Reliable Institute of Law, Ghaziabad

RELIABLE INSTITUTE OF LAW, GHAZIABAD
Define various definition of International Law? Conclude the definition in reference to

Starke?
“A body of rules common to all civilized nations, equally binding upon all and impartially
governing their mutual intercourses.” The highest judicial authority of international law is
the International Court of Justice and the administrative authority is the United Nations.
By Bentham
According to Bentham’s classic definition of International Law is a collection of rules

governing relations between states. Two of the most dynamic and vital elements of modern
international law are as follows:
 In its broadest sense, International law provides normative guidelines as well as methods,
mechanisms, and a common conceptual language to international actors i.e. primarily
sovereign states but also increasingly international organizations and some individuals.
 Although international law is a legal order and not an ethical one it has been influenced
significantly by ethical principles and concerns, particularly in the sphere of human rights.
International law is distinct from international comity, which comprises legally nonbinding
practices adopted by states for reasons of courtesy. For Example: the saluting of the flags of
foreign warships at sea.
By Oppenheim
“Law of Nations or international law is the name for the body of customary law and
conventional rules which are considered binding by civilized states in their intercourse with
each other.”
By Alf Ross
The term international law as under: “International law is the body of legal rules binding
upon states in their relations with one another.”
By Lawrence
According to him, “international law is the rule which determines the conduct of the general
body of civilized state in their mutual dealings.”
Modern Definition
International law has always been in a continuous state of change. In modern period the
term International law may rightly be defined as under; “That body of legal rules which
regulates the relationship of the Nation States1with each other, as well as, their
relationship with other International actors.”
By J.L Brierly
“The laws of nations or international law may be defined as the body of rules and principles
of action which are binding upon civilized states in their relation with other states”
By Lawrence
According to him, “international law is the rule which determines the conduct of the
general body of civilized state in their mutual dealings.”
Conclusion
There are various definition quoted by different eminent jurist in order to explain
international law in different situation and circumstance adhered by jurist because
international law cannot be constrain in words because its scope is much wider. In the words
of J G Starke “ International law may be defined as that body of law which composed for its
greater part of the principles and rules of conduct which states feel themselves bound to
observe, and therefore, do commonly observe in their relations with each other, and which
includes also :
(a) The rules of law relating to the functioning of international institutions or organizations,
their relations with each other, and their relations with states and individuals; and
(b) Certain rules of law relating to individuals and non-state entities so far as the rights or
duties of such individuals and non-state entities are the concern of the international
community.”
This definition goes beyond the traditional definition of international law as a system
composed solely of rules governing the relations between states only. In view of
developments during the last four decades, it cannot stand as a comprehensive description of
all the rules now acknowledged to form part of the subject.
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2
What is Nature and scope of law with reference to International Law?
Scope:
The scope of International Law is extended to all t he free and independent nations.
According to International Law all the states whether they are small or big enjoy the same
status. “No principle of law”, said Chief Justice Marshall, “is universally acknowledged than
the perfect equality of nations. Russia and Geneva have equal rights. It results from this
equality that no one can rightfully impose a rule on others”.
Contents:
Following is the more comprehensive division of the contents of International Law:
(1) Laws governing states in times of peace.
(2) Laws governing states in times of war.
(3) Laws governing states in the relation of neutrality.
(1) Laws of Peace:
Laws of Peace include the rights and obligations concerning independence and equality of the
states. They also include maritime code and navigation laws. They are the rules of intercourse
of states.
They include the rights and duties of officials attached to foreign offices. They include
privileges and facilities of the diplomatic representatives, organization and procedure
international conferences and nature and method of treaty making, etc.
(2) Law governing states in times of war:
Rules of War form the large portion of International Law. The rules of war include the
declaration of war, the classification of wars, laws and customs of war on land, sea and air,
the after-effects of war, the dealings with war prisoners.
According to the laws, it is quite unconventional to use poisonous gases and bacteria’s in the
warfare and to bombard the civil areas. These rules prohibit the states, engaged in war, from
seeking foreign military assistance and from mining the ports.
(3) Law governing states in the relation of neutrality:
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The laws of neutrality embrace the duties of belligerent states of neutral states, duties of
neutral states to belligerent states, neutral trade, commerce, contraband and blockade, etc.
Nature
International law includes both the customary rules and usages to which states have given
express or tacit assent and the provisions of ratified treaties and conventions. International
law is directly and strongly influenced, although not made, by the writings of jurists and
publicists, by instructions to diplomatic agents, by important conventions even when they are
not ratified, and by arbitral awards. The decisions of the International Court of Justice and of
certain national courts, such as prize courts, are considered by some theorists to be a part of
international law. In many modern states, international law is by custom or statute regarded
as part of national (or, as it is usually called, municipal) law. In addition, municipal courts
will, if possible, interpret municipal law so as to give effect to international law.
Because there is no sovereign super national body to enforce international law, some older
theorists, including Thomas Hobbes, Samuel Pufendorf, and John Austin have denied that it
is true law. Nevertheless, international law is recognized as law in practice, and the sanctions
for failing to comply, although often less direct, are similar to those of municipal law; they
include the force of public opinion, self-help, intervention by third-party states, the sanctions
of international organizations such as the United Nations, and, in the last resort, war.
Conclusion
Public international law concerns the structure and conduct of sovereign states; analogous
entities, such as intergovernmental organizations. To a lesser degree, international law also
may affect multinational corporations and individuals, an impact increasingly evolving
beyond domestic legal interpretation and enforcement. Public international law has increased
in use and importance vastly over the twentieth century, due to the increase in global trade,
environmental deterioration on a worldwide scale, awareness of human rights violations, and
rapid and vast increases in international transportation and a boom in global communications.
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4
What are different Sources of International Law? Explain with reference international
legislation?
Introduction
The term sources refer to methods or procedure by which international law is created. A
distinction is made between the formal sources and material sources of law. The formal, legal
and direct sources consist of the acts or thing which gives that the content its binding
character as law. The material sources provide evidence of the existence. The sources of
international law may be classified into five categories are as follows
1. International Conventions: - In the modern period international treaties are the most
important source of international law. This is because the reason that states have
found in this sources. Article 2 of the Vienna Convention on the law of treaties 1969,
a treaty is agreements whereby two or more states establish or seek to establish
relationship between them govern by international law.
Prof. Schwarzenbergr, “Treaties are agreements between subjects of

international law creating a binding obligation in international law.”
International treaties may be of the two types

a) Law making treaties: - these are the direct source of international law and the
development of these treaties was changing of the circumstances. Law making
treaties perform the same functions in the international field as legislation does in
the state field.
b) Treaty contracts:-As compared to law making treaties treaty contracts are
entered into by two or more States. This may happen when a similar rule is
incorporated in a number of treaty contracts.
2. International Customs:-International customs have been regarded as one of the
prominent sources of international law for a long time. However even today it is
regarded as one of the important sources of international law. Usage is an international
habit which has yet not received the force of law.
STRAKE elucidates, “Usage represents the twilight stage of custom, custom

begins where usage ends. Usage is an international habit of action that has yet not
received full legal attestation.”
A custom in the intendment of law is such usage as that obtained the Force of
law i.e.:- It is not necessary that the usage should always precede a custom. In certain
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cases usage gives rise to international customary law. When a usage is combined with
a rule of customary law exists. It is an important matter to see as to how international
custom will be applied in international law. In the landmark case of West Rand
Central Gold Mining Company, the court held that for a valid international customs
it is necessary that it should be roved by satisfactory evidence that the custom is of
such nature which may receive general consent of the States and no civilized state
shall oppose it.
In the case of Portugal v. India (12 April 1960), ICJ1 pointed out that when in regard
to any matter or practice, two states follow it repeatedly for a long time, it becomes a
binding customary rule. Still other resolutions amount to an interpretation of the rules
and principles which he charter already contains and which are in binding upon
States.
3. General Principles of Law recognized by civilized States: -Art.38 of ICJ provides
that the Statute of International Court of Justice lists general principles of law
recognized by civilized States as the third source of international law. In the modern
period it has become an important source. This source helps international law o adapt
itself in accordance with the changing time and circumstances. The general principles
of law recognized by civilized States have emerged as a result of transformation of
broad universal principles of law applicable to all the mankind.
Following are some important cases relating to the general principles of law recognized
by civilized States:-
R. v. Keyn-1876, that Law is based on justice, equality and conscience which have
been accepted by practice of States.
U.S v. Schooner held that Law should be based on general principles.
4. Decisions of Judicial or Arbitral Tribunals and Juristic Works
International judicial Decisions:-In the modern period international court of justice
is the main international judicial tribunal. It was established as a successor of the
Permanent Court of International Justice. Art.59 of the statute of ICJ makes it clear that
the decisions of the court will have no binding force except between the parties and in
respect of that particular case. While in principle it does not follow the doctrine of
precedent. Thus judicial decisions unlike customs and treaties are not direct sources of
law; they are subsidiary and indirect sources of international law.
1
ICJ stands for International Court of Justice.
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State judicial decisions:- These decisions may become rules of international law in
the following two ways:-
1. State judicial decisions are treated as weighty precedents.
2. Decisions of the state courts may become the customary rule of International Law
in the same way as customs are.
 Decisions of International Arbitral Tribunals: - Jurists have rightly too pointed
out that in most of the arbitral cases arbitrators act like mediators and diplomats rather
than as judges as in Kutch Award(1968).
Juristic Works:- Art.38 of ICJ, the work of high qualified jurists are subsidiary
means for the determination of the rules of International Law. In case of Paquete
Habana and Lola fishing vessels with Spanish flags on them in 1898 during war
between America & Spain, held that they could not be seized or apprehended during the
state of blockade.
5. Decisions or determinations of the organs of international institutions:-Art.38 of
ICJ incorporated these sources and also introduced one new source namely general
principles of law. In view of the strong reasons the decisions and determination of
organs are now recognized as an important source of International Law. The resolutions
of the organs may be binding on the members in regard to the internal matters. Organs
of international institution can decide the limits of their competence.
6. Some other sources of International Law: - Besides the above sources of I. Law,
following are some of the other sources of international law: - 1. International Comity
means mutual relations of nations. 2. State Paper:-In modern period diplomats send
letters to each others for good relations are also the sources of International Law. 3.
State guidance for their officers: Numbers of matters are resolved on the advice of
their legal advises. 4. Reasons: has a special position in all the ages.5. Equity &
Justice: I t may play a dramatic role in supplementing the law or appear unobtrusively
as a part of judicial reasoning.
Conclusion
All the sources discussed above can all be found in the practice of UN and where they cannot
be found they kowtow and bow to the resolutions of the Security Council and it will remain
binding on members and even on non-members, aberration of which can be faced with
sanctions. It is submitted that UN has provided a true complement for the gap created in what
is supposed to be accurate reflection of other sources of international law and its activities has
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positively affected law making ways by resolutions and faster means by 15 members of
Security Council and 191 members of the General Assembly as greater needs arise for fast
development of international law codified by International law commission.
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8
Q. Explain the relationship between International Law and Municipal Law?

Introduction
International Law is the law which governs the relations of sovereign independent States
inter se Municipal law or State law or national law is the law of a State or a country and in
that respect is opposed to International Law which consists of rules which civilized States
consider as binding upon them in their mutual relations. Kelsen observes that national law
regulates the behavior of individual’s International law the behavior of States or as it is put
whereas national law is concerned with the international relations the so called domestic
affairs of the State. International Law is concerned with the external relations of the State its
foreign-affair.
Legislature and court systems are different on the international and municipal levels. Where
the municipal level uses a legislature to help enforce and test the laws, the international court
system relies on a series of treaties without a legislature which, in essence, makes all
countries-equal.
Enforcement is a major difference between municipal and international law. The municipal
courts have a law enforcement arm which helps require those it determines to follow the
rules, and if they do not they are required to attend court. The international court system has
no enforcement and must rely on the cooperation of other countries for enforcement.
There is a divergence of opinion on the question as to whether International Law and

Municipal Law on the various national laws can be said to form a unity being manifestations
of a single conception of law or whether International Law constitutes an independent system
of law essentially different from the Municipal Law. The former theory is called monistic.
Monistic Theory: Monists assume that the internal and international legal systems form a
unity. Both national legal rules and international rules that a state has accepted, for example
by way of a treaty, determine whether actions are legal or illegal. In most monist states, a
distinction between international law in the form of treaties, and other international law, e.g.
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jus cogens2 is made. International law does not need to be translated into national law. The
act of ratifying the international law immediately incorporates the law into national law.
International law can be directly applied by a national judge, and can be directly invoked by
citizens, just as if it were national law. A judge can declare a national rule invalid if it
contradicts international rules because, in some states, the latter have priority. In other states,
like in Germany, treaties have the same effect as legislation, and by the principle of lex
posterior3, only take precedence over national legislation enacted prior to their ratification. In
its most pure form, monism dictates that national law that contradicts international law is null
and void, even if it predates international law, and even if it is the constitution. It maintains
that the subject of the two systems of law namely, International Law and Municipal Law are
essentially one in as much as the former regulates the conduct of States, while the latter of
individuals. According to this view law is essentially a command binding upon the subjects
of the law independent of their will which is one case is the States and in the other
individuals. According to its International Law and Municipal Law are two phases of one
and the same thing. The former although directly addressed to the States as corporate bodies
is as well applicable to individuals for States are only groups of individuals.
Dualistic theory: Dualists emphasize the difference between national and international law,
and require the translation of the latter into the former. Without this translation, international
law does not exist as law. International law has to be national law as well, or it is no law at
all. If a state accepts a treaty but does not adapt its national law in order to conform to the
treaty or does not create a national law explicitly incorporating the treaty, then it violates
international law. But one cannot claim that the treaty has become part of national law.
Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain
in force. According to dualists, national judges never apply international law, only
international law that has been translated into national law. According to the dualist view the
systems of International Law and Municipal Law are separate and self contained to the extent
to which rules of the one are not expressly or tacitly received into the other system. In the
first place they differ as regards their sources. The sources of Municipal Law are customs
grown up within the boundaries of the State concerned and statutes enacted therein while the
sources of International Law are customs grown up within the Family of Nations and law
making treaties concluded by its members. In the second place Municipal Laws regulates
2
3
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relations between the individuals under the sway of a State or between the individuals and the
State while International Law regulates relations between the member States of the Family of
Nations. Lastly there is a difference with regard to the substance of the law in as much as
Municipal Law is a law of the sovereign over individuals while International Law is a law
between sovereign States which is arrived at an agreement among them.
Transformation Theory: According to this theory it is the transformation of the treaty into
national legislation which alone validates the extension to individuals of the rules set out in
international agreements. The transformation is not merely a formal but a substantial
requirement. International Law according to this theory cannot find place in the national or
Municipal Law unless the latter allows its machinery to be used for that purpose.
This theory is fallacious in several respects. In the first place its premise that International
Law and Municipal Law are two distinct systems is incorrect. In the second place the second
premise that International Law binds States only whereas municipal law applies to
individuals is also incorrect for International Law is the sum of the rules which have been
accepted by civilized states as determining their conduct towards each other and towards each
other’s subjects. In the third place the theory regards the transformation of treaties into
national law for their enforcement. This is not true in all cases for the practice of
transforming treaties into national legislation is not uniform in all the countries. And this is
certainly not true in the case of law making treaties.
Delegation Theory: According to this theory there is the delegation of a right to every State
to decide for itself when the provisions of a treaty or convention are to come into effect and
in what manner they are to be incorporated in the law of the land or municipal law. There is
no need of transformation of a treaty into national law but the act is merely an extension of
one single act. The delegation theory is incomplete for it does not satisfactorily meet the
main argument of the transformation theory. It assumes the primacy of international legal
order but fails to explain the relations existing between municipal and international laws.
It is settled by the leading English and American decisions that International Law forms part
of the municipal law of those countries. The United States has unambiguously applied the
doctrine that International Law is part of the law of the land. All international conventions
ratified by the USA and such customary International Law as has received the assent of the
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United States are binding upon American Courts even if they may be contrary to the statutory
provisions. There is a presumption in cases of conflict that the United States Congress did
not intend to overrule International Law.
Position in India
In India, SC has held in several cases such as Vishakha vs State of Rajasthan, Randhir vs
Union of India, Unnikrishnan vs State of Karnataka that domestic laws of India, including
the constitution are not to be read as derogatory to International law. An effort must be made
to read the domestic law as being in harmony with the international law in case of any
ambiguity. At the same time, the constitution is still the supreme law of the land and in case
of any directly conflict the constitution will prevail.
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12
What is State Jurisdiction? What are the exemptions to the territorial Jurisdiction of
state?
INTRODUCTION
State Jurisdiction is the power of a state under international Law to govern persons and
property by its municipal law. It includes both the power to prescribe rules and the power to
enforce them. The rules regarding State jurisdiction identity the persons and the property
within the permissible range of a state’s law and its procedures for enforcing the law. A State
may regulate its jurisdiction by legislation through its courts or by taking executive or
administrative action. Thus the jurisdiction of a State is not always a co-incident with its
territory Case of KTMS Abdul Cader and others v/s Union of India (1977), the court held
that act has no extra-territorial application and hence the State government has no power
under the Act to pass orders of detention against persons who at the time when the orders
were made were not within India but were out-side its territorial limits.
In general every State has exclusive jurisdiction within its own territory but this jurisdiction
is not absolute because it is subject to certain limitations imposed by international law. Thus
in practice it is not always necessary that a State may exercise jurisdiction in its territory on
the other hand in some circumstances may exercise jurisdiction outside its territory. Though
the relationship between jurisdiction and sovereignty is close jurisdiction is not co-extensive
with State Sovereignty. Each state has normally jurisdiction over all persons and things
within its territory.
Illustration:-A French armed public ship flying the flag of France was in the British
territorial waters when M, the Cabin boy of the ship committed the offence of murder by
shooting dead D the captain of ship. Both M &D were British nationals. During the trial that
took place that the British courts had no jurisdiction to try him for the murder committed on
board a French cruiser flying French flag. The defence cannot succeed because he theory that
the pubic ship of a state should be treated to be a floating portion of that state has long been
discarded. Secondly the offence was committed within the territory of Britain. Thirdly
seeking good office of British police and medical aid amounted to a waiver of the immunity.
Thus M could be tried by British court.
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What do you understand by recognition? What are the various kinds of it? Also
differentiate between de facto and de jure recognition. Explain those situations when de
facto become de jure recognition. What are the disabilities of an unrecognized state?
INTRODUCTION
It can be said that through recognition, the recognizing state acknowledges that the
recognized state possesses the essential conditions of Statehood, a Government and
Sovereignty, a definite territory and has a complete control over his territory. The
community is independent. So recognition has an important place in International Law. By
recognition only the state is accepted as a member of International community.
DEFINITION
Many of the Jurists have defined ‘Recognition’ in different ways. Some of them have opined
as under:
By Prof. L. Oppenheim
“In recognizing a State as member of International community, the existing states declare
that in their opinion the new state fulfils the conditions of statehood as required by
International Law.”
By Fenwick
“That through recognition the members of the International community formally

acknowledge that the new state has acquired international personality.”
By Prof. Schwarzenberger
“Recognition can be absorbed easily by a procedure developing International aw by which

the state have accepted the negative sovereignty of each other and willing to develop their
legal relations on the basis of their natural relations.”
According to Kelson: “A community to be recognized as an International person must fulfill

the following conditions:-
i) The community must be politically organized.
ii) It should have control over a definite territory.
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iii) This definite control should tend towards performance.
iv) The community thus constituted must be independent.
Thus the conditions of statehood are, People, a territory, a government and sovereignty.”
What are different types of recognition? Explain with various definition of eminent
jurist?
Recognition is broadly categories into two types are as follows:
i) De facto and
ii) De jure recognition.
The practice of States shows that in first stage the State generally give de facto recognition.
Later on when they are satisfied that the recognized state is capable of fulfilling International
obligations, they confer de jure recognition on it, that is why sometimes it is said that de facto
recognition of state is a step towards de jure recognition. The detail of de facto and de jure
recognition is as under:-
DE FACTO RECOGNITION
By Prof. G. Schwarzenberger
“When a state wants to delay the de jure recognition of any state, it may, in first stage grant
de facto recognition.”
The reason for granting de facto recognition is that it is doubted that the state recognized
may be stable or it may be able and willing to fulfill its obligations under International Law.
Besides this it is also possible that the State recognized may refuse to solve its main
problems.
De facto recognition means that the state recognized possesses the essentials elements
of statehood and is fit to be a subject of International Law.
By Prof. L. Oppenheim
“The de facto recognition of a State or government takes place when the said State is Free
State and enjoys control over a certain fixed land but she is not enjoying the stability at a
deserved level and lacking the competence to bear the responsibility of International Law.”
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Illustration: De jure recognition had not been given to Russia by America and other
countries for a long time because Russia was not having competence and willingness to bear
responsibility of International Law. The same position was with China.
By Judge Phillips C Jessup
“De facto recognition is a term which has been used without precision when properly
used to mean the recognition of the de facto character of a government; it is objectionable
and indeed could be identical with the practice suggested of extended recognition without
resuming diplomatic relations.”
The de facto recognition is conditional and provisional. If the state to which De Facto
recognition is being given is not able to fulfill all conditions of recognition then that
recognition is withdrawn.
DE JURE RECOGNITION
De jure recognition is granted when in the opinion of recognizing State, the recognized State
or its Government possesses all the essential requirements of statehood and it is capable of
being a member of the International Community.
According to Prof. H. A. Smith: - “The British practiced shows that three conditions
precedent which is required for the grant of de jure recognition of a new State or a new
Government. The three conditions are as under:-
i) A reasonable assurance of stability and performance.

ii) The government should command the general support of the population.
iii) It should be able and willing to fulfill its international obligations.
Further Recognition de jure results from an expressed declaration or from a positive act
indicating clearly the intention to grant this recognition such as the establishment of
diplomatic relations.
By Phillips Marshall Brown
“De jure recognition is final and once given cannot be withdrawn, said intention should be
declared expressly and the willingness is expressed to establish political relations.”
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De facto Recognition De jure Recognition
 De facto recognition is conditional and  De jure recognition is final.

Provisional.
 De jure recognition cannot be
 If the conditions are not fulfilled by the withdrawn once given it is final.
concerned state then it is withdrawn.
 The willingness is to be expressed
 To maintain political relation in this for maintenance of political
recognition is not necessary. relations.
 De facto recognition is the first step towards  De jure recognition is the final step
de jure recognition. towards recognition.
CONCLUSION
Recognition of any state means, that state become a member of International community and
acquires International entity. The state becomes entitled to all rights and special rights as a
member of the International community. In the absence of recognition any state cannot
establish her diplomatic and political relations with any states and also unable to sign any
treaty agreement with any state.
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17
What are the different classes of Diplomatic Agents? Describe briefly their privileges &
Immunities?
INTRODUCTION
During the Ramayana and Mahabharata period some aspects of International Law were in
their developed stage. Examples of international law relating to diplomatic agents may be
cited in this connection. The permanent appointment of diplomatic envoys began from the
seventeenth centaury. The first great landmark was the Congress of Vienna in 1815, wherein
the customary law regarding diplomatic agents was clarified and codified. The contents of
Vienna Convention were adopted finally in 1961. The Indian Parliament passed the
Diplomatic Relations on the basis of Vienna Convention-1972 to give effect to this
convention. This law relating to the diplomatic and consular affairs remains the strongest
section of International Law.
DIFFERENT CLASSES OF DIPLOMATIC AGENTS
The diplomatic agents have been classified according to their status and functions. The first
classification of diplomatic agent was made in the Congress of Vienna in- 1815 under which
diplomatic agents were classified under the following categories:-
1. Ambassadors and Legates:-These are the first category of diplomatic agents and are the
complete representatives of the sovereignty states. Their designation is Ambassadors or
Permanent Representatives of their respective countries of U.N. They are appointed by POP.
2. Ministers Pleni-potentiary and Envoys extraordinary:- Are the diplomatic agents of

second category and as compared to the diplomatic agents of the first category. They enjoy
less privileges and immunities.
3. Charge -of -affairs: - They are the diplomatic agents of the last category. The main reason
for this is that they are not appointed by the head of State but are appointed by the Foreign
Minister of the State. Their status is considered below the Minister Resident.
4. Minister Resident: - In the congress of Aix-la-Chappele-1818, this category was added at

category No.3, but it was again dropped by 1961 Convention.
PRIVIEGES & IMMUNITIES OF DIPLOMATIC AGENTS
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The International Court of Justice on 15.12.79 in a case of United States Diplomatic and
Consular Staff in Tehran: For enabling states irrespective of their differing constitutional and
social systems to achieve mutual understanding. One of the pillars of modern International
Law is the diplomatic immunities of the Ambassadors. However the following are the
immunities and privileges of the diplomatic agents:-
1. Inviolability of the person as envoys: - The diplomatic agents are extended personal
safety and security. If an envoy is attacked it is deemed that attack was on the country to
which the envoy is belonging.
2. Immunity from criminal jurisdiction of the court: - The courts of the state where the
envoy is posted do not treat the envoys within its criminal jurisdiction. It ordinarily believed
that envoys will not violate the laws of the host country. But there are certain circumstances
when the envoys lose their immunity for example when they indulge in conspiracy against
the host state.
3. Immunity from civil jurisdiction: - the envoys also enjoy the immunities of civil nature
also no suit is filed in the civil court of the host state against envoys. As per Vienna
convention three exceptions when immunity is not available are as follows:
i) For any immovable property within the jurisdiction of host state he has
ii) In a matter of inheritance where the envoy is a successor or executor in his personal
capacity.
iii) The commercial activities of the envoy in personal capacity.
4. Immunity regarding residence:-His premises are inviolable and no search is allowed in

his residence. If any person intrudes the premises of envoy to avoid arrest, it is the duty of
envoy to deliver such person to the host government to decide.
5. Immunity from presence in a court as a witness: - Any envoy cannot be compelled to

give evidence in any Court but he himself can waive this privilege and appear before a court.
6. Immunity from Taxes:-Vienna convention provides this immunity to envoys for payment
of local taxes. But water, electricity, telephones etc. not included.
a. Right to worship:-Within the premises of their embassy, envoys are free to follow
according to their choice the mode of worship.
19
b. Right to exercise jurisdiction over the staff and family in the embassy:- Envoys are free to
exercise their jurisdiction over the subordinate staff & family in the Embassy to keep the
embassy going on.
c. Right to travel freely in the territory of receiving state:-Vienna convention has provided a
new right to envoys; they can travel freely within the territory of host state and go anywhere.
d. Freedom of communication for official purposes: - Vienna convention-1961 the envoys

have freedom to communicate with his own state in context to their official work.
e. Immunity from Military and other local obligations: - Vienna convention granted the
immunity to envoys from military and other local obligations of the host state.
IMMUNITIES AND PRIVILEGES OF DIPLOMATIC AGENTS
Theory of extra territoriality: - According to Grotius diplomatic agents though physically

present upon the soil of the country to which they are accredited. It is justified base when
they are treated to remain for all purposes upon the soil of the country to which they
represent.
Functional Theory: - The reasons for granting privileges and immunities to the diplomatic
agents are that they perform special type of functions that is why they are called functional
and in modern times this theory is accepted as correct.
Conclusion
Diplomatic agents enjoy certain privileges and immunities. They are immune from the
jurisdiction of the civil and criminal courts of the receiving State. In this connection the old
view was that the diplomatic agents enjoy these immunities and privileges because they were
deemed to be outside the jurisdiction of receiving State. In the present time this theory has
been discarded. Modern view diplomatic agents enjoy certain immunities and privileges
because of the special functions they perform. This was affirmed in a case Ex-parte Petroff-
1971 by the Supreme Court of Australia.
20
What is Nationality? What are the various modes of acquiring and losing nationality? Is
there any difference between nationality and citizenship in India?
INTRODUCTION
Nationality has been defined as the status of membership of the collectively of individual
whose acts decision and policy are vouch safe through the legal concept of the State
representing these individuals.
By Prof. Oppenheim
“Nationality is defined as an individual the quality of being a subject of a certain State

and therefore its citizens.”
By Fenwick
“Nationality is such a bond which binds an individual with a state and makes him a
member of that specific State and provides for right of protection from that State with an
obligation to abide the laws promulgated by that State,”
By Kelson
“Citizenship or Nationality is the status of an individual who is legally an member of a

state and ornamentally he can be called a member of that community.”
IMPORTANCE OF NATIONALITY
i) The right of protection of diplomatic representatives is available because of nationality.
ii) If any state does not restrain a person of its nationality from such disadvantageous action
which is affecting other States then the fist State shall be responsible to other states for such
actions of its nationals.
iii) Ordinarily states do not refuse to accept its nationals in extradition.
iv) One of the effects of the nationality is that the state has a right to refuse extradition of own
national.
vi) By the practice of many States, at the time of war the Enemy character is determined on
the basis of nationality.
21
MODES OF ACQUISITION OF NATIONALITY
According to International Law nationality can be obtained by following means :-
1. By Birth: - In the country in which a person is born he obtains the nationality of that
country by birth or at the time of birth person gets the same nationality which his parents are
having.
2. By Naturalization: - By naturalization also nationality can be obtained. When an alien

living in a country obtains the nationality of that country it is called naturalization. In
Nottebohm case (1955), it was held that a State has no obligation in granting nationality to a
person through naturalization if that person has no relations with that state. The court
propounded the real and effective nationality doctrine. If any person obtains nationality of
two states then in case of controversy between the two nationalities the nationality of that
state shall be accepted with which the person fundamentally has real and effective
relationship.
3. By Resumption:-Sometimes it so happens that a person may lose his nationality because

of certain reasons subsequently he may resume his nationality after fulfilling certain
conditions.
4. By Subjugation:-When a State is defeated or conquered all the citizens acquire the

nationality of the conquering State.
5. Cession:-When a state has been ceded in another State all the people of the territory
acquire nationality of the State in which their territory has been merged.
LOSS OF NATIONALITY
1. By Release:-In some states there are such legal provisions are available by which they
grant permission to release their nationals from its nationality. For this type of release an
application is necessary. If the application for release is accepted then the applicant is
released from the nationality of that state.
2. By Deprivation:-Often in many states such legal provisions are available by which if a

national of that state enters into service of another state without the permission of home state.
He would loss nationality.
22
3. By long residence abroad: - The loss of nationality may take place on the ground that the
individual stayed abroad beyond a certain time limit. Many states have such type of legal
provisions which terminates the nationality for the stay of beyond limit.
4.By Renunciation:- It may also be the cause of loss of nationality, when a person is having
nationality of two or more states, he has to choose the nationality of one & has to renounce
the nationality of other state.
5. By Substitution:-In some states the nationality is terminated by substitution. A person gets

nationality of one state in place of other states.
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23
Define and explain briefly the term asylum?
Ans: The term asylum may be defined as under:
Definition: - “To provide shelter and protection by a host state to a citizen of another state, is
called asylum.”
Explanation: - The grant of asylum is an old international doctrine. But lacking general rules
for its regulation in the premises of international law. Asylum is the extension of shelter and
protection to an alien by a sovereign in case where there is a danger to the life of the alien or
he is in fear of being prosecution in his state by the his opponent government due to the
divergent political, social or religious views as between him and his government. The
philosophy behind asylum is the generally accepted international rule that each state is
sovereign in its territorial jurisdiction. No other state has a right of jurisdiction on the territory
of any state. Asylum is granted in consideration of national security because the rebel of
today may be the ruler of future. So, if he is not given the asylum the relations may become
adverse if the person, seeking asylum, comes in power in future. Asylum is opposite to
another legal doctrine namely, extradition. In which case the person is not granted the asylum
but is handed over to the requesting state. As pointed out hereinbefore, that there is no
generality of rules on the subject of asylum in international law, even though, there are
certain declarations and customs which stress on fact that every person should be given
asylum. But as such declarations are not binding in nature so the grant of asylum is dependent
totally on the discretion of the granting state.
Kinds of Asylum
There are following two kinds of asylum are as follows
a) Territorial Asylum, and

b) Extra-territorial Asylum
a) Territorial Asylum: - The grant of asylum by a state on its own territory is said to
territorial asylum. As for as, every state has exclusive right of control and
jurisdiction on its territory, so it the discretion of that state weather to extradite the
person or to grant asylum to him. Because every state has territorial sovereignty over
all persons, on its territory, whether they are its subject or aliens.
b) Extra-territorial Asylum: - The grant of asylum by a state outside its own territory
is said to be extra-territorial asylum. In other words the grant of asylum on places
24
not forming its physical territory is said to be extra-territorial asylum. Extra-

territorial asylum may be given at any of the following places: i. Asylum in legation
or Diplomatic Asylum: - The grant of asylum by a state in its embassy premises
situated in foreign state is said to be asylum in legation or diplomatic asylum. It is so
because the embassy premises are considered to be excluded from the territorial
jurisdiction of the state where it is situated.
i. Asylum in Consulates: - In consulates also the asylum may be granted to any
person in the same way as in the case of asylum in legation premises.
ii. Asylum in Warships: - Asylum may also be granted in warships, because men of
war and public vessels of a foreign are exempted from the jurisdiction of the state
in whose ports or waters may be found. Rather, they are under the jurisdiction of
the flag state.
iii. Asylum in Merchant Vessels: - In merchant vessels the asylum cannot be given
except where there is a treaty between the states. The reason that merchant vessels
cannot grant asylum is that, they are not excluded from the jurisdiction of the state
in whose waters or ports it is found.
iv. Asylum in the Premises of International Institutions: - Asylum may also be
granted in extreme danger to life in the premises of international institutions.
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25
Write down a short note on extradition?
Ans: - The extradition may be defined as under:
Definition
“The delivery of a person; suspected or convicted of a crime, by the state where he has
taken refuge or taken asylum, to the state that asserts jurisdiction over him.”
Explanation
Generally each state has full jurisdiction over all its subjects within its territory. But
sometimes a state becomes helpless to punish a guilty person. It is so because such guilty
person after committing crimes fled away to another country. So if there is no co-operation
between nation states in handing over the criminals to the affected states, the end of justice
with its real sprite cannot be attained. Due to this fact the nation-states adopt the doctrine of
extradition. In other words, the nation states hand over the criminals to the affected states in
the administration of justice.
Scope
International law neither recognizes the rules regarding extradition, nor it recognizes any
general duty on the nation-states in this connection. Rather the doctrine of extradition is
based on some general universal principles. And it arises from the provisions of treaties
between the nation-states. If there is no treaty between nation- states for extradition, the
country asserts jurisdiction over the criminal is not bound to extradite him to the affected
country. In other words extradition is the product of the treaties between the nation states, but
it may not be said that without any treaty there would be no extradition. Rather the nation
states in pursuance of mutual co-operation sometimes extradite the criminals to the other
country although in the absence of any treaty.
Restriction
As for as Extradition is concerned, it mostly depends upon treaties. But before, the
conclusions of a treaty the nation-states usually consider the following restrictions established
by Courts in this behalf; are as follows
26
1. Existence of a Formal Treaty: - The existence of a formal treaty is also sometimes

becomes much necessary. Because, it is generally a matter of bilateral treaty. So, mere
agreement or notification is not sufficient to bind the state to extradite a criminal. The
existence of a formal treaty is necessary because the state may refuse to extradite the
criminals in the absence of any treaty in this behalf.
2. Honour of Treaty: - In case of a treaty for extradition it is important to fulfill all the
conditions and terms of the said treaty. 3. Political Criminal: - There is an important principle
in international law that the political criminal shall not be extradited. It is also a restriction on
the scope of extradition.
3. Military Criminals: - Military criminals shall also not be extradited who have not been
charged of war crimes.
4. Religious Criminals: - Religious persons shall also not be extradited.
5. The Rule of Speciality: - The extradition of a criminal for a particular crime entitles the
requesting state only to prosecute him for that crime and not otherwise, the rule is said to be
rule of speciality. It is also a bar on the soul extradition.
6. Double Criminality: - Another bar on the extradition is the principle of double

criminality. According to this principle the crime for which the extradition of a person is
requested shall be of a nature be incorporated in the domestic laws of both the states.
7. Prima facie Evidence: - Prima facie evidence is another restriction on the scope of
extradition. It means that there should be sufficient evidence for crimes relating to
extradition.
8. Fulfillment of Formalities: - It is also equally important to fulfill all other formalities as

are necessary for extradition. Conclusion: - So, in the light of the above discussion it may be
concluded, that extradition is subjected to many restrictions. And an attempt should be made
to overcome such restriction. Because, it is inevitable to punish a person for the crime
committed by him in the administration.
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28
What do you understand from the term ‘war crime’ and what is it effects of crime
against peace? Elaborate
INTRODUCTION
War Crimes, Crimes against Humanity and Genocide The mapping report identifies the legal
framework applicable to the violence that occurred during the decade covered by the report
(1993-2003) and draws conclusions on the general legal classification of the incidents or
groups of incidents cited. It notes that the vast majority of the 617 most serious incidents
described in the mapping report point to the commission of multiple violations of human
rights and/or international humanitarian law, which may constitute crimes against humanity
or war crimes, and often both at the same time.
The term “war crimes” refers to serious breaches of international humanitarian law
committed against civilians or enemy combatants during an international or domestic armed
conflict, for which the perpetrators may be held criminally liable on an individual basis. Such
crimes are derived primarily from the Geneva Conventions of 12 August 1949 and their
Additional Protocols I and II of 1977, and the Hague Conventions of 1899 and 1907. Their
most recent codification can be found in article 8 of the 1998 Rome Statute for the
International Criminal Court (ICC). The vast majority of incidents listed in the report
could, if investigated and proven in a judicial process, “point to the commission of prohibited
acts such as murder, willfully causing great suffering, or serious injury to body or health,
rape, intentional attacks on the civilian population, pillage, and unlawful and arbitrary
destruction of civilian goods, including some which were essential to the survival of the
civilian population. The vast majority of these acts were committed against protected persons,
as defined in the Geneva Conventions, primarily people who did not take part in the
hostilities, particularly civilian populations and those put out of combat. This applies in
particular to people living in refugee camps, who constitute a civilian population that is not
participating in the hostilities, in spite of the presence of military personnel among them in
some cases.” The report notes that almost all the violent incidents listed from 1996 onwards
fall within the scope of armed conflict, whether internal or international in nature. “The
duration and intensity of the violent incidents described, and the apparent level of
organisation of the groups involved, could lead to the conclusion that, with few exceptions,
this was an internal conflict and not simply domestic disturbances or tensions or criminal
acts. In conclusion, the vast majority of violent incidents listed in this report is the result of
29
armed conflict and if proven in a judicial process, point to the commission of war crimes as
serious breaches of international humanitarian law.”
Crimes against Humanity
The definition of ‘crimes against humanity’ is codified in article 7 of the Rome Statute of
the International Criminal Court (ICC). “The notion encompasses crimes such as murder,
extermination, rape, persecution and all other inhumane acts of a similar character (willfully
causing great suffering, or serious injury to body or to mental or physical health), committed
‘as part of a widespread or systematic attack directed against any civilian population, with
knowledge of the attack’.” The mapping report says that most incidents listed may fall within
the scope of “widespread or systematic attacks” characterized by “multiple acts of large-scale
violence, carried out in an organized fashion and resulting in numerous victims. Most of these
attacks were directed against non-combatant civilian populations consisting primarily of
women and children. As a consequence, the vast majority of acts of violence perpetrated
during these years, which formed part of various waves of reprisals and campaigns of
persecution and pursuit of refugees, were in general terms all transposed into a series of
widespread and systematic attacks against civilian populations and could therefore be
classified as crimes against humanity by a competent court.” The report suggests that acts
that may amount to crimes against humanity were committed throughout the entire 1993-
2003 reporting period. Some acts, such as the mass forced deportation of Kasaians from
Katanga province in 1993, were committed outside the framework of an armed conflict.
Others, such as the 1996-1997 systematic massacres of Hutu refugees, and the murder,
torture, and violence directed at Tutsis in the DRC at the start of the August 1998 war,
occurred within an armed conflict, and may therefore also amount to war crimes. (493-499)
The Crime of Genocide Since it was initially formulated in 1948, in article 2 of the
Convention on the Prevention and Punishment of the Crime of Genocide, the definition
of ‘genocide’ has remained substantially the same. Article 6 of the Rome Statute borrows
from this Convention and for example, defines the crime of genocide as “any of the following
acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such.” The definition is followed by a series of acts representing serious
violations of the right to life, and the physical or mental integrity of the members of the
group. The Convention states that it is not just the acts of genocide themselves that are
punishable, but also “conspiracy to commit genocide,” “direct and public incitement to
30
commit genocide,” the “attempt to commit genocide” and “complicity in genocide.” It is the
specific intention to destroy an identified group either “in whole or in part” that distinguishes
the crime of genocide from a crime against humanity. The mapping report notes that “The
question of whether the numerous serious acts of violence committed against the Hutus
(refugees and others) constitute crimes of genocide has attracted a significant degree of
comment and to date remains unresolved.” The report repeatedly stresses that this question
can “only be decided by a court decision on the basis of evidence beyond all reasonable
doubt.” With that caveat, the Mapping Exercise drew the following conclusions: ƒ The scale
of the crimes committed against the Hutu ethnic group in the DRC, which probably involved
tens of thousands of victims, are illustrated by the numerous incidents listed in the report (104
in all): “The extensive use of edged weapons (primarily hammers) and the apparently
systematic nature of the massacres of survivors after the camps had been taken suggests that
the numerous deaths cannot be attributed to the hazards of war or seen as equating to
collateral damage.
The majority of the victims were children, women, elderly people and the sick, which were
often undernourished and posed no threat to the attacking forces. Numerous serious attacks
on the physical or mental integrity of members of the group were also committed, with a very
high number of Hutus shot, raped, burnt or beaten. If proven, the incidents’ revelation of
what appears to be the systematic, methodological and premeditated nature of the attacks
listed against the Hutus is also marked: these attacks took place in each location where
refugees had allegedly been screened by the AFDL/APR1 over a vast area of the country. The
pursuit lasted for months, and on occasion, the humanitarian assistance intended for them was
allegedly deliberately blocked... thus depriving them of resources essential to their survival.
Thus the apparent systematic and widespread attacks described in this report reveal a number
of inculcators elements that, if proven before a competent court, could be characterised as
crimes of genocide.ƒ However, the report also points out there are “a number of
countervailing factors that could lead a court to find that the requisite intent was lacking, and
hence that the crime of genocide was not committed.” These include “facts which tend to
show that the APR/AFDL spared the lives, and in fact facilitated the return to Rwanda of
very large numbers of Hutu, which militate against proving a clear intent to destroy the
group.” Also the intent underlying the killings, rather than being to destroy the group in
whole or in part, could be interpreted as collective retribution against Hutu civilians in Zaire
suspected of involvement with the ex-FAR/Interhamwe, reinforced by the APR/AFDL’s
31
conviction that upon destroying the camps, all Hutu remaining in Zaire were in sympathy
with the perpetrators of the 1994 genocide in Rwanda.
Crimes against peace, as described by the Nuremberg Tribunal in 1946, are “the supreme
international crime, differing only from other war crimes in that it contains within itself the
accumulated evil of the whole.”
Also known as the crime of aggression, crimes against peace formed the first charge against
the Nazis in the 1945 Charter of the International Military Tribunal at Nuremberg. The
charter defined them as “planning, preparation, initiation or waging of a war of aggression, or
a war in violation of international treaties, agreements or assurances, or participation in a
common plan or conspiracy [to do so].” Crimes against peace are not war crimes per se,
which involve unlawful conduct during war.
The idea of charging the Nazis with the crime of starting World War II was controversial at
the time and has remained so ever since. For the Americans, crimes against peace were the
chief offense of the Nazis, and the criminality of aggressive war needed to be enshrined in
international law. But starting a war had not been regarded as criminal up to that time. The
Kellogg-Briand Pact of 1928, which outlawed war (not too successfully, to say the least),
only rendered aggression an illegal act for States, not a criminal act for which individuals
could be tried. The French resisted the concept for this reason; the Soviets, for their part,
were concerned about criminalizing aggressive war given their invasions of Finland and
annexation of parts of Poland. The American view prevailed—though the tribunal’s
jurisdiction was limited to Axis aggression—leading to the conviction of leading Nazis for
crimes against peace. Afterward, a fierce debate raged in legal circles as to whether the Allies
had applied criminal law retroactively.
Although UN bodies have restated the importance of crimes against peace since World War
II, the UN’s members—especially Western States—have noted serious obstacles to actually
prosecuting individuals. First, a definition of aggression specific enough for prosecutions of
governmental officials remains elusive. Second, since wars are typically planned by many
people in State bureaucracies, drawing a line of guilt might prove difficult. Third, criminal
cases could encompass complex, politically laden factual inquiries ill-suited for courts. While
some cases of aggression are as stark as Iraq’s invasion of Kuwait, other incidents demand
more careful scrutiny.
32
One clear manifestation of these concerns was the Security Council’s unwillingness to give
the UN’s Yugoslavia Tribunal jurisdiction over this crime. Another was the decision by the
States drafting the Rome Statute of the International Criminal Court (ICC) to give the ICC
jurisdiction over crimes against peace only if States formally amend that statute to add a
definition of the crime and the conditions for the exercise of jurisdiction. States thus seem to
say that aggression is a crime in the abstract, but are reluctant to prosecute it. The concept of
crimes against peace still has some effect on international law, as States want to recognize the
illegality of aggression in the strongest way—by proclaiming that leaders can be held
accountable for it. But the dim prospects of actually prosecuting anyone make impunity the
norm and crimes against peace somewhat of a dead letter.
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33
What are different modes of pacific settlement of International disputes? Explain.
Ans The chief methods for peaceful/pacific or amicable settlement of international disputes
are:
(1) Negotiations:-
The term negotiation is used to denote intercourse between states for the purpose of
arriving at a settlement of dispute or for relaxation of international tension. Negotiation is the
simplest form of settling the disputes. Negotiations can be carried out by the head of states or
their agents or the exchange of notes. Examples are Indo-Pak Indus water treaty 1960. Yalta
and Potsdam agreement during second world war.
(2) Good Offices:-
When a third party offers its services to remove differences between two states who are
not willing to negotiate directly. A friendly third state assists in bringing about an amicable
solution to the dispute. These offices may also be offered by International organization or
some individual. The U.N Security Council offered its good offices in the disputes between
Indonesia and Netherlands in 1947.
(3) Mediation:-
Mediation is conducting of negotiations through the agency of third party. The

distinction between Mediation and good offices is very subtle. Unlike good offices in
mediation the third party itself takes part in Mediation. Example is the mediation of Soviet
premier Kosygen in the dispute between India and Pakistan at Tashkent in 1966.
(4) Conciliation:
Conciliation means the reference of a dispute to a commission or committee to make a

report with proposals for settlement. Conciliation is the process of ending a disagreement. It
recommends solutions. Mediation is commonly performed by an individual while
conciliation is performed by a committee.
(5) Inquiry:
The main objective of commission of inquiry is to make investigation of relevant matters

so as to establish facts. It is sometimes called 'fact-finding'. Inquiry differs from conciliation
34
in the fact that the object of inquiry is not to make any specific proposals for settling
international disputes but it is just to investigate and establish facts.
(6) Arbitration
The hearing and settlement of a dispute by an impartial referee chosen by both sides.
Arbitration decides a dispute and is a binding decree. Example is the Rann of Kutch
arbitration of 1968 for the settlement of disputes between India and Pakistan.
(7) Judicial Settlement or Adjudication:
It is a form of arbitration in which a permanent acts as the arbitral tribunal. At present the
International Court of Justice (ICJ) is the most important tribunal.
(8) Resort to regional agencies and U.N.
One of the main objects of the U.N is the peaceful settlement of differences between states.
The General assembly is empowered to recommend measures for peaceful adjustment of any
situation. The Security Council can act when disputes endanger international peace and
security.
35
What are different modes of Coercive settlement of International disputes? Explain.
Coercive means of settlement of disputes
1. The greater the intensity and extent of a crisis involving two or more States, the more it
imposes pressures to anticipate outcomes and give appropriate treatment. A State must be
conscious of its responsibility by being willing to take calculated risks which may entail
applying a globalized strategy by opening and directing its diplomatic initiatives in
accordance with its political and economic interests, and also with the necessary solidarity, to
work for negotiated control of the crisis. In the decisive phase of conflict, diplomacy
undoubtedly can offer pathways for balance and security, on the condition that the actors are
aware of their responsibility and are adequately prepared for the exercise of this function.
2. One of the great challenges of the international community is to achieve by peaceful

means, including those of a coercive nature, the effective resolution of conflicts or disputes
that could jeopardize peace and security. The range of possibilities of the methods of peaceful
settlement includes political, diplomatic and legal means. Public international law and the UN
Charter can be utilized in this process which indicates that more than one method (or a
combination of methods) can be applied to solve a particular crisis. However, when these
methods are exhausted in the search of a peaceful settlement, the possibility of resorting to
coercive means is opened.
3. According to Article 39 of the UN Charter, the Security Council is the body responsible
for taking measures to remove threats to or breaches of peace, or to define what an act of
aggression is. Articles 41 and 42 provide that agreements can result in Security Council non-
military actions, all of which can be defined as coercive. However, if these actions fail to
resolve the peace-threatening dispute or crisis, the Security Council may take other radical
measures involving even the use of force. On the other hand, the UN Charter recognizes the
competence of regional organizations in dispute settlement, and will coordinate with them, as
necessary, and will only apply coercive measures with the permission of the respective
regional organization.
4. The methods that have been established as coercive nature through a collective decision
include retaliation, order of reparation, closure of territorial borders, boycott, suspension or
expulsion from international organisations, and the breaking of diplomatic relations.
36
5. Retaliation which is a limited reaction of one State against certain harmful conduct of
another, may harm the State retaliated against. Even though this is contrary to international
law it is justified by the previous violation of that right by the other State. In order to justify
the reprisal, the following factors are taken into consideration: a prior unlawful act, the
aggressor state’s refusal to repair the proportionality of the damage, and self-defence against
any force that might have been used.
6. There are other methods which are considered as forms of retaliation. These are the
embargo against ships or aircraft, property and even commodities of the country against
which action is taken; cutting off all communication with the outside; and the boycott which
is essentially the cancelling of trade and financial relations, but which excludes the trade in
goods used for humanitarian and health purposes.
7. Other media also considered coercive is the severance of diplomatic relations and
retaliation. The severance of diplomatic relations is enshrined in the UN Charter as a measure
of punishment and coercion against States which do not comply with the resolutions and
recommendations of the Security Council, in certain circumstances. This indefinite
interruption of diplomatic relations may be bilateral or collective. The latter takes place when
several or all Member States of an international organization made the decision to break with
a certain State.
8. Retaliation is the act by which the offended State applies, without violating international
law, the same measures used against it by the offender. For instance, the raising of tariff rates
can be answered with a similar decision. Similarly, the imposition of restrictions on entry
visas, the summoning of the Head of the Diplomatic Mission of the offended State to the
Foreign Ministry of the offending State, and the declaration of persona non grata of diplomats
may be answered by similar retaliatory actions.
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37
What do you understand by term Blockade? Also elucidate, declaration/ notification

and termination of blockade?
DEFINITION
According to JG Strake, blockade occurs when a belligerent bars access to the enemy coast
or part of it for purpose of preventing ingress or egress of vessels or air-crafts of all Nations.
By Oppenheim,
“It is blocking men of war of the approach to the enemy coast or part of it for the purpose
of preventing ingress and egress of vessels or aircrafts of any nations.”
The law as to blockade represents a further restriction on the freedom of neutral States as to
trade with belligerents.
Essential elements of Blockade
i) It should be done by men of war.

ii) The part of coast or whole coast of the enemy can be blockade.
iii) The ingress and egress of the ships should be prevented through blockade.
iv) Blockade is an act of war.
v) Blockade should be such that no discrimination is made between the ships of
different countries.
Besides the above elements the additional necessary elements are also to follow are
i) Declaration and Notification

ii) Geographical limits of the blockade area: It is essential to clarify the areas where
the blockade will operate and vessels and aircrafts shall be prohibited from
entering.
iii) Exemption to neutral parts: Neutral ports should be exempted from blockade.
iv) Impartiality: There should not be any discrimination with the vessels of any
Nation; the vessels should stop impartially by the country which has imposed
blockade.
v) Effectiveness: For making blockade binding it is necessary that it should be
effective. For effectiveness it is essential to utilize the force and such measures
which are fit for stopping the ingress and egress of the vessels.
38
TERMINATION OF BLOCKADE
The blockade comes to an end in the following:-
1. by termination of war.
2. The country which has imposed blockade can itself terminate it.
3. When the blockade is continuously violated and it does not remain effective then it is
understood that blockade has terminated.
4. The blockading State captures and occupies the blockaded coast or port.
5. When blockading forces are vanquished by the enemy forces.
6. When the military vessels blockading area leave the blockaded coast it is understood that
blockade has ended.
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39
What do you understand by state jurisdiction on terrorism? Explain different types

jurisdictions?
INTRODUCTION
The Universal jurisdiction of International Law has been a source of enigma for centuries.
The initial object for the Universal jurisdiction principle lay in the social necessity in
punishing an offender, who has committed a crime against the interest of the international
community, without exception. Initially, it was confined to piracy jure gentium4. This meant
that any State could try and punish a pirate regardless of whether injury had been caused to
such State or its nationals. However, in the modern era, the Universal jurisdiction principle
has grown to include war criminals.
Whether international terrorism would possibly be an ingredient in the Universal jurisdiction
principle?
1. Universal Jurisdiction
According to Starke
"An offence subject to the Universal jurisdiction is one which comes under the
jurisdiction of all States wherever it is committed. Inasmuch as the general admission,
the offence is contrary to the interests of the international community, it is treated as a
delict jure gentium and all States are entitled to apprehend and punish the offender.
There are probably today only two clear-cut cases of the Universal jurisdiction
principle, namely piracy jure gentium and war criminals."
2. Piracy jure gentium
According to Article 15 of the Geneva Convention on the High Seas, 'piracy jure gentium' is
defined as
" An illegal act of violence, detention or any act of depredation, committed for private
ends, by those aboard a private ship or private aircraft, and directed, either on the high
seas against any ship or persons or property thereon or in territory or waters of the
nature of terra nullius against a ship or person or property thereon."
Piracy jure gentium for numerous centuries has been considered as a scourge and pirates may
tried, according to International Law, by any State provided the act was committed on the
high seas and for private ends.
4
Jure Gentium stand for
40
3. War Criminals
According to Malcolm Shaw,
"The General Assembly in 1968 adopted a Convention on the Non-applicability of
Statutory Limitations to War Crimes and Crimes against Humanity, reinforcing the
general conviction that war crimes form a distinct category under International Law,
susceptible to the Universal jurisdiction principle."
In the landmark case of Eichmann vs. A-G of Israel, the Supreme Court of Israel had the
opportunity to consider the scope of the Universal jurisdiction principle with regard to war
criminals.
Adolf Eichmann was a German officer during the Nazi regime in Germany. He was
responsible for the wholesale massacre of the Jews in Germany. After the Second World
War, he ran away from Germany and started living in Argentina. He was forcibly brought
from Argentina to Israel and put to trial in Israel under the Nazi Collaborators (Punishment)
Law, enacted in Israel after the State of Israel came in existence.
The Supreme Court of Israel, sitting as a Court of Appeal, relied in part upon the Universal
jurisdiction principle in upholding the conviction of Eichmann for war crimes, thereby
overruling objections that Eichmann's actions occurred in Europe during the Second World
War before the State of Israel was actually founded, and that his offences were committed
against people who were not citizens of that State.
4. Traditional View: Universal Jurisdiction principle is a Watertight Compartment
The conservative approach to the Universal jurisdiction principle has found favour with
writers such as Starke. This approach clearly demarcates the Universal jurisdiction principle
into two spheres viz. Piracy jure gentium and war criminals. According to Starke:
"Crimes or delicts jure gentium, other than piracy jure gentium and war criminals,
raise somewhat different considerations. Thus the offences of drug trafficking,
trafficking in women and children, have been brought within the scope of
international conventions, but have been dealt with on the basis of aut punire, aut
dedere5, i.e. the offenders are either to be punished by the State on whose territory
they are found or to be extradited to the State which is competent and desirous of
exercising jurisdiction over them."
41
5. Modern View: Dynamism of the Universal jurisdiction principle

However, over the past decade, due to major political and economic changes across the
globe, it now seems pertinent to read the Universal jurisdiction principle as inclusive and not
exhaustive.
There is considerable force in the argument that the Universal jurisdiction principle ought to
include all crimes against humanity. It also seems as an inevitable consequence in the
aftermath of September 11 2001, where the international community, led by the United
States, recognized international terrorism as a scourge against the international community
The gravity of 'crimes against humanity' has been recognized in the United Nations
Secretary- General's Report on the Establishment of an International Tribunal for the Former
Yugoslavia, which noted that:
"Crimes against humanity are aimed at any civilian population and are prohibited
regardless of whether they are committed in an armed conflict, international or
internal in character and refer to inhumane acts of a very serious nature, such as
willful killing, torture, rape committed as a part of a widespread or systematic attack
against any civilian population on national, political, ethnic, racial or religious
grounds."
The Rome Statute of the International Criminal Court (1998) is another manifestation of
the Universal jurisdiction principle. Its objective has been the establishment of an
International Criminal Court to try and punish offenders, accused of crimes against the
interest of the international community.
Article 5 of the Statute deals with the crimes, which are within the jurisdiction of the
International Criminal Court. These are,
(a) Crimes against Genocide
(b) Crimes against Humanity
(c) War Crime
(d) Crimes against Aggression
The basic test of whether a 'crime is against humanity' as provided for in the Statute is
'if it is a widespread or systematic attack against any civilian population'.
6. International Terrorism
The events of September 11 reiterate to the world a sinister proposition----- "Anyone, in any
part of the world can be the victim of International terrorism. Lord Lloyd of Berwick, a
former member of the House of Lords had once observed:
42
"A country which seeks to protect itself against International terrorism will not succeed if its
defenses are confined to its own soil. The activities of International terrorists abroad, whether
or not British interests are directly affected, are of concern to the Government because of.
Government's policy must be and is that the United Kingdom should take an active part in
securing International cooperation in fighting terrorism."
A proposition that has been gaining momentum in the past few years, in the United Kingdom
is that the United Kingdom can only expect other states to take measures to combat terrorists
who target the United Kingdom or its citizens if the United Kingdom, for its part,
reciprocates by combating terrorists who target states other than the United Kingdom.
That this proposition should be elevated into a universal law applicable to all nations seems
only inevitable if Planet Earth is to have a future.
Hence, since the beginning of the last decade of the 20th Century, the developed nations have
realized that they must unite with third world nations if they are to succeed in eradicating
international terrorism once and for all. International terrorism, today, is seen as against the
interests of the international community and satisfies all the pre-requisites to be considered as
a crime in respect of which the Universal jurisdiction principle ought to apply.
7. International Terrorism poses a Threat to the International Community

After the Black Tuesday attacks, there has been a growing intolerance towards terrorism
around the world, with more urgency than ever before. Terrorists are being treated as a
malady, and the legal enforcement agencies of most Western nations seem to have a malaise
in allowing persons, suspected of having links to known terrorist groups, to remain in their
nations.
In light of the current mood and predicament, the House of Lords in Secretary of State for the
Home Department vs. Rehman apparently give the term 'National Security' a very broad
definition. Lord Slynn of Hadley (as per majority) observed,
"It seems to me that, in contemporary world conditions, action against a foreign state may be
capable indirectly of affecting the security of the United Kingdom. The means open to
43
terrorists both in attacking another state and attacking international or global activity by the
community of nations, whatever the objectives of the terrorist, may well be capable of
reflecting on the safety and well-being of the United Kingdom or its citizens. The
sophistication of means available, the speed of movement of persons and goods, the speed of
modern communication, are all factors which may have to be taken into account in deciding
whether there is a real possibility that the national security of the United Kingdom may
immediately or subsequently be put at risk by the actions of others. To require the matters in
question to be capable of resulting "directly" in a threat to national security limits too tightly
the discretion of the executive in deciding how the interests of the state, including not merely
military defense but democracy, the legal and constitutional systems of the state need to be
protected. I accept that there must be a real possibility of an adverse affect on the United
Kingdom for what is done by the individual under inquiry but I do not accept that it has to be
direct or immediate. Whether there is such a real possibility is a matter which has to be
weighed up by the Secretary of State and balanced against the possible injustice to that
individual if a deportation order is made."
In the instant case, the appellant, Shafiq ur Rehman, came to the United Kingdom in 1993 as
a Minister of Religion with the Jamait Ahle-e-Hadith in Oldham from his native country,
Pakistan. However, when he applied for indefinite leave to remain in the United Kingdom, it
was rejected. The Secretary of State was of the opinion that the appellant was involved with
an Islamic terrorist organization Markaz Dawa Al Irshad (MDI) whose mujahidin fighters are
also known as the Lashker-e-Toiba (LeT) in Pakistan. On this basis, the Secretary of State
held that the appellant's departure from the United Kingdom was conducive to the public
good and in the interests of national security. The Secretary of State went further on to
observe that in light of the appellant's association with the MDI, it would be undesirable to
permit the appellant to remain and that his continued presence in the United Kingdom
represented a danger to national security.
The Federal Court of Appeal in Canada apparently has taken an even grimmer view of
terrorism than the House of Lords, in the case of Minister of Citizenship and Immigration vs.
Parminder Singh Saini . In this case, the Respondent, Parminder Singh Saini was a citizen of
India who was convicted in 1984 in Pakistan of hijacking an Indian airliner traveling from
India to Pakistan. After the Respondent served 10 years in prison he was released on parole
for medical reasons in 1994, was granted full parole in January, 1995 and was then ordered to
44
leave Pakistan. He departed Pakistan for Canada, claiming refugee status. Upon learning of
the Respondent's antecedents, the Canadian authorities took steps to obtain a deportation
order. While the Respondent was in custody in Canada pursuing appeals, in April 1998, the
then President of Pakistan granted a pardon to the Respondent. The main issue before the
Hon'ble Court was whether the Respondent could still be deported even after a pardon was
granted by the President of Pakistan on conviction/term of imprisonment already undergone
by Parminder Singh Saini, awarded by the Special Court at Lahore, on the charges of
hijacking of an Indian Airline's plane from Srinagar to Pakistan? Justice Linden, speaking for
a unanimous Court replied in the affirmative. Justice Linden observed that:
"Canada has ratified international treaties, such as the Convention for Suppression of
Unlawful Seizure of Aircraft, 16 December 1970, U.N.T.S. No. 12325 , and the Convention
for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 23 September
1971, U.N.T.S., No. 14118, which recognize that hijacking aircraft jeopardizes the safety of
persons and property, seriously affects the operation of air services, and undermines the
confidence of the peoples of the world in the safety of civil aviation. These international
instruments do not require Canada to deny entry to any person convicted of hijacking, but
strongly emphasize the serious nature of the crime and encourage signatories to severely
punish hijacking, take actions to discourage it, and generally cooperate in the international
condemnation of this crime. It is clear that hijacking is considered to be among the most
serious of criminal offences. Hijacking may combine, in one act, numerous offences
including kidnapping, unlawful confinement, theft, assault, extortion, and potentially murder.
It entails the violation of individual human rights such as the right to life, personal security
and freedom of movement. It financially damages airlines, associated industries and the
economy as a whole. Hijacking is not the mere seizure of an aircraft for its own sake; it
exploits control over the aircraft as "as a weapon of psychological coercion and extortion
directed against governments"
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45
What is State Succession? Elaborate different doctrine related to state succession?

State succession has become increasingly important as it affects more States and more legal
relationships than ever before. Approximately 100 new States emerged with the end of
decolonization. These changes affected more legal relationships than the earlier
decolonization process. These newly formed European States are more integrated into the
political, economic and legal global framework and are of greater importance, than were the
former dependent territories that became new States. This article tries to reflect upon the
nature of the problems that arise and may go some way towards ameliorating their effect.
This Article will argue that in spite of a failure to codify State succession matters, a lack of
consensus among learned authors, and clear tendencies in older precedents, there seems to be
an emerging consensus in recent practice suggesting that State succession should not
normally lead to a disruption of legal relationships at all levels.
A. Attempts to Codify or Legislation the Law of State Succession
Jennings has very correctly remarked that the law of state succession ‘is a subject which
presents such a rich diversity of practice as to give some plausibility to a surprisingly varied
range of theoretical analysis and doctrine’. It is a subject, which has been largely confused
and resistant to simple exposition. Despite the vast amount of literature on the subject, rarely
is mention made of the topic without reference to the complexity of issues involved, the
almost total doctrinal schism that has polarized thinking, and the lack of any agreed
theoretical structure. The ILC6 commented, close examination of State practice afforded no
convincing evidence of any general doctrine by reference to which the various problems of
succession in respect of treaties could find their appropriate solution.
The International Law Commission (ILC) has considered the matter extensively, and two
international conventions on the law of state succession have been adopted. Neither of the
two conventions has entered into force although each requires but fifteen ratifications or
accessions for entry into force. The ILC deals with State succession under four categorical
headings:
1) Treaties: the Vienna Convention on Succession of States in Respect of Treaties (Vienna
I);
2) State property, State debt and State archives: the Vienna Convention on Succession of
States in Respect of State Property Archives and Debts (Vienna II);
6
ILC stands for International Law Commission.
46
3) Membership to international Organizations: the ILC Rapporteur concluded that the

subject matter was not appropriate for codification. The Rapporteur recommended a report to
provide illustrations for resolving different categories of problems--illustrations which could
have a unifying effect on the practice of Organizations; and
4) State succession and its impact on the nationality of natural and legal persons: the
Rapporteur also failed to find any prospects for codification and recommended an ILC report
or a United Nations General Assembly draft declaration setting minimum standards for the
automatic acquisition of nationality. These minimum standards would serve as guidelines for
State legislation concerned with State succession.
B. Legal Doctrine
The ILC's failed efforts to codify or legislate a doctrine for State succession reflects the state
of legal doctrine as supported by precedents in State praxis and opinions of learned authors.
State practice and legal theory regarding succession yield separate approaches dealing with
the legal consequences of such succession:
1) The continuity of treaties, claims, debts, etc.;
2) The discontinuity "clean slate" or tabula rasa;
3) A casuistic distinction according to the type of State succession or to the type of legal
relationship concerned; and
4) A case-by-case settlement by mutual agreement between the Successor State and other
States concerned. The fourth option includes the application of the rebus sic stantibus7
principle although the widely-accepted Vienna Convention on the Law of Treaties only
allows the principle to be applied within an existing treaty relationship. The principle's
invocation presupposes agreement on the treaty's continuity.
For many authors, the central issue of substance is simply whether or not one of two
alternative theses should be applied: the ‘universal succession’ thesis or the ‘clean slate’
(tabula rasa) thesis. The former approach is a derivative of the Roman law concept of
inheritance in civil law, in which the heres (the appointed successors) acquire not merely
single res, but an aggregate of rights and liabilities called a iuris universitas.
A. Tabula rasa: The Clean Slate Doctrine
The option of simply denying State succession to treaties, known as the tabula rasa or clean
slate doctrine and re-inventing international law after each case of State succession has never
been adopted or openly defended in recent State practice. The ‘clean slate’ thesis appears to
47
have emerged in the late nineteenth century as a result of the influence of voluntarist or
imperative approaches to law. It proceeds from an understanding of law as deriving from the
expression of sovereign will, and embodies thereby the view that legal relations are
essentially personal. As a result, the process of transformation necessarily involves a legal
hiatus when the sovereignty of one state comes to an end and another takes its place. In such
a situation, there can be no ‘transfer’ of rights or obligations between the old and the new
state. Rather, the incoming sovereign is free of all rights and obligations save those it
assumes afresh.
This analysis was also adopted by the Sixth Legal Committee of the General Assembly during
the dismemberment of Pakistan from India and stated that when a new state is created by
separation from a member of the United Nations it couldn’t under the system of the Charter
claim the status of a member of the U.N. unless it has been formally admitted as such in
conformity with the provisions of the Charter. Therefore, states will not remain members
when they are legally extinguished and new states will remain as new states.
B. Universal Succession: The Continuity Theory
The continuation theory of state succession is an anti-thesis to the clean-slate theory of
membership. Under the continuity theory, rights and duties may still pass to States that have
lost extensive portions of their territories and/or have undergone radical changes in
government as long as they are considered to have inherited the essential legal identity of the
former member. In this regard, a distinction must be made between the concepts of continuity
and state succession. In the former, the same State is deemed to continue to exist, while in the
latter, one or more successor States are deemed to have replaced the former State. Prichard
explains that at the time of Justinian:
Under the continuity theory, there can be only two ways to view the division of a state:
(i) as a "breakaway," in which one of the divisions represents the continuing existence
of the State while the others represent States that have seceded from it;
(ii) as a complete "dissolution," in which the State has been dissolved and none of the
resulting States represent its continuity. Thus, the determination of whether the
changes in a State constitute an extinction of its legal personality is critical to the
inheritance of its rights and duties and other obligations. The legal identity of a State
might be destroyed through division, if it loses (a) Majority of the population and
territory of the former state; (b) seat of government, its original territorial nucleus, or
48
areas from which it obtained extensive revenues; (c) acceptance by the international
community regarding its continuity.
The law of state succession has, for some time, been explicitly contingent upon the
‘personality’ of the state, and specifically its ‘identity’ or ‘continuity’, which remained the
point of differentiation between the operation of two distinct legal regimes. Identity,
therefore, serves to differentiate between a case of cession (or secession) and one of
dismemberment, between a case of absorption (or annexation) and one of union, and between
the birth of a new state and its resurrection. In each case, the defining consideration is
whether or not the state concerned retains its legal identity; in other words, whether it
continues its personality as a state. Such differentiations are thought to be particularly
important because international law presumes that all decisions relating to the continuation or
otherwise of a state’s rights and duties, assets and liabilities, will be dependent upon the
universal characterization adopted. This, in turn, flows from the proposition that the
possession of international rights and duties inheres in an entity with appropriate legal
personality. Identity, therefore, provides the key to determining the proper set of norms that
are to be applied in a given case.
II. State Succession
Although state succession forms part of the established corpus of classical international law,
it is an area of especial confusion and inconsistency. As the German Federal Supreme Court
noted in the Espionage Prosecution Case, the problem of State Succession is one of the most
disputed areas of international law. Different international crises resulting from termination
of particular states or empires have not always been treated in a consistent fashion for a host
of political reasons and this has inevitably led to difficulties in formulating the relevant legal
rules which predictability. The pattern of international reaction to such specific episodes
needs to be carefully weighed since recognition in a situation of inconsistent and uncertain
practice assumes perforce a greater importance than might perhaps otherwise be the case. As
the Arbitration Commission established by the Conference on Yugoslavia starkly
emphasized, there are few well-established principles of international law that apply to State
succession. Application of these principles is largely to be determined case by case though
the 1978 and 1983 Vienna Convention do offer some guidance.
States and the concept of statehood lie at the heart of international law. As Oppenheim notes,
States are the principal subjects of international law and thereby possess international
personality of the fullest kind. It is quit apparent that one cannot tackle the question of State
succession, i.e. the issue of transmission of rights and obligations from one State to another
49
without at first confronting the problem of statehood. Succession is predicated upon the
existence of two (or more) States has been resolved in a way that the issue of identity or
continuity of States has been resolved in a way that presents the international community
with at least two states. Of course, in the vast majority of cases no problem will occur at this
point, but in some situations this will not be so. In addition, it is important conceptually to
distinguish issues focusing upon statehood from those concerned with succession in order to
be able to appreciate the crucial distinction between the legal consequences flowing from a
determination as between continuity and succession.
A. What is State Succession?
Oppenheim has stated that a succession of international persons occurs when one or more
international persons takes the place of another international person, in consequence of
certain changes in the latter’s condition.
Vienna I and II state that succession is "the replacement of one State by another in the
responsibility for the international relations of a territory."This definition excludes mere
changes of government like those revolutionary transformations of a State brought about by
the introduction of socialism or by its abolition. The Vienna Conventions' definition avoids
tricky questions as to, what is a state. - In the same way that all invocations of the principle of
self-determination avoid saying to whom the right is granted. The definition of State
succession limits itself to a symptom or to the effect relevant for international law in the
succession of responsibility for a predecessor State's international relations. Yet this symptom
of responsibility for international relations is the result of a social, political, and historical
process with consequences in the fields of national constitutional, administrative, and civil
law. And there the question concerning the process of State succession frequently becomes
unavoidable, especially when it is necessary to determine the date on which State succession
has taken place.
Issue of State Succession
The issue of state succession can arise in a number of defined circumstances, which mirror
the ways in which political sovereignty may be acquired by, for example, decolonization of
all or part of an existing territorial unit, dismemberment of an existing state, secession,
annexation and merger. In each of these cases a once-recognized entity disappears in whole
or in part to be succeeded by some other authority, thus precipitating problems of
transmission of rights and obligations. However, the question of state succession does not
infringe upon the normal rights and duties if states under international law. These exist by
virtue of the fundamental principles of international law and as a consequence of sovereignty
50
and not as a result of transference from the previous sovereign. The issue of state succession
should also be distinguished from questions of succession of governments, particularly
revolutionary succession, and consequential patterns of recognition and responsibility.
Obviously the problem is different in the case of total acquisition from what it is the case of
partial acquisition. In the former case there is no surviving person to whom antecedent rights
and obligations may still be attributed, whereas in the latter case there is. The problem in the
one case is to ascertain what rights and obligations pass to the Successor State and what lapse
for want of a juridical entity in which they can be invested. The problem in the other case is
to distinguish those rights and obligations, which are automatically transferred to the
successor state from those, which remain with the Predecessor State.
In all the types of State succession the transfer of an immobile property to the successor was
confirmed. Specific regulations concern a destiny of mobile property in particular types of
succession. In the case of cession, the Successor State acquires the part of the mobile
property connected with the predecessor’s activities in the ceded part of the territory. In the
case of the uniting of States, clearly and manifestly logical solution provides that the
Successor State acquires the whole property of the Predecessor State or States. According to
Art.17 and 18 of the Convention, in cases of separation and dissolution of States the successor
State acquires the immobile property situated in its part of the territory, the mobile property
related to the activities of the predecessor State in the respective part of the territory, and -in
the case of dissolution only- an equitable share of the remaining mobile property as well as of
the property of the predecessor State situated abroad. Finally, special provision of Art.15
dealt with the position of the newly independent States (i.e. former colonies). Those States
should receive not only the whole property of the Predecessor State situated in the territory of
the new State, but also property having belonged to the territory of the Successor State and
situated outside it and having become property of the Predecessor State during the period of
dependence. In particular, the proviso of Article 15, paragraph 4, as well as Art. 38,
paragraph 2, with regard to debts, establishing that the devolution agreements with newly
independent States shall not infringe the principle of the permanent sovereignty of every
people over its wealth and natural resources lead to the rejection of the Convention by the
Western States.
Art.19-31 of the Convention dealt with the succession in respect of State archives and
constitutes leges specials in relation to the provisions concerning the State property. General
provisions of that chapter correspond with the regulations concerning the State property.
51
Specific regulations relating to the respective types of succession provide for the primacy of
the devolution agreement. If no agreement was concluded, in the case of cession the
successor State should receive the part of the archives necessary for an efficient
administration of the acquired territory, as well all the documents relating fully or mostly to
the ceded territory. Other documents should be reproduced upon request, at the expense of
the Successor State. The provisions concerning secession and dismemberment provide for the
partition of the archives of the Predecessor State in accordance to the model elaborated in the
case of cession. Finally, in the case of the unification of States the Successor State acquire all
the archives of the Predecessor State - in most cases all the archives are situated in its
territory anyhow. Special provisions guaranteed also a privileged position of the newly
independent States, which should obtain a part of all the archives of the former metropolis.
The solution would seem contrary to Art. 25 of the Convention, proclaiming the principle of
the unity of archives.
According to Art. 33, the Convention regulated the succession of financial obligations of
States towards other States, international organizations and other subjects of international
law, then excluding private parties. The Convention did not refer to any classification of
debts mentioned above. Another important provision of the Convention reads that the
succession of States itself does not infringe any rights of the creditor. That clause is important
in the light of the general provision that the succession cannot infringe rights and duties of
third parties. The rights of the creditor cannot be changed by a mere devolution agreement. In
all cases in which a partition is required, the criterion generally adopted by the Convention
was that the debt passes to the Successor State in an equitable proportion. The exception was
the situation of the newly independent States, for which no debts pass to them, unless an
agreement provides otherwise, provided that this agreement does not infringe the principle of
sovereignty of peoples over wealth and natural resources (Article 38).
State Succession to Assets and Debts
The primary rule with regard to the allocation of assets (including archives) and debts in
succession situations is that the relevant parties should settle issues by agreement. Virtually
all of the rules that are formulated in Vienna II are deemed to operate only where such
agreement has not taken place. In addition the Yugoslav Arbitration Commission declared in
Opinion No. 9 that the successor States to the SFRY must together settle all aspects of the
succession by agreement” and reinforced this approach in Opinion No. 14, declaring that the
first principle applicable to State succession is that the successor States should consult with
each other and agree a settlement of all questions relating to succession.
52
Art. 40 of Vienna II provides that where part of a state separates to from another state,
unless otherwise agreed, the state debt of the predecessor state passes to the successor state in
an equitable proportion taking into account in particular the property, rights and interests
which pass to the successor state in relation to that debt. It is doubtful that this proposition
constitutes a codification of customary law as such in view of the confused and disparate
practice of States to date, but it does reflect a viable approach.
Public debts may be divided into national debts, being debts owned by the State as a whole;
local debts, being debts contracted by a sub-governmental territorial unit or other form of
local authority, and localized debts, being debts incurred by the central government for the
purpose of local projects or areas.
Local debts clearly pass under customary international law to the successor State, since they
constitute arrangements entered into by sub-governmental territorial authorities now
transferred to the jurisdiction of the successor state and a succession does not directly affect
them, in effect, they continue to constitute debts borne by the specific territory in question.
Similarly, localized debts, being closely attached to the territory to which the succession
relates, also pass to the successor state in conformity with the same territorial principle.
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53
What is Contiguous Zone? What are the rights and activities related to foreign
nationals in Contiguous Zone?
The Contiguous Zone means of a formal proclamation made public to the international
community, a coastal state may establish a zone contiguous to the territorial sea and
extending a maximum of twenty-four nautical miles from the baseline. Consequently, the
breadth of the contiguous zone itself depends on the distance proclaimed and on the breadth
of the territorial sea. If the territorial sea of the coastal state has the maximum breadth of
twelve nautical miles, then the contiguous zone can have a maximum breadth of only twelve
nautical miles.
The contiguous zone enjoys independent legal status only as long as the coastal state has not
proclaimed an exclusive economic zone exceeding the outer limits of the contiguous zone. If
an exclusive economic zone is established, it begins beyond and adjacent to the territorial sea,
with the resultant effect that the contiguous zone becomes a part of the exclusive economic
zone, and all provisions which apply to the latter also apply completely and fully in the
contiguous zone. The principle of freedom of navigation applies in this zone as well as
elsewhere outside the territorial sea, but other states are to have due regard for the rights of
the coastal state in the exclusive economic zone and to comply with its laws and regulations .
The rights derived from this provision are of two types: “prevention” and "extended
power”.
Rights of “prevention” mean that the coastal state exercises police force limited to "control"
necessary to prevent infringements of customs, fiscal, immigration, or sanitary laws in the
territorial sea or territory of the coastal state, including boarding and searching and even
prohibiting the foreign vessel from entering the territorial sea. If there is no such
infringement, the coastal state has no further rights.
"Extended power" to apply national criminal law goes into effect if there has been an
infringement of the laws listed above within the territory or territorial sea of the coastal state.
In many instances of such infringements, coastal states would also be able to exercise the
right of hot pursuit. There seems to be hardly any need for the concept of a contiguous zone,
particularly now that the territorial sea has been extended from three to twelve nautical miles.
Finally, it is worthy of mention that the Convention unexpectedly and rather curiously grants'
special status to the contiguous zone in one other area: in order to control traffic in historical
54
and archaeological objects, the coastal state may presume that the removal of any such
objects from the contiguous zone without the state's approval would violate the laws
mentioned in Article 33, and the state may act accordingly. The law of salvage and other
international rules and agreements remain unaffected.
Within the contiguous zone, the coastal state is invested with the power
 to prevent infringement of its customs, fiscal, immigration, or sanitary laws and

regulations
 within its territory or territorial sea (Article 33, Subparagraph 1(a));
 to punish infringement of the above laws and regulations committed within its
territory or territorial sea (Article 33, Subparagraph 1(b)).
Activity Rights of Foreign Nationals in the Contiguous Zone
Navigation Full navigation rights if compatible with
Convention (Articles 58,Paragraph 1, and 87;
58, Paragraph 2, and 88-115)
Restricted by Article 33 in, general only;
boarding and
search by coastal state only to prevent and
punish infringement of
specific coastal state laws
Removal of historical and archaeological
objects only with approval of coastal state.
Over-flight Full rights of over-flight
Fishing No rights after establishment of exclusive
economic zone(Exceptions: Article 62,
Paragraph 2)
Scientific Research Consent of coastal state is required when
economic zone has been established (Article
246)
Laying of Cable Full rights (Article 58, 79), consent of coastal
state for routing required (Article 79, Paragraph
5)
Mining No rights (Rights of coastal state over
55
continental shelf need not be claimed) (Article

76, Paragraph 3)
Observance of Must observe sanitary laws of coastal state
environmental (Article 33); must observe pollution laws (Part
legislation XII) applicable in exclusive economic zone.
NOTES____________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
56

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Define various definition of International Law? Conclude the definition in reference to

According to Bentham’s classic definition of International Law is a collection of rules

What is Nature and scope of law with reference to International Law?

Following is the more comprehensive division of the contents of International Law:

(1) Laws governing states in times of peace.

(2) Laws governing states in times of war.

(3) Laws governing states in the relation of neutrality.

(1) Laws of Peace:

(2) Law governing states in times of war:

(3) Law governing states in the relation of neutrality:

Prof. Schwarzenbergr, “Treaties are agreements between subjects of

International treaties may be of the two types

STRAKE elucidates, “Usage represents the twilight stage of custom, custom

Q. Explain the relationship between International Law and Municipal Law?

There is a divergence of opinion on the question as to whether International Law and

“That through recognition the members of the International community formally

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

According to Kelson: “A community to be recognized as an International person must fulfill

i) The community must be politically organized.

ii) It should have control over a definite territory.

iii) This definite control should tend towards performance.

iv) The community thus constituted must be independent.

Recognition is broadly categories into two types are as follows:

By Judge Phillips C Jessup

i) A reasonable assurance of stability and performance.

By Phillips Marshall Brown

 De facto recognition is conditional and  De jure recognition is final.

DIFFERENT CLASSES OF DIPLOMATIC AGENTS

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

4. Minister Resident: - In the congress of Aix-la-Chappele-1818, this category was added at

PRIVIEGES & IMMUNITIES OF DIPLOMATIC AGENTS

iii) The commercial activities of the envoy in personal capacity.

4. Immunity regarding residence:-His premises are inviolable and no search is allowed in

5. Immunity from presence in a court as a witness: - Any envoy cannot be compelled to

d. Freedom of communication for official purposes: - Vienna convention-1961 the envoys

Theory of extra territoriality: - According to Grotius diplomatic agents though physically

“Nationality is defined as an individual the quality of being a subject of a certain State

“Citizenship or Nationality is the status of an individual who is legally an member of a

i) The right of protection of diplomatic representatives is available because of nationality.

iii) Ordinarily states do not refuse to accept its nationals in extradition.

MODES OF ACQUISITION OF NATIONALITY

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

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

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

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

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

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

Define and explain briefly the term asylum?

Ans: The term asylum may be defined as under:

There are following two kinds of asylum are as follows

a) Territorial Asylum, and

not forming its physical territory is said to be extra-territorial asylum. Extra-

Write down a short note on extradition?

Ans: - The extradition may be defined as under:

1. Existence of a Formal Treaty: - The existence of a formal treaty is also sometimes

4. Religious Criminals: - Religious persons shall also not be extradited.

6. Double Criminality: - Another bar on the extradition is the principle of double

8. Fulfillment of Formalities: - It is also equally important to fulfill all other formalities as

Crimes against Humanity

What are different modes of pacific settlement of International disputes? Explain.

(2) Good Offices:-

Mediation is conducting of negotiations through the agency of third party. The