International Law

Ashwini kumar

CONTENTS
1. NATURE SCOPE AND BASIS OF INTERNATIONAL LAW .............................................. 3
2. RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW ........... 16
3. SOURCES OF INTERNATIONAL LAW .............................................................................. 21
4. THE SUBJECTS OF INTERNATIONAL LAW .................................................................... 29
5. STATE ..................................................................................................................................... 35
6. LAW OF TREATIES .............................................................................................................. 44
7. STATE JURISDICTION ......................................................................................................... 48
8. STATE SUCCESSION ............................................................................................................ 53
9. ASYLUM................................................................................................................................. 58
10. EXTRADITION ...................................................................................................................... 61
11. OUTER SPACE, THE MOON AND ANTARCTICA ........................................................... 63

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Nature Scope and Basis of International Law

One of the most controversial issues that has been debated and discussed and on
which the opinion of the jurists are sharply divided since the beginning of the Science of
Nations concerns is the status of International Law.
Although rules regulating the relations of States are referred to International Law in
practice consistently since last more than 200 years, number of jurists , including those who
use the expression International Law have expressed doubts on the question : Is
International Law really Law?
One view is that International Law is not a true Law. It is a code of rules of conduct of
moral force only.
Another view is that International Law is a true law and it is to be regarded as law in
the same way as that of ordinary laws of a state which is binding upon the individuals.
The reality is that the answer of the above question depends, in a large measure upon
as to what is the definition of the term law. It alone would decide whether International Law
is a true law or not.
Hobbes, Bentham and Pufendorf are of the view that International Law is not legally
binding on the States. In the 19th century a number of prominent jurists took the similar view.
The most prominent amongst them is the British jurist Austin, and later his followers.
According to Austin, law is the command of the sovereign attended by sanction; law is the
command of the sovereign attended by sanction in case of violation of the command.
In other words, law should be limited to rules of conduct enacted by a determinate
legislative authority and enforced by physical sanction.
It was his view that International Law cannot be called as law proper in the true sense,
because it has neither sovereign legislative authority to enact law nor there is an adequate
sanction behind it. Moreover, there is no enforcement agency which can enforce it as a body
of rules. He, therefore, preferred to call International law as Positive International morality,
since it lacks a common and determinate sovereign issuing order backed by threats. By
positive, he meant what in jurisprudence is commonly meant by that term, namely that the
rules presently enforceable.
Due to absence of any sovereign authority and sanctions behind International Law, it
has been regarded by him as a rule of morality which is analogous to the rules binding a club
or society.
A rule is a rule of morality, if by common consent of the community it applies to
conscience and to conscience only. Such rules are different from rules of law where in by
common consent of the community it is eventually enforced by external power. Since in
International Law, which is a body of rules governing the relations of sovereign states inter
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se, there is no sovereign political authority of State inter se, and there is neither any supreme
executive government to enforce these laws nor there exists any judicial organization with
compulsory jurisdiction, International Law cannot be accepted as a legal System.
Criticism of Austins view
Austins definition of law commonly known as command theory has been vehemently
criticized by the jurists belonging to sociological, legal realism and historical school on
different grounds.
German jurist Savigny Sir Henry Maine have stated that long before enacted laws took their
place upon the statute books, communities were ruled by customs and usages which enjoyed
the full force of law as rule of conduct.
In many communities laws are observed because of inner morality, i.e. without any
formal legislative authorities. Maine says that laws are obeyed not because of the fear of
punishment but because of the habit of mind and practices of the communities.
Austins view fails to explain why states themselves regard International Law as
binding even when there is no sovereign.
Oppenheims view
Oppenheim says that law is a body of rules for human conduct within a community which by
common consent of this community shall be enforced by external power. Accordingly
essential conditions for the existence of law are threefold.
Firstly, there must be a community.
Secondly, there must be a body of rules, for human conduct within that community, so that
the community may be orderly governed. All the communities submit to the rule of law
because they wish to afford due respect and protection to the dignity of men and nations.
Thirdly, there must be common consent of that community that these rules shall be enforced
by external powers. It means that it is not necessary that rules should be enacted through a
law-making authority or there should exist a law administering court within the community
concerned. The three requirements are satisfied by International Law, to a greater or lesser
extent.
The definition given by Oppenheim will be regarded correct only when it is proved that there
exists an international society or community.
States live together in the civilized world substantially as men live together in a State, the
difference being one of machinery and we are entitled to say that there is a society of States
and a law of that society.
As said by Oppenheim that the States of the world do together constitute a body
bound together through common interests which create extensive intercourse between them,
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and differences in culture, economic structure, or political system, do not affect as such the
existence of an international community as one of the basis factors of International Law.
Society of men and the society of States is not comparable to each other. The binding
nature of the law regulating the relations of individuals and the relations of states is different.
However, as long as argument runs in favour of the existence of International society, it can
be said that its existence atleast makes certain conduct obligatory on the States.
Whatever may be the argument regarding reality of International Law its nature isInternational Law, in the puritan form as the term connotes, is the sum of the rules
accepted by civilized States, either explicitly or tacitly, as determining their conduct towards
each other, and towards each others subjects. It is a body of rules regarded by the nations of
the world as binding on them in their relations with each other, in peace and war, and
comprises the rights and duties of sovereign States towards each other. In its broad sweep and
expanding concept and horizon, it governs the relationship of the people of the world,
unbounded by political and geographical constraints, and embraces mankind as a whole,
irrespective of colour, creed, relation and political hue. As the events of each year rolled into
history, it evolved and grew, assuming new shape and stature and is now a dynamic force
an embodiment of human efforts and human rights for peaceful co-existence.
Importance of International law
It is impossible for a state or country, howsoever big, developed and rich, to insulate
itself from the rest of the world and to pursue policies, social, political, economic or external
affairs, including military, that can be said to be solely in its own national self interest.
Indeed, perception of what is in ones national self-interest is beginning to change.
After all, if there is a bad harvest in the Soviet Union, for example, the chances are that price
of grain in the United States will go up The result is that a state must face reactions and
interaction of other States and the people of the World, which are often unsavoury,
unpalatable, bitter and even disastrous. Following the logic there is no place for the apartheid,
black or discriminatory laws, and financial aids with attached political strings. The very
concept of racial supremacy, balance of power and the undeveloped third world is inhibiting.
The nations of the world, rich and poor, must, therefore, learn to co-operate, scrupulously
avoiding all policies of confrontation. Poverty, privations, miseries and wants of the third
world must reduce, if not banish, by a new developing progressive social order, with full and
equal opportunity for all in the real spirit of co-operation under the aegis of the League of
States under International Warranty. The nature and scope of International Law is wide and
pervasive enough to bring within its orbit all activities of the States and its subjects.
International life is passing through the throes of a great re-birth, brought about by
an unprecedented expansion of knowledge and scientific research in all the known areas of
human intellectual activity. Man has pushed the frontiers of human experience beyond his
wildest dreams, almost literally into the limitless expanse of space itself and the stars.. in
the vortex of that change International Law is passing through several phases of far-reaching
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development with/ a pace accentuated by the fact of a large and growing family of nations
closed into a more intimate interdependence.
According to FriedmanInternational law is today actively and continuously concerned with such divergent
and vital matters as human rights and crimes against humanity, the International control of
nuclear energy, trade organization, labour conventions, transport control or health
regulations.
Definitions
The rules which determine the conduct of the general body of civilized States in their mutual
dealings.
Lawrence
(A well known English jurist)
Disharmony in mutual relations among independent sovereign States causes rupture in their
mutual dealings. International Law, therefore, regulates the conduct of States in their mutual
dealings, hostile as well as pacific.
Law of Nations or International Law is the name for the body of customary and treaty rules
which are considered legally binding by civilized States in their intercourse with each other.
Oppenheim
The Law of Nations, International Law, may be defined as the body of rules and principles of
action which are binding upon civilized States in their relations with one another.
Briesly
In the S.S. Lotus case (between France and Turkey) International Law was defined by the
Permanent court of International Justice (PCIJ) as meaning the principles which are in force
between all independent nations.
International Law may be may be defined as that body of law which is composed for its
greater part of the principles and rules of conduct which States feel themselves bound to
observe, and therefore, do commonly observe in their relations with each other, and which
includes also:
a) The rules of law relating to the functioning of International institutions or
organizations, their relations with each other, and their relations with States and
individuals; and
b) Certain rules of law relating to individuals and non-State entitles so far as the rights or
duties of such individuals and non-State entities are the concern of the International
community.

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The above definition by Starke, which is an adaptation of definition of International Law by

the American authority Professor Charles Cheney Hyde, makes a departure from the
traditional definition of International Law as a system composed solely of rules governing the
relations between States only.
Such traditional definition of the subject, with its restrictions to the conduct of States inter se,
will be found set out in the majority of the older standard works of International Law, but in
view of the developments during last six decades e.g. movement to protect human rights and
fundamental freedoms of individuals, the creation of new rules for the punishment of persons
committing the international crime of genocide or rare destructions etc.
Starke further states that these developments are principally:
1) The establishment of large number of permanent international institutions or
organizations, such as for example, the United Nations and the World Health
Organization, regarded as possessing international legal personality , and entering into
relations with each other and with States,
2) The present movement (sponsored by the United Nations and Council of Europe) to
protect human rights and fundamental freedoms of individuals, the creation of new
rules for the punishment of persons committing the inter nation crime of genocide or
rare destruction and the imposition of duties on individuals under the historic
judgment in 1946 of the International Military Tribunal of Nuremberg, by which
certain acts were declared to be international crimes, namely, crimes against peace,
crimes against humanity and conspiracy to commit crimes. Both categories of
developments have given rise to new rules of International Law, and may be expected
to influence the growth of new rules in the future. The definition given above is
intended to cover such rules under heads (a) and (b).

In the view of the above definitions, it may be concluded that International Law is a body of
rules and principles which control the conduct and relations of the numbers of the world
community. The contention that states above are subjects of International Law is not only
inconsistent with the changing character of International Law. International Law has now
become the Law of inter-dependence of States. While deciding Re Binary Jure Gentium case,
Lord Chancellor Sankey had remarked that International law is a living and expanding
code. In view of the changing characters and expanding scope of International Law,
International Institutions, non-state entities and individuals have also become subjects of
International Law.
Public International and Privete International Law
Private International Law is a body of principles for determining questions of
jurisdiction and questions as to the selection of the appropriate law, in civil cases which
present themselves for decision before the court of one State or country, but which involve a
foreign element, i.e. which affect foreign persons or foreign things, or translations that have

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been entered into wholly or partly in a foreign country, or with reference to some foreign
System of Law.
Function of private International Law:
1) Jurisdiction
2) Recognition and enforcement of foreign judgments
3) Choice of Law

The functions of the private International Law are, first to prescribe the conditions
under which the court is competent to entertain a suit; Secondly, to determine for each class
of cases the particular territorial system of Law by reference to which the rights of the parties
must be ascertained; and thirdly, to specify the circumstances in which:
(a) A foreign judgment can be recognized as decisive of the question in dispute; and
(b) The right vested in the creditor by a foreign judgment can be enforced by action.

According to Michael Akehurst, there appears to be little connection between Public

International Law and the various Municipal Systems of Private International Law. Private
International Law is different in each country. Consequently, there is no affinity between
private and public International Law. Private International Law is essentially part of
Municipal Law. Dicey calls it as conflict of laws since it deals with rules regulating cases in
which Municipal Laws of different states come into conflict. Such conflicts may arise in
connection with domicile, marriage, divorce, wills, validity of contract etc. It is also known
as Inter Municipal Law, International Comity etc.
Only in exceptional circumstance do rules of conflict of laws become rules of
International law proper, as for instance when they are incorporated in international treaties.
The permanent Court of International Justice observed in the Serbian Loans Case, that
the rules of Private International Law may be common to several States and may even be
established by International conventions or customs and in the latter case may possess the
character of true International Law governing the relations between states but apart from
these it has to be considered that these rules from part of Municipal Law.
Is International Law a True Law?
It can be said that world is in reality, regarded as an International community and it is
difficult to see how any community of nations can exist, save on the basis of law Ubi
Societas, ibi jus. A set of rules in the form of customs and treaties exist for regulating the
conduct of the members of that community. Members of the community recognized and
observed the rules and affirm that there is a set of rules for regulating there conduct. They are
practiced in the foreign offices, national courts and other governmental organs of states as
well as in International Organizations such as the United Nations. They accept that they are
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legally bound by the rules of International Law. Further, states do not claim that they are
above the law or that International Law doesnt bind them. The argument that International
Law is breached very often by the states and therefore general observance of it is not high
than that really is, doesnt appear to be convincing. Thousands of treaties have been
concluded by the states but the instances of their violations are very few. Rules regarding
immunities provided to diplomatic agents are generally observed. Other rules of International
Law including the Laws of warfare are also observed by them in most of the cases. No doubt,
rules in few cases are breached by them, but that may be taken as an exception to the general
observations.
The truth is that when a breach occurs, that acquires undue prominence, may be
because of political considerations, and also because that it immediately spread to over the
world. That gives a feeling that International Law not generally observed by the States, there
would have been total chaos in the world community. The fact is that the legally binding
force of International Law has been asserted by a number of states in various International
forums from time to time. Further, many states have incorporated International Law as part of
the law of the land, in their constitutions.
For example - US Constitution Art VI Para 2
It lays down that treaties are the supreme law of the land. In several decisions, the
highest courts of many states have repeatedly recognized the validity of International Law.
Further, the UN Charter is based on true legality of International Law. The Statute of
the International Court of Justice annexed to the Charter has clearly stated under Article 38
that it shall decide disputes in accordance with International Law. The use of the term
International Law in UN Charter, the statute of the International Court of Justice and in the
Constitution of other International organizations suggests that International Law is a law in
true sense.

International Law is a true law is evident even if Austins definition is accepted.

Austin regarded International Law as positive morality in the 19th century, when
International community lacked legislation, a court, sanctioning powers and
enforcement machinery. And in view of all these if we concluded that International
Law is not a true Law, perhaps he was not wrong. But substantial development has
taken place since the definition was given.
Presently, International legislation has come into existence as a result of multinational
treaties and conventions.
Practice of States suggests that they consider themselves bound by such rules. If rules
are violated by States sanctions may be applied against it not only by the aggrieved
State itself but collectively by the United Nations organizations as well.
Further, presently International community has a court- International court of Justice,
whose decisions are binding upon the parties to a case. If a party fails to perform its
obligations incumbent upon it under a judgment rendered by the court, Security
Council of the United Nations is empowered to take measures to enforce the decisions
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of the court if the aggrieved party seeks the help of the counsel. Existence of
International legislation, a court sanctioned authority and the enforcement machinery
are the developments of the present Century.
In the light of these developments perhaps one would not hesitate to call International
Law as a true law even if Austins definition of Law is accepted.
Defects of International Law
There is no doubt that International Law is a weak law in as much as the international
legislative machinery is not comparable in efficiency to State legislative machinery. In the
strict sense, International Law has no legislature and no executive. It is judiciary as
represented by the International Court of Justice has no universal compelling jurisdiction, its
decisions are not conclusive so as to finally settle legal disputes between States.
In the words of Pilt Cobbett- It is not only less explicit than State law, but it also
lacks the coercive force of State Law.
The United Nations Charter no doubt provides measures against the aggressors, which
include economic measures, suspension of membership and expulsion from members of the
UN. But under the Charter enforcement action can be taken only by the Security Council,
where the Big Five have the Veto right and consequently such action against a great power
seems to be totally excluded.
The weakness of International Law is also perceptible in another direction that it does
not authorize the Family of Nations or, for that matter, an international organization to
intervene in matters which are essentially within the domestic jurisdiction of a state and this
limits jurisdiction and influence.
A more serious limitation on the stage of International Law is that international
economic relations fall within the sphere of domestic jurisdiction.
Sanctions in International Law
There is great controversy among the jurists in regard to the sanctions in International
Law. There are two view points in this regard. One view is there are no sanctions at all
behind the International Law.
According to the second view point, even if it admitted that there are no sanctions
behind the International Law it can be, included in the category of law because sanction is not
an essential element of law. In between these two extreme views some authors hold the view
that it is wrong to say that International Law is without sanctions.
As a matter of fact, it would be wrong to say that there are no sanctions at all behind
international law, although it is true that as compared to municipal law the sanctions of
International Law are far less effective.
Starke has pointed out the following sanctions-

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1) Under chapter VII of the UN Charter, if there is threat to the international peace and
security or an aggression has taken place, the Security Council can take necessary
action to maintain or restore international peace and security. In this way to some
extent, this isolation of International Law can be checked and necessary action can be
taken for maintenance of peace and security.
2) The decisions of the International Court of Justice are binding upon the parties to the
dispute. Art 94 of the UN charter also provides that if a party to the dispute does not
follow the decision of the court, the other party may approach the Security Council
which can take necessary measures to ensure the implementation of the decision.
3) Under Art (4) of the Charter the members of the UN have undertaken that they shall
support the territorial integrity and political independence of each other and shall not
use force against each other. There is only one example in the Charter wherein the
members may use force. That is contained in Art 51 of the Charter which confers on
the members the right of individual and collective self-defence. But even this right
can be exercised only when an armed attack has taken place and is subject to overall
supervision and control of the Security Council.
Other factors such as adverse public opinion, expediency, possibility of imposition of
economic sanctions, fear of supervision or breaking of diplomatic relations, possibility of
referring the matter or dispute to the UN or or specialized agencies of the UN, fear of
suspension or expulsion from the membership of UN or other International organizations,
fear of punishment of war crimes, fear of payment of reparation etc. also operate as sanctions
behind International Law. Indeed the most important of these sanctions is public opinion
which is the ultimate sanction behind International Law, and for that matter behind any law.
Basis Of International Law
After having arrived at the conclusion that International law is law in the true sense of
the term, it is necessary to see as to what is the true basis of International Law. There are two
main theories in this connection. They are:
1) Theories as to Law of Nature, and
2) Positivism
Theories as to Law of Nature
The jurists, who adhere to this theory, are of the view that International Law is a part
of the Law of Nature. In their view, States follow International Law, because it is a part of the
Law Nature. In order to understand this theory, it is necessary to understand the meaning of
Law of Nature.
In the beginning Law of Nature was concerned with religion. It was regarded as the
divine law. The jurists of 16th and 17th centuries secularized the concept of Law of Nature.
Grotius expanded the secularized concept of the Law of Nature. According to him natural law
was the dictate of right reason. His followers applied the law nature as an ideal law which
was founded on the nature of man as a reasonable being. International law was considered
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binding because it was in fact, natural law applied in special circumstances. Valtel(18th
century)
also expressed the view that natural law was the basis of International law.
Criticism
It may, however, be noted that each follower of the nature gives it different meaning.
They use it as a metaphor. Different jurists give its different meaning such as, reason, justice,
utility, general interest of international community, etc. hence the meaning of law of nature is
much based on realities and actual practices of the States.
Influence: The Law of Nature has greatly, influenced the growth of International Law.
Traces of Natural law theories survive today, albeit in a much less dogmatic form. The ideal
nature of the Natural law has also greatly influenced the growth of International Law.
POSITIVISM

Positivism is based on law positivum, i.e. the law which is in fact as contrasted with
law which ought to be. According to the positivist law enacted by appropriate legislative
authority is binding. The positivist based their views on the actual practice of the State. In
their view, treaties and customs are the main sources of International Law.
As pointed out by Starke- International law can in logic be reduced to a system of
rules depending for their validity only on the fact that states have consented to them.
Briesly also pointed out that the doctrine of positivism teaches that International law
is the sum of rules by which states have consented to be bound and that nothing can be law to
which they have not consented to be bound.
According to the positivists, International law is a body of rules which has been
consented to by the states and accepted as binding by of voluntary restrictions or auto
limitation.
The Italian jurist Anzilotti, one of the chief exponent of the positivist school says that
the binding force of International Law is founded on a supreme principle or nor known as
pacta sunt servanda.
CRITICISM
The concept of the will of state presented by the positivists is purely metaphorical
positivist fail to explain the basis of customary International Law.
It is not always necessary to show that in regard to a particular rule of general
International Law, the state had given their consent.
Despite the above mentioned defects and criticism a great merit of this theory is that it
is based upon the actual practice of the state. It emphasizes that only those rules are rules of
International Law which has been adopted by the states and are observed in practice.
SOME OTHER THEORIES
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Theory of Consent
In the view of the supporters of this theory consent of the states is the basis of
International Law. The state observes rules of International Law because they have given
their consent for it. Positivists have given much support to this rule. The chief exponents of
this theory are Anzilotti, Triepel, Oppenheim etc.
Auto Limitation theory
According to this theory International Law is binding on the states because they have
restricted their powers through the process of Auto limitation and have agreed to abide by
International Law. This theory is also based on the view of positivists. This theory lays great
stress on independence and sovereignty of the States. Jellinck is the chief exponent of this
theory. The basis of this theory is that each state has a will which is completely independent
and free from external influences. But through the process of auto limitation, state can
restrict its power and there by limit its will.
In short, states are not bound to follow International Law because they are
independent and sovereign but the states can make themselves bound by rules of International
Law by restricting its powers.
PACTA SUNT SERVANDA
This means that the agreements entered into by states will be respected and followed
by them in good faith. This is a well established and recognized custom of International Law.
This principle has now been codified. (Art 26 of the Vienna convention on the Law of
Treaties, 1969).
Theory of Fundamental Rights
According to this theory, prior to the existence of State, man used to live in natural
state and even in that state he possessed some fundamental rights, such as, independence,
equality, right to self preservation, Like man state also possessed these fundamental rights
because so far there is, no world institution over and above the State. This theory is based on
the naturalistic view point.
Briesly criticized this theory that when a new state is admitted to the family of
nations, it brings with it which are inherent. As a matter of fact such rights are meaningless
unless there is a legal system which confers validity on them.
New trends regarding the basis of obligation in International Law.
Since the beginning of modern international law, consent has been the basis of
obligations under international law consent laid such of predominant rule that it was even
extended to explain the basis of customary rules of international law. The positivists tried to
establish that international customs were based on tacit agreements between states.

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The unanimity rule was a prevailing rule for every conference and treaty. Only a party
to treaty was bound by it. Though the unanimity still continued, the united nation charter
introduced majority rule in all of its organs.
In the curse of time, general assembly gained strength and become the most potent
organ of the UN. Though not originally envisaged, general assembly even started legislative
activities and passed the number of resolutions which were considered binding or having
legal implications. Thus the fort of unanimity rule seems to be crumbling against the
onslaught of majority rule in international organisations. This change has necessitated a
change in the theory of obligation in International Law.
A unique feature of new international law is that it is found not only in law creating
conferences such as those of GATT, IBRD, OECD, etc.
WBRD: The International Bank of Reconstruction and development.
OECD: The organization for Economic Co-operation and development.
One of the most important changes that has taken place is that many a decisions at
international conferences and General of the U.N. are being adopted by consensus. Though
the unanimity has not been completely defeated, the basis of obligation in International Las in
changing from sovereignty oriented consent to community oriented consensus.
As Fawcett has remarked we must wait on the future to see whether the requirement
of consent of States in International Law making can even become independent of the treaty
process and be satisfied by the vote in the General Assembly or an international conference
convened by it. In the law of sea conventions at least, the treaty form has already begun to
seem a grumbling appendix.
Ex. Resolution 1962(XVII) which declared Legal principles on outer space may
fairly claim to have furthered the progressive development of International Law called forth
by Article 13(1) because it has formulated general principles of law of international conduct
or authoritatively interpreted the United Nations Charter.
Resolution 2749 (XXV) which declared Legal principles the seated and ocean floor
and sub-soil thereof beyond the limits of National jurisdiction.
The International Court of Justice has also lent its support to the change (i.e., from
sovereignty oriented consent to community oriented consensus) in the basis of obligation in
International Law.
Case: Delimitation of the Maritime boundary in the Gulf of Maine Area (Canada v US
ICJ Reports 1984)
The court aptly observed that-Turning lastly to the proceedings of the Third United
Nations Conference on the Law of the Sea and the Final result of that Conference, the
chamber notes in the first place that the convention adopted at the end of the conference has
not yet come into force and that a number of States do not appear inclined to ratify it. This,
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however, in no way detracts from the consensus reached on large portions of the instrument,
and above all, cannot invalidate the observation that certain provisions of the convention,
concerning the continental shelf and the exclusive economic zone, which may, in fact, be
relevant to the present case, were adopted without any objections.
In the chambers opinion these provisions, even if in some respects they bear the mark
of the compromise surrounding their adoption, may nevertheless be regarded as consonant at
present with general international Law on the question.
Case: Libyan Arab Jamahiraya V Malta ICJ reports 1985) In this case also the International
Court of Justice took the same position.
It can be said that it is clear triumph of community oriented consensus over
sovereignty oriented consent. Actually, the theory of consent as the basis of obligation was
developed by European states for their own interests.
With the emergence of large number of states and the horizontal as well vertical
expansion of International Law, the traditional theory of consent fails to cope with the
interests and aspirations of international community as a whole and the changes that have
taken place. It is therefore, necessary to enunciate a dynamic a comprehensive theory of basis
of obligation which covers the interests and inspirations of international community as a
whole.

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Relationship between International Law and Municipal law

MONISM
The Monist view considers that there is only one intellectual category called Law.
Therefore the relationship of international law to municipal law cannot be that of two
disconnected systems, it must be a hierarchical one based on supposition one of the two
systems derives influence form the other. Some theorists have termed international law as the
creature of municipal law, but this viewpoint has not been extensively adopted. The
alternative theory stipulates that municipal law is the creature of international law and had
been more widely propagated through the writings of Kelsen.
The essence of the monist position is that the competence of the state isnt derived from its
own territorial power, because such competence is considered to exist outside the national
territory, for example in matters of jurisdictions over ships. International Law determines the
boundaries of state competence and must therefore be normatively superior to municipal law.
When a municipal court is confronted with the rules of International Law and municipal law,
which contradict each other, it should according to the theory, apply International Law and
not municipal law.
DUALISM
If the constitution of the state provides for the supremacy of municipal law, or doesnt
address itself to the question of priority of the two systems, the municipal judge is obliged to
apply municipal law, even if International Law is there by isolated, because this is his
mandate as an officer of the national legal system. This sound rule of judicial jurisdiction had
led the dualist theorists to contend that as a matter of philosophy, International law and
municipal law are different systems not connected with each other, deriving from different
origins and regulating different spheres of action; and from this contention they have drawn
the conclusion that International Law is never available in a municipal court as a body of
rules to be applied by it in determination of an issue, unless the constitution so provides. If it
does so provide, then, it is argued that the relevant rules cease to be rules of International
Law because they are transformed by an act of sovereign will into rules of municipal: in
other words, they derive now from the same source as rules of municipal law
THE HARMONISATION DOCTRINE
Both monism and dualism exaggerate the likelihood of rules of international law and of
municipal law contradicting each other and have been preoccupied with the problem of
reconciling the treaty obligations of a state with the rules of municipal law to be applied in
the constitutions. One can admit the possibility of the two systems occasionally producing
contradiction, and one can acknowledge the fact that treaties may in some legal systems have
no effect on the rights and duties of officials and citizens unless legislation so provides,
without conceding to any of the philosophical premises of either monism or dualism, or the
inferences there from. A middle course is proposed by the theory of harmonization according
[16]

to which it is the function of the judges and jurists, not to presuppose conflict between
International Law and municipal law, but to harmonize them where ever possible. It
embodies the notion that International Law rule are always available to a municipal court
because they are rules of law, just as municipal law rules are, although they derive from
different institutions and regulate different areas of activity.
The harmonization doctrine, then, views international law and municipal law, not as
derivatives, not as disconnected systems, but as elements of the same corpus, sharing the
same philosophical origin. It concedes to the dualist argument that a municipal constitution
might be required by a rule of constitutional law to give priority to a rule of municipal law
over one of international law, but argues that occasions for such conflicts will be rare if the
judge regards both rules as part of a system of law which he administers., and strives to
reconcile them as he might strive to reconcile competitive rules of municipal law. This
doctrine thus thrusts the emphasis on the positive side of the relationship between
International law and municipal law and avoids the tendency either to polarize the two or
arrange them vertically
SPECIFIC ADOPTION THEORY
According to the positivists theory international Law can be enforced in the field of state law
only after it has been specifically adopted by state law. This theory can also be subjected to
criticism because there are several principles of international law which are applied in the
field of municipal law without specific adoption. However, this view is generally followed by
states in respect of international treaties. While considering the International Convention on
Civil and Political Rights the Supreme Court of India held in Jolly George v The Bank of
Cochin that the positive commitment of the states policies ignites legislative action at home
but doesnt automatically make the covenant enforceable part of corpus juris of India.
It may be noted that there are many principles of International law (especially customary
rules) which are applied in the field of Municipal law without specific adoption.
TRANSFORMATION THEORY
According to the exponents of this theory the rules of international law to be applied in the
field of municipal law must undergo transformation. This theory is also based on the theory
of consent which has already been criticized earlier. There are several law making treaties
and principles of International Law which become applicable in the field of municipal law
without undergoing the process of transformation. The Headquarters Agreement between
United States of America and the United Nations is a glaring example of this.
DELEGATION THEORY
The critics of transformation theory have put forward a new theory called delegation theory.
According to this theory, the constitutional rules of international law permit each state to
determine as to how international treaties will become applicable in the field of state law. The
constitution of each state contains provision in this connection; therefore there is no
[17]

transformation that takes place. This theory is based on presumption and has been severely
criticized.
QUESTION OF PRIMACY
According to the dualist theory if there is a conflict between international law and municipal
law, municipal law will prevail. Monistic writers are divided on this issue. Some jurists such
as Kelsen are of the view that in accordance with the fact and circumstances one will have to
judge whether state law will prevail of whether international will prevail.
Criticisms:
(i)

(ii)
(iii)

The view that international law will derive validity from state constitution is
absurd because it is generally agreed that disappearance of state constitution will
not affect the validity of international law.
When a new state is admitted to the family of nations it becomes bound to obey the
rules of international law even against its will.
Most of the states have accepted the supremacy of international law in their
constitutions.

PRACTICE IN THE U.K.

In UK customary international law is automatically the part of law of land. If the international
custom undergoes a change the change will also be incorporated into the law. eg. Rv. Keyn
Treaty law- treaties are not automatically a part of municipal law. they have to be specifically
adopted in municipal law. In International Tin Council case ((1990) 2 AC 418) Lord Oliver
observed that: A treaty is not part of English Law unless and until it has been incorporated
into the law by legislation.
PRACTICE IN USA
USA regards customary international law the same as UK.
Treaty law- Article 6 of the American constitution declares that treaties are the supreme law
of the land. However a distinction is made between self enforcing treaties and non self
enforcing treaties. The latter become law of the land through specific adoption but the former
becomes the law of the land automatically. United States recognizes international law in its
constitution and stipulates that it has the same binding effect as any other domestic law. It has
been repeatedly referred to as the supreme law of the land in landmark cases.
Paquete Havana Case International Law is part or our law and must be ascertained and
administered by the courts of justice of appropriate jurisdiction, as often as questions of right
depending upon it are duly presented for their determination
PRACTICE IN INDIA
Before adoption of the Indian Constitution the position in India with respect to International
Law was the same as the position in UK. After the Advent of the Indian Constitution, Article
51 stated that
[18]

The State shall endeavour to- (a) promote international peace and security; (b) maintain just
and honorable relations between nations; (c) foster respect for international law and treaty
obligations in the dealings of organized peoples with one another; and (d) encourage
settlement of international disputes by arbitration.
As noted above the term International Law refers to customary international law. it is
significant to note that customary international law and treaty law have been treated on the
same footing in Article 51.
Before adoption of the constitution the customary international law was considered the law of
the land. This practice continued even after the adoption of Constitution by virtue of Article
372. Article 372 (1) provides that: Notwithstanding the repeal by the Constitution of
enactments referred to in Article 395 but subject to other provisions of this Constitution, all
the laws in force in the territory of India immediately before the commencement of this
Constitution, shall continue in force thereinbefore until altered or repealed or amended by a
competent Legislature or other competent authority.
Therefore in India customary rules of international law are part of municipal law to the extent
that they are not inconsistent with any legislative enactment or provisions of the Constitution.
With regard to the treaty rules India has a dualist view i.e. international law can become part
of municipal law if it has been specifically incorporated.
In the case of State of Madras v. GG Menon(A.I.R 1954 SC 517), the Singapore government
which was under British rule at that time had asked the Indian authorities for extradition of
the respondent as there were certain charges against them according to the law of Singapore.
The Singapore government made this request under the Fugitive Offenders Act (hereinafter
the Act). Rejecting the request the Supreme Court held: The whole basis for applicability
of Part II of the Act has gone; India is no longer a British possession, no order-in-council can
be made to the group it with other British possessions... they were not bound in absence of a
treaty to surrender their nationals who may have committed extraditable offences in the
territories of India.
In Visakha v. State of Rajasthan (A.I.R. 1997 SC 3011)it was observed that in the absence of
domestic law occupying the field to formulate effective measures to check the evil of sexual
harassment of working women at all work places, the content of International Conventions
and norms are significant for the purpose of interpretation of the guarantee of gender equality
and the right to work with human dignity in Articles 14,15, 19(1)(g) and 21 of the
Constitution and the safeguards of sexual harassment implicit therein. Any International
Convention not inconsistent with the fundamental rights and in harmony with its spirit must
be read into these provisions to enlarge the meaning and content thereof to promote the object
of constitutional guarantee.
It is also pertinent to discuss the case of Chairman, Railway Board & others v. Mrs.
Chandrima Das and others (AIR 2000 SC 988), the Supreme Court observed that the
international covenants and Declarations as adopted by the United Nations have to be
respected by all signatory states and the meaning given to the words in such declarations for
[19]

example CEDAW and covenant have to such as would help in the effective implementation
of those rights. Therefore the principles of UDHR have to be read into domestic
jurisprudence
In light of the above discussions one can argue that if two constructions to the provision of
domestic law are possible, the court should give harmonious construction so as to be in
accord with international treaty. Moreover if no domestic law is occupying a field any
international treaty can be read into the provisions of Constitution to make it applicable to the
land only of such provisions are sufficient or of wide amplitude to cover these treaty
provisions.
The abovementioned discussion can be summarized by the following:
a) Customary rules of international law are treated to be part of domestic law in a large
number of states and if they dont conflict with municipal statue there is no need of
their specific adoption
b) Only a few states, customary rules of international law, without specific adoption are
applied by municipal courts even in case of conflict with municipal statue or judgemade law.
c) As regards practice relating to the application of treaties within the municipal sphere
practice of state is not uniform.
d) In large number of states, municipal courts give priority to the application of
municipal law, irrespective of the applicability of rules of international law and the
questions of any breach of international is left to be settled at the diplomatic level

[20]

SOURCES OF INTERNATIONAL LAW

The material sources of International Law may be defined as the actual materials from which
on international lawyer determines the rule applicable to a given situation.
-

Starke

The term source refers to methods or procedure by which International Law is created.
-

Edward Collins

A distinction is made between the formal sources and material sources of law.
Fitzmaurice pointed out that these sources may also be described as, respectively as
direct and indirect, as proximate or immediate and remote or ultimate.
Material sources may also be described the origins of law while the material,
historical or indirect sources represent the stuff out of which the is made, that is to say, they
go to form the content of the law, the formal, legal and direct sources consist of the acts or
facts whereby this content is clothed with legal validity and obligatory force.
The essence of the destruction, therefore, is between the things which inspires the
content of law, and the thing which gives that the content its binding character as law.
The sources of International law must not be confused with the basis of international
Law; this,., is to be found in the common consent of the international community.
The sources of law, on the other hand, concern the particular rules which the rules
become identifiable as rules of law, are nevertheless necessarily related to the basis of the
Legal system as a whole.
The sources of International of International Law may be classified into five categories,
1)
2)
3)
4)
5)

International conventions
International Customs
General principles of law recognised by civilized nations
Decision of judicial or Arbitral Tribunals and juristic works
Decisions or Determinations of the organs of International Institutions

The above mentioned third source i.e. General Principles of Law recognised by civilised
Nation was first mentioned in Article 38 of the Statute of the Permanent Court of
International Justice. It was retained in Article 38 of the statute of International Court of
Justice which mentions the following sources of International Law1) International Conventions
2) International Customs
[21]

3) General Principles of law recognised by civilised nations

4) Judicial decisions and the teachings of most highly qualified publicist of the various
countries as subsidiary means for the determination of rules of law.

The above mentioned fifth source i.e., decisions or determination of the organs of
International institution does not find mention in Article 38 of the Statute of the Court but it
has now become a well recognized source.

1) Treaties: At present, international treaties are the most important source of

International Court of Justice lays down that the Court while deciding any dispute
shall apply international conventions, whether general or particular, establishing rules
expressly recognised by the contesting, in preference to other sources of International
Law.
Treaties are agreements between two or more States or between others subjects of
International Laws by which they create or intend to create a relationship between
themselves. Such agreements are sometimes referred to convention, protocol, accord, etc.
The terminology varies but the substance is the same. Treaties embody the express
consent of the parties to the rule or rules laid therein.
General and Particular Treaties
International Court of Justice, in accordance with Article 38 of the Statute applies
general as well as particular treaties when a dispute is brought before it. General
treaties are those wherein most of the States of the World community are parties and
which are open to accession by others. They in course of time, crystallise into rules of
Universal International Law, which are binding on all the member States of the world
community, be they parties to them or not. It is so because they reflect customary
International Law.
International Treaties may be of two types:
I.
II.

Law-making treaties
Treaty Contracts
I.

Law making treaties

The provisions of law making treaty are directly the source of International Law. The
development of law-making treaties received an impetus from the middle of 19th century.
The main reason for this was that in view of the changing circumstances, customs, which
were hitherto the most important source of International Law, were proving to be
inadequate. Consequently, states regarded it necessary and expedient to enter into treaties

[22]

and thereby established their relations in accordance with the changing terms and
circumstances.
Law-making treaties may again be divided into following two typesa) Treaties enunciating rules of Universal International Law , e.g. United Nations
Charter
b) International treaties which lay down general principles: These treaties are entered
into by a large number of countries.
e.g. Geneva Convention on the Law of the Sea(1958)
Vienna Convention on the Law of Treaties (1969)
II.

Treaty Contracts

Treaty Contracts are entered into by two or more States. The provisions of such treaties
are binding on the parties to the treaty. Such treaties also help the formation of International
Law through the operation of the principles governing the development of customary rules.
This may happen when a similar rule is incorporated in a number of treaty contracts. Beside
this a treaty enter into by a few States is subsequently accepted by many other States as they
enter into similar treaties.
2. International Customs (38 (1) (b) of Statute of ICJ)
It is the older and original source of law. It is as such second important source of
International Law to the extent to which it is evidence of a general practice accepted as law.
(Article 38(1) (b) of the Statute of International Court of Justice)
Even in the interpretation of treaties reference is frequently made to customs in cas of
doubt. International customs has developed by spontaneous practice and reflects a deeply felt
community of law.
Its rules are regarded as possessing density and stability and it is the repository of the
general or common law of the nations.
Custom in its legal sense involves something more than a habit or usage.
Custom and Usage
The terms customs and usage are often used interchangeably. According to
Starke, there is a clear technical distinction between the two. Usage represents the twilight
stage of custom. Custom begins where usage ends. Usage is an international habit of action
that has not yet received full legal attestation. Usages may be conflicting; custom must be
unified and self-consistent. A custom, in the intendment of law, in such a usage as hath
obtained the force of law (Viners abridgement).
Ingredients or Elements of an International Custom

[23]

(i)

Long-Duration

Long Duration is generally said to be an essential ingredient of a custom. In Municipal Law a

custom is required to be ancient and immemorial but his is not necessary for an International
Custom.
Article38 (1)(b) of the statute of ICJ directs the World Court to apply International custom,
as evidence of a general practice accepted as law. Emphasis is not given on a practice being
repeated for a long duration. What is more important is the practice of States accepting the
practice concerned as law. In the field of International Law, customs have emerged in a short
duration, for e.eg customs relating to sovereignty over air space and the continental shelf.
(ii) Uniformity and Consistency
A practice is required to be followed consistently be the States. In the words of the Permanent
Court of International Justice (Lotus Case) the practice should be constant and uniform.
While complete uniformity is not required, uniformity should be substantial. Occasional
violations of a principle do not detract that principle from acquiring the Legal character.
In Anglo Norwegian Fisheries Case (ICJ Reports, 1951) the Court refused to accept the
existence of a ten mile rule for bays because the practice was not substantially consistent. It
was also stated in this case that the degree of consistency required may vary according to the
subject matter of the rule in dispute.
In the Asylum Case (ICJ Reports, 1950) The ICJ held that the party which relies on a
custom... must prove that the rule invoked... is in accordance with the constant and uniform
usage practices by the States in question.
In the North Sea Continental Shelf Case (ICJ Reports 1969) ICJ remarked that State practice
had to be both extensively and virtually uniform in the sense of the provision involved.
(iii) Generality of Practice
Although universality of practice is not necessary, the practice should have been generally
observed or repeated by numerous States.
iv) Opinio Juris Et Necessitates
Customary practice, even when it is general and consistent, is not customary law unless,
opinion juris is present, i.e. to say, unless the practice is recognised as being required by
International Law. It is this sense of legal obligation, as distinguished from motives of
fairness, convenience, or morality that underlies customary law.
E.g.

Case North Sea Continental Shelf Case (ICJ Reporter 1969)

Military and Para Military activity against Nicaragua

[24]

Customary rules of International Law have developed as a result of

1)
2)
3)
4)

Diplomatic relation between States

Practice of International Organs
State Laws, decisions of State Court and state Military or administrative practices
Treaties between States

Application of International Customary International Law

There are two leading cases on this point
i.

ii.

Westrand Goldmining Company Ltd V R

In this case a test regarding the general recognition of custom was laid down. The court
ruled that for a valid International custom it is necessary that it should be proved by
satisfactory evidence that the custom is of such nature that it has received general consent
of the States and no civilized State shall oppose it.
If a State acts in a way prima facie incompatible with a recognised rule but depends its
conduct by appealing to exceptions or justifications claimed within the rule itself, then
whether or not the States conduct is in fact justifiable on that basis, the significance of
that attitude is to confirm rather than to weaken the rule. (Military and Paramilitary
Activities in and against Nicargua)
Right of Passage over Indian Territory Case ( Portugal V India)
In this case the ICJ pointed out that when in regard to any water or practice, two States
followed it repeatedly for a long time, it becomes a binding customary rule.

Kinds of Customary Rules

Customary rules of International Law may be either general or particular.
GENERAL - General customary rules are those which are binding generally on all the states
such as the basic rules of the laws of treaties of diplomatic intercourse or of the law of the
sea. However, customary rules of general International Law shall not apply to a State which
consistently refuse to recognise it, and has throughout the period of its creation, resisted its
application. But such opposition may not necessarily prevent the recognition of the rule in
question as a rule of general International Law. However, firm opposition of a number of
States especially if they constitute an appreciable section of the International community or
comprehend one or more of the great powers, may no doubt obstruct the formation of a
general customary rule.
PARTICULAR- Particular customary rules or local customary rules are those where a
practice has developed between the two States. Thus, such rules are binding only on two
States. Such customary rule is also sometimes called bilateral custom. In the case
concerning the Rights of Nationals of the United States of America in Morocco, the ICJ for
the first time used the term local custom.

[25]

Recognition of particular or Local custom was found in the right of passage over Indian
territory case (ICJ Reports 1960) It was observed by the court that where the court finds a
practice clearly established between two states which was accepted by the parties as
governing the relation between them, the court must attribute decisive effect to that practice
for the purpose of determining their specific rights and obligations. Such a particular practice
must prevail over any general rules.
3) GENERAL PRINCIPLES OF LAW RECOGNISED BY CIVILISED STATES
Art 38 Clause (I) sub-clause (c) of the statute of ICJ lists General Principles of Law
recognized by civilized States as the third source of International Law. This source helps
International Law to enact itself in accordance with the changing times and circumstances.
Principles of law which is recognized by domestic laws of a large number of States doesnt
automatically become a principle of International Law, it becomes a principle of
International Law only when it is recognized by the World Court.
In the view of Chagla J. Principles of International Law can be taken from Municipal
Law if they have received Universal acceptance and are not inconsistent with any rule of
International Law.
By General principles of Law we mean those rules or standards which we fine
repeated in much the same from in the developed syatems of law, either because they have a
common origin, as in Roman Law or because they express a necessary response to certain
basic needs of human association.
Res Judicata, Estoppel etc are e.g are general principles of law recognised by civilised
states. These general principles of law include procedural as well as substantive principles.
E.g. a) R v Keyn
In this case the court ruled that International Law is based on Justice, Equality and
conscience which has been accepted by long practice of States.
b) United States V Schooner
It was ruled in this case that International Law should be based on the general principles
of Law recognised by civilised States. The decision was relating to abolition of System of
slavery.
c) Chorzow Factory (Indemnity Case)
In this case PCIJ applied the principles of Res Judicata and also held that the one who
violates the rule is liable to make reparation.
d) Case concerning Temple of Preah Vihear
In this case the ICj recognised and applied the principle of estoppel. In Barcelona
Traction case also ICJ recognised the General principle or estoppel.
[26]

e) Frontier Dispute ( Burkina Faso V Mali)

The chamber of ICJ held that it can take help of the principle of equity, good faith
responsibility, and prescription. In the absence of an express provision every court has
right to determine the limits of its jurisdiction, principles of Natural Justice, or source of
the important principles that have been recognized by the general Principles of Law
recognized by civilized States.
4)

Decisions of Judicial or Arbitral Tribunals & juristic works

Article 59 of Statute of ICJ makes it clear that the decisions of the court will have no
binding except between the parties in respect of that particular case.
Earlier decisions of the court are not binding on the court itself. A court is free to
deviate from its earlier decisions. It can be said that it doesnt follow the doctrine of
precedent. In practice, it ordinarily follows it. The advisory opinion of the court is not binding
at all but it clarifies the rule of International Law in a particular point or matter.
Art 38 (1) (d) of the Statute of ICJ, subject to the provision of Article 59, judicial decisions
are subsidiary means for the determination of rules of law. Hence judicial decision, unlike
customs & treaties are not direct sources of law, they are subsidiary means for the
determination of rules of law. Hence Judicial decision, unlike customs & treaties are not
direct sources of law, they are subsidiary indirect sources of international Law. In the view of
some Jurists decision of International Arbitral tribunals cant be treated as source of
international Law. They believe in most case arbitrary act like mediators & diplomats rather
than as judges.
Juristic Works
Although Juristic works cant be treated as an independent source of International
law, it has been instrumental in development of international customs sometimes. Article 38
of ICJ statute states that works of highly qualified jurists are subsidiary means for the
determination of rules of International Law. The importance of the work of jurists has been
observed in Paquete Havana case.
Decisions or determination of the organs of International Institutions
Article 38 of ICJ doesnt mention decision or determinations of organs of
international organizations as a source of Law because at that time they hadnt assumed so
much importance as they do now.
After the establishment of U.N. most of the development of International law its
codification has taken place through the instrumentality of organization. General Assembly,
one of the principle organs of U.N. established ILC which not only surveys but prepares
drafts & makes recommendation to these aspects to General Assembly. The General
Assembly in turn adopts it recommendation & recommends the holding of International

[27]

conferences for adapting international conventions on different topics. The ICT is an organ of
U.N. as per Article 92 of the UN Charter.
In light of these developments the decisions & determination of organs are now
recognized as an important source of international Law.
The ICJ itself has recognized through certain cases this stand. For example in certain
expense of U.N the ICJ held that the expenses incurred by U.N. in Suez Cargo crisis could be
apportioned among the member States of U.N. by General Assembly.
Ex aequo et bono
Article 38 (2) of the ICJ statute qualifies Article 38(1) by providing that this provision
shall not prejudice the powers of the court to decide a case Ex aequo et bono, If parties are
agree thereto. This provision enables the courts to go outside the realm of law for reaching
its decision. It makes possible a decision based upon considerations of fair dealing a good
faith, which may be independent of or even contrary to the law.
An International Tribunal can decide a dispute ex aequo et bono & go outside the
realm of law only if such power has been conferred on it by mutual agreement between
parties.

[28]

The Subjects of International Law

The primary concern of International Law is with the rights, duties and interest of States, but
this does not mean that international Law does not concern itself with other entities or
persons.
As per the Starkes definition, International Law covers the following three sets of rules
1) Rules regulating the relations amongst States;
2) Rules regarding the structure, the function of international institutions, and their
relations with other International Institutions, States or individuals.
3) Rules relating to individuals and non-State entities.
This wide definition of international law is not accepted by some writers, who assert that
states are the only subjects with which international law is concerned. According to them, the
non-state entities or individuals do not come within the purview of International Law.
The centre of this controversy is the position of individuals in Int Law.
* According to Classical International Law, Slaves and pirates were always treated to be
within the purview of International Law.
* As a result of treaties, slaves have had certain rights and protection given to them by the
society of States. Under customary law also, individuals found some place.
Under the rules of Piracy Jure Gentium, individuals who committed piracy on the high seas
were treated as enemies of the mankind, and were liable to be punished by any State which
would arrest them. These are instances which show that sole concern of Int Law is not with
the State only.
* On the other hand some in narrow view say that the said instances do not prove that either
the slaves have the rights or the pirates are under any liability. But the States concerned have
duties or rights as the case may be. Therefore, they hold that the slaves or the pirates are not
the subjects of International Law but the objects of it.
Further, they told that in the last analysis the protection to the slaves and the liability of the
pirates are enforced by virtue of the municipal law. Therefore, individuals should not be
considered to be the subjects of International Law.
* It is also pointed out that no individual could be a party to a dispute before the International
Court Of Justice, even if there is a claim of an individual, such a claim can be enforced only
through the State.

Individual Subjects of International Law

According to Kelsen, the States have no personality of their own. They are just artificial
persons created by fiction of law. Therefore, even when it is said that rules of International
[29]

Law govern the conduct of States, the State being nothing but a collection of individuals, the
rules of International Law govern only the conduct of individuals.
* Westlake The duties and rights of States are only the duties and rights of person who
compose them As per Westlakes view there is no real distinction between State Law and
International Law. Both systems bind individuals, though International Law binds the
individuals mediately through the fiction of the State.
* But International Lawyers and Statesmen practically always work on the realistic basis that
they are concerned solely with the rights and duties of the State.
* The contention that the slaves and the pirates are the objects of International Law but not
subjects is just to indulge in verbal jugglery.
The cat that the States are under a duty to protect the slaves, must presuppose that the
rights exists somewhere. (Where do they exist, if not in slaves?)(Who are slave, if not
individuals?) It is true that where protection is denied, the slave have no International forum
through which their rights can be enforced.
* But that is a more a question of procedural rule of International Law, than of substantive
rules of International Law.
* Nuremberg and Tokyo trials of War criminals after the Second World War proved beyond
doubt that individuals can be held responsible under International Law. This view of the
Nuremberg and International tribunal has also been accepted by the International
Commission of the United Nations. The commission in its draft code on officers against the
peace and security of mankind did provide that persons could be guilty of crimes against the
peace and security of mankind.
The Genocide Convention- It was adopted by the UN General Assembly, clearly provided
that persons committing certain acts should be punished- Whether they are constitutionally
responsible rulers, public officials or private individualsFurther instance where International Law has conferred rights on individuals:
a) The Nuremberg judgment recognized that the victims of crime against humanity
committed even by their government are entitled to the protection of International
Criminal Law.
b) The Genocide Convention of 1948 attempts to protect the very right of human groups
to exists as groups.
c) The Preamble to the Charter of the United Nations Stated that one of the important
objects of the Charter I to reaffirm faith in the fundamental human rights, in the
dignity an the worth of the human person, etc. The same object is repeated in Art 1,
para 3 which asserts that the purpose of the organization is to attain respect for
Human Rights and for Fundamental Freedoms
d) In Europe, the movement for advancing Human Rights has gone further. The
European Convention for the protection of human rights and fundamental freedoms
[30]

established an European Commission on Human Rights, with administrative power to

investigate and report on violations of Human Rights. A European Court of Human
Rights has also been established in 1959.
** The court has already inquired into the violation of Human Rights lodged by an individual
against its own government.( Lawless V The Court of Ireland)
** The permanent Court of International Justice in Danzig Cos Case, that if a particular
treaty intended to confer rights on individuals, their rights should receive recognition at
International Law.
** The argument that individuals cannot be parties to dispute independently before
International tribunals and that they must always enforce through the States only cannot be a
ground for holding that individuals are not subjects of International Law. This disability
where it exists is a procedural rule. It does not refer to the substantive rule. Inability to
approach a court is not always the test if the non-existence of the rights and duties.
** Even when under municipal law, a minor may not be able to approach the Court
independently. It may be necessary hat he must approach a court through a guardian, but that
does not suggest that the minor is not a subject of municipal Law.
** This rule that individuals can not approach International Tribunals is also not without
exceptions, as for instance, the following cases1) After the First World War, under the Treaty of Versailles 1919, and the Polish
German Convention of 1922, individual claimants were allowed access to the various
mixed arbitral Tribunals.
2) Under the Treaty creating the European Coal and Steel Community 1951- Under the
Treaty establishing the European Economic Community (Common Market) 1957Under the Treaty establishing the European Atomic Energy Community, 1957,
individuals, private enterprises and corporate entities have been given certain rights of
direct appeal to the Court of Justice of the Communities against decisions of organs of
the Communities.
3) The United Nations officials have also the right to take appropriate proceedings
before the United Nations Administrative Tribunals, for alleged non-observance of
their contracts of employment or the terms of their appointment.
** Therefore it can be concluded that the modern tendency of Int Law is to recognize
increasingly, the rights and duties of the individuals.

International Personality
The possession of international personality means that an entity is a subject of International
Law, and is capable of possessing international rights and duties, and has the capacity to
maintain its rights by bringing international claims (Held in Reparations for Injuries suffered
in the Service of the United Nations, ICJ Rep 1949 P 174)

[31]

** A subject of international Law owes responsibility to the international community and

enjoys rights, the befits of which may be claimed, and which, if denied, may be enforced to
the extent recognized by the international legal system, via legal procedures, that is, the entity
will have procedural capacity.
The concept of International Legal personality is neither static nor uniform.
As international Law has developed and expanded in scope, so new entities have been
admitted as actors on the international scene. The personality enjoyed by such actors varies
considerably.
States were once considered the exclusive subjects of Int Law.
Oppenheim: Since the law of nations is based on the common consent of individual states,
and not of individual human beings, States solely and exclusively are the subjects of
International Law
Today, however, although they remain its primary subject, they are no longer the exclusive
subjects of the international legal system. Throughout the 20th century, the scope of
International legal personality has widened considerably as a consequence of the proliferation
of international organizations and the greater international awareness of human rights.
** However, whilst States possess full international legal personality as an inherent attribute
of their Statehood, all other entities possessing personality do so only to the extent that States
allow, that is, their personality of States may thus be characterized as original and that of
other entities as derivative.
In principle it is now well established that international organizations may indeed possess
objective international legal personality (Reparation for Injuries Case, ICJ Reports. 1949 P
174 Interpretation of the Agreement of 25 March 1951 between the WTO and Egypt Case
Reports 1950 P. 73, 89-90)
Whether that will be so in any particular instance will depend upon the particular
circumstances of that case. Whether an organization possesses personality in International
and Law will hinge upon its Constitutional Status, its actual powers and practice. Significant
factors in this context will include the capacity to enter into relations with States and other
organizations and conclude treaties with them, and the status it has been given under
municipal law. Such elements are known in international law as the indicia of personality.
The study of existing and possible subjects of International law demonstrates both the range
of interaction upon the international scene by entities of all types and the pressures upon
international law to come to terms with the contemporary structure of International relations.
The International Court clearly recognized the multiplicity of models of personality in
stressing that the subjects of law in any legal system are not necessarily identical in their
nature or in the extent of their rights. There are, however, two basic categories- objective and
qualified personality.
[32]

In the former case, the entity is subject to a wide range of international rights and duties and
it will be entitled to be accepted as an international person by any other international person
with which it is conducting relations. In other words, it will operate erga omnes.
The attainment of qualified personality, on the other hand, binding only the consenting
subject, may arise more exactly and it is clear that this respect theory ought to recognize
existing practice. Any legal person may accept that another entity possesses personality in
relation to itself and that determination will operate only in personam.
** Recognition acquiescence and estoppels are important principles in the context of
international personality, not only with regard to States and International organizations but
throughout the range of subjects. They will affect not only the creation of new subject but
also the definition of their nature and rights and duties.
** Personality may be acquired by a combination of treaty provisions and recognition or
acquiescence by other international persons.
E.g. The international Committee for the red cross a private non-governmental organization
subject to Swiss Law, was granted special functions under the 1949 Geneva Red Cross
Conventions and has been accepted as being able to enter into International agreements under
International Law with international persons(such as with the European Economic
Community under the World food programme)
Another possible method of acquiring international personality is by subjecting an agreement
between a recognized International person and a private party directly to the rules of
International Law.
International personality centers, not so much upon the capacity of the entity as such to
possess international rights and duties, as upon the actual attribution of rights and or duties on
the international plane as determined by a variety of factors ranging from claims made to
prescribed functions. Procedural capacity with regard to enforcement is important but not
essential, but in the case of non-individual entities the claimant will have to be in such a
position that it possesses in regard to its members, rights which it is entitled to ask them to
respect. This, noted the International Court, expressed the essential test where a group,
whether composed of States, of tribes or of individuals, is claimed to be a legal entity distinct
from its members.
Finally, in examining the notion of international legal personality and the acquisition of the
particular status of subject of international law, it cannot be overlooked that a wide variety of
non-subjects exist and contribute to the evolution of the international system. Participation
and personality are two different concepts, but not to appreciate the general role played in the
development of international relations and international law by individuals and entities of
various kinds that are not international legal subjects as such(or acting beyond the limits of
their particular legal capacity) would be an error.
Other entities: Of late, the scope of International Law has widened, where by the range of
subjects goes beyond that of States.
[33]

International Institutions: International Law, these days, lays down various rules containing
constitutional provisions of several International Institutions like the United Nations, the
International Labour organization, world Health organization etc

[34]

STATE
As Lauterpacht observes: the orthodox positivist doctrine has been explicit in the affirmation
that only states are subjects of international law. However it is less clear that it practice this
position was maintained. The Holy See, insurgents and belligerents, international
organizations, chartered companies and various territorial entities such as the League of cities
were all at one tine or another treated as possessing the capacity to become international
persons.

Creation of Statehood
The relationship in this area between factual and legal criteria is a crucial shifting one.
Whether the birth of a new State is primarily a question of fact or law and how the interaction
between the criteria of effectiveness and other relevant legal principles may be reconciled are
questions of considerable complexity and significance. Since terrae nullius are no longer
apparent, the creation of new States in the future, once the decolonization process is at an
end, can only be accomplished as a result of the diminution or disappearance of existing
States and the need for careful regulation thus arises. Recent events such as the break-up of
Soviet Union, the Socialist Federal Republic of Yugoslavia and Czechoslovakia underline
this.
Art 1 of the Montevideo Convention on Rights and duties of States 1933 lays down the most
widely accepted formulation of the criteria of Statehood in International Law. It notes that the
State as an international person should possess the following qualifications:
(a)
(b)
(c)
(d)

A permanent population
A defined territory
Government
Capacity to enter into relations with other States

** The Arbitration Commission of the European Conference on Yugoslavia, in opinion No 1

declared that the State is commonly defined as a community which consists of a territory
and a population subject to an organized political authority and that such a State is
characterized by sovereignty
A State proper is in existence when a people are settled in a territory under its own
sovereign government.
-

Oppenheim

It was also noted that the form of internal political organization and constitutional provisions
constituted mere facts, although it was necessary to take them into account in order to
determine the governments sway over the population and the territory.

[35]

Other factors may be relevant, including self-determination and recognition, while the
relative right given to such criteria in particular situations may very well vary.

Self Determination: The traditional exposition of the criterion concentrated upon the
stability and effectiveness needed for this factor to be satisfied, while the representative and
democratic nature of the government has also
been put forward as a requirement. The
evolution of self-determination has affected the Standard necessity as far as the actual
exercise of authority is concerned. So it appears that a lower level of effectiveness, at least in
decolonization situations, has been accepted. In addition to modifying the traditional
principle with regard to the effectiveness of government in certain circumstances, the
principle of self determination may also be relevant as an additional criterion of Statehood.
In the case of an entity seeking to become a State and accepted by the international
community as being entitled to exercise the right of self-determination, it may well be
necessary to demonstrate that the internal requirements of the principle have not been
offended. It would appear to be a sound proposition that systematic and institutionalized
discrimination might invalidate a claim to Statehood.
In particular, one may point to the practice of the international community concerning the
successor States to the former Yugoslavia. The European community adopted guidelines on
Recognition of new States in Eastern Europe and the Soviet Union on 16 Dec 1991, which
constituted a common position on the process of recognition of such new States and referred
specifically to the principle of self-determination.
** The guidelines underlined the need to respect the rule of law, democracy and human rights
and mentioned specifically to the requirement for guarantees for the rights of minorities.
Although these guidelines deal with the issue of recognition and not as such the criteria for
Statehood, the two are interlinked and conditions required for recognition may in the
circumstances, especially where expressed in general and not specific term, often in practice
be interpreted as additions to the criteria for Statehood.
Recognition: Recognition is a method of accepting certain factual situations and endowing
them with legal significance, but this relationship is a complicated one. In the context of
creation of Statehood, recognition may be viewed as constitutive or declaratory. The former
theory maintains that it is only through recognition that a State comes into being under
international Law, where as the latter approach maintains that once the factual criteria of
Statehood as an international person, recognition becoming merely a political and not a legal
act in this context.
There is also an integral relationship between recognition and the criteria for statehood in the
sense that the more overwhelming the scale of international recognition is in any given
situation, the less may be demanded in terms of the objective demonstrations of adherence to
the criteria.
Conversely, the more sparse international recognition is the more attention will be focused
upon proof of actual adherence to the criteria concerned.
[36]

RECOGNITION
The growth of international law is best understood as an expanding process from a nucleus
of entities which have accepted each others negative sovereignty and on the basis of consent,
are prepared to maintain and possibly expand the scope of their legal relations, like most
hubs, the society of sovereign states is based on the principle of co-option. In experiencing
this prerogative, the existing subjects of international law employ the device of recognition
-

Schwargenberger

In recognizing a state as a member of international community, the existing States declare

that in their opinion the new State fulfills the conditions of State hood as required by the
international law.
-

Oppenheim

through recognition the members of international community formally acknowledge that

the new State has acquired international personality
-

Fenwick

the free act by which one or more states acknowledge the existence of a definite territory
of a human society politically organized independent of any other existing States and capable
of observing obligations of international law by which they manifest, through their intention
to consider it a member of international community
-

The institute of International

Law

Kelson said that a community to be recognized as an international person must fulfill the
following conditions
1) The community must be politically organized;
2) It should have control over a definite territory;
3) This definite control should tend towards permanence;
4) The community thus constituted must be independent;
Thus the conditions of State hood are
a) People
b) A territory
c) A government
d) Sovereignty

[37]

We may say that through recognition, the recognizing State acknowledges that the
recognized State possesses the essential conditions of Statehood. However, international law
does not provide as to how these essential conditions are to be determined. It is because of
this reason that very often recognition is said to be a political diplomatic function.

Theories of Recognition
There are two main theories of recognition
1) Constitutive Theory
2) Declaratory or Evidentiary Theory
Constitutive Theory
According to this theory, recognition clothes the recognized State with rights and duties
under international law. Hegel, Anzilloti, Oppenheim etc are chief exponents of constitutive
theory. As Oppenheim said that a State is, and becomes, an international person, through
recognition only and exclusively.
Statehood and participation in the international legal order are attached by political groups
only in so far as they are recognized by established State. In the view of Lauterpacht, there is
a legal duty on the part of the State to recognize any community that has in fact acquired the
characteristics of Statehood. Jurists have been to be correct as it will create serious problems.
If a State is not recognized it can have neither duty nor rights. Further if some states
recognize and some not by accepting this proposition a great difficulty will arise. For
example, China was not recognized by America and other Western countries for a number of
years although China possessed all the essential attributes of State.
Declaratory Theory
According to this theory, Statehood or the authority of the new government exists as
such prior to and independently of recognition. Recognition is merely declaratory of an
existing fact that a particular State or government possesses the essential attributes as
required under international law. The chief exponents of this theory are Hall, Wagner Briesly,
Pitt Cobbet and fisher.
Briesly said that the granting of recognition to a new State is not a Constitutive but
a declaratory act. A State may exist without being recognized and if it exists in fact, then
whether or not, it has been formally recognized by other States, it has a right to be treated by
then as a State.
This theory has also been subject to criticism as recognition is only a declaratory of an
existing fact is not completely correct. In fact when a State is recognized, there ensure some
legal effects of recognized which may be said to be of constitutive nature.
On the basis of the above discussion, it may be concluded that recognition is
declaratory as well as constitutive act.
[38]

Modes of Recognition
Recognition may be of two kinds:
1) De-facto
2) De-Jure

De Facto Recognition
The practice of States shows that in first stage generally gives de facto recognition. Later on,
when they are satisfied that he recognised States is capable of fulfilling International
obligations, they confer de-jure recognition on it. It can be said that de-facto recognition of
State is a step towards de jure recognition.
The reason for granting de facto recognition is that it is doubted that the State recognised may
be stable or it may be able and willing to fulfil its obligations under International Law.
In the view of Lauterpacht, de-facto recognition shows that the recognising States wants to
establish its relations with the recognised State without establishing diplomatic relations. As
remarked by Prof Oppenheim de facto recognition is, in a sense, provisional liable to be
withdrawn if the absent requirement of recognition fails to materialise.

De Jure Recognition
De jure recognition is granted when in the opinion of recognising states, the recognised State
or its government possesses all the essential requirements of Statehood, and it is capable of
being member of International Community.
Recognition de jure results from an expressed declaration or from a positive act indicating
clearly the intention to grant this recognition such as the establishment of diplomatic
relations.
De Jure recognition is final, and once given cannot be withdrawn.

Recognition of Insurgency
Insurgency denotes the state of political revolt in a State. Insurgency presupposes a
civil war.
Insurgency is used to denote the condition of physical revolt in a country where the
rebels have not attained the character of belligerence. Thus Insurrection is a war of citizens
against the State for the purpose of obtaining power in the whole or part. It always implies a
sustained armed struggle by a group of citizenry against an established order.
In fact, insurgency is an intermediate stage between tranquillity and belligerency. If
the state recognises the insurgents of another state, it would imply that it would not treat such

[39]

insurgents as violators of law. It also implies that such a State wishes to establish relations
with such insurgents on a temporary basis.
It is not against International Law to recognize insurgents as a de facto government
over the territory under their control (Lauterpacht). It is merely an acknowledgement of fact
situation for practical purpose.
Essential Conditions for recognising insurgents
1. Control over a considerable part of the territory.
2. Considerable support to the insurgents from the majority of the people living in the
territory.
3. Insurgents should have the capacity and will to carry out the international obligations.
Effects of recognition of insurgency
The recognition of insurgency is less important than the recognition of belligerents.
1) They are not treated as pirates.
2) The rebels of civil strife are treated as hostes generis humani (the public enemy) until
they are recognised as insurgents.
3) The international rules of war become applicable to them.

Recognition of Belligerency
When the insurgents are well organised, conduct hostilities according to laws of war
and have a determinate territory under their control they may be recognised as belligerents
whether or not the parent State has already recognised that status. Recognition of belligerency
is the question of policy and not of law. Consequently some States find it convenient to
recognise belligerency and do not.
Recognition of belligerency is the acknowledgement of a juridical fact that there
exists a State of hostilities between two factions contending for power of authority.

Effects
1. From the date on which the recognition of belligerency is accorded international law
rules governing the conduct of hostilities apply.
2. The consent is internationalised and the belligerents get some rights under
International Law.

[40]

3. The relations between the recognised belligerent authorities established government

and the recognising States are governed by International Law rather than municipal
law.

Implied Recognition
Sometimes recognition may be implied. The recognition of a State may be implied by
the attitude and other circumstances of a State. Implied recognition may be inferred when
circumstances indicate that the State concerned has been accepted as a member of the
International community.
In practice such an implied recognition may be only de-facto. But in the following
circumstances such recognition may also be deemed to de-jure recognition:
1. When the recognised State and the recognising State enter into bilateral treaty and
formally sign it.
2. The beginning of formal diplomatic relations, exchange of consuls, etc.
The following acts also indicate implied recognition:
i)

Participation of the State concerned is a multilateral treaty;

ii)

Participation in International Conference; and

iii)

The start of negotiations between the recognizing and the recognized States.

Estrada Doctrine
This was propounded by Estrada, the foreign minister of Mexico. In this doctrine he
declared that regarding the establishment of diplomatic relations with other States, Mexico
government considers itself free to determine it in accordance with the facts and
circumstances of each case. In other words if the Mexico government considers that after the
change of government in any State through revolution, a revolutionary government
commands the support of the people, it may establish diplomatic relations with it. Many have
criticized this doctrine as it regards the rules of International Law. It encourages the
individual appraisal in this field. However, in practice it takes a new way so far as the
recognition of new States are concerned.

Stimson Doctrine
This was propounded by Mr Stimson< secretary of State of The United State Of
America. This is also called the doctrine of non-recognition. According to this doctrine if a
state grants, recognition to another State in violation of another treaty, such recognition
would not be valid. By International Treaty, the Stimson doctrine mainly meant the pact of
Paris, 1928 or Kellog Briand Pact through which the State parties renounced war as an
instrument of their National Policy. The League Assembly also passed a resolution that any
State that violated the pact of Paris, 1928, would not be granted recognition. Stimson
[41]

propounded this doctrine after Japan attacked Manchuria in 1931. In this doctrine the
American secretary of States declared that any contract or treaty which was contrary to the
Paris pact, 1928 would not be acceptable (China, Japan and America were all parties to the
Paris pact). Although this doctrine has much to recommend itself it is not always by the
States so far as the grant of recognition to new State is concerned. States refuse to accept any
such obligation and treat recognition as a political diplomatic function.

Tobar Doctrine
This doctrine was propounded by Tobar, the foreign minister of Ecuador. Actually the five
Central American Republic concluded treaties in 1907 and 1923 which embodies the
doctrine of legitimacy. Through which they bound themselves not to grant recognition to
any government coming into existence by revolutionary means so long as the freely elected
representatives of the people..... have not constitutionally recognised the countries, i.e. until
such government has been recognised by its own people in its constitutional manner.

Consequences of Non- Recognition

Although recognition is essentially a political act, there are certain political as well as legal
consequences of non-recognition as a State.
Recognition can bring, inter alia, an opportunity to establish diplomatic and consular relation
with recognising States; an increase in stability at home and prestige abroad; access to foreign
aid, loan and trade, and in case if new government often established State, access to State
funds on deposit in the banks of recognising States. A decision to withhold recognition can be
a powerful or an important political weapon depending upon the relative power of the nonrecognising and unrecognised entities.
Following are the some of the consequences of non- recognition:
1) An unrecognised State cannot sue in the courts of non-recognising States. (US v
PINK)
2) A State which has not been recognised is not entitled to enter into diplomatic relations
with the non-recognizing States.
3) Diplomatic representatives do not have immunities from legal processes.
4) Such States are not entitled to get their property situated in foreign States.

Extinction of Statehood
Extinction of Statehood may take place as a consequence of merger, absorption or
historically, annexation. It may also occur as a result of the dismemberment of an existing
state. In general, caution needs to be exercised before the dissolution of a State is
internationally accepted. While the disappearance, like the existence, of a State is a matter of
fact. While it is not unusual for governments to disappear, it is rather rarer for States to
become extinct. This will not happen in international law as a result of the illegal use of
[42]

force, as the Kuwait crisis of August 1990and the consequent UN response clearly
demonstrates, nor as a consequence of internal upheavals within a State, but it may occur by
consent.
E.g.
1) Republic of Yemen (North & South Yemen United)
2) Two German States be unified as the Federal Republic of Germany (East Germany &
West Germany Unified 3 Oct 1990)
3) The dissolution of Czechoslovakia (1st June 93) and the establishment of the two new
States of the Czech Republic and Slovakia constitutes a further example of a relatively
amicable dismemberment, or disappearance of a State.
4) Union of Soviet Socialist Republic ceased to exist and Russia has become member of UN
and the International Organizations.

[43]

LAW OF TREATIES
A treaty is an agreement or contract entered into between two or more states whereby they
undertake to carry out obligations imposed on each of them.
International treaties are agreements of a contractual character between states and
organization of states creating legal rights and obligations between the parties.
-

Oppenheim

Kinds of Treaties
According to Oppenheim treaties are of two kinds:
1) Law Making treaties which are concluded for the purpose of laying down general
rules of conduct among a considerable number of States.
2) Treaties concluded for any other purpose- Treaties classified according to Subject
matter are treaties of alliance, treaties of guarantee, treaties of commerce, treaties of
neutralizing a State etc.
Valtas classifies treaties as equal and unequal and real and personal. Real treaties relate
solely to the subject matter of the convention independently of the persons of the contracting
parties. They continue to bind the State irrespective of changes in the persons of its rulers.
E.g. Boundary treaties. Personal treaties relate to the person of the contracting parties and
bind only the personal ruler, dynasty or government that made them.
Treaties may be distinguished as unilateral and bilateral according as they bind one
party or both the parties. These are also multilateral treaties which bind more than two States
as parties. E.g. political or non-political. These are also law-making treaties e.g. the pact of
Paris, the Covenant on the League of Nations and the Charter of United Nations.
Treaties classified according to the objects are political, commercial, social and
treaties of guarantee, neutrality, cession or extradition. There are also transitory and
permanent treaties. The perfect classification can be found is that given by Nc Niais
(Britains yearbook of International Law 1930)

Power to Enter Into Treaties

A sovereign State which has not parted with any portion of its sovereignty either by
confederation or treaty of alliance possesses full treaty making power. The power of semi
sovereign State to enter into treaties with other States is limited and depends upon the nature
of freedom that hey enjoy.
Case: S.S. Wimbledon It was observed by the permanent court of International Justice that
the capacity of entering into International engagement is an attribute of State sovereignty.

Treaty Making Power of UN

[44]

There are a number of stipulations contained in the Charter of the United Nations
which lead to conclusion that the organization can conclude treaties- e.g. case Reparation for
injuries suffered in the service of the United Nations (Advisory Opinion) (ICJ)
Essentials: Since a treaty is an agreement, there should be an accord of will between the
contracting parties manifested by signs, spoken or written words. There must be mutual
consent of the parties. Mere proposal do not bind the parties.
*Duress does not invalidate consent as it does in private law of Contract. Capacity is
necessary and the object must be legal.

Vienna Convention on the Law of Treaties, 1969

Constitutional Requirements: In the case of sovereign States the power of entering
into treaties rests with the heads of State or their representatives, in case they violate the
constitutional limitation imposed by the municipal laws of their respective States, the treaties
are not binding on them. In the States like United Kingdom the making of a treaty is an
executive act while the performance of its obligations, if the alteration of the existing
domestic law, requires legislative action.

Conclusion of Treaties
There is no specific form for the conclusion of Treaties. The enormous importance of
the issues involved in such agreements however necessitates the compliance of formal
requirements and reducing the agreements into a document.
The various steps towards the conclusion of a treaty are:
1) Accrediting of representatives: Authorizations would be given to a representative to
participate, negotiate in the deliberations on behalf of a State.
2) Negotiation: The two plenipotentiaries exchange their full powers or a copy thereof
before entering upon their task. They then proceed with negotiations.
3) Signature: After finalization of draft of the treaty, signature to be affixed at a formal
closing session. A treaty generally comes into force on signature by plenipotentiaries
of the contracting states unless the States desire to subject it to ratification.
4) Ratification: It is an act of adopting an international treaty so long as a treaty is not
ratified by proper authority under the constitution of the country; it lacks the formal
validity or sanction. Though if subsequently confirmed it effects from the date of
signature.
The reasons for refusal to ratify the treaty must not, however, be arbitrary or
capricious.
When ratification may be withheld?
(i)
(ii)

Plenipotentiary exceeds his power;

If any deceit as to matters of fact has been practiced upon him;
[45]

(iii)
(iv)

Performance of treaty obligations impossible;

If there has not been consensus ad idem.

As regards the form of ratification, there is no express rule. Ratification is often made
with reservation; such reservations require the formal consent of the other State
parties.
The same general principles which relate to bilateral treaties are not quite applicable
to the multilateral treaties.
5) Accession and Adhesion: A third State can become a party to an already existing
treaty by means of accession. This may be brought by formal entrance of the third
state with the consent of the original contracting parties.
Adhesion denotes the entrance of a third Sate into an existing treaty with regard to
certain regulations or certain principles only embodied in the treaty.
6) Coming into Force of Treaties: Multilateral treaties come into operation on the deposit
of a prescribed number of ratifications and accessions.
7) Registration: After the treaty has been so ratified, it has to be registered at the
headquarters of the international organization (UN Secretariat).
8) Incorporation of Treaty into State Law: - The final stage of the treaty is its actual
incorporation in the municipal law of the contracting state when it is required.

Doctrines Relating Treaties

Pacta Sunt Servanda: It is a doctrine borrowed from the Roman law and has been adopted as
a principle governing treaties in International Law. According to this doctrine the parties to a
treaty are bound to observe its terms in good faith. It is just that states taking over certain
obligations must perform them.
No State party to an international treaty can limit the obligations as
their municipal law is not permitting.

Amendment or Modification (Art 39 and 40)

Amendment or modification may be made according to Articles 39 & 40 of the
Vienna Convention on Law of Treaties. Bilateral and Multilateral Conventions respectively.
Termination: On certain grounds treaties may be terminated, e.g. expiry of the specified
period in the treaty itself, material breach by one State, by mutual consent, if obligations are
incompatible with the objectives of the UN Charter, when war breaks out between
contracting parties, force majeure and impossibility of performance etc.(Art 61)
[46]

Doctrine of rebus sic stantibus

It connotes that when the existence or the development of a State stands in unavoidable
conflict with its treaty obligations, the latter must give way for self-preservation and
development in accordance with the growth and the vital requirements of the nation. It is a
tacit condition, said to attach to all treaties that they shall cease to be obligatory as soon as the
state of facts and condition upon which they were founded has substantially changed.
Thus every treaty implies a condition that the contracting party should have the right
to demand release from the obligations imposed by the treaty should, due to change of
circumstances, the continued existence of the State as an international person be threatened.
As per Art 103 of the UN Charter,
In the event of a conflict between the obligations of the members of the United Nations
under the present Charter and their obligations under any other international agreement, their
obligations under the present Charter shall prevail.
Part V of the Vienna Convention on the Law of Treaties (1969) deals specifically with the
invalidity termination and suspension off the operation of Treaties.

Doctrine of Jus Cogens

A treaty may be declared void if it conflicts with a peremptory norm(jus cogens) of
general International Law. Art 53 of the convention lays down that a treaty is void if, at the
time of its conclusion, it conflicts with a peremptory norm of general international law, which
is a norm community of States as a whole as a norm accepted and recognized by the
international community of States as a whole as a norm accepted and recognized by the
international community o States as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international law having the
same character. On an objection raised to claim of invalidity of the treaty by any other party,
the parties will have to seek a solution by negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful
means of their choice as enshrined in Art 33 of the UN Charter.

[47]

STATE JURISDICTION
Jurisdiction is an attribute of State sovereignty. A states jurisdiction refers to the competence
of the State to govern persons and property by its municipal law (criminal and civil). This
competence embraces jurisdiction to prescribe, to adjudicate and enforce the law.
Jurisdiction is primarily exercised on territorial basis but there are exceptions for example
there will be persons within the territory who will be immune from jurisdiction, whilst there
will be occasions when a State, may exercise jurisdiction outside territory.
The exercise or the non-exercise jurisdiction is governed by a States municipal Law.

In International Law, Jurisdiction relating to the allocation of competence between states

is an ill-defined concept.
International Law confines itself to criminal rather than civil jurisdiction.
The civil law is the concern of private International Law, or more correctly, the conflict
of laws, though in the least resort civil jurisdiction may be backed by the sanctions of the
criminal law.
International law does not prescribe rules requiring the exercise of jurisdiction.
International law concerns itself principally with the propriety of the exercises of Sate
jurisdiction. The exercise of jurisdiction remains, for the most part, a discretionary matter
for the state concerned.
No State can claim precedence simply on the principle on which it exercises jurisdiction.
A State may legitimately possess jurisdiction concurrently with another State, the State
which will exercise jurisdiction will be decided by other facts, for example, physical
presence of the alleged offender.
International law today demands is the existence of a tangible link between the alleged
offender and the State exercising jurisdiction.

Basis on which jurisdiction may be exercised (criminal)

a)
b)
c)
d)

Territorial principle
Nationality principle
Protective or security principle
Passive personality principle

a) Territorial Principle
This is the favoured basis for the exercise of State jurisdiction. Events occurring within a
States territorial boundaries and persons within that territory, albeit their presence temporary,
are as a rule subject to the application of local law.
i) Subjective territorial Principle: This allows the exercise of jurisdiction in the State
where a crime is commenced. ( A fires from State X to B of State Y)

[48]

ii) Objective Territorial Principle: It gives jurisdiction to the State in which the crime has
been completed.
There is no rule of International Law, which gives a State, where a crime is completed,
exclusive jurisdiction. The state in which the crime was initiated is, in other words, not
restricted from exercising jurisdiction.
b) Nationality Principle
Jurisdiction exercised on this principle relates to the nationality of the offender. A State may
exercise jurisdiction over any of its nationals wherever they may be and in respect of offences
committed abroad. This principle although universally acknowledged as a basis of
jurisdiction, it is utilised more extensively by civil law countries than those with the common
law system. The latter restrict jurisdiction exercised on the nationality principle to more
serious crimes such as offences committed under the official Secrets Act 1989 (UK) murder,
manslaughter and bigamy, Treason, drug trafficking and crimes by or against the armed
forces (USA). The fact that jurisdiction may be claimed on the nationality principle does not
preclude the State in which the offence was committed from exercising on the territorial
principle.
c) Protective Principle
This allows a State to punish acts prejudicial to its security, even when they are committed by
foreigners abroad for example, plots to overthrow its government, espionage, forging its
currency and plots to break its immigration regulations. Host countries use this principle to
some extent, and is therefore seems to be valid, although there is a danger that some States
might try to interpret their security too broadly.
d) Universality Principle
One interpretation of this principle is that it gives jurisdiction to a State (any and every) over
all crimes perpetrated by foreigners abroad. Such an interpretation is not regarded as being in
conformity with International Law. Where the principle may be acceptably invoked is in
respect of international crimes, that is, offences which are prohibited by International Law
and the international community as a whole.
Under customary international law the crime of piracy has long been recognised as one over
which all states could exercise jurisdiction provided that the alleged offender was
apprehended either on the high seas or within the territory of the State exercising jurisdiction
provided that the alleged offender was apprehended either on the high seas or within the
territory of the state exercising jurisdiction. The arresting States may also legitimately punish
pirates.
War crimes and genocide are now widely accepted as being susceptible to universal
jurisdiction. International crimes proper are susceptible to Universal jurisdiction under
customary International law regardless of whether a State is party to any international
agreement.
[49]

There is tendency in some States to claim Universal jurisdiction over crimes against human
rights. In principle, under International Law Universal jurisdiction is not limited to criminal
law.
States can provide other remedies for victims of crimes against universally accepted interests.
Passive Personality Principle
The link between the State exercising jurisdiction and the offence is the nationality of the
victim. A State may exercise jurisdiction over an alien in respect of an act which has taken
place out of it boundaries, but against one of its nationals. Civilian Legal Systems recognise it
more readily than common law systems. The passive personality principle has been
recognised in article 4(b) of the 1963 Tokyo Convention on offences aboard Aircraft and
Article 5(1)(c) of the 1984 Convention against Torture and other cruel, Inhuman or degrading
Treatment or punishment and apparently the current position of the United States is that
although the principle is not generally accepted for ordinary torts or crimes, it is increasingly
accepted as applied to terrorist and other organised attacks on a States nationals by reason of
their nationality, or to assassination of a States diplomatic representatives or other officials.
(Foreign Relations Law of the US)
Limitations on Territorial Jurisdiction
Certain limitations have been imposed upon the rule of territorial jurisdiction which have
developed partly through customs and partly by the conclusion of treaties. In other words, a
foreign State may claim exemption from suspension or non- amenability to the jurisdiction of
another State. The rule of immunity stemmed from the principle of the Independence of
sovereign States which are equal in status. Thus, in principle, only foreign sovereign States
are protected by the rules of International Law on State immunity, in practice the immunity is
extended to other organs of the State as well. They therefore are the exceptions to the rule of
exclusive territorial jurisdiction.
Exceptions1)
2)
3)
4)
5)
6)

Diplomatic agents
Embassies
Foreign Sovereign
Property of foreign sovereign
Foreign Armed forces
Foreign warships and their crew

Diplomatic Agents: Diplomatic Agents enjoy privileges and immunities from the civil and
criminal jurisdiction of the receiving State since a long time.
Embassies: Embassies situated in other States are immune from the jurisdiction of the State.
The agents of the State cannot enter in foreign embassies except with the consent of the head
of the mission.

[50]

Foreign Sovereigns: Foreign Sovereigns enjoy immunities and they are exception to the
principle of territorial jurisdiction. No local jurisdiction, whether criminal or civil could be
exercised over them.
The reason for such grant is recognition of his very special status as Holder of his States
highest office. Under general International Law immunity granted to foreign sovereigns
includes immunities to head of States, Prime Minister, ministers residents acting in their
official capacity, ministers, departments, agencies and offices.

Political sub-divisions such as provinces, regions districts and municipalities are not
granted immunities
The position of former heads of States is not clear. International law does not deal directly
with the immunity of the former sovereign.
Normally when the functions of a person enjoying privileges and immunities have come
to an end, his privileges and immunities also cease.
However, a former sovereign may be granted immunity for those acts which were
performed by him in the course of his functions when he was a sovereign.

Pinochets Case ((1999) 2 All ER 97)

General Augusto Pinochet, the head of the State of Chile was in power between 1973 to
1990. During his period appalling acts of brutality were committed such as murder, torture
and disappearances of individuals. These acts were committed in Chile and in Europe on
large scale. In 1998 Pinochet came to the United Kingdom to seek medical treatment. The
judicial authorities in Spain sought his extradition in order to stand trial in Spain on a number
of charges.
Accordingly an International warrant was issued in Spain on Oct 16, 1998, and was arrested
at a London Hospital on Oct 17, 1998. A second International warrant was also issued by the
Spanish authorities on Oct 18, 1998. The divisional court quashed both the warrants on the
ground that Pinochet as a former Head of State was entitled to State immunity in respect of
the acts with which he was charged.
On the appeal by the Govt of Spain, the House of Lords held that he was not entitled to
immunity in relation to crimes under International Laws. Consequently the U.K. Home
Secretary made clear that there is no immunity for the heads of the States, allowed the
extradition proceedings.
Property of Foreign Sovereigns
The property of the foreign sovereigns remains immune from the jurisdiction of the State. As
long as the foreign sovereign has some interest in the property, it remains immune, and it is
immaterial for what purpose the property was employed.
Foreign Armed Forces:
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Armed forces of a State remains in the foreign territory on several occasions in the service of
their home State. They may be called extra-territorial therefore they remain under the
jurisdiction of the State to which they belong. Commanding officer/Authorities of home State
can only punish him. But in this regard State practices are different.

[52]

State Succession

A succession of international person occurs when one or more international persons take
place of another international person, in consequence of certain changes in the Latters
condition. : Oppenheim
In Roman Law, when a person died his rights and duties were succeeded by his successor.
This principle was applied by Grotius in international law also. Later on certain international
treaties were entered into to develop the rules of State succession. The law of the state
succession is still developing. Vienna Convention on succession was adopted in 1978 in
respect of treaties.
It may also be noted that the term state succession is a misnomer (wrongly applied) The
practice of states show that no general succession takes place with the extinction of a state as
an international person its rights and duties as a person also disappears. However, most of the
jurists now agree that when an international person extinct, some of its rights and obligations
are succeeded by other international person which take its place.
Kinds of State succession:
1) Universal Succession: It takes place under the following circumstances.
A) When a state is completely merged with another state, either through subjugation or
voluntary
B) When a state breaks into several parts and each part becomes a separate international
person.
2) Partial succession: It takes place,
a) When a part of a state ceded to another state revolts and after achieving freedom
becomes a separate international person. (E.g: Bangladesh)
b) When a part of a state ceded to another state.
c) When a sovereign state loses part of its independence by joining the federal State or
when a State accepts the suzerainty or becomes a protectorate of another state.
Principle of the Continuity of States:
The succession of government is based on the principle of the continuity of States. The
change in the government of a State does not affect the legal personality of the State. The
new government succeeds to the rights and obligations of the predecessors govt. This
principle is based on the common interests of international community. The importance of the
international agreements will suffer a setback in case the treaty obligations are disregarded in
consequence of the change of government of a State.
But pointed out by Prof DPO CONNEC, the treaties enter in to by a state come to an end in
case it is completely absorbed in another State. This rule also applies, in a case when a part of
[53]

State revolts and after becoming an international person, refuses to follow the treaties entered
into by its parent State. For example, Bangladesh is not bound by treaties entered into by
Pakistan.
Rights and Duties arising out of State Succession
1) Political Rights and Duties
No succession takes place in respect of political rights and a duty, hence succeeding State is
not bound by the political treaties of the former State such as treaties of peace or neutrality.
2) Local Rights and duties
A genuine succession takes place in respect of Local rights and duties. Such as land, rivers,
roads, railways etc.
In the case of German settlers in Poland permanent consists of International Justice, in its
advisory opinion, held that private rights do not end by the change of sovereignty.
3) State Property
Art 11 of Vienna Convention on State property Archives and debts 1983 provides that unless
otherwise agreed, passing of the State property will take place without compensation.
According to Art 12 of the convention that property, rights and interests owned by a third
State should not be affected by a succession of State.
Art 13 provides that the predecessors state to take all measures to prevent damage or
destruction to State property which passes to Successors State.
Art 15 allows special reference to be made to bilateral agreements between bilateral
agreements between the predecessor state and the newly independent State but it shall not
infringe the principle of the permanent sovereignty of every people over its weather and
natural resources.
4) State Archives:
Art 25 lays emphasis on preserving the integral character of groups of State archives of the
predecessor State. By bilateral agreements which benefit the two States equally could be
made in regard to passing or appropriate reproduction of State archives. But the agreements
should not infringe the right of peoples of those states to development, to information about
their history and to their cultural heritage.
5) State Debts:
Art 36 of the Vienna Convention on State property Archives and debts 1983 provides that the
succession of a State does not as such affect the rights and obligations of creditors. Further,
when the successor state is a newly independent State, no state debt shall pass to the new
State unless an agreement between two States provides otherwise, according to the
[54]

convention, such an agreement however, shall not infringe the principle of the permanent
sovereignty of every people over its wealth and natural resources, nor shall its
implementation endanger the fundamental economic equilibria of the newly independent
States(Art 38). In case of separation of part of the territory the State debt of the predecessor
State should pass to the successor State in an equitable proportion taking into the account
the property, rights and interest passing to the successor States.
Contracts
Majority of jurists are of the view that the succeeding states should be bound by the contract
entered into by the extinct state.
But in West Rand Gold Mining Co. Ltd. V King it was held that the succeeding state was
entitled to decide whether it will accept the financial obligations of the former state. Until it
accepts the financial obligations of the former state it will not be bound by them.
Concessionary contracts
By concessionary contracts we mean the contracts through which certain concession such as
digging of mines, laying of railways etc are granted through contracts. Since there are of
mostly local nature, the succeeding state is bound by them. Much will, however, depend upon
the facts and circumstances of each concessionary contract.
Laws
So far as the law of the former state are concerned, civil law continues until it is changed by
the succeeding state.
Unliquidated damages of torts
No succession takes place in respect of unliquidated damages for torts. But succeeding state
will be bound if the former state had accepted or had decided to pay compensation.

Nationality
The nationalists for the former state lose their nationality at the extinction of the state at
become the nationals of the new international person generally such nationals are given a
certain period which they have to decide whether they with continue their loyalty towards the
former state or will accept the citizenship of the succeeding state.
Succession to property in foreign states
The succeeding state becomes the successor of the property of the extinct state situated in
foreign country.
Succession of states in respect of treaties

[55]

On 23rd August 1978, a convention known as the Vienna Convention on succession of states
in respect of treaties has been adopted. Article 1 of the convention which deals with the scope
of the convention provides that it applies to the effects of a succession of states in respect of
treaties between states.
The convention deals with cases of succession of states fewer than three main headings.

succession in respect of part of a territory

newly independent states i.e. states which engaged from former dependent territory
uniting and separating of states

While it retains from the cast category of cases, the principle of de-jure continuity in force at
the date of the succession of states.
In regard to newly independent state it is not bound to maintain in force or to become a party
to, any treaty by reason only of the fact that at the date of the succession of states the treaty
was in force in respect of the territory to which the succession of states relates.
In respect of the part of territory Article 15 provides that when part of the territory of a state,
or when any territory for the international relations of which a state is responsible, not being
part of the territory of that state, becomes pest of the territory of that state, becomes part of
the territory of another state.
a) Treaties of the predecessor state cease to be in force in respect of the territory to
which the succession of states relates from the date of succession of states; and
b) Treaties of the successor state are in force in respect of the territory to which the
succession of states relates from the date of succession of states unless it appears from
the treaty or is otherwise established that the application of the treaty to that territory
would be incompatible with the object and purpose of the treaty or would radically
change the conditions for its operation.
The convention also provides procedures of settlement of disputes under article 41 to 45 and
conciliation machinery is provided in annexure of the constitution.
Succession regarding membership of the United States
No succession takes place in respect of the membership of the United Nations. As state may
become a member of the United Nations by fulfilling the formalities required under the
United Nation Charter. That is to say, an application for admission of a state should be
recommended by the Security Council and the General Assembly should elect it as a member
by the 2/3rd majority, after the partition of the India (into India and Pakistan) Pakistan
claimed to have become a member of the United Nation through succession because India
was original member of UN. But this view was rejected by General Assembly. Subsequently
Pakistan had to apply for the membership and was admitted as a new member.
Succession in International organisation

[56]

The law regarding succession of International Organisation has been clarified by the
International Court of Justice in its advisory opinion of 1950 is the status of South-WestAfrica.
South-West-Africa was interested to South Africa under mandatory commission to develop it
and to make it independent, if and when its people were capable of governing themselves.
After the dissolution of the League of Nations, the functions of the mandatory commission
were succeeded by the Trusteeship Council one of the organs of the United Nations. But
South Africa claimed that after the dissolution of the League of Nations, she is not bound to
follow the control and supervision of the United Nations is respect of the South-West Africa.
South Africa claimed that South-West-Africa (Namibia) had become an integral part of South
Africa. The General Assembly, therefore, referred this matter to the ICJ for its advisory
opinion.
The ICJ advised that the mandatory commission was an institution of international status and
the mandatory commission had created international status of South Africa which could not
be modified unilaterally by South Africa. The court also pointed out that the nature, functions
and objectives of the mandatory commission and the trusteeship council are same. World
court opined that the Trusteeship Council succeeded all the functions of the mandatory
commission. ICJ held that, hence South Africa was bound to follow the directions and control
of the Trusteeship system of the United Nations. The court also laid sown that if the nature,
functions and objectives of the new International Organisation and extinct International
Organisation are same, then succession may take place in regard to the functions and powers
of the extinct organisation.

[57]

Asylum
Asylum means the protection of refuge granted by a state on its territory or premises under its
control to a person who comes to seek such protection or refuge. Obviously, asylum linked
with extradition in as much as asylum stops where extradition or rendition begins.
The purpose of asylum is to accord protection to a person and to bring him under the
jurisdiction of the granting state where as extradition aims at surrendering or returning of the
offender to the state where he is alleged to have committed the offence.
Therefore, asylum stops when the granting state decides to extradite the offender, therefore,
the concept of asylum and extradition are opposite to each other.
Law on asylum
Asylum is being practised by the state since a long time either because it is referred to in
some extradition treaties or is municipal laws. Sometimes, it is also granted without any
formal legal basis. However, the concept of asylum has still not acquired the necessary
clarity. Practice is states is insufficient to constitute it that type of custom which international
law required to call the practice which as a customary international law. This reason alone led
to the international law commission to include the topic of asylum in its provisional list for
codification. The assembly in 1959 required the commission as soon as it considers
advisable, to undertake the codification of the principle and rules of international law relating
to the right of asylum. According in 1962 the commission decided to include the topic of
asylum in its programme (but without selling any date for the start of its consideration). In the
absence of any law, the topic at present is governed mainly on the basis of the state practice
and judicial decision.
Right of Asylum
The offender has no right of asylum. However, on this issue certain international instruments
are worth examining.
Art.14 of the Universal Declaration of Human Rights of 1948, recognize the right of
everyone to seek and enjoys in other countries asylum from prosecution. It being a
declaration and not a treaty, does not bind the States.
In the year 1967, U.N General Assembly adopted a declaration on Territorial Asylum.
It, inter alia, declared that a person seeking asylum from persecution should not be rejected at
the frontier. If he has already entered the territory in which he seeks asylum, he should not be
expelled or compulsorily returned. The declaration also contains a caveat to the effect that
asylum ought not to be granted to any person, with respect to whom there are well founded
reasons for considering that he has committed a crime against peace, war crime or crime

[58]

against humanity. On this subject of Territorial Asylum U.N. conference was held in the year
1977. However, consensus could not be achieved at the conference.
On the issue of grant of refuge, law relating to the refugees is more certain. Art 31, 32
& 33 of the refugee convention 1951 gives expression to the principle of non- refoulement
which signifies non rejection at the frontier. The Refugee Convention prohibits the State
parties from expelling or returning (refouler) a refugee in any manner what so ever to the
frontiers of territories where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or political opinion.
Kinds of Asylum: Asylum is of two kinds, namely territorial and extra-territorial (diplomatic)
asylum.
1) Territorial Asylum: Territorial asylum is granted by a State on its territory. Territorial
asylum is an attribute of the territorial sovereignty, of the granting State. Art 1 of the
Convention on Territorial Asylum adopted at Caracas on 28th March, 1954 recognises
that every State has the right, in the exercise of its sovereignty, to admit any person into
its territory.
2) Extra-Territorial or Diplomatic Asylum: Extra territorial or diplomatic asylum is the
refuge granted to offenders be a State within the precincts of its embassies or legations
abroad. In Asylum case involving Columbia and Peru, ICJ has drawn a distinction
between territorial asylum and diplomatic asylum in the following words.
In the case of extradition (territorial Asylum), the refugee is within the territory of the
State of refuge. A decision with regard to extradition implies only the normal exercise of
the territorial sovereignty; the refugee is outside the territory of the State where the
offence was committed, and a decision which granted him asylum in no way derogates
from the sovereignty of the State. In the case of diplomatic asylum, the refugee is within
the territory of the State where the offence was committed. A decision to grant diplomatic
Asylum includes a derivation from the sovereignty of that State. It withdraws the offender
from the jurisdiction of the territorial State and constitutes an intervention in matters
which are exclusively within the competence of that State. Such derogation from the
territorial sovereignty cannot be recognised unless its legal basis is established in each
particular case.
The grant of diplomatic Asylum is an exceptional measure. Accordingly, the offenders
have no right of diplomatic Asylum. However, diplomatic Asylum may be granted in
exceptional cases which are as follows:
(i)
As a temporary measure, to individuals physically in danger from mob
disorder or mob rule, or where the fugitive is in peril because of extreme
political corruption in the Local State, the justification being presumably that
by the grant of Asylum, an urgent threat is temporarily tided over.
(ii)
Where there is a binding local custom, long recognised, that such diplomatic
Asylum is permissible.
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(iii)

Under special treaty between the territorial State and the State which is
represented by the legislation concerned. (Generally for political offenders
only)

It is therefore, beyond all doubts that humanitarian considerations under lie the grant of
diplomatic Asylum. The practice of States permits the diplomatic Asylum if political
considerations under lie the grant of such Asylum.
3) Asylum in Consulates: rules regarding asylum in consulates are similar to that of asylum
in legal premises.
4) Asylum in the premises of International Institution (United Nation and its specialised
agencies) to grant asylum to offenders. There is nothing in international law to prevent
United Nation and its specialised agencies from granting refuse to person facing
imminent threat to their life. If U.N. does not act in such cases, it will lose its importance
as a world peace body.
5) Asylum in Warship: Although there is difference of opinion among jurists on the issue of
grant of asylum in warship, they seem to agree on the proposition that asylum may be
grated in warship only on humanitarian grounds in case where there is extreme danger to
the life of the individuals seeking asylum.
6) Asylum in Merchant Vessels : Merchant Vessels cannot grant asylum to local offenders
because they are not exempted from local jurisdiction.
Asylum and India
India in the year 1955 gave territorial asylum to Dalai lama and his followers who were
opposed from the repressive policies of China. Although their asylum was criticised by China
on the ground that India by granting asylum has interfered in its internal affairs, India was
competent enough to do so because of the rule of territorial Sovereignty. India does not
recognise the Extra-Territorial asylum.
It is clear from the circular issued to all diplomatic missions in India on Dec 30, 1967 and
also from the statement of Indian delegate Mr. Sayid Muhammad on Nov 3, 1975 in the sixth
committee on the item concerning diplomatic asylum.
However, it gave diplomatic asylum to late king Tribuvan of Nepal when he sought asylum at
the height of the Reva revolt against him. When the soviet defector Aziz Oulougzade took
refuge in the American Embassy in India, it was granted to him temporarily. On protest, he
was surrounded to the Indian authorities.

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EXTRADITION
The term extradition denotes the process whereby under treaty or upon a basis of
reciprocity, one State surrenders to another State at its request a person accused or convicted
of a criminal offence committed against the laws of the requesting State, such requesting
State being competent to try the alleged offender.
STARKE
Duty to extradite: There is no universal rule of customary international law in existence
which imposes duty of extradition. In the 19th century states started entering into bilateral
extradition treaties. In the absence of extradition treaty between the States, the grant of
extradition depended purely on reciprocity or courtesy.
Object of extradition: The concept of extradition is based on the maxim aut puniare aut
dedere means that the offender must be punished by the state of refuge or surrendered to the
State which can and will punish him. Due to jurisdiction limitation and the principle of
territoriality assumption of criminal jurisdiction and also non-availability of evidence,
generally the States of refuge is unable tp prosecute or punish the offender.
Extradition Crimes: As a general rule political crimes, military offences, religious offences
are not subject to extradition. The exception of political offences has created a problem zone
around it. For the question what is political offence, how and who will determine the offence
the answer is the practice of States. Generally it reveals the State of refuge is the proper
forum to pronounce the above mentioned questions.
Further State practices accepts the following two principles:
a) Principle of double criminality
b) Principle of specialty

Double criminality: This rule states that it is a condition of extradition that the crime is
punishable according to the law both of the State of asylum and of the requesting State.
Specialty: According to this principle, the requesting State is under a duty not to try or punish
the offender for any other offence than that for which he was extradited.
Rendition: If persons be extradited under an ad hoc special agreement, the process is called
rendition. Further it means the return of a fugitive to the State in which he is accused of
having committed a crime, by the order of the State to which he has gone. It may be
interesting to mention here that a deportation or refusal of asylum may have the effect of
rendition.
Position in India: The extradition Act 1962 governs the law relating to extradition in India. At
the outset, the act makes it clear that extradition treaty is not the only basis for extradition.
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Extradition, under Indian laws is possible even in the absence of extradition treaty.(Sec
2(i)(ii))
As per Sec 4 of the Act a requisition for the surrender of a fugitive criminal of a foreign state
or a commonwealth country may be made to the Central govt. Central govt has unfettered
discretion on the issue of the grant of extradition.
Sec 31 of the Act contains restrictions on surrender (exceptions for the grant of extradition) A
fugitive criminal shall not be surrendered or returned to a foreign state or a commonwealth
country.
a) If the offence in respect of which his surrender is sought is of a political character.
b) If prosecution for the offence in respect of which his surrender is sought is according
to the law of that State, barred by time;
c) If he has been accused of some offence in India, not being the offence for which his
surrender or return is sought, or is under going sentence under any conviction in India
until after he has been discharged, whether be acquittal or on expiration of his
sentence or otherwise.
d) Until after the expiration of 15 days from the date of his being committed to prison by
the Magistrate.
Important Cases: (1) Savarkar Case (1911)
(2) Mobarak Ali Ahmad V State of Bombay (1957)

[62]

Outer Space, the Moon and Antarctica

Outer space may be defined as that area of the Universe where the atmosphere of the
earth ends. In other words, where aerial sovereignty of the state ends, outer space begins. It
includes all space above the lowest perigee achieved by any satellite put into orbit. Celestial
bodies and the moon also form parts of the space.
Lower boundary of Outer Space: A number of States including Argentina, Belgium,
France, Italy and Mexico have advocated the lower boundary of outer space at a height of
100 kms. But this limit is not acceptable to many other States, and therefore a frontier
between the earths airspace and outer space still remains to be determined for legal purposes.
The question was purposely not dealt with the seminal General Assembly resolutions and in
the 1966 Outer Space Treaty. The Committee on the peaceful uses of Outer Space has the
question under consideration but has not been able to reach agreement on any particular rule.
The principle of free and equal use of outer space must mean that there is a limit to
national sovereignty. The perigee approach, by which the limit of air space would be the
lowest perigee of an orbiting satellite, would appear to be the most likely one to be accepted.
It would probably set the limits at a lower height between 50 to 60 miles. In order to avoid
violations of State sovereignty and regimes it is required to be demarcated urgently. It is
desirable if a multilateral agreement, open to all States is concluded to establish a specific
altitude as the upper limit of air space so that outer space regime may be established.
Law on Outer Space: The topic of outer Space acquired importance in international Law
when the first Sputnik was launched in the orbit by the USSR on Oct 4, 1957. Since then a
number of manned and unmanned satellites and probes into outer space and celestial bodies
have been launched by some other States as well. The acts of different states in the outer
space had led to the United Nations to make rules and regulations in this part of the Universe.
The law which has been made to regulate the relations amongst the States and their relations
with international organisations in the sphere of outer space, celestial bodies and moon is
called Space Law.
As early as in 1958, the question of peaceful uses of Outer Space was considered by
the United Nations, (General Assembly resolution 1348 (XIII) dated Dec 13, 1958), and it
recognised the common interest of mankind in outer Space. It was also resolved therein
that the outer space should be used for peaceful purposes only. In 1959 the General Assembly
adopted another resolution where in it recognised the need for a special organ to further
international co-operation in the peaceful uses of outer space. (General Assembly Resolution
1472 (XIV) dated 12,Dec 1959) A committee on the peaceful uses of Outer Space was set up
with two sub-committees- Legal Sub Committee and Scientific Sub- Committee.
In Dec, 1963 the General Assembly unanimously adopted a declaration of legal
principles governing the Activities of States in the Exoneration and Use of Outer Space
(General Assembly Resolution 1962 (XVIII) Dec 13, 1963). In the above declaration nine
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principles were formulated, in another resolution, wherein it recommended that consideration

be given to incorporate these principles in an international agreement. The task was given to
the legal sub-committee which began consideration in 1966 on the question of formulating a
treaty governing the exploration and use outer space, the moon and other celestial bodies.

OUTER SPACE TREATY OF 1967

The treaty on principles governing the Activities of States in the Exploration and Use
of Outer Space, including the Moon and Other celestial Bodies (commonly referred as the
Outer Space Treaty) affirms that:
Exploration and use of outer space including the moon and other celestial bodies,
shall be carried out for the benefit and in the interests of all countries, irrespective of their
degree of economic or scientific development, and shall be the province of all mankind. (Art
1 Outer Space Treaty)
No area of Outer Space is to be appropriated by any State (Art-2) and the exploration
is to be conducted in accordance with international law (Art 3) including the Charter of
United Nations.
Art 4 is particularly important is that it prohibits the installation of Nuclear Weapons
or any other weapons of mass destruction in Outer Space.
The United States Star Wars development has been justified on the grounds that
they are designed to take defensive rather than offensive action) Jurisdiction over an object
once launched into Space remains with the State of registration (Art 8)
Art 9 requires States to conduct exploration, so as to avoid the harmful contamination
of Outer Space and also adverse changes in the environment of the Earth resulting from the
introduction of extra terrestrial matters.
The 1967 has been revised and clarified by the 1979 Moon Treaty (Agreement
concerning the activities of the States, on the Moon and other celestial bodies). In particular,
the moon Treaty provides that the natural resources of the moon and other celestial bodies
should be exploited as the common heritage of mankind in accordance with an international
regime. This treaty entered into force on July 11, 1984.
The 1967 Treaty has been supplemented by two further agreements
(i)
(ii)

The agreement on the Rescue of Astronauts, the Return of Astronauts and the
Return of Objects launched into Outer Space 1968; and
Convention on International stability for damages caused by Space objects, 1972.

The Rescue and Return Agreement essentially concerned with securing co-operation
between contracting parties for the rescue and return of astronauts, while the 1972
Convention establishes the strict liability of a launching state for damage caused by its space
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object on the surface of the earth or to aircraft in flight (liability Convention Art II. Art IV
establishes joint and several liability in the event of a joint launch)
And fault liability in the event of damage being caused elsewhere other than on the
surface of the earth to a space object of one launching State or to persons or property on
board such space object.... (Art III)
Every launch and its intended purpose must be registered by the launching State on a
public register maintained by the Secretary General of the United Nations. This is required by
the 1975 Convention on the Registration of Objects launched into Outer Space, introduced
when the voluntary registration system initially envisaged, proved unsatisfactory. (The Outer
Space Art of 1986 introduced the obligations of the Convention into U.K. domestic law)

Tele Communication: The development of telecommunications networks has been an

important by product of Space exploration, and today, the use of telecommunications in
Space is governed by a number of international agreements such as the Agreement Relating
to International Communications Satellite Organisation (INTELSAT), convention relating to
the distribution of programme carrying signals transmitted by Satellite, and the 1982
International Tele Communications Convention and optional protocol (This replaces the 1973
International Telecommunications Convention and optional protocol) while the United
Nations specialised agency, the International Telecommunications Unit (ITU) in Geneva,
promotes international co-operation in the use of telecommunications.
As has been said, states enjoy territorial sovereignty. However, that sovereignty is not
unfettered. A State may, for instance, have to recognise that its territory has to be used for the
benefit of another state, for example a right of passage, taking of water for irrigation
purposes, or alternatively a State may have to refrain from taking certain action on its
territory, for example the stationing of forces. Such rights(servitudes) attached to territory
have to be recognised by successor States. Benefits may exist or not for single State, but for
the international community, for example international waterways such as the Suez canal.
The increasing awareness and concern for environmental issues has in recent years led
to further restrictions being imposed on a States territorial sovereignty.

SPECIAL PROBLEMS OF ANTARCTICA

Some States have asserted claims of sovereignty by occupation over some parts of Arctic and
Antarctica on the basis on the basis of contiguity or proximity.
Generally for occupation two essential elements must be present
1) Direct evidence of possession and
2) Administration or actual exercise of sovereignty

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Since such claims do not satisfy the above essential elements, they are not valid. They are
also not valid under International Law because effective occupation of these areas is not
possible because of the extreme climate of these areas. Moreover, occupation of territory is
not possible merely by declaration.
Argentina, Australia, Chile, France, New Zealand, Norway and UK are states who
asserted claims over parts of Antarctic. USA and USSR also asserted a basis for a claim to
territorial sovereignty. They did not make any specific claim nor can it be made now in view
of the Antarctic Treaty which prohibits new claims.

THE ANTARCTIC TREATY

The Antarctic Treaty of 1 Dec 1959 established a special regime over the Antarctica
area south of 60 latitude. The original State parties to the treaty are: Argentina, Australia,
Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Soviet Union, the
United Kingdom and the United States.
The main provisions of the Treaty are:
1) During the continuance of the treaty existing sovereignty claims shall remain in State
of suspense. No new claims shall be asserted. This provision shall not affect
previously asserted rights and that nothing done during the treaty regime shall either
further or prejudice the existing claims (Art 4).
2) The Antarctic shall be used for peaceful purposes only. The treaty forbids the
establishment of military basis and fortifications and the testing of any type of
Weapons. (Art 1).
3) Nuclear explosions and the disposal of radioactive waste material are prohibited (Art
5).
4) The treaty establishes freedom of scientific investigation.
5) There shall be periodic consultative meetings in which recommendations may be
made to governments for taking measures in furtherance of the objectives of the treaty
(Art 9).
6) The treaty is of indefinite duration but is open to review after 23 June, 1991(Art 12).

CONVENTION ON THE REGULATION OF ANTARCTICA MINERAL

RESOURCE ACTIVITIES
This convention was concluded at Wellington in 1988. Some states, however,
opposed it, mainly on environmental grounds, to any mineral resource activity. This
movement was led by Australia and France. Consequently, an agreement was reached at
Madrid banning for a period of 50 years any mineral resource activity other than scientific
research.

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