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Public International Law Exam Notes(includes relevant

treaties)
1. Nature and Development of International Law

1.1 Definition of International Law


Body of legal rules governing interaction between sovereign states (Public International Law) and
the rights and duties of the citizens of sovereign states towards the citizens of other sovereign
states (Private International Law). Since there has never been a law making body for international
law, it has been built up piecemeal through accords, agreements, charters, compromises,
conventions, memorandums, protocols, treaties, tribunals, understandings, etc. The statute of the
International Court Of Justice (judicial arm of the UN which has no enforcement power, and can
adjudicate only where both sides agree to abide by its decisions) states the basis on which it
adjudicates cases before it as "(a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states; (b) international custom, as
evidence of a general practice accepted as law; (c) the general principles of law recognized by
civilized nations." It is not 'World Law' but law between consenting sovereign states (each
government can decide which law it will adhere to or not) and has not been able to solve the
problems of inter-state aggression, conflict, terrorism, and war. Despite its limited applicability,
however, it has played a vital role over the centuries in developing a system of procedures and
rules in areas (such as air, land, sea, outer-space, human rights) where one state's existence
impinges that of the others. The General assembly of the UN is entrusted with developing
international law. Also called law of nations.
1.2 International Law as "Law"
- no effective authority to enforce
- Lacks compulsory Jurisdiction
- Rules of intl law suffer frm great uncertainity
- Lack of effective sanction = frequent violations of rules of intl law
- Cannot intervene in matters of domestic jurisdiction
- Many cases hs failed to maintain order & peace in the world
1.3 Basis of International Law - Jurisprudential Theories
Evidence of treaties, immunities of ambassadors, usage of war, etc can be found in ancient Egypt,
India, the Greek & Roman empires - present day intl owes origin to Grotius a great Jurist whose
work De Jure Belli ac Paces (1625) lent legal basis to many areas of intl relations - main idea is tht
thr r certain eternal, unchangeable & independent rules of law which have roots in human reason.
This law of reason is called by him as natural law. - In Grotian theory thr r 3 basis of intl law:- law
of reason, Customs & treaties, emnating frm his conception r 2 theories as to true basis of intl law
(i) Naturalist Theory(Pufendrof) - thr exists a system of law which emnates frm God or reason or
morals. Law of nations is only a part of nature. Hart explains tht minimum content of law flowing
frm immutable nature of man is tht which is neccessary fr survival of human kind, all laws relating
to it are thus parts of law of nature. The theory si criticised on the ground tht it is too vague.
(ii) Positivists Theory(Bynkershook) - Those principles adopted with the consent of states - Law is
tht which exists as a fact - it is tht law which is enacted or followed by States (i.e. Emnates from
their own free will) and is hence binding upon States - Customs & treaties come into existence frm
express or tacit consent of States - theory is criticized as all rules of intl law r nt derived frm
customs & treaties - further a treaty may be binding on 3rd States as well & states in some cases r
bound by general intl law even against their will
(iii) Eclectic theory - Views giving equal importance to naturalists & positivists.
John Austin's View

The three basic points of Austin's theory of law are that:


the law is command issued by the uncommanded commanderthe sovereign;
such commands are backed by threats; and
a sovereign is one who is habitually obeyed
Austin is best known - theory of legal positivism. He attempted to clearly separate moral rules from
"positive law."
Austin was greatly influenced in his utilitarian approach to law by Jeremy Bentham. Austin took a
positivist approach to jurisprudence; he viewed the law as commands from a sovereign that are
backed by a threat of sanction. In determining 'a sovereign', Austin recognized it as one who society
obeys habitually. However, Henry Maine in "Early Institutions" proved that in some Empires of the
orient there is nothing to correspond with "determinate superior" or sovereign.
Criticism of Austin's view (prominently by H.L.A. Hart)
First, in many societies, it is hard to identify a sovereign in Austin's sense of the word (a difficulty
Austin himself experienced, when he was forced to describe the British sovereign awkwardly as
the combination of the King, the House of Lords, and all the electors of the House of Commons).
Additionally, a focus on a sovereign makes it difficult to explain the continuity of legal systems: a
new ruler will not come in with the kind of habit of obedience that Austin sets as a criterion for a
system's rule-maker.
A different criticism of Austin's command theory is that a theory which portrays law solely in terms
of power fails to distinguish rules of terror from forms of governance sufficiently just that they are
accepted as legitimate (or at least as reasons for action) by their own citizens.
H.L.A. Hart revived legal positivism in the middle of the 20th century (Hart 1958, 1994), he did it
by criticizing and building on Austin's theory: for example, Hart's theory did not try to reduce all
legal rules to one kind of rule, but emphasized the varying types and functions of legal rules; and
Hart's theory, grounded partly on the distinction between obligation and being obliged, was
built around the fact that some participants within legal systems accepted the legal rules as
reasons for action, above and beyond the fear of sanctions. Hart's hermeneutic approach,
building on the internal point of view of participants who accepted the legal system, diverged
sharply from Austin's approach to law.
1.4 Codification of International Law
Codification of International Law is as important as codification of any other law. However,
codification of International Law has some unique features because it provides:
- Harmonization and co-ordination of various municipal laws to uniform statues as far as
practicable
- Arranging the existing customary international law in a systematic process
- Includes all conventions, treaties, charters etc.
The process of codification of International Law began in 18th century when the Declaration of
Paris, 1856 was signed by 7 countries. It was followed by the Hague Conference, first in 1899 and
later in 1907.
Advantages
- Brings law into shape and avoids confusion
- Preserves customs. Because preserving laws means preserving customs
- Unification of laws of the world
- Avoids conflict between judiciary and executive
Disadvantages
- Codified laws are rigid

- Moves away from individuality and might effect sentiments, customs and traditions etc.
- Wrong-doers can take advantage of codified law because they come to know of ways of avoiding
provisions of law
- Disturbs citizen rights at times
- Codified law is never complete. It is always constantly evolving.
1.5 Sanctions of International law
- Sanctions by States - self help with strict compliance to UN Charter - using armed force in self
help against intl wrongful acts not using armed attack is forbidden. Principles similar to right of
private defence
- Collective Sanctions
- Chap VII of UN Charter -> Security Council can take neccessary action if threat to intl peace &
security
- Military Sanctions
- Economic & Financial Sanctions- severance of economic relations, trade
- Political sanctions - expulsion frm UN Membership, suspension of rights & priveleges of
membership of UN
- Specialized agencies (ILO, IPO, WHO, ,ITO) authorized to take action against erring state
- Decision of ICJ binding on parties to dispute, Art 94 of UN provides othr party may approach
Security Council to take action.
- Public opinion - World public opinion which forced UK & France to pull out troops from Suez Canal
in 1956 (also end of Colonialism)
Effectiveness of sanctions
- Nicargua vs US 1.6 Subjects of International law
JG Starkes defn given below - States - Individuals - Organazations
Status of Intl Organizations
Reparations for injuries suffered in the service of the UN (ICJ Rep 1950) - ICJ in its advsory opinion
accorded legal personality to UN and held can claim appropriate reparation frm the concerned
state.
Place of individuals in Intl law
JG Starke - Subj of intl law - 3 main attributes
(i) Incumbent of rights & duties
(ii) Holder of prodecural capacity fr enforcing a claim befr an intl tribunal
(iii) Possessor of interest fr which provision is made by intl law
Holder of Rights - Human Rights -Treaty of Versailles (1919) -European Court of Human Rights Lawless Case - De Becker Case - belgium forced to change legislation regarding right of person
under detention & arrest
Duties of individuals
(i) No Crimes against peace & humanities - pirates considered enemy of mankind - espionage a
crime under intl law
(ii) War Criminals - Can be punised under intl law Nuremburg & Tokyo tribunals propounded the
principle tht intl law may impose obligations directly against the individual eg officials of Germany
& Japan were tried as per the provisions of intl law
(iii) Crime of genocide
(iv) Aircraft Hijacking
(v) kidnapping of diplomatic personnel, etc Convention of prevention & punishment of crimes

against internationally protected persons 1973, Convention on Taking of hostages, 1979


(vi) Prevention of drug trafficking - Narcotics Drugs convention, 1973
Procedural Capacity of individuals - treaty of versailles 1919 - Under European Convention fr
Protection of Human Rights, 1950 the commission has laid down tht a petition can be rcvd frm any
person if his human rights are violated - lawless case - de becker case Optional Protocol to the Intl Covenant on Civil & Political Rights, 1976 provides individuals with the
right to petition the HRC in case of violation of any of their civil & political rights by State. In Blom
vs Sweden a petition of a student alleging discrimination ws held admissible.
1.7 Approach of Developing Countries towards International Law
----------------2. Sources of International Law

2.1 Statute of the International Court of Justice, 1945 ( Article 38 )


1. The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if
the parties agree thereto.

2.1.1 International Treaties and Conventions


TREATIES
WHAT : Agreements b/w subjects of Int law creating a binding obligation in Int Law
( Schwarzenberger ) . Agreements of Int character b/w State / State Organisation creating Legal
Rights and Duties.
Most important. A 38 says this as first source. Convention general / particular. Treay, protocol,
Agreement, Conventino,
Two Categories :
a) Law Making : Universal Norms,direct source of IL.
i) Universal Rules : UN Charter
ii ) General Rules : 1958 Generva Convention on LOS, 1969 Vinna Convention on Treaties etc.
b) Treaty Contracts : 2/few states matter exclusive to them. Not a direct source of IL , may help
in developing same- generalistion to more states / recurrence of such treaties/rules may lead to
Customary Int Law
Pacta Sun Servananda
States are bound to fulfill in good faith the obligations assumed by them under treaties.
Law of nature. Moral Principle. Lauterpacht says treaties are binding since there is a Customary

Rule of Int Law that they are. So the basis is Custom ! Sanctity of Contracts essential to any
community. Positive Norm. No unilateral deviation. Rests on Good faith North Atlantic Fisheries
case.
Treaty is Int. Legislation.
Vienna Convention on Treaties :
- Every treaty in force is binding and has to be performed in good faith ( Art 26 )
- No party will attempt to justify its failure to perform by citing its internal laws ( Art 27 )
Preamble of UN Charter : UN has to establish conditions where respect for treaties and Int Law is
maintained.
All above point towards pacta sunt servanda
Exceptions to PSS : : i) new state due revolt ii ) Territory ceded/merged iii) Rebus sic stantibus :
implied clause, unchanged material circumstances iv) Not an absolute principle as fails toe explain
the binding force of customary int law ( in fact it rests upon it )
( RCRA )
Vienna Convention on Law of Treaties , 1969 :
Landmark, Preamble, 85 Atricle, 8 Parts Earlier treaties still governed by ldlaws. Codifies.
Doctrines of Jus Cogens, Rebus Sic Stantibus leads to clear systems.
All states are competent, including vassal states, except where limited/qualified by existing
treaties. Neutral States no Offensive treaty for eg.
Int. Orgs Treaties NOT in Vienna scope they are under separate Convention adopted 1986.
Free Consent is essential. Fraud, Corruption, Coercion , Error vitiates. Error doesnt hold if due
States own conduct or if it had notice (no advantage of own wrong )
Consent expressed by : i) Signature ii) Exchange iii ) Ratification/acceptance/approval iv) Accesson
v) Any other means as agreed

Formulation/Conclusion of Treaties :
No format prescribed. General steps :
1) Accrediting of Persons
2) Negotiations/adoption consent of all or 2/3rds if Int Conference
3) Signatures of reps if treaty not subject to ratification, comes into force imm thereafter
4) ratification : v. imp-state confirms
5) Accession/ Adhesion : Means joining nito . Happens when State joins later . If no provision in
treaty all existing signatories to agree. Joining Statesratification not rqd.
6) Entry into Force : As per treaty ( A 24 ) . If ratification rqd, only after such by prescribed number
of states
7) Registration and Publication : Before Secy General of UN ( Art 102 ). Unregistered is valid but no
invoking in any UN Organ ( ICJ for eg )
( ANSRAFR )
Ratification of Treaty
Signed by rep has to be confirmed/ approved by State.
Art 2(1)(b) : Act whereby State establishes on international plane its consent to be bound by the

Treaty
Rat. Not retroactive generally. To be done only when rqrd by the Treaty. Art 14 : Rat. Necessary
when a) Express consent b) Neg. states have agreed to rat. C) Rep has signed subject to d) Intention
of rat. Evident during talks/ neg.
( EASI )
Purpose : At present, generally all need to be rat. A) State can re-examine/review. B) Can even
withdraw by act of NON-rat. C) Amend internal laws d) Public opinion build/consult ( RWAP )
Mode : Per State procedure. President per advice/ Consent of Senate. UP by Crown on adv of
Minister concerned. India : President per advice of Central Cabinet
Refusal of : States not bound to ratify. No reason to be given. But for Int. peace and security,
Security Council pressure( Art 39 and 41 of UN Charter ). Big states less open to such influence. No
time period specified for rat. But interim State should not do any act adverse to the
object/purpose of treaty ( Art 18, VC ). Such may imply breach of treaty ( German interest in Polish
upper Silesta, 1928 ). So signing of the rep itself confers some limited status to treaty.
Consequences of : Only if rat. Necessary. But can be applied to domestic municipal law only after
rat. No ratification no binding by terms of the State who hasnt . But still, a provision may still fall
within custom and opinion juris and can be invoked
Reservations :
Important. When only part is accepted and oters rejected by a State. Unilateral Act while
signing/ratifying/accepting when the State purports to exclude/ amend some provisions wrt itself
( Art 2(1)(d) VC ). No reservation after joining. Can be done even if the treaty is silent on it.
Article 19 : Firstly , is the reservation valid use the legality test :
1) Should not be prohibited by treaty.
2) Should be included in the reservations specified, as during negotiates itself it may have become
clear that some will not agree to all provisions.
3) Is not incompatible with the object/ purpose of treaty
In writing, either to the depository or directly to others. Can be withdrawn at any time by writing
to others
When a state limits its treaty obligations through reservations, other states party to that treaty
have the option to accept those reservations, object to them, or object and oppose them. ( Art 1923 of VCLT )
Other State Accepts Reservation ( or no comments implies acceptance ) :Both the reserving state
and the accepting state are relieved of the reserved legal obligation as concerns their legal
obligations to each other . But Accepting State still responsible to other states who have no such
reservation/
Other State Objects ( Art 20(5) ) : the parts of the treaty affected by the reservation drop out
completely and no longer create any legal obligations on the reserving and accepting state, again
only as concerns each other. Has to be done within 12 months of the reservation notification
Other State objects and Opposes ( explicit , Article 21(3) : Such a State wants to exclude the entry
into force of the whole treaty between itself and the reserving State There are no legal obligations

under that treaty between those two state parties whatsoever. That is, both consider they have no
treaty between them at all.
Reservations in Multilateral treaties may lead to several bilaterals of variable content not good.
However as number of signatories increases, each with their own opinions, reservations are
essential to a more general acceptance of the treaty.
Treaties and Third States
Pacta Tertis nec nocent nec prosunt : Third parties receive neither rights nor duties from contracts.
Incorporated under A 34 of VCLT : A treaty creates no obligations/rights for 3rd State without its
consent.
Anglo Iranian Oil Co. ( 1952 ) : AIOC was registered in Britain, contracted with Iran for some oil
concessions. Iran nationalized this company, abrogated contract. Britain went to ICJ which held
Britain was not privy to the Contract so third party with no locus.
Exceptions To Pacta:
1) Obligations : In treaty and accepted by 3rd party in writing then 3rd party bound ( A 35 ).
Juridical basis is not the treaty but collateral agreement of the third State. Rule does not apply for
aggressor state ( A 75, VC ). Also, for int. peace and security, non member states can be called
upon to give assistance ( Art 2, Para 6, UN Charter )
Free Zones Case , 1932 : Art 435 of Vers Peace treaty not binding upon 3rd Switzerland except to
the extent it accepted.
2) Rights : If provided in treaty and 3rd assents. Has to comply with treaty conditions.
Free Zones Case, 1932: 3rd party Switzerland enjoyed since 1815 the benefits of a Free Customs
Zone due multipartite treaties of which France was party. Swizerland not but had accepted the
benefits. Held it could not be deprived without consent.
Revocation / Modification of Obligations/Rights : For obligation, Treating States AND 3rd State also
to consent ( Art 37 , VC ). For Rights such revocation has to be expressly provided for in the treaty
and consented by 3rd party.
In practice, Treaty may expressly forbid such results and the 3rd state should not by its conduct /
declarations indicate its acceptance to any obligation.
3) Int. Customs created by treaty : Treaty may have a rule which is genrelly accepted bya Third
Sate and then becomes binding upon it as a Customary law. Geneva Convention 1958 binding even
on non-signs. North Sea Continental Shelf : ICJ opined treaty provisions can generate customary law
and may be of norm-creating character.
Jus Cogens
Basic fundamental rules affecting the very foundation of their legal system.
Rousseau : No. No illegal object in treaties and no rule of Int Law is final/authoritative.
Verdoss : Majority of Int Laws are indeed modifiable by consensual agreements, some are absolute

lawful objects of treaties for example.


Jus Cogens and VC
A 53 : Treaty void if when formed conflicts with peremptory norm of gen int law. Peremptory norm
is one recog by int comm. as a whole while from which no derogation is permitted and which can
be modified only by a subsequent norm of gen int law having same character.
Such treaty Void Ab Initio.
Jus Cogen is dynamic-changes with social humanitarian politics etc.
Art 64 : Corollary of A 53. If new JC emerges, any treaty in conflict void and terminates.
Such treaty void only after such norm emerges, not ab initio.
Different Legal Consequences. Or eg. Slave Trade.
A 66 : Compulsory Settlement of JC disputes within 12 months otherwise any party can ask ICJ
unless all agree to arbitration.
Verdross says three types of JC : a) Common Interest of Whole Community b)_ Humanitarian c)
Introduced by UN Charter against threat/ use of force in Int relations.
BUT VC is silent on what JC norms are recognized. Commentary of Int Law Commission has 3
examples of treaties against JC : a) Force contrary to UN Charter b) Act Criminal in Int Law c) Acts
re slavery, genocide, piracy etc.
Genocide Convention Case : JC not referred explicitly. But court says norms prohibiting genocide
may be binding on non-signatories also as v. strong preemptory ones/
Barcelona Traction case , 1970 : Principle of Self Determination held to be a norm of JC.
Namibia Case, 1971 : Imperative character of right to self determination and human rights.

Rebuc Sic Stantibus


Contracts with Pacta.
Fundamental change may lead to treaty termination- implied clause in every treaty. Similar to
doctrine of frustration of contract ( A 56, Indian Contract Act )
A 62 of VCLT embodies, although term not used.
A 62(1) Conditions :
a) Change of Circumstances existing at time of treaty
b) Fundamental
c) One not foreseen
d) Existence of such circum essential basis
d) Radically transform pending treaty obligations
A62(2) Exceptions :
a) Treaties which fix boundaries 2) When change result of breach by one party no advantage of
own wrong

Applied in :
- when Sino Belgian Treaty of 1865 was denunciated by China citing changed circumstances.
- Nationality Decrees Case : France said establishment of French protectorate over Morocco
extinguishes some Anglo French Treaties . Britain said France was resorting to RSS.
- Fisheries Jurisdiction Case 1973 : ICJ recognizes doctrine of RSS as a customary rule of Int Law.
Cites two necessary conditions:
- Pending obligations should have been increased so much that essentially different from the
original ones.
- No automatic termination. Only confers a right to call for termination. If disputed must be
submitted for arbitration/ court
Refused in Free zones case since function law is to enforce contracts of treaties even when they
become burden some on parties
Doctrine is controversial but many times justified and necessary for vital interests and even survival
of nations. Should be clearly defined and used within narrow limits.
Invalidation of Treaties
Per Art 46-53 of VCLT.
i) No Authority of rep
ii) Error in treaty
iii ) Fraud by another party
iv ) Corrupt Rep
v) rep coerced
vi) State Coerced- should be in violation of UN Charter. Eco/political coercion permitted a part of
normal working relations b/w states.
vii ) Conflict with Jus Cogens
Non Compliance with Domestic Laws
Per Art 27 of VCLT this cannot be invoked. ( Pacta Sunt Servanda holds ).
Unless the violation was apparent and rule of Fundamental Importance ( Jus Cogens ) . To be
manifest it should be objectively evident to State , conducting its matters in normal practice and
good faith.

Termination of Treaties
- Bilateral when one party defects. Multilateral only wrt that party.
Per various provisions of Section 3, VCLT
i) Consent of all ii)Denunciation of withdrawal of one iii ) Another treaty for same subject ,
incompatible iv) Material Breach, unless a party after breach expressly/ impliedly agrees to it
v)Impossibility of performance island disappears, permanent destruction of one party with no
succession, If temporary, treaty is only suspended vi) treaty objects over fixed time etc viii) War
can be terminated/suspended per provisions viii ) Jus Cogens new norm ix) Rebus Sic Stantibus
Funda change in circumstances
Customs and treaties- Interrelationship
Both need consent. But express in treaty. Treaty more rapid, precise, adequate. Even if available
both in Custom as well as treaty, both can exist on their own ( mil and Paramilitary Activities in and

against Nicaragua ), Customary rules can still exist and be applied by courts. Basic principles such
as Non Use of Force, non Intervention, respect for terr integrity of another, freedom of navigation
still bind as customary int law. North Sea case clearly recognizes existence of identical rules in
treaty as well as customary law. Both can repeal / supersede each other- law of sea saw repeal of
four Geneva Conventions by Customary Laws before final codification into UNLOS 1982..
Essentially both agreements of subjects of int law. Reinforce each other / supplement. But treaty
superior if conflict ( SS Wibledon, 1923, ICJ )

2.1.2 International Custom


Development/ Formation of a Custom
a) Custom and Usage
- Usage are actions often repeated. They become a Custom if acquire the force of habit under a
conviction that they are right and legal. So, custom is usage which has force of law. While usage is
an international habit which has not yet received the force of law.
- Custom begins where usage ends. Repeated usage leads to expectations of similar behavior in
same circumstances. But when this usage gets recognition of various states in their relations with
each other so as to become right / obligation then such usage becomes Custom . Obligation arises
from fear of enforcement before the courts.
- Usage may not lead to Custom. Factors such as State interest, historical vents etc also add in.
- Usage converts into custom due conduct of State at Diplomatic / Int Levels, foreign policy
documents, speeches, positions at for a such as UN, ICJ . And domestically decisions in local courts,
tribunals etc.
- True Test is that he Usage must get the common consent of cvilised nationsor geneal consensus of
opinion.
- Duration of less important now since comm. Faster. Unanimous opinion better indication.
b) Custom has to be accepted as Law that is Opinio Juris et Necessitatis
- This is when States feel that they are acting per law.
- So, acts should be evidence of belief that practice is obligatory by existence of law requiring it
( North Sea Cont Shelf Case )
- Customary Rules may also be generated by treaty ( North Sea case )
(1) Lotus Case ( France vs Turkey ), PCIJ, Ser. A, No. 10 (1927)
Collusion - Ships - 8 Turkmen passed away - Criminal case in Turkey against Captain of Lotus France contended jurisdiction - customary rule of intl law granting exclusive criminal jurisdiction to
the State the flag of which a vessel is flying - court held no such customary rule was estb becoz
'opinio juris' cud nt be proved - Even if facts by france were true that wud merely show abstinence
and not obligation - therefore no duty to abstain - therefore each state could excercise jurisdiction
w.r.t the incident - Decision -> no rule of intl law in rgd to collision cases to the effect tht criminal
proceedings were exclusively within the jurisdiction of tht State whose flag the ship ws flying &
thrfr each state cud exercise jurisdiction
Comments - Lotus Case demonstrates Opinio Juris essential fr creation of a new customary rule of
intl law - in the lotus case even if states hd refrained frm exercising jurisdiction ovr crimes
committed on high seas in deference to the flag states, the french gov ws unable to prove tht
States acted in this manner frm a sense of legal obligation - judgement criticized in so far as it
implies tht intl law permits all it does nt forbid
Lotus case overruled by Geneva Convention on Law of Sea, 1958, Art 11 of which states tht no penal
or disciplinary proceeding may be instituted against the persons responsible fr the collision except
befr the judicial/administrative authorities either of the flag state or of the State of which they are
nationals

(2) North Sea Continental Shelf Cases, ICJ Rep. 1969, p. 3


Concept of Opposability
In a dispute between two States, A and B, where State A supports its case by reference to some
principle or institution, State B may seek to invoke, i.e. oppose as against State A, either a
particular institution or regime under State B's domestic law, or, on a different level, the terms of
some general or particular convention or treaty, alleging that this is to prevail over the principle or
institution relied on by State A.
Whether the case of State A is or is not tenable will turn "on what is said to be the "opposability"
(opposabilite) in law to State A of the institution, regime, or treaty set up by State B.
State B will succeed ( if no treaty ) only if the Domestic Law cited by it is in accord with Int Law.
But if State B is proceeding under a treaty olitybligation, State A has to be a signatory to that treaty
for Bs claim to hold.
In the North Sea Continental Shelf Case, the question was whether the provisions of an
international convention, namely Article 6 of the Geneva Convention on the Continental Shelf,
containing the equidistance rule for the delimitation of a continental shelf common to adjacent
countries, were opposable to the German Federal Republic, vis-a-vis Denmark and the
Netherlands, where the German Federal Republic's case was, broadly speaking, that, in the absence
of an agreed division, demarcation should be carried out according to equitable principles. The
point was also raised incidentally in the cases whether, apart from Article 6 of the Convention,
unilateral acts or bilateral treaties applying the equidistance rule to the delimitation of common
continental shelves, other
than to the North Sea continental shelf, were opposable to the German Federal Republic.
In the result, neither the provisions of Article 6 of the Convention nor unilateral acts or treaties
applying the equidistance rule were held opposable.
(3) Right of Passage over Indian territory (Merits) (Portugal vs India), ICJ Rep. 1960 p. 6
Issue: Rt of portugal to send its nationals & military through the Indian territory? Until 1954
portugal possessed right of passage thrgh Indian territory; the right ws however subject to control
& regulation by India, the right of passage ws only in respect of private persons,civil officials and
goods in general to the extent neccessary fr the exercise of portugese sovereignity over the
Portugese enclaves, In 1953-54 becoz of tension created by the overthrow of Portugese rule in the
enclaves, the Indian Govt suspended the right of passage of Portugal over the affected area, in view
of repurcussions over the border areas of Indian territory, portugal contended befr the ICJ tht
Indian action ws in furtherance of Indian efforts to annex the Portugese territories in India & hd
made it impossible fr Portugal to exercise her rights of sovereignity in the affected areas. The claim
of Portugal ws based on Treaty of Poona, 1779 & the sanads(decrees) issued by the Maratha ruler in
1783 & 1785.
Court found tht the existed a constant & uniform practice of allowing passage through Indian
territory(Daman & its enclaves). the treaty of 1779 ws a valid treaty & Portugal ws entitled to get
passage through Indian territory in consequence of the provisions of said treaty. Court ruled tht if
under a treaty a State gets the right of passage through the territory of anothr State & if it
continues fr a long time then it gains the force of law & thrby imposes the obligation upon the
State affected to continue to give right of such passage. Court further noted tht no right of passage
in favor of Portugal hd been established in respect of armed forces, armed police & arms &
ammunition. Having found tht Portugal hd in 1954 a rt of passage over intervening Indian territory
in respect of private persons, civil officials & goods in general, the COurt nevertheless concluded
tht India hd lawfully in exercise of its power of regulation & control of the Portugese right,

suspended all passage in 1954 becoz of tension in the area.


(4) Asylum Case (Columbia vs Peru), ICJ Rep. 1950, p 266
Institution of diplomatic asylum in Latin America. In 1949 Columbian Gov gave asylum to rebel
Peruvian political leader in its embassy in Peru. Colombian ambassador requested the Peru Gov to
allow leader to leave the country on the ground tht the Columbian govt qualified him as a political
refugee. Peru govt refused. Case ref to ICJ. In its submission Columbia claimed the right to
qualify(i.e. characterize) the nature of the offence by unilateral decision tht it wud be binding on
Peru. Columbian govt based its claim on certain intnl agreements & an intl custom regding
diplomatic asylum - it referred to large no of cases whr diplomatic asylum ws in fact granted &
respected.)
Court obsrvd:- party which relies on usage of ths kind must prove tht this custom is established in
such a manner tht it hs become binding on the othr party. Columbian govt must prove tht the rule
invoked by it in accordance with constant & uniform usage practiced by the States in question & tht
this usage is the expression of a right appertaining to the State granting asylum & a duty incumbent
on the territorial State. This follows frm Art 38 of the Statute of the Court which refers to intl
custom as evidence of general practice of law.
Court rejected Columbian contention as the facts brought before it disclosed uncertainty,
contradiction & fluctuations with rgd to the exercise of diplomatic asylum. Columbian govt failed to
prove the existence of alleged custom. Even if it cud be be supposed tht such a custom existed
betw certain Latin American states only, it cud nt be invoked against Peru which hd repudiated it by
refraining frm ratifying Montevideo Conventions of 1933 & 1939, which were 1st to include a rule
concerning the qualification of the offence in matters of diplomatic asylum.
(5) Libya vs Tunisia Continental Shelf Case, ICJ Rep. 1982, p. 17
Court asserted tht equitableness of result is important rather than means. The equitableness of any
specific principles of delimitations hd to be assessed in the light of the usefulness of tht principle in
achieving an overall equitable result - furthr equity in intl law is a genral concept of law, directly
applicable as law, taking into account the circumstances of the particular case. the relevant
circumstances cud be the geography, geomorphology, landfrontier, historic rights & economic
considerations. the court noted the merit of 'equidistance rule' is in cases in which its application
leads to an equitable solution. States may deviate frm an equidistance line and make use of othr
criteria fr the delimitation, whenever they found this is a better way to arrive at an agreement.
(6) Libyan Arab Jamahiriya vs Malta, ICJ Rep. 1985, p. 35
Court held tht 'equidistance principle' is nt a customary rule of intl law as evidenced by the State
practices. Thus the principle of equidistance is nt obligatory. On 'equitable principles' the court
held tht delimitation shld be effected in accordance with equitable principles & taking into account
of all relevant circumstances, so as to arrive at an equitable result - the court emphasized
equitableness of the means as well as the result. Court lay emphasis on geographical/geomorphological features, and rejected the economic factors (e.g. a poor state to be given more of
the area) and security as relevant circumstances. Court also noted tht 'the tracking of a median line
betw those coasts by way of provisional step in a process to be continued by othr operations, is the
most judicious manner of proceeding with a view to the eventual achievement of an equitable
result - but it shld nt be understood as implying tht an equidistance line will be an appropriate
beginning in all cases or even in all cases of delimitation betw opposite states"
2.1.3 General Principles of Law recognized by Civilized Nations
A 38(1) of statutes of ICJ
Principles so general as apply to all legal systems in same dev state. Presumption is such is
necessary for maint of justice under any system. Repeated in almost same form across since a)
Common oriogin b) Response to basic needsof human association.

For eg Pacta Sunt Servanda.


Can also be derived from Municipal Laws if universal acceptance and no conflict with int law. Not
automatic- World Court to recognize first per above parameters
Examples :
1) Res Judicata : once judicially decided, absolute bar to action wrt same claim
Case 8 8. Advisory Opinion of ICJ on the Effect of Awards of Compensation made by the United
Nations Administrative Tribunal , 1954 International Law Reports 310 08
Some members of UN Secretariat discharged from services of Secy Genearl of UN. Challenged
before UN Admin Tribunal as illegal. Some won and awarded. General Assy sought to know if it is
bound by such award.
Held that Tribunal is juridical body and award final without any review possible. So judgment
binding on UN and in turn GA is a UN Organ hence binding on it too.
2) Prescription ( claim founded on enjoyment )
Eastern Greenland Case ( 1933 ): Norway and Denmark bothclaim part of Greenland.Denmark has
practiced sovereignity peacefully an dover a long period. Norway says when it occupied the area
was a no mans land outside Danish Colony Limits in Greenland. Held that for a Claim without
anytreaty but merely continued display of authority to succed : a) intention/ will to act as
sovereign b) Some actiual exercise / display. So Denmark wins.
3) Subrogation : If someone takes over from anoter. He also carries the obligations alongwith of
existingagreements. .Palestine Concsessions Case : M got some concessions from Ottoman
Authorities for some worls done. Britain took from Palestine but doesnaccept this concession. Held
it should since such concessions were valid.
4) Estoppel ( preclusion )
Preah Vihar case ( 1962 ) : No benefit from own wrong. If a party by attitude/ actions takes a stand
contrary to rights it is claiming , it is precluded from such claim.
5) Equity ( reasonable. Fairness )
Not a source but important in decision process. Sensible, reasonable, equitable. Many into
customary rules with time. Exceptions are equity judicially recognized. It is NOT ex acqueo et bono
which means conciliation.
North Sea Cont Shelf Case : Court applied equity to interpret the particular circom of the situation.
6) Other Principles
- Reparation Good Faith Abuse of rights Territoriality of Criminal Law ( Lotus case ) Humanity
Considerations ( Corfu Channel Case )
Status of General Principles of Law
Some say not an independent source of Int Law since a) A principle affirmed many times becomes a
Custom and so part of Int law b) No General principles except by Int Agreement c) Customs and
Treaties only source since Int Law is body of Rules to which Sates have consented ( Positivists )
( CIP )
This is incorrect. Correct view is that GPs are primary sources since valid through all human
societies . Municipal Legal System has always been used to fill in the gaps of Int law. Res Judicata,
Pacta etc. for example. So, this is an additional source. But only as reserve, to be used when int
law has gaps. Since it provides a background of legal principles in light of which customs and
treaties have to be applied.

(7) Advisory opinion of ICJ on the effect of Awards of Compensation made by the United Nations
Administrative Tribunal, 1954 Intl Law Reports 310 - discussed above
(8) Islands of Palmas Case (Netherlands vs United States) (1928) Permanent Court of Arbitration, 2
R.I.A.A 829
Both America & Netherlands claimed sovereignity over the Islands of Palmas. the arbitrator Huber,
decided in favor of Netherlands on the basis of unchallenged acts of peaceful display of
sovereignity by Netherlands spread over the period 1700 to 1906.
Treaties concluded by Spain with 3rd powers recognizing her sovereignity over the Phillipines cud nt
be binding upon the Netherlands.
(9) Temple of Preah Vihear Case (Merits) (Cambodia vs Thailand), ICJ Reports 1962, p.6
Court obsrvd tht a State must nt be permitted to benefit by its own inconstitency to the prejudice
of another state. the party which by its recognition, its representation, its declaration, its conduct
or its silence hs maintained an attitude manifestly contrary to the right it is claiming befr an intl
tribunal is precluded fr claiming tht right.

2.1.4 Judicial Decisions, Juristic Opinion


Art 38(1)(d)- subsidiary and indirect sources.
a) Judicial Decisions
Not Binding since A 59 clearly says an ICJ decision will apply only to that particular case. So stare
decisis not adopted by ICJ. But creates a repository and even ICJ changes only in special
circumstances. Of course advisory op of ICJ not binding at all. Indeed ICJ decisions are becoming
major source of law. For eg in Anglo Norwegian Fisheries case the Straight Line system was evolved
which later found place in UNCLOS, 1982. Similarly in North Sea Continental Shelf the rules of
equitable principles for delimitation were adopted in UNCLOS 1982
State Judicial Decisions, made uniformly, also create evidence of Int Custom and how law is
understood in that country and so important.
a) Writings of Jurists
Only a final resort since writer view varies, national/ political bias. Calvo Clausefor eg. Useful when
no treaty , legislation , precedent since sets out the wisdom of experts based on long research
2.1.5 Ex aequo et bono
x aequo et bono (Latin for "according to the right and good" or "from equity and conscience") is a
phrase derived from Latin that is used as a legal term of art. In the context of arbitration, it refers
to the power of the arbitrators to dispense with consideration of the law and consider solely what
they consider to be fair and equitable in the case at hand.
Article 38(2) of the Statute of the International Court of Justice (ICJ) provides that the court may
decide cases ex aequo et bono, but only where the parties agree thereto.[1] In 1984 the ICJ
decided a case using "equitable criteria" in creating a boundary in the Gulf of Maine for Canada and
the US.[2]
Article 33 of the United Nations Commission on International Trade Law's Arbitration Rules (1976)[3]
provides that the arbitrators shall consider only the applicable law, unless the arbitral agreement
allows the arbitrators to consider ex aequo et bono, or amiable compositeur, instead.[4] This rule is

also expressed in many national and subnational arbitration laws, for example s. 22 of the
Commercial Arbitration Act 1984 (NSW).
On the other hand, the constituent treaty of the Eritrea-Ethiopia Claims Commission explicitly
forbids this body to interpret ex aequo et bono
2.2 Other sources of intl law
2.2.1 Resolution of General Assembly
After UN formed, most int law dev and codification has been thru its organisations. So v. important
source.
Resolutions of GA are not of legal character/ not binding. But if adopted unanimously/ 66.66 %
majority and mentioned in many other subsequent ones it is important as give rise to Opinio Juris.
Many cases show GA announcements can be given legal effect but important to consider the number
of states, their interest, position in the resolution and subsequent positions.
GA resolutions concerning internal working of UN are binding. Also, any state voting in favor of a
resolution is bound by it but for those opposing it is only indicative of what could be used by the Int
Court as a subsidiary means.
Western States feel resolutions are one of the element to make a customary rule, provided other
practices confirm. Third World says since representative of Int Will, such resolutions by themselves
form custom and declare general principles of law. Since such resolutions are based upon equity,
welfare of all etc and have majority basis they well elaborate and develop Int Law to present
needs. For eg self determination, self defence, no force use in int relations etc.. Some like Univ
Declaration of Human Rights, 1948, Declaration on Prohibition Nuclear Weapons 1961 , Declaration
on Permanent Sovereignty over Natural Resources 1962 are clearly of law making character. They
can also become the source of Universal Int Law Int Convention on Apartheid, 1973 and Int.
Convention on Genocide etc
2.2.2 Resolution of Security Council
A United Nations Security Council resolution is a UN resolution adopted by the fifteen members of
the Security Council; the UN body charged with "primary responsibility for the maintenance of
international peace and security".
The UN Charter specifies (in Article 27) that a draft resolution on non-procedural matters is
adopted if nine or more of the fifteen Council members vote for the resolution, and if it is not
vetoed by any of the five permanent members. Draft resolutions on "procedural matters" can be
adopted on the basis of an affirmative vote by any nine Council members.
The five permanent members are the People's Republic of China (which replaced the Republic of
China in 1971), France, the Russian Federation (which replaced the defunct Soviet Union in 1991)
the United Kingdom, and the United States.

2.2.3 Advisory Opinions of PCIJ and ICJ


(10) Advisory Opinion of ICJ on the Legality of the Threat or Use of Nuclear Weapons, 35
International Legal Materials 809 (1996)
On 15 December 1994 the UN General Assembly adopted resolution A/RES/49/75K.[10] This asked
the ICJ urgently to render its advisory opinion on the following question: Is the threat or use of
nuclear weapons in any circumstances permitted under international law?

The resolution, submitted to the Court on 19 December 1994, was adopted by 78 states voting in
favour, 43 against, 38 abstaining and 26 not voting.
Court's analysis of illegality of nuclear weapons
- Deterrence and "threat"
- The legality of the possession of nuclear weapons
Decision The court undertook seven separate votes, all of which were passed:[13]
- The court decided to comply with the request for an advisory opinion;[6]
- The court replied that "There is in neither customary nor conventional international law any
specific authorization of the threat or use of nuclear weapons";[14]
- The court replied that "There is in neither customary nor conventional international law any
comprehensive and universal prohibition of the threat or use of nuclear weapons as such";[15]
- The court replied that "A threat or use of force by means of nuclear weapons that is contrary to
Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of
Article 51, is unlawful";[16]
- The court replied that "A threat or use of nuclear weapons should also be compatible with the
requirements of the international law applicable in armed conflict, particularly those of the
principles and rules of humanitarian law, as well as with specific obligations under treaties and
other undertakings which expressly deal with nuclear weapons"[17]
- The court replied that "the threat or use of nuclear weapons would generally be contrary to the
rules of international law applicable in armed conflict, and in particular the principles and rules of
humanitarian law; However, in view of the current state of international law, and of the elements
of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear
weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very
survival of a State would be at stake"[18]
- The court replied that "There exists an obligation to pursue in good faith and bring to a conclusion
negotiations leading to nuclear disarmament in all its aspects under strict and effective
international control"
(11) Advisory Opinion of ICJ on Namibia, ICJ Rep. 1971, p, 16
South-West Africa (Afrikaans: Suidwes-Afrika; German: Sdwestafrika) was the name that was used
for the modern day Republic of Namibia during the earlier eras when the territory was controlled by
the German Empire and later by South Africa.
German colony - As a German colony from 1884, it was known as German South-West Africa
(Deutsch-Sdwestafrika). Germany had a difficult time administering the territory, which, owing to
the Germans' native policy, experienced many insurrections, especially those led by guerilla leader
Jacob Morenga. The main port, Walvis Bay, and the Penguin islands had been annexed by Britain as
part of the Cape Colony in 1878, and became part of the Union of South Africa in 1910.
As part of the Heligoland-Zanzibar Treaty in 1890, a corridor of land taken from the northern border
of Bechuanaland, extending as far as the Zambezi river, was added to the colony. It was named the
Caprivi Strip (Caprivizipfel) after the German Chancellor Leo von Caprivi.[1]
During 1915, the region was taken from German control in the South-West Africa Campaign of the
First World War. After the war, it was declared a League of Nations Mandate territory under the
Treaty of Versailles, with the Union of South Africa responsible for the administration of South-West

Africa, including Walvis Bay.


UN trust territory
The Mandate was supposed to become a United Nations Trust Territory when League of Nations
Mandates were transferred to the United Nations following the Second World War. The Union of
South Africa objected to South-West Africa coming under UN control and refused to allow the
territory's transition to independence, regarding it as a fifth province (even though it was never
formally incorporated into South Africa)
International law
These South African actions gave rise to several rulings at the International Court of Justice, which
in 1950 ruled that South Africa was not obliged to convert South-West Africa into a UN trust
territory, but was still bound by the League of Nations Mandate with the United Nations General
Assembly assuming the supervisory role. The ICJ also clarified that the General Assembly was
empowered to receive petitions from the inhabitants of South-West Africa and to call for reports
from the mandatory nation, South Africa.[3] The General Assembly constituted the Committee on
South-West Africa to perform the supervisory functions.[4] In another advisory opinion issued in
1955, the Court further ruled that the General Assembly was not required to follow League of
Nations voting procedures in determining questions concerning South-West Africa.[5] In 1956, the
Court further ruled that the Committee had the power to grant hearings to petitioners from the
mandated territory.[6] In 1960, Ethiopia and Liberia filed a case in the International Court of
Justice against South Africa alleging that South Africa had not fulfilled its mandatory duties. This
case did not succeed, with the Court ruling in 1966 that they were not the proper parties to bring
the case
Mandate terminated
There was a protracted struggle between South Africa and forces fighting for independence,
particularly after the formation of the South West Africa People's Organisation (SWAPO) in 1960.
In 1966, the General Assembly passed resolution 2145 (XXI) which declared the Mandate terminated
and that the Republic of South Africa had no further right to administer South-West Africa. In 1971,
acting on a request for an advisory opinion from the United Nations Security Council, the ICJ ruled
that the continued presence of South Africa in Namibia was illegal and that South Africa was under
an obligation to withdraw from Namibia immediately. It also ruled that all member states of the
United Nations were under an obligation not to recognize as valid any act performed by South
Africa on behalf of Namibia.[9]
South-West Africa became known internationally as Namibia when the UN General Assembly
changed the territory's name by Resolution 2372 (XXII) of 12 June 1968.[10] SWAPO was recognized
as representative of the Namibian people and gained UN observer status[11] when the territory of
South West Africa was already removed from the list of Non-Self-Governing Territories.
The territory became the independent Republic of Namibia on 21 March 1990, although Walvis Bay
became part of Namibia only in 1994.
Bantustans
The South African authorities established 10 bantustans in South-West Africa in the late 1960s and
early 1970s in accordance with the Odendaal Commission, three of which were granted self-rule.
[12] These bantustans were replaced with separate ethnicity based governments in 1980.
The bantustans were: Basterland, Bushmanland, Damaraland, East Caprivi (self rule 1976),
Hereroland (self-rule 1970), Kaokoland, Kavangoland (self-rule 1973), Namaland, Ovamboland,
Tswanaland

(12) Advisory Opinion of ICJ in Western Sahara Case, ICJ Rep.. 1975, p12
Since its accession to independence in 1956, Morocco has considered Spanish Sahara to be part of
its pre-colonial territory[citation needed], and Spain had largely decolonized its foreign holdings,
including much of Spanish Morocco, but had retained the Spanish Sahara. In 1958, the Moroccan
Army of Liberation fought the Spanish forces in the Ifni War. After support from France, Spain
regained control of the region but returned the regions of Tarfaya, and Tantan to Morocco. Morocco
continued to demand the return the remaining regions, Ifni, Saguia el-Hamra and Rio De Oro and
several other regions (Mauritania, part of Algeria & part of Mali) colonized by France. During the
1960s, Morocco succeeded in getting Spanish Sahara to be listed on the list of territories to be
decolonized, and on December 20, 1966, United Nations General Assembly Resolution 2229 called
on Spain to hold a referendum on self-determination in the region.
After initially resisting all claims by Morocco and Mauritania (which also started laying claims to
parts of the region), Spain announced on August 20, 1974, that a referendum on self-determination
would be held in the first six months of 1975 and took a census of the region in order to assess the
voting population.
Morocco declared it cannot accept a referendum which would include an option for independence
and renewed its demands for the reintegration of the remaining provinces of Saguia el-Hamra and
Rio de Oro to the country's sovereignty. In Mauritania, a smaller movement existed to overtake
some amount of the territory, partitioning it with Morocco.
Algerian-Moroccan relations had been strained since Algeria's independence in 1962, culminating in
the Sand war, and a lack of normalized relations. Algeria, after initially supporting Morocco and
Mauritania in their demands[citation needed], started in 1975 to support the independence of the
territory. The Algerian official position was that it supported the right of self-determination of the
people of the former Spanish colony. The Polisario Front, created in 1973, a national liberation
movement known as Polisario (Spanish: "Frente Popular de Liberacin de Saguia el-Hamra y Ro de
Oro" English: "Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro") was formed in
1973 to expel the Spaniards. They engaged in several low-level acts of property destruction, mostly
localized around the Fosbucraa conveyor belt, which exported the rich phosphates to the Atlantic
Ocean.
On September 17, 1974, King Hassan II announced his intention to bring the issue to the ICJ. In
December, Spain agreed to delay the referendum pending the opinion of the court. They gave their
support to ICJ submission on the grounds that it be a non-binding, advisory opinion, rather than a
"contentious issue", where the ruling would oblige the interested states to act in a particular
manner.
On December 13, the United Nations General Assembly voted on submission, resulting in UN General
Assembly Resolution 3292, affirming it and defining the wording of the questions to be submitted.
Algeria was among the nations voting in favor, and several Third World nations abstained.
Submission
UN General Assembly Resolution 3292[2] requested that the International Court give an advisory
opinion on the following questions:
:I. Was Western Sahara (Ro de Oro and Sakiet El Hamra) at the time of colonization by Spain a
territory belonging to no one (terra nullius)?
And, should the majority opinion be "no", the following would be addressed:
:II. What were the legal ties between this territory and the Kingdom of Morocco and the
Mauritanian entity?

In the meantime, Morocco and Mauritania jointly agreed to not contest the issue of partition or
sovereignty. On January 16, 1975, Spain officially announced the suspension of the referendum
plan, pending the opinion of the court. From May 12 through to May 19, a small investigative team
made of citizens from Cuba, Iran, and Cte d'Ivoire was sent into the region to assess public support
for independence. They also performed inquiries in Algeria, Mauritania, Morocco, and Spain.
In the summer, the questions were submitted by King Hassan II and Spain. Algeria, Mauritania,
Morocco, and Spain were all given permission to present evidence at the hearings (the Polisario was
locked out as only internationally recognized states have a right to speak - Algeria largely
represented the Sahrawis). Twenty-seven sessions were held in June and July before the Court
called the proceedings final.
The arguments presented by Morocco and Mauritania were essentially similar: that either one had a
sovereign right over the territory. In the case of Morocco, the kingdom of Morocco claimed the
allegiance of a variety of tribes in surrounding territory. The modern Moroccan monarchy is derived
from this kingdom[citation needed]. In the case of Mauritania, there was no clearly defined state
that existed at the time. Instead, Mauritania argued that a similar entity existed which they called
"bilad Chinguetti". Spain argued against Moroccan sovereignty, citing the relationship that Spanish
explorers and colonizers had established with the sultan, none of which ever recognized his
authority over the region. Algeria also defended the position that the Sahrawis were a distinct
people[citation needed], and not under the subjection of Morocco or Mauritania.
The Opinion
On October 15, a UN visiting mission sent by the General Assembly to tour the region and
investigate the political situation published its findings, showing that the Sahrawi population were
"overwhelmingly" in favor of independence from both Spain and Morocco/Mauritania. These findings
were submitted to the Court, who published their opinion the next day.
For the former question, the Court decided by a vote of 13 to three that the court could make a
decision on the matter, and unanimously voted that at the time of colonization (defined as
November 28, 1884), the territory was not terra nullius (that is, the territory, did belong to
someone).
For the latter question, the Court decided by a vote of 14 to two that it would decide. It was of the
opinion, by 14 votes to two, that there were legal ties of allegiance between this territory and the
Kingdom of Morocco. Furthermore, it was of opinion, by 15 votes to one, that there were legal ties
between this territory and the "Mauritanian entity". However, the Court defined the nature of these
legal ties in the penultimate paragraph of its opinion, and declared that neither legal tie implied
sovereignty or rightful ownership over the territory. These legal ties also did not apply to "selfdetermination through the free and genuine expression of the will of the peoples of the
Territory."(ICJ Reports (1975) p. 68, para. 162)
(13) Advisory Opinion of ICJ in Accordance with International Law of the Unilateral Declaration of
Independence in respect of Kosovo Case, 2010
Accordance with International Law of the Unilateral Declaration of Independence In Respect of
Kosovo was a request for an advisory opinion referred to the International Court of Justice by the
UN General Assembly regarding the 2008 unilateral declaration of independence of Kosovo. The
territory of Kosovo is the subject of a dispute between Serbia and the Republic of Kosovo
established by the declaration. This was the first case regarding a unilateral declaration of
independence to be brought before the court.

The court delivered its advisory opinion on 22 July 2010; by a vote of 10 to 4, it declared that "the
declaration of independence of the 17 February 2008 did not violate general international law
because international law contains no 'prohibition on declarations of independence'."[2] There were
many reactions to the decision, with most countries that already recognise Kosovo hailing the
decision and saying it was "unique" and does not set a precedent; while most countries that do not
recognise Kosovo said they would not be doing so as the ruling could set a precedent of endorsing
secession in other places.
Ruling
On 22 July 2010, the court ruled that Kosovo's declaration of independence was not in violation of
international law.[115][116][117] The President of the ICJ Justice Hisashi Owada said that
international law contains no "prohibition on declarations of independence." The court also said
while the declaration may not have been illegal, the issue of recognition was a political one.[118]
The court asserted that the declaration of independence was not issued by the Assembly of Kosovo,
Provisional Institutions of Self-Government, or any other official body; did not follow the legislative
procedure; and was not properly published. The words Assembly of Kosovo in the English and French
variants were due to an incorrect translation and were not present in the original Albanian text,
thus the authors, who named themselves "representatives of the people of Kosovo" were not bound
by the Constitutional Framework created by the UNMIK which reserved the international affairs of
Kosovo solely to the competency of the UN representative.[119]
The advisory opinion by the court was seen to have set a possible precedent that could have farreaching implications for separatist movements around the world, and even for Serbia's EU
membership talks. It was also read as being likely to lead to more countries recognising Kosovo's
independence
------------------3. Relationship between Intl Law and Muncipal Law
3.1 Theories
3.1.1 Monistic Theory - No ratification of treates needed - intl law higher than national law treaties are law - intl law enforceable in national courts without ratification. Judge can declare
national law invalid if it condradicts intl law - adv -> good fr human rights - faster implementation
of laws, close to natural law disadv, fast legislation -> enforced to appease other states -> judges
might not be able to correctly interpret the intl law(also a fear which leads countries to adopt
dualistic theory) - 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 - in Germany, treaties have the same effect as legislation, and by the principle of lex
posterior, only take precedence over national legislation enacted prior to their ratification
3.1.2 Dualistic Theory - Intl law becomes national/local law only after ratification - emphasize
distinction bw intl & national law & require translation - takes more time -> legislative block holes other local national laws may subsequently overrule the intl law at a later stage(lex posterior) hence implementation of intl law a problem - Negligence or unwillingness to implement intl law can
pose a problem in intl states
A matter of national legal tradition
International law does not determine which point of view is to be preferred, monism or dualism.

Every state decides for itself, according to its legal traditions. International law only requires that
its rules are respected, and states are free to decide on the manner in which they want to respect
these rules and make them binding on its citizens and agencies. But they are always accountable if
they fail to adapt their national legal system in a way that they can respect international law.
The problem of lex posterior

In dualist systems, international law must be translated into national law, and
existing national law that contradicts international law must be "translated
away". It must be modified or eliminated in order to conform to international law.
However, the need for translation in dualist system causes a problem with regard
to
tional laws voted after the act of translation. In a monist system, a national law that is
voted after an international law has been accepted and that contradicts the international law,
becomes automatically null and void at the moment it is voted. The international rule continues to
prevail. In a dualist system, however, the original international law has been translated into
national law - if all went well - but this national law can then be overridden by another national
law on the principle of "lex posterior derogat legi priori", the later law replaces the earlier one.
This means that the country - willingly or unwillingly - violates international law. A dualist system
requires continuous screening of all subsequent national law for possible incompatibility with
earlier international law.

3.2 Practice of States:


India(dualist), requires ratification of intl law & treaties - intl rules are considered
in customary laws but incase of conflict between national & intl law the national
law prevails (Justice Chinnappa Reddy in 'Gramophone Company of India Ltd vs
Birendra Bahadur Pandey') - Directive principles Article 51 does acknowledge intl
law & does direct India to strive to implement just honorable intl laws - duty of the State to apply
them in making laws - but Directive Principles cannot be enforced in a court of justice
UK(dualist), In the United Kingdom, the common law recognises customary international law as a
direct source of rules in municipal law.[1]
However, the law adopts a dualist stance in respect of treaties<, including human rights treaties:
they have no direct effect in national law in the absence of legislation to transform them into rules
of the municipal legal order. This dualism is qualified by the fact that courts will often use treaties
as aids in deciding questions of municipal law, albeit not as a source of law in their own right.
USA(Mixed mono-dualist)
The United States of America has a "mixed" monist-dualist system; international law applies directly
in US courts in some instances but not others. US Constitution, art. VI, does indeed say that treaties
are part of the Supreme Law of the Land, as suggested by the quote above; however, its Supreme
Court, as late as the recent case of Medelln v. Texas,[7] has restated that some treaties are not
"self-executing." Such treaties must be implemented by statute before their provisions may be
given effect by national and sub-national courts. Similarly with regard to customary international
law, its Supreme Court stated, in the case of the Pacquete Habana (1900), that "international law is
part of our law." However, it also said that international law would not be applied if there is a
controlling legislative, executive, or judicial act to the contrary. - General rule is tht if conflict btw
treaty & national law which ever is on a later date will prevail.
(14) In Re Berubari Union No. (I), AIR 1960 SC 845: (1960) 3 SCR 250

in Berubari Union Case No 1 it ws held tht an agreement involving cessation of part of Indian
territory to Pakistan required amendment to the Constitution hence legislative enactment is
neccessary.
(15) Ram Kishore Sen vs UoI (1966) 1 SCR 430: AIR 1966 SC 644
Berubari Union Case No 2. wherein the territory de jure belonged to Pakistan it ws held tht giving it
back did nt entail cessation of territory hence transfer could be executed by executive action & no
legislation ws neccessary.
(16) Jolly George Varghese vs Bank of Cochin, AIR 1980 SC 470 (1980) 2 SCC 360
In India treaties do not have the force of law and consequently obligations arising thrfrm will nt be
enforceable in municpal courts unless backed by legislation. Sec 51 of CrPC was construed to avoid
conflict with Art 11 of Int Covenant on Civil and Political Rights.
(17) Gramophone Company of India Ltd vs Birendra Bahadur Pandey, AIR 1984 SC 667:(1984) 2 SCC
534
Justice Chinnappa Reddy obsrvd: Thr cn be no question tht nations must march with the intl
community and muncipal law must respect rules of intl law. The comity of nations require tht rules
of intl law may be accomodated in the muncipal law even w/o express legislative sanction. But
when they do run into such conflict, the sovereignity & integrity of the republic & supremacy of the
constituted legislatures in making the laws may nt be subjected to external rules (except to extent
legitimately accepted by the constituted legislatures themselves). If in respect of any principle of
intl law, the Parliament says "no", the national court cannot say "yes". national courts shall approve
intl law only when it does nt conflict with national law. national courts being organs of the state
and nt organs of intl law must per force apply national law if intl law conflicts with it. Indian
Copyright Act was harmonized with Int Treaties.
(18) UoI vs Sukumar Sengupta, AIR 1990 SC 1962: 1990 Supp. SCC 545 ( teen bigha case )
Held tht lease in perpetuity of teen bigha in favor of Bangladesh did nt amt to cessessation of
territory and hence legislation ws nt reqd.
(19) Vellore Citizens' Welfare Forum vs UoI (1996) 5 SCC 647
PIL against Tanneries polluting water in areas of Tamil Nadu - 35 - 40 litres of water reqd fr 1 kilo of
leather - tons of leather being produced - 176 types of diff chemicals being used - Drinking water
getting affected
Court held
(i)Central Govt to consitute an authority u/s 3(3) of EPA1986 - confer said authorities with all such
power neccessary to deal with the situation created by the tanneries & othr polluting industries in
St of TN
(ii) Authority - "precautionary principle" & "polluter pays" principle. - with help of expert opinion
calculate loss to ecology/environment in affected areas
(iii) Compute compensation on two heads (1) fr reversing the ecology (2) payment to individuals
(iv) direct the closure of the industry owned/managed by a polluter in case he evades or refuses to
pay the compensation awarded against him. This shall be in addition to the recovery from his as
arrears of land revenue.
(v) industry may have set up the necessary pollution control device at present but it shall be liable
to pay for the past pollution generated by the said industry which has resulted in the environmental
degradation and suffering to the residents of the area.
(vi) We impose pollution fine of Rs. 10,000/- each - tanneries in North Arcot Ambedkar, Erode
Periyar, Dindigul Anna, Trichi and Chengai M.G.R - fine paid along with othr fines mentioned above
(vii) The authority, in consultation with expert bodies like NEERI, Central Board, shall frame
scheme/schemes for reversing the damage caused to the ecology and environment by pollution in

the State of Tamil Nadu - St to implement these schemes - exp met frm EPF(env pro fund)
(viii) Closure orders fr tanneries - to reopen with pollution control devices - failing to comply ->
permanent closure
(ix) Direct SP, Coll, DM, DC of said districts to close tanneries with imm effct who fail to obtain
consent frm board
(x) Govt Order - no new industries in prohibited area - old industries to be reviewed by auth &
relocated
(xi) standards stipuated by the Board regarding total dissolved solids (TDS) and approved by the
NEERI shall be operative - all tanneries situated in TN to comply - The quality of ambient waters
has to be maintained through the standards stipulated by the Board.
(20) Vishaka vs State of Raj, AIR 1997 SC 3011: 6 SCC 241r
SC used articles of Convention to Eliminate all forms of Discrimination against Women to lay down
guidelines binding as law till the time required legislations was not in place
(21) Gaurav Jain vs UoI & Ors, AIR 1997 SC 3021
(22) CIT vs P.V.A.L Kulandagan Chettiar (2004) 6 SCC 235
Issues in frnt of SC (many othr issues covered by HC)
(a) Whether the Malaysian income cannot be subjected to tax in India in the basis of the agreement
of avoidance of double taxation entered into between Government of India and Government of
Malaysia ?
(b) Whether the capital gains should be taxable only in the country in which the assets are situated?
Treaty provisions prevail over local provisions
The Apex Court in CIT v. P V A L Kulandagan Chettiar (2004) 137TAX460 in the context of a person
maintaining residence in India as well as Malaysia and deriving business incomes in Malaysia, held
that a liability to tax arising under the provisions of section 4 and 5 of the Income tax Act, 1961
which provide for taxation of global income of an assessee chargeable to tax, there under, is
subject to the provisions of an agreement entered into between he Central Government and the
Government of a foreign country for avoidance of double taxation as envisaged under section 90 .
Such an agreement will act as an exception to or modification of section 4 and 5. In a further note
the Supreme Court clarified that the provisions of such agreement cannot fasten a tax liability
where the liability is not imposed by a local Act. And where tax liability is imposed by the Act, the
agreement may be resorted to either for reducing the tax liability or altogether avoiding the tax
liability. In case of any conflict between the local Act and the Agreement provisions the agreement
clauses will prevail on the basis of section 90(2). Reading Article 4 of the Indo Malaysian tax treaty
the Apex Court held that fiscal domicile/taxation will be determined on the basis of close personal
and economic relations. In this case once the assessee owned immovable property in Malaysia the
income arising there from is held to be chargeable to taxes in Malaysia only in which case according
to the Apex Court his residence in India becomes irrelevant altogether.
The Apex Court also held that the treaty has application as well to capital gains income vide Article
6 of the tax treaty.
(23) Committee of US Citizens Living in Nicaragua vs Reagan, US Court of Appeals District of
Columbia Circuit 1988, 859 Fed. Rptr. 2d 929
US Court refused to hear plea - said issue is out of their jurisdiction (Rgding US armed action in
Nicargua)
--------------------4. State Responsibility

4.1 Basis of International Responsibility


The laws of state responsibility are the principles governing when and how a state is held
responsible for a breach of an international obligation. Rather than set forth any particular
obligations, the rules of state responsibility determine, in general, when an obligation has been
breached and the legal consequences of that violation. In this way they are "secondary" rules that
address basic issues of responsibility and remedies available for breach of "primary" or substantive
rules of international law, such as with respect to the use of armed force. Because of this
generality, the rules can be studied independently of the primary rules of obligation. They
establish
(1) the conditions for an act to qualify as internationally wrongful,
(2) the circumstances under which actions of officials, private individuals and other entities may be
attributed to the state,
(3) general defences to liability and (4) the consequences of liability.
Until recently, the theory of the law of state responsibility was not well developed. The position
has now changed, with the adoption of the Draft Articles on the Responsibility of States for
Internationally Wrongful Acts ("Draft Articles") by the International Law Commission (ILC) in August
2001.[1] The Draft Articles are a combination of codification and progressive development. They
have already been cited by the International Court of Justice[2] and have generally been well
received.
Although the articles are general in coverage, they do not necessarily apply in all cases. Particular
treaty regimes, such as the General Agreement on Tariffs and Trade and the European Convention
on Human Rights, have established their own special rules of responsibility.
(24) Corfu Channel Case, ICJ Rep. 1949, p. 4
ICJ did nt express an opinion on right of passage of warships through territorial sea. It limited its
observations to the case of 'straits' - however some judges in their dissenting views made obsrvtns
on the issue of innocent passage of warships. Judge Alvarez felt tht since war hd been outlawed in
the UN Charter, the mission of warships can only be to secure the legitimate defence of countries
to which they belong. Judge Krylov argued tht thr ws no right of innocent passage through
territorial sea. Judge Azevedo said tht position of warships in respect of passage ws different frm
tht of merchant ships.
Intl Law Commission hd proposed tht a State might make innocent passage of warships subject to
prior authorisation or notification, but the State shld normally grant innocent passage. In 1989 US &
USSR made an important jt stmnt tht 'All ships, incl warships, enjoy the right of innocent passage
through the territorial sea in accordance with intl law, fr which neither prior notification nor
authorisation is required'. However its a jt stmnt made by two states & nt binding on othr states.
(25) Nicaragua Case ( Nicaragua vs USA) ICJ Rep. 1986, p. 14
[If a state acts in a way prima facie incompatible with a recognized rule but defends its conduct by
appealling to exceptions or justifications contained within the rule itself, then, whtr or nt the
State's conduct is in fact justifiable on tht basis, the significance of tht attitude is to confirm rather
than to weaken the rule.]
The Republic of Nicaragua v. The United States of America[1] was a 1984 case of the International
Court of Justice (ICJ) in which the ICJ ruled in favor of Nicaragua and against the United States and
awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by
supporting the Contras in their rebellion against the Nicaraguan government and by mining
Nicaragua's harbors. The United States refused to participate in the proceedings after the Court
rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked
enforcement of the judgment by the United Nations Security Council and thereby prevented
Nicaragua from obtaining any actual compensation.[2] The Nicaraguan government finally withdrew

the complaint from the court in September 1992 (under the later, post-FSLN, government of Violeta
Chamorro), following a repeal of the law requiring the country to seek compensation.[3]
The Court found in its verdict that the United States was "in breach of its obligations under
customary international law not to use force against another State", "not to intervene in its affairs",
"not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of
its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the
Parties signed at Managua on 21 January 1956."
4.2 Constituent Elements of Intl Responsibility
Essential Characteristics of State Responsibility hinge upon certain basic factors
(i) existence of an intl legal obligation in force as btw 2 particular states
(ii) thr hs occured an act/omission which violates tht obligation & which is imputable to the State
responsible
(iii) loss or damage hs occured frm the unlawful act or omission.
(iv) State shld hv been bound by obligation when act/omission occurs
State cannot abolish or create intl laws the way it can with Municipal laws - state responsibility
concerning intl duties is thrfr legal responsibility. Rgd consituent elements of intl resp certain
theories hve been in vogue
4.2.1 Damage Theory - failure to fulfill an intl obligation is not enough to make a State responsible
under Intl law - the claimant state must have suffered some damage on account of failure of acting
state. A certain conduct is forbidden becoz it is likely to cause damage to other subjects - ILC Draft
Code on State Resp 2001 does nt specifically include damage as separate constituent element of
State Resp, it is implicit in Art 2 of the Draft Code :
"There is an internationally wrongful act of a State when conduct consisting of an action or
omission:
(a) Is attributable to the State under intl law; and
(b) Constitutes a breach of an intl obligation of the State
However Part II of the Draft Code(Content of the Intl Resp of a State) mentions damage as legal
consequences of an internationally wrongful act. Art 31 provides tht resp State is under an
obligation to make full reparation fr the injury caused by such an act. Injury includes any damage
whtr material or moral caused by such act.
4.2.2 Fault Theory
Principle of subjective resp emphasised an element of intentional or negligent conduct on part of
the person concerned is neccessary before his State can be rendered liable fr any injury caused this view holds tht presence of malice or culpable negligence is a condition precedent. In Corfu
Channel case court ws concerned with Albania's knowldge of the laying of mines & the question of
prima facie resp fr any unlawful act committed within the territory of the State concerned ,
irrespective of attribution. Court did not reach its conclusion by an enquiry into the mental state of
individual organ or agent of the albanian govt.
Diff to base State's liability on fault - Corfu Channel case - Home Missionary Society Claim, tribunal
noted tht it ws estb in inl law tht no govt ws resp fr the acts of rebels whr it itself ws guilty of no
breach of good faith or of no negligence in suppressing the revolt.
4.2.3 Absolute Liability and Risk Theory
Establishes the liability of States arising out of the performance of certain activities which are
lawful but create serious risks, such as spatial & nuclear activities. However principle of risk is not
applied as a general principle of responsibility but in circumstances & conditions which are clearly
defined in intl conventions. Eg the principle of strict liability finds application in the Convention on

Intl Liability fr Damage Caused by Space Objects, 1971 - Under it a launching State is absolutely
liable to pay compensation fr damage caused by its space objects on the surface of the earth or to
aircrafts in flight. A series of treaties have established a regime of strict liability fr injurious
consequences arising out of peaceful uses of nuclear energy.

4.3 The Act of State (Rules of Attribution)


Imposing upon the State absolute liability whrever an official is involved encourages tht State to
exercise gr8r control over its various depts and reps. Also stimulates moves towrds complying with
objective stds of conduct in intl relations.
Imp to note tht St is nt resp under intl law fr all acts perfrmed by its nationals - if an Englishman
were to attack & injure a frenchman on holiday in London, the UK wud nt be held liable fr the
injury caused unless the offender were a policeman or a soldier in UK. A St is resp only fr acts of its
servnts tht r imputable or attributable to it - imputability is the legal fiction which assimilates the
actions or omisions of St officials to the State itself & which renders the State liable fr damage
resulting to the property or person of an alien.
Youman's case - Mexican militia ordered to protect American citizens instead join the riot in which
the Americans were killed - Mexican Govt ws held liable even though the defaulting soldiers
disobeyed the orders of their superiors
Incase act is completely ultra vires (beyond legal capacity of the official involved) no attribution of
liability arises. When an incumbent State agency commits an ultra vires act it cannot be said to
have acted on behalf of the State - But a State may become resp fr the wrongs if such wrongs were
made possible by the omission or default of some other official or State organ which could have
prevented the occurence of the offence. State may incur an indirect resp arising out of an ultra
vires act.
(26) LaGrand Case (Germany vs USA) ICJ Reports 2001, p. 466
The LaGrand case was a legal action heard before the International Court of Justice (ICJ) which
concerned the Vienna Convention on Consular Relations. In the case the ICJ found that its own
temporary court orders were legally binding and that the rights contained in the convention could
not be denied by the application of domestic legal procedures.
German Nationals La Grand bros - armed robbery -> bank - one man killed, woman seriously injured
- arrested - tried - sentenced to death - no consular assistance - acc to Vienna Convention shld hv
been informed of their right to consular assistance - later on contacted the German consulate appealed their sentences - argued in court that they were nt informed of consular assistance federal court rejected their arguments on grnds of procedural default - issue cannot be raised in
federal court unless they have been raised in State
Background
On January 7, 1982, brothers Karl and Walter Bernhard LaGrand bungled an armed bank robbery in
Marana, Arizona, United States, killing a man and severely injuring a woman in the process. They
were subsequently charged and convicted of murder and sentenced to death. The LaGrands were
German nationals, having been born in Germany. While they had both lived in the United States
since they were four and five, respectively, neither had acquired U.S. citizenship. As foreigners the
LaGrands should have been informed of their right to consular assistance, under the Vienna
Convention, from their state of nationality, Germany. However the Arizona authorities failed to do
this even after they became aware that the LaGrands were German nationals. The LaGrand
brothers later contacted the German consulate of their own accord, having learned of their right to
consular assistance. They appealed their sentences and convictions on the grounds that they were

not informed of their right to consular assistance, and that with consular assistance they might
have been able to mount a better defense. The federal courts rejected their argument on grounds
of procedural default, which provides that issues cannot be raised in federal court appeals unless
they have first been raised in state courts.
Diplomatic efforts, including pleas by German ambassador Jrgen Chrobog and German Member of
Parliament Claudia Roth, and the recommendation of Arizona's clemency board, failed to sway
Arizona Governor Jane Dee Hull, who insisted that the executions be carried out.[1] Karl LaGrand
was subsequently executed by the state of Arizona on February 24, 1999, by lethal injection. Walter
LaGrand was then executed March 3, 1999, by lethal gas.[2]
The case
Germany then initiated legal action in the International Court of Justice against the United States
regarding Walter LaGrand. Hours before Walter LaGrand was due to be executed, Germany applied
for the Court to grant a provisional court order, requiring the United States to delay the execution
of Walter LaGrand, which the court granted.
Germany then initiated action in the U.S. Supreme Court for enforcement of the provisional order.
In its judgment,[3] the U.S. Supreme Court held that it lacked jurisdiction with respect to
Germany's complaint against Arizona due to the eleventh amendment of the U.S. constitution,
which prohibits federal courts from hearing lawsuits of foreign states against a U.S. state. With
respect to Germany's case against the United States, it held that the doctrine of procedural default
was not incompatible with the Vienna Convention, and that even if procedural default did conflict
with the Vienna Convention it had been overruled by later federal lawthe Antiterrorism and
Effective Death Penalty Act of 1996, which explicitly legislated the doctrine of procedural default.
(Subsequent federal legislation overrides prior self-executing treaty provisions, Whitney v.
Robertson, 124 U.S. 190 (1888)).
The U.S. Solicitor General sent a letter to the Supreme Court, as part of these proceedings, arguing
that provisional measures of the International Court of Justice are not legally binding. The United
States Department of State also conveyed the ICJ's provisional measure to the Governor of Arizona
without comment. The Arizona clemency board recommended a stay to the governor, on the basis
of the pending ICJ case; but the governor of Arizona ignored the recommendation and Walter
LaGrand was executed on March 3, 1999. As of 2010 this is the last use of lethal gas in the U.S.,
although five states still permit its use in varying circumstances.
Germany then modified its complaint in the case before the ICJ, alleging furthermore that the U.S.
violated international law by failing to implement the provisional measures. In opposition to the
German submissions, the United States argued that the Vienna Convention did not grant rights to
individuals, only to states; that the convention was meant to be exercised subject to the laws of
each state party, which in the case of the United States meant subject to the doctrine of
procedural default; and that Germany was seeking to turn the ICJ into an international court of
criminal appeal.
ICJ decision
On June 27, 2001, the ICJ, rejecting all of the United States' arguments, ruled in favor of Germany.
The ICJ held that the Vienna Convention on Consular Relations of 24 April 1963 (Vienna Convention)
granted rights to individuals on the basis of its plain meaning, and that domestic laws could not
limit the rights of the accused under the convention, but only specify the means by which those
rights were to be exercised. The ICJ also found that its own provisional measures were legally
binding. The nature of provisional measures has been a subject of great dispute in international
law;[citation needed] the English text of the Statute of the International Court of Justice implies

they are not binding, while the French text implies that they are. Faced with a contradiction
between two equally authentic texts of the statute, the court considered which interpretation
better served the objects and purposes of the statute, and hence found that they are binding. This
was the first time in the court's history it had ruled as such.
The court also found that the United States violated the Vienna Convention through its application
of procedural default. The court was at pains to point out that it was not passing judgment on the
doctrine itself, but only its application to cases involving the Vienna Convention.
(27) Case concerning Avena and other Mexican Nationals (Mexico vs USA) ICJ Reports 2004, p.12
Mexico v. United States of America, formally Avena and Other Mexican Nationals, was a case before
the International Court of Justice (ICJ) of the United Nations. It was decided on 31 March 2004,
finding that the United States had breached its obligations under the Vienna Convention on
Consular Relations in not allowing representation from Mexico to meet with Mexican citizens
arrested and imprisoned for crimes in the United States.
An order indicating provisional measures in the case of Mr. Jos Ernesto Medelln Rojas was entered
on 16 July 2008, and on 19 January 2009 the ICJ found that the United States breached its
obligations under the 16 July order, but also that the Statute of the International Court of Justice
"does not allow it to consider possible violations of the Judgment which it is called upon to
interpret.
4.4 International Crimes and Delicts
Internationally wrongful acts: According to the Draft Articles, an internationally wrongful act must:
- be attributable to the state under international law; and
- constitute a breach of an international obligation of the state.[10]
An internationally wrongful act which results from the breach by a State of an international
obligation so essential for the protection of fundamental interests of the international community
that its breach is recognized as a crime by that community as a whole constitutes an international
crime. On the basis of the rules of international law in force, an international crime may result,
inter alia, from:
(a) a serious breach of an international obligation of essential importance for the maintenance of
international peace and security, such as that prohibiting aggression;
(b) a serious breach of an international obligation of essential importance for safeguarding the right
of self-determination of peoples, such as that prohibiting the establishment or maintenance by
force of colonial domination;
(c) a serious breach on a widespread scale of an international obligation of essential importance for
safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;
(d) a serious breach of an international obligation of essential importance for the safeguarding and
preservation of the human environment, such as those prohibiting massive pollution of the
atmosphere or of the seas.
4. Any internationally wrongful act which is not an international crime in accordance with
paragraph 2 constitutes an international delict.
--4.5 Forms of Reparation (reparation is replenishment of a previously inflicted loss by the criminal to
the victim)
4.5.1 Restitution
Restitution is generally associated with the idea of returning something lost or stolen to its
legitimate owner. In international law, however, the notion of restitution is linked with the issue of

state responsibility. In this sense, restitution is one of the forms through which a state may
discharge its obligation to provide reparation for the harm caused by its wrongful acts. More
precisely, the term is used, in international practice, in at least two senses. In the strict sense, it
signifies the return of unlawfully taken property to the original owner. In the broad sense,
restitution (or, in its Latin version, restitutio in integrum) is the re-establishment, as far as
possible, of the situation that existed before a wrongful act was committed.
A broad consensus exists among the international community preferring restitution over other forms
of reparation under international law. This view is in line with the essential goal of reparation,
which, according to the Permanent Court of International Justice's holding in its famous Chorzw
Factory decision (1928), "must, so far as possible, wipe out all the consequences of the illegal act
and re-establish the situation which would, in all probability, have existed if that act had not been
committed."
It follows that restitutionhich most closely conforms to that goals to be preferred over
compensation and other forms of reparation whenever possible, unless the injured party renounces
it. This primacy of restitution has been embedded in the articles on the responsibility of states for
internationally wrongful acts, adopted on second reading by the United Nations International Law
Commission (2001). Even advocates of this primacy, however, recognize that it is not unconditional,
and they accept that compensation should be preferred at least when providing restitution would,
in a situation involving two states, put a burden on the responsible state that is out of all
proportion to the corresponding benefit for the injured state.
Restitution for Gross Human Rights Violations Amounting to Genocide and Crimes Against Humanity
Although there is no reason for excluding the primacy of restitution with regard to gross violations
of human rights, its usefulness may be limited, in practice, by the specific type of harm caused by
these kinds of wrongs. In effect, genocide and crimes against humanity cause harm, first and
foremost, to immaterial and unique interests, such as dignity, personal integrity, and liberty. These
cannot be restored to their original status once they are impaired.
Restitution is most suitable and appropriate with regard to violations of property rights, such as
illegal or arbitrary expropriations. However, this does not mean that the role of restitution with
regard to crimes against humanity is only marginal. In fact, the most invasive attacks on property
are often linked with gross human rights violations. Genocide, for instance, may be accompanied by
the destruction of houses and the pillage of goods. Furthermore, the destruction, plundering, and
pillage of private property can by themselves amount to crimes against humanity or war crimes.
This may occur, for example, when the dispossession or destruction is achieved through blatant
discriminatory measures, or with the intent of persecuting a group or a collectivity, or when it is
"committed by pressure of mass terror." However, a number of practical and political factors may
hinder the concrete possibility for the victims to get their property back. This is particularly true
with regard to two types of highly politicized restitution claims: those related to historical
injustices and those connected with armed conflicts.
The former type of claim relates to serious impairments of human rights committed in a distant
past, at a time when they possibly did not even constitute a breach of the existing law. The
specificity of these claims lies in the fact that they are arguably based on moral grounds, rather
than on the legal responsibility of the state involved. This is one of the reasons why this type of
claim is generally dealt with in the framework of political settlements, rather than in the courts.
The huge lapse of time passed since the occurrence of the injury poses an additional major
obstacle for restitution in these cases. Properties are often destroyed or no longer identifiable,
their economical destination may be irreversibly changed, or they may have been transferred to
third parties acting in good faith. Under these circumstances, restitution of full ownership is often
a virtually impossible option. This situation is well illustrated by land restitution claims put forward
by indigenous communities for historical dispossessions.

Restitution claims connected with armed conflicts are complicated by the fact that the
dispossessions often take place in conjunction with ethnic cleansing and land occupation with a
view to annexation. Here, restitution may still be materially possible but politically unrealistic,
particularly when it would mean the return of huge numbers of forcibly displaced persons to
territories that have passed under the control of the same group who forced them to flee. In this
context, property restitution can hardly be seen as an absolute goal but needs to be reconciled
with other, concurring goals, to be settled in the framework of political negotiation.
Restitution in the Framework of International, Treaty-Based Judicial Mechanisms for the Protection
of Human Rights
The substantive duty to provide reparations is reinforced in the context of judicial mechanisms of
protection, where international courts are vested with the power to adjudicate both on the merits
of allegations and on remedies. The potential of remedies, however, may be partly frustrated by
the courts themselves ifn the basis of a restrictive interpretation of their remedial powers timid,
low-profile approach to reparation is taken. A quite restrictive approach is adopted, for instance,
by the European Court of Human Rights, which is generally reluctant to order specific remedies.
However, it seems to be more audacious when it comes to infringements of property rights. The
court has occasionally ordered states to return unlawfully seized properties to the former owners,
thus affirming the primacy of restitution. The fact remains, however, that even in property cases,
the court is not always prepared to order reparation to take place on the basis of restitution.
The Inter-American Court of Human Rights, enjoying broader remedial powers than its European
counterpart, handed down a landmark judgment in 2001 in the Awas Tingni case. The Court found
that Nicaragua had violated the rights to property and judicial protection of the members of the
Mayagna (Sumo) community of Awas Tingni, an indigenous community located on the forested area
of Nicaragua's Caribbean coastal region. For reparation, the Court ordered the government to take
various measures to recognize, protect, and enforce the community's historical title on its ancestral
land and resources. Although restitution was not an issue as such, the decision shows the potential
of human rights mechanisms in cases of large-scale operations of dispossession that affect whole
communities.
4.5.2 Indemnity
for any economically assessable damage, as appropriate and proportional to the gravity of the
violation and the circumstances of each case. Such damage includes: physical or mental harm, lost
opportunities, material damages and loss of earnings, moral damage, cost of legal, medical,
psychological, and social services.
Example
Canada For more than 100 years, Canada retained a practice of removing indigenous Canadian
children from their families and placing them in church-run Indian residential schools (IRS). This
process was part of an effort to homogenize Canadian society, and included the prohibition of
native language and cultural practices. In 1991, the Canadian government established the Royal
Commission on Aboriginal Peoples (RCAP), charged with exploring the relationship between
aboriginal peoples, the government, and society.
As a result of the commissions recommendations, the government symbolically issued an apology in
a Statement of Reconciliation, admitting that the schools were designed on racist models of
assimilation. Pope Benedict XVI also issued an apology on behalf of church members who were
involved in the practice.[14] In addition, the government provided a $350 million fund to help those
affected by the schools.[15] In 2006, the federal government signed the Indian Residential Schools
Settlement Agreement, agreeing to provide reparations to the survivors of this program. The
Settlement totals approximately $2 billion, and includes financial compensation, a truth
commission, and support services.[

4.5.3 Satisfaction
Appropriate for Non material damage - moral injury to dignity or personality of the State or the
individuals - wud include official apologies - punishment of guilty officials or the formal
acknowledgement or judicial declaration of the unlawful character of an act
Art 37 ILC Draft Code of 2001 - State obligation to give satisfaction of an inury insofar as it cannot
be made good by restitution or compensation - Satisfaction may consist in an acknowledgement of
the breach, an expression of regret, a formal apology etc. Satisfaction shall however not be out of
proportion to the injury & may nt take a form of humiliation to the responsible State.
Rainbow warrior case - public condemnation of France fr its breach of treaty obligations to NZ
made by tribunal constituted appropriate satisfaction
4.5.4 Guarantee against repetition
Art 30 ILC Draft Code 2001 - give appropriate guarantee/assurance that it will refrain from
repeating wrongful act
4.6 Expropriation of Property of Aliens
With granting of independence to various 3rd world countries and in view of nationalisation
measures taken by the communists and AfroAsian states expropriation of alien property for a public
purpose with declared domestic policy became a regular feature.
In assessing state of intl law with rgd to the expropriation of alien property two opposing objectives
are:(i) The capital exporting countries require some measures of protection & security before they will
invest abroad;
(ii) the capital-importing countries are wary of the power of foreign investments & the drain of
currency tht occurs and r often stimulated to take over such enterprise in the interests of economic
& social reform.
Rules of intl law on expropriation of alien property
(i) If expropriation of foreign property is in accordance with a declared domestic policy, & if it is
applied without discrimination betw citizens & the aliens, then such expropriation is justified in intl
law(Starke)
(ii) If expropriation is purely confiscatory & does nt provide just compensation to the foreign
citizens or corporations, such acts of expropriation will be contrary to intl law.
(iii) If compensation is just nominal, or is indefinitely postponed or which is the subject of vague &
non-committal promise, or which is below the rate of compensation awarded to nationals of the
expropriating State, then such an act of expropriation is contrary to intl law.
(iv) A compensation will deemed to be appropriate whr it is adequate, prompt & effective. Art 13 of
the European Energy Charter treaty 1994 provides tht expropriation must be fr a purpose which is
in the public interest, not discriminatory, carried out under due process of law & accompanied by
the payment of prompt, adequate & effective compensation.
(v) While the discrimination factor wud certainly be a relevant factor to be considered, it would in
practice often be extremely difficult to prove in concrete cases. The political motive itself wud nt
per se constitute sufficient proof of a purely discriminatory measure
4.6.1 Calvo Clause
The Calvo Clause is a legal doctrine that attaches the following five key provisions to an
international investment agreement:
1.) submission to local legal jurisdiction;
2.) application of local law;
3.) assimilation of foreigners to local contracting arrangements;
4.) waiver of diplomatic protection in a foreigners home state; and

5.) surrender of rights under international law exclusion


The doctrine was advanced by the Argentine diplomat and legal scholar Carlos Calvo, in his
International Law of Europe and America in Theory and Practice (1868). It affirmed that rules
governing the jurisdiction of a country over aliens and the collection of indemnities should apply
equally to all nations, regardless of size. It further stated that foreigners who held property in Latin
American states and who had claims against the governments of such states should apply to the
courts within such nations for redress instead of seeking diplomatic intervention. Moreover,
according to the doctrine, nations were not entitled to use armed force to collect debts owed them
by other nations. A Calvo clause in a contract between the government of a Latin American state
and an alien stipulates that the latter agrees unconditionally to the adjudication within the state
concerned of any dispute between the contracting parties.
The Calvo Doctrine was essentially restated by the Drago Doctrine, articulated by the Argentine
foreign minister Luis Mara Drago in 1902. Venezuela then was indebted to Great Britain, Germany,
and Italy, which threatened armed intervention to collect. Drago advised the United States
government that The public debt cannot occasion armed intervention nor even the actual
occupation of the territory of American nations. This statement against European intervention in
the Americas squared with U.S. policy, as set forth in the Monroe Doctrine (1823) and the Roosevelt
Corollary (1904); the U.S. government assented to the modified Drago version at the second Hague
Peace Conference (1907) in the form adopted as the Porter Convention on the Limitation of the
Employment of Force for the Recovery of Contract Debts. Although the United States opposed
European intervention in the Americas, it reserved for itself the right, frequently used, to intervene
with armed force in any Latin-American state where conditions seemed to menace U.S. interests.
Legality of the clause -in question- many cases null & void - North Amercia Dredging Company Case
- Calvo clause ws held to be bindin on the claimant(alien) to be governed by Mexican laws, subject
to the condition tht it cud nt take frm him 'his right to apply to his own Govt fr protection if his
resort to the Mexican tribunals or other authorities available to him resulted in a denial or delay of
justice as tht term is used in intl law.
According to Starke its illegal & void to the extent it attempts to waive in general the sovereign
right of a State to protect its citizens or where it purports to bind the claimant's govt nt to
intervene in respect of clear violation of International Law

4.6.2 Position of Shareholders and Nationality of Corporation


(28) Barcelona Traction, Light and Power Co. Ltd. Case , ICJ Rep 1964, p. 6
BTLP incorp in Canada & ws operating in spain. 88% shareholders were Belgian - certain restriction
appld by Spain seriously injured the company - In the eyes of the law the company ws of Canadian
nationality, though a majority of the shareholders affected were Belgian nationals. Belgian govt
espoused the cause of its citizens as shareholders of the company. ICJ Obsrvd & held as follows :(i) In municipal legal system generally a company(whose capital is represented by shares) enjoys a
separate & independent corporate personality vis-a-vis its shareholders. So long as the company is
in existence, a shareholder has no right to corporate assets. It is to rules generally accepted by
municipal legal systems & nt to municipal law of a particular State, tht intl law refers
(ii) Mere fact that damage sustained by both company & shareholders does nt mean both are
entitled to compensation. While in case of compnay their rights are infringed, in the case of the
shareholders, their interests are affected. Latter must look to company to institute appropriate
action.
(iii) Shares of company whose activity is intl are widely scattered & freq change hands - thus
adoption of the theory of diplomatic protection of shareholders as such by opening door to

competing diplomatic claims, cud create confusion & insecurity in intl economic relations - thrfr
only the national state of a company concerned ws entitled to exercise diplomatic proceedings fr
the purpose of seeking redress fr the wrong done to the company.
(iv) When wrong done to company wrongdoer nt liable to shareholders, thrfr Spanish state ws nt
liable to the Belgian shareholders - the situation wud be different if the act complained of is aimed
at the direct rights to any declared dividend, right to attend & vote in general meetings, right to
share residual assets of the company on liquidation. In such cases State of nationality of any
individual shareholder must intervene in his favor, regardless of the company's nationality.
(v) In allocating corporate entities to States, intl law is based but only to limited extent on an
analogy with the rules governing the nationality of individuals - the traditional rule attributes the
right of diplomatic protection of a corporate entity to the State under the laws of which it is
incorporated and in whose territory it has registered office. It hs been the practice of some States
to give a company incorporated under their law diplomatic protection solely when it hs its seat or
mgmnt or center of control in their territory or when a majority of or a substantial portion of
shares has been owned by national of the State concerned. However this test of geniuine
connection hs not found general acceptance
In prsnt case Barcelona Traction's links with Canada are manifold. Besides being incorporated in
Canada & having its registered office there, its board meetings were held in Canada fr many years in fact Canadian nationality of the company hs rcvd general recognition. As Canada hs nt espoused
the cause Belgium hs no locus standi to espouse, befr the ICJ, the claim of Belgium nationals shareholders in the company
4.6.3 Nationality by naturalisation
Naturalization (or naturalisation) is the acquisition of citizenship and nationality by somebody who
was not a citizen of that country at the time of birth.
In general, basic requirements for naturalization are that the applicant hold a legal status as a fulltime resident for a minimum period of time and that the applicant promise to obey and uphold that
country's laws, to which an oath or pledge of allegiance is sometimes added. Some countries also
require that a naturalized national must renounce any other citizenship that they currently hold,
forbidding dual citizenship, but whether this renunciation actually causes loss of the person's
original citizenship will again depend on the laws of the countries involved.
Nationality is traditionally based either on jus soli ("right of the territory") or on jus sanguinis ("right
of blood"), although it now usually mixes both. Whatever the case, the massive increase in
population flux due to globalization and the sharp increase in the numbers of refugees following
World War I created an important class of non-citizens called stateless persons. In some rare cases,
procedures of mass naturalization were passed. As naturalization laws were created to deal with
the rare case of people separated from their nation state because they lived abroad (expatriates),
western democracies were not ready to naturalize the massive influx of stateless people which
followed massive denationalizations and the expulsion of ethnic minorities from newly created
nation states in the first part of the 20th century, but they also counted the (mostly aristocratic)
Russians who had escaped the 1917 October Revolution and the war communism period, and then
the Spanish refugees. As Hannah Arendt pointed out, internment camps became the "only nation" of
such stateless people, since they were often considered "undesirable" and were stuck in an illegal
situation (their country had expelled them or deprived them of their nationality, while they hadn't
been naturalized, thus living in a judicial no man's land).
After World War II, the increase in international migrations created a new category of refugees,
most of them economic refugees. For economic, political, humanitarian and pragmatic reasons,

many states passed laws allowing a person to acquire their citizenship after birth (such as by
marriage to a national jus matrimonii or by having ancestors who are nationals of that country),
in order to reduce the scope of this category. However, in some countries this system still maintains
a large part of the immigrated population in an illegal status, albeit some massive regularizations
(in Spain by Jos Luis Zapatero's government and in Italy by Berlusconi's government).
A state hs right to protect its citizens abroad, it is entitled to intervene diplomatically to lodge a
claim fr decision befr an intl tribunal against inijuries suffered by its subjects.
Once a state hs taken up a case on behalf of one of its subjects befr an intl tribunal, then in the
eyes of the latter, the state is the sole claimant . Injured subjects right is to claim throught the
State. Some writers hold tht States can proceed with the Claim even though the individual waives
it.
(29) Nottebohm (Liechtenstein vs Guatemala) Case, ICJ Rep. 1955, p.4
Liechtenstein v. Guatemala is the proper name for the 1955 contentious case adjudicated by the
International Court of Justice (ICJ). Liechtenstein sought a ruling to force Guatemalan recognition
of Friedrich Nottebohm as a Liechtenstein national
Nottebohm, born September 16, 1881 in Hamburg, Germany, possessed German citizenship.
Although he lived in Guatemala from 1905 until 1943 he never became a citizen of Guatemala. On
October 9, 1939, Nottebohm applied to become a naturalized citizen of Liechtenstein. The
application was approved under exceptional circumstances and he became a citizen of
Liechtenstein. He then returned to Guatemala on his Liechtenstein passport and informed the local
government of his change of nationality. When he tried to return to Guatemala once again in 1943
he was refused entry as an enemy alien since the Guatemalan authorities did not recognise his
naturalisation and regarded him as still German. It has been suggested that the timing of the event
was due to the recent entry of the US and Guatemala into the Second World War.
He was later extradited to the US where he was held at an internment camp until the end of the
war. All his possessions in Guatemala were confiscated. After his release, he lived out the rest of his
life in Liechtenstein.
Background of the ICJ case
The Government of Liechtenstein granted Nottebohm protection against unjust treatment by the
government of Guatemala and petitioned the International Court of Justice. However, the
government of Guatemala argued that Nottebohm did not gain Liechtenstein citizenship for the
purposes of international law. The court agreed and thus stopped the case from continuing. So the
courts decided that in this case they would decline the offer.
Decision
Although the Court stated that it is the sovereign right of all states to determine its own citizens
and criteria for becoming one in municipal law, such a process would have to be scrutinized on the
international plane where the question is of diplomatic protection. The Court upheld the principle
of effective nationality, (the Nottebohm principle) where the national must prove a meaningful
connection to the state in question. This principle was previously applied only in cases of dual
nationality to determine which nationality should be used in a given case. However Nottebohm had
forfeited his German nationality and thus only had the nationality of Liechtenstein. The question
arises, who then had the power to grant Nottebohm diplomatic protection?
The Nottebohm case was subsequently cited in many definitions of nationality.

4.6.4 Rule of Exhaustion of Local Remedies


The international rule of exhaustion of local remedies before taking to international remedies is
one of the basic rules in international law. The object of the rule is to enable the respondent State
the first opportunity to correct the harm and to make redress. The application of the rule of
domestic remedies to the protection of human rights depends on conventional provisions.
A person whose rights have been violated should make use of domestic remedies to right a wrong,
rather than first address the issue to an international committee, court or other tribunal. Access to
an international organ should be available, but only as a last resort, after the domestic remedies
have been exhausted. A person should seek redress from domestic remedies because these are
normally quicker, cheaper and more effective than the international ones.
If no domestic remedies are available or there is unreasonable delay on the part of national courts
in granting a remedy, clearly, a person should have recourse to international remedies. The rule of
local remedies should not constitute an unjustified impediment to access to the international
remedies.
4.7 ILC Draft Code on Responsibility of States for Internationally Wrongful Acts, 2001
PART ONE: THE INTERNATIONALLY WRONGFUL ACT OF A STATE
CHAPTER I: GENERAL PRINCIPLES
Article l: Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international responsibility of that State.
Article 2: Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct consisting of an action or
omission: is attributable to the State under international law; and constitutes a breach of an
international obligation of the State.
Article 3: Characterization of an act of a State as internationally wrongful
The characterization of an act of a State as internationally wrongful is governed by international
law. Such characterization is not affected by the characterization of the same act as lawful by
internal law.
CHAPTER II: ATTRIBUTION OF CONDUCT TO A STATE
Article 4: Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under international law,
whether the organ exercises legislative, executive, judicial or any other functions, whatever
position it holds in the organization of the State, and whatever its character as an organ of the
central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal law
of the State.
Article 5: Conduct of persons or entities exercising elements of governmental authority
The conduct of a person or entity which is not an organ of the State under article 4 but which is
empowered by the law of that State to exercise elements of the governmental authority shall be
considered an act of the State under international law, provided the person or entity is acting in
that capacity in the particular instance.
Article 6: Conduct of organs placed at the disposal of a State by another State

The conduct of an organ placed at the disposal of a State by another State shall be considered an
act of the former State under international law if the organ is acting in the exercise of elements of
the governmental authority of the State at whose disposal it is placed.
Article 7: Excess of authority or contravention of instructions
The conduct of an organ of a State or of a person or entity empowered to exercise elements of the
governmental authority shall be considered an act of the State under international law if the organ,
person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.
Article 8: Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact acting on the instructions of, or under
the direction or control of, that State in carrying out the conduct.
Article 9: Conduct carried out in the absence or default of the official authorities
The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact exercising elements of the
governmental authority in the absence or default of the official authorities and in circumstances
such as to call for the exercise of those elements of authority.
Article 10: Conduct of an insurrectional or other movement
1. The conduct of an insurrectional movement which becomes the new Government of a State shall
be considered an act of that State under international law.
2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State
in part of the territory of a pre-existing State or in a territory under its administration shall be
considered an act of the new State under international law.
3. This article is without prejudice to the attribution to a State of any conduct, however related to
that of the movement concerned, which is to be considered an act of that State by virtue of
articles 4 to 9.
Article 11: Conduct acknowledged and adopted by a State as its own
Conduct which is not attributable to a State under the preceding articles shall nevertheless be
considered an act of that State under international law if and to the extent that the State
acknowledges and adopts the conduct in question as its own.
CHAPTER III: BREACH OF AN INTERNATIONAL OBLIGATION
Article 12: Existence of a breach of an international obligation
There is a breach of an international obligation by a State when an act of that State is not in
conformity with what is required of it by that obligation, regardless of its origin or character.
Article 13: International obligation in force for a State
An act of a State does not constitute a breach of an international obligation unless the State is
bound by the obligation in question at the time the act occurs.
Article 14: Extension in time of the breach of an international obligation
1. The breach of an international obligation by an act of a State not having a continuing character
occurs at the moment when the act is performed, even if its effects continue.
2. The breach of an international obligation by an act of a State having a continuing character
extends over the entire period during which the act continues and remains not in conformity with
the international obligation.
3. The breach of an international obligation requiring a State to prevent a given event occurs when

the event occurs and extends over the entire period during which the event continues and remains
not in conformity with that obligation.
Article 15: Breach consisting of a composite act
1. The breach of an international obligation by a State through a series of actions or omissions
defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the
other actions or omissions, is sufficient to constitute the wrongful act.
2. In such a case, the breach extends over the entire period starting with the first of the actions or
omissions of the series and lasts for as long as these actions or omissions are repeated and remain
not in conformity with the international obligation.
CHAPTER IV: RESPONSIBILITY OF A STATE IN CONNECTION WITH THE ACT OF ANOTHER STATE
Article 16: Aid or assistance in the commission of an internationally wrongful act
A State which aids or assists another State in the commission of an internationally wrongful act by
the latter is internationally responsible for doing so if:
that State does so with knowledge of the circumstances of the internationally wrongful act; and
the act would be internationally wrongful if committed by that State.
Article 17: Direction and control exercised over the commission of an internationally wrongful act
A State which directs and controls another State in the commission of an internationally wrongful
act by the latter is internationally responsible for that act if:
that State does so with knowledge of the circumstances of the internationally wrongful act; and
the act would be internationally wrongful if committed by that State.
Article 18: Coercion of another State
A State which coerces another State to commit an act is internationally responsible for that act if:
the act would, but for the coercion, be an internationally wrongful act of the coerced State; and
the coercing State does so with knowledge of the circumstances of the act.
Article 19: Effect of this chapter
This chapter is without prejudice to the international responsibility, under other provisions of these
articles, of the State which commits the act in question, or of any other State.
CHAPTER V: CIRCUMSTANCES PRECLUDING WRONGFULNESS
Article 20: Consent
Valid consent by a State to the commission of a given act by another State precludes the
wrongfulness of that act in relation to the former State to the extent that the act remains within
the limits of that consent.
Article 21: Self-defence
The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of selfdefence taken in conformity with the Charter of the United Nations.
Article 22: Countermeasures in respect of an internationally wrongful act
The wrongfulness of an act of a State not in conformity with an international obligation towards
another State is precluded if and to the extent that the act constitutes a countermeasure taken
against the latter State in accordance with chapter II of part three.
Article 23: Force majeure
1. The wrongfulness of an act of a State not in conformity with an international obligation of that

State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force
or of an unforeseen event, beyond the control of the State, making it materially impossible in the
circumstances to perform the obligation.
2. Paragraph 1 does not apply if:
the situation of force majeure is due, either alone or in combination with other factors, to the
(a) conduct of the State invoking it; or
(b) the State has assumed the risk of that situation occurring.
Article 24: Distress
1. The wrongfulness of an act of a State not in conformity with an international obligation of that
State is precluded if the author of the act in question has no other reasonable way, in a situation of
distress, of saving the authors life or the lives of other persons entrusted to the authors care.
2. Paragraph 1 does not apply if: the situation of distress is due, either alone or in combination
with other factors, to the conduct of
(a) the State invoking it; or
(b) the act in question is likely to create a comparable or greater peril.
Article 25: Necessity
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act
not in conformity with an international obligation of that State unless the act:
(a) is the only way for the State to safeguard an essential interest against a grave and imminent
peril;
(b) does not seriously impair an essential interest of the State or States towards which the
obligation exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness the
international obligation in question excludes the possibility of invoking necessity; or the State has
contributed to the situation of necessity.
Article 26: Compliance with peremptory norms
Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity
with an obligation arising under a peremptory norm of general international law.
Article 27: Consequences of invoking a circumstance precluding wrongfulness
The invocation of a circumstance precluding wrongfulness in accordance with this chapter is
without prejudice to:
(a) compliance with the obligation in question, if and to the extent that the circumstance
precluding wrongfulness no longer exists;
the question of compensation for any material loss caused by the act in question.
PART TWO: CONTENT OF THE INTERNATIONAL RESPONSIBILITY OF A STATE
CHAPTER I: GENERAL PRINCIPLES

Artic
28: Legal consequences of an internationally wrongful act
The international responsibility of a State which is entailed by an internationally wrongful act in
accordance with the provisions of part one involves legal consequences as set out in

this part.
Article 29: Continued duty of performance
The legal consequences of an internationally wrongful act under this part do not affect the

continued duty of the responsible State to perform the obligation breached.


Article 30: Cessation and non-repetition
The State responsible for the internationally wrongful act is under an obligation:
to cease that act, if it is continuing;
to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.
Article 31: Reparation
1. The responsible State is under an obligation to make full reparation for the injury caused by the
internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the internationally wrongful
act of a State.
Article 32: Irrelevance of internal law
The responsible State may not rely on the provisions of its internal law as justification for failure to
comply with its obligations under this part.
Article 33: Scope of international obligations set out in this part
1. The obligations of the responsible State set out in this part may be owed to another State, to
several States, or to the international community as a whole, depending in particular on the
character and content of the international obligation and on the circumstances of the breach.
2. This part is without prejudice to any right, arising from the international responsibility of a
State, which may accrue directly to any person or entity other than a State.
CHAPTER II: REPARATION FOR INJURY
Article 34: Forms of reparation
Full reparation for the injury caused by the internationally wrongful act shall take the form of
restitution, compensation and satisfaction, either singly or in combination, in accordance with the
provisions of this chapter.
Article 35: Restitution
A State responsible for an internationally wrongful act is under an obligation to make restitution,
that is, to re-establish the situation which existed before the wrongful act was committed,
provided and to the extent that restitution:
- is not materially impossible;
- does not involve a burden out of all proportion to the benefit deriving from restitution instead of
compensation.
Article 36: Compensation
1. The State responsible for an internationally wrongful act is under an obligation to compensate
for the damage caused thereby, insofar as such damage is not made good by restitution.
2. The compensation shall cover any financially assessable damage including loss of profits insofar
as it is established.
Article 37: Satisfaction
1. The State responsible for an internationally wrongful act is under an obligation to give
satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or
compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal
apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to

the responsible State.


Article 38: Interest
1. Interest on any principal sum due under this chapter shall be payable when necessary in order to
ensure full reparation. The interest rate and mode of calculation shall be set so as to achieve that
result.
2. Interest runs from the date when the principal sum should have been paid until the date the
obligation to pay is fulfilled.
Article 39: Contribution to the injury
In the determination of reparation, account shall be taken of the contribution to the injury by
wilful or negligent action or omission of the injured State or any person or entity in relation to
whom reparation is sought.
CHAPTER III: SERIOUS BREACHES OF OBLIGATIONS UNDER PEREMPTORY NORMS OF GENERAL
INTERNATIONAL LAW
Article 40: Application of this chapter
1. This chapter applies to the international responsibility which is entailed by a serious breach by a
State of an obligation arising under a peremptory norm of general international law.
2. A breach of such an obligation is serious if it involves a gross or systematic failure by the
responsible State to fulfil the obligation.
Article 41: Particular consequences of a serious breach of an obligation under this chapter
1. States shall cooperate to bring to an end through lawful means any serious breach within the
meaning of article 40.
2. No State shall recognize as lawful a situation created by a serious breach within the meaning of
article 40, nor render aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences referred to in this part and to such
further consequences that a breach to which this chapter applies may entail under international
law.
PART THREE: THE IMPLEMENTATION OF THE INTERNATIONAL RESPONSIBILITY OF A STATE
CHAPTER I: INVOCATION OF THE RESPONSIBILITY OF A STATE
Article 42: Invocation of responsibility by an injured State
A State is entitled as an injured State to invoke the responsibility of another State if the obligation
breached is owed to:
(a) that State individually; or
(b) a group of States including that State, or the international community as a whole,
and the breach of the obligation:
(i) specially affects that State; or
(ii) is of such a character as radically to change the position of all the other States to which the
obligation is owed with respect to the further performance of the obligation.
Article 43: Notice of claim by an injured State
1. An injured State which invokes the responsibility of another State shall give notice of its claim to
that State.
2. The injured State may specify in particular: the conduct that the responsible State should take in
order to cease the wrongful act, if it is (a) continuing; what form reparation should take in
accordance with the provisions of part two.

Article 44: Admissibility of claims


The responsibility of a State may not be invoked if:
(a) the claim is not brought in accordance with any applicable rule relating to the nationality of
claims;
(b) the claim is one to which the rule of exhaustion of local remedies applies and any available and
(c) effective local remedy has not been exhausted.
Article 45: Loss of the right to invoke responsibility
The responsibility of a State may not be invoked if:
(a) the injured State has validly waived the claim;
(b) the injured State is to be considered as having, by reason of its conduct, validly acquiesced in
the lapse of the claim.
Article 46: Plurality of injured States
Where several States are injured by the same internationally wrongful act, each injured State may
separately invoke the responsibility of the State which has committed the internationally wrongful
act.
Article 47: Plurality of responsible States
1. Where several States are responsible for the same internationally wrongful act, the responsibility
of each State may be invoked in relation to that act.
2. Paragraph 1: does not permit any injured State to recover, by way of compensation, more than
the damage it has suffered;
is without prejudice to any right of recourse against the other responsible States.
Article 48: Invocation of responsibility by a State other than an injured State
1. Any State other than an injured State is entitled to invoke the responsibility of another State in
accordance with paragraph 2 if:
the obligation breached is owed to a group of States including that State, and is established for the
(a) protection of a collective interest of the group; or
(b) the obligation breached is owed to the international community as a whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible
cessation of the internationally wrongful act
and assurances and guarantees of non-repetition in accordance with article 30; and performance of
the obligation of reparation in accordance with the preceding articles, in the interest of the injured
State or of the beneficiaries of the obligation breached.
3. The requirements for the invocation of responsibility by an injured State under articles 43, 44
and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1.
CHAPTER II: COUNTERMEASURES
Article 49: Object and limits of countermeasures
1. An injured State may only take countermeasures against a State which is responsible for an
internationally wrongful act in order to induce that State to comply with its obligations under part
two.
2. Countermeasures are limited to the non-performance for the time being of international
obligations of the State taking the measures towards the responsible State.
3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of
performance of the obligations in question.

Article 50: Obligations not affected by countermeasures


1. Countermeasures shall not affect:
(a) the obligation to refrain from the threat or use of force as embodied in the Charter of the
United Nations;
(b) obligations for the protection of fundamental human rights;
(c) obligations of a humanitarian character prohibiting reprisals;
(d) other obligations under peremptory norms of general international law.
2. A State taking countermeasures is not relieved from fulfilling its obligations: under any dispute
settlement procedure applicable between it and the responsible State; to respect the inviolability
of diplomatic or consular agents, premises, archives and documents.
Article 51: Proportionality
Countermeasures must be commensurate with the injury suffered, taking into account the gravity
of the internationally wrongful act and the rights in question.
Article 52: Conditions relating to resort to countermeasures
1. Before taking countermeasures, an injured State shall: call upon the responsible State, in
accordance with article 43, to fulfil its obligations under part two;(b) notify the responsible State
of any decision to take countermeasures and offer to negotiate with that State.
2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures as are
necessary to preserve its rights.
3. Countermeasures may not be taken, and if already taken must be suspended without undue
delay if:
the internationally wrongful act has ceased; and
the dispute is pending before a court or tribunal which has the authority to make decisions binding
on the parties.
4. Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement
procedures in good faith.
Article 53: Termination of countermeasures
Countermeasures shall be terminated as soon as the responsible State has complied with its
obligations under part two in relation to the internationally wrongful act.
Article 54: Measures taken by States other than an injured State
This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to
invoke the responsibility of another State, to take lawful measures against that State to ensure
cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of
the obligation breached.
PART FOUR: GENERAL PROVISIONS
Article 55: Lex specialis
These articles do not apply where and to the extent that the conditions for the existence of an
internationally wrongful act or the content or implementation of the international responsibility of
a State are governed by special rules of international law.
Article 56 Questions of State responsibility not regulated by these articles
The applicable rules of international law continue to govern questions concerning the responsibility
of a State for an internationally wrongful act to the extent that they are not regulated by these
articles.

Article 57 Responsibility of an international organization


These articles are without prejudice to any question of the responsibility under international law of
an international organization, or of any State for the conduct of an international organization.
Article 58: Individual responsibility
These articles are without prejudice to any question of the individual responsibility under
international law of any person acting on behalf of a State.
Article 59: Charter of the United Nations - These articles are without prejudice to the Charter of
the United Nations.
____________
------------------------------5. Law of the Sea
5.1 Maritime Zones
5.1.1 Territorial Sea: Breadth of Territorial Sea - the zone extending 12 nm. from the baseline intially 3nm (a cannon shot) - Out to 12 nautical miles (22 kilometres; 14 miles) from the baseline,
the coastal state is free to set laws, regulate use, and use any resource. Vessels were given the
right of innocent passage through any territorial waters, with strategic straits allowing the passage
of military craft as transit passage, in that naval vessels are allowed to maintain postures that
would be illegal in territorial waters. "Innocent passage" is defined by the convention as passing
through waters in an expeditious and continuous manner, which is not "prejudicial to the peace,
good order or the security" of the coastal state. Fishing, polluting, weapons practice, and spying
are not "innocent", and submarines and other underwater vehicles are required to navigate on the
surface and to show their flag. Nations can also temporarily suspend innocent passage in specific
areas of their territorial seas, if doing so is essential for the protection of its security.
(30) Anglo-Norwegian Fisheries Case (UK vs Norway), ICJ Rep, 1951, p, 116
dispute rgding breadth of territorial sea - norway hs a coast of complex geographical configurations
(deeply intended and cut into, having a fringe of islands) - In 1935 Norwegian govt issued a decree
which delimited Norway's northern territorial waters on the basis of straight baselines. UK
submitted the matter to ICJ contending tht intl law reqd the baseline to be the actual low water
line - Court held tht in the normal coast the low-water is the baseline, but straight baseline system
can be used on the basis of geographic, economic & historic considerations - On geographic
conditions the court stated tht if the geogrphical character of the coast is such tht it is deeply
intended & cut into & is surrounded by a fringe of islands then baseline fr measuring territorial sea
may be drawn by choosing appropriate points on these islands & joining these points by
straightlines following the general direction of the coast. On historic considerations the court
stated tht Norway applied the straight baseline system fr a long time(since 1869). On economic
considerations, the court stated tht inhabitants of Norway derived their livelihood essentially frm
fishing in the territorial sea.
Strong emphasis on legitimate interests of the coastal state. In process, court attached
considerations to social considerations - court also obsrvd tht states r nt completely free in respect
of delimitation of territorial waters with regd to othr states - although it is true tht act of
delimitation is neccessarily an unilateral act becoz only the coastal state is competent to undertake
it, the validity of the delimitation with regd to othr states depends upon intl law
Rule of Anglo-Norwegian Fisheries Case is incorporated in Art 7 of 1982 convention, which provides
tht in localities whr the coastline is deeply indented, the method of straight baseline system may
be employed in measuring the breadth of territorial sea. The drawing of straight baseline system
must not depart to any appreciable extent frm the general direction of the coast. Further account

may be taken, in determining particular baseline, of economic interests particular to the region
concerned (evidenced by long usage). the system of straight baselines may not be applied by a
State in such a manner as to cut off the territorial sea of another state frm the high seas or an
exclusive economic zone.
India's position - under article 3 of Indian Maritime Zones Act, 1976, the position is same as in the
1982 UN Convention, & the limit of territorial sea is the line every point of which is at a distance of
12 nautical miles frm the baseline.
(31) Corfu Channel Case, ICJ Rep. 1949, p. 4
ICJ did nt express an opinion on the right of passage of warships through territorial sea. It limited
its obsrvtns to the case of straits. Hwevr sme judges in their dissenting views, made obsrvtns on the
issue of innocent passage of warships. Justice Alvarez felt tht since war hd been outlawed by the
UN Charter the mission of warships can only be to secure legitimate defence of countries to which
they belong. Justice Krylow argued tht thr ws no right of innocent passage through the territorial
sea. Judge Azevedo said tht position of warships in respect of passage ws different frm tht of
merchant ships - Intl Law Commm hd proposed tht State might make innocent passage of warships
subject to prior authorization, or notification, but the state shld normally grant innocent passage In 1989 US & USSR made an important joint statement tht All ships incl warships enjoy the right of
innocent passage through the territorial sea in accordance with intl law fr which neither prior
notification or authorization is reqd - However as it is a jt stmnt betw 2 countries - not binding on
othr States
Indias Position:- Right of innocent passage same as 1982 Convention accrd to S4 Para 1 of Indian
Maritime Zones Act. Ques of innocent passage of warships - S4 Para 2 equates warships with
submarines & underwater vehicles & enacts tht such ships/vehicles can pass only through Indian
territorial waters after giving prior notice to the Central Govt.
5.1.2 Contiguous Zone :- Beyond the 12 nautical mile limit, there is a further 12 nautical miles from
the territorial sea baseline limit, the contiguous zone, in which a state can continue to enforce
laws in four specific areas: customs, taxation, immigration and pollution, if the infringement
started within the state's territory or territorial waters, or if this infringement is about to occur
within the state's territory or territorial waters. This makes the contiguous zone a hot pursuit area.
5.1.3 Continental Shelf :- The continental shelf is defined as the natural prolongation of the land
territory to the continental margins outer edge, or 200 nautical miles from the coastal states
baseline, whichever is greater. A states continental shelf may exceed 200 nautical miles until the
natural prolongation ends. However, it may never exceed 350 nautical miles (650 kilometres; 400
miles) from the baseline; or it may never exceed 100 nautical miles (190 kilometres; 120 miles)
beyond the 2,500 meter isobath (the line connecting the depth of 2,500 meters). Coastal states
have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to
the exclusion of others. Coastal states also have exclusive control over living resources "attached"
to the continental shelf, but not to creatures living in the water column beyond the exclusive
economic zone.
5.1.4 Exclusive Economic Zone :- These extend from the edge of the territorial sea out to 200
nautical miles (370 kilometres; 230 miles) from the baseline. Within this area, the coastal nation
has sole exploitation rights over all natural resources. In casual use, the term may include the
territorial sea and even the continental shelf. The EEZs were introduced to halt the increasingly
heated clashes over fishing rights, although oil was also becoming important. The success of an
offshore oil platform in the Gulf of Mexico in 1947 was soon repeated elsewhere in the world, and
by 1970 it was technically feasible to operate in waters 4000 metres deep. Foreign nations have the
freedom of navigation and overflight, subject to the regulation of the coastal states. Foreign states
may also lay submarine pipes and cables.

5.1.5 High Seas: All parts of the sea that are not included in the territorial sea or in the internal
waters of a State.
Article 2 of UCOHS : The high seas being open to all nations, no State may validly purport to subject
any part of them to its
sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles
and by the
other rules of international law. It comprises, inter alia, both for coastal and non-coastal States:

5.2 Delimitation of Adjacent and Opposite Maritime Boundaries


(32) North Sea Continental Shelf Cases, ICJ Rep. 1969, p. 3
Dispute arose between States of Germany, Denmark & Netherlands regarding delimitation in their
continental shelf. Both Denmark & Netherlands relied on a multilateral treaty which provided fr
delimitation by equidistance method, in the absence of agreement. The treaty which provided fr
delimitation by equidistance method, in the absence of agreement. The treaty permitted the
signatory states to reserve their position w.r.t the equidistance method. Germany hd signed the
treaty but hd nt ratified it, moreover it hd reserved its position w.r.t to delimitation which might
adversely affect its own continental shelf. Both Denmark & Netherlands contended that
equidistance - spl circumstance rule is nt only a conventional provision but hs emerged into a
custom & hence binding on Germany. Germany while denying the obligatory character of the
provision contended tht the correct rule to be applied is such cases is according to which each of
the concerned states shld hv a "just & equitable share" of the available continental shelf, in
proportion to the length of its coastline or sea frontage
World Court made some important obrvtns which are as follows (i) A treaty provision cn generate
customary intl law, but only when the provision concerned is "of a fundamentally norm-creating
character such as cud be regrded as forming the basis of a general rule of law" norm creating
process perfectly possible one & does occur frm time to time; constitutes recognized methods by
which new rules of customary intl law may be formed - 1st 3 articles of the Geneva Convntn on the
Continental Shelf, 1958 r of norm creating character (ii) W.r.t othr elements usually regded as
neccessary befr a conventional rule cn be considered to hv becme a general rule of intl law, it
might be tht, even w/o the passing of any considerable period of time, every representative
participation in the convention might suffice of itself, provided it incl the states whose interests
were specially affected(in prsnt case no of ratifications & accessions secured were hardly
sufficient) (iii) As rgds the time element .. although the passage of only a short time period is nt
neccessarily a bar to the formation of a new rule of customary intl law on the basis of a purely
conventional rule, an indispensable requirement wud be tht within the period in question, short
though it might be, State practice (incl tht of States whose interests are specifically affected), shld
hv been both extensive & virtually uniform in the sense of the provision invoked; & shld moreover
hv occurred in such a way as to show a general recognition tht a rule of law or legal obligation is
involved. thus opinio juris must be present befr a practice/usage is to become a customary rule.
Decision:- Court held Art 6 of the Convention which lays down the equidistance principle ws nt
intended to be of a norm creating character . one of the reasons being tht the principle of
equidistance ws prefaced by the words 'in the absence of agreement'. the principle of equidistance
is nt obligatory in all cases of delimitation of continental shelf. In present case, opinio juris ws
absent or nt estb ( no evidence to show tht states so acted as they felt legally compelled to draw
boundaries, according to equidistance principle, by reason of a rule of customary law of obligation,
States might have been motivated by othr obvious factors). Court thus held tht each of the States
shld hv a just and equitable share on the shelf according to the length of its coastline.
(33) Libya vs Tunisia Continental Shelf Case, ICJ Rep. 1982, p. 17

(34) Libyan Arab Jamahiriya vs Malta, ICJ Rep. 1985, p. 35


(35) Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar vs Bahrain),
ICJ Rep. 2001, p. 40
Court obsrvd & held as follows
(i) Maritime Delimitation - Court obsrvd both parties agree tht verdict shld be based on maritime
delimitation as per intl law - Bahrain ratified UNCLOS III Qatar-> signatory. Thrfr customary Intl law
the applicable law - both parties agree tht most of the provisions of the UNLCOS III which are
relevant fr the prsnt case reflect customary law
(ii) A single maritime boundary - Court notes under the terms of Bahraini formula the parties
requested the court in Dec 1990 to draw a single maritime boundary btw their respective maritime
areas of seabed, subsoil & superjacent waters - court obsrvs tht concept of "single maritime
boundary' may encompass many functions - in prsnt case single maritime boundary will be
delimitation of various jurisdictions. @Southern(distance no more than 24 nm) & nothern
sector(adjacent coasts) - court obsrvs tht concept of SMB does nt arise frm multilateral treaty but
frm State practice & tht it finds its explanation in the wish of States to estb one uninterrupted
boundary line delimiting the various - partially coincident - zones of maritime jurisdiction
appertaining to them - Non preferential single boundary in case of coincident jurisdictional zones Gulf of Maine Case (iii) Delimitation of the Territorial Sea - Equidistance Line
parties agree tht the provision of Article 15 UNCLOS III headed 'Delimitation of the territorial sea
betw States with opposite or adjacent coasts' are part of customary law - provision does nt apply
whr it is neccessary by reason of historic title or othr spl circumstances to delimit the territorial
seas of the two States in a way which is at variance therewith - equidistance/spl circumstances rule
- most logical & widely practiced approach is 1st to draw provisionally an equidistant line & then to
consider whtr tht line must be adjusted in the light of existence of spl circumstances - once
territorial seas delimited - to determine rules & principles of customary law to be appld to
delimitation - e.d. line cn only be drawn when baselines r knwn - neither party hs specified the
baselines which r to be used fr the determination of the breadth of the territorial sea, nor have
they produced official maps or charts which reflect such baselines - hv provided court with approx
base points which in their view cud be used by the court fr the determination of the maritime
boundary - first determine relevant coasts of the parties Qataer argued tht fr the purpose of delimitation, it is the mainland-to-mainland method which shld
be applied in order to construct the e.d.line - fr Qatar application of the mainland-to-mainland
method hs 2 main consequences - 1st it takes no account of the Islands(except certain islands),
islets, rocks, reefs or low tide elevations lying in the relevant area - 2nd in Qatar's view application
of the mainland-to-mainland method of calculation wud also mean tht the equidistance line hs to
be constructed by reference to the high-water-line
Bahrain contnds tht it is a de facto archipelago or multiple-island State, characterized by a variety
of maritime features of diverse character & size - all these features r closely interlinked & together
they constitute the State of Bahrain - reducing State to limited no of principle islands wud be a
distortion of reality & refashioning of geography - Since it is the low-water line which is
determinative fr the breadth of the territorial sea & fr the delimitation of overlapping territorial
waters - Finally Bahrain contnds tht u/A 47 Pt IV of UNCLOS III it is entitled to declare itself an
archipelagic state - Qatar contested Bahrain claim to declare itself an archipelagic state
Courts obsrvs - it is the terrestrial territorial situation tht must be taken as starting pt fr the
determination of the maritime rights of a coastal State - Court said decision of Bahrain to declare
itself an archipelagic State is a unilateral decision
(iv) Island/Low Tide Elevation - Drawing of equidistance line

Whtr a State can acquire Sovereignity by appropriation over a low-tide elevation situated within
the breadth of its territorial sea when tht same low-tide elevation lies also within the breadth of
the territorial sea of another State - As per Qatar, a low tide elevation cannot be appropriated Bahrain contends tht low-tide elevations by their very nature are territory & thrfr can be
appropriated in accordance with the criteria which pertains to the acquisition of territory - Acc to
Art 13 para 1 of 1982 Convention a low tide elevation is a natural formed area of land which is
surrounded by & above water at low tide but submerged at high tide - both states in principle are
entitled to use its low water line fr the measurement of the breadth of their territorial sea - same
low tide elevation then forms part of the coastal configuration of the two States - Intl treaty law
silent on the ques whtr lowtide elevations cn be considered to be territory - nor is the court aware
of a uniform & widespread State practice which might have given rise to a customary rule which
unequivocally permits or excludes appropriation of low-tide elevations - permissive rules hv been
estb with rgd to l.t.e at short distance frm coast - thr is a rule tht a l.t.e which is situated beyond
the territorial sea does nt hv a territorial sea of its own - a low tide elevation thrfr as such does nt
generate the same right as islands or othr territory - court -> no grnd fr recognizing right of Bahrain
to use l.t.e situated in zone of overlapping claims or fr recognizing Qatar as having such a right Court accordingly concludes tht fr purpose of drawing a e.d line, such l.t.e must be disrgrded
(v) Method of straight baselines
Self declared defacto Archipelagic state nt allowed to deviate frm normal rules fr the
determination of baselines unless the relevant conditions are met - fringe of islands do not form a
deeply indented coast nor does Bahrain claim this - fringe of islands which constitute a whole with
the mainland - court does nt deny tht the maritime features east of Bahrain's main islands r part of
the overall geographical configuration , but to qualify them as a fringe of islands along the coast
wud be going over too far - Courts concludes tht Bahrain is not entitled to apply the method of
Straight Baselines - thus each maritime feature hs its own effect fr the determination of the
baselines, on the understanding tht on the grnds set out befr, the l.t.e situated in the overlapping
zone of territorial seas will be disregrded - it is this basis tht e.d line must be drawn.
(vi) Special circumstances
since it did nt determine whtr Fasht al Azm is part of Sitrah island or a separate l.t.e it is
neccessary to draw two provisional e.d.lines - thn considers whr thr spl circumstances which make
it neccessary to adjust the e.d.line as provisionally drawn in order to obtain an equitable result in
relation to this part of the single maritime boundary to be fixed - line passing betw Fash al Azm &
Qit'at at Sharjah - Court also finds tht spl circumstance in this case warning the choice of a
delimitation line passing immediately to the east of Qit'at Jaradah - Qit'at Jaradah very small
inhabited island which comes under Bahrain Sovereignity & is situated midway between the main
island of Bahrain & Qatar peninsula - if its low-water line were to be used fr determining a base pt
in the constrcution of the equidistance line a disproportionate effect wud be given to an
insignificant feature - Court finds it is in a position to determine the course of that part of the
single maritime boundary which will delimit the territorial seas of the parties.
(vii) Delimitation of Continental shelf & Exclusive Economic Zone
equidistance/spl circumstance rule - Bahrain claims rgd pearling industry - court notes industry
effectively ceased to exist a considerable time ago -pearl diving in th Gulf Area common to the
coastal population - though predominantly exploited in the past by Bahraini fishermen as forming a
circumstance which wud justify an eastward shifting of the equidistance line as requested by
Bahrain
Decision
Single maritime boundary shall be formed in the first place by a line which from a point situated to
the north west of Fasht al Dibal shall meet the e.d.line as adjusted to take account of the absence

of effect given to Fasht al Jarim(a remote projection of Bahrain's coastline in the Gulf area;
othrwise the northcoasts of the territories belonging to both parties r flat) - Boundary shall then
follow the adjusted e.d.line until it meets the delimitation line betw the resp maritime zones of
Iran on one hand & of Bahrain & Qatar on the other)
5.3 Concept of "Common Heritage of Mankind" relating to the resources of Intl Seabed Area
In 1970, United Nations General Assembly Resolution 2749, the Declaration of Principles Governing
the Seabed and Ocean Floor, was adopted by 108 states (including the United States) and stated
that the deep seabed should be preserved for peaceful purposes and is the Common Heritage of
Mankind.[7]
In 1982, the Common Heritage of Mankind concept was stated to relate to the seabed and ocean
floor and subsoil thereof, beyond the limits of national jurisdiction under Article 136 of the United
Nations Law of the Sea Treaty (UNCLOS).[8]
Payoyo argues that the common heritage of humanity principle in Part XI of the Law of the Sea
Treaty should favour developing states (who were the voice of conscience in establishing it), and
not merely in some transient 'affirmative action' manner.[9] He claims, however, that the 1994
Implementation Agreement facilitated control by industrialised countries of the International
Seabed Authority (ISA), allowing access by the private sector to the deep sea bed and inhibiting
constructive dialogue on sustainable development.[10]
Core conceptual components
Arvid Pardo one of the founders of the common heritage of humanity concept under international
law has claimed that it challenges the "structural relationship between rich and poor countries" and
amounts to a "revolution not merely in the law of the sea, but also in international relations".[11]
One of the main architects of the principle under international space law has claimed that it is "the
most important legal principle achieved by man throughout thousands of years during which law has
existed as the regulating element of social exchange".[12] This praise relates to the fact that
international law in the common heritage of humanity principle is seeking to protect, respect and
fulfill the interests of human beings independently of any politically motivated sovereign state; the
concept covering all humans wherever they are living, as well as future generations.[6]
Frakes has identified five core components of the Common Heritage of Humanity concept.[13] First,
there can be no private or public appropriation; no one legally owns common heritage spaces.
Second, representatives from all nations must manage resources contained in such a territorial or
conceptual area on behalf of all since a commons area is considered to belong to everyone; this
practically necessitating a special agency to coordinate shared management. Third, all nations must
actively share with each other the benefits acquired from exploitation of the resources from the
commons heritage region, this requiring restraint on the profit-making activities of private
corporate entities; this linking the concept to that of global public good. Fourth, there can be no
weaponry or military installations established in territorial commons areas. Fifth, the commons
should be preserved for the benefit of future generations, and to avoid a tragedy of the commons
scenario.[13] Academic claims have been made that where the principle requires the establishment
of an international resource management regime, prior to establishment of such a regime a
moratorium on resource exploitation should be enforced. Such a position does not appear to have
been supported by most states during the respective drafting negotiations.
5.4 International Seabed Mining - Parallel System of Mining
A "parallel system" would be established for exploring and exploiting the international seabed area.
All activities in this area would be under the control of an International Seabed Authority, to be
established under the convention. The authority would conduct its own mining operations through

its operating arm, called the "Enterprise," and would also contract with private and state ventures
to give them mining rights in the area, so that they could operate in parallel with the authority.
The first generation of seabed prospectors, called "pioneer investors," would have guarantees of
production once mining was authorized.
5.5 Indian Maritime Interests, Policy and Law

5.6 International Tribunal for the Law of the Sea


The International Tribunal for the Law of the Sea (ITLOS) is an intergovernmental organization
created by the mandate of the Third United Nations Conference on the Law of the Sea. It was
established by the United Nations Convention on the Law of the Sea, signed at Montego Bay,
Jamaica, on December 10, 1982. The Convention entered into force on November 16, 1994, and
established an international framework for law over "all ocean space, its uses and resources". The
tribunal is based in Hamburg, Germany. The Convention also established the International Seabed
Authority, with responsibility for the regulation of seabed mining beyond the limits of national
jurisdiction, that is beyond the limits of the territorial sea, the contiguous zone and the continental
shelf.
The Tribunal has the power to settle disputes between states parties (there are currently 161: 160
states plus the European Union ).
Composition
According to its founding statute, the Tribunal has a set of 21 serving judges from a variety of
states parties in three primary bodies:
The Chamber of Summary Procedure
The Chamber for Fisheries Disputes
The Chamber for Marine Environment Disputes
In addition, at the request of Chile and the European Union, the Tribunal also set up a special
chamber to deal with the case concerning the Conservation and Sustainable Exploitation of
Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Union).
-----Treaties and Statutes
- Geneva Convention on Territorial Waters and Contiguous Zone, 1958
PART 1 TERRITORIAL SEA
SECTION 1. GENERAL
Article 1
1. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of
sea adjacent to its coast, described as the territorial sea.
2. This sovereignty is exercised subject to the provisions of these articles and to other rules of
international law.
Article 2
The sovereignty of a coastal State extends to the air space over the territorial sea as well as to its
bed and subsoil.
SECTION 2. LIMITS OF THE TERRITORIAL SEA
Article 3
Except where otherwise provided in these articles, the normal baseline for measuring the breadth
of the territorial sea is the low-water line along the coast as marked on large-scale charts officially
recognized by the coastal State.
Article 4

1. In localities where the coast line is deeply indented and cut into, or if there is a fringe of islands
along the coast in its immediate vicinity, the method of straight baselines joining appropriate
points may be employed in drawing the baseline from which the breadth of the territorial sea is
measured.
2. The drawing of such baselines must not depart to any appreciable extent from the general
direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to
the land domain to be subject to the regime of internal waters.
3. Baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar
installations which are permanently above sea level have been built on them.
4. Where the method of straight baselines is applicable under the provisions of paragraph 1,
account may be taken, in determining particular baselines, of economic interests peculiar to the
region concerned, the reality and the importance of which are clearly evidenced by a long usage.
5. The system of straight baselines may not be applied by a State in such a manner as to cut off
from the high seas the territorial sea of another State.
6. The coastal State must clearly indicate straight baselines on charts, to which due publicity must
be given.
Article 5
1. Waters on the landward side of the baseline of the territorial sea form part of the internal
waters of the State.
2. Where the establishment of a straight baseline in accordance with article 4 has the effect of
enclosing as internal waters areas which previously had been considered as part of the territorial
sea or of the high seas, a right of innocent passage, as provided in articles 14 to 23, shall exist in
those waters.
Article 6
The outer limit of the territorial sea is the line every point of which is at a distance from the
nearest point of the baseline equal to the breadth of the territorial sea.
Article 7
1. This article relates only to bays the coasts of which belong to a single State.
2. For the purposes of these articles, a bay is a well-marked indentation whose penetration is in
such proportion to the width of its mouth as to contain landlocked waters and constitute more than
a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its
area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the
mouth of that indentation.
3. For the purpose of measurement, the area of an indentation is that lying between the low-water
mark around the shore of the indentation and a line joining the low-water marks of its natural
entrance points. Where, because of the presence of islands, an indentation has more than one
mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines
across the different mouths. Islands within an indentation shall be included as if they were part of
the water areas of the indentation.
4. If the distance between the low-water marks of the natural entrance points of a bay does not
exceed twenty-four miles, a closing line may be drawn between these two low-water marks, and
the waters enclosed thereby shall be considered as internal waters.
5. Where the distance between the low-water marks of the natural entrance points of a bay
exceeds twenty-four miles, a straight baseline of twenty-four miles shall be drawn within the bay in
such a manner as to enclose the maximum area of water that is possible with a line of that length.
6. The foregoing provisions shall not apply to so-called "historic" bays, or in any case where the
straight baseline system provided for in article 4 is applied.
Article 8
For the purpose of delimiting the territorial sea, the outermost permanent harbour works which
form an integral part of the harbour system shall be regarded as forming part of the coast.
Article 9
Roadsteads which are normally used for the loading, unloading and anchoring of ships, and which

would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are
included in the territorial sea. The coastal State must clearly demarcate such roadsteads and
indicate them on charts together with their boundaries, to which due publicity must be given.
Article 10
1. An island is a naturally-formed area of land, surrounded by water, which is above water at hightide.
2. The territorial sea of an island is measured in accordance with the provisions of these articles.
Article 11
1. A low-tide elevation is a naturally-formed area of land which is surrounded by and above water
at low-tide but submerged at high-tide. Where a low-tide elevation is situated wholly or partly at a
distance not exceeding the breadth of the territorial sea from the mainland or an island, the lowwater line on that elevation may be used as the baseline for measuring the breadth of the
territorial sea.
2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the
territorial sea from the mainland or an island, it has no territorial sea of its own.
Article 12
1. Where the coasts of two States are opposite or adjacent to each other, neither of the two States
is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond
the median line every point of which is equidistant from the nearest points on the baselines from
which the breadth of the territorial seas of each of the two States is measured. The provisions of
this paragraph shall not apply, however, where it is necessary by reason of historic title or other
special circumstances to delimit the territorial seas of the two States in a way which is at variance
with this provision.
2. The line of delimitation between the territorial seas of two States lying opposite to each other or
adjacent to each other shall be marked on large-scale charts officially recognized by the coastal
States.
Article 13
If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the
river between points on the low-tide line of its banks.
SECTION 3. RIGHT OF INNOCENT PASSAGE
Sub-Section A. Rules Applicable to All Ships
Article 14
1. Subject to the provisions of these articles, ships of all States, whether coastal or not, shall enjoy
the right of innocent passage through the territorial sea.
2. Passage means navigation through the territorial sea for the purpose either of traversing that sea
without entering internal waters, or of proceeding to internal waters, or of making for the high
seas from internal waters.
3. Passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary
navigation or are rendered necessary by force majeure or by distress.
4. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the
coastal State. Such passage shall take place in conformity with these articles and with other rules
of international law.
5. Passage of foreign fishing vessels shall not be considered innocent if they do not observe such
laws and regulations as the coastal State may make and publish in order to prevent these vessels
from fishing in the territorial sea.
6. Submarines are required to navigate on the surface and to show their flag.
Article 15
1. The coastal State must not hamper innocent passage through the territorial sea.
2. The coastal State is required to give appropriate publicity to any dangers to navigation, of which
it has knowledge, within its territorial sea.
Article 16

1. The coastal State may take the necessary steps in its territorial sea to prevent passage which is
not innocent.
2. In the case of ships proceeding to internal waters, the coastal State shall also have the right to
take the necessary steps to prevent any breach of the conditions to which admission of those ships
to those waters is subject.
3. Subject to the provisions of paragraph 4, the coastal State may, without discrimination amongst
foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of
foreign ships if such suspension is essential for the protection of its security. Such suspension shall
take effect only after having been duly published.
4. There shall be no suspension of the innocent passage of foreign ships through straits which are
used for international navigation between one part of the high seas and another part of the high
seas or the territorial sea of a foreign State.
Article 17
Foreign ships exercising the right of innocent passage shall comply with the laws and regulations
enacted by the coastal State in conformity with these articles and other rules of international law
and, in particular, with such laws and regulations relating to transport and navigation.
Sub-Section B. Rules Applicable to Merchant Ships
Article 18
1. No charge may be levied upon foreign ships by reason only of their passage through the
territorial sea.
2. Charges may be levied upon a foreign ship passing through the territorial sea as payment only for
specific services rendered to the ship. These charges shall be levied without discrimination.
Article 19
1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship
passing through the territorial sea to arrest any person or to conduct any investigation in connexion
with any crime committed on board the ship during its passage, save only in the following cases:
(a) If the consequences of the crime extend to the coastal State; or
(b) If the crime is of a kind to disturb the peace of the country or the good order of the territorial
sea; or
(c) If the assistance of the local authorities has been requested by the captain of the ship or by the
consul of the country whose flag the ship flies; or
(d) If it is necessary for the suppression of illicit traffic in narcotic drugs.
2. The above provisions do not affect the right of the coastal State to take any steps authorized by
its laws for the purpose of an arrest or investigation on board a foreign ship passing through the
territorial sea after leaving internal waters.
3. In the cases provided for in paragraphs 1 and 2 of this article, the coastal State shall, if the
captain so requests, advise the consular authority of the flag State before taking any steps, and
shall facilitate contact between such authority and the ship's crew. In cases of emergency this
notification may be communicated while the measures are being taken.
4. In considering whether or how an arrest should be made, the local authorities shall pay due
regard to the interests of navigation.
5. The coastal State may not take any steps on board a foreign ship passing through the territorial
sea to arrest any person or to conduct any investigation in connexion with any crime committed
before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only
passing through the territorial sea without entering internal waters.
Article 20
1. The coastal State should not stop or divert a foreign ship passing through the territorial sea for
the purpose of exercising civil jurisdiction in relation to a person on board the ship.
2. The coastal State may not levy execution against or arrest the ship for the purpose of any civil
proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself
in the course or for the purpose of its voyage through the waters of the coastal State.
3. The provisions of the previous paragraph are without prejudice to the right of the coastal State,

in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil
proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after
leaving internal waters.
Sub-Section C. Rules Applicable to Government Ships Other Than Warships
Article 21
The rules contained in sub-sections A and B shall also apply to government ships operated for
commercial purposes.
Article 22
1. The rules contained in sub-section A and in article 18 shall apply to government ships operated
for non-commercial purposes.
2. With such exceptions as are contained in the provisions referred to in the preceding paragraph,
nothing in these articles affects the immunities which such ships enjoy under these articles or other
rules of international law.
Sub-Section D. Rule Applicable to Warships
Article 23
If any warship does not comply with the regulations of the coastal State concerning passage through
the territorial sea and disregards any request for compliance which is made to it, the coastal State
may require the warship to leave the territorial sea.
PART 2 CONTIGUOUS ZONE
Article 24
1. In a zone of the high seas contiguous to its territorial sea, the coastal State may exercise the
control necessary to:
(a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its
territory or territorial sea;
(b) Punish infringement of the above regulations committed within its territory or territorial sea.
2. The contiguous zone may not extend beyond twelve miles from the baseline from which the
breadth of the territorial sea is measured.
3. Where the coasts of two States are opposite or adjacent to each other, neither of the two States
is entitled, failing agreement between them to the contrary, to extend its contiguous zone beyond
the median line every point of which is equidistant from the nearest points on the baselines from
which the breadth of the territorial seas of the two States is measured.
--Geneva Convention on Continental Shelf, 1958: Done at 29 April 1958
The States Parties to this Convention
Article 1 For the purpose of these articles, the term continental shelf is used as referring
(a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of
the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the
superjacent waters admits of the exploitation of the natural resources of the said areas;
(b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.
Article 2
1. The coastal State exercises over the continental shelf sovereign rights for the purpose of
exploring it and exploiting its natural resources.
2. The rights referred to in paragraph 1 of this article are exclusive in the sense that if the coastal
State does not explore the continental shelf or exploit its natural resources, no one may undertake
these activities, or make a claim to the continental shelf, without the express consent of the
coastal State.

3. The rights of the coastal State over the continental shelf do not depend on occupation, effective
or notional, or on any express proclamation.
4. The natural resources referred to in these articles consist of the mineral and other non-living
resources of the seabed and subsoil together with living organisms belonging to sedentary species,
that is to say, organisms which, at the harvestable stage, either are immobile on or under the
seabed or are unable to move except in constant physical contact with the seabed or the subsoil.
Article 3 The rights of the coastal State over the continental shelf do not affect the legal status of
the superjacent
waters as high seas, or that of the airspace above those waters.
Article 4 Subject to its right to take reasonable measures for the exploration of the continental
shelf and the exploitation of its natural resources, the coastal State may not impede the laying or
maintenance of submarine cables or pipelines on the continental shelf.
Article 5
1. The exploration of the continental shelf and the exploitation of its natural resources must not
result in any unjustifiable interference with navigation, fishing or the conservation of the living
resources of the sea, nor result in any interference with fundamental oceanographic or other
scientific research carried out with the intention of open publication.
2. Subject to the provisions of paragraphs 1 and 6 of this article, the coastal State is entitled to
construct and maintain or operate on the continental shelf installations and other devices necessary
for its exploration and the exploitation of its natural resources, and to establish safety zones
around such installations and devices and to take in those zones measures necessary for their
protection.
3. The safety zones referred to in paragraph 2 of this article may extend to a distance of 500
metres around the installations and other devices which have been erected, measured from each
point of their outer edge. Ships of all nationalities must respect these safety zones.
4. Such installations and devices, though under the jurisdiction of the coastal State, do not possess
the status of islands. They have no territorial sea of their own, and their presence does not affect
the delimitation of the territorial sea of the coastal State.
5. Due notice must be given of the construction of any such installations, and permanent means for
giving warning of their presence must be maintained. Any installations which are abandoned or
disused must be entirely removed.
6. Neither the installations or devices, nor the safety zones around them, may be established where
interference may be caused to the use of recognized sea lanes essential to international navigation.
7. The coastal State is obliged to undertake, in the safety zones, all appropriate measures for the
protection of the living resources of the sea from harmful agents.
8. The consent of the coastal State shall be obtained in respect of any research concerning the
continental shelf and undertaken there. Nevertheless, the coastal State shall not normally withhold
its consent if the request is submitted by a qualified institution with a view to purely scientific
research into the physical or biological characteristics of the continental shelf, subject to the
proviso that the coastal State shall have the right, if it so desires, to participate or to be
represented in the research, and that in any event the results shall be published.

Article 6
1. Where the same continental shelf is adjacent to the territories of two or more States whose
coasts are opposite each other, the boundary of the continental shelf appertaining to such States
shall be determined by agreement between them. In the absence of agreement, and unless another
boundary line is justified by special circumstances, the boundary is the median line, every point of
which is equidistant from the nearest points of the baselines from which the breadth of the
territorial sea of each State is measured.
2. Where the same continental shelf is adjacent to the territories of two adjacent States, the
boundary of the continental shelf shall be determined by agreement between them. In the absence
of agreement, and unless another boundary line is justified by special circumstances, the boundary
shall be determined by application of the principle of equidistance from the nearest points of the
baselines from which the breadth of the territorial sea
3. In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance
with the principles set out in paragraphs 1 and 2 of this article should be defined with reference to
charts and geographical features as they exist at a particular date, and reference should be made
to fixed permanent identifiable points on the land.
Article 7 The provisions of these articles shall not prejudice the right of the coastal State to exploit
the subsoil by means of tunnelling irrespective of the depth of water above the subsoil.

____________
Geneva Convention on Conservation of fishing resources, 1958
Convention on Fishing and Conservation of the Living Resources of the High Seas Done at Geneva on
29 April 1958
The States Parties to this Convention, Considering that the development of modern techniques for
the exploitation of the living resources of the sea, increasing mans ability to meet the need of the
worlds expanding population for food, has exposed some of these resources to the danger of being
over-exploited, Considering also that the nature of the problems involved in the conservation of the
living resources of
the high seas is such that there is a clear necessity that they be solved, whenever possible, on the
basis of international cooperation through the concerted action of all the States concerned, Have
agreed as follows:
Article 1
1. All States have the right for their nationals to engage in fishing on the high seas, subject
(a) to their treaty obligations,
(b) to the interests and rights of coastal States as provided for in this Convention, and
(c) to the provisions contained in the following articles concerning conservation of the living
resources of the high seas.
2. All States have the duty to adopt, or to cooperate with other States in adopting, such measures
for their
respective nationals as may be necessary for the conservation of the living resources of the high
seas.
Article 2 As employed in this Convention, the expression conservation of the living resources of the
high seas means the aggregate of the measures rendering possible the optimum sustainable yield

from those resources so as to secure a maximum supply of food and other marine products.
Conservation programmes should be formulated with a view to securing in the first place a supply
of food for human consumption.
Article 3 A State whose nationals are engaged in fishing any stock or stocks of fish or other living
marine resources in any area of the high seas where the nationals of other States are not thus
engaged shall adopt, for its own nationals, measures in that area when necessary for the purpose of
the conservation of the living resources
Article 4
1. If the nationals of two or more States are engaged in fishing the same stock or stocks of fish or
other living marine resources in any area or areas of the high seas, these States shall, at the
request of any of them, enter into negotiations with a view to prescribing by agreement for their
nationals the necessary measures for the conservation of the living resources affected.
2. If the States concerned do not reach agreement within twelve months, any of the parties may
initiate the procedure contemplated by article 9.
Article 5
1. If, subsequent to the adoption of the measures referred to in articles 3 and 4, nationals of other
States engage in fishing the same stock or stocks of fish or other living marine resources in any area
or areas of the high seas, the other States shall apply the measures, which shall not be
discriminatory in form or in fact, to their own nationals not later than seven months after the date
on which the measures shall have been notified to the Director-General of the Food and Agriculture
Organization of the United Nations. The Director-General shall notify such measures to any State
which so requests and, in any case, to any State specified by the State initiating
the measure.
2. If these other States do not accept the measures so adopted and if no agreement can be reached
within twelve months, any of the interested parties may initiate the procedure contemplated by
article 9. Subject to paragraph 2 of article 10, the measures adopted shall remain obligatory
pending the decision of the special
Article 6
1. A coastal State has a special interest in the maintenance of the productivity of the living
resources in any area of the high seas adjacent to its territorial sea.
2. A coastal State is entitled to take part on an equal footing in any system of research and
regulation for purposes of conservation of the living resources of the high seas in that area, even
though its nationals do not carry on fishing there.
3. A State whose nationals are engaged in fishing in any area of the high seas adjacent to the
territorial sea of a State shall, at the request of that coastal State, enter into negotiations with a
view to prescribing by agreement the measures necessary for the conservation of the living
resources of the high seas in that area.
4. A State whose nationals are engaged in fishing in any area of the high seas adjacent to the
territorial sea of a coastal State shall not enforce conservation measures in that area which are
opposed to those which have been adopted by the coastal State, but may enter into negotiations
with the coastal State with a view to prescribing by agreement the measures necessary for the
conservation of the living resources of the high seas in that area.
5. If the States concerned do not reach agreement with respect to conservation measures within
twelve months, any of the parties may initiate the procedure contemplated by article 9.
Article 7
1. Having regard to the provisions of paragraph 1 of article 6, any coastal State may, with a view to
the maintenance of the productivity of the living resources of the sea, adopt unilateral measures of

conservation appropriate to any stock of fish or other marine resources in any area of the high seas
adjacent to its territorial sea, provided that negotiations to that effect with the other States
concerned have not led to an agreement within six months.
2. The measures which the coastal State adopts under the previous paragraph shall be valid as to
other
States only if the following requirements are fulfilled:
(a) That there is a need for urgent application of conservation measures in the light of the existing
knowledge of the fishery;
(b) That the measures adopted are based on appropriate scientific findings;
(c) That such measures do not discriminate in form or in fact against foreign fishermen.
3. These measures shall remain in force pending the settlement, in accordance with the relevant
provisions of this Convention, of any disagreement as to their validity.

4. If the measures are not accepted by the other States concerned, any of the
parties may initiate the
ocedure contemplated by article 9. Subject to paragraph 2 of article 10, the
measures adopted shall remain obligatory pending the decision of the special commission.
5. The principles of geographical demarcation as defined in article 12 of the
Convention on the Territorial Sea and the Contiguous Zone shall be adopted
when coasts of different States are involved.
Article 8
1. Any State which, even if its nationals are not engaged in fishing in an area of the high seas not
adjacent to its coast, has a special interest in the conservation of the living resources of the high
seas in that area, may request the State or States whose nationals are engaged in fishing there to
take the necessary measures of conservation under articles 3 and 4 respectively, at the same time
mentioning the scientific reasons which in its opinion make such measures necessary, and indicating
its special interest.
2. If no agreement is reached within twelve months, such State may initiate the procedure
contemplated by article 9.
Article 9
1. Any dispute which may arise between States under articles 4, 5, 6, 7 and 8 shall, at the request
of any of the parties, be submitted for settlement to a special commission of five members, unless
the parties agree to seek a solution by another method of peaceful settlement, as provided for in
Article 33 of the Charter of the UN
2. The members of the commission, one of whom shall be designated as chairman, shall be named
by agreement between the States in dispute within three months of the request for settlement in
accordance with the provisions of this article. Failing agreement they shall, upon the request of any
State party, be named by the Secretary-General of the United Nations, within a further threemonth period, in consultation with the States in dispute and with the President of the International
Court of Justice and the Director-General of the Food and Agriculture Organization of the United
Nations, from amongst well-qualified persons being nationals of States not involved in the dispute
and specializing in legal, administrative or scientific questions relating to fisheries, depending upon
the nature of the dispute to be settled. Any vacancy arising after the original appointment shall be
filled in the same manner as provided for the initial selection.
3. Any State party to proceedings under these articles shall have the right to name one of its
nationals to the special commission, with the right to participate fully in the proceedings on the

same footing as a member of the commission, but without the right to vote or to take part in the
writing of the commissions decision.
4. The commission shall determine its own procedure, assuring each party to the proceedings a full
opportunity to be heard and to present its case. It shall also determine how the costs and expenses
shall be divided between the parties to the dispute, failing agreement by the parties on this
matter.
5. The special commission shall render its decision within a period of five months from the time it is
appointed unless it decides, in case of necessity, to extend the time limit for a period not
exceeding three months.
6. The special commission shall, in reaching its decisions, adhere to these articles and to any
special agreements between the disputing parties regarding settlement of the dispute.
7. Decisions of the commission shall be by majority vote.
Article 10
1. The special commission shall, in disputes arising under article 7, apply the criteria listed in
paragraph 2 of that article. In disputes under articles 4, 5, 6 and 8, the commission shall apply the
following criteria, according to the issues involved in the dispute: Common to the determination of
disputes arising under articles 4, 5 and 6 are the requirements:
(a) That scientific findings demonstrate the necessity of conservation measures;
(b) That the specific measures are based on scientific findings and are practicable; and
(c) That the measures do not discriminate, in form or in fact, against fishermen of other States;
Applicable to the determination of disputes arising under article 8 is the requirement that scientific
findings demonstrate the necessity for conservation measures, or that the conservation programme
is adequate, as the case may be.
2. The special commission may decide that pending its award the measures in dispute shall not be
applied, provided that, in the case of disputes under article 7, the measures shall only be
suspended when it is apparent to the commission on the basis of prima facie evidence that the
need for the urgent application of such measures
Article 11 The decisions of the special commission shall be binding on the States concerned and the
provisions of paragraph 2 of Article 94 of the Charter of the United Nations shall be applicable to
those decisions. If the decisions are accompanied by any recommendations, they shall receive the
greatest possible consideration.
Article 12
1. If the factual basis of the award of the special commission is altered by substantial changes in
the conditions of the stock or stocks of fish or other living marine resources or in methods of
fishing, any of the States concerned may request the other States to enter into negotiations with a
view to prescribing by agreement the necessary modifications in the measures of conservation.
2. If no agreement is reached within a reasonable period of time, any of the States concerned may
again resort to the procedure contemplated by article 9 provided that at least two years have
elapsed from the original award.
Article 13
1. The regulation of fisheries conducted by means of equipment embedded in the floor of the sea in
areas of the high seas adjacent to the territorial sea of a State may be undertaken by that State

where such fisheries have long been maintained and conducted by its nationals, provided that nonnationals are permitted to participate in such activities on an equal footing with nationals except in
areas where such fisheries have by long usage been exclusively enjoyed by such nationals. Such
regulations will not, however, affect the general status of
the areas as high seas.
2. In this article, the expression fisheries conducted by means of equipment embedded in the floor
of the sea means those fisheries using gear with supporting members embedded in the sea floor,
constructed on a site and left there to operate permanently or, if removed, restored each season on
the same site.
Article 14 In articles 1, 3, 4, 5, 6 and 8, the term nationals means fishing boats or craft of any
size having the nationality of the State concerned, according to the law of that State, irrespective
of the nationality of the members of their crews.
...
_____________
Geneva Convention on High Seas, 1958
Article 1 The term high seas means all parts of the sea that are not included in the territorial sea
or in the internal
waters of a State.
Article 2 The high seas being open to all nations, no State may validly purport to subject any part of
them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by
these articles and by the other rules of international law. It comprises, inter alia, both for coastal
and non-coastal States:
Freedom to lay submarine cables and pipelines;
Freedom to fly over the high seas.
These freedoms, and others which are recognized by the general principles of international law,
shall be exercised by all States with reasonable regard to the interests of other States in their
exercise of the freedom of the high seas.
Article 3
1. In order to enjoy the freedom of the seas on equal terms with coastal States, States having no
sea coast
should have free access to the sea. To this end States situated between the sea and a State having
no sea coast
shall by common agreement with the latter, and in conformity with existing international
conventions, accord:
(a) To the State having no sea coast, on a basis of reciprocity, free transit through their territory;
and
(b) To ships flying the flag of that State treatment equal to that accorded to their own ships, or to
the ships of
any other States, as regards access to seaports and the use of such ports.
2. States situated between the sea and a State having no sea coast shall settle, by mutual
agreement with
the latter, and taking into account the rights of the coastal State or State of transit and the special
conditions of
the State having no sea coast, all matters relating to freedom of transit and equal treatment in
ports, in case such

States are not already parties to existing international conventions.


Article 4 Every State, whether coastal or not, has the right to sail ships under its flag on the high
seas.
Article 5
1. Each State shall fix the conditions for the grant of its nationality to ships, for the registration of
ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose
flag they are entitled to fly. There must exist a genuine link between the State and the ship; in
particular, the State must effectively exercise its jurisdiction and control in administrative,
technical and social matters over ships flying its flag.
2. Each State shall issue to ships to which it has granted the right to fly its flag documents to that
effect.
Article 6
1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided
for in
international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high
seas. A ship may
not change its flag during a voyage or while in a port of call, save in the case of a real transfer of
ownership or
change of registry.
2. A ship which sails under the flags of two or more States, using them according to convenience,
may not
claim any of the nationalities in question with respect to any other State, and may be assimilated
to a ship without
nationality.
Article 7 The provisions of the preceding articles do not prejudice the question of ships employed
on the official service of an intergovernmental organization flying the flag of the organization.
Article 8
1. Warships on the high seas have complete immunity from the jurisdiction of any State other than
the flag
2. For the purposes of these articles, the term warship means a ship belonging to the naval
forces of a State and bearing the external marks distinguishing warships of its nationality, under the
command of an officer duly commissioned by the government and whose name appears in the Navy
List, and manned by a crew who are under regular naval discipline.
Article 9 Ships owned or operated by a State and used only on government non-commercial service
shall, on the high seas, have complete immunity from the jurisdiction of any State other than the
flag State.
Article 10
1. Every State shall take such measures for ships under its flag as are necessary to ensure safety at
sea
with regard, inter alia, to:
(a) The use of signals, the maintenance of communications and the prevention of collisions;
(b) The manning of ships and labour conditions for crews taking into account the applicable
international labour instruments; The construction, equipment and seaworthiness of ships.
2. In taking such measures each State is required to conform to generally accepted international

standards and to take any steps which may be necessary to ensure their observance.
Article 11
1. In the event of a collision or of any other incident of navigation concerning a ship on the high
seas, involving the penal or disciplinary responsibility of the master or of any other person in the
service of the ship, no penal or disciplinary proceedings may be instituted against such persons
except before the judicial or administrative authorities either of the flag State or of the State of
which such person is a national.
2. In disciplinary matters, the State which has issued a masters certificate or a certificate of
competence or licence shall alone be competent, after due legal process, to pronounce the
withdrawal of such certificates, even if the holder is not a national of the State which issued them.
3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any
authorities other than those of the flag State.
Article 12
1. Every State shall require the master of a ship sailing under its flag, insofar as he can do so
without
serious danger to the ship, the crew or the passengers:
(a) To render assistance to any person found at sea in danger of being lost;
(b) To proceed with all possible speed to the rescue of persons in distress if informed of their need
of assistance, insofar as such action may reasonably be expected of him;
(c) After a collision, to render assistance to the other ship, her crew and her passengers and, where
possible, to inform the other ship of the name of his own ship, her port of registry and the nearest
port at which she will call.
2. Every coastal State shall promote the establishment and maintenance of an adequate and
effective
search and rescue service regarding safety on and over the sea and where circumstances so
require by way
of mutual regional arrangements cooperate with neighbouring States for this purpose.
Article 13 Every State shall adopt effective measures to prevent and punish the transport of slaves
in ships authorized to fly its flag, and to prevent the unlawful use of its flag for that purpose. Any
slave taking refuge on board any ship, whatever its flag, shall ipso facto be free.
Article 14 All States shall cooperate to the fullest possible extent in the repression of piracy on the
high seas or in any other place outside the jurisdiction of any State.
Article 15 Piracy consists of any of the following acts:
(1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by
the crew or the passengers of a private ship or a private aircraft, and directed:
(a) On the high seas, against another ship or aircraft, or against persons or property on board such
ship or aircraft;
(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of
facts making it a pirate ship or aircraft;
(3) Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or
subparagraph 2 of this article.
Article 16 The acts of piracy, as defined in article 15, committed by a warship, government ship or
government aircraft whose crew has mutinied and taken control of the ship or aircraft are
assimilated to acts committed by a private ship.

Article 17 A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in
dominant control to be used for the purpose of committing one of the acts referred to in article 15.
The same applies if the ship or aircraft has been used to commit any such act, so long as it remains
under the control of the persons guilty of that act.
Article 18 A ship or aircraft may retain its nationality although it has become a pirate ship or
aircraft. The retention or loss of nationality is determined by the law of the State from which such
nationality was derived.
Article 19 On the high seas, or in any other place outside the jurisdiction of any State, every State
may seize a pirate ship or aircraft, or a ship taken by piracy and under the control of pirates, and
arrest the persons and seize the property on board. The courts of the State which carried out the
seizure may decide upon the penalties to be imposed, and may also determine the action to be
taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in
good faith.
Article 20 Where the seizure of a ship or aircraft on suspicion of piracy has been effected without
adequate grounds, the State making the seizure shall be liable to the State the nationality of which
is possessed by the ship or aircraft, for any loss or damage caused by the seizure.
Article 21 A seizure on account of piracy may only be carried out by warships or military aircraft, or
other ships or aircraft on government service authorized to that effect.
Article 22
1. Except where acts of interference derive from powers conferred by treaty, a warship which
encounters a foreign merchant ship on the high seas is not justified in boarding her unless there is
reasonable ground for suspecting:
That the ship is engaged in piracy; or
That the ship is engaged in the slave trade; or
That though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same
nationality as the warship.
2. In the cases provided for in subparagraphs (a), (b) and (c) above, the warship may proceed to
verify the ships right to fly its flag. To this end, it may send a boat under the command of an
officer to the suspected ship.
If suspicion remains after the documents have been checked, it may proceed to a further
examination on board the ship, which must be carried out with all possible consideration.
3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed
any act justifying them, it shall be compensated for any loss or damage that may have been
sustained.
Article 23
1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the
coastal State have good reason to believe that the ship has violated the laws and regulations of that
State. Such pursuit must be commenced when the foreign ship or one of its boats is within the
internal waters or the territorial sea or the contiguous zone of the pursuing State, and may only be
continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted.
It is not necessary that, at the time when the foreign ship within the territorial sea or the
contiguous zone receives the order to stop, the ship giving the order should likewise be within the
territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in
article 24 of the Convention on the Territorial Sea and the Contiguous Zone, the pursuit may only
be undertaken if there has been a violation of the rights for the protection of which the zone was

established.
2. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own
country or of a third State.
3. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such
practicable means as may be available that the ship pursued or one of its boats or other craft
working as a team and using the ship as a mother ship are within the limits of the territorial sea, or
as the case may be within the contiguous zone. The pursuit may only be commenced after a visual
or auditory signal to stop has been given at a distance which enables it to be seen or heard by the
foreign ship.
4. The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or
aircraft on government service specially authorized to that effect.
5. Where hot pursuit is effected by an aircraft:
(a) The provisions of paragraphs 1 to 3 of this article shall apply mutatis mutandis;
(b) The aircraft giving the order to stop must itself actively pursue the ship until a ship or aircraft
of the coastal State, summoned by the aircraft, arrives to take over the pursuit, unless the aircraft
is itself able to arrest the ship. It does not suffice to justify an arrest on the high seas that the ship
was merely sighted by the aircraft as an offender or suspected offender, if it was not both ordered
to stop and pursued by the aircraft itself or other aircraft or ships which continue the pursuit
without interruption.
6. The release of a ship arrested within the jurisdiction of a State and escorted to a port of that
State for the purposes of an enquiry before the competent authorities may not be claimed solely on
the ground that the ship, in the course of its voyage, was escorted across a portion of the high seas,
if the circumstances rendered this necessary.
7. Where a ship has been stopped or arrested on the high seas in circumstances which do not justify
the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may
have been thereby sustained.
Article 24 Every State shall draw up regulations to prevent pollution of the seas by the discharge of
oil from ships or pipelines or resulting from the exploitation and exploration of the seabed and its
subsoil, taking account of existing treaty provisions on the subject.
Article 25
1. Every State shall take measures to prevent pollution of the seas from the dumping of radioactive
waste, taking into account any standards and regulations which may be formulated by the
competent international organizations.
2. All States shall cooperate with the competent international organizations in taking measures for
the prevention of pollution of the seas or air space above, resulting from any activities with
radioactive materials or other harmful agents.
Article 26
1. All States shall be entitled to lay submarine cables and pipelines on the bed of the high seas.
2. Subject to its right to take reasonable measures for the exploration of the continental shelf and
the exploitation of its natural resources, the coastal State may not impede the laying or
maintenance of such cables or pipelines.
3. When laying such cables or pipelines the State in question shall pay due regard to cables or
pipelines already in position on the seabed. In particular, possibilities of repairing existing cables or
pipelines shall not be prejudiced.
Article 27 Every State shall take the necessary legislative measures to provide that the breaking or
injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath
the high seas done wilfully or through culpable negligence, in such a manner as to be liable to
interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking or injury

of a submarine pipeline or high-voltage power cable shall be a punishable offence. This provision
shall not apply to any break or injury caused by persons who acted merely with the legitimate
object of saving their lives or their ships, after having taken all necessary precautions to avoid such
break or injury.
Article 28 Every State shall take the necessary legislative measures to provide that, if persons
subject to its jurisdiction who are the owners of a cable or pipeline beneath the high seas, in laying
or repairing that cable or pipeline, cause a break in or injury to another cable or pipeline, they
shall bear the cost of the repairs.
Article 29 Every State shall take the necessary legislative measures to ensure that the owners of
ships who can prove that they have sacrificed an anchor, a net or any other fishing gear, in order to
avoid injuring a submarine cable or pipeline, shall be indemnified by the owner of the cable or
pipeline, provided that the owner of the ship has taken all reasonable precautionary measures
beforehand.
-----------UN convention on Law of the Sea, 1982 : UNCLOS III - replaces(4 Treates of 1958 UNCLOS I)
The Law of the Sea Convention defines the rights and responsibilities of nations in their use of the
world's oceans, establishing guidelines for businesses, the environment, and the management of
marine natural resources. The Convention, concluded in 1982, replaced four 1958 treaties. UNCLOS
came into force in 1994, a year after Guyana became the 60th state to sign the treaty.[1] To date,
162 countries and the European Community have joined in the Convention. However, it is uncertain
as to what extent the Convention codifies customary international law.
While the Secretary General of the United Nations receives instruments of ratification and
accession and the UN provides support for meetings of states party to the Convention, the UN has
no direct operational role in the implementation of the Convention. There is, however, a role
played by organizations such as the International Maritime Organization, the International Whaling
Commission, and the International Seabed Authority (the latter being established by the UN
Convention).
Historical background
The UNCLOS replaces the older and weaker 'freedom of the seas' concept, dating from the 17th
century: national rights were limited to a specified belt of water extending from a nation's
coastlines, usually three nautical miles, according to the 'cannon shot' rule developed by the Dutch
jurist Cornelius van Bynkershoek. All waters beyond national boundaries were considered
international waters: free to all nations, but belonging to none of them (the mare liberum principle
promulgated by Grotius).
In the early 20th century, some nations expressed their desire to extend national claims: to include
mineral resources, to protect fish stocks, and to provide the means to enforce pollution controls.
(The League of Nations called a 1930 conference at The Hague, but no agreements resulted.) Using
the customary international law principle of a nation's right to protect its natural resources,
President Truman in 1945 extended United States control to all the natural resources of its
continental shelf. Other nations were quick to follow suit. Between 1946 and 1950, Argentina,
Chile, Peru, and Ecuador extended their rights to a distance of 200 nautical miles to cover their
Humboldt Current fishing grounds. Other nations extended their territorial seas to 12 nautical
miles.

By 1967, only 25 nations still used the old three-mile limit, while 66 nations had set a 12-mile
territorial limit and eight had set a 200-mile limit. As of May 28, 2008, only two countries still use
the three-mile limit: Jordan and Palau.[3] That limit is also used in certain Australian islands, an
area of Belize, some Japanese straits, certain areas of Papua New Guinea, and a few British
Overseas Territories, such as Anguilla.
UNCLOS I
In 1956, the United Nations held its first Conference on the Law of the Sea (UNCLOS I) at Geneva,
Switzerland. UNCLOS I resulted in four treaties concluded in 1958:
Convention on the Territorial Sea and Contiguous Zone, entry into force: 10 September 1964
Convention on the Continental Shelf, entry into force: 10 June 1964
Convention on the High Seas, entry into force: 30 September 1962
Convention on Fishing and Conservation of Living Resources of the High Seas, entry into force: 20
March 1966
Although UNCLOS I was considered a success, it left open the important issue of breadth of
territorial waters.
UNCLOS II
In 1960, the United Nations held the second Conference on the Law of the Sea ("UNCLOS II");
however, the six-week Geneva conference did not result in any new agreements. Generally
speaking, developing nations and third world countries participated only as clients, allies, or
dependents of United States or the Soviet Union, with no significant voice of their own.
The issue of varying claims of territorial waters was raised in the UN in 1967 by Arvid Pardo, of
Malta, and in 1973 the Third United Nations Conference on the Law of the Sea was convened in New
York. In an attempt to reduce the possibility of groups of nation-states dominating the negotiations,
the conference used a consensus process rather than majority vote. With more than 160 nations
participating, the conference lasted until 1982. The resulting convention came into force on
November 16, 1994, one year after the sixtieth state, Guyana, ratified the treaty.
UNCLOS III The convention introduced a number of provisions. The most significant issues covered
were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones
(EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of
the marine environment, scientific research, and settlement of disputes.
The convention set the limit of various areas, measured from a carefully defined baseline.
(Normally, a sea baseline follows the low-water line, but when the coastline is deeply indented, has
fringing islands or is highly unstable, straight baselines may be used.) The areas are as follows:
Internal waters
Covers all water and waterways on the landward side of the baseline. The coastal state is free to
set laws, regulate use, and use any resource. Foreign vessels have no right of passage within
internal waters.
Territorial waters
Out to 12 nautical miles (22 kilometres; 14 miles) from the baseline, the coastal state is free to set
laws, regulate use, and use any resource. Vessels were given the right of innocent passage through
any territorial waters, with strategic straits allowing the passage of military craft as transit
passage, in that naval vessels are allowed to maintain postures that would be illegal in territorial
waters. "Innocent passage" is defined by the convention as passing through waters in an expeditious
and continuous manner, which is not "prejudicial to the peace, good order or the security" of the
coastal state. Fishing, polluting, weapons practice, and spying are not "innocent", and submarines

and other underwater vehicles are required to navigate on the surface and to show their flag.
Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if
doing so is essential for the protection of its security.
Archipelagic waters
The convention set the definition of Archipelagic States in Part IV, which also defines how the
state can draw its territorial borders. A baseline is drawn between the outermost points of the
outermost islands, subject to these points being sufficiently close to one another. All waters inside
this baseline are designated Archipelagic Waters. The state has full sovereignty over these waters
(like internal waters), but foreign vessels have right of innocent passage through archipelagic
waters (like territorial waters).
Contiguous zone
Beyond the 12 nautical mile limit, there is a further 12 nautical miles from the territorial sea
baseline limit, the contiguous zone, in which a state can continue to enforce laws in four specific
areas: customs, taxation, immigration and pollution, if the infringement started within the state's
territory or territorial waters, or if this infringement is about to occur within the state's territory or
territorial waters.[4] This makes the contiguous zone a hot pursuit area.
Exclusive economic zones (EEZs)
These extend from the edge of the territorial sea out to 200 nautical miles (370 kilometres; 230
miles) from the baseline. Within this area, the coastal nation has sole exploitation rights over all
natural resources. In casual use, the term may include the territorial sea and even the continental
shelf. The EEZs were introduced to halt the increasingly heated clashes over fishing rights, although
oil was also becoming important. The success of an offshore oil platform in the Gulf of Mexico in
1947 was soon repeated elsewhere in the world, and by 1970 it was technically feasible to operate
in waters 4000 metres deep. Foreign nations have the freedom of navigation and overflight, subject
to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables.
Continental shelf
The continental shelf is defined as the natural prolongation of the land territory to the
continental margins outer edge, or 200 nautical miles from the coastal states baseline, whichever
is greater. A states continental shelf may exceed 200 nautical miles until the natural prolongation
ends. However, it may never exceed 350 nautical miles (650 kilometres; 400 miles) from the
baseline; or it may never exceed 100 nautical miles (190 kilometres; 120 miles) beyond the 2,500
meter isobath (the line connecting the depth of 2,500 meters). Coastal states have the right to
harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of
others. Coastal states also have exclusive control over living resources "attached" to the continental
shelf, but not to creatures living in the water column beyond the exclusive economic zone.
Aside from its provisions defining ocean boundaries, the convention establishes general obligations
for safeguarding the marine environment and protecting freedom of scientific research on the high
seas, and also creates an innovative legal regime for controlling mineral resource exploitation in
deep seabed areas beyond national jurisdiction, through an International Seabed Authority and the
Common heritage of mankind principle.[5]
Landlocked states are given a right of access to and from the sea, without taxation of traffic
through transit states.
-------------Agreement relating to the Implementation of Part XI of the United Nations Convention of 1994 on
the Law of the Sea of 10th Dec 1982
Part XI of the Convention provides for a regime relating to minerals on the seabed outside any
state's territorial waters or EEZ (Exclusive Economic Zones). It establishes an International Seabed

Authority (ISA) to authorize seabed exploration and mining and collect and distribute the seabed
mining royalty.
The United States objected to the provisions of Part XI of the Convention on several grounds,
arguing that the treaty was unfavorable to American economic and security interests. Due to Part
XI, the United States refused to ratify the UNCLOS, although it expressed agreement with the
remaining provisions of the Convention.
From 1983 to 1990, the United States accepted all but Part XI as customary international law, while
attempting to establish an alternative regime for exploitation of the minerals of the deep seabed.
An agreement was made with other seabed mining nations and licenses were granted to four
international consortia. Concurrently, the Preparatory Commission was established to prepare for
the eventual coming into force of the Convention-recognized claims by applicants, sponsored by
signatories of the Convention. Overlaps between the two groups were resolved, but a decline in the
demand for minerals from the seabed made the seabed regime significantly less relevant. In
addition, the decline of Socialism and the fall of Communism in the late 1980s had removed much
of the support for some of the more contentious Part XI provisions.
In 1990, consultations were begun between signatories and non-signatories (including the United
States) over the possibility of modifying the Convention to allow the industrialized countries to join
the Convention. The resulting 1994 Agreement on Implementation was adopted as a binding
international Convention. It mandated that key articles, including those on limitation of seabed
production and mandatory technology transfer, would not be applied, that the United States, if it
became a member, would be guaranteed a seat on the Council of the International Seabed
Authority, and finally, that voting would be done in groups, with each group able to block decisions
on substantive matters. The 1994 Agreement also established a Finance Committee that would
originate the financial decisions of the Authority, to which the largest donors would automatically
be members and in which decisions would be made by consensus.
On February 1, 2011, the Seabed Disputes Chamber of the International Tribunal for the Law of the
Sea (ITLOS) issued an advisory opinion concerning the legal responsibilities and obligations of States
Parties to the Convention with respect to the sponsorship of activities in the Area in accordance
with Part XI of the Convention and the 1994 Agreement.[6] The advisory opinion was issued in
response to a formal request made by the International Seabed Authority following two prior
applications the Authority's Legal and Technical Commission had received from the Republics of
Nauru and Tonga regarding proposed activities (a plan of work to explore for polymetallic nodules)
to be undertaken in the Area by two State-sponsored contractors (Nauru Ocean Resources Inc.
(sponsored by the Republic of Nauru) and Tonga Offshore Mining Ltd. (sponsored by the Kingdom of
Tonga). The advisory opinion set forth the international legal responsibilities and obligations of
Sponsoring States AND the Authority to ensure that sponsored activities do not harm the marine
environment, consistent with the applicable provisions of UNCLOS Part XI, Authority regulations,
ITLOS case law, other international environmental treaties, and Principle 15 of the UN Rio
Declaration
--------The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act,
1976
An Act to provide for certain matters relating to the territorial waters, continental shelf, shelf,
exclusive economic zone and other maritime zones of India. Be it enacted by Parliament in the
Twenty-seventh Year of the Republic of India as follows:-

1.
(1) This Act may be called the Territorial Waters, Continental Shelf, Exclusive Economic Zone and
Other Maritime Zones Act, 1976.
(2) Sections 5 and 7 shall come into force on such date or on such different dates as the Central
Government may, by notification in the official Gazette, appoint; and the remaining provisions of
this Act shall come into force at once.
2. In this Act, Limit, in relation to the territorial waters, the continental shelf, the exclusive
economic zone or any other maritime zone of India, means the limit of such waters, shelf or zone
with reference to the mainland of India as well as the individual or composite group or groups of
islands constituting part of the territory of India.
3.
(1) The sovereignty of India extends and has always extended to the territorial waters of India
(hereinafter referred to as the territorial waters) and to the seabed and subsoil underlying, and the
air space over, such waters.
(2) The limit of the territorial waters is the line every point of which is at a distance of twelve
nautical miles from the nearest point of the appropriate baseline.
(3) Notwithstanding anything contained in sub-section (2), the Central Government may, whenever
it considers necessary so to do having regard to International Law and State practice, alter, by
notification in the Official Gazette, the limit of the territorial waters.
(4) No notification shall be issued under sub-section (3) unless resolutions approving the issue of
such notification are passed by both Houses of Parliament.
4.
(1) Without prejudice to the provisions of any other law for the time being in force, all foreign
ships (other than warships including submarines and other underwater vehicles) shall enjoy the
right of innocent passage through the territorial waters.
Explanation- For the purposes of this section, passage is innocent so long as it is not prejudicial to
the peace, good order or security of India.
(2) Foreign warships including submarines and other underwater vehicles may enter or pass through
the territorial waters after giving prior notice to the Central Government: Provided that submarines
and other underwater vehicles shall navigate on the surface and show their flag while passing
through such waters.
(3) The Central Government may, if satisfied that it is necessary so to do in the interests of the
peace, good order or security of India or any part thereof, suspend, by notification in the Official
Gazette, whether absolutely or subject to such exceptions and qualifications as may be specified in
the notification, the entry of all or any class of foreign ships into such area of the territorial waters
as may be specified in the notification.
5.
(1) The contiguous zone of India (hereinafter referred to as the contiguous zone) is and area beyond
and adjacent to the territorial waters and the limit of the contiguous zone is the line every point of
which is at a distance of twenty-four nautical miles from the nearest point of the baseline referred
to in sub-section (2) of section 3.

(2) Notwithstanding anything contained in sub-section (1), the Central Government may, whenever
it considers necessary so to do having regard to International Law and State practice, alter, by
notification in the Official Gazette, the limit of the contiguous zone.
(3) No notification shall be issued under sub-section (2) unless resolutions approving the issue of
such notification are passed by both Houses of Parliament.
(4) The Central Government may exercise such powers and take such measures in or in relation to
the contiguous zone as it may consider necessary with respect to,- (a) (b)
The Central Government may, by notification in the Official Gazette,(a) extend with such restrictions and modifications as it thinks fit, any enactment, relating to any
matter referred to in clause (a) or clause (b) of sub-section (4), for the time being in force in India
or any part thereof, to the contiguous zone, and
(b) make such provisions as it may consider necessary in such notification for facilitating the
enforcement of such enactment, and any enactment so extended shall have effect as if the
contiguous zone is a part of the territory of India.
6.
(1) The continental shelf of India (hereinafter referred to as the continental shelf) comprises the
seabed and subsoil of the submarine areas that extend beyond the limit of its territorial waters
throughout the natural prolongation of its land territory to the outer edge of the continental
margin or to a distance of two hundred nautical miles from the the security of India, and
immigrations sanitation, customs and other fiscal matters.
baseline referred to in sub-section (2) of section 3 where the outer edge of the continental margin
does not extend up to that distance.
(2) India has, and always had, full and exclusive sovereign rights in respect of its continental shelf.
(3) Without prejudice to the generality of the provisions of sub-section (2), the Union has in the
continental shelf,(a) Sovereign rights for the purposes of exploration, exploitation, conservation and management of
all resources;
(b) exclusive rights and jurisdiction for the construction, maintenance or operation of artificial
islands, off-shore terminals, installations and other structures and devices necessary for the
exploration and exploitation of the resources of the continental shelf or
for the convenience of shipping or for any other purpose;
(c) exclusive jurisdiction to authorize, regulate and control scientific research; and
(d) exclusive jurisdiction to preserve and protect the marine environment and to prevent and
control marine pollution.
(4) No person (including a foreign Government) shall, expect under, and in accordance with, the
terms of a licence or a letter of authority granted by the Central Government, explore the
continental shelf or exploit its resources or carry out any search or excavation or conduct any
research within the continental shelf o drill therein or construct, maintain or operate any artificial
island, off-shore terminal, installation or other structure or device therein for any purpose
whatsoever.
The Central Government may, by notification in the Official Gazette,(a) declare any area of the continental shelf and its superjacent waters to be a designated area;
and
(b) make such provisions as it may deem necessary with respect to,-

(i) the exploration, exploitation and protection of the resources of the continental shelf within such
designated area; or
(ii) the safety and protection of artificial islands, off-shore terminals, installations and other
structures and devices in such designated area; or
(iii) the protection of marine environment of such designated area; or
(iv) customs and other fiscal matters in relation to such designated area.
Explanation- A notification issued under this sub-section may provide for the regulation of entry
into and passage through the designated area of foreign ships by the establishment of fairways,
sealanes, traffic separation schemes or any other mode of ensuring freedom of navigation which is
not prejudicial to the interests of India.
The Central Government may, by notification in the Official Gazette,(a) extend with restrictions and modifications as it thinks fit, any enactment for the time being in
force in India or any part thereof to the continental shelf or any part [including any designated area
under sub-section (5)] thereof, and
(b) make such provisions as it may consider necessary for facilitating the enforcement of such
enactment, and any enactment so extended shall have effect as if the continental shelf or the part
[including, as the case may be, any designated area under sub-section (5) ] thereof to which it has
been extended is a part of the territory of India.
(7) Without prejudice to the provisions of sub-section (2) and subject to any measures that may be
necessary for protecting the interests of India, the Central Government may not impede the laying
or maintenance of submarine cables or pipelines on the continental shelf by foreign Stats:
Provided that the consent of the Central Government shall be necessary for the delineation of the
course for the laying of such cables or pipelines.
7.
(1) The exclusive economic zone of India (hereinafter referred to Exclusive as the exclusive
economic zone) is an area beyond and adjacent to the territorial waters, and the limit of such zone
is two hundred nautical miles from the baseline referred to in sub-section (2) of section3.
(2) Notwithstanding anything contained in sub-section (1), the Central Government may, whenever
it considers necessary so to do having regard to International Law and State practice, alter, by
notification in the Official Gazette, the limit of the exclusive economic zone.
(3) No notification shall be issued under sub-section (2) unless resolutions approving the issue of
such notification are passed by both Houses of Parliament.
In the exclusive economic zone, the Union has,(a) sovereign rights for the purpose of exploration, exploitation, conservation and management of
the natural resources, both living and non-living as well as for producing energy from tides, winds
and currents;
(b) exclusive rights and jurisdiction for the construction, maintenance or operation of artificial
islands, off-shore terminals, installations and other structures and devices necessary for the
exploration and exploitation of the resources of the zone or for the convenience of shipping or for
any other purpose.
(c) Exclusive jurisdiction to authorize, regulate and control scientific research;
(d) Exclusive jurisdiction to preserve and protect the marine environment and to prevent and
control marine pollution; and
(e) Such other rights as are recognized by International Law.
(5) No person (including a foreign Government ) shall, except under, and in accordance with, the
terms of any agreement with the Central Government or of a licence or a letter of authority

granted by the Central Government, explore or exploit any resources of the exclusive economic
zone or carry out any search or excavation or conduct any research within the exclusive economic
zone or drill therein or construct,
maintain or operate any artificial island, off-shore terminal, installation or other structure or
device therein for any purpose whatsoever: Provided that nothing in this sub-section shall apply in
relation to fishing by a citizen of India.
The Central Government may, by notification in the Official Gazette,- (a) or (b)
(a) declare any area of the exclusive economic zone to be a designated area;
(b) make such provisions as it may deem necessary with respect to,(i) the exploration, exploitation and protection of the resources of such designated area; or
(ii) other activities for the economic exploitation and exploration of such designated area such as
the production of energy from tides, winds and currents; or
(iii) the safety and protection of artificial islands, off-shore terminals, installations and other
structures and devices in such designated area; or
(iv) the protection of marine environment of such designated area; or
(v) customs and other fiscal matters in relation to such designated area.
Explanation A notification issued under this sub-section may provide for the regulation of entry
into and passage through the designated area of foreign ships by the establishment of fairways,
sealanes, traffic separation schemes or any other mode of ensuring freedom of navigation which is
not prejudicial to the interest of India.
The Central Government may , by notification in the official Gazette,(a) extend, with such restrictions and modifications as it thinks fit, any enactment for the time
being in force in India or any part thereof to the exclusive economic zone or any part thereof; and
(b) make such provisions as it may consider necessary for facilitation the enforcement of such
enactment, and any enactment so extended shall have effect as if the exclusive economic zone or
the part thereof to which it has been extended is a part of the territory of India.
(8) The provisions of sub-section (7) of section 6 shall apply in relation to the laying or maintenance
of submarine cables or pipelines on the seabed of the exclusive economic zone as they apply in
relation to the laying or maintenance of submarine cables or pipelines on the seabed of the
continental shelf.
(9) In the exclusive economic zone and the air space over the zone, ships and aircraft of all States
shall, subject to the exercise by India of its rights within the zone, enjoy freedom of navigation and
over flight.
8.
(1) The Central Government may, by notification in the Official Gazette, specify the limits of such
waters adjacent to its land territory as are the historic waters of India.
(2) The sovereignty of India extends, and has always extended, to the historic waters of India and
to the seabed and subsoil underlying, and the air space over, such waters.
9.
(1) The maritime boundaries between India and any State whose coast is opposite or adjacent to
that of India in regard to their respective territorial waters, contiguous zones, continental shelves,
exclusive economic zones and other maritime zones shall be as determined by agreement (whether
entered into before or after the commencement of this section) between India and such State and

pending such agreement between India and any such State, and unless any other provisional
arrangements are agreed to between them, the maritime boundaries between India and such State
shall not extend beyond the line every point of which is equidistant from the nearest point from
which the breadth of
the territorial waters of India and of such State are measured.
(2) Every agreement referred to in sub-section (1) shall, as soon as may be after it is entered into,
be published in the Official Gazette.
(3) The provisions of sub-section (1) shall have effect notwithstanding anything contained in any
other provision of this Act.
10. The Central Government may cause the baseline referred to in sub-section (2) of section 3, the
limits of the territorial waters, the contiguous zone, the continental shelf, the exclusive economic
zone and the historic waters of India and the maritime boundaries as settled by agreements
referred to in section 9 to be published in charts.
11. Whoever contravenes any provision of this Act or of any notification thereunder shall (without
prejudice to any other action which may be taken against such person under any other provision of
this or of any other enactment) be punishable with imprisonment which may extend to three years,
or with fine, or with both.
12.
(1) Where an offence under this Act or the rules made thereunder has been committed by a
company, every person who at the time the offence was committed was in charge of and was
responsible to the company for the conduct of the business of the company, as well as the company
shall be deemed to be guilty of the offence and shall be liable to be proceeded against and
punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any
punishment provided in this Act if he proves that the offence was committed without his knowledge
or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub- section (1) where an offence under this Act or the
rules made thereunder has been committed with the consent or the connivance of, or is
attributable to any neglect on the part of, any director, manager, secretary or other officer shall
also be deemed to be guilty of that offence and shall be liable to be proceeded against and
punished accordingly.
Explanation For the purpose of this section(a) Company means any body corporate and includes a firm or other association of individuals;
and
(b) director, in relation to a firm, means a partner in the firm.
13. Any person committing an offence under this Act or any rules made there under or under any of
the enactments extended under this Act or under the rules made there under may be tried for the
offence in any place in which he may be found or in such other place as the Central Government
may, by general or special order, published in the Official Gazette, direct in this behalf.
14.No prosecution shall be instituted against any person in respect of any offence under this Act or
the rules made there under without the previous sanction of the Central Government or such
officer or authority as may be authorized by that Government by order in writing in this behalf.
15.

(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out
the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely:(a) regulation of the conduct of any person in the territorial waters, the contiguous zone, the
continental shelf, the exclusive economic zone or any other maritime zone of India;
(b) regulation of the exploration and exploitation, conservation and management of the resources
of the continental shelf;
(c) regulation of the exploration, exploitation, conservation and management of the resources of
the exclusive economic zone;
(d) regulation of the construction, maintenance and operation of artificial islands, off-shore
terminals, installations and other structures and devices referred to in sections 6 and 7;
(e) preservation and protection of the marine environment and prevention and control of marine
pollution for the purpose of this Act;
(f) authorization, regulation and control of the conduct of scientific research for the purpose of this
Act;
(g) fees in relation to licences and letters of authority referred to in sub-section (4) of section 6
and sub-section (5) of section 7 or for any other purpose; or
(h) any matter incidental to any of the matters specified in clauses (a) to (g).
(3) In making any rule under this section, the Central Government may provide that a contravention
thereof shall be punishable with imprisonment, which may extend to three years, or with fine,
which may extend to any amount, or with both.
(4) Every rule made under this Act and every notification issued under sub-section
(5) of section 6 or sub- section (6) of section 7 shall be laid, as soon as may be after it is made or
issued, before each House of Parliament while it is in session for a total period of thirty days which
may be comprised in one session or in two or more successive sessions and if, before the expiry of
the session immediately following the session or the successive sessions aforesaid both Houses
agree in making any modification in the rule or the notification or both Houses agree that the rule
or notification should not be issued, the rule or notification shall, thereafter, have effect only in
such modified form or be of no effect, as the case may be; so however, that any such modification
or annulment shall be without prejudice to the validity of anything previously done under that rule
or notification.
16.
(1) If any difficulty arises in giving effect to the provisions of this Act or of any of the enactments
extended under this Act, the Central Government may, by order published in the Official Gazette,
make such provisions not inconsistent with the provisions of this Act or, as the case may be, of such
enactment, as may appear to it to be necessary or expedient for removing the difficulty:
Provided that no order shall be made under this section(a) in the case of any difficulty arising in giving effect to any provision of this Act, after the expiry
of three years from the commencement of such provision;
(b) in the case of any difficulty arising in giving effect to the provisions of any enactment extended
under this Act, after the expiry of three years from the extension of such enactment.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before
each House of Parliament.
------------------------------------------6. Human Rights

6.1 Human Rights: Concepts, Basis and Evolution


Human rights are commonly understood as "inalienable fundamental rights to which a person is
inherently entitled simply because she or he is a human being."[1] Human rights are thus conceived
as universal (applicable everywhere) and egalitarian (the same for everyone). These rights may
exist as natural rights or as legal rights, in both national and international law.[2] The doctrine of
human rights in international practice, within international law, global and regional institutions, in
the policies of states and in the activities of non-governmental organizations, has been a
cornerstone of public policy around the world. The idea of human rights[3] states, "if the public
discourse of peacetime global society can be said to have a common moral language, it is that of
human rights." Despite this, the strong claims made by the doctrine of human rights continue to
provoke considerable skepticism and debates about the content, nature and justifications of human
rights to this day. Indeed, the question of what is meant by a "right" is itself controversial and the
subject of continued philosophical debate.[4]
Many of the basic ideas that animated the movement developed in the aftermath of the Second
World War and the atrocities of The Holocaust, culminating in the adoption of the Universal
Declaration of Human Rights in Paris by the United Nations General Assembly in 1948. The ancient
world did not possess the concept of universal human rights.[5] Ancient societies had "elaborate
systems of duties... conceptions of justice, political legitimacy, and human flourishing that sought
to realize human dignity, flourishing, or well-being entirely independent of human rights".[6] The
modern concept of human rights developed during the early Modern period, alongside the European
secularization of Judeo-Christian ethics.[7] The true forerunner of human rights discourse was the
concept of natural rights which appeared as part of the medieval Natural law tradition that became
prominent during the Enlightenment with such philosophers as John Locke, Francis Hutcheson, and
Jean-Jacques Burlamaqui, and featured prominently in the political discourse of the American
Revolution and the French Revolution.
From this foundation, the modern human rights arguments emerged over the latter half of the
twentieth century. Gelling as social activism and political rhetoric in many nations put it high on
the world agenda.[8]
All human beings are born free and equal in dignity and rights. They are endowed with reason
and conscience and should act towards one another in a spirit of brotherhood.
6.2 Traditional Human Rights
6.2.1 Civil and Political rights (1st Generation Human rights)
First-generation human rights, often called "blue" rights, deal essentially with liberty and
participation in political life. They are fundamentally civil and political in nature, as well as
strongly individualistic: They serve negatively to protect the individual from excesses of the state.
First-generation rights include, among other things, freedom of speech, the right to a fair trial,
freedom of religion and voting rights. They were pioneered by the United States Bill of Rights and
in France by the Declaration of the Rights of Man and of the Citizen in the 18th century, although
the right to due process goes back to the Magna Carta of 1215 and the Rights of Englishmen. They
were first enshrined at the global level by the 1948 Universal Declaration of Human Rights, given
status in international law in Articles 3 to 21, and in the International Covenant on Civil and
Political Rights.
When first generation human rights are limited, this directly limits second generation rights.
Improving first generation rights is the "causal link from first generation human rights to improved
socio-economic outcomes"
6.2.2 Economic, Social and Cultural Rights (2nd Generation Human Rights )
Second-generation human rights are related to equality and began to be recognized by governments

after World War II. They are fundamentally economic, social and cultural in nature. They guarantee
different members of the citizenry equal conditions and treatment. Secondary rights would include
a right to be employed, rights to housing and health care, as well as social security and
unemployment benefits. Like first-generation rights, they were also covered by the Universal
Declaration of Human Rights, and further embodied in Articles 22 to 27 of the Universal
Declaration, and the International Covenant on Economic, Social, and Cultural Rights.
In the United States of America, President Franklin D. Roosevelt proposed a Second Bill of Rights,
covering much the same grounds, during his State of the Union Address on January 11, 1944. Today,
many nations, states, or groups of nations have developed legally binding declarations guaranteeing
comprehensive sets of human rights, e.g. the European Social Charter.
Some states have enacted some of these economic rights, e.g., New York State has enshrined the
right to a free education,[3][4] as well as "the right to organize and to bargain collectively,"[5] and
workers compensation,[6], in its constitutional law.
These rights are sometimes referred to as "red" rights. They impose upon the government the duty
to respect and promote and fulfill them, but this depends on the availability of rescources. The
duty is imposed on the state because it controls its own resources. No one has the direct right to
housing and right to education. (In South Africa, for instance, the right is not, per se, to housing,
but rather "to have access to adequate housing,"[7] realised on a progressive basis.[8])
The duty of government is in the realisation of these rights is a positive one.
6.3 Third generation Human Rights (Solidarity Rights)
Third-generation human rights are those rights that go beyond the mere civil and social, as
expressed in many progressive documents of international law, including the 1972 Stockholm
Declaration of the United Nations Conference on the Human Environment, the 1992 Rio Declaration
on Environment and Development, and other pieces of generally aspirational "soft law." Because of
the present-day tilting toward national sovereignty and the preponderance of would-be offender
nations, these rights have been hard to enact in legally binding documents.
The term "third-generation human rights" remains largely unofficial, and thus houses an extremely
broad spectrum of rights, including:
- Group and collective rights
- Right to self-determination
- Right to economic and social development
- Right to a healthy environment
- Right to natural resources
- Right to communicate and communication rights
- Right to participation in cultural heritage
- Rights to intergenerational equity and sustainability
Some countries have constitutional mechanisms for safeguarding third-generation rights. For
example, the New Zealand Parliamentary Commissioner for the Environment, the Hungarian
Parliamentary Commissioner for Future Generations,[9] the Parliament of Finlands Committee for
the Future, and the erstwhile Commission for Future Generations in the Knesset in Israel.
Some international organizations have offices for safeguarding such rights. An example is the High
Commissioner on National Minorities of the Organization for Security and Co-operation in Europe.
The Directorate-General for the Environment of the European Commission has as its mission
"protecting, preserving and improving the environment for present and future generations, and

promoting sustainable development."


A few jursidictions have enacted provisions for environmental protection, e.g. New York's "forever
wild" constitutional article,[10] which is enforceable by action of the New York State Attorney
General or by any citizen Ex rel with the consent of the Appellate Division.[11]
These are sometimes referred to as "green" rights.
6.4 Implementation of Human Rights at International Level
Treaties and Statutes
- Universal Declaration on Human Rights, 1948

he Universal Declaration of Human Rights (UDHR) is a declaration adopted by the


United Nations General Assembly (10 December 1948 at Palais de Chaillot,
Paris). The Declaration arose directly from the experience of the Second World
War and represents the first glob
expression of rights to which all human beings are inherently entitled
Article 1. All human beings are born free and equal in dignity and rights. They are endowed with
reason and conscience and should act towards one another in a spirit of

brotherhood.
Article 2. Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or
other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or
international status of the country or territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3. Everyone has the right to life, liberty and security of person.
Article 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms.
Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.
Article 6. Everyone has the right to recognition everywhere as a person before the law.
Article 7. All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any discrimination in violation of
this Declaration and against any incitement to such discrimination.
Article 8. Everyone has the right to an effective remedy by the competent national tribunals for
acts violating the fundamental rights granted him by the constitution or by law.
Article 9. No one shall be subjected to arbitrary arrest, detention or exile.
Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any criminal charge
against him.
Article 11.
(1)Everyone charged with a penal offence has the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all the guarantees necessary for his defence.
(2)No one shall be held guilty of any penal offence on account of any act or omission which did not
constitute a penal offence, under national or international law, at the time when it was committed.
Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal
offence was committed.

Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks.
Article 13.
(1) Everyone has the right to freedom of movement and residence within the borders of each State.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Article 14.
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from nonpolitical
crimes or from acts contrary to the purposes and principles of the United Nations.
Article 15.
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his
nationality.
Article 16.
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the
right to marry and to found a family.
They are entitled to equal rights as to marriage, during
marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by
society and the State.
Article 17.
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
Article 18. Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief in teaching, practice, worship and
observance.
Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom
to hold opinions without interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers.
Article 20.
(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through freely
chosen representatives.
(2) Everyone has the right to equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be
expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall
be held by secret vote or by equivalent free voting procedures.
Article 22. Everyone, as a member of society, has the right to social security and is entitled to
realization, through national effort and international co-operation and in accordance with the
organization and resources of each State, of the economic, social and cultural rights indispensable
for his dignity and the free development of his personality.
Article 23.
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions
of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.

(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and
his family an existence worthy of human dignity, and supplemented, if necessary, by other means of
social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24. Everyone has the right to rest and leisure, including reasonable limitation of working
hours and periodic holidays with pay.
Article 25.
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself
and of his family, including food, clothing, housing and medical care and necessary social services,
and the right to security in the event of unemployment, sickness, disability, widowhood, old age or
other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether
born in or out of wedlock, shall enjoy the same social protection.
Article 26.
(1) Everyone has the right to education. Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be compulsory. Technical and professional
education shall be made generally available and higher education shall be equally accessible to all
on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the
strengthening of respect for human rights and fundamental freedoms. It shall promote
understanding, tolerance and friendship among all nations, racial or religious groups, and shall
further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.
Article 27.
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the
arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which he is the author.
Article 28.Everyone is entitled to a social and international order in which the rights and freedoms
set forth in this Declaration can be fully realized.
Article 29.
(1) Everyone has duties to the community in which alone the free and full development of his
personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as
are determined by law solely for the purpose of securing due recognition and respect for the rights
and freedoms of others and of meeting the just requirements of morality, public order and the
general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles
of the United Nations.
Article 30. Nothing in this Declaration may be interpreted as implying for any State, group or
person any right to engage in any activity or to perform any act aimed at the destruction of any of
the rights and freedoms set forth herein.
-International Covenant on Civil and Political Rights, 1966
This covenant details the basic civil and political rights of individuals and nations. Among the rights
of nations are:
- the right to self determination
- the right to own, trade, and dispose of their property freely, and not be deprived of their means
of subsistence
Among the rights of individuals are:
the right to legal recourse when their rights have been violated, even if the violator was acting

in an official capacity
the right to life
the right to liberty and freedom of movement
the right to equality before the law
the right to presumption of innocence til proven guilty
the right to appeal a conviction
the right to be recognized as a person before the law
the right to privacy and protection of that privacy by law
freedom of thought, conscience, and religion
freedom of opinion and expression
freedom of assembly and association
The covenant forbids torture and inhuman or degrading treatment, slavery or involuntary servitude,
arbitrary arrest and detention, and debtor's prisons. It forbids propaganda advocating either war or
hatred based on race, religion, national origin, or language.
It provides for the right of people to choose freely whom they will marry and to found a family, and
requires that the duties and obligations of marriage and family be shared equally between
partners. It guarantees the rights of children and prohibits discrimination based on race, sex, color,
national origin, or language.
It also restricts the death penalty to the most serious of crimes, guarantees condemned people the
right to appeal for commutation to a lesser penalty, and forbids the death penalty entirely for
people under 18 years of age.
The covenant permits governments to temporarily suspend some of these rights in cases of civil
emergency only, and lists those rights which cannot be suspended for any reason. It also establishes
the UN Human Rights Commission.
After almost two decades of negotiations and rewriting, the text of the Universal Covenant on Civil
and Political Rights was agreed upon in 1966. In 1976, after being ratified by the required 35 states,
it became international law.
-International Covenant on Economic, Social and Cultural Rights, 1966
This covenant describes the basic economic, social, and cultural rights of individuals and nations,
including the right to:
self-determination
wages sufficient to support a minimum standard of living
equal pay for equal work
equal opportunity for advancement
form trade unions
strike
paid or otherwise compensated maternity leave
free primary education, and accessible education at all levels
copyright, patent, and trademark protection for intellectual property
In addition, this convention forbids exploitation of children, and requires all nations to cooperate
to end world hunger. Each nation which has ratified this covenant is required to submit annual
reports on its progress in providing for these rights to the Secretary General, who is to transmit
them to the Economic and Social Council.
-Additional Treaties of Human Rights
6.5 Human Rights Council
The Human Rights Council is an inter-governmental body within the United Nations structure, with
a membership consisting of 47 states. The Council is responsible for strengthening the promotion
and protection of human rights around the globe. It was created by the UN General Assembly in
2006 with the overall objective of addressing human rights violations.

Council members are elected by the 192 member states of the UN General Assembly. Any UN
member state can be elected to the Council if it receives an absolute majority of votes. The 47
Council seats are designed to ensure equitable geographical representation: 13 members are
elected from the African Group; 13 from the Asian Group; 6 from the Eastern European Group; 8
from the Latin American and Caribbean Group; and 7 from the Western European and Other States
Group. The first members of the Human Rights Council were elected on 9 May 2006. The last
Council elections were held on 12 May 2009, and the next elections will be held in 2012. Members
are elected for three-year terms. They are not eligible for immediate re-election after serving two
consecutive terms.
The General Assembly has the right to suspend the rights and privileges of any Council Member that
it decides has persistently committed gross and systematic violations of human rights during its
term of membership. This process of suspension requires a two-thirds majority vote by the General
Assembly.
The Human Rights Council consists of member states or governments, and is a subsidiary body of
the General Assembly, directly accountable to the full membership of the United Nations.
The Council serves as the main United Nations forum for intergovernmental cooperation and
dialogue on human rights issues. Its focus is to help member states meet their human rights
obligations through dialogue, capacity building, and technical assistance. The Council also makes
recommendations to the General Assembly for further development of international law in the field
of human rights.
Through what is called a Universal Periodic Review, the Council assesses the situation of human
rights in all 192 UN member states. It also has an Advisory Committee, which provides expertise and
advice on thematic human rights issues which pertain to all parts of the world. Another element of
its work is a Complaints Procedure, which allows individuals and organizations to bring
complaints about human rights violations to the attention of the Council.
The Council addresses specific country situations or thematic issues through a system called
special procedures. Currently, there are 33 thematic and 8 country mandates.
6.6 European Convention on Human Rights
European Convention on Human Rights, 1950, Protocol 9 of 1990 and Protocol 11 of 1994
The European Convention on Human Rights (ECHR) (formally the Convention for the Protection of
Human Rights and Fundamental Freedoms) is an international treaty to protect human rights and
fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe,the
convention entered into force on 3 September 1953. All Council of Europe member states are party
to the Convention and new members are expected to ratify the convention at the earliest
opportunity.[2]
The Convention established the European Court of Human Rights (ECtHR). Any person who feels his
or her rights have been violated under the Convention by a state party can take a case to the
Court. Judgements finding violations are binding on the States concerned and they are obliged to
execute them. The Committee of Ministers of the Council of Europe monitors the execution of
judgements, particularly to ensure payment of the amounts awarded by the Court to the applicants
in compensation for the damage they have sustained. The establishment of a Court to protect
individuals from human rights violations is an innovative feature for an international convention on
human rights, as it gives the individual an active role on the international arena (traditionally, only
states are considered actors in international law). The European Convention is still the only
international human rights agreement providing such a high degree of individual protection. State
parties can also take cases against other state parties to the Court, although this power is rarely
used.
Protocol 9 of 1990 - gave permission to indiv