disputes, particularly in the context of international commercial transactions (International
Commercial Arbitration) as the people who have specialist knowledge can be appointed
as arbitrators. It is also used in some countries to resolve other types of disputes, such as
labour disputes, consumer disputes, and for the resolution of certain disputes between
states and between investors and states. It also has the advantage over judicial settlement
in that it is usually less expensive. As the number of international disputes mushrooms, so
too does the use of arbitration to resolve them.

One question which has been raised recently is whether the decision of an arbitration
tribunal is capable of review. It has already been seen that the decisions of such tribunals
are to be regarded as final and this would seem to rule out the possibility of review or
appeal unless there is a clear error of law. As Gideon Boas cites however, in Guinea
Bissau v Senegal (1991) the ICJ was willing to consider whether or not it should declare
an arbitration award to be void. Guinea-Bissau alleged that the arbitration tribunal had
exceeded its powers, that there was no true majority in favour of the decision, and that the
award was based on insufficient reasoning. The Court did not uphold Guinea-Bissau’s
claims but the fact that it was prepared to investigate the claims would indicate that arbitration
awards are susceptible to review by the ICJ. The decision has been criticized on the
grounds that it undermines arbitration as a means of achieving final settlement of disputes.

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4.3.5 JUDICIAL SETTLEMENT AND THE INTERNATIONAL COURT OF
JUSTICE

Judicial Settlement is the fourth method of peacefully settling international disputes. Judicial
settlement means a settlement brought about by a properly constituted international judicial
tribunal, applying rules of law. The most well known of the international judicial tribunals is
the International Court of Justice (ICJ).

The International Court of Justice was established by the Charter of the United Nations,
which provides that all Member States of the United Nations are ipso facto parties to the
Court’s Statute. The composition and functioning of the Court are organized by this Statute,
and by the Rules of the Court which are drawn up by the Court itself. The International
Court of Justice is the primary judicial organ of the United Nations. It is based in the
Peace Palace in The Hague, Netherlands. Its main functions are to settle legal disputes
submitted to it by states and to give advisory opinions on legal questions submitted to it by
duly authorized international organs, agencies, and the UN General Assembly.

4.3.5.1 COMPOSITION OF ICJ

The ICJ is composed of fifteen judges elected for a nine year term by the UN General
Assembly and the UN Security Council from a list of persons nominated by the national
groups in the Permanent Court of Arbitration. The election process is set out in Articles 4-
12 of the ICJ statute. Judges serve for nine year terms and may be re-elected for up to
two further terms. Elections take place every three years, with one-third of the judges
retiring (and possibly standing for re-election) each time, in order to ensure continuity
within the court. Should a judge die in office, the practice has generally been to elect a
judge of the same nationality to complete the term. No two may be nationals of the same
country. According to Article 9, the membership of the Court is supposed to represent the
“main forms of civilization and of the principal legal systems of the world”. Essentially, this
has meant common law, civil law and socialist law (now post-communist law).

4.3.5.2 JURISDICTION OF ICJ

As stated in Article 93 of the UN Charter, all UN members are automatically parties to

the Court’s statute. Non-UN members may also become parties to the Court’s statute
under the Article 93(2) procedure. For example, before becoming a UN member state,

326 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
Switzerland used this procedure in 1948 to become a party. And Nauru became a party
in 1988. Once a state is a party to the Court’s statute, it is entitled to participate in cases
before the Court. However, being a party to the statute does not automatically give the
Court jurisdiction over disputes involving those parties. The issue of jurisdiction is considered
in the two types of ICJ cases: contentious issues and advisory opinions.

The International Court of Justice acts as a world court. The Court has a dual jurisdiction
: it decides, in accordance with international law, disputes of a legal nature that are submitted
to it by States (jurisdiction in contentious cases); and it gives advisory opinions on legal
questions at the request of the organs of the United Nations or specialized agencies
authorized to make such a request (advisory jurisdiction).

4.3.5.3 Contentious Cases

In contentious cases (adversarial proceedings seeking to settle a dispute), the ICJ produces
a binding ruling between states that agree to submit to the ruling of the court. Only states
may be parties in contentious cases. Individuals, corporations, parts of a federal state,
NGOs, UN organs and self-determination groups are excluded from direct participation
in cases. The key principle is that the ICJ has jurisdiction only on the basis of consent.
Article 36 outlines four bases on which the Court’s jurisdiction may be founded.

Firstly, 36(1) provides that parties may refer cases to the Court (jurisdiction founded on
“special agreement” or “compromise”). This method is based on explicit consent rather
than true compulsory jurisdiction. It is, perhaps, the most effective basis for the Court’s
jurisdiction because the parties concerned have a desire for the dispute to be resolved by
the Court and are thus more likely to comply with the Court’s judgment.

Secondly, 36(1) also gives the Court jurisdiction over “matters specifically provided for
... in treaties and conventions in force”. Most modern treaties will contain a compromissery
clause, providing for dispute resolution by the ICJ. Cases founded on compromissory
clauses have not been as effective as cases founded on special agreement, since a state
may have no interest in having the matter examined by the Court and may refuse to comply
with a judgment. For example, during the Iran hostage crisis, Iran refused to participate in
a case brought by the US based on a compromissory clause contained in the Vienna
Convention on Diplomatic Relations, nor did it comply with the judgment. Since the 1970s,

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 327
the use of such clauses has declined. Many modern treaties set out their own dispute
resolution regime, often based on forms of arbitration.

Thirdly, Article 36(2) allows states to make optional clause declarations accepting the
Court’s jurisdiction. The label “compulsory” which is sometimes placed on Article 36(2)
jurisdiction is misleading since declarations by states are voluntary. Furthermore, many
declarations contain reservations, such as exclusion from jurisdiction certain types of
disputes. The principle of reciprocity may further limit jurisdiction. Of the permanent Security
Council members, only the United Kingdom has a declaration. In the Court’s early years,
most declarations were made by industrialized countries. Since the Nicaragua Case,
declarations made by developing countries have increased, reflecting a growing confidence
in the Court since the 1980s. Industrialized countries however have sometimes increased
exclusions or removed their declarations in recent years. Examples include the USA, as
mentioned previously and Australia who modified their declaration in 2002 to exclude
disputes on maritime.

Finally, 36(5) provides for jurisdiction on the basis of declarations made under the
Permanent Court of International Justice’s statute. Article 37 of the Statute similarly transfers
jurisdiction under any compromissory clause in a treaty that gave jurisdiction to the PCIJ.

In addition, the Court may have jurisdiction on the basis of tacit consent. In the absence of
clear jurisdiction under Article 36, jurisdiction will be established if the respondent accepts
ICJ jurisdiction explicitly or simply pleads on the merits. The notion arose in the Corfu
Channel Case (UK v Albania, 1949) in which the Court held that a letter from Albania
stating that it submitted to the jurisdiction of the ICJ was sufficient to grant the court
jurisdiction. Examples of contentious cases include: a complaint by the United States in
1980 that Iran was detaining American diplomats in Tehran in violation of international
law; a dispute between Tunisia and Libya over the delimitation of the continental shelf
between them.

4.3.5.4 Advisory Jurisdiction

An advisory opinion is a function of the Court open only to specified United Nations
bodies and agencies. On receiving a request, the Court decides which States and
organizations might provide useful information and gives them an opportunity to present

328 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
written or oral statements. Advisory Opinions were intended as a means by which UN
agencies could seek the Court’s help in deciding complex legal issues that might fall under
their respective mandates. In principle, the Court’s advisory opinions are only consultative
in character, though they are influential and widely respected. Whilst certain instruments
or regulations can provide in advance that the advisory opinion shall be specifically binding
on particular agencies or states, they are inherently non-binding under the Statute of the
Court.

The non-binding character does not mean that advisory opinions are without legal effect,
because the legal reasoning embodied in them reflects the Court’s authoritative views on
important issues of international law and, in arriving at them, the Court follows essentially
the same rules and procedures that govern its binding judgments delivered in contentious
cases submitted to it by sovereign states. An advisory opinion derives its status and authority
from the fact that it is the official pronouncement of the principal judicial organ of the
United Nations. Advisory Opinions have often been controversial, either because the
questions asked are controversial, or because the case was pursued as an indirect
“backdoor” way of bringing what is really a contentious case before the Court.

4.3.5.5 Enforcement

Article 59 of the ICJ provides that a decision of the Court “has no binding force except
between the parties and in respect of that particular case”. This Article, therefore, indicates
that the decision in a particular case is binding on the parties involved in the dispute alone.
In practice, however, decisions and Advisory Opinions which advance the jurisprudence
of international law are referenced and used in support of subsequent decisions both by
the court and other international tribunals. With regard to the parties to a specific case,
Article 94 of the UN Charter provides that all Members of the UN undertake to comply
with any decision of the ICJ to which they are a party and, if a state fails to comply with
this decision, recourse may be had to the Security Council which may make
recommendations or decide upon measures to be taken to give effect to the judgment. In
practice, the Security Council has refrained from enforcing ICJ decisions, and is unlikely
to do so for political reasons.

The record of state compliance with decisions of the ICJ has been mixed. There have
been examples of states respecting and complying with the orders of the Court, including

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 329
the Territorial Dispute case where measures imposed by the Court in relation to a border
dispute between Libya and Chad were complied with. On the other hand, there are a
number of cases where states have refused to comply with the decision of the Court, for
example the Corfu Channel case, where an order to pay remedies was ignored by Albania,
and the Tehran Hostages case, where Iran ignored the Court’s order to free the hostages.

4.3.6 LET US SUM UP

In this lesson we discussed how the pacific settlement of disputes slowly replaced force as
a method of resolving the disputes between and among states and how the creation of
United Nations Organization has radicalized the process of pacific settlement of disputes.
The four methods that we discussed are not exhaustive, but many other methods exist
outside the purview of the lesson. Reflecting the nature of the international law many of
such methods are essentially non binding and in some cases the binding is limited to the
consented parties. However, such a settlement of dispute would always become a reference
and source in the evolution of international law.

These methods obligate the States to observe their mutual relations, their obligations under
the fundamental principles of international law concerning the sovereignty, independence
and territorial integrity of States and to seek in good faith and in a spirit of co-operation an
early and equitable settlement of their international disputes. Any one particular method or
process itself may not lead to the resolution of dispute sometimes, hence, the methods are
not to be used isolating from the other but only as a precursor to the one in hierarchy.
While the states could not make use of these methods as much as they need to be, owing
to several reasons, in the initial phases, off late the methods once again gained prominence
indicating the faith in the spirit of co-operation.

4.3.7 EXERCISE

1. What is Pacific Settlement of Disputes? Explain various provisions that deal with
pacific settlement of disputes that appear in Chapter VI of under the U.N. Charter?

2. What are Non-Judicial Methods of Dispute Settlement? Discuss each method

mentioned in the lesson ?

330 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
3. Deal with the basic difference between the Non-Judicial and Judicial methods of
Dispute Settlement of Disputes ?

4. Discuss the functions and role of International Court of Justice in dispute settlement?

5. Write a brief note on Negotiation ?

6. What is Arbitration and how it works?

7. What do you understand by Mediation?

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 331
M.A. Political Science, Semester IV, Course No. 403, International Organisation & Law
Unit – IV: State Recognition, Sovereignty, Succession and Responsibility

4.4 INTERNATIONAL HUMANITARIAN LAW : AN

OVERVIEW OF LEGAL REGIME
STRUCTURE - SAKSHI SHARMA

4.4.1 Introduction

4.4.2 What is international humanitarian law

4.4.3 Application of International Humanitarian law

4.4.4 Purpose of International Humanitarian Law

4.4.5 Major Instruments of International Humanitarian Law

4.4.6 Origin and development of International Humanitarian law

4.4.7 The Geneva Convention for the Amelioration of the condition of the wounded
and sick members: The First Geneva Convention

4.4.8 Protection of Wounded, Sick and Shipwrecked in Armed Forces at Sea: The
Second Geneva Convention

4.4.9 Protection of Prisoners of War: The Third Geneva Convention

4.4.10 Protections of Civilians: The Fourth Geneva Convention

4.4.11 Protection of Defenseless person and protocol Additional to the Geneva

Convention of 1949 relating to the protection of Victims of International Armed
Conflict (Protocol I)

332 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
4.4.12 Internal Armed conflict and the protocol additional to the Geneva Convention,
relating to the protection of Victims of non-internationalArmed Conflicts (Protocol
II) :

4.4.13 Protocol Additional to the Geneva Conventions, and relating to the Adoption of
an Additional Distinctive Emblem (Protocol III)

4.4.14 Contemporary issues and challenge with special reference to the implementation
of the humanitarian law

4.4.15 Let Us Sum Up

4.4.16. Exercise

4.4.1 INTRODUCTION

International humanitarian law is also known as the laws of war or the law of armed
conflict. It is the legal framework applicable to situations of armed conflict and occupation.
It is a set of rules and principles aimed at humanitarian reasons so as to limit the effects of
armed conflict.

Two principles which are fundamental to IHL

a. Persons who are not, or are no longer, participating in hostilities must be protected;
and

b. The right of parties to an armed conflict to choose methods and means of warfare
is not unlimited.

It is important to know that can the opposite parties in war use any means and methods of
warfare or are there any limits because in war if parties are given freedom to use any
means and methods of warfare, then the all kinds of brutalities may also be committed
which may outrage the conscience of human civilization. If the persons who fight war,
become sick or wounded, can they still be the enemies to be worth fought against or they
should rather be given first aid so that they can recover and then fight for their nation? If
there is a naval warfare, and suppose the ship of one party is wrecking inside the sea, can
Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 333
the fight still continue to finish the persons inside sea? To answer all these above questions,
let us ponder upon.

History of human civilization is replete with all kinds of wars whether local, regional,
national, and international. Same is true of the brutalities committed during these wars. We
know that wars are the blots to humanity and involve brutal and arbitrary violence. Therefore,
several attempts have been made at all levels to make some rules of conduct even during
warfare. Those attempts have been instrumental in shaping the modem laws of warfare.
The new nomenclature, “international humanitarian law” is given to the law of war because
earlier wars have been declared illegal under international law. Now-a-days, there are
many examples of armed conflicts resorted to by the nations which are not in the nature of
war.

4.4.2 WHAT IS INTERNATIONALHUMANITARIAN LAW

IHL has been defined by the International Committee of the Red Cross (ICRC) to mean
“international rules, established by treaties or custom, which are specifically intended to
solve humanitarian problems directly arising from international or non-international armed
conflicts and which, for humanitarian reasons, limit the right of Parties to a conflict to use
the methods and means of warfare of their choice or protect persons and property that
are, or may be, affected by conflict”

4.4.3 APPLICATION OF INTERNATIONAL HUMANITARIAN LAW

International humanitarian law is applicable in the situations of an armed conflict between

the armed forces of two or more states or between the armed forces of a state and an
organized resistance movement inside the country. It is not relevant for international
humanitarian law to know about the reasons of the armed conflict. Only the fact that an
armed conflict has arisen that international humanitarian law starts to step in.

Two terms are generally important in this regard. One is called ‘jus in bello’ and another is
called ‘jus ad bellum’. Jus ad bellum means rules of international law related to prohibition
of the use of force against another nation. On the other hand, jus in bello means the rules
of international law related to regulation of armed conflict by promoting humanity. The
Charter of United Nations does not only prohibit war, but also prohibits the threat to use
force against the territorial integrity or political independence of any nation. The nation

334 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
states are ordained by international law to settle their differences in all circumstances by
peaceful means. Even if a nation state justifies the use of force on some moral grounds, it
is not legal unless the use of force is for self-defense. The UN Charter permits the use of
force in self-defense. Self-defense means that if a nation state is attacked, then it has to
defend itself. For that purpose, use of force is justified. These rules are the rules of jus ad
bellum.

4.4.4 PURPOSE OF INTERNATIONAL HUMANITARIAN LAW

a. To foster the peaceful solution of disputes and to prevent recourse to force.

b. If a war nonetheless takes place, to limit its ill-effects by concrete action and the
putting into effect of humanitarian law.

c. During wartime to improve the chances of and actively prepare for the return to
peace.

4.4.5 MAJOR INSTRUMENTS OF INTERNATIONAL HUMANITARIAN

LAW

The major sources of IHL are the four Geneva Conventions of 1949 and three Protocols
additional to these conventions and notably:

1. Geneva Convention for the Amelioration of the Condition of Wounded and Sick
in armed forces in the Field of12 August, 1949

2. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked members of armed forces of Sea of 12 August, 1949

3. Geneva Convention relative to the treatment ofPrisoners of War(POW)of 12

August, 1949.

4. Geneva Convention relative to the protection of civilian persons in times of war of

12 August, 1949

The three Protocols Additional to these Conventions are:

1. Protocol Additional to the Geneva Convention of 12 August 1949 relating to the

Protection of Victims of International Armed Conflict (Protocol I), 8 June 1977

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 335
 2. Protocol Additional to the Geneva Convention of 12 August 1949 relating to the
Protection of Victims of Non-internal Armed Conflicts(Protocol II), 8 June 1977

3. Protocol Additional to the Geneva Conventions of 12 August 1949relating to the

Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005
In addition to these documents, international humanitarian law also consists of some earlier
declarations and conventions for instance the declaration of Paris 1856, the declaration of
Petersburg of 1868, the Hague Convention of 1899 and 1907, the 1925 Protocol for the
Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological
Methods of Warfare; the 1954 Convention for the Protection of Cultural Property in the
Event of Armed Conflict and its two Protocols of 1954 and 1999; the 1972 Convention
on the Prohibition of the Development, Production and Stockpiling of Bacteriological
(Biological) and Toxin Weapons and on their Destruction; the 1976 Convention on the
Prohibition of Military or any Other hostile use of; Environmental Modification Techniques;
the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons which might be excessively injurious or to have indiscriminate effects(CCW)
and its five Protocols of 1980 (I, II and III), 1995 (IV), and 2003 (V); the 1993
Convention on the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on their Destruction; the 1997 Convention on the Prohibition of
the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their
Destruction (APMBC);the 2000 Optional Protocol to the Convention on the Rights of
the Child on the involvement of children in armed conflict; the 2006 International Convention
for the Protection of All Persons from Enforced Disappearance;the 2008 Convention on
Cluster Munitions (CCM).In addition, the 1998 Statute of the International Criminal Court
(ICC) established the Court’s jurisdiction in respect of war crimes (Article 8), thus
strengthening States’ obligation to prevent serious violations of IHL.

Many provisions of the treaties mentioned above are now thought to reflect customary
IHL and are, consequently, binding on all states and all parties to a conflict.

4.4.6 ORIGIN AND DEVELOPMENT OF INTERNATIONAL

HUMANITARIAN LAW

The IHL is comparatively recent in its origin may be traced back to the first Geneva
Convention of 1864. It is known as the Geneva Convention for the Amelioration of the
336 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
condition of the wounded in Armies in Field. The rules contained herein are of general
nature and concerns mainly with the protection of war victims.Another milestone in the
development of IHL was the Hague conferences of 1899 and 1907. Many conventions
were adopted at these conferences which provided for the regulation of conduct of
hostilities. The purpose of this convention was not only to regulate the conduct of hostilities
and thus to limit the means to causing injuring to enemy, but also to provide better protection
to the combatants and war victims. For this reason, this convention may be described as
IHL applicable in armed conflict. Notably, the IHL in its initial stages of development was
concerned mainly with the protection of war victims. This trend has continued throughout
the period of World War Ist. However, in 1919, the League of Red Cross Society was
organized with the mandate to provide assistance to the victims of natural calamity on an
international basis which has added new dimension to the scope of IHL.

The period immediately after the end of the second world war may be described as epoch
marking from the view of the development of IHL because of the fact that four new
international humanitarian instruments that is four Geneva Conventions of 1949 were evolved
during this period. Not only this, these conventions have imposed corresponding
responsibilities and duty upon the parties to the conflict, upon the protecting power, the
International Committee of Red Cross, other humanitarian organizations and to certain
extent upon the neutral state also.In addition, the UN has adopted a convention in 1981
concerning the prohibition or restriction on the use of certain conventional weapons. The
purpose of this convention is to protect the human beings from the weapons which are
very cruel and excessively injurious in effect.

Protection of Defenseless in war

The four Geneva Convention are made for the protection of defenseless in war

1. The Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick members of armed forces in the field.

2. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Ship wrecked members of Armed Forces

3. Geneva Convention relative to the treatment of Prisoners of War.

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 337
 4. Geneva Convention relative to the protection of civilian persons in times of war.

4.4.7 THE GENEVA CONVENTION FOR THE AMELIORATION OF THE

CONDITION OF THE WOUNDED AND SICK MEMBERS OF
ARMED FORCES IN THE FIELD:

For the protection of wounded and sick in armed forces in the field,the first Geneva
convention has followed the fundamental principle:

“Wounded or Sick and therefore defenseless combatants shall be respected and cared
for, whatever their nationality, personnel attending them, the buildings in which they shelter
and the equipment used for their benefit, shall be protected a red cross on a white ground
shall be emblem of this immunity”.

4.4.7.1 PERSONS WHO ARE ENTITLED TO BE PROTECTED UNDER THE

FIRST CONVENTION:

Article 12 of the first Geneva convention mentions following two categories of persons
who shall be protected and respected in all circumstances.

a. The wounded and sick members of armed forces.

b. The wounded and sick persons put on the same footing as members of the armed
forces which includes:

Firstly, Members of militia or volunteer corpseincluding those of organized resistance

movements belonging to a party to a conflict and operating in or outside their own
territory. Secondly, members of regular armed forces who profess allegiance to a
government or an authority not recognized by the detaining power. Thirdly,persons
who accompany the armed forces without being member thereof, such as civil members
of military aircraft.Fourthly, members of crew, including masters, pilots, apprentices
of the merchant marine and the crews of civil aircraft of the parties to the conflict, who
do not benefit by more favorable treatment under any other provisions in international
law. Lastly,Inhabitants of a non-occupied territory who on the approach of the enemy
spontaneously take up arms to resist the invading forces, without having time to form

338 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
 themselves into regular armed units, provided that they carry arms openly and respect
the laws and customs of war.

4.4.7.2 PROTECTION AND CARE

Article 12 of the first Geneva Convention lays down following protections and care to be
provided to wounded and sick:

Persons belonging to the categories mentioned above are supposed to be treated humanely
and cared for by the party to the conflict without any adverse distinction on the basis of
sex, race, nationality, religion, political opinions, or any other similar criteria;Any attempts
upon their lives, or violence’s to their persons would be strictly prohibited, in particular,
they should not be murdered or exterminated, subjected to torture or to biological
experiments;They should notwillfully be left without medical assistance and care, nor should
condition exposing them to contagion or infection be created;Women should be treated
with all consideration due to their sex.The party to the conflict which is compelled to
abandon wounded and sick to the enemy should, as far military consideration permit,
leave with them apart of its medical personnel and materials to assist in their care.

4.4.7.3 SEARCH FOR CAUSALITIES AND EVACUATION

Article 15 of the first Geneva convention of 1949 imposes obligation upon the parties
involved in the conflict to take certain measures to ensure protection and care to the
wounded or sick. The parties to the conflict are enjoined to take without delay, all possible
measures as:

1. To search for and collect the wounded and sick;

2. To protect them against, pillage and ill-treatment;

3. To ensure their adequate care;

4. To search for the judge and prevent there being despoiled.

4.4.7.4 PRESCRIPTION, REGARDING THE DEAD, GRAVES

REGISTRATION SERVICE

Parties to the conflict should ensure that burial or cremation of the death carried out
individually as far as circumstances permits. However, burial or cremation should be

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preceded by a careful examination, if possible, by a medical examination, of the bodies,
with a view to confirming death, establishing identity and enabling a report to be made.It
is provided under Article 17 of the first Geneva convention that bodies should not be
cremated except for imperative reasons of hygiene or for motives based on the religion of
the deceased. In case of cremation, the circumstances and reasons for cremation should
be stated in detail in the death certificate or on the authenticated list of the dead.As soon
as circumstances permit, and at least at the end of hostilities, the official Graves Registration
Services should exchange through the Prisoners of War information Bureau lists showing
the exact location and markings of the graves together with particulars of the dead interred.

4.4.8 PROTECTION OF WOUNDED, SICK AND SHIPWRECKED IN

ARMED FORCES AT SEA: THE SECOND GENEVA CONVENTION
1949

The Second Geneva Convention is called the maritime convention, is the extension of the
First Geneva Convention. It applies the terms of the first convention to the maritime warfare.
The general plan of this second convention covers the same field and protects the same
categories of persons as the First

4.4.8.1 PERSONS ENTITLED FOR PROTECTION AND CARE

Article 12 of the second Geneva convention protects the shipwrecked in addition to the
wounded and sick. It laid down that:

1. Members of the armed forces;

2. The persons put on the same footing as members of the armed forces
should be protected and respected in all circumstances if:

a. they are at sea; and

b. they are wounded, sick or shipwrecked. The term “Shipwrecked” means

shipwreck from any cause and includes forced landings at Sea by or from
aircraft.

Persons put on the same footing as members of armed forces are described under Article
13 of the second convention and it is the same persons as given under the first Geneva
convention.
340 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
4.4.8.2 PROTECTION AND CARE

The protection and care may be discussed under the following four headings:

a. Protection of wounded, sick and shipwrecked;

b. Protection of hospital ships and other aircraft;

c. Protection of medical personnel;

d. Protection ofmedical transport.

A. Protection of Wounded, Sick and Shipwrecked:

1. Wounded, sick and shipwrecked should be treated humanely and cared for by
the parties to the conflict without any adverse distinction based on sex, race,
nationality, religion, political opinion or any other similar criteria;They are entitled
to be protected against any attempt upon their lives, or violence to their persons.
They should not be murdered exterminated, subject to torture or biological
experiment;They are entitled for medical assistance and care. They should not
willfully be left without medical assistance and care, nor should conditions be
exposing them to contagion or infection created.Women should be treated with
all consideration due to their sex.The wounded, sick and the shipwrecked of a
belligerent who fall into enemy hands are, besides being given above treatments
also entitled to be treated as POW.

B. Protection of hospital ships and other crafts: -

1. Military hospital ships should in no circumstances be attacked or captured.

2. Medical established ashore should be protected from bombardment or attack

from the sea.

3. Hospital ships utilized by National RedCross Societies,officially recognized as

relief societies or by private persons of parties to conflict as well as private persons
of neutral countries should have the same protection as military hospital ship and
should be exempted from being captured.

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 341
 4. Smallcraft employed by the state or by the officially recognized lifeboat institutions
for coastal rescue operations should be respected and protected as far as operational
requirements permit.

5. The fixed coastal installations used exclusively by these craft for their humanitarian
missions should also be respected and protected.

6. If fighting occurs on board a warship, the sick-bays should be respected and

secured as far possible.

7. Any hospital ship in a port which falls into the hands of the enemy should be
authorized to leave the said port.

8. Merchant vessels which have been transformed into hospital ships can’t be put to
any other use throughout the duration of hostilities.

C. Protection of Medical Personnel: - Chapter IV of the second Geneva

Convention deals with the protection of the personnel of hospital ships and medical
and religious personnel of other ships. These may be discussed as follows: -

1. Protection of the personnel of hospital ship: -The religious, medical

and hospital personnel of hospital ships and their crews should be respected
and protected. They may not be captured during the time they are in the
service of the hospital ship, whether or not there are wounded and sick
on board.

2. Protection of medical and religious personnel of other ships: - The

religious, medical and hospital personnel assigned to medical or spiritual
care of the wounded, sick and shipwrecked if fall into the hands of the
enemy, be respected and protected.They should continue to carry out
their duties as long as this is necessary for the care of the wounded and
sick.Such personnel may take with them, on leaving the ship, their personal
property. Some of these personnel may, however, be retained owing to
the medical and spiritual needs of POW. In such cases, everything possible
should be done for their earliest possible landing.

342 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
D. Protection of Medical Transport: -Chapter V of the second Geneva Convention
deals with the protection of ships used for the conveyance of medical equipment, medical
aircraft etc. These may be discussed as follows:
a. Ships used for the conveyance of the medical equipment: -The ships chartered
for the purpose of transporting medical equipment’s should be authorized to transport
such equipment exclusively intended for the treatment of wounded and sick members of
armed forces or for the prevention of disease, provided that the particulars regarding their
voyage should be notified to the adverse power and approved by the letter.

b. Medical aircrafts: -Medical aircrafts are aircraft exclusively employed for the removal
of wounded, sick or shipwrecked, and for the transport of medical personnel and equipment
should not be object of attack.Such medical aircraft should be respected by the parties to
the conflict while flying at heights at times and on routes specifically agreed upon between
the parties to the conflict concerned. However, flights over enemy or enemy-occupied
territory are prohibited unless agreed otherwise.Medical aircraft should obey every
summons to alight on land or water.

c. Flight over Neutral Countries:Landing of wounded: -Article 40of second Geneva

Convention lays down provisions regarding: -
a. Flight of medical aircraft over neutral countries. -Medical aircraft of the
parties to the conflict may fly over the territory of neutral powers, land there on in
case of necessity or use it as a part of call. They should give a prior notice to the
neutral powersfor their passage over the said territory, and obey every summons
to alight on land or water. They would be immune from attack only when flying on
roots, at heights and at times specifically is agreed upon between the parties to the
conflict and the neutral powers concerned.

b. Landing of Wounded: The Wounded, Sick or shipwrecked who are

disembarked with the consent of the local authorities on neutral territory by medical
aircraft should be detained by the neutral powers. Whereso required by international
law, in such a manner that they cannot again take part in operation of law. However,
an agreement between the neutral powers and the partis to conflict. The cost of
their accommodation and interment has to be borne by the power on which they
depend.

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 343
4.4.9 PROTECTION OF PRISONERS OF WAR: THE THIRD GENEVA
CONVENTION

It is now widely accepted that the Prisoners of War are not criminals. They are merely an
enemy no longer able to bear arms. As such, they are defenseless persons who are entitled
to be respected and treated humanely while in captivity and to be liberated at the close of
hostilities. Keeping in mind these requirements, the rules regarding the protection of POWare
formulated in the form of the third Geneva convention 1949. These rules may be discussed
as follows:

4.4.9.1 Prisoners of war: Article 4 of third Geneva Convention defines the

categories of persons entitled to be treated as prisoners of war.These are also
same persons (members) as those covered under the first and the second Geneva
Conventions respectively.

4.4.9.2 General Protection of Prisoners of War: Part II of the Third General Convention
(Article 12-16) deals with the essential principles which shall at all times and in all places,
govern the treatment of prisoners of war. The prisoners of war are entitled for following
protections in general:

1. Prisoners of War must be humanly treated. No Prisoners of War should be

subjected to physical mutilation or to medical or scientific experiments.

2. Prisoners of War are entitled to respect for their persons and their honour.

3. Women should be treated with all regard due to there sex. They should retain the
full civil capacity which they enjoyed at the time of their capture.

4. The power detaining Prisoners of War have to be bound to provide free of charge
for their maintenance and for the medical attention required by their health.

5. They shall be treated alike by the detaining power, without any adverse distinction
based on race, nationality, religious belief or political opinion, or any other distinction
founded on similar criteria.

4.4.9.3Protection of Prisoners of War under Captivity: -Part III of the third Geneva
Convention deals with the protection of the Prisoners of War under captivity. It is divided

344 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
into six sections. First section deals with interrogation of prisoners, property of prisoners
and there evacuations;Second section deals with living conditions for prisoners in camp or
during transfer, the places and methods of internment accommodation, food and clothing,
hygiene and medical attention, medical and religious personnel retained for the care of
prisoners, religious needs, intellectual and physical activities, discipline, Prisoners of War
ranks and transfer after arrival in camp;Third Section deals with prisoners’ labour;Fourth
section deals with financial resources of prisoners;Fifth section deals with correspondence
and relief shipments; Sixth section deals with penal and disciplinary procedure.

4.4.9.4 Repatriation of Prisoners of War: - There are two kinds of repatriation.

First, Repatriation and Accommodation of Prisoners in Neutral Countries during

Hostilities: -Throughout the duration of hostilities, parties to the conflict should make
effort, with the cooperation of the neutral powers to make arrangements for the
accommodation in neutral countries of the sick and wounded prisoners of war. Thus,
repatriation to neutral countries has to be resorted to during the period when hostilities are
continuing for the welfare of the wounded and sick POW. However, no sick or injured
POW may be repatriated against his will during hostilities. Moreover, no POW on whom
a disciplinary punishment has been imposed and who is eligible for repatriation or for
accommodation in a neutral country, be kept back on the plea that he has not undergone
his punishment.

Second, Repatriation of POW at the close of hostilities: -After the cessation of

active hostilities, the POW should be released and repatriated without delay. In the absence
of any agreement between the parties to conflict, each of detaining powers should itself
establish and execute without delay a plan of repatriation. The costs of repatriation of
POW should in all cases be equitably apportioned between the detaining power and the
power on which the prisoners depend. POW should be allowed to take with them their
personnel effect, and correspondence, and parcels which have arrived for them.Prisoners
of War against whom criminalproceedings for an indictable offence are pending may be
detained until the end of such proceedings, and if necessary, until the completion of
punishment. The same should apply to Prisoners of War already convicted by an indictable
offence. Moreover, in case of death, the Prisoners of War should be buried honorablyas
per the last rites of the religion to which they belonged.

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 345
4.4.10. PROTECTIONS OF CIVILIANS:

Fourth Geneva Convention, 1949: The fourth Geneva Convention aims at ensuring
that “even in the midst of hostilities the dignity of human person. universally acknowledged
in principles, should be protected.

4.4.10.1 Protected Persons:Article 4 of the Fourth Geneva Convention describe the

persons who are protected under the convention. Protected person means a person who
finds himself in case of conflict or occupation, in the hands of a party to the conflict or
occupying power of which is not a national. Nationals of a state which is not bound by the
convention or not protected by it. However, following persons are not included in the
category of the protected persons.

i. Nationals of a neutral state who finds themselves in the territory of a belligerent

state, and nationals of co-belligerent state;

ii. Persons protected by the First Geneva Convention, 1949;

iii. Persons protected by the Second Geneva Convention 1949 and

iv. Persons protected by the Third Geneva Convention, 1949.

4.4.10. 2General Protection of Populations Against Certain Consequences of War:

1. Establishment of hospital and safety zones and localities: The high contracting
parties may establish in their own territory and if the need arises, in occupied areas hospital
and safety zones and localities for the protection of wounded sick and aged persons
children under fifteen, expectant mothers and mothers of children under seven from the
effect of war.

2. Establishment of neutralized zone: The parties to the conflict should establish neutral
zones by writtenagreement, in the regions where fighting is taking place.

3. General protection of wounded and sick: The Wounded and sick, as well as infirm
and expectant mothers should be given protection and respect.

4. Evacuation of wounded and sick etc: - The Parties to the conflict should make an
effort to conclude local agreements for the removal from besieged or encircled areas, of
wounded, sick, infirm and aged persons, children and maternity cases and for the passage

346 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
of ministers of all religions, medical personnel and medical equipment on their way to such
area.

5. Protection of hospital and hospital staff: - Civilian hospitals organized to give care
to all such peopleshould not be attacked in any circumstances and be respected and
protected by the parties to the conflict.

6. Protection of hospital vehicles and trains: - Hospital vehicles, trains and vessels on
sea conveying wounded and sick civilian, the infirm and maternity cases be respected and
protected and should be marked by emblem of red cross on a white ground.

7.Protection of hospital aircraft: - Aircraft should not be attacked and should be

respected while flying at heights time, and on routes.

4.4.10.3. Status and treatment of protected person: - Part III of the fourth Geneva
Convention 1949 deals with the status and treatment of protected persons-this subject
matter has been dealt with in following five sections.

1. General Protection to protected persons;

2. Aliens in the territory of a party to conflict;

3. Prescription for occupied territories;

4. Internment;

5. Information Bureau and the central Agency.

1.General protection to protected persons: -Provisions relating to the general protection

of protected persons are common to the territories of the parties to the conflict and to
occupied territories.Women should be especially protected against any attack of their
honour,in particular,against rape, enforced prostitution,or any form of incident assault.All
protected persons should be treated with the same consideration by the party to the
conflict.

2. Aliens in the territory of a party to conflict: -All Aliens who may desire to leave the
territory at the outset of or during a conflict,should be entitled to do so,unless, departure
is contrary to the national interests of the state.Those persons permitted to leave may

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 347
provide themselves with necessary funds for their journey and take with them a reasonable
amount of their effects and articles of personal use.

3.Prescriptions for occupied territories: -Certain obligations have been imposed upon
occupying power for the welfare of protected persons who are living in the occupied
territory. Article 47 of the fourth Geneva Convention provides that protected persons
who are in occupied territory should not be deprived from the benefits of the present
convention. Following rights are provided to themlike deportation is prohibited, individual
or mass forcible transfer is not prohibited, labour enlistment is prohibited. Also,hygiene,
public health, penal legislation, enforcement of penal legislation of such persons is taken
care of.

4.Internment: - Protected persons may be interned in following circumstances:

a. The Internment of the protected persons may be ordered only if the security
of the detaining powers makes it absolutely necessary.

b. If any person acting through the representatives of the protecting powers,

voluntary demand Internmentif his situation renders this step necessary,
he should be interned by the powers in whose hands he may be.

c. Protected persons who commit an offence which is solely intended to

harm the occupying power but which doesn’t constitute an attempt on life
or limb of members of the occupying forces or administration, nor a grave
collective danger, nor seriously damage the property of the occupying
forces or administration or the installations used by them should be liable
to internment provided the duration of such internment is proportionate to
the offence committed.

d. If the occupying power considers it necessary, for imperative reasons of

security, to take safety measures concerning protected persons, it may, at
the most subject them to assigned residence.

5. Information Bureau and Central Agency: -This has been dealt with under section
V of the part III of the fourth Geneva Convention.

348 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
4.4.11 Protectionof Defenseless person and protocol Additional to the Geneva
Convention of 1949 relating to the protection of Victims of International Armed
Conflict (Protocol I)

The application of the Protocol I is not limited only to the international armed conflict
which has been defined, under common Article 2 of the Geneva Conventions as “all cases
of declared war of any other Armed conflict which may arise between two or more of the
High Contracting Parties even if the state of war is not recognized by one of them. Instead,
its application has been extended to “Armed conflicts in which peoples are fighting against
colonial domination and alien occupation and against racist regimes in the exercises of
their right of self-determination, as enshrined in the charter of the United Nations and the
Declaration on the principles of International Law concerning Friendly Relations and
Cooperation among states in accordance with the charter of the United Nations. Thus,
the meaning of the term “armed conflict” has been expanded to include the wars of the
national liberation”.

Article 3(a) of the Protocol I extends the application of the four Geneva Conventions to
the Armed conflicts to which Protocol I applies. The coverage of protections envisaged
under the four Geneva Conventions has thus been extended to the Armed conflict which
includes wars of the national liberation within its meaning.

It may be noted that Section III of the Part IV of Protocol I dealing with “Treatment of
person in power of a party to the conflict” has expanded the scope of international
humanitarian law so as to bring it at par with major international human rights instruments.
It includes following provisions:

1. Article 72 of the Protocol I grant protection to captured guerilla fighters and

mercenaries, who do not benefit from more favorable treatment un

2. der other provisions of the General Conventions or protocols.

3. Article 75 provides that persons who are in the power of the party to the conflict
should be treated humanely and without any distinction based upon race, colour,
sex, language, religion, political or other opinion, national or social origin, wealth,
birth or other status, or any other similar criteria.

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 349
 4. Article 75 also provides for extensive due process guarantors for the benefits of
the persons arrested, detained or interned for actions related to the Armed conflict.

5. Provisions have also been made under Article 73 of the Protocol I for the protection
of refugees and stateless persons.

6. Special protections have been granted in favor of women, children and journalists.

4.4.11.1 Limitations on means and methods of use of force:

The 1977 Geneva Protocol I, on one hand, amplifies and expands the obligations of the
High Contracting Parties who accepts and become parties to the present Protocol I and
on the other hand seek to make warfare less brutal and inhuman. For the purpose of
imposing limitations on the means and methods of use of Force this Protocol contains
following provisions:

i. It declares that right of the parties to the conflict to choose methods or means of
warfare is not unlimited.

ii. It prohibits the employment of weapons, projectiles and material methods of

warfare which cause superfluous injury or unnecessary suffering.

iii. It prohibits the employment of such methods or means of warfare which are
intended or may be expected, to cause widespread, long term and sever damage
to the natural environment.

iv. It prohibits to kill, injure or capture an adversary by resort to perfidy. However,

ruses of war are not prohibited.

4.4.11.2 Law of Internal Armed Conflicts: -The period of the post-World War Second
has been witnessed by various armed conflict and insurgencies. Some of their conflicts
have acquired massive proportions involving organized armed forces and a large number
of combatants. Since these conflicts are not of international character, the protective system
envisaged under the four Geneva conventions is not applicable. However, common Article
3 of the Geneva convention applies in such conflicts. Article 3 lays down that in the case
of armed conflict not of an international character, occurring in the territory of one of the
high contracting parties, each party to the conflict should be bound to treat humanely all

350 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
persons taking no part in the hostilities including members of the armed forces who have
laid down their arms and those placed hors de combat by sickness, wounds, detention or
any other cause without any adverse distinction founded on sex, colour, religion or faith,
birth or wealth or similar other criteria.

4.4.12 Internal Armed conflict and the protocol additional to the Geneva
Convention 1949 relating to the protection of Victims of non-international Armed
Conflicts (Protocol II):

Article 1 of the protocol II declares that this protocol develops and supplements common
Article 3 of the Geneva Conventions without modifying its existing conditions of application.
It applies to all armed conflicts which are not covered by Article 1 of the protocol I and
which take place within a state’s territory between its armed forces and dissident organized
armed groups in control of part of the territory to enable such groups to carryout sustained
and concerted operations and to implement protocol II. Protocol II doesn’t apply to the
situations of internal disturbance and tensions, such as riots, isolated and sporadic acts of
violence and other acts of similar nature as not being armed conflicts. Protocol II covers
wider guarantees than the common Article 3. Thus, when internal armed conflicts occur
within the meaning of Protocol II the affected individuals are entitled to greater protection
or more rights than they would enjoy under common Article 3. Protocol II protects
following categories of persons:

a. All persons who do not take a direct part or who have ceased to take part in
hostilities, whether or not their liberty has been restricted or entitled to respect for
their person, honour and conviction and religious practices. It prohibits certain
acts which can’t be committed against these persons.

b. Person deprived of them for the reasons related to the armed conflict whether
they are interned or detained should be treated humanely.

c. The civilian populations and individual civilians are protected against the dangers
arising from military operations and they should not mean the object of attackor
threats of violence the primary purpose of which is to spread terror among the
civilian populations are prohibited.

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 351
4.4.13 Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Adoption of an Additional Distinctive Emblem (Protocol III)

It is an amendment protocol to the Geneva Conventions relating to the Adoption of an

Additional Distinctive Emblem. Under the protocol, the protective sign of the Red Crystal
would be displayed by medical and religious personnel at the time of war instead of the
traditional Red Cross or Red Crescent symbols

Two major difficulties for the International Red Cross and Red Crescent Movement namely,

First, they may be perceived as having religious, cultural or political connotations. This
perception conflicts with neutral, humanitarian status of medical personnel in armed
conflicts.Second, it has led some states and relief societies to refuse to adopt any of the
existing emblems on the grounds that none is suitable for them. Hence, any such refusal
prevents the movement from attaining true universality, since its statutes lay down the use
of one or the other of these symbols as a necessary condition for a National Society to be
recognized and to become a full member of the Movement.

In order to correct these two problems, the state’s party to the Geneva Conventions
adopted a third protocol additional to the conventions at a diplomatic conference held in
Geneva from 5 to 8 December 2005. Article 38 of the first Geneva Convention of 1949
clearly states that these emblems are intended to signify one thing only-something which
is, however, of immense importance: respect for the individual who suffers and is defenseless,
who must be aided, whether friend or enemy, without distinction of nationality, race, religion,
class or opinion. The Additional Protocol III was adopted for the prevention of any future
proliferation of other emblems. This instrument recognizes an additional emblem composed
of a red frame in the shape of a square on edge on a white ground commonly referred to
as the red crystal. The shape and name of this additional emblem was to come up with a
result devoid of any political, religious or other connotation and which could thus be used
all over the world. The red crystal is not intended to replace the cross and crescent but to
provide a further option. These emblems are tied to membership in the National Societies.
Members are required to use the red cross or red crescent emblem.

It is an amendment protocol to the Geneva Conventions relating to the Adoption of an

Additional Distinctive Emblem. Under the protocol, the protective sign of the Red Crystal

352 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
would be displayed by medical and religious personnel at the time of war instead of the
traditional Red Cross or Red Crescent symbols. The persons and entities authorized to
display the red crystal are the same as those entitled to use the emblems recognized by the
Geneva Conventions of 1949. These include in particular the medical services of the
armed forces of States, civilian hospitals with explicit authorization and the various
components of the International Red Cross and Red Crescent Movement namely, the
International Committee of the Red Cross (ICRC), the National Societies, and their
International Federation. The recognized emblems are equivalent in meaning. They must
be treated equally and receive equal protection in the national legislation of states.

4.4.14 OBSTACLES TO THE IMPLEMENTATION OF GENEVA

CONVENTIONS

There are two major obstacles to the implementation of Geneva Conventions;

First:Parties to an international armed conflicts generally do not agree on the designation

of protecting powers. As a matter of necessity, states generally resort to the International
Committee of Red Cross to perform the duties assigned to protecting powers under
Geneva Conventions.

Secondly: Another obstacle to the implementation of Geneva Convention is the refusal on

the part of states parties to the conflict to recognize that it has international armed conflict,
in this the states parties to the conflict succeed in providing the application of the protective
system established under Geneva Convention.

4.4.15 LET US SUM UP

On the basis of the above description, we can conclude that IHL represents a balance
between military necessity and humanitarian considerations in the context of conflict.
Humanity, as a cornerstone of IHL, represents the imperative during conflict to alleviate
suffering and save lives, and to treat humanely and respectfully each individual.Military
necessity is the justification of measures necessary to achieve a military goal, provided
these measures comply with international humanitarian law. The balancing of humanity
and military necessity is seen in the foundational IHL norms of distinction and proportionality.
Parties to an armed conflict are required to distinguish, at all times, between civilians and
combatants and between civilian objects and military objects. Additionally, an attack may

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 353
not be launched if it is anticipated to cause incidental loss of civilian life, injury to civilians,
or damage to civilian objects that would be excessive in relation to the direct military
advantage anticipated. Additional IHL principles include the duty to take precautions to
spare the civilian population before and during an attack, the prohibition against infliction
of unnecessary suffering or superfluous injury, and the prohibition of indiscriminate
attacks.The law of armed conflict looks torn between two contradictory impulses- the
need, on to wage war effectively and the desire to protect people and property against the
ravages of such warfare. The law of armed conflict tries to reconcile these impulses, in a
very fundamentally pragmatic way. International humanitarian law compels states and non-
state parties alike to try their utmost to guard and preserve the life, limband property of
civilians and others hors de combat (out of action due to injury), whereas at the identical
time giving parties to a conflict leave to commit acts of violence among bounded boundaries.

However, once those boundaries are transgressed, once perpetrators of war crimes aren’t
delivered to account for his or her transgressions, there’s a natural impulse to dismiss
international humanitarian law as lacking any “real” normative force. This can be a visible
response; however, it fails to understand the complexities of international humanitarian
law. The objective of international humanitarian law is to limit the suffering caused by
warfare and to alleviate its effects. Its rules are the result of a delicate balance between the
exigencies of warfare (“military necessity”) on the one hand and the laws of humanity on
the other. Humanitarian law is a sensitive matter and it suffers no tampering. It must be
respected in all circumstances, for the sake of the survival of human values and, quite
often, for the sheer necessity of protecting life. Each and every one of us can do something
to promote greater understanding of its main goals and fundamental principles, thereby
paving the way for better respect for them. Better respect for humanitarian law by all
states and all parties to armed conflicts will do much to help create a more humane world.

4.4.16 Exercise

1. Explain International Humanitarian Law and its application ?

2. What are the major instruments of International Humanitarian Law ?

3. Explain the origin and development of International Humanitarian law ?

354 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law
4. Explain Geneva Convention for the Amelioration of the conditions of the wounded
in armies in field (First Geneva Convention of 1864) ?

5. Explain the Second Geneva Convention, 1949 ?

6. Explain the Third Geneva Convention, 1949 ?

7. Explain the Fourth Geneva Convention, 1949 on protection of civilians ?

8. Discuss the procedure of repartition of prisoners of war ?

9. Explain the law dealing with the protection of defenseless person ?

10. Discuss the law dealing with the internal armed conflicts ?

11. What are the obstacles to the implementation of Geneva Conventions ?

Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law 355
 SOURCES AND FURTHER READINGS
¨ “International Organization”, in International Encyclopaedia of the Social Sciences,
http://www.encyclopedia.com
¨ “Uniting on Climate”, United Nations Framework Convention on Climate Change,
UNFCCC, 2007.
¨ A Beginner’s Guide to the United Nations Development Programme 5th edition
May, 2015, at http://www.jposc.org/documents/UNDP%20for%20Beginners/
UNDP_for_Beginners_en.pdf
¨ Alexander Andreev , “To What Extent Are International Organizations (IOs)
Autonomous Actors In World Politics?”, 2016, available at http://www.ucl.ac.uk/
opticon1826/archive/issue2/VfPS_HS_International_Organisations.pdf
¨ Amos Yoder, The Evolution of the United Nations System, Washington, DC:
Routledge, 1993.
¨ Aneek Chatterjee, “The UN At Sixty Three: Problems And Prospects of Reforming
A Veteran”, Journal of Management and Social Sciences, Vol. 5, No. 1, 2009.
¨ Anne Burnett, International Environmental Law: Electronic Resource Guide, American
Society of International Law, 2015, available at https://www.asil.org/sites/default/files/
ERG_ENVIROMENT.pdf
¨ Bob Reinalda, Routledge History of International Organizations, New York:
Routledge, 2009.
¨ C. Emanuelli, “State Succession, Then and Now, With Special Reference to the
Louisiana Purchase (1803)”, Louisiana Law Review, Volume 63, Number 4, 2003.
¨ Chandrakant Yatnoor, Challenges to the United Nations in the New World Order,
The Indian Journal of Political Science, Vol. 67, No. 4, October-December 2006.
¨ Christopher Greenwood, “Sources of International Law: An Introduction”, 2008,
available at http://legal.un.org/avl/pdf/ls/Greenwood_outline.pdf
¨ Conway W. Henderson, Understanding International Law, West Sussex, UK:
Wiley-Blackwell, 2010.
¨ Daniel W. Drezner, “The New World Order”, Foreign Affairs, Vol. 86, No. 2
2007.

356 Directorate of Distance & Online Education, University of Jammu, Semester IV, International Organization & Law